Symposium: The Restatement (Fourth)

• Stephan, Paul 1

Abstract

This article describes the creation and development of the Restatement of the Law (Fourth): The Foreign Relations Law of the United States from the perspective of its coordinating reporter. The article first describes how the American Law Institute goes about creating restatements of the law, emphasizing aspects of the process that a European audience might find unfamiliar. It looks at aspects of the US legal system, especially the significant role of the judiciary as authors of law, and explains how this role shapes a document that has US judges as one of its significant audiences. It then discusses how conflict over the content of foreign relations law and the role of international law in US domestic law affects the Restatement and how the reporters seek to navigate these troubled waters. Finally, it explores the areas where the new Restatement (Fourth) parts company with its famous predecessor, the Restatement (Third), supervised by the late professor Louis Henkin. The article argues that the changes represent two things: a transformation of the world of foreign relations in the 35 years since the earlier work and a corresponding move towards modesty on the part of the professors who made this Restatement.

• 1John C. Jeffries Jr. Distinguished Professor of Law and David H. Ibbeken ’71 Research Professor of Law, University of Virginia, Charlottesville, USA