International Law’s Erie Moment

Associate Professor of Law, Harlan Grant Cohen, recently uploaded the article, International Law’s Erie Moment to SSRN.  This article looks at the conflict between  “negotiated law” and “adjudicated law” models with respect to international law.   The unrecognized differences between these two competing models of modern international law lie at the heart of longstanding doctrinal tensions over the nature/sources of customary international law and provide unseen inspiration for the brewing conflicts between courts and states for interpretative supremacy. International law has essentially reached its Erie moment. Only by recognizing the true nature of the conflict, only by recognizing the very different sources of judicial and state authority, only by forcing courts and states to justify their claims to interpretive authority, can we begin to resolve the tensions between these two models and discern the proper roles of courts and states on a modern international law.

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