Title: Disaggregating U.S. Interests in International Law
Abstract: I INTRODUCTION After decades on the margins, international law is becoming a prominent force in virtually every area of law. Teaching subjects such as procedure, bankruptcy, antitrust law, tax, and family law is increasingly difficult without some reference to international settings, instruments, and cases. Globalization would hardly allow otherwise. The growing density of transnational contacts requires transnational solutions. To the extent that individuals, families, corporations, and judicial proceedings inhabit transnational spaces, some regulation will naturally occur somewhere other than at the national level. The trajectory toward a higher incidence of such straddling contexts and corresponding transnational institutional responses is giving the lie to the very category of domestic law. Nearly all of today's law school graduates will at some point in their careers encounter issues of international law and policy. In the legal academy, important scholarship is focusing on the peculiar challenges posed by transnational settings. Constitutional law has proved something of a laggard in this trend. For the most part, constitutional law remains an insular affair, or at least it has been so perceived. This is a product of both the nature and the culture of constitutional law. Constitutional law has confronted straddling contexts, but the presentation of constitutional law questions tends to elude the necessity of coordination with other states and international actors, at least as presented in particular cases. The mechanics of constitutional law, constrained and legitimated by an indigenous instrument and executed by judicial institutions with no operational responsibilities, have trouble processing the external inputs. This in turn has cemented a culture of constitutional law fiercely resistant to such inputs. The Constitution is so central to American identity that any concession of external constitutional constraints may constitute a threat to national self-determination. This explains the relative intensity of objections to international norms and institutions thought to compromise constitutional discretion, at least in the absence of countervailing interests. Sovereignty becomes the bulwark of constitutional autonomy. But autonomy may no longer present a sustainable strategy, in constitutional law or in any other area. This essay first adapts the tools of International Relations (IR) theory to the question of how international law might be incorporated into U.S. law, the putative global dominance of the United States notwithstanding. IR theory has informed an important strain of recent international law scholarship. (1) It provides a useful frame for situating international law as a matter of institutional interactions rather than a matter of doctrine. By situating legal rules and institutions in their political context, IR helps to reduce the abstraction and self-contained character of doctrinal analysis and to channel normative idealism in effective directions. (2) It is not typically deployed to explain internal state dynamics salient to the initial incorporation of international law, focusing more on politics as an independent variable. (3) Nor has IR theory been prominently deployed to explain or to project the relationship of the United States to international law. This Article describes how discrete elements of the United States, including private actors and disaggregated governmental components beyond the traditional foreign policy apparatus, may be developing an institutional interest in the acceptance of international regimes. This Article thus suggests a future in which international law is absorbed into U.S. law not because it is good--although it may well be that, too--but because rational institutional action will pull in that direction. II BRINGING IR THEORY HOME IR theory has until recently been about states, their interests, and their power. …
Publication Year: 2004
Publication Date: 2004-09-22
Language: en
Type: article
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Cited By Count: 3
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