What Story Got Wrong - Federalism, Localist Opportunism and International Law

I first explain the theoretical underpinning of the argument against the inevitability of localist opportunism. I then illustrate the general theory with three examples where the international obligations of the United States can be met without the strong federal supervision that Story deemed necessary and that latter-day nationalists embrace. I first discuss the body of law that was the subject of Swift v. Tyson, namely the rules governing negotiable instruments. Story thought that developing a federal common law was necessary to thwart idiosyncratic, and presumably opportunistic, state decisions. Yet both before and after the overthrow of Swift v. Tyson in 1938, the United States attained national uniformity in negotiable instrument law without resorting to national supervision. The next examples involve the Hague Child Support Convention and the UNCITRAL Electronic Commerce Convention, two private international law treaties which the United States might relegate to state enforcement. In the conclusion, I discuss the broader implications of these debates and relate them to ongoing controversies over the role of the judiciary in propounding public law and the significance of international law