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					               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 cohort
of professors,
students,
and like-
minded
scholars
elsewhere,
many in
attendance
here 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 School
McDougal   Lasswell                Borchard




                      Schachter   Rostow      Brewster
       Some Contemporary Members
         of the New Haven School
Falk     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 Transnationalism
3.   Commitment to Process
4.   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 Process
     Transnational Legal Substance
     Transnational Legal Substance

Transnational Legal Substance
   o Law That Transcends Old Dichotomies:
       o Between International/Domestic Law
       o 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‖
                 Public
                 Law


Domestic                      International
Law                           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
                                       Public Law
U.S. Foreign Relations                                      International Criminal
         Law                                                         Law

                                 TRANSNATIONAL LAW
                                    •HYBRID LAW

                             •LAW THAT CROSSES BOUNDARIES
Domestic                                                             International
Law                                                                  Law
                     •LAW THAT TRANSCENDS OLD DICHOTOMIES
                          (E.G. BETWEEN PUBLIC/PRIVATE
                         AND DOMESTIC/INTERNATIONAL)


 Property and Intellectual                                     Lex Mercatoria
      Property Law
                                       Private Law
             Transnational Law:
          An Operational Definition
Law that is
  o ―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 Rights
   o Humanitarian Law (Jink)
   o Immigration and Refugee Law
   o Foreign Relations and National Security Law
   o 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 Globalization
o 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 Freedom
o Globalization of Terror
o 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

				
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