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Judges Commons

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International Law

University of Missouri School of Law

2012

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The Supremacy Clause As Structural Safeguard Of Federalism: State Judges And International Law In The Post-Erie Era, Sam F. Halabi Oct 2012

The Supremacy Clause As Structural Safeguard Of Federalism: State Judges And International Law In The Post-Erie Era, Sam F. Halabi

Faculty Publications

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges' use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state ...