Just to clarify, the U.S. constitution does view international law on par with all national law (assuming it does not violate the U.S. Constitution, which is the same standard for all law):

“Article VI – Debts, Supremacy, Oaths

….This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Also, while I am sure your experience thus far would lead you to the conclusions you make, I would encourage you to perhaps keep an open mind as you enter practice–I think you will be surprised. Or better yet, why not take an international law course to allow you to make an informed assessment of the matter? (assuming from your post that you have not already done so). I certainly would encourage that approach to assure a richer debate!

Washington & Lee has recently dropped Criminal Procedure from its first year curriculum and replaced it with a required course on international and comparative law. The new law school at UC-Irvine has replaced Property in the first year curriculum with a similar course. Harvard added such a course to its first year curriculum a couple of years ago amid much fanfare on the banks of the Charles.

Thank you for clarifying. Your definition of international law seems benign; when I read the last paragraph of your initial post about international law being on equal footing with the Constitution, I thought you were implying that American sovereignty could be subjugated by international agreements, even those that the U.S. did not consent to.

As for whether law students could benefit from an international law course, I have to agree with Prof. Posner. Granted, my legal experience is limited, but I cannot imagine too many scenarios where a Wisconsin lawyer will need to know about the inner-workings of The Hague or the jurisprudence of New Zealand. I also cannot agree with the hyperbolic statement by the University of Michigan Law School that “virtually every area of law is being affected by international aspects.” It is true that transactional lawyers in large Manhattan and Washington law firms will need to know about the laws affecting international markets, but I suspect one can successfully practice probate law or work in the D.A.’s office without studying international law.

Perhaps this is debate over semantics. Examining international law may be interesting as a survey, but I doubt that many attorneys would ever encounter international concepts in their day-to-day work.

As far as sources, treaties are certainly the most common although Prof. Scott referenced early seminal Supreme Court cases that applied customary law. You might refer to the Restatement of the Law (3d) of Foreign Relations Law of the United States to get more clarity on your question.

Enforcement of international law occurs often through municipal courts, arbitration, international treaty based bodies like the ICJ, the WTO and other entities. As far as your second question, I am not sure how it is relevant to the discussion since international law is by definition a consent based system of law in order to accommodate issues of sovereignty.

I hope I have satisfactorily answered your questions.

To the extent students are introduced to the concepts and practices of international public and private law and comparative law at an early stage in their legal educations they will be able to see not only how these “foreign” legal concepts impact the practice of law in the U.S. but also they will be much more effective in counseling clients when addressing complex extraterritorial matters. Currently, there is a battle of sorts going on at the United States Supreme Court as to the relevance and significance of “foreign” legal concepts in American law (I tend to think this is where Mr. Fernholz is going but I am not sure). Whatever the result of that debate it is beyond question American attorneys will need to be able to address transnational and international legal issues as we march headlong into a severely splintered yet ever shrinking world.

Before I can give a full response, I have a few questions:

1. What do you mean by international law? Are you referring to case law in other countries, or some world tribunal that issues binding edicts? Assuming the latter, then:
2. Who enforces international law?
3. What provision in our Constitution allows for an international body to abrogate American sovereignty? And I am not referring to the treaty making power, which is obviously binding because it requires Senate ratification.