Saturday, April 11, 2009

harold koh

I graduated from Yale Law School in 1981, right about the time that one generation of greats (Black, Emerson, Gilmore) was at or near retirement and the following generation (Akhil Amar, Stephen Carter, etc.) had yet to arrive. The two most emotionally attractive teachers, Arthur Leff and Bob Cover, both died before their time. Perhaps for this reason, I have always been a rather indifferent almunus, contributing little or nothing financially and attending exactly one reunion in twenty-seven years: all that I remember is the professors were fifteen years older and Macarena was on the charts.

Still, it's exciting to see Yale people do well, and fun--in a slightly wicked way--to see them become topics of controversy, as they inevitably do. (Think Arlen Specter, Clarence Thomas, and anyone named "Bush" or "Clinton.") The latest exemplar is the soon-to-be outgoing Dean, Harold Koh, who has been appointed Legal Advisor to the State Department but come under fire, from Republicans and others, for allegedly favoring the substitution of foreign for U.S. law in American courts.

There are two parts to the criticism, one somewhat trivial, the other potentially more serious. The trivial part is that Koh had some nice things to say about Sharia/Islamic Law at some point in his career. This seems pretty clearly out of context, and not much different from what others (including myself) have said at times, and I think it can be pretty safely be dismissed.

The more serious allegation is that Koh, as a matter of legal philosophy, is something of a "globalist" as opposed to a "unilateralist:" more specifically, that he favors giving a role to foreign law in U.S. courts, at least where there is no contrary American precedent. There is indeed a serious debate on the use of foreign law in American courts--my colleague, Beth Stephens, is among the leading advocates--and (as always) there are serious arguments on both sides. For example, many scholars fear that reliance on foreign law will undermine the independence of the U.S. legal system and result in the subtle or not-so-subtle imposition of an essentially European, left-leaning view with respect to many issues (the death penalty, the use of military force, perhaps even social welfare policy) on which the two continents differ. There are also more practical concerns, such as the role of the International Criminal Court, and the fear that American officials may be hauled before foreign tribunals for alleged human rights violations.

These are legitimate issues, but they ought to be taken in context. No one, at least no one in the legal mainstream, believes that the U.S. should surrender sovereignty to international bodies in the manner of the European Union, or (looking back historically) the way the American States did to the Federal Government after 1865. What is being talked about is the use of international norms as persuasive evidence in American courts, the way that (say) developments in more liberal States are sometimes found persuasive in other parts of the country, or the opinions of liberal (or conservative) commentators are used to influence decisions on uncertain issues. Once again, it is possible to take a positive or not-so-positive view of this development: but the hysteria seems to me somewhat exaggerated, and Koh's will in any event be only one of many Administration voices on the issue.

I wanted to add a personal note. A couple of years ago I sent an e-mail that was critical of the Law School's liberalism and suggested I might contribute even less money if it were not better balanced in the future. Koh called me--a small contributor with little if any influence--at home, and discussed the issue for an extended period. I don't remember if I sent any more money afterward. But he struck me as someone with an open mind and an interest in ideas, which is in the long run more important than his views on any particular issue. Even, or perhaps especially, at the State Department.


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