Stephan Named to Co-Lead Team Writing American Law Institute's New Guidance on Foreign Relations Law
University of Virginia law professor Paul B. Stephan will serve as a coordinating reporter for "The Restatement (Fourth) of the Foreign Relations Law of the United States," a new guide from the American Law Institute designed to clarify and modernize foreign relations law for judges, practitioners, scholars and more, the institute announced today.
"It's an effort to guide and integrate the practice of U.S. courts in dealing with issues that have to do with the foreign relations of the United States," Stephan said. "The entire project will keep me busy for the next 10 years."
Stephan will work with Columbia University law professor Sarah Cleveland to supervise teams of scholars in drafting the restatement. The last (Third) restatement was published in a two-volume set in 1986, just as the Cold War was coming to a close, Stephan said."The Third Restatement has been very influential as well as controversial. The Supreme Court to date has referred to it twenty times, sometimes as authority for its decision and sometimes critically. But much has changed since 1986."
"We're now in a world where, instead of there being bipolar competition and conflict between two great superpowers, we have a much more complex and distributed world where non-state actors and forces that are outside the control of states are the principal security threat — terrorism, disease, economic and financial crisis — so international law is changing and the foreign relations law of the United States is changing," he said. "The idea of this project, in essence, is to not so much to revise the old restatement as to produce something new that reflects the contemporary world."
Stephan said the American Law Institute's director, Columbia law professor Lance Liebman, asked him to take on the project with Cleveland.
"I enthusiastically embraced that suggestion," Stephan said. "It's very different from conventional academic scholarship and something new for me."
Stephan said the effort will begin by focusing on the issues surrounding jurisdiction (including regulation, adjudication and enforcement), the domestic legal status of treaties and sovereign immunity.
"We're trying to do the parts we think are most tractable first," Stephan said. He said he plans to hire UVA law students to help with the project starting this summer.
Stephan said jurisdiction has become a hot issue in recent years, particularly with the Supreme Court considering questions like those in the first case argued this term, Kiobel v. Royal Dutch Petroleum, which involves a lawsuit filed by Nigerian nationals seeking redress in U.S. courts for alleged human rights violations committed by European oil companies.
"Foreign relations law is an exploding area," Stephan said.
Drafts for restatements are typically presented to the ALI Council for approval before publication. The council's members include UVA Law professors Kenneth S. Abraham (who worked on a similar project, "A Concise Restatement of Torts") and Douglas Laycock. Professor George Yin also served as a reporter for ALI's federal tax project concerning the income taxation of private business enterprises, an effort aimed at getting Congress to consider reforms in the 1990s. After the Council approves a project, the organization's full membership then votes on endorsing it.
The American Law Institute "seeks to move the direction of the law," Stephan said. The institute's membership includes 4,500 lawyers, judges and law professors. "The idea is to shape the thinking of federal judges and those in government service and in private practice."
Stephan said drafting the restatement offers a unique opportunity because so many people are interested in and affected by the final product.
"You actually are accountable to a wide range of people with different views, and [are] trying to find ways of reconciling those differences and clarifying the differences when they can't be reconciled," Stephan said. "It's very different from conventional academic scholarship and I'm looking forward to the challenge."