This chapter looks at the grave flaws in the current treatment of international law in American courts. Both the status and content of public and private international law in the United States are uncertain, frequently governed by contradictory or parochial rules of State law; the resulting body of international law that is applied by U.S. courts is unpredictable and incoherent. Over the past fifty years, U.S. federal courts have also increasingly marginalized both international law and the role of American courts in resolving international disputes. This treatment of international law threatens serious damage to historic U.S. values and frustrates vitally important national policies. The chapter then considers how the current treatment of international law in American courts is also contrary to the U.S. Constitution’s allocation of authority over the nation’s foreign relations and international trade, which vests the federal government with both plenary and exclusive authority over U.S. foreign relations and commerce, while, exceptionally, forbidding State involvement in either field. Moreover, this treatment conflicts with vital national interests and policies in both fields, frustrating long-standing national interests in the nation’s compliance with international law and development of the international legal system.
