Coyle, John F., The Case for Writing International Law into the U.S. Code (September 19, 2014). Boston College Law Review, Forthcoming. Available for download at SSRN: http://ssrn.com/abstract=2498681

“In recent years, the U.S. judiciary has taken steps to limit the role played by international law in the U.S. legal system. This Article seeks to explain this retreat and to identify ways by which it may be reversed. It argues first that the present judicial retreat from international law is attributable to two causes — judicial attitudes and judicial inexperience. Many judges have expressed some degree of ambivalence — occasionally rising to the level of hostility — about relying upon international law to provide a rule of decision. At the same time, many judges are largely unfamiliar with an ever-expanding array of international legal sources and methods. The result of this combination of attitudes and inexperience, the Article contends, is a reluctance among U.S. judges to give effect to international law directly. To date, international legal scholars have generally responded to these developments by attempting to persuade the judiciary to rethink this retreat from international law. This Article argues that a more promising approach would be to seek to persuade Congress to enact domestic statutes that incorporate various international law rules. Such statutory enactments would, among other things, enable the courts to ignore many of the doctrinal impediments that currently make it difficult for individuals to rely directly on international law as a source of rights. They would have a positive impact on the attitudes of skeptical judges. And they would help to alleviate the problem of judicial inexperience. With these insights in mind, the Article looks to past legislative practice to develop a typology of statutes that incorporate international law in some way. It then draws upon this typology to offer a number of practical suggestions as to how to draft such statutes.”