IS THERE A NEW “NEW HAVEN SCHOOL” OF INTERNATIONAL LAW?

1. 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

2. Welcome (Back) to New Haven! First, a Message from the Dean

3. 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

4. Since then, YJIL has gone on to publish the work of many professors currently in New Haven… And a cohort of professors, students, and like- minded scholars elsewhere, many in attendance here today

5. 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?

6. 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

8. Founders, Forebears and Fellow Travelers of the New Haven School McDougal Lasswell Borchard Schachter Rostow Brewster

9. Some Contemporary Members of the New Haven School Falk Weston Higgins Reisman Moore

10. 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?

11. 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”)

12. Some Enduring Themes of the New Haven School • Commitment to Interdisciplinarity: Law and Political Science • 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) • 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 • Commitment to Connecting Law and Policy

13. 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.”

14. 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

15. 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

16. 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”?

17. Five Commitments • Commitment to Theory and Interdisciplinarity • Commitment to Transnationalism 3. Commitment to Process 4. Commitment to Normativity 5. Commitment to Practice and Public Service: Connecting Law and Policy

18. 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)

19. 2. Commitment to Studying Transnational Law International Law Should Not be Studied in Isolation From Domestic Law • Focus Instead on Transnational Law • Transnational Legal Process • Transnational Legal Substance

20. Transnational Legal Substance Transnational Legal Substance • Law That Transcends Old Dichotomies: • Between International/Domestic Law • Between Public/Private Law • 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)

21. 2Oth Century Law Lived inside a “Matrix” Public Law Domestic Law International Law Private Law

22. 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

23. MOST LAW IS NOW TRANSNATIONAL LAW U.S. Foreign Relations Law Public Law International Criminal Law • TRANSNATIONAL LAW • HYBRID LAW • LAW THAT CROSSES BOUNDARIES • LAW THAT TRANSCENDS OLD DICHOTOMIES • (E.G. BETWEEN PUBLIC/PRIVATE • AND DOMESTIC/INTERNATIONAL) Domestic Law International Law Lex Mercatoria Property and Intellectual Property Law Private Law

24. Transnational Law: An Operational Definition Law that is • “downloaded” from international to domestic law (“internalized” or “domesticated”), e.g. the norm against disappearance • “uploaded, then downloaded”” e.g., free trial guarantees or • “borrowed or horizontally transplanted from one national system to another”: e.g., privacy

25. The Emergence of Transnational “Public Law” • 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: • e.g. "cruel, inhuman or degrading treatment" in human rights law, • the concept of "civil society" in democracy law, • "internally displaced" in refugee/immigration law, • "transborder trafficking" in international criminal law

26. Transnational Public Law Now Embraces • A Range of Legal Subjects, e.g. • Human Rights • Humanitarian Law (Jink) • Immigration and Refugee Law • Foreign Relations and National Security Law • International Criminal Law (van Schaack, Danner, Martinez) • International Business and Commercial Law (Levit, Dubinsky) • International Environmental Law (Osofsky, Bratspies, Driesen) • Conflict of Laws • In each of these areas, global standards are being recognized, integrated, and internalized into domestic legal systems

27. 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

28. 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)

29. 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”

30. 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

31. 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

32. The Analytic Challenge of Law and Globalization • Law of Globalization: Globalization as a mixed international-domestic law subject (like human rights, international business transactions). • Law as Globalization: How the global spread of the rule of law mirrors globalization of culture, commerce. • Law in Globalization: The role that law plays in promoting the process of humane globalization.

33. The Policy Challenge: Balancing Three Globalizations • Globalization of Governance (esp. with regard to Human Rights and Humanitarian Law) • Globalization of Freedom • Globalization of Terror • The Strategy: Using the Globalization of Governance and Freedom (Global Cooperation Among Global Democracies) to Combat the Globalization of Terror.

34. Whether the New New Haven School Thrives and Survives • Will Depend on How Well it Rises to these Two Challenges