The politics of teaching international law.

Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion
 
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This panel was convened at 10:45 a.m., Thursday, April 10, by its moderator, Jose Alvarez of Columbia Law School, who introduced the panelists: Curtis Bradley of Duke University School of Law; Sarah Cleveland of Columbia Law School; and Allen Weiner of Stanford Law School. *

INTRODUCTORY REMARKS BY JOSE ALVAREZ ([dagger])

This is the panel on the politics of teaching international law. These are some very brave folks, because I told them not to come prepared. They do not have notes in front of them, but I have emailed them questions and have also interviewed them.

Curtis Bradley is the Richard and Marcy Horvitz Professor of Law and Professor of Public Policy Studies and the Senior Associate Dean for Academic Affairs at Duke Law School. He started teaching at Duke in 2005, prior to which he taught at the University of Virginia and the University of Colorado. He is now visiting at Harvard Law School. His courses include International Law and Foreign Relations Law. He clerked for Judge David Ebel of the Tenth U.S. Circuit Court of Appeals and Justice Byron White of the U.S. Supreme Court. He worked for a few years at Covington & Burling, and most recently finished a stint as a counselor on international law in the Legal Adviser's Office of the U.S. State Department. He has served the ASIL in various capacities: he is now a member of the Executive Council and on the board of the American Journal of International Law. He is also the author of two case books: Foreign Relations Law: Cases and Materials with Jack Goldsmith and the fourth edition of International Law with Barry Carter and Phillip Trimble.

Sarah Cleveland is my colleague at Columbia Law School and is the Louis Henkin Professor of Human and Constitutional Rights. She teaches International Human Rights, Foreign Affairs and the Constitution, and Federal Civil Procedure. She is also the co-director of the Human Rights Institute and has clerked for Justice Harry Blackmun and Judge Louis F. Oberdorfer of the U.S. District Court for the District of Columbia. She has taught at various schools, including the University of Texas, and has had visiting stints at Oxford, Harvard Law School, and Michigan Law School. She is the co-author of a widely known case book on human rights. She has also authored numerous amicus briefs dealing with the legal rights of foreign nationals.

Allen S. Weiner is a Senior Lecturer in Law at Stanford Law School. He practiced law in the U.S. Department of State for more than a decade before he became an academic. At the Department of State, he represented the United States in the Iran-United States Claims Tribunal. He is also co-director of the Stanford Program in International Law and the Stanford Center on International Conflict and Negotiation. He joined the Stanford Law School in 2003, and he is now the co-author of the latest edition of International Law with Barry Carter and Phillip Trimble. He teaches in a variety of areas, including International Law and International Conflict Resolution.

JOSE ALVAREZ

To begin the session, I will start with a predictable question: what do you want your students to get out of the classroom?

* The panel wishes to thank Michael Scharf, Corey Fredericks, Jennifer Hoover and Jared Livingston for preparing the following edited transcript.

([dagger]) Professor of Law, Columbia Law School.

REMARKS BY CURTIS BRADLEY *

I think it matters which course we are talking about. I teach the basic course in public international law, and I think that my core goal is to have them learn the vocabulary, architecture, and structures of international law. I also want them to get a feel for what are regarded in the international law community as better arguments and not so good arguments. This approach makes my course somewhat legal, doctrinal, and historical in focus, rather than centered on interdisciplinary and political science insights, which is more the focus of my scholarship and upper division courses.

* Professor of Law, Senior Associate Dean for Academic Affairs, Duke University School of Law.

REMARKS BY ALLEN WEINER ([dagger])

Not only had I not thought about this question when I was a new teacher, but I do not know how self-conscious I am about what I am trying to do in the classroom even now. After working with the State Department for over a decade, I developed a fairly U.S.-centric view of international law. Within the Legal Advisor's Office, we thought that we were the good guys compared to the policymakers. However, we were still interested in American influence and American power. Finding my own voice on this issue, is an ongoing evolutionary process for me. To the extent that I am trying to accomplish one thing, I am trying to get my students to understand not the alien character of international law, but how similar international law is to other types of law with which we are familiar. Institutional differences are important, but international law is not fundamentally different from domestic law. I am trying to teach them that we ought to analyze the problems, think about interpretations, applications, and even compliance in the same way.

([dagger]) Senior Lecturer, Stanford Law School.

JOSE ALVAREZ

Sarah, I have not heard a clear normative or political agenda by these two. Do you have a normative political agenda?

REMARKS BY SARAH CLEVELAND ([double dagger])

In foreign relations law, I am very consciously trying to teach the relationship between law and power and the political limits on the ability of the domestic legal regime to maintain the system that may or may not have been anticipated at the founding. I also try to teach the relationship between the United States and the international community, the relationship between international law and U.S. domestic law and how political arguments and political dynamics domestically and internationally can affect the ability of law to accomplish what I see it as setting out to accomplish in the foreign relations area. My view is that the U.S. Constitution sets up a regime that regulates foreign relations quite extensively and sets up a fairly elaborate relationship between the president, Congress, and the Judiciary with respect to their foreign relations roles. A central theme in my class is how this relationship has been significantly eroded over time with power shifting to the executive, courts unwilling to intervene, and Congress frequently unwilling to intervene. I started teaching Human Rights law because I believe in promoting the rule of law internationally and domestically and in trying to use the human rights system to accomplish that. I find that I teach it somewhat differently, depending on which casebook I use. I now use Henry Steiner, Ryan Goodman and Philip Alston's casebook, and I have also used the Louis Henkin casebook. When I use the Henkin casebook, I find myself, to some extent, teaching against it. It has a very particular and strong normative theme throughout it. I admire Henkin's interest in synthesizing the concept of fights so that we do not draw a sharp distinction between international human fights and domestic rights. However, I try to probe the Henkin casebook on the efficacy of international human rights institutions on the concept of universality, for example.

JOSE ALVAREZ

Some people might say the Henkin casebook is different than the Alston casebook because Henkin suggests that International Human Rights is the U.S. Bill of Rights writ large. Is that what you are teaching against in class?

SARAH CLEVELAND

That is indeed some of what I am running against in class. People who teach human fights are often unwilling to recognize the intellectual legacy from the Western Enlightenment tradition that the human fights

regime actually bears. And Henkin embraces it very aggressively--I think too much so. But at least he does acknowledge it, and I try to bring in other perspectives. To the extent that one is teaching that these concepts are universal, I think it is more effective to recognize shared cultural traditions and shared cultural concepts from other cultures rather than to simply say the universal declaration was based on the U.S. Bill of Rights, and that we gave it to the rest of the world.

JOSE ALVAREZ

Allen mentioned how his experience at the State Department influences how he teaches. Curtis, how does your experience with federal courts affect what you teach in international law?

CURTIS BRADLEY

In the classroom, I feel that it is pedagogically a bad thing to teach my students to think like I think about controversial issues. In class, my goal is to push against what the students are too easily grabbing onto. I found that they too easily grab onto the cynical, realpolitik stories about how the world works. I get them to reexamine those premises and ask them to explain how international law does seem to be having an influence. I also push against mistaken premises that I see everywhere. One of them is that more international law is always a better development for the world. Though there are many select instances where that could be true, the idea that more law is better, and that you do not need to defend that premise, seems to be a problem in...

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