Thursday, May 19, 2011

ALI inches toward Restatement 4th

For international lawyers, a most significant achievement of the 88-year-old American Law Institute is the 2-volume Restatement of the Foreign Relations Law of the United States. (photo credit) It’s a trove of principles and black-letter law – international law as it pertains to matters that arise in the courts of the United States.
It was, in fact, this ’Grrl’s introduction to this area of law. Sections 401 et seq. were essential to my litigation, before the U.S. Court of Appeals for the Ninth Circuit, of extraterritorial jurisdiction principles at issue in a case called United States v. Olaf Juda (1995).
Then as now, ALI’s most recent effort in this area is what’s called the Third Restatement. That number’s a misnomer: as detailed in a speech that Michael Traynor, Bay Area litigator and immediate past President of the ALI, delivered at this year’s International Law Weekend-West, “There was no Restatement First of foreign relations law.” (Entitled “The Future of the Foreign Relations Law of the United States,” the speech, available in prepublication format here, is forthcoming in the Southwestern Journal of International Law.) To correspond with ALI’s internal numbering the initial effort, proposed in 1955 and completed in 1965, was dubbed the Second Restatement.
Having enlisted luminaries like Louis Henkin and Louis Sohn to work on a revision, ALI published the Third Restatement 13 years later, in 1987.
Nearly a quarter-century has lapsed since then. And the Third Restatement is showing its age.

'The Restatement is about three Supreme Court cases behind,'

with respect to all kinds of issues, as Georgetown Law Professor Barry E. Carter put it during a session on New Project Development at the annual meeting of the ALI this week in San Francisco. On some issues, such as immunities, state secrets privileges, and the reach of the Alien Tort Statute, the current Restatement offers little help at all.
Indications are that the Institute is moving toward some form of revision.
In his ILW-W speech, Traynor had suggested starting small, first with commissioned short papers, then with an invited meeting of stakeholders, and then “a deeper study of various related areas.” Finally, Traynor suggested, the ALI might then launch a “project” – perhaps a “Statement of Principles,” perhaps a Fourth Restatement, perhaps some other format. “[W]e could wait a few years,” Traynor said, “before christening the baby.” Traynor’s model is not writ in stone, however; how to go forward is a question to be studied by ALI’s Program Committee.
Why not even this level of movement till now?
No doubt it’s because the law in many areas that would undergo review is not as settled as the “black-letter” trope would signify. The U.S. doctrine of (non-)self-executing treaties remains a point of contestation in the wake of the Supreme Court’s still-debated judgment in Medellín v. Texas (2008). So too the interfederal balance of powers respecting foreign relations, the legality and contours of detention in the post-9/11 context, and myriad other issues.
This week’s ALI session proposed a way forward notwithstanding this concern.
“There are a number of areas where you could get some degree of consensus about where the law has moved,” said Southwestern Law Professor Robert E. Lutz. “The issue is not whether we take it up, but how we take it up.”
ALI Director Lance Liebman, a Columbia Law professor, invited suggestions on how to go forward.
Seems a good time for lawyers interested in this issue – or in other issues that may be on ALI’s near-term agenda, such as sex crimes, national security, immigration, and Indian law – to renew or try to establish membership in the Institute.

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