Lawyers and Precedent

• Author: Harlan Grant Cohen
• Position: Associate Professor of Law, University of Georgia School of Law

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Lawyers and Precedent

Harlan Grant Cohen*

TABLE OF CONTENTS

I. INTRODUCTION .............................................................. 1025

II. THE PUZZLE OF INTERNATIONAL PRECEDENT ............... 1027

III. FROM PRODUCT TO PRACTICE........................................ 1033

IV. PRECEDENT AS ARGUMENT ............................................ 1035

V. LAWYERS AND NORMAL PEOPLE .................................... 1038

I. INTRODUCTION

What role do lawyers, as lawyers, play in the creation, development,

and maintenance of the international legal order? This is an oddly

underexplored question. It has become increasingly popular to look at

the role various non-state actors—nongovernmental organizations

(NGOs), 1 grassroots activists, 2 scientists, 3 insurgent groups, 4 among

many others—play in the shaping of international law. It has also

* Associate Professor of Law, University of Georgia School of Law. Thank you to

Tim Meyer, Ingrid Wuerth, and the editors of the Vanderbilt Journal of Transnational

Law.

1. See Suzanne Katzenstein, Reverse-Rhetorical Entrapment: Naming and

Shaming as a Two-Way Street, 46 VAND. J. TRANSNAT’L L. 1079, 1083–86 (2013)

(discussing the shift towards a consequentialist approach to the “naming and shaming”

of governments by advocacy groups); Peter J. Spiro, Constraining Global Corporat e

Power: A Short Introduction, 46 VAND. J. TRANSNAT’L L. 1101, 1104–09 (2013)

(evaluating the increasingly prevalent role of NGOs as monitors of voluntary corporate

codes of conduct).

2. See generally KARIMA BENNOU NE, YOUR FATWA DOES NOT APPLY HERE:

UNTOLD STORIES FROM THE FIGHT AGAINST MUSLIM FUNDAMENTALISM (2013)

(providing stories of men and women from more than three hundred countries who,

through a variety of efforts, challenged muslim fundamentalism and terrorism).

3. See, e.g., Timothy L. Meyer, Epistemic Institutions and Epistemic

Cooperation in International Environmental Governance, 2 TRANSNAT’L ENVTL. L. 1, 19

(2013) (discussing the relationship between scientific bodies and legal institutions in

the context of environmental governance).

4. See generally Geoffrey S. Corn & Eric Talbot Jensen, Untying the Gordian

Knot: A Proposal for Determining Applicability of the Laws of War to the War on Terror,

81 TEMP. L. REV. 787 (2008) (exploring the difficulties inherent in applying the laws of

war to non-state combatants).

1026 vanderbilt journal of transnational law [vol. 46:1025

become common to talk in terms of the “disaggregated state,”5 and of

how various substate actors—central bankers,6 regulators,7 judges,8 and

military personnel9—shape international law and policy through their

interactions with each other. Nor have international lawyers ever been

particularly shy about their importance to international law. Oscar

Schacter famously described “the professional community of

international lawyers . . . though dispersed throughout the world and

engaged in diverse occupations” as “a kind of invisible college dedicated

to a common intellectual enterprise.”10 Martti Koskenniemi has written

that “[w]ithout international lawyers, there would have been no

international law.”11 The Statute of the International Court of Justice

(ICJ) even recognizes the “teachings of the most highly qualified

publicists of the various nations, as subsidiary means for the

determination of rules of law.” 12 And yet, few have focused on the

5. See generally ANNE-MARIE SLAUGHTER, NEW WORLD ORDER (2004)

(describing global governance as an international web of government networks); Peter

J. Spiro, Disaggregating U.S. Interests in International Law, 67 LAW & CONTEMP.

PROBS. 195 (2004) (discussing the subnational and transnational forces and actors that

weave the United States into the fabric of international regimes).

6. See generally CHRIS BRUMMER, SOFT LAW AND THE GLOBAL FINANCIAL

SYSTEM: RULE MAKING IN THE 21ST CENTURY (2012) (considering the various actors

who play roles in international financial architecture and who create international

financial rules); David Zaring, Informal Procedure, Hard and Soft, in International

Administration, 5 CHI. J. INT’L L. 547 (2005) (describing the role of central bankers in

international financial regulation).

7. See Zaring, supra note 6, at 550 (discussing regulatory revisions made by

the Basle Committee). See generally Kal Raustiala, The Architecture of International

Cooperation: Transgovernmental Networks and the Future of International Law, 43 VA.

J. INT'L L. 1 (2002).

8. See SLAUGHTER, supra note 5, at 85–96 (discussing the role of judicial

cooperation in transnational litigation); Erik Voeten, Borrowing and Non-Borrowing

Among International Courts, 39 J. LEGAL STUD. 547, 547–48 (2010) (“A growing

literature asserts that national and international judges increasingly communicate

with each other and influence each other’s interpretations of legal issues.”).

9. See, e.g., PETER ANDREAS & ETHAN NADELMAN, POLICING THE GLOBE:

CRIMINALIZATION AND CRIME CONTROL IN INTERNATIONAL RELATIONS 163–65, 191–99

(2006) (describing military involvement in domestic law enforcement); Amichai Cohen,

Legal Operational Advice in the Israeli Defense Forces: The International Law

Department and the Changing Nature of International Humanitarian Law, 26 CONN. J.

INT'L L. 367, 407–11 (2011) (describing transnational networks of military lawyers).

10. Oscar Schacter, The Invisible College of International Lawyers, 72 NW. U.

L. REV. 217, 217 (1977).

11. Martti Koskenniemi, International Lawyers, in THE NEW OXFORD

COMPANION TO LAW 619, 619 (Peter Cane & Joanne Conaghan eds., 2008).

12. Statute of the International Court of Justice art. 38(1)(d), June 26, 1945, 59

Stat. 1055, 1060 [hereinafter ICJ Statute]. For a discussion of this specific provision,

see generally Jörg Kammerhofer, Law-Making by Scholars, in RESEARCH HANDBOOK

ON THE THEORY AND PRACTICE OF INTERNATIONAL LAWMAKING (Cathe rine Brölmann

& Yannick Radi eds., 2013).