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Thursday, April 26, 2007

Dodge on Sosa

I'm delighted to highlight a recent essay on the Harvard Law Review Forum by my colleague Bill Dodge.  Here's an abstract:

In 1997, Professors Curtis Bradley and Jack Goldsmith shook the international law academy by arguing that the Supreme Court's decision in Erie Railroad Co. v. Tompkins made it illegitimate for federal courts to continue to apply customary international law (which they called CIL) without further authorization from Congress. The Supreme Court's 2004 decision in Sosa v. Alvarez-Machain seemed to reject this argument, holding that federal courts could apply customary international law under the Alien Tort Statute (ATS) without any authorization beyond the jurisdictional grant. Undaunted, Professors Bradley and Goldsmith (joined now by Professor David Moore) have returned to claim that Sosa in fact supports their argument and that courts can domesticate CIL only in accordance with the requirements and limitations of post-Erie federal common law.  In my view, their latest article not only misinterprets Sosa but also raises fundamental questions concerning both the legitimacy of customary international law itself and the legitimacy of requiring its express incorporation into the U.S. legal system, a requirement that is contrary to the understanding of the founding generation.

Let us know what you think.

Posted by Ethan Leib on April 26, 2007 at 12:09 PM in Article Spotlight | Permalink


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Putting this right above the "Manny being Manny" thread made me think of a different Sosa. Maybe I *should* have been required to take international law. . . .

Posted by: Joseph Slater | Apr 26, 2007 6:29:33 PM

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