John O. McGinnis and Ilya Somin (Northwestern University - School of Law and George Mason University - School of Law) have posted Should International Law Be Part of Our Law? on SSRN. Here is the abstract:
As globalization runs its course, the domestic world is becoming full of international law. One of the sources of international law is largely unimpeachable: our own political actors, Congress and the President through statutes or the Senate and the President through treaties, incorporate international law into the domestic legal order. But international law now may enter into the domestic sphere in more controversial ways. First, some Supreme Court Justices have suggested that the Court should use international law as a source for construing the U.S. Constitution and the Court itself begun to use this interpretative strategy. Such constructions can invalidate our domestic laws. Second, advocates of customary international law argue for its incorporation into domestic law directly to constrain federal and state governments. Finally, others suggest that important domestic statutes be construed in light of customary international law, even if such interpretations prevent the President and his subordinates from exercising otherwise lawful discretionary authority.