9/11 and The Tail of Historic Events

[Ed. note: David Caron is the C. William Maxeiner Distinguished Professor of Law at the UC Berkeley School of Law and the President of the American Society of International Law. This post is also published in the ASIL Newsletter.]

The continuing influence (the “tail”) of historic events such as 9/11 has numerous dimensions.  In international law, the event and the responses to the event can mark a shift in customary law, for example.  Such events also influence who we are as a community and what we focus upon.  The various global challenges and points of law that international law faculty study in any given decade in some respects are unchanging, but in other respects shift dramatically. The shifts occur for many reasons, but the pull of a historic event, trend, or situation clearly appears to be one reason. When the event, and the tail of the event, is significant, a shift in focus is clearly appropriate.  Given that law schools tend to each respond separately to the same perceived demand, shifts in focus tend not to be in only a few schools, but in many and all at once.  If the shift in focus is accomplished through hiring decisions, that shift can be with us for a generation.  In this column I offer three modest observations about historic events and what we as a community focus upon.

Historic Events Sometimes Shift the Focus of Legal Scholarship

A significant historical event can lead to a wave of scholars that explore a legal aspect of that event.  As we mark the 10^th anniversary of the attacks on September 11^th, it is clear that one of the many aspects of society that has been transformed is international law faculties.  Before 2001 there were the occasional courses on constitutional law of foreign affairs or international law of terrorism, and there, less often, was a course on “national security law.”  Over the past decade, we have seen many law schools hire faculty in this area.  Some of the new faculty are drawn from military service, others from service in national security organizations or yet others from a new generation of scholars with an interest in the global challenge of terrorism or in this aspect of law.  Correspondingly, we have seen a blossoming in conferences, courses, specialized student journals, and legal commentary.  As with national security law, a transformation in law faculties can be seen in the area of international criminal law and humanitarian law as well over the past 15 years.  The violence amidst the breakup of Yugoslavia and in Rwanda resulted, among many other things, in the establishment of the ad hoc international criminal tribunals for those two areas.  Along with the more recently added International Criminal Court and several hybrid tribunals, there has been an intense focus on increased accountability for war crimes and crimes against humanity.  And over these same years we have seen a dramatic increase in the number of faculty focused on international criminal law or international humanitarian law, as well as growth in the number of courses, clinics, internships, and commentary.  (One international criminal law scholar recently commented that there are more such scholars than there are defendants, although I would think that true only if one excluded those who should be tried on the national level.)

Yet not all historic events, trends, or situations result in a shift in focus of law scholars. For example, there does not appear to have been the same sort of shift in scholarship or law school programs in response to the Cold War, although it can be argued that the Cold

War infused a realist sense into much of international law scholarship. To the extent we accept that some events lead to shifts while others do not, perhaps the cause is that some historic events, trends, or situations have more influence because those particular contexts intrinsically possess more room for law to contribute or speak to the challenge involved.  In other words, it may be that the challenge involves statutes and treaties, or questions – preferably justiciable – concerning responsibility and rights.  Perhaps this explains why the challenges posed by disasters that far too often rend our world are not generally addressed in legal scholarship.  Perhaps it is the resistance of international development (a fundamental situational challenge of global order) to legal theorizing that explains what I regard as a not sufficiently widespread scholarly focus on the topic.

Historic Events Can Create Institutions and Paths Toward Academia

In 1983, I arrived at the Iran-U.S. Claims Tribunal to take up my position as a clerk to the American Arbitrators.  Over dinner my first night there, Judge Howard M. Holtzmann predicted that a lasting legacy of the Tribunal would be the generation of clerks it would introduce to international arbitration.  And, indeed, it can be argued that the Iran-United States Claims Tribunal not only became the training ground for many of the leading practitioners of this generation, it also led to a wave of scholars in schools around the world in the fields of private and public international dispute resolution.  Similarly, the criminal tribunals, not only generated substantial jurisprudence, but also resulted in positions that have allowed young professionals to deepen their expertise in the field.  In recent years, the creation of more visiting assistant professor positions (“VAPs”) have become a pathway for aspiring young academics.  These positions within the law school world are a relatively recent alternative to certain professional careers that serve as pathways to academia.  A notable example of such a path is the Office of the Legal Adviser that for decades has been a training ground that allowed promising recent graduates to mature into attractive potential academics.  It is in this same way that some institutions created as a consequence of historic events such as the Iranian Revolution potentially provide crucial intermediate positions between law school and academia.

Responding to Historic Events and the Tail of Hiring Decisions

When I first joined a law faculty, a senior colleague remarked that a dangerous tendency in the world of legal scholarship is “that you go only with what you know.”  One enters the academy with experience in, for example, the legal implications of DNA testing, and one mines that vein of experience far longer than one should.  One has been given by society the privilege of a position of reflection in which one can commit time to learn new areas as needed.  But instead one finds that he or she races faster and faster in the area already known best.  Law schools in my limited experience tend to respond to the challenges posed by historic events through hiring decisions because there is a sense that redeploying the resources they have is unlikely.  Yet in our wonderful community, there are so many examples of scholars who are curious and learning new areas well into decades of their lives when others have long retired.  (Our beloved Eric Stein comes to mind.)  What a privilege we have to challenge ourselves with change so that we might together bring our combined excellence to bear on the most difficult problems of the day.  I look forward to it and to joining you in that effort.