IS THERE A NEW “NEW HAVEN SCHOOL” OF

INTERNATIONAL LAW?

Vol. 32 YJIL Young Scholars Conference

Yale Law School

Harold Hongju Koh March 10, 2007

First, a Message from the Dean

Welcome (Back) to New Haven!

And a Tribute to YJIL (Vols. 32 & 33)

Fifth Annual Young Scholars Conference First Held in Conjunction with Junior International Law

Scholars Roundtable One of the first journals to encourage full-length student

scholarship in international law YLS, in its wisdom, rejected the original proposal to form

YJIL in 1974, but the Journal organizers went ahead and published the issue anyway

They worked “in secrecy, in the bowels of the international law library …at night… [in] an underground bunker”, using funds donated by the Editor-in-Chief (Eisuke Suzuki, a graduate fellow), who donated half of his stipend to print the Journal from 1974-78

Since then, YJIL has gone on to publish the work of many

professors currently in New Haven…

And a cohortof professors,students,and like-mindedscholars elsewhere,many inattendancehere today

Today’s Conference Panels now ask:

Whether this body of scholarship should now be considered a “New New Haven School” of International Law?

9:30 am - 11:00 am Panel I: Historical Perspectives on the New Haven School

11:15 am - 12:45 pm Panel II: Applications of the New Haven School: Professional Scholarship

2:00 pm - 3:30 pm Panel III: Applications of the New Haven School: Student Scholarship

5:00 pm -6:30 pm Panel IV: Is there a “New” New Haven School?

Schools of Thought

A school of thought, belief, learning or scholarship—often named after its place of origin--is a group of people who share common characteristics of opinion, outlook, philosophy, or membership in the same intellectual, artistic, social or cultural movement.

E.g. The Philosophical School of Athens, the Renaissance School of Painting

Founders, Forebears and Fellow Travelers

of the New Haven SchoolMcDougal Lasswell Borchard

Schachter Rostow Brewster

Some Contemporary Members

of the New Haven SchoolFalk Weston Higgins Reisman

Moore

This Conference Asks Three Questions:

What are the Enduring Themes of the New Haven School?

What are the Emerging Themes of the New New Haven School?

Where should the New New Haven School Turn its Gaze in the 21st Century Era of Law and Globalization?

The New Haven School Began

as a Critical School Legal Realism: Falk: McDougal and Lasswell converted

"the core insight of legal realism" - "its critical focus on the interplay between rules and social process in the enunciation of law in authoritative form" - "into a comprehensive framework of inquiry"

Critique of Legal Formalism and Positivism: goal is to develop "a functional critique of international law in terms of social ends... that shall conceive of the legal order as a process and not as a condition."

Critique of Cold-War Political Realism Law and Rules Matter: McDougal (1953) (“Political realism

“underestimates the role of rules and of legal processes in general, and over-emphasizes the importance of naked power”)

Some Enduring Themes of the New Haven School

1. Commitment to Interdisciplinarity: Law and Political Science

2. Commitment to Process: New Haven School's "communications model" sees the social process of lawmaking as comprising three communicative streams, "policy content, authority signal and control intention" (Reisman AJIL 1981)

3. Commitment to Normative Values: International law is not just a body of rules, but a process of authoritative decisionmaking dedicated to promoting a set of normative values

4. Commitment to Connecting Law and Policy

Some Enduring Themes of the New Haven School

5. Recognition of Emerging Importance of Transnational Law Phillip Jessup, 1956 Yale Storrs Lectures: “all law

which regulates actions or events that transcend national frontiers”… including public and private international law, plus other rules which do not wholly fit into such standard categories.”

Eisuke Suzuki: 1 Yale Stud. WPO 1, 20 (1974): “The New Haven School does not [view legal processes] through a dichotomy of national and international law, … “it describes them in terms of the interpenetration of multiple processes of authoritative decision of varying territorial compass.”

But Schools are the Product of their Times

We now live in a different political era A post-”post-Cold War” world, after the fall

not just of the Berlin Wall, but of the Twin Towers

An emerging age of globalization Not a world of two blocs led by competing

national superpowers locked in a debate over ideology and security

But an increasingly “flat” world of myriad transnational actors –IGOs, NGOs, individuals armed with computers or WMD--transnational decisionmakers, and transnational threats

Schools are the Product of their Times

We also now live in a different academic era An age of interdisciplinary studies A legal academy that now combines theory with

practice (scholarship and clinical activities) A legal curriculum that blends public and private A legal curriculum that increasingly focuses on

transnational law and law and globalization A legal academy with normative commitments

to upholding human rights and the rule of law

How should the New Haven School’s Insights be Adapted for the Age of Globalization?

In this new academic and geopolitical era, what are and what should be the Emerging Themes of a “New New Haven School”?

Five Commitments

1. Commitment to Theory and Interdisciplinarity

2. Commitment to Transnationalism3. Commitment to Process4. Commitment to Normativity 5. Commitment to Practice and Public

Service: Connecting Law and Policy

1. Commitment to Theory and Interdisciplinarity

International Law Should Not Be Studied in Isolation Interdisciplinarity stresses International Law And: How Law Matters should not be studied purely

through the lens of law itself International Relations and Political Science Anthropology (Berman/Brooks) Sociology (Goodman/Jinks) Economics and Rational Choice Political Philosophy (Doyle, Pogge) Culture Geography (Osofsky) Empirical Legal Studies (Hathaway) History (Zasloff, Witt)

2. Commitment to Studying Transnational Law

International Law Should Not be Studied in Isolation From Domestic Law Focus Instead on Transnational Law

Transnational Legal ProcessTransnational Legal Substance

Transnational Legal Substance

Transnational Legal Substanceo Law That Transcends Old Dichotomies:

o Between International/Domestic Lawo Between Public/Private Law

o Transnational Law is Hybrid Law: neither purely domestic or purely international, but rather, a hybrid of the two (e.g. immigration/refugee, environmental, commercial, law and national security, cyberlaw)

2Oth Century Law Lived inside a “Matrix”

Domestic Law

International Law

Public Law

Private Law

But We Now Recognize that The 2Oth Century Legal “Matrix” Was a Construct

That accepted traditional dichotomies between domestic and international law, public and private law

21st Century Legal Education Should Reject this Matrix as a Construct that no longer fits modern legal realities

MOST LAW IS NOW TRANSNATIONAL LAW

Domestic Law

International Law

Public Law

Private Law

TRANSNATIONAL LAW•HYBRID LAW

•LAW THAT CROSSES BOUNDARIES

•LAW THAT TRANSCENDS OLD DICHOTOMIES(E.G. BETWEEN PUBLIC/PRIVATE

AND DOMESTIC/INTERNATIONAL)

International CriminalLaw

U.S. Foreign RelationsLaw

Lex MercatoriaProperty and IntellectualProperty Law

Transnational Law: An Operational Definition

Law that iso “downloaded” from international to

domestic law (“internalized” or “domesticated”), e.g. the norm against disappearance

o “uploaded, then downloaded”” e.g., free trial guarantees or

o “borrowed or horizontally transplanted from one national system to another”: e.g., privacy

The Emergence of Transnational “Public Law”

o Just as every nation recognizes Common Global Concepts—e.g., Metric System, Dot.com-- around the world, public law concepts are emerging, rooted in shared national norms and emerging international norms, that have similar or identical meaning in every national system: o e.g. "cruel, inhuman or degrading treatment" in

human rights law, o the concept of "civil society" in democracy law, o "internally displaced" in refugee/immigration

law, o "transborder trafficking" in international

criminal law

Transnational Public Law Now Embraces

o A Range of Legal Subjects, e.g.o Human Rightso Humanitarian Law (Jink)o Immigration and Refugee Lawo Foreign Relations and National Security Lawo International Criminal Law (van Schaack, Danner, Martinez)o International Business and Commercial Law (Levit,

Dubinsky)o International Environmental Law (Osofsky,

Bratspies, Driesen)o Conflict of Laws

o In each of these areas, global standards are being recognized, integrated, and internalized into domestic legal systems

Transnational Law is Characterized by a Transsubstantive

“Transnational Legal Process” Transnational Legal Process: how states and domestic and transnational private actors produce cycles of “interaction-interpretation-internalization”: interpretations of applicable global norms which are eventually internalized into states’ domestic legal systems by various agents of internalization—e.g., nation-states, transnational norm entrepreneurs, governmental norm sponsors, transnational issue networks, interpretive communities

3. Commitment to Process

Recognition of Legal Pluralism (Cover, Berman): how multiple communities for law development, interpretaton and enforcement can make law matter even in the absence of a single global “Leviathan”

Recognition of “Trickle-Down” Lawmaking through Norm-Internalization (Cleveland)

Recognition of “Bottom-up” Lawmaking through private/public processes (Levit)

Recognition of Need to Connect Public Law to Ostensibly Private Actors (Dickinson, Danner, Martinez, van Schaack)

Recognition of Dialectical Legal Interactions (Berman, Ahdieh)

Recognition of Transjudicial Dialogue (Waters)

4. Commitment to Normativity

Positive Theory Should Not Be Studied in Isolation from Normative Ends

Normativity: Goal of New New Haven School is not just Analytic, but Transformative

Link to the Compliance Debate in International Relations: Issue is not just How Nations Behave, but why they obey (or not)

Understanding Complex Interplay Between Law and Policy Requires Not just asserting that International Law Matters, but Understanding Precisely How International Law Matters Dynamic Normative: How Law and Legal Process help Create

Norms and Construct Interests (Connection to Constructivist School of IR)

Constitutive: goal is “not simply to change behavior, but to change minds”

5. Commitment to Connecting Law and Policy

Theory Should Not Be Studied in Isolation from Practice Practice Should Not Be Pursued Purely for Private Ends Isolated from the

Public Good The New New Haven School Should Connect Law and Policy Through

Scholarly Work Through Public Commentary (Brooks, Balkin, Luban, et al) Through Activist Work of Clinicians (Novogrodsky, van Schaack, Yale Lowenstein Clinic, Hurwitz,

Silk, Wishnie) and Professors Engaged in Transnational Public Law Litigation over Law on

Terror (Neuman, Katyal, Koh, Cleveland, et al.)

War on Terror: New New Haven School of International Law::

Civil Rights Movement: Old New Haven of Domestic Law

We need to Return to a Vision of International Lawyers Not as “Yes-Men” or Scriveners, but as Architects and Public Servants

After World War II, international law made its dramatic shift from a loose web of customary, do-no-harm, state-centric rules toward an ambitious positive law framework built around institutions and constitutions: international institutions governed by multilateral treaties that aspired to organize proactive assaults on a vast array of global problems.

The ultimate goal of any New New Haven School must be to revive our vision of international law not as an obstacle to or straitjacket upon state interests Nor as an antiquated threat to national security But as a creative medium in a new age of globalization for

organizing the activities and relations of numerous transnational players—which now includes individuals, networks, nongovernmental organizations, and intergovernmental organizations interacting within a “transnational legal process”– not simply to reflect parochial state interests, but to advance the broader goals of an enlightened global system dedicated to world public order and the promotion of human dignity

The Analytic Challenge of Law and

Globalizationo Law of Globalization: Globalization as a

mixed international-domestic law subject (like human rights, international business transactions).

o Law as Globalization: How the global spread of the rule of law mirrors globalization of culture, commerce.

o Law in Globalization: The role that law plays in promoting the process of humane globalization.

The Policy Challenge: Balancing Three Globalizations

o Globalization of Governance (esp. with regard to Human Rights and Humanitarian Law)

o Globalization of Freedomo Globalization of Terroro The Strategy: Using the

Globalization of Governance and Freedom (Global Cooperation Among Global Democracies) to Combat the Globalization of Terror.

Whether the New New Haven School Thrives and Survives

Will Depend on How Well it Rises to these Two Challenges