Updating the restatement.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 10:45 a.m., Friday, March 26, by its moderator, David P. Stewart of Georgetown University Law Center, who introduced the panelists: Barry Carter of Georgetown University Law Center; Oona Hathaway of Yale Law School; Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit; and Jide Nzelibe of Northwestern University School of Law.


Good morning. Our panel this morning, which is co-sponsored by the International Legal Theory Interest Group, concerns the Restatement of Foreign Relations Law of the United States.

I'm sure that you are all aware that the American Law Institute published the original Restatement on Foreign Relations Law in 1965. The current version, which is denominated the Restatement (Third), was adopted 22 years later in 1986. Our panel this morning focuses on the narrow but important question of whether the changes in the world and in international law since that time justify another revision--either a comprehensive new Restatement, or updates to portions of the existing Restatement.

Now, I'm sure everyone in this room knows that the Restatement plays an important, often authoritative role, in many areas. It is cited, of course, in law school textbooks, in briefs, and legal analyses, and has had a strong influence on the courts, often cited, in fact, by the Supreme Court. At the same time, the law is not static, and the Restatement is increasingly dated, so that those who rely on it are not provided with an analysis of developments since 1986. Hence the question of whether this is an appropriate time to be thinking about a third version or at least updating of critical parts of the Restatement.

On your chairs you should have a copy of a proposal which Professor Carter and I have prepared for a limited updating in certain areas, copies of which now are distributed and will provide a focus at least for our initial discussion.

So let me introduce our panelists. We have a very distinguished group of people for you today in the order in which they will speak.

Judge Margaret McKeown has served since 1998 as a member of the U.S. Court of Appeals for the Ninth Circuit based in San Diego. She's a native of Casper, Wyoming, who obtained her B.A. from the University of Wyoming and her J.D. from Georgetown University Law Center. From 1975 to 1998 she practiced with Perkins Coie in Seattle in Washington. She is also a member of the American Society of International Law Judicial Advisory Board, and importantly, for our purposes, a member of the Council of the American Law Institute.

Barry Carter is Professor of Law at Georgetown University Law Center where he teaches international law and foreign relations law and also directs the Center on Transnational Business and Law. He is the coauthor of the widely used textbook-probably some of you either use it or have studied from it--on international law, now in fifth edition, as well as a book on international economic sanctions, which received the Society Certificate of Merit Award in 1989. He served in several positions in the U.S. government during the Clinton administration. He was a Deputy Under-Secretary of Commerce dealing with non-proliferation and high-tech trade. He was also Vice-Chairman to Secretary of Defense William Perry in an interagency group that helped Kazakhstan and the Ukraine destroy or give up hundreds of nuclear weapons that they had inherited after the breakup of the Soviet Union. Prior to that, he served with Dr.

Kissinger on the National Security Council staff, where he helped negotiate the first arms control agreements with the Soviet Union. He is a member of the Council on Foreign Relations and the American Law Institute.

Oona Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, where she earned her J.D. and was editor-in-chief of the Yale Law Journal. She clerked on the D.C. Circuit for Judge Patricia Wald, as well as for Justice O'Connor on the Supreme Court. She has taught at Boston University School of Law and UC Berkeley. Her current research focuses on the intersection between domestic law and international law. She is a member of the Secretary of State's Advisory Committee on Public International Law at the Department of State.

Jide Nzelibe is Professor of Law at Northwestern Law School. He teaches in the areas of contracts, foreign relations law, and international trade. He has written articles on international trade remedies, the separation of powers, international courts, and humanitarian intervention. He has also been a visiting professor at the University of Chicago Law School, Harvard Law School, NYU Law School, and Tele Aviv University Faculty of Law. Prior to joining Northwestern Law, he served as a Bigelow Fellow at the University of Chicago. Before that, he clerked on the D.C. Circuit for Judge Stephen Williams and worked for 3 years in a Washington, D.C., law firm.

So we have on the panel a wide array of expertise, experience, and relevant knowledge. I've asked our panelists to try to limit their remarks to about 10 minutes so that we will have ample time for discussions and questions from the floor, which we will take after the conclusion of the initial remarks, and then we would like to give a chance for the panelists to comment, if they like, on each other's comments.

So Judge McKeown, would you begin, please.

* Visiting Professor of Law and Co-Director, Center for Transnational Business and the Law, Georgetown University Law Center.


Thank you. I did hear mention of CLE, and I have to tell you that that is one of the absolute pleasures of being a judge: I do not have to sign in for CLE anymore.


The other thing I might add, as a federal judge, particularly being here in Washington, is that I think it's a pleasure to speak in an atmosphere here where the polemics about health care are so heated that they have finally surpassed that debate about international law in U.S. courts.


And I don't have to remind this audience, if you go back only a few years to that resolution which was so cleverly named "The Reaffirmation of American Independence"


--that basically we were all at risk of impeachment if we were to cite foreign law against some misapprehension between the difference of foreign law and international law, but if we were to cite foreign law, unless it was incorporated into U.S. legislative history or it informed an understanding of the original meaning of U.S. law, and some of us found that resolution a little bit difficult to interpret as to how we would actually apply that in the actual factual practice, which we do day in and day out, which is applying international law as U.S. law, which has been the law for quite some time.

But, of course, this proposition isn't going to particularly advance our ball today because our discussion here is the Restatement of the Law of Foreign Relations. I do think it's impossible to talk about this subject without paying some tribute to Professor Henkin and his role and the other reporters and drafters. I just met Professor Lowenfeld and was able to draw from his article a few comments that I think you'll find interesting by way of backdrop.

In drafting, Professor Henkin was said to remark that he did not like the title of this particular thing because they were stating the law, not restating the law, and we're at a juncture now, of course, where you could restate some of the law, but because of the great changes, you would also be stating the law, you would not be restating. Also, Professor Henkin was not particularly enamored of the title of this particular Restatement. He said that was really not the subject of what the exercise was but rather it was international law.

And, finally, I guess with a little bit of a dig at the federal courts and some practicing lawyers, Professor Henkin said that he had to explain to some prominent judges and scholars, yes, Virginia, there is such a law.

So with that, let me turn to two points. I want to comment very briefly on what we're seeing on international law in the federal courts and then, secondly, to talk about the ALI structure and the framework in which ALI deals with emerging topics.

On law in the U.S. courts, I first want to thank the ASIL for its very important undertaking and leadership in educating judges on international law. Ten years ago, the ASIL put together the Judicial Outreach Advisory Committee. I was newly on the court and was fortunate to be appointed by my chief judge to be a member of that. On this committee, which was headed then by Justice O'Connor and is now headed by Justice Ginsburg, there is one representative from each circuit.

Initially, we put out a small handbook for federal judges on some of the basics of international law. Now, of course, it's online. And we have, over the years, used ASIL members along with judges to meet with groups of judges at federal judicial conferences and others. And I have to say that international law is always a hit. It's not that we all define it the same on the federal court, but just the prospect of doing some international law is pretty exciting. In fact, there was one guy who retired from the California Supreme Court, he said he was very disappointed, that particular justice, that there wasn't much international law, and I would say he probably retired about 10 years too soon because there is even a lot of international law in the state courts as well.

The other thing that we do at these meetings is that we go around the room circuit by circuit, and we talk about some of the trends that we're seeing and some of the cases that we're seeing, and what I've noticed is that there has really just been a geometric increase in the cases that we're seeing across the circuits. Now, in the Ninth Circuit we've always been blessed, I think, with having a lot of international...

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