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Ed Whelan’s most substantive post so far is on a complicated topic – the role of “customary international law” as “federal common law.”  His post, however, casts an ongoing mainstream academic debate in an inflammatory and ultimately inaccurate light.  (Like Whelan, I’m learning some of this as I go, so I’ll correct anything I get wrong – but it’s important to pushback on this stuff).

Anyway, the ultimate problem with Whelan’s argument is that it transforms a debate about the allocation of power between federal and state governments into a worldwide conspiracy theory.  To Whelan, CIL is essentially part of a Rube Goldberg-like process whereby (1) a cabal on international activists pass a resolution and proclaim it law, (2) Obama appoints federal judges who are sympathetic; and (3) those judges use new versions of international law to “threaten” “representative government.”  There’s more than a little conspiracy theory involved.

At heart, however, much of this debate (particularly the Koh passage Whelan cites) is an argument about state versus federal authority.  To understand, you’ll need some background on the concept of “common law.”

“Common law” basically means judge-made law.  The idea is that judge-made law can exist outside of constitutions, or statutes, or regulations.  For instance, in certain states, you might be sued for assault under a common law definition of assault, even if there’s no assault statute on the books.

There are, however, two very distinct forms of common law – and one is far more problematic than the other.  First, “common law” can refer to a wholly independent binding law floating out in space (this is Holmes’ “brooding omnipresence”).  This is a problematic concept, and one that was essentially eliminated in the United States following the critiques of people like Holmes and other legal positivists.  The reason it’s bad is because it allows judges to make stuff up and be completely unaccountable for it.  For that reason, federal judges liked to use it to break up labor movements in the early 20th century.

The second notion of “common law” is far more benign.  This notion recognizes the supremacy of positive law (e.g., statutes, regulations), but allows courts to serve as a “gap fillers” where statutes are ambiguous (or where any source of positive law is ambiguous).  This is a huge part of what courts do – and there’s nothing controversial about it.

For instance, let’s say that a statute provides for a one-year statute of limitations.  And let’s assume that it matters whether Day 1 begins on the date of the injury, or on the next day.  If the statute is silent, judges might construe the statute in a way that starts the clock on the day of the actual accident. 

In short, courts would define when “Day 1” begins.  This gap-filling is essentially “common law” – the idea is that courts are allowed to fill gaps and interstitial areas on which the original source of law doesn’t speak.  If legislatures don’t like these rulings, they are free to immediately change them.

In short, Version #2 is what courts do every single day and is uncontroversial.  Version #1 is basically never done and is extremely controversial.  Whelan, in essence, is portraying Version #2 as Version #1, and making it seem a lot scarier than it is.

When Koh and others are saying that “customary international law” is “federal common law,” what they’re saying is that these customs can be gap-fillers where Congress or a treaty hasn’t spoken.  Whelan’s argument gives the impression, however, that customary international law (or CIL) will be more like the “brooding omnipresence” that will bind everyone helplessly.

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by publius

The war against Koh is heating up, as David Weigel reports.  It’s going to get ugly, and the attacks thus far have been both misleading and steeped in nationalist paranoia and conspiracy theory. 

Anyway, before things really heat up, I want to try to present a big picture of some of the various diverse strands of Koh’s writings.  Don’t get me wrong – I’m going to further address in detail why I think Ed Whelan’s posts have been misleading and unfair.  But for tonight, let’s stick to the big picture.

Koh is a highly-respected international law scholar.  And he’s written a ton of stuff – roughly 175 law review articles and 8 books.  When you write that much, it’s very easy for people to cut and paste snippets here and there that don’t sound good out of context.  Of course, there’s nothing wrong with using snippets to attack someone – but those snippets must fairly represent the consistent themes of one’s scholarship.

So let’s unpack some of those themes, because they’re quite distinct:

First, Koh supports looking to international law to help inform legal decisions.  If you’re ok with courts using Webster’s Dictionaries, then this shouldn’t be too deeply unsettling.  Courts look at external sources all the time when construing federal statutes and constitutional text – things like dictionaries; state law; policy; precedent; Blackstone’s Commentaries, etc. 

No one is saying that international law dictates what the Eighth Amendment means.  Koh is merely saying that we can look at other stuff to help us make good decisions.  It’s almost laughably banal.

Second, we have “transnationalism,” for which Koh is best known.  Whelan and others demagogue the very word – but at heart, it’s fundamentally a descriptive theory about the interaction between international and domestic law.  (There are normative elements too, and I’ll get to those).

Transnationalism responds to well-known questions in the literature – why do nations follow international law?  How does international law become incorporated into domestic law?  There are many schools of thought on this – e.g, self-interest, coercion by powerful states. 

Koh’s innovation was to argue that “transnational legal process” plays a role too.  Essentially, the idea is that various interactions among various diverse parties (e.g., grassroots efforts, legislation, litigation, persuasion) can create norms that are eventually internalized by various institutional actors.

Norm internalization is a fancy word for “changing people’s minds” or “persuading” them.  For instance, the reason you follow the speed limit even if no cops are around is because you’ve internalized that norm.  Similarly, most countries have voluntarily adopted the Geneva Convention because, at some point, they internalized the norm that killing prisoners is bad.

Koh’s work describes how these developments came about – e.g., how these norms form, and how they get internalized.  The descriptive aspect of his work is his most interesting contribution – and it’s what people like Whelan wholly ignore.  From reading his posts, you’d think transnationalism is one big normative proposal to illegally supplant domestic law.

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