There is now an ongoing and very prominent debate about the extent to which international law should be interpreted to override US domestic law. In this new paper, Northwestern law professor John McGinnis and I argue that the debate so far overlooks an important consideration: the undemocratic nature of the political processes by which most international law is generated. Here's an excerpt from the abstract:

The potential displacement of domestic law by international law has become a major topic of debate among both scholars and jurists. But the growing literature on the subject has largely ignored the fact that most international law is generated by undemocratic political processes. In this Article, we seek to fill this void by systematically analyzing the impact of the democracy deficit of international law on the desirability of allowing international legal rules to supplant American domestic law.

International law that has not been ratified by domestic political processes - what we refer to as raw international law - has a particularly severe democracy deficit because it is not subject to any kind of electoral accountability. In addition, international lawmaking processes are generally less transparent to the public than domestic ones, further undermining democratic control of its content. We contend that the democracy deficit of raw international law is a strong consideration weighing against allowing it to displace American domestic law.

In this paper we try to combine John McGinnis' expertise in international law with my knowledge of democratic theory. Whether we have suceeded in getting the best of both worlds or have instead combined the worst is for readers to judge!