Team Co-Led by Professor Paul Stephan Completes Foreign Relations Law Restatement

University of Virginia School of Law professor Paul Stephan ’77 will see six years of work as a coordinating reporter for the American Law Institute come to fruition in September. That’s when ALI will publish its fourth restatement of foreign relations law. Stephan was a leader in the effort to compile the tome.

Restatements are authoritative and influential reference books on judicial decision-making and legal practice. While not carrying the same weight as statutes and legal precedents, restatements often inform judicial decisions and are compiled by prominent legal scholars working under the auspices of the ALI.

“The Restatement (Fourth) of the Foreign Relations Law of the United States” will address jurisdiction, the domestic effect of treaties and sovereign immunity, among other topics.

The scholarship is partly intended to inform judges about the international repercussions of past decisions and partly to educate foreign policymakers and academics about the specifics of the U.S. legal system, Stephan said.

“The focus is more on process than particular substantive outcomes,” he said. “We look at topics such as institutional capacity, in part so observers can tell the difference between the job of a particular actor — such as the judiciary — and the considered policy of the United States with respect to the rest of the world.”

The next Sokol Colloquium at the Law School, to be held Jan. 11-12, will focus on the fourth restatement, and will include advisers to the project and leading specialists in foreign relations law.

Stephan is an expert on international business, international dispute resolution and comparative law, with an emphasis on Soviet and post-Soviet legal systems. In addition to writing prolifically in these fields, he has advised governments and international organizations; taken part in cases before the U.S. Supreme Court, the lower federal courts, and various foreign judicial and arbitral proceedings; and lectured to professionals and scholarly groups around the world on issues raised by the globalization of the world economy.

From 2006-07, he served as counselor on international law at the U.S. State Department. Stephan’s casebook on international business is used at law schools both in the United States and abroad. He is the John C. Jeffries, Jr., Distinguished Professor of Law and the John V. Ray Research Professor of Law at UVA.

Stephan shared coordinating reporter duties with Sarah Cleveland of Columbia Law School and worked with six additional reporters. All of the reporters were accomplished academics with diverse viewpoints and knowledge of languages such as Russian, Chinese, French and German.

“Most of my professional life I have gone solo, except for a few occasions working with a single co-author, and when in government I did not produce documents for public consumption that carried my name,” he said. “Organizing a group to get a serious academic and professional work out on time was like nothing I ever had done before.”

The third restatement was published in 1987, and Stephan said much has changed in the field of international law: “There is a lot more law.”

For example, since the fourth restatement project was launched in 2012, the U.S. Supreme Court heard a few cases each term that impacted “the black letter” of the restatement — doctrines that have become clear. The role of reporters has also changed, he said.

“Thirty years ago, the reporters were able to see international law as a single field, more or less homogenous, about which they could make authoritative statements across many different subject areas,” Stephan explained. “They had a distinct focus, looking to the federal courts to invoke international law to protect individual rights and to reform the law to advance international cooperation. Facts on the ground today force the reporters to be a bit more modest. The problems addressed by international law have grown in number, complexity and importance.”

Additionally, he said, Congress and the courts have waded into these issues more often and more significantly than in decades past.

“One way that this affected our work is that we make perhaps fewer claims about the requirements of international law, and do more to describe how countries cooperate in areas of mutual interest without making cooperation compulsory,” Stephan said. “Comity instead of obligation.”

In his introduction to the fourth restatement, ALI Director Richard Revesz said that he intends to recommend to the ALI that the team continue its work.

“So I hope to be working in this way and on these topics for some years to come,” Stephan said.