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The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law. Edited by Paul B. Stephan and Sarah H. Cleveland. New York: Oxford University Press, 2020. Pp. xi, 587. Index.

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The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law. Edited by Paul B. Stephan and Sarah H. Cleveland. New York: Oxford University Press, 2020. Pp. xi, 587. Index.

Published online by Cambridge University Press:  14 January 2022

David H. Moore
David H. Moore*
Affiliation:
Brigham Young University, J. Reuben Clark Law School
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Type
Book Reviews
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American Journal of International Law , Volume 116 , Issue 1 , January 2022 , pp. 219 - 224
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press for The American Society of International Law

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References

1 See Thomas H. Lee, Customary International Law and U.S. Judicial Power: From the Third to the Fourth Restatements, in The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law 251 (Paul B. Stephan & Sarah H. Cleveland eds., 2020); John C. Harrison, International Law in U.S. Courts Within the Limits of the Constitution, in The Restatement and Beyond, supra, at 265.

2 See William S. Dodge, International Comity in the Fourth Restatement, in The Restatement and Beyond, supra note 1, at 319.

3 See David P. Stewart & Ingrid Wuerth, The Jurisdictional Immunities of International Organizations: Recent Developments and the Challenges of the Future, in The Restatement and Beyond, supra note 1, at 411.

4 See Jide Nzelibe, Can the Fourth Restatement of Foreign Relations Law Foster Legal Stability?, in The Restatement and Beyond, supra note 1, at 551.

5 See Harold Hongju Koh, Could the President Unilaterally Terminate All International Agreements? Questioning Section 313, in The Restatement and Beyond, supra note 1, at 67.

6 See Samuel Estreicher, Taking Treaty-Implementing Statutes Seriously, in The Restatement and Beyond, supra note 1, at 97.

7 See Curtis A. Bradley, Article II Treaties and Signaling Theory, in The Restatement and Beyond, supra note 1, at 123.

8 See Jean Galbraith, The Fourth Restatement's Treatment of International Law and Administrative Law, in The Restatement and Beyond, supra note 1, at 109.

9 See Restatement (Fourth) of the Foreign Relations Law of the United States § 310 (2018), including accompanying comments and reporters’ notes.

10 Id. § 310, reps’ note 14.

11 See id. § 310(2), cmt. e, reps’ notes 3, 9.

12 See G. Edward White, From the Third to the Fourth Restatement of Foreign Relations: The Rise and Potential Fall of Foreign Affairs Exceptionalism, in The Restatement and Beyond, supra note 1, at 23, 46–48.

13 See id. at 23–24, 63–64; see also Sitaraman, Ganesh & Wuerth, Ingrid, The Normalization of Foreign Relations Law, 128 Harv. L. Rev. 1897 (2015)Google Scholar.

14 See White, supra note 12, at 58 (“[T]he Third Restatement of Foreign Relations may have been somewhat unusual in occasionally fashioning doctrinal propositions that were not reflected in much case law . . . .”).

15 Restatement (Third) of the Foreign Relations Law of the United States § 111, cmt. d (1987).

16 Restatement (Fourth), supra note 9, intro.

17 One essay stands out for retaining the Restatement Third's sense of orthodoxy. Indeed, in “International Law in American Courts,” Gary Born pushes beyond the Restatement Third to argue for “a body of federal common law rules that would govern all issues of international law in American courts.” Gary Born, International Law in American Courts, in The Restatement and Beyond, supra note 1, at 145, 146.

18 See Kristina Daugirdas, The Restatements and the Rule of Law, in The Restatement and Beyond, supra note 1, at 527, 528 (discussing the risks of pushback and undermined credibility that increase the more a Restatement attempts to develop the law).

19 See White, supra note 12, at 48–49; Paul B. Stephan, The Waning of the Federal Common Law of Foreign Relations, in The Restatement and Beyond, supra note 1, at 179, 179–81.

20 Restatement (Third), supra note 15, § 111(1–2), cmts. d–e.

21 See Zschernig v. Miller, 389 U.S. 429, 432–35, 440 (1968).

22 552 U.S. 491 (2008).

23 542 U.S. 692 (2004).

24 569 U.S. 108 (2013).

25 138 S.Ct. 1386 (2018).

26 141 S.Ct. 1931 (2021).

27 512 U.S. 298 (1994).

28 539 U.S. 396 (2003).

29 But cf. Arizona v. United States, 567 U.S. 387 (2012) (striking provisions of state law based on field and obstacle preemption, perhaps influenced by notions of dormant preemption).

30 572 U.S. 844 (2014).

31 494 U.S. 259 (1990).

32 553 U.S. 723 (2008).

33 561 U.S. 247 (2010).

34 542 U.S. 466 (2004).

35 548 U.S. 557 (2006).

36 566 U.S. 189 (2012).

37 576 U.S. 1 (2015).

38 493 U.S. 400 (1990).

39 560 U.S. 305 (2010).

40 571 U.S. 117 (2014).

41 But cf. Bradley, Curtis A., Foreign Relations Law and the Purported Shift Away from “Exceptionalism,” 128 Harv. L. Rev. F. 294, 298, 300–01 (2015)Google Scholar (noting that lower courts continue to rely heavily on the political question doctrine and that Zivotofsky was not a significant departure from the Court's prior approach to the political question doctrine).

42 See Restatement (Third), supra note 15, § 111, reps’ note 5. The Restatement Fourth similarly observes that “[s]elf-execution of treaties helps ensure that the United States will comply with its international law obligations” but immediately acknowledges that “not all treaties are self-executing in the United States.” Restatement (Fourth), supra note 9, § 310, reps’ note 1.

43 Medellín, 552 U.S. at 504 (“No one disputes that the [ICJ] decision . . . constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the [ICJ] judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.”).

44 Cf. Galbraith, supra note 8, at 110 (“Leading scholars in foreign relations law today are more likely than in the past to have relatively light training in international law and to see domestic law as separate from international law.”).

45 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315–21 (1936).

46 See Zivotofsky, 576 U.S. at 21.

47 See, e.g., Zschernig, 389 U.S. at 436–41.

48 See, e.g., Sosa, 542 U.S. at 727–28 (2004) (urging judicial caution in the recognition of common law causes of action based on CIL given the negative consequences these may cause for U.S. foreign affairs and the political branches’ discretion in directing those affairs); Kiobel, 569 U.S. at 117 (reasoning that foreign policy “concerns, which are implicated in any case arising under the ATS, are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign”).

49 See Daimler, 571 U.S. at 140–42.