U.S. Foreign Relations Law from the Outside In

74 Pages Posted: 29 Mar 2021 Last revised: 2 Mar 2022

See all articles by Ryan Scoville

Ryan Scoville

Marquette University - Law School

Date Written: March 28, 2021

Abstract

Arguments in the field of U.S. foreign relations law typically proceed from the inside out: legal actors focus on internal (domestic) sources of authority to reach conclusions with significant external (international) implications. The text and structure of the Constitution, case law, legislative intent, assessments of institutional competency, and historical practice thus dominate debates about treaty-making, war powers, diplomatic authorities, and related matters. This tendency reflects generic assumptions about the proper modalities of legal analysis and helps to ensure that the law reflects national values.

Yet inside-out arguments overlook a critical fact: the practical merits of U.S. foreign relations law often depend on whether and how this law is understood abroad. In other words, the nature and extent of foreign governmental knowledge of U.S. foreign relations law significantly affect the law’s ability to advance U.S. national interests, but there is neither theoretical nor empirical scholarship on the stakes or condition of such knowledge. Nor are there official U.S. policies to ascertain or account for this form of foreign knowledge. In these circumstances, American legal actors cannot fully apprehend whether the law is well designed and applied to achieve its purposes.

This Article elaborates on these issues to develop an “outside in” approach to U.S. foreign relations law. The Article begins by explaining the value of meta-knowledge—domestic knowledge of foreign knowledge of U.S. foreign relations law. The Article then uses original empirical research to generate meta-knowledge. That research includes an immersive case study on Japan, where I collected academic publications, searched newspaper archives, obtained government records under Japan’s freedom-of-information act, and interviewed dozens of scholars and government officials to triangulate Japanese understandings of U.S. foreign relations law. The Article concludes by laying out an agenda to cultivate additional meta-knowledge, reevaluate the law’s practical merits in light of epistemic conditions, and optimize foreign sophistication through legal and policy reforms.

Keywords: Foreign Relations Law, Comparative Law, Comparative Foreign Relations Law, U.S.-Japan Relations, War Powers Resolution, Alien Tort Statute, Trade Promotion Authority

JEL Classification: K33, K39

Suggested Citation

Scoville, Ryan M., U.S. Foreign Relations Law from the Outside In (March 28, 2021). Yale Journal of International Law, Vol. 47, 2022, Marquette Law School Legal Studies Paper No. 21-04 , Available at SSRN: https://ssrn.com/abstract=3814465

Ryan M. Scoville (Contact Author)

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
720-993-0197 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
87
Abstract Views
650
rank
387,019
PlumX Metrics