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Georgetown University Law Center
Fall 2011

                                  FOREIGN RELATIONS LAW
                                       LAW J/G-089-10

Profs. Mark B. Feldman                                                          Tuesday 7:55-9:55 p.m.
       David P. Stewart                                                              McDonough 110

Our objective is to examine the core legal issues which arise in the conduct of U.S. foreign relations.
The main perspective will necessarily be constitutional, focused on the distribution of power and
authority between the three branches of the federal government (the President, the Congress and
the Judiciary). While this inquiry requires an understanding of the historical origins of the relevant
texts, we will devote attention to various contemporary controversies, including those that have
emerged since the September 2001 attacks such as Congressional authorization of armed conflict,
the rules (if any) for indefinite detention of terrorist suspects, and the prosecution of pirates and war
criminals. In addition, we will consider issues related to the treaty clause, judicial supervision of the
diplomatic and national security functions, the status of customary international law in U.S. courts,
the political question and act of state doctrines, and the federal ‘common law’ of foreign relations.

The course will be conducted at a fairly advanced level, focused on legal rather than policy issues,
and with a particular eye to the interests of students participating in the graduate programs in
national security, human rights and international legal studies (including students who did their basic
law studies abroad). Of course, all students are welcome regardless of specialization. Although time
is short, we will have some ability to tailor our readings and discussions to particular student
interests and (potentially) late-breaking developments.

Our text will be Bradley and Goldsmith, Foreign Relations Law (3rd edition, Aspen, 2009) together
with its 2011 Supplement (“Supp.”), which we have posted on courseware. Optional readings are
from Schroeder and Bradley, Presidential Power Stories (Foundation 2009). Some additional
readings will be assigned from various primary materials, including recent judicial decisions and
other documents as unfolding events and our discussions warrant.

There are no prerequisites, but some familiarity with basic U.S. constitutional law and the
fundamentals of public international law would be desirable.

PARTICIPATION: We aim at thoughtful inter-active discussion rather than lectures. We expect
every class member to be prepared for each session, and our discussions and presentations will
assume your familiarity with the assigned material. If you are not prepared for a given class, please
see us at the outset. Your active participation in, and positive contributions to, class discussions may
be taken into account in the final course grade, but only to your benefit.

EXAM: The examination will be a three-hour, entirely open-book test, on Dec.12, 2011.


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CONTACT: We will be using Courseware for communication, discussion, assignment and
document distribution. A course page has been established.

We have no scheduled office hours at the Law Center but will be available before and after
scheduled class sessions for consultations. Prof. Stewart’s office is Hotung 6018. We can be
reached most days between 9:00 a.m. and 7 p.m. and are happy to talk with you at any time. When
you call, please identify yourself as members of the “foreign relations class” and, if we’re not
available, leave a telephone number where you can be reached at the end of the day. For most
issues, however, email may be the most convenient way to communicate with us. We encourage you
to let us know your questions, concerns, proposals.




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Georgetown University Law Center
Foreign Relations Law
LAW J/G-089-10
Fall 2011


                                            SCHEDULE OF CLASSES

No. 1             Introduction and Background (August 30)

                     The Constitution: Historical, Conceptual and Textual Foundations

                     Readings: Overview (pp. xxv-xxvii); Ch. 1 pp. 1-25. U.S. Constitution (Appendix
                     A, pp. 757-771), especially Art. I §§ 8-10, Art. II §§ 1-3, Art. III, and Art. VI.

                     Recommended: PPS ch. 1 (Neutrality Controversy) pp. 21-52.
                     Questions: #3 and #6 (p. 23)

No. 2             Scope and Origin of the Foreign Affairs Power (September 6)

                     Constitutional Foundations: Inherent Sovereignty, Constitutional Sovereignty,
                     Delegated Powers

                     Readings: Ch. 1 pp. 26-39. Supp. pp. 2-5 (note on constitutional interpretation)

                     Recommended: PPS ch. 6 (Curtiss-Wright) pp. 195-231; Abebe and Posner, “The
                     Flaws of Foreign Affairs Legalism,” 51 Va. J. Int’l L. 507 (2011)

No. 3             Limitations on Judicial Intervention (September 13)

                     Jurisdiction, Justiciability, Political Question, Sovereign Immunity

                     Readings: Ch. 2 pp. 41-47, 49-75 (thru n.3), 76 (n. 6), 90 (n. 10). Supp. p. 6-7 n.13a
                     (El-Shifa) and pp. 6-9 (state secrets).

No. 4             Judicial Deference (September 20)

                     Act of State, International Comity, Deference to the Political Branches

                     Readings: Ch. 2 pp. 94-104 (thru n. 2), 107-108 (nn. 8-9), 109-112, 115-139. Supp.
                     pp. 9-11 (Abbott).



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No. 5             Congress and the Executive (September 27)

                     Sources of Congressional and Executive Authority

                     Readings: Ch. 3 pp. 141-152 (thru n. 2), 155-56 (n. 7), 158 (n.12), 159-160 (n.15),
                     160-186, 192-204. Supp. pp. 13-14 (Libya), pp.14-15 (signing statements), and pp.16
                     (Zivotofsky/ Jerusalem).

                     Recommended: PPS ch. 7 (Steel Seizure Case), pp. 233-285; Swaine, “The Political
                     Economy of Youngstown,” 83 S. Cal. L. Rev. 263 (2010)

No. 6             War Powers I (October 4)

                     Relationship between Congressional and Presidential Powers

                     Readings: Ch. 4 pp. 205-264. Supp. pp. 18-31 (Libyan intervention).

                     Recommended: PPS ch. 2 (Prize Cases) pp. 53-92
.
NO Class – October 11

No. 7             War Powers II (October 18)

                     War and Individual Liberties: the War on Terrorism

                     Readings: Ch. 4 pp. 264-288; Ch. 5, pp. 289-311. Supp. pp. 34-35 (Holder).

                     Recommended: PPS ch. 3 (Milligan) pp. 93-132

No. 8             War Powers III (October 25)

                     War and Individual Liberties continued

                     Readings: Ch 5 pp. 324-326 (nn.1-3), 329-31 (n.15), 332-341, 347-49, and Ch. 9,
                     pp. 680-85 (Boumediene). Supp. pp. 35-39 (nn. 15-18), pp. 47-48 (nn. 11 and 11a), pp.
                     49-54 (nn. 8 thru 8(c)), and pp. 56-72 (targeted killings). Bush M.O. November 13,
                     2001 (on courseware).

                     Recommended: PPS ch. 12 (Hamdan) pp. 447-485



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No. 9         Federal Supremacy in Foreign Affairs (November 1)

                     Foreign Policy Limitations on State Authority; State Compliance with International
                     Law

                     Readings: Ch. 6 pp. 385-428, Ch. 7 pp. 560-62 (Belmont). Supp. pp. 72-75 (nn. 9
                     and 10a).

                     Recommended: Chamber of Commerce v. Whiting, 131 S.Ct. 1968 (2011)

No. 10            Treaties and Other International Agreements I (November 8)

                     Self-Execution, Last in Time, Federalism

                     Readings: Ch.7 pp. 443-467, 472-478, 490-504. Supp. p. 77 (nn. 15a and 15b) and
                     pp. 82-83 (n. 16a).

No. 11            Treaties and Other International Agreements II (November 15)

                     RUDs, Interpretation and Termination, Executive Agreements

                     Readings: Ch. 7 pp. 509-16, 522-539, 547-567. Supp. pp. 85-87 (nn. 6a and 10a).

No. 12            Customary International Law and Human Rights Litigation (November 22)

                     Customary International Law in US Law, ATS/TVPA, Charming Betsy

                     Readings: Ch. 6 pp. 429-441, Ch 8 pp. 569-609, 644-57. Supp. p. 88 (n. 2), pp. 90-
                     94 (nn. 11-13a).

No. 13            Review (November 29)

                     Readings: Review Questions (handout). Sample Exam Question.


EXAM -- December 12, 2011 at 6:00 p.m.




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Additional Readings to Consult

ALI, Restatement (Third), Foreign Relations Law of the United States (1986)

Piet Eeckhart, EU External Relations Law (2011)
Daniel Margolies, Spaces of Law in American Foreign Relations: Extradition and Extraterritoriality
    in the Borderlands and Beyond, 1827-1898 (2011)
Gabriel Schoenfeld, Necessary Secrets: National Security, the Media and The Rule of Law (2011)
Clive Walker, Terrorism and the Law (2011)
M. Katherine B. Darme and Richard Fybel, National Security, Civil Liberties and the War on Terror
    (2011)
Peter Maguire, Law and War – International Law and American History (2010)
John N. Moore and R.F. Turner, Legal Issues in the Struggle Against Terror (2010)
Michael Scharf and Paul Williams, Shaping Foreign Policy in Times of Crisis and the Role of the
    State Department Legal Adviser (2010)
Philip Bobbitt, Terror and Consent: The War for the 21st Century (2009)
Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American
    Law (2009)
Mary Ellen O’Connell, International Law and the Use of Force (2nd ed. 2009)
M. Williamson, Terrorism, War and International Law (2009)
Thomas Franck, M. Glennon, S.Murphy, Foreign Relations and National Security Law (3rd ed. 2008)
James Baker, In the Common Defense (2007)
Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007)
Dycus, Berney, Banks and Raven-Hansen, National Security Law (4th ed. 2006)
Louis Fisher, Presidential War Power (2nd ed. rev’d, 2004)
Jack Goldsmith and Eric Posner, the Limits of International Law (2005)
John N. Moore and R.F. Turner, National Security Law (2nd ed. 2005)
H. Jefferson Powell, The President’s Authority over Foreign Affairs (2002)
Richard Posner, Not A Suicide Pact: The Constitution in a Time of National Emergency (2006)
Michael Ramsey, The Constitution’s Text and Foreign Affairs (2007)
Jane Stromseth, David Wippman, Rosa Brooks, Can Might Make Right? (2006)
Mark Tushnet, ed., The Constitution in Wartime (2005)
John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (2005)
Louis Henkin, Foreign Affairs and the Constitution (2nd ed. 1996)
Harold Koh, The National Security Constitution (1990)


Abebe and Posner, “The Flaws of Foreign Affairs Legalism,” 51 Va. J.I.L. 507 (2011)
Lobel, “Fundamental Norms, International Law, and the Extraterritorial Constitution,” 36 Yale J.
   Int’l L. 307 (2011)
Schaeffer, “Constraints on State-Level Foreign Policy: (Re)Justifying, Refining and Distinguishing
   the Dormant Foreign Affairs Doctrine,” 41 Seton Hall L. Rev. 201 (2011)
Michaels, “The (Willingly) Fettered Executive: Presidential Spinoffs in the National Security Domain
   and Beyond,” 97 Va. L. Rev. 801 (2011)

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Mortenson, “Executive Power and the Discipline of History,” 78 Univ. Chicago L. Rev. 377 (2011)
Crootof, “Judicious Indifference: Non-Self-Executing Treaties and the Charming Betsy Canon,” 120
    Yale L.J. 1784 (2011)
Forcese, “Spies without Borders: International Law and Intelligence Collection,” 5 J. Nat’l Sec. Law
    and Policy 179 (2011)
Swaine, “The Political Economy of Youngstown,” 83 S. Cal. L. Rev. 263 (2010)
Hollis, “Unpacking the Compact Clause,” 88 Tex. L. Rev. 741 (2010)
Carter, “Treaties as Law and the Rule of Law: The Judicial Power to Compel Domestic Treat
    Implementation,” 69 Maryland L. Rev. 344 (2010)
Cleveland, “Embedded International Law and the Constitution Abroad,” 110 Col. L.Rev. 225 (2010)
Abebe, “Great Power Politics and the Structure of Foreign Relations Law,” 10 Chi. J. Int’l L. 125
    (2009)
Bellia, “The Federal Common Law of Nations,” 109 Colum. L. Rev. 1 (2009)
Pearlstein, “Form and Function in the National Security Constitution,” 41 Conn. L. Rev. 1549
    (2009)
Goldsmith, “Law for States: International Law, Constitutional Law, Public Law,” 122 Harv. L. Rev.
    1791 (2009)
Hollis, “Political Constraints and the Courts,” 49 Va. JIL 507 (2009)
Knowles, “American Hegemony and the Foreign Affairs Constitution,” 41 Ariz. St. L.J. 87 (2009)
Neumann, “The Extraterritorial Constitution after Boumediene v. Bush,” 82 S.Cal.L.Rev. 259 (2009)
Parry, “Congress, The Supremacy Clause, and the Implementation of Treaties,” 32 Fordham Int’l
    L.J. 1209 (2009)
Bradley, “Medellin: Intent, Presumption, and Non-Self-Executing Treaties,” 102 AJIL 540 (2008)
Pearlstein, “Contemporary Law for the Age-Old Prize Cases,” 53 St. Louis U.L.J. 73 (2008)
Swaine, “Putting Missouri v. Holland on the Map,” 73 Mo. L. Rev. 1007 (2008)
Ahdieh, “Foreign Affairs, International Law, and the New Federalism: Lessons from Coordination,”
    75 Mo. L. Rev. 1187 (2008)
Vázquez, “Treaties as the Law of the Land: The Supremacy Clause and the Judicial Enforcement of
    Treaties,” 122 Harv. L. Rev. 599 (2008)




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