Bradley appointed to work on foreign relations law Restatement

November 1, 2012Duke Law News

Prof. Curtis Bradley

Professor Curtis Bradley has been named one of eight reporters for the American Law Institute’s Restatement (Fourth) of Foreign Relations Law of the United States, a major reference work used by lawyers, scholars, and judges in assessing the state of foreign relations law and international law in the United States.

The multi-year undertaking will involve building consensus among leading experts and practitioners on major foreign relations law issues, and a painstaking writing and review process, said Bradley, the William Van Alstyne Professor of Law and Professor of Public Policy Studies, and a leading authority on U.S. foreign relations law.

“Since the Third Restatement was published more than 25 years ago, rulings by international and domestic courts and state practice by the Executive branch have significantly reshaped the law," said Professor Laurence Helfer, co-director of Duke's Center for International and Comparative Law. "The scholars who prepare the Fourth Restatement will perform the vitally important task of synthesizing these developments.  I can think of no one better suited for this task than Curt Bradley”

Bradley will collaborate with Professor Edward Swaine from the George Washington University School of Law and Professor Sarah Cleveland from Columbia Law School on the treaties section of the Restatement.

“I’ve worked with Ed and Sarah and with all of the other people assigned as reporters in various capacities before, and I think it’s a group that will be able to generate consensus, even in some of the more contentious areas,” said Bradley. “It’s a very strong and thoughtful group of scholars, and they all have personalities that will allow them to find common ground and work well together collaboratively.”

The group aims to avoid some of the controversy that dogged the third Restatement, completed in 1987, he added. 

“A lot of scholarship, including my own, has raised questions about whether certain aspects of the 1987 Restatement really represented the state of the law,” he said. “As its title suggests, the Restatement is supposed to restate the law, but some aspects of the third Restatement arguably were more reflective of what its authors hoped the law would become.  Of course, there are many aspects of the third Restatement that I agree with.” Foreign relations law also has changed substantially over the 25 years since the last Restatement, Bradley said.

“The 1987 restatement, as valuable as it was, has really been overtaken by a lot of subsequent events. Among other things, the Supreme Court has been significantly focused on foreign relations law and international law in recent years, so a lot of topics in this treatment need, at least, updating.

“There has also been a massive outpouring of scholarship in the area since I began teaching in the mid-90s. That will have to be factored into our work, as well.”

The reporters’ work will involve drafting portions of the Restatement, and lengthy review by a committee of advisers, as well as soliciting comments from experts at conferences and other gatherings, Bradley said.

“We’ll seek a lot of input from professors and both private and government lawyers, including from lawyers in the State Department,” he said. Bradley, who served as Counselor on International law in the Legal Adviser's Office of the U.S. State Department in 2004, noted that a number of the other reporters appointed to the Restatement also have State Department experience. “I think that’s helpful, because it helps us understand how these issues actually play out in practice and how the government of the United States interacts with these issues,” he said.