A New Restatement on Foreign Relations Law?
In 1965, as part of the Restatement Second, the American Law Institute published the original Restatement on the Foreign Relations Law of the United States. Twenty two years later in 1987, a new edition appeared – The Restatement (Third) on the Foreign Relations Law of the United States. Together, they’ve had an enormous influence on the courts; look at many of the major Supreme Court cases of the last several decades on foreign relations law – Sanchez-Llamas, Sosa, Empagram, Hartford Fire, Saudi Arabia v. Nelson, Dames & Moore, Sabbatino, etc.—and you’ll find a version of the Restatement cited and discussed. I also know from experience that the Executive Branch has considered them, if not definitive, at least required reading. Similarly, the Restatement’s hold on the Academy has been significant, serving for many as the authoritative settlement of long-standing questions about the relationship between international law and U.S. law and the relative authorities of U.S. actors to apply those sources. More recently, of course, the Restatement has served as fodder for scholars seeking to challenge the conventional wisdom by arguing either that the Restatement’s content did not codify the existing rules, or that those rules warrant rethinking.
I’ve just spent the past couple of days with Julian, Peter, Roger, and an array of other foreign relations law scholars from across the methodological divide. And those meetings left me wondering – as 2007 approaches, how come no one is discussing efforts to update or revise the Restatement? Given the two decades that separated the first and second versions, isn’t this an appropriate time for the ALI to be thinking about a third version? And, if not, why not? Is it that the “Age of Restatements” is on the wane with legal realism so firmly established and doctrinal considerations now supplanted in the legal academy by alternating questions of theory and empiricism? Or, is it the pull of the status quo, with everyone fearing that a new effort would upset or weaken their preferred position (i.e., for some this would mean revisions to the current Restatement while for others it might mean having their new proposals knocked down)? Alternatively, is there a Pandora’s box problem – given the host of issues confronting U.S. foreign relations law right now, from the war on terror to consular notification, are there just too many “close questions” that need some resolution before circumstances favorable to a new restatement effort would exist?
What do readers think? Is 2007 the time to be thinking about a new Restatement? And, if so, how does ALI go about it? Presumably, they’d want to ensure that they have representatives from both sides on many of the issues involved. To that end, Julian and I’ve talked, and we’d like to be the first to volunteer our services (seriously, if anyone from the ALI is reading this, call us). Anyone else on board?