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Full-Text Articles in Law
Bespoke Custom, Edward T. Swaine
Bespoke Custom, Edward T. Swaine
GW Law Faculty Publications & Other Works
Curtis Bradley and Mitu Gulati’s stimulating article, “Withdrawing from International Custom,” argues for a view of customary international law (CIL) in which unilateral exit rights may be revitalized. This response suggests that Bradley and Gulati’s understanding of the intellectual history of CIL is contestable and that, they tend both to understate the novelty of their approach and overstate the rigidity of the views to which they react. Their tentativeness in endorsing exit options makes it difficult to assess the normative implications of their position, but their argument notably lacks a comprehensive consideration of alternative lawmaking forms.
The Political Branches And The Law Of Nations, Bradford R. Clark
The Political Branches And The Law Of Nations, Bradford R. Clark
GW Law Faculty Publications & Other Works
In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …