Breaking News: The Fourth Restatement on the Foreign Relations Law of the United States

Breaking News: The Fourth Restatement on the Foreign Relations Law of the United States

I’ve long wondered whether and when the American Law Institute (ALI) might try to update its 3rd Restatement on the Foreign Relations Law of the United States.  Since its 1987 publication, the two-volume set, culled together under the leadership of Professor Lou Henkin, has had a tremendous impact.  It has been a frequent resource for U.S. courts and American international lawyers alike.  I recall vividly how often I used it in my first few years in private practice and its prominent place on my bookshelf once I decamped to the U.S. Department of State.  At the same time, part of the Restatement 3rd‘s visibility lies in the critiques it later generated at the hands of what Peter Spiro dubbed the “New Sovereigntist” movement.  Beginning with the work of Curt Bradley and Jack Goldsmith, the 3rd Restatement has been viewed as the conventional doctrine against which all other constitutional positions in foreign relations law may be measured.

So, it’s with great interest that I learned today that this past weekend the ALI announced plans to begin work on a new 4th Restatement on U.S. Foreign Relations Law.  My first question was who could shepherd such a project?  After all, on many of the current Restatement‘s positions there exists a stalemate between staunch defenders of Henkin’s original pronouncements and revisionists who insist he and his cohorts got it wrong (or, alternatively, that some newer developments require revisiting the original doctrine).  What the ALI did, however, was to appoint not one, but two “coordinating reporters” — Sarah Cleveland and Paul Stephan.  Both are influential and well-respected scholars. And although I would hazard to say that some of Paul’s work exhibits revisionist tendencies while some of Sarah’s writing may be closer to the spirit of Henkin’s earlier work, I think both are independent thinkers who should be expected to work seriously and thoughtfully on the ALI’s core mission — which is to say primarily what the law is, rather than what they would each like it to be.

The ALI Council also approved three topics for immediate work and assigned eight reporters to it:

Jurisdiction and Enforcement: William Dodge, Anthea Roberts, Paul Stephan

Treaties: Curtis Bradley, Sarah Cleveland, Edward Swaine

Sovereign Immunity:  David Stewart, Ingrid Wuerth

My understanding is that ALI hopes to have drafts of each of these portions ready for review in fall 2013 by Advisers and ALI Members.  Decisions on who those advisers will be is expected in early 2013.  Moreover, based on ALI precedent, the ALI Council also approved a group of “Counselors” for the entire project.  And, that too, is a pretty impressive group: John Bellinger III, Daniel Bethlehem, David Caron, Joan Donoghue, Conrad Harper, Harold Koh, Carolyn Lamm, and David Rivkin.

One can only imagine the machinations that went into selecting these Counselors, not to mention the reporters themselves.  But I will say on first glance there is some balance attempted in terms of scholars from all sides of the foreign relations and international law arenas.  Moreover, there is a heavy dose of practical experience in both groups, and a clear tendency to favor those with experience working for the U.S. State Department (among the reporters and Counselors, I count at least 10 who spent time in “L” — the State Department Legal Adviser’s Office — or led it).

I was elected to ALI last year, and as such, I guess I will have the privilege of being able to look at and comment on drafts of the new Restatement as they come forward.  I have no doubt, moreover, that this is a bit of a daunting task given the academic dissension on various points, not to mention the prospect for politically-charged disagreements.  Still, I was pleased to hear from Paul Stephan when I asked him about the prospects for success that he feels quite positive that a 4th Restatement is achievable.  As he put it:  “There will be controversy and disagreement, but that is a lawyer’s life blood. My hope is that, at the end of the day, there will be somewhat more clarity, and a bit less confusion, in this area of law than currently exists.”

All in all, an interesting development and one that will bear close watching.

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Hopefully every member of the “team” will attempt to restate the predominant trends in judicial decision and overwhelming views of the Founders and Framers that are consistent with such trends, but I have not seen such an effort by a radical revisionist writer.