Gwynne Skinner (Willamette University – College of Law) has posted a new article on SSRN: “Customary International Law, Federal Common Law, and Federal Court Jurisdiction” Valparaiso University Law Review, Vol. 44, 2009. Here is the abstract:
This essay-article addresses federal common law’s proper recognition of customary international law and the implications of that recognition for jurisdiction under 28 U.S.C. § 1331. After describing the current debates regarding the role of customary international within federal law, the essay-article argues that customary international law itself is not wholly incorporated into federal law; rather, federal courts have common law power to recognize and incorporate rules of customary international law when developing federal common law in areas of federal interest, including in cases that might impact foreign affairs. In this way, it is federal common law, not customary international law itself, that is “law of the United States” for purposes of Article III and 28 U.S.C. § 1331, and as such, falls within § 1331 jurisdiction.