Via Instapundit, I came across a paper by Professors John McGinnis (Northwestern Law School) and Ilya Somin (George Mason Law School), entitled "Should International Law be Part of Our Law?" I suspect the actual heart-of-hearts answer in all cases, according to the authors, is probably "no, hell no, never." To be fair, the authors are not particularly exercised about what they term "domesticated international law" --- law which has gone through the domestic political process, i.e., a treaty that has been ratified, or domestic legislation enacted that directs the incorporation of international law --- but they are quite exercised about what they term "raw international law," law that becomes a part of U.S. law through court decisions. Roger Alford, at Opinio Juris, has a short reference to the article (described as "provocative"), but most interesting to me are the to-and-fro in the debate between Matthew Gross and Benjamin Davis played out in the comments to the Alford piece.
As the distinction between the above two catgories illustrates, the authors professed concern is with circumvention of the democratic processes by unelected judges, particular liberal judges. I think it accurate to define a liberal judge in this context in a peculiar fashion as someone who would even look at international law as is said in Talmudic studies, as "zeker le-dabar," not as actual proof for the meaning of a text, but rather as a reference to further support for one's own interpretation of one's own text by pointing out others interpret similar texts the same way. This is what happened in two Supreme Court opinions that infuriated conservatives, Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005), the latter involving the death penalty as applied to juveniles.
I confess to not understanding, jurisprudentially, what the uproar is about. In Roper, the majority did not claim that its decision was determined by treaties or decisions in other countries. I therefore find it inaccurate for the authors to state that "the Court applied international material that the political branches expressly refused to carry into the transom of domestic law," if by "applied" we mean part of U.S. law. So long as a claim is not made that international or foreign law compels U.S. law be construed a particular way (other than in a situation where a treaty the U.S. has ratified is at issue) why shouldn't courts try to gain as much knowledge as possible from whatever sources as possible? I understand quite well what the political rhetoric is about, though, and that is, conservatives don't want judges interferring with the executive branch during a Republican Administration.
At the same time, conservatives are quite right in crying foul for liberals' efforts to directly incorporate customary international law (CIL) into U.S. law, and quite right to describe this, as the authors do, as a "democratic deficit." Modern customary international law advocates assert that CIL provides a private course of action directly, justiciable in federal court. But federal courts are courts of limited jurisdiction; they require a specific grant of authority and cannot create their own jurisdiction. The mere existence of CIL is not itself such a grant. On this score, I wholeheartedly agree with the authors about the dangers to our democratic institutions posed by CIL advocates.
In the copyright field, in Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998), the issue was whether to apply foreign law to ownership of articles written by foreigners and first published in their own country (Russia). If U.S. law applied plaintiffs had standing; if Russian law applied, they didn't. In applying Russian law, Judge Newman wrote that the court was "fill[ing in] the interstices of the [Copyright] Act by developing federal common law on the conflicts issue." This approach, one of a federal "interpretative" common law, recognized by the Supreme Court in Smith v. Alabama, and applied regularly in maritime cases, may be contrasted with the creation of a separate body of choice of law rules to be interposed between the U.S. Copyright Act and foreign copyright law. This is not the approach taken in Itar-Tass. Itar-Tass may be said to have interpreted the Copyright Act as permitting the application of foreign law on ownership; it did not create a new federal common law of copyright conflicts of law. This approach is consistent with the Supreme Court’s decision in Texas Industries, Inc. v. Radcliff Materials, Inc., which held that the appropriate types of federal common lawmaking are "few and restricted" and fall into two categories, those "necessary to protect uniquely federal interests and those in which Congress has given the courts the power to develop substantive law." The latter category is the one which applies to copyright since Congress has delegated to the courts the power to create the most important substantive doctrines in copyright law: who is an "author," when is a work "original," and when is a work infringed? Courts previously developed the critical fair use defense, which Section 107 merely statutorily recognizes, but does not codify. In short, Itar-Tass’ development of copyright choice of law rules is of a type Congress has empowered the courts to create when construing the Copyright Act. Rather than creating external choice of law rules, Itar-Tass should be understood as interpreting the Copyright Act (in particular Section 104) as authorizing courts to develop choice of law rules in applying the Act in situations where choice of law problems are encountered. This is closer to the "domesticated" international law than the "raw" international law referred to by Professors McGinnis and Somin.