Legal Methods II: Transnational Law and Legal Process

The problem of what law applies to any particular situation, and what fora may be available for applying that law, goes well beyond the issues regarding conflicts among the laws of different states and between state and federal law, and the choice between state and federal courts in the United States, which you considered in your first semester courses.

This intensive one-week course provides an introduction to law as it operates across borders. It seeks to expose students to the various ways in which the law of a domestic legal system may interface with the law of other countries, with the law of regional systems such as the European Union and regional human rights systems, and with customary and treaty-based international law. The course begins by considering the problem of extraterritoriality -- the question of how and under what circumstances U.S. law, including U.S. constitutional law, may apply to actions and persons outside the United States. It then moves on to foreign or comparative law - the domestic law of other nations - and the rules for resolving conflicts between the domestic laws of different nations. The course then introduces students to the different forms of international law -- customary international law and treaty law, how international law is formed, and how it is enforced at national, regional, and international levels. The course will conclude by examining the various ways that international law is incorporated into domestic legal systems, including in the United States.
In addition to introducing students to the types of law that operate in the transnational sphere and the doctrines regarding their application, the course seeks to introduce students to the various contexts and institutions in which transnational law is applied, as well as the skills that are required in order to be an effective lawyer operating in these realms. The ultimate goal is to give students an understanding of the process by which national, foreign, regional, and international rules and systems interrelate in a highly globalized and integrated world.

The course progressively applies the doctrines and tools that it addresses to the case study of the domestic, foreign, regional, and international legal issues that arose from the CIA?s former ?enhanced interrogation? and extraordinary rendition program, as well as addressing numerous other problems in transnational law. It will proceed through a combination of classroom lectures, outside speakers, and written group work.

The final project will give the students a scenario that raises a number of transnational law challenges. They will be asked to write a legal opinion for a government official regarding compliance obligations and litigation and other injury exposure. They will be asked to think about the complexity of compliance incentives in this space that exist ex ante, not simply a strategy for judicial enforcement after a claim has arisen.

Students will be expected to attend all classroom sessions and participate actively in the group work. Students will be evaluated (pass/fail) based on the group writing projects, class participation, and attendance. Final writing projects must be submitted to Professor Cleveland by email no later than 9 p.m. on Friday, Jan. 18.