The Controversial Status of International and Comparative Law in the United States

Abstract

In recent years, I have watched the swirling debate over whether the United States courts should consult international or comparative law. As a law professor, the debate has puzzled me, for international and comparative legal materials have always appeared in the sources consulted by American lawyers and judges. So this article is really a search for the roots of the contemporary controversy. Why is there a controversy? And what can we learn from it? I will suggest three conjectures to explain the fact of the contemporary debate over the proper role of international law within the United States: (1) a basic concern emphasizes that we risk being taken over, or losing what we are by engaging with others; (2) a second worry stresses that the United States is exceptional and thus faces politically motivated attacks as the last superpower; (3) a third very specific trepidation arises from the unusual nature of “customary international law.” My hope is that by locating the sources of the controversy over the place of international law within the United States, we can dismiss artificial issues and focus on genuine and significant developments—broader changes that offer a window onto the prospects for more effective human governance. The debate diverts attention from developments that might be instructive to us not just in what US courts do but, more importantly, in how we design legislation and legal institutions and how we understand our place in the world. First, we need to see the puzzle: what is the contemporary debate and how does it relate to judicial practice in the United States?