Curtis Bradley: Foreign relations and international law specialist joins Duke
In 1997, Curt Bradley and colleague Jack Goldsmith published
an article in the Harvard Law Review that caused something of an uproar among U.S. international law scholars.
The idea for “Customary International Law: A Critique of the Modern Position” took hold in 1993, before Bradley began his academic career at the University of Colorado. Then associates at Covington & Burling in Washington, D.C., Bradley and Goldsmith commuted weekly to teach international litigation at the University of Virginia, spending their drives discussing prevailing trends in the field. Eventually they concluded that many commonplace assumptions in international law scholarship were simply wrong.
“People took for granted the claim that all of customary international law automatically became part of U.S. federal law, even if it wasn’t included in treaties,” explains Bradley, who will join the Duke Law faculty on July 1, 2005. “If this were true, all state laws would be subject to automatic preemption by the federal courts based on evolving (and often uncertain) customary international law, and presidential and perhaps even congressional actions would also be subject to potential override on this basis. We decided that this common assumption in the literature needed more examination.”
While the Bradley-Goldsmith analysis has been called “revisionist” and “radical” by its detractors, it has garnered increasing academic support and has been frequently cited in journals, arguments before courts, and judicial opinions. It sparked a symposium at Fordham University, and a flurry of scholarship from both sides; in 1998, Harvard Law Review published what Bradley describes as a “vigorous response” from Harold Hongju Koh, now dean of Yale Law School.
Although Bradley and Goldsmith had worked through the implications of their thesis in a variety of international law contexts, Bradley attributes the controversy to its specific implications for international human rights litigation that had proliferated in American courts since the 1980 case of Filartiga v. Pena-Irala. In that case, two Paraguayans used the 200-year-old Alien Tort Statute (ATS) to successfully sue a former Paraguayan police official for torturing and killing a family member in Paraguay. In allowing the claim to go forward in the federal district court in New York–despite the fact that the killing had occurred in a foreign country–the Second Circuit Court of Appeals opened the way for using U.S. courts to adjudicate international human rights claims from around the world.
“A lot of people applauded the [Filartiga decision] as a means of enforcing international human rights norms in U.S. courts,” explains Bradley. “We argued that this sort of litigation needs to be authorized by Congress, not the courts. It should be up to Congress to define what claims are actionable, and to set limitations and standards.” To date, he adds, Congress has not done so, and the Supreme Court, which rejected a foreign national’s claim under the ATS in the June 2004 decision of Sosa v. Alvarez-Machain, left the issue open.
Human rights lawsuits have substantive foreign policy implications, argues Bradley, and U.S. foreign relations should not be left to the courts.
“The problem with these lawsuits is that the decisions about which countries should be ‘targeted,’ the issues litigated, and the appropriate remedies are all being made by private plaintiffs, their lawyers, and judges, who lack the information, expertise, and accountability needed to craft U.S. foreign policy. Congress and the president take into account many other considerations–cooperative arrangements, trade-offs, economic issues–as well as other tools that might be used to encourage human rights reform. It’s not enough to just think about what is in the interest of a sympathetic plaintiff.”
“If litigants can invoke evolving international law as a basis for having the courts scrutinize the way in which Congress and the executive branch manage a war, there is an obvious danger of undermining efforts to protect the country.” Curtis Bradley
“China is an obvious example where the United States has often had to balance its interest in promoting human rights with assessments of what’s likely to work, and with other interests such as trade and security,” Bradley continues. “Congress and the president don’t always make the right decisions, but they are in a better position than the courts to do so.”
This is increasingly true as the United States wages the war on terror, argues Bradley, who took leave from his current position at the University of Virginia School of Law to serve a one-year term as counselor on international law in the Legal Adviser’s Office of the U.S. State Department.
“Litigation designed to obtain official condemnation of foreign government activities may conflict with efforts to obtain the cooperation of other governments in the war on terrorism. Moreover, the litigation may itself become a vehicle for judicial interference with national security decisions. Any time you are involved in a war, government activities raise controversy. Bombing campaigns that inadvertently kill or injure non-combatants, for example, are inherently controversial. Needless to say, the proper treatment of terrorists in the current conflict with al-Qaeda poses many novel and controversial issues. If litigants can invoke evolving international law as a basis for having the courts scrutinize the way in which Congress and the executive branch manage a war, there is an obvious danger of undermining efforts to protect the country.”
Bradley is the co-author of two casebooks, on foreign relations and international law respectively, as well as numerous scholarly articles. He is one of the country’s top authorities on the use of foreign law in U.S. courts, currently a subject of intense debate in the constitutional law area. His view: U.S. courts should be highly circumspect in using foreign law to interpret the individual rights provisions of the Constitution.
“We have over 200 years of legal tradition, practice, and culture in this regard. The fact that other countries may have different attitudes towards social policy, in areas such as capital punishment or freedom of speech, does not tell us much about the meaning of the U.S. Constitution. If you think judges should apply the Constitution, as opposed to make rulings on social policy, then it is difficult to explain why current European attitudes about a particular social issue should affect the meaning of U.S. constitutional rights.”
Bradley calls his experience at the State Department “invaluable” for the insights it has given him into the process of executive branch decision-making concerning U.S. foreign relations.
“I’ve talked about it in class, but now I see it. There are multiple agencies involved, which don’t always have the same perspective. They have to work through their differences and coordinate their positions in making policy towards the rest of the world. The internal checks within the executive branch are often as important, as a practical matter, as the separation of powers between the branches of the federal government.”
The only downside to his year in government, Bradley says, was that he again found himself commuting weekly between Washington and Charlottesville, this time in order to see his family–his two young children and wife, Kathy, whom he met when the two were clerks for the late Supreme Court Justice Byron White during the 1990 term. Bradley says they are all looking forward to the move to Durham and Duke, where Kathy will teach ethics and family law.
“Substantively, Duke is a good fit for me, with its diverse international law program, the Program in Public Law, and LENS. And the people and atmosphere at Duke are great,” says Bradley.
The feeling is mutual.
“This appointment is tremendously exciting for us,” says Professor Christopher Schroeder. “In coming to a faculty that already is blessed to count Jeff Powell, Erwin Chemerinsky, and Scott Silliman among its members, Bradley solidifies Duke’s claim to having the strongest faculty in the country focused on U.S. constitutional issues raised by the war on terror, such as the limits of executive authority, the protection of civil liberties, and the role of international law in our constitutional system.”
Professor Bradley clerked both for Judge David Ebel on the U.S. Court of Appeals for the Tenth Circuit, and for Justice Byron White on the United States Supreme Court–for whom Ebel had clerked 25 years earlier. Bradley is a big advocate of clerkships. “In addition to the hands-on exposure to the judicial process and the personal relationship you develop with your judge, one of the best things about a clerkship is the relationship you develop with the other clerks. Of the 33 or 34 law clerks in the 1990 Supreme Court term, at least 20 are now teaching law around the country. The collaborative relationships you form are very important; my friend and frequent co-author Jack Goldsmith was a clerk the same year. And, of course, I met my wife clerking.”