Paul B. Stephan (University of Virginia School of Law) and Sarah H. Cleveland (Columbia Law School), coordinating reporters of the Restatement (Fourth) of the Foreign Relations Law of the United States, are to be commended. In addition to leading the daunting task of developing the first (but hopefully not last) installment of the Restatement Fourth, they have produced a valuable companion contribution. Their edited volume, The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law, offers twenty-five essays by even more authors on a range of important topics, from the status of customary international law (CIL) in the U.S. legal system,Footnote ¹ to international comityFootnote ² and the immunities of international organizations,Footnote ³ to the capacity of the Restatement to produce legal stability.Footnote ⁴

The book is best approached topically. As the title suggests, the book's coverage is broad, addressing issues related to both the Restatement and the larger past, present, and future of U.S. foreign relations law. Approached cover to cover, the volume reads something like a scatterplot with the Restatement as the trendline. Some essays focus closely on the Restatement Fourth but diverge as to whether they address the enterprise of formulating the Restatement or positions the Restatement has taken, or might take, on substantive questions. Other essays address foreign relations law topics without drawing a close connection to the Restatement. As to these chapters, the Restatement Fourth provided the moment, but not the organizing principle, for a discussion of foreign relations law questions. As a result, the volume provides wide-ranging content that will benefit both those interested in the Restatement enterprise and those interested in specific questions of foreign relations law.

Another reason the volume is best consulted topically is that its coverage, while broad, is not comprehensive. The book jacket asserts that the essays in the volume “provide a comprehensive survey of the most significant issues in contemporary U.S. foreign relations law.” That would be a tall order for any book, let alone a collection of essays from disparate authors. While The Restatement and Beyond canvasses a range of significant topics, others receive little attention. The section on treaties, for example, covers treaty termination,Footnote ⁵ statutory implementation of treaties,Footnote ⁶ the reasons U.S. presidents continue to pursue Article II treaties,Footnote ⁷ and the shift in foreign relations law away from international law and toward administrative law that might be highlighted in a subsequent iteration of the Restatement addressing non-treaty international agreements.Footnote ⁸ Yet one of the most significant changes in the Restatement Fourth is its coverage of treaty self-execution in light of the Supreme Court's decision in Medellín v. Texas.Footnote ⁹ While the Restatement Fourth asserts that its “approach . . . is generally consistent with the approach of the Restatement Third,”Footnote ¹⁰ the Restatement Fourth's treatment of self-execution is far more extensive and touches on live questions such as whether there is a presumption against self-execution and the legality and effect of declarations of self-execution.Footnote ¹¹ If one looks beyond matters the Restatement Fourth does address to issues reserved for another day, additional live issues that receive little attention appear, such as the fungibility of Article II treaties and executive agreements and the increasing use of political commitments.

Again, however, the volume's lack of comprehensiveness does not undermine its value; it simply affects its use. The volume is likely to be most valuable when consulted on particular topics rather than as a comprehensive whole. Stephan and Cleveland's helpful introduction, which summarizes each chapter, as well as the volume's index, will guide readers to those portions that are most relevant to their needs and interests.

While the volume is best consulted for specific chapters, there is value in reading the book from cover to cover. As a whole, the volume provides an opportunity to reflect on the recent history of U.S. foreign relations law and gives the firm impression that the pendulum has swung. U.S. foreign relations law has departed from the orthodoxy of the Restatement Third. In particular, the role of the courts has shifted.

The Restatement Third manifested an orthodoxy in both substance and approach. Substantively it embraced a foreign affairs exceptionalism that distinguished between the federal government's foreign and domestic powers, placed international agreements entered into without congressional oversight on par with Article II treaties, excluded states from foreign affairs including by endorsing proactive judicial preemption of state law, treated CIL as federal law, and embraced the extraterritorial reach of constitutional rights.Footnote ¹² In the first essay of The Restatement and Beyond, G. Edward White (University of Virginia School of Law) documents how the judiciary has repudiated that orthodoxy in significant part, though its replacement as yet remains unclear.Footnote ¹³

Key tenets of the Restatement Third likewise felt like orthodoxy in terms of approach. That is, the Restatement advanced positions to be accepted by the executive and courts even if the foundations of those positions were murky or contestable.Footnote ¹⁴ The assertion that “[c]ustomary international law is considered to be like common law in the United States, but it is federal law” is perhaps the most prominent example.Footnote ¹⁵ The Restatement Fourth and the essays it generated in The Restatement and Beyond together demonstrate both substantive heterodoxy and an approach marked by searching scholarly analysis. Indeed, the heterodoxy that exists among foreign relations law scholars is one of the reasons the Restatement Fourth is only “a partial revision” focusing on three topics: Article II treaties, sovereign immunity, and jurisdiction.Footnote ¹⁶ It is also one of the reasons the Restatement Fourth takes a more constrained approach in identifying principles of U.S. foreign relations law. Further, in The Restatement and Beyond, scholars and practitioners address nuanced questions of foreign relations law through detailed analyses meant to persuade. For example, Professors Anthony J. Bellia (Notre Dame Law School) and Bradford R. Clark (George Washington University Law School) take issue with the conventional understanding of the Charming Betsy canon: that courts should interpret federal legislation to avoid conflict with international law. Citing the original understanding of the canon as a principle of constitutional avoidance, they argue for a narrower construction and provide specific language for the Restatement Fourth to consider adopting. Professors Hannah L. Buxbaum (Indiana University, Maurer School of Law) and Ralf Michaels (Max Planck Institute for Comparative and International Private Law, Queen Mary University of London, University of Hamburg) cite precedent and functional considerations to defend the reasonableness analysis that the Restatement Third endorsed but the Restatement Fourth abandoned in determining the extraterritorial reach of federal laws. John B. Bellinger III and Stephen K. Wirth (both of Arnold & Porter) review the history and current practice surrounding foreign official immunity and provide principles to guide the Restatement Fourth if and when it addresses the topic. As these and other essays demonstrate, contemporary foreign relations law looks less like a field of grand pronouncements and more one of expert craftsmanship.Footnote ¹⁷

The shift away from the Restatement Third's orthodoxy is undoubtedly the result of many factors. One may be the Restatement Third itself. A key question in approaching a new Restatement is whether to restate the law or seek to develop it. The Restatement Third illustrates the risks of taking the latter approach. A developmental approach can give the impression of rule by fiat or rule by experts rather than by law, motivating pushback. Such an approach can also create an easy target for those who oppose the principles adopted. The resulting attacks on those principles can damage not only the Restatement's credibility but the prospects of future Restatements. Reaching consensus, for Restatement purposes, can be a challenge in the best of circumstances. When it comes to U.S. foreign relations law, the inputs from constitutional and international law, precedent, history, and functional considerations can all be understood differently. The difficulty of reaching consensus increases as the stakes rise.Footnote ¹⁸ And the stakes rise when the Restatement does not simply clarify and explain but becomes a vehicle for attempting to influence the future direction of the law.

The same dynamic occurs in the judiciary. When the courts’ ability and willingness to influence the law's development waxes, the prospects for consensus on judicial nominees wanes. While we do not hear calls to pack the American Law Institute, the number of reporters engaged on the three issues covered by the Restatement Fourth—two coordinating reporters and two reporters for each issue—is telling. The Restatement Third's ambitiousness in seeking to develop the law on key questions both reduced the prospects of a fourth Restatement and yielded a more conservative approach this time around.

Since the Restatement Third, the role of the judiciary in foreign affairs has also changed considerably. In many ways, the Restatement Third and the Supreme Court cases on which it relied set the judiciary up to play a prominent role in foreign relations.Footnote ¹⁹ For instance, according to the Restatement Third, cases arising under CIL qualified for federal question jurisdiction and CIL trumped state law.Footnote ²⁰ Similarly, pursuant to the Supreme Court's opinion in Zschernig v. Miller, courts could preempt state law bearing on foreign affairs even in the absence of federal legislative or executive action or federal opposition to the law, and even if the law addressed an area of traditional state regulation.Footnote ²¹

Consistent with the Restatement Third, the judiciary has been active in foreign relations law since 1987. The number and significance of foreign relations law cases decided by the Supreme Court since that time have been impressive. Consider, for example, Medellín. v. Texas,Footnote ²² expanding treaty non-self-execution and limiting presidential power to execute treaties; Sosa v. Alvarez-Machain,Footnote ²³ Kiobel v. Royal Dutch Petroleum Co.,Footnote ²⁴ Jesner v. Arab Bank,Footnote ²⁵ and Nestlè USA, Inc. v. Doe,Footnote ²⁶ cutting back on international human rights litigation under the Alien Tort Statute and arguably undermining the claim that CIL is federal common law; Barclays Bank PLC v. Franchise Tax Board of California Footnote ²⁷ and American Insurance Association v. Garamendi,Footnote ²⁸ restricting dormant preemption of state law touching on foreign affairs;Footnote ²⁹ Bond v. United States,Footnote ³⁰ avoiding preemption of state law by invoking a federalism canon of statutory interpretation; United States v. Verdugo-Urquidez Footnote ³¹ and Boumediene v. Bush,Footnote ³² limiting the extraterritorial reach of constitutional rights; Morrison v. National Australia Bank Ltd.,Footnote ³³ enshrining the presumption against the extraterritorial reach of federal statutes; Rasul v. Bush Footnote ³⁴ and Hamdan v. Rumsfeld,Footnote ³⁵ extending statutory habeas to Guantánamo detainees and invalidating military commissions established by the executive in the war on terror; Zivotofsky v. Clinton,Footnote ³⁶ rejecting application of the political question doctrine in a congressional-executive foreign relations dispute; Zivotofsky v. Kerry,Footnote ³⁷ finding that the recognition power is exclusively presidential while pushing back on dicta supporting broad presidential power in foreign affairs; W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp.,Footnote ³⁸ limiting the act of state doctrine to cases in which a court must decide the legality of the act of a recognized foreign state taken within its own territory; Samantar v. Yousuf,Footnote ³⁹ concluding that the Foreign Sovereign Immunities Act does not govern foreign official immunity; and Daimler AG v. Bauman,Footnote ⁴⁰ curtailing the extraterritorial personal jurisdiction of U.S. courts. As these prominent decisions illustrate, the judiciary has been active in foreign relations law since the Restatement Third.

Yet, in tension with the Restatement Third, the judiciary has not asserted a prominent role for itself in foreign affairs. True, the Supreme Court has arguably narrowed the political question doctrine,Footnote ⁴¹ reduced the scope of the act of state doctrine, and given less deference to the executive in the war on terror than might have been expected. Yet, through the decisions cited above, the Supreme Court has also decreased the likelihood that treaties will be immediately enforceable and the prospect that human rights claims based on CIL will succeed. By restricting the extraterritorial reach of federal statutes and constitutional rights, the Court has reduced the situations in which claims based on U.S. law may be brought. Limits on the extraterritorial reach of personal jurisdiction have similarly reduced the foreign defendants who may be hailed into U.S. courts. And, in restricting dormant preemption, the Court has assumed a reduced role in preempting state law absent action by the political branches. In short, the courts have been active in foreign relations law, but have not assumed an active role in foreign affairs.

The courts’ relationship to international law has also departed from what the Restatement Third endorsed. The Restatement Third closely linked international law and foreign relations law. Thus, for example, the Restatement Third's strong presumption that a treaty is self-executing if neither the president requests nor Congress enacts implementing legislation was motivated in significant part by the fact that international law obligates the United States to comply with treaty commitments.Footnote ⁴² In Medellín, by contrast, the Supreme Court acknowledged that the United States was unquestionably bound by treaty to comply with the International Court of Justice (ICJ) judgment at issue, but asserted that the existence of an international obligation does not determine whether such an obligation is self-executing.Footnote ⁴³ In this and other decisions, the Supreme Court has clearly reduced the opportunity for sources of international law to serve as rules of decision in federal courts.

Just as the Restatement Third's assertiveness may have undermined its orthodoxy, the growth of international law may be somewhat responsible for this result. U.S. judges are far more familiar with domestic law than international law.Footnote ⁴⁴ As international law expands to address matters historically governed through domestic lawmaking, U.S. judges may encounter international law more frequently, but they are unlikely to turn to international law as readily or as confidently as to domestic law. They might be open to international sources or influences on obscure, specialized, or extraterritorial issues in areas such as maritime law, but they are unlikely to be so receptive when it comes to more run-of-the-mill issues, especially when the international law at issue is customary rather than treaty-based. As a result, international law's success in expanding to increasing corners of law may have contributed to the reluctance of U.S. courts to link international law and foreign relations law as closely as did the Restatement Third.

International law appears to have led to a reduced judicial role in another way as well. One of the bedrock principles of international law is sovereignty. Sovereignty has played a mixed and evolving role in U.S. foreign relations law. In Curtiss-Wright, the Court cited U.S. sovereignty as the source of extraconstitutional federal, and particularly presidential, power over foreign affairs.Footnote ⁴⁵ The Court has since pushed back on extraconstitutional notions of presidential power.Footnote ⁴⁶ The sovereignty of other nations has also influenced the judiciary. The Supreme Court generally invokes the concern for other states’ sovereignty through a separation of powers or federalism lens in which the Court leaves to the federal political branches the decision whether to infringe on that sovereignty, or otherwise provoke another sovereign. During the Cold War, concern for state interference with sovereignty led the Court to adopt a broad role for the judiciary in policing state action touching on foreign affairs.Footnote ⁴⁷ More recently, however, consideration of other nations’ sovereignty has led to a more restrictive judicial role. In the Alien Tort Statute cases, for example, concern for other nations’ sovereignty led the Court to counsel caution in the judicial recognition of federal causes of action based on CIL.Footnote ⁴⁸ Similarly, in the personal jurisdiction context, respect for and avoidance of tension with other sovereigns has contributed to a restrictive view of general jurisdiction.Footnote ⁴⁹ The influence of this particular principle of international law has trended toward lesser judicial involvement in foreign affairs, in tension with the Restatement Third.

In short, much has changed in U.S. foreign relations law since the adoption of the Restatement Third. Foreign relations law has pivoted away from the orthodoxy of the Restatement Third, and the judiciary, though active in deciding foreign relations law cases, has declined to adopt an active role in foreign affairs. The Restatement and Beyond both documents and evidences these changes. The volume likewise provides insights into the future of the Restatement and foreign relations law. The volume thus stands as a worthy companion to the already valuable Restatement Fourth.