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Legal History

2007

Customary international law

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Full-Text Articles in Law

Sosa, Federal Question Jurisdiction, And Historical Fidelity, Anthony J. Bellia Jan 2007

Sosa, Federal Question Jurisdiction, And Historical Fidelity, Anthony J. Bellia

Journal Articles

In his paper "International Human Rights in American Courts," Judge Fletcher concludes that Sosa v. Alvarez-Machain “has left us with more questions than answers.” Sosa attempted to adapt certain principles belonging to the "general law" to a post-Erie positivistic conception of common law while maintaining fidelity to certain historical expectations. “[I]t would be unreasonable,” the Court thought, “to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” The Court was unwilling, however, out …