New Article on Foreign Knowledge of U.S. Foreign Relations Law

I recently posted a new paper on foreign governmental knowledge of U.S. foreign relations law. The paper explains why it’s advantageous for the U.S. government to know whether foreign governments are knowledgeable about this area of U.S. law, and it makes a small step toward the development of such meta-knowledge by offering a case study on Japanese understandings of U.S. foreign relations law. I worked on this piece for four years and am really proud of it. It’s forthcoming in the Yale Journal of International Law. Here’s the 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.

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Certificates of Competency for Nominees to be Chiefs of Mission: 1980 – 2014

In the Foreign Service Act of 1980, Congress mandated the creation of official records by which to assess the qualifications of ambassadorial nominees. Section 304 provides that, upon the nomination of an individual to serve in the office of ambassador, the president shall provide to the Senate Foreign Relations Committee a “report on the demonstrated competence of that nominee to perform the duties of the position in which he or she is to serve.” Commonly known as “certificates of demonstrated competency,” the purpose of these records is to deter unmeritorious appointments and help the Senate evaluate nominees by reference to whether they possess a useful knowledge of the principal language or dialect of the receiving country and “knowledge and understanding of the history, the culture, the economic and political institutions, and the interests of that country and its people.”

In April of 2014, the Obama Administration announced a policy to disclose the certificates to the public for all future nominees. This policy, which is now codified in a federal statute, has since fostered transparency with respect to dozens of recent appointments. But it also left unavailable the certificates for all nominees from 1980 to the date of the Obama Administration’s announcement, so I filed a request under the Freedom of Information Act (FOIA) in April of 2014 to obtain the roughly thirty years of certificates that predate and thus were not covered by the new disclosure regime. I finally acquired these records after a few years of delay and litigation, and now want to make them available to others in case they’re of use for research:

Tranche I

Tranche II

Tranche III

Tranche IV

Tranche V

Tranche VI

Tranche VII

Tranche VIII

Finally, a file containing coding data for all nominees from 1980 to 2019 is available here.

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New Paper on Ambassadorial Appointments

I just posted a new draft on the topic of U.S. ambassadorial appointments. The paper uses documents I obtained from the State Department through requests and litigation under the Freedom of Information Act (FOIA) to develop an account of the past several decades of official practice, identifies a couple developments of concern, and explores potential legal reforms. The paper is forthcoming in the Duke Law Journal; here’s the abstract:

In making appointments to the office of ambassador, U.S. presidents often select political supporters from outside the ranks of the State Department’s professional diplomatic corps. This practice is aberrational among advanced democracies and a source of recurrent controversy in the United States, and yet its merits and significance are substantially opaque: How do political appointees compare with career diplomats in terms of credentials? Are they less effective in office? Do they serve in some countries more than others? Have any patterns evolved over time? Commentators might assume answers to these questions, but actual evidence has been in short supply. In this context, it is difficult for the public to evaluate official practice and hold accountable those who wield power under the Appointments Clause.

This Article helps to correct for the current state of affairs. Using a novel dataset based on a trove of previously unavailable documents that I obtained from the State Department through four years of requests and litigation under the Freedom of Information Act (FOIA), the Article systematically reveals the professional qualifications and campaign contributions of over 1900 ambassadorial nominees spanning the administrations of Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama, along with the first two years of Donald Trump. In doing so, the Article substantially enhances the transparency of the appointments process and exposes developments of concern: not only are political appointees on average much less qualified than their career counterparts under a variety of congressionally approved measures, but also the gap has grown along with the size of their campaign contributions to nominating presidents, resulting in a significant number of questionable appointments to ambassadorships involving major U.S. partners. In short, it appears that campaign contributions may be generating an increasingly deleterious effect on the quality of U.S. diplomatic representation overseas. The Article concludes by exploring potential legal reforms, including Senate rule amendments and statutory measures to regulate qualifications and enhance transparency.

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Ad Hoc Diplomats

I just posted a revised version of a new article on the role of the president and the Senate in the appointment of special envoys and other types of irregular diplomatic agents. The piece will be coming out in the Duke Law Journal; here’s the abstract:

Article II of the Constitution grants the president power to appoint “Ambassadors” and “other public Ministers” with the advice and consent of the Senate. By all accounts, this language requires Senate confirmation for the appointment of resident ambassadors and other diplomats of similar rank and tenure. Yet these are hardly the only agents of U.S. foreign relations. Ad hoc diplomats — individuals chosen exclusively by the president to complete limited and temporary assignments — play a comparably significant role in addressing international crises, negotiating treaties, and otherwise executing foreign policy.

This Article critically examines the appointments process for such irregular agents. An orthodox view holds it permissible for the president to dispatch any ad hoc diplomat without Senate confirmation, but this view does not accord with the original meaning of Article II. Scrutinizing text and an extensive collection of original historical sources, I show that, under a formalist reading of the Constitution, the appointment of most ad hoc diplomats requires the advice and consent of the Senate because these agents are typically “public Ministers” and “Officers of the United States” under the Appointments Clause.

The analysis makes several contributions. First, it provides a thorough account of the original meaning of “public Ministers” — a term that appears several times in the Constitution but lacks precise contours in contemporary scholarship and practice. Second, for formalists, the analysis reorients longstanding debates about the process of treaty-making and empowers the Senate to exert greater influence over a wide variety of presidential initiatives, including communications with North Korea, the renegotiation of trade agreements, the campaign to defeat ISIS, and the stabilization of Ukraine, all of which depend on the work of ad hoc diplomats. At a time of trepidation over the nature of U.S. foreign policy, such influence might operate as a stabilizing force. Third, the analysis illuminates rhetorical and doctrinal maneuvers that have facilitated the rise of the modern presidency, including historical revisionism and the marginalization of international law as an input in constitutional interpretation. These maneuvers complicate the political valence of originalism and cast the Justice Department’s Office of Legal Counsel (OLC) — a key proponent of the orthodox view — as a motivated expositor of the separation of powers.

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The Ethics of Baiting and Switching in Law Review Submissions

The Marquette Law Review hosted a fantastic symposium on the “ethics of scholarship” back in September and will be publishing an issue dedicated to the topic in the coming months. My short contribution addresses the ethics of a practice that appears to occur at times in law review submissions–namely, the practice of strategically over-claiming the importance of a paper to law review editors in order to improve the prospects of a favorable placement, and then walking back the over-claim prior to releasing the paper to the public. Here’s the abstract:

Sometimes the authors of law review articles engage in a bait-and-switch: they insert exaggerated claims of novelty or significance into their submission to student editors and then, after securing a satisfactory offer of publication, moderate those claims in drafts made available to colleagues and the public. By doing so, the authors manage to improve their chances at a desirable placement and avoid unscholarly claims before peers.

This symposium essay suggests that baiting and switching is unethical, and then discusses potential ways to address it.

With the annual submission season upon us, I hope the essay helps to discourage a problematic practice.

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Egocentric Bias in Perceptions of Customary International Law

I just posted a draft of a chapter that I’m contributing to International Law as Behavior (Harlan G. Cohen & Timothy Meyer eds., forthcoming Cambridge University Press), an edited volume that will offer interdisciplinary analyses on a variety of topics in international law. Here’s the abstract for the chapter, which is available on SSRN:

A substantial body of research in social psychology suggests that egocentric biases inhibit our ability to discern norms. This chapter identifies and explains two of those biases – the False Consensus Effect and the False Uniqueness Effect – and then explores their relevance and implications for efforts to identify customary international law (CIL). Among other things, the analysis offers insights on the persistent objector rule, the origins and evolution of CIL, and the merits of rational choice models.

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Trade Negotiations & the Appointments Clause

Below is a short series of posts on the issue of whether it’s consistent with the Appointments Clause for the President to appoint treaty negotiators, such as those who would renegotiate NAFTA, without first obtaining case-specific advice and consent from the Senate. In short, I think that the original meaning of the Appointments Clause probably disfavors such a practice, but one expert on these sorts of issues partially disagrees.

The opening argument.

A response from Prof. Michael Ramsey.

My reply.

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A Closer Look at Congressional Foreign Travel

On Monday, Paul Singer at USA Today reported new data on the burgeoning practice of congressional foreign travel. According to Singer, federal legislators spent more government funds venturing abroad in 2016 than any other year in the past decade. Roughly 40% of the trips cost over $10,000 each. The Senate Armed Services Committee spent more than any other, and the House Intelligence Committee experienced a big jump in expenses under the leadership of Rep. Devin Nunes (R-CA), who issued a directive for Committee members to “spend more time in the field.” These are important developments that suggest both the utility of what I’ve called “legislative diplomacy” and the risk of abuse as members of Congress engage in the practice with greater regularity. We also know, however, that the U.S. Government is not the only source of funding—members of Congress also rely on private sponsors. To name just one example, Rep. Tulsi Gabbard (D-HI) recently accepted sponsorship from a nonprofit organization in making a controversial trip to Syria, where she met with Bashar al-Assad.

Which raises the question: How much do we know about this separate domain of privately funded congressional foreign travel? More specifically, how common are non-governmental sponsorships? Has reliance on private sources become more or less common over time? Which members of Congress have participated? Where did they go? And who paid for it? Continue reading

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A Legal Analysis of Rep. Tulsi Gabbard’s Trip to Syria

Rep. Tulsi Gabbard (D-HI) has drawn attention in recent weeks for leading a delegation to Syria and Lebanon, where she reportedly met with government leaders, refugees, and members of civil society. The stated purposes were to engage in fact-finding and promote an end to the Syrian war, but details about the trip have raised questions about its wisdom and legality. In this post, I’ll elaborate on the relevant legal issues and supplement the news coverage by offering additional context for what’s taken place.

By way of background, Rep. Gabbard’s trip has proven controversial for a number of reasons: She reportedly declined to inform House leadership in advance, met with Bashar al-Assad, toured with officials from a Lebanese political party that actively supports Assad, and received funding from an American organization that counts one of those same officials as its executive director. Moreover, both before and after traveling to Syria, the congresswoman channeled some of Assad’s positions on the war in statements to the public. Two weeks ago, amid mounting scrutiny, she pledged personally to reimburse her sponsor, but critics have continued to denounce the trip and Rep. Gabbard for violating the Logan Act and House ethics rules. As I explain below, the arguments so far have been unpersuasive, but commentators have neglected an important angle of approach. Continue reading

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Finding Customary International Law

I just posted the final, published version of my paper Finding Customary International Law, which came out in the Iowa Law Review last month. It’s available here.

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