In this column, one of the authors of another leading U.S. international law casebook takes up my offer to describe what they are trying to achieve in their text, the fifth edition of Barry E. Carter, Phillip R. Trimble, and Allen S. Weiner’s International Law (Aspen 2007). Carter’s response provides a counter-point to that by Dunoff, Ratner, and Wippman in a prior column (see http://www.asil.org/aboutasil/president.html). This response reminds us that while U.S. law teaching is associated with the “Socratic” method, activist teaching need not rely on teaching materials built around problems instead of black letter doctrine. Following my lead in my original column (see http://www.asil.org/ilpost/president/pres070209.html), Carter and Weiner have also provided syllabi and prior exams.

The effort by ASIL President José E. Alvarez to stimulate discussion about the teaching of public international law is commendable. Many of us teach an introductory course in the field and the course is a vital stepping stone to other courses in international law—both public and private. The new fifth edition of Barry E. Carter, Phillip R. Trimble, and Allen S. Weiner, International Law (Aspen: 2007), continues the approach of past editions by introducing students to basic international concepts and principles, hopefully in a fascinating and challenging way that sharpens their interest to pursue further studies and activities in international law.

We believe that the course materials should include or at least refer to important historical sources, but that every effort should be made to address recent events and new legal developments, including the relationship between international and domestic law and the increasingly blurred line between public and private law. The materials should include a balanced combination of excerpts of relevant cases, books, and articles, plus notes, questions, short problems, and other interdisciplinary materials representing a variety of perspectives and disciplines.

Consistent with our belief that it is essential to have up-to-date materials for learning and for maintaining the students’ interest, we continue to publish new editions of our casebook every three or four years. Incidentally, by publishing a new edition this year, we are able to include groundbreaking recent decisions by the U.S. Supreme Court and international tribunals. For example, we agree with an earlier column by José Alvarez that Hamdan v. Rumsfeld (2006) provides the basis for much class discussion, and accordingly have included a long excerpt followed by many Notes and Questions.

It also is very important to have available in a single and readily accessible format the key provisions of major treaties, U.N. resolutions, statutes, and other materials. This allows a professor to assign or encourage students to read the basic documentary materials—e.g., Chapter VII of the U.N. Charter and key articles of the Vienna Convention on the Law of Treaties. It also facilitates comparisons, such as between the provisions of the Alien Tort Statute and the Torture Victim Protection Act. We accomplish this through Carter, International Law: Selected Documents (Aspen: 2007-2008 edition), which is organized along the lines of our casebook, but can also be used separately.

I find that our International Law casebook definitely differs from the Dunoff, Ratner & Wippman book discussed in previous columns. Our book structures the materials around basic concepts and legal principles, rather than around individual Problems. Although many of our Notes and Questions address process, which is important, our book emphasizes substance. This organization gives instructors the discretion to decide whether to use a substantive or problem-oriented approach in teaching, and provides them with the freedom to decide which problems, if any, to focus on. As indicated by comparing my illustrative syllabus and the syllabus that Allen Weiner suggests for the new edition, one can see some of the possible approaches. Also provided are some of his and my past examinations, see here and here.

Our book’s initial chapter does contain considerable material on the history of international law and various perspectives on theory and methodology. Also, to indicate how international law has had an impact on major recent events, we provide an optional, substantial case study on the U.S. and international response to the attacks of September 11, 2001. After that, though, we organize the book by chapters on the creation of international legal norms (through treaties, customary international law, etc.), the role of international law in the U.S. legal system, international dispute resolution, states and other international entities, and jurisdictional issues. We then address these basic legal concepts and principles in the context of specific subject matter areas of the law—human rights, law of the sea, the environment, use of force, and international criminal law. Each chapter has many Notes and Questions, including short problems, that follow the various sections on specific principles.

We believe this organization provides an ideal structural framework for students to absorb and understand the extensive and complex material that will be taught in an introductory international law course. The organization also provides considerable flexibility to the individual teacher who can readily move back and forth in chapters depending on the order that the teacher would like to address specific principles and broader issues. We also believe that this organization puts the correct emphasis on the substantive concepts and principles.

We recognize the possible problem raised by the French critics cited by José Alvarez—i.e., that a U.S. course might either conflate international law with U.S. foreign relations law or might examine international law solely from an American point of view. To be sure, our casebook is designed to educate American law students, and so it consequently often considers not only international law, but also how the domestic U.S. legal system and international law interact. However, we try to keep the distinctions clear and to offer different perspectives by considering the sources of international law in a separate chapter (Chapter 2) from Chapter 3’s material on the role of international law in the United States. Indeed, as indicated in the attached syllabi, the introductory international law course that Allen Weiner teaches devotes only four of twenty-four classes to what might be called “U.S. foreign relations” law. The rest of the class is a pure “public international law” course. I spend somewhat more time on U.S. foreign relations law.

Nor would we agree with a criticism that our book teaches international law with an excessive reliance on U.S. perspectives. We certainly include materials on U.S. actions that have raised important international law issues – from the 1945 Truman Proclamations on the continental shelf to the 2003 U.S.-led invasion of Iraq. But the book is replete with discussion of non-American sources of international law, of other countries’ laws, and of international and regional institutions. Chapter 4 on international dispute resolution, for example, considers the International Court of Justice (ICJ) in greater detail than before and analyzes a number of recent cases. The chapter also devotes considerable attention to the European Union’s Court of Justice, international arbitration, and the World Trade Organization’s dispute resolution system. Chapter 8 on human rights addresses the European and Latin American human rights courts and new Chapter 12 on international criminal law spends considerable time on the various war crimes tribunals and the International Criminal Court. Further, peppered throughout the book are subsections or notes about how other countries treat extra-territorial jurisdiction, sovereign immunity, the act of state doctrine, and other legal concepts.

I have taught with some problem-oriented casebooks and reviewed others. I have noticed that those casebooks sometimes are slow to identify, or that they deemphasize the discussion of, basic concepts and principles in presenting the initial facts of a problem. The treatment of a concept or principle is also shaped by the casebook’s particular problem. I have also found that, as new editions of a problem-based casebook appear, the difficulties in updating a complex problem means that it is sometimes slow to be changed, even if recent events and legal developments have made that problem less relevant.

Multiple problems, each with their own array of background materials, also seem to me to contribute to the basic legal materials being unfortunately abbreviated to keep the casebook within planned page limits.

To be more specific, on the subject of prescriptive jurisdiction in international law, we consider it important that the casebook clearly discuss in some detail each of the various jurisdictional bases: territory, nationality, protective principle, passive personality, and universality. The discussion of each basis can well include material from scholars, the Restatement of Foreign Relations Law (Third), and cases from international tribunals and U.S. courts. In my experience, a problem-oriented casebook that spends much space laying out specific problems can find itself short-changing the discussion of each of these important bases—e.g., spending a total of about three pages on nationality, the protective principle, and the growing use of passive personality, while devoting many more pages to two problems on a 1997 merger and the Helms-Burton law, which Presidents have waived since its passage in 1996.

Similarly, our casebook allocates considerable space to customary international law (CIL) as an important source of international law in Chapter 2 and addresses CIL’s substantial role in the U.S. legal system in Chapter 3. The recent U.S. Supreme Court decision in Sosa v. Alvarez-Machain (2004) is excerpted at length because the decision is seminal both on the role of CIL in the U.S. legal system and on the scope of the much-litigated Alien Tort Statute. I have observed that a problem-oriented casebook can find itself squeezing a shorter version of a case excerpt into the middle of a dated problem—e.g., one dealing with suits against Ferdinand Marcos after he fled to the United States in 1986. Possibly for space reasons, that problem and the Sosa excerpt do not include a careful discussion of how customary international law fits generally into the U.S. legal system.

Similarly, I have found that the use of a specific problem can preclude giving comprehensive treatment to a complicated treaty or law. For example, the Foreign Sovereign Immunities Act (FSIA) is a major U.S. law that considerably affects the possibility of litigation on a wide variety of international matters in U.S. courts. As addressed in our casebook, there are many aspects of the FSIA that are relevant and interesting. I have observed that, in contrast, a problem-oriented casebook that discusses the FSIA primarily in the context of a 1989 problem involving the “commercial activity” exception (with a note on the (a)(7) terrorist exception) unfortunately focuses most of the discussion of the statute on commercial activity, when there are other important exceptions to immunity, such as non-commercial torts and waiver, as well as related issues such as what entities are covered by the FSIA and retroactivity (the subject of a major, recent U.S. Supreme Court case).

In short, substantive concepts and principles, complemented by process, should be the important organizing basis for a casebook and the course on public international law. Problems, as part of a mix of materials, can help illustrate the substance and the process. Our casebook organizes and presents materials conceptually, an approach that maximizes instructor flexibility and provides students with a clear framework for processing and absorbing the complex and growing body of law in an introductory international law class. The best use of the limited space available in any casebook is to expose students to a broad array of primary international law materials, case excerpts, statutory provisions, and scholarly writings that effectively present substantive international law and the ambiguities and challenges that may arise in applying it in a wide array of contexts.

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