The Law of Our Land: Customary International Law as Federal Law after Erie

66 Fordham L. Rev. 393 (1997)

Fordham Law Review, Vol. 66, No. 393, 1997

69 Pages Posted: 7 Aug 2012

Date Written: 1997

Abstract

For decades, federal courts and scholars have asserted that customary international law is part of federal common law, the body of unwritten rules of decision developed by federal courts in the absence of a direct constitutional or statutory provision. If international law is part of federal law, it provides the basis for federal court jurisdiction and is binding on the states. This view of customary international law as federal common law, recently labeled the “modern position,” has been widely accepted. But this conclusion has come under attack from commentators who assume that customary international law was part of the pre-Erie v. Tompkins general common law, which was decisively rejected by Erie. Post-Erie, they insist, in the absence of direct authorization from the executive or legislative branches, federal courts have neither jurisdiction based on customary international law nor power to impose federal interpretations of international law on the states.

This radical conclusion rests on several misconceptions. First, the Constitution assigned responsibility for enforcement of international law, including customary international law, to all three branches of the federal government, the judiciary as well as the executive and legislative branches. Second, during the tangled reign of the general common law regime, the federal courts recognized the need for a true federal common law, and began to develop such law. And, while Erie rejected the general common law, it upheld the federal courts’ power to develop common law in areas properly governed by federal law, including international law. Finally, the rejection of international law as a form of federal law presupposes an unsupported and ahistorical view of state jurisdiction and state authority over international law.

This article offers a defense of the historical antecedents and current validity of the “modern position,” arguing that the determination of the content and application of customary is a federal question, triggering federal jurisdiction, and on which federal court decisions are binding on the states.

Keywords: federal common law, customary international law, the modern position

Suggested Citation

Stephens, Beth, The Law of Our Land: Customary International Law as Federal Law after Erie (1997). 66 Fordham L. Rev. 393 (1997), Fordham Law Review, Vol. 66, No. 393, 1997, Available at SSRN: https://ssrn.com/abstract=2124598

Beth Stephens (Contact Author)

Rutgers Law School ( email )

Newark, NJ
United States
856-225-6384 (Phone)

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