Sosa, Customary International Law, and the Continuing Relevance of Erie

Ten years ago, the conventional wisdom among international law academics was that customary international law (CIL) had the status of self-executing federal common law to be applied by courts without any need for political branch authorization. This modern position came under attack by so-called revisionist critics who argued that CIL had the status of federal common law only in the relatively rare situations in which the Constitution or political branches authorized courts to treat it as such. Modern position proponents are now claiming that the Supreme Court\u27s 2004 decision in Sosa v. Alvarez-Machain confirms that CIL has the status of self-executing federal common law. As this Article explains, the decision in Sosa did not in fact embrace the modern position, and, indeed, is best read as rejecting it. Commentators who construe Sosa as embracing the modern position have confounded the automatic incorporation of CIL as domestic federal law in the absence of political branch authorization (i.e., the modern position) with the entirely different issue of whether and to what extent a particular statute, the Alien Tort Statute ( ATS ), authorizes courts to apply CIL as domestic federal law. The Article also explains how CIL continues to be relevant to domestic federal common law despite Sosa\u27s rejection of the modern position. The fundamental flaw of the modern position is that it ignores the justifications for, and limitations on, post-Erie federal common law. As the Article shows, however, there are a number of contexts in addition to the ATS in which it is appropriate for courts to develop federal common law by reference to CIL, including certain jurisdictional contexts not amenable to state regulation (namely admiralty and interstate disputes), and gap-filling and interpretation of foreign affairs statutes and treaties. The Article concludes by considering several areas of likely debate during the next decade concerning the domestic status of CIL: corporate aiding and abetting liability under the ATS; application of CIL to the war on terrorism; and the use of foreign and international materials in constitutional interpretation

Private languages and private theorists

Simon Blackburn objects that Wittgenstein's private language argument overlooks the possibility that a private linguist can equip himself with a criterion of correctness by confirming generalizations about the patterns in which his private sensations occur. Crispin Wright responds that appropriate generalizations would be too few to be interesting. But I show that Wright's calculations are upset by his failure to appreciate both the richness of the data and the range of theories that would be available to the private linguist

How well can regional fluxes be derived from smaller-scale estimates?

Regional surface fluxes are essential lower boundary conditions for large scale numerical weather and climate models and are the elements of global budgets of important trace gases. Surface properties affecting the exchange of heat, moisture, momentum and trace gases vary with length scales from one meter to hundreds of km. A classical difficulty is that fluxes have been measured directly only at points or along lines. The process of scaling up observations limited in space and/or time to represent larger areas was done by assigning properties to surface classes and combining estimated or calculated fluxes using an area weighted average. It is not clear that a simple area weighted average is sufficient to produce the large scale from the small scale, chiefly due to the effect of internal boundary layers, nor is it known how important the uncertainty is to large scale model outcomes. Simultaneous aircraft and tower data obtained in the relatively simple terrain of the western Alaska tundra were used to determine the extent to which surface type variation can be related to fluxes of heat, moisture, and other properties. Surface type was classified as lake or land with aircraft borne infrared thermometer, and flight level heat and moisture fluxes were related to surface type. The magnitude and variety of sampling errors inherent in eddy correlation flux estimation place limits on how well any flux can be known even in simple geometries