In this reply to an article by Professor Mark Tushnet, David Fontana argues that we should move beyond debates about whether transnational law should ever be used in American law, and instead focus on the practical details of how such incorporation will occur. Fontana argues that Professor Tushnet's compelling article overstates the importance of the most recent developments in the use of transnational law as persuasive authority, but that even with the history of moderate usage of transnational law, there are still some unique concerns with using transnational law as persuasive authority. Fontana also argues that Professor Tushnet's discussion of transnational law as binding authority seemingly understates many of the federalism and sovereignty concerns with the usage of transnational law.
David Fontana, The Next Generation of Transnational/Domestic Constitutional Law Scholarship: A Reply to Professor Tushnet, 38 Loy. L.A. L. Rev. 445 (2005).