Customary International Law as Federal Common Law: A Critique of the Modern Position

The Formation of Customary Law

A State Preferences Account of Customary International Law Adjudication

The standard account today of customary international law (CIL) is that it arises from the widespread and consistent practice of states followed out of a sense of legal obligation. Although commonly recited, this account is plagued by evidentiary, normative, and conceptual difficulties, and it has been subjected to increasing criticism in recent years. This paper posits a different account of C...

The Emerging Customary Law of Space

The Political Economy of “Aboriginal Customary Law”

Discussions about aboriginal-non-aboriginal relations in Canada have stressed the need to recognize “aboriginal customary law” in self-government arrangements. It is maintained that many aspects of “native law” differ radically from the legal systems that emerged in European countries, and so imposing Canadian conceptions of law on aboriginal communities is an obstacle to native self-determinat...

Ordinary Administrative Law as Constitutional Common Law

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constit...