Singing Loudly

Will Baude has a good piece up at TNR where he essentially argues that the use of international law in US legal decisions would be alright if it was done properly.

I argue that it was done fairly well by Kennedy. I would ask Mr. Baude how soon he thinks the US legal system can actually incorporate the complex and growing girth of international law into our system? We've ignored it, disparged it, and acted like isn't important for so long that there is a very, very, very small minority of legal practitioners and scholars who understand international law. I would guess that nobody on the Supreme Court would be considered even marginally adept with international law. They might have a little knowledge of it. I would guess their clerks are not much better off.

The embarrassing aspect of international law is that a student who takes a public international law course and human rights course (or maybe a comparative law class) will have more knowledge about international law than the vast majority of practitioners and certainly more than almost every Judge on the federal bench.

It's a sad statement to our legal system that we have ignored it this long. Whether Kennedy's use of international law was perfect is not the reason I applaud him. I applaud him for his courage to use international law. It's not the first time the Supreme Court has done it but it's certainly too inconsistent to sit well with anyone who is looking at the landscape of our global legal system.