Stephan’s New Book Puts Restatement Effort Into Context

A new book co-edited by Professor Paul Stephan ’77 of the University of Virginia School of Law puts into scholarly context the massive foreign relations law project he recently helped lead.

“The Restatement and Beyond: The Past, Present, and Future of Foreign Relations Law,” a collection Stephan edited with Sarah H. Cleveland of Columbia Law School, provides analysis, context and criticism of the American Law Institute’s “The Restatement (Fourth) of U.S Foreign Relations Law,” and is published by Oxford University Press.

The Oxford book reviews “the historical development of the law of foreign relations from the beginning of the twentieth century to issues currently unfolding in U.S. courts, and discusses its future,” according to the publisher.

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 ALI, which publishes the reference text. Stephan and Cleveland served as lead reporters for the restatement, completed in the fall of 2018. The effort took six years.

Stephan said the book contextualizes the ALI work by reflecting how other prominent scholars in the field view the work.

“We wanted to give the restatement greater resilience by putting it within its historical context, ventilating what may be problematic about the choices made, and taking up issues that we hope to address in a later iteration of the Fourth Restatement,” Stephan said.

Stephan is an expert on international business, international dispute resolution and comparative law. In addition to editing the book and co-authoring the introduction, he penned the chapter “The Waning of the Federal Common Law of Foreign Relations.” In it, he argues that the Third Restatement, from 1987, reflects an outdated worldview: that U.S. foreign relations law resides largely in the “one voice” of the federal judiciary.

That view “ignores the capacity of the States to promote encounters with foreign actors and the tendency of the federal courts toward entropy, rather than coherence,” he writes.

While primarily aimed at scholars, the book offers timely discussion of international law issues that may be of broader interest. For example, Harold Hongju Koh, a Yale University law professor and former State Department legal adviser, considers whether the president could unilaterally terminate all international agreements.

UVA Law professors G. Edward White, a legal historian; John C. Harrison and Ashley Deeks, former State Department legal advisers; and George Rutherglen, an expert in admiralty law, contributed a chapter each to the book.

“We chose the contributors based on three considerations: the reporters, people who participated in the process as advisers and other people who have important perspectives on our work, especially those who were critical of it,” Stephan said. “The authors were invited to do what he or she wished. Most of our European colleagues were largely overcommitted and unable to take part, but the European Journal of International Law is publishing a separate issue on European perspectives on the Fourth Restatement.”

Stephan said the book puts both a period — and an ellipsis — on the undertaking.

“The ALI leadership has indicated a willingness to address the topics that we left out in this iteration but need restating, especially nontreaty international agreements, customary international law in the U.S. legal system, and immunities other than state immunity addressed by international law,” he said.

Stephan is currently on leave from the Law School for a year, serving as special counsel to the general counsel of the U.S. Department of Defense. He is the John C. Jeffries, Jr., Distinguished Professor of Law.