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International Law in American Courts: A Modest Proposal, 100 Yale Law Journal 2277 (1991)


By this point, we are pretty much resigned to a certain level of public
controversy over the proper role of our courts, in particular our federal courts. Key Warren Court decisions sparked a fairly acrimonious debate over whether
courts are appropriate vehicles for restructuring American society in the name
of social justice, and some thirty or forty years later, this question still preoccupies academics, politicians, the press and public, and the judges themselves. Few Americans openly doubt that judicial review of some sort is appropriate, but the extent to which courts should exercise the power is hotly disputed. We are all familiar with the arguments for and against judicial activism in a democratic society; the debate is a perennial part of our judicial politics, and shows no signs of going away.

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