• Kirk Hartley

New, First of Its Kind Treatise on the US Supreme Court’s Use of International Law

A group of legal scholars are out with a new book said to provide a comprehensive account of international law as used by the US Supreme Court. There’s an ongoing discussion of the book at Opinio Juris, an international law blog. Set out below are excerpts from a blog post by one of the editors; reading a few of the blog posts leaves the impression that the the book is a timely and extensive success.

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"We also noticed that these competing claims were sometimes difficult to assess because there was no comprehensive account of the Supreme Court’s use of international law throughout its history. This book, International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011) seeks to fill that gap. To carry out the project, we were fortunate to assemble a distinguished group of contributors with expertise in international law, foreign affairs law and legal history, each of whom contributed one or more original essays to the book.

The book’s organization is broadly chronological, beginning in Part I with an assessment of the Court’s use of international law from the Court’s inception to 1860. Parts II through IV cover, respectively, the years from the Civil War to the end of the nineteenth century (1861-1900); the first half of the twentieth century through World War II (1901-1945); and the post-war years to the century’s end (1946-2000). Part V examines the leading post-2000 cases in light of historical practice. Although the dividing lines between historical periods are concededly somewhat artificial, the book is deliberately designed to devote substantial attention to the period from the Civil War to the end of World War II, which seems somewhat under-examined by prior scholarship as compared to the Founding era and the modern period.

Within the chronological periods, the book further subdivides the Court’s treatment of international law into substantive categories: treaties, direct application of customary international law, and the use of international law in constitutional and statutory interpretation. For each of the periods before 2000, it also includes a chapter of historical commentary addressed to wider political, legal and social developments. For the post-2000 period, recognizing that it is more difficult to achieve historical perspective on recent decisions, it features more opinionated and provocative essays designed to present a range of reactions to the leading cases."

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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