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Winner of the ASIL 2022 Robert E. Dalton Award for Outstanding Contribution in the Field of Foreign Relations Law

The Restatement and Beyond

The Past, Present, and Future of U.S. Foreign Relations Law

Edited by Paul B. Stephan and Sarah H. Cleveland

Provides definitive, authoritative analysis on the Fourth Restatement as a source of law
Includes contributions from top specialists on foreign relations law, including most of the Restatement reporters, many of the other participants in the project, and critics who challenge its assumptions and conclusions
Sets out the historical development of the law of foreign relations from the beginning of the twentieth century to issues currently unfolding in U.S. courts, and discusses its future

Winner of the ASIL 2022 Robert E. Dalton Award for Outstanding Contribution in the Field of Foreign Relations Law

The Restatement and Beyond

The Past, Present, and Future of U.S. Foreign Relations Law

Edited by Paul B. Stephan and Sarah H. Cleveland

Description

Reflecting on the Fourth Restatement of the Foreign Relations Law, these essays provide a comprehensive survey of the most significant issues in contemporary U.S. foreign relations law. They review the context and assumptions on which that work relied, critique its analysis and conclusions, and explore topics left out of the published work that need research and development. Collectively the essays provide an authoritative study of the issues generating controversy today as well as those most likely to emerge in the coming decade.

The book is organized in three parts. The first provides a historical context for the law of foreign relations from the beginning of the twentieth century to the present. The second and largest part looks at contested issues in foreign relations law today, from the status of international law as federal domestic law to presidential authority to make, unmake, and apply international agreements; and to the immunity of international organizations and foreign government officials from domestic lawsuits. The last part considers how foreign relations law might develop in the future as well as the difficulties raised by using the Restatement process as a way of contributing to the law's development.

These essays for the most part concentrate on U.S. law, but the problems they face are common to all democratic republics that seek to reconcile international relations with the rule of law.

Winner of the ASIL 2022 Robert E. Dalton Award for Outstanding Contribution in the Field of Foreign Relations Law

The Restatement and Beyond

The Past, Present, and Future of U.S. Foreign Relations Law

Edited by Paul B. Stephan and Sarah H. Cleveland

Introduction - The Role of the Restatements in U.S. Foreign Relations
Sarah H. Cleveland & Paul B. Stephan
I. The Fourth Restatement and The Past
Chapter 1: From the Third to the Fourth Restatement of Foreign Relations: The Rise and Potential Fall of Foreign Affairs Exceptionalism
G.E. White
II. The Fourth Restatement and the Law of Treaties
Chapter 2: Could the President Unilaterally Terminate All International Agreements? Questioning Section 313
Harold Hongju Koh
Chapter 3: Taking Treaty Implementing Statutes Seriously
Samuel Estreicher
Chapter 4: The Fourth Restatement's Treatment of International Law and Administrative Law
Jean Galbraith
Chapter 5: Article II Treaties and Signaling Theory
Curtis A. Bradley
III. The Fourth Restatement, International Law, and Domestic Courts
Chapter 6: Federalizing International Law
Gary Born
Chapter 7: The Waning of the Federal Common Law of Foreign Relations
Paul B. Stephan
Chapter 8: Restating The Charming Betsy as A Canon of Avoidance
Anthony J. Bellia, Jr. & Bradford R. Clark
Chapter 9: Personal Jurisdiction and Fifth Amendment Due Process Revisited
Chimène I. Keitner
Chapter 10: Customary International Law and U.S. Judicial Power: From the Third to the Fourth Restatements
Thomas H. Lee
Chapter 11: International Law in U.S. Courts Within the Limits of the Constitution
John Harrison
IV. The Restatement and International Law's Limits on Domestic Jurisdiction
Chapter 12: Reasonableness as a Limitation on the Extraterritorial Application of U.S. Law: From 403 to 405 (via 404)
Hannah Buxbaum & Ralf Michaels
Chapter 13: Adjudicatory Jurisdiction and Public International Law: The Fourth Restatement's New Approach
Austen Parrish
Chapter 14: International Comity in the Fourth Restatement
William S. Dodge
Chapter 15: Toward the Fifth Restatement of U.S. Foreign Relations Law: The Future of Adjudicative Jurisdiction under International Law
Pamela K. Bookman
Chapter 16: Forum Non Conveniens in the Fourth Restatement
Donald E. Childress III
Chapter 17: Territoriality and Its Troubles
George Rutherglen
V. The Restatement and Immunity
Chapter 18: The Fourth Restatement, International Law, and the “Terrorism” Exception to the Foreign Sovereign Immunities Act
Beth Stephens
Chapter 19: The Jurisdictional Immunities of International Organizations: Recent Developments and the Challenges of the Future
David P. Stewart & Ingrid Wuerth
Chapter 20: Foreign-Official Immunity under the Common Law
John B. Bellinger III & Stephen K. Wirth
VII. The Restatement's Futures
Chapter 21: Constitutional Authority for the Transboundary Deployment of Armed Force
Bakhtiyar Tuzmukhamedov
Chapter 22: Sleeping Dogs: The Fourth Restatement and International Humanitarian Law
Ashley Deeks
Chapter 23: Consider the Source: Evidence and Authority in the Fourth Restatement
Edward Swaine
Chapter 24: The Restatements of Foreign Relations and the Rule of Law
Kristina Daugirdas
Chapter 25: Can the Fourth Restatement of Foreign Relations Law Foster Legal Stability?
Jide Nzelibe

Winner of the ASIL 2022 Robert E. Dalton Award for Outstanding Contribution in the Field of Foreign Relations Law

The Restatement and Beyond

The Past, Present, and Future of U.S. Foreign Relations Law

Edited by Paul B. Stephan and Sarah H. Cleveland

Author Information

Edited by Paul B. Stephan, John C. Jeffries, Jr., Distinguished Professor of Law, University of Virginia School of Law, and Edited by Sarah H. Cleveland, Louis Henkin Professor of Human and Constitutional Rights and Faculty Co-Director of the Human Rights Institute, Columbia University Law School

Paul B. Stephan is the John C. Jeffries, Jr., Distinguished Professor, University of Virginia School of Law; Counselor on International Law to the Legal Adviser, U.S. Department of State (2006-07). He was a Coordinating Reporter for the Fourth Restatement. Sarah H. Cleveland is the Louis Henkin Professor of Human and Constitutional Rights and Faculty Co-Director of the Human Rights Institute, Columbia University Law School; Member of the Venice Commission of the Council of Europe (2010-2019; Vice Chair and Member of the UN Human Rights Committee (2015-2018); Counselor on International Law to the Legal Adviser, U.S. Department of State (2009-11). She was a Coordinating Reporter for the Fourth Restatement.

Contributors:

Anthony J. Bellia, Jr., is the O'Toole Professor of Constitutional Law, Notre Dame Law School, and Concurrent Professor of Political Science, Notre Dame University.

John B. Bellinger III is a Partner in the Washington, D.C. Office of Arnold & Porter; Legal Adviser, U.S. Department of State (2005-09);

Pamela Bookman is Associate Professor, Fordham University School of Law.

Gary Born is a Partner in the London Office of Wilmer Cutler Pickering Hale and Dorr LLP.

Curtis A. Bradley is the William Van Alstyne Professor, Duke University School of Law; Counselor on International Law to the Legal Adviser, U.S. Department of State (2004).

Hannah Buxbaum is Vice President for International Affairs and John E. Schiller Chair in Legal Ethics and Professor, Maurer School of Law, Indiana University Bloomington; Curatorium, Hague Academy of International Law.

Donald Earl Childress III is Professor, Pepperdine School of Law, and currently serves as Counselor on International Law to the Legal Adviser, U.S. Department of State.

Bradford R. Clark is the William Cranch Research Professor, George Washington University Law School.

Sarah A. Cleveland is the Louis Henkin Professor of Human and Constitutional Rights and Faculty Co-Director of the Human Rights Institute, Columbia University Law School.

Kristina Daugirdas is Professor, University of Michigan Law School.

Ashley Deeks is Professor, E. James Kelly, Jr. - Class of 1965 Research Professor, and Director, Center for National Security Law, University of Virginia School of Law, and Senior Fellow, Miller Center, University of Virginia.

William S. Dodge is Martin Luther King, Jr. Professor and John D. Ayer Chair in Business Law, University of California Davis School of Law.

Samuel Estreicher is Dwight D. Opperman Professor of Law, Director of the Center for Labor and Employment Law, and Codirector, Institute of Judicial Administration, New York University School of Law.

Jean Galbraith is Professor, University of Pennsylvania School of Law.

John Harrison is the James Madison Distinguished Professor, University of Virginia School of Law.

Chimène Keitner is the Alfred and Hanna Fromm Professor of International Law, University of California Hastings College of the Law.

Harold Hongju Koh is Sterling Professor of International Law, Yale Law School.

Thomas H. Lee is Leitner Family Professor of International Law and currently serves as Special Counsel to the General Counsel, U.S. Department of Defense.

Ralf Michaels is a Director of the Max Planck Institute for Comparative and International Private Law, Hamburg, and Chair in Global Law, Queen Mary University, London.

Jide Nzelibe is Professor of Law, Northwestern University Pritzker School of Law.

Austen Parrish is Dean and James H. Rudy Professor of Law, Maurer School of Law, Indiana University Bloomington.

George Rutherglen is the John Barbee Minor Distinguished Professor, University of Virginia School of Law.

Paul B. Stephan is the John C. Jeffries, Jr., Distinguished Professor, University of Virginia School of Law.

Beth Stephens is Distinguished Professor, Rutgers Law School.

David P. Stewart is Professor from Practice, Georgetown University Law Center; currently Chair of Board of Directors and formerly President, American Branch of the International Law Association (2014-18).

Edward T. Swaine is the Charles Kennedy Poe Research Professor, George Washington University Law School.

Bakhtiyar Tuzmukhamedov is Vice-President of the Russian Association of International Law, a member of the Committee Against Torture, and an Ad Hoc Judge of the European Court of Human Rights.

G. Edward White is the David and Mary Harrison Distinguished Professor, University of Virginia School of Law..

Ingrid Wuerth is Helen Strong Curry Chair in International Law and Director, Cecil D. Branstetter Litigation & Dispute Resolution Program, Vanderbilt University Law School.

Stephen K. Wirth is an associate in the Washington Office of Arnold & Porter.