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Friday, July 1, 2011

Tackling National Security and Foreign Relations Policy: Seminar on Legal Debates in U.S. International Lawmaking and Foreign Affairs

Each week of the fall semester, Yale Law School Professor Oona Hathaway ’97 meets with eight students in a small seminar room to tackle some of the most complex and pressing issues of national security and foreign relations policy. The seminar’s curricular goal—to examine current legal debates in U.S. international lawmaking and foreign affairs—is served by its format, which includes intensive research, discussion, and drafting of reports. Not just an academic exercise, the students’ work often ends up on the desks of some of the most influential lawmakers in Washington.

The class was born from Hathaway’s own interest in issues of international law. She has served on the Advisory Committee on International Law for the Legal Adviser at the United States Department of State for several years and has contacts in the Senate Foreign Relations Committee as well. “It seemed a natural fit as far as connecting the best and brightest students with the latest work in Washington,” she says of the seminar. The seminar begins each fall when Congressional staff, attorneys in the Legal Adviser’s Office at the Department of State, and nonprofit groups working on issues relating to foreign affairs and international law propose the research topics. “We’re not working for them, but we’re offering to think and write about issues that are of interest to them,” Hathaway explains, stressing that the relationship is an informal one. “Part of what makes our work so valuable is precisely that we are able to approach the issues divorced from any particular institutional role.”

The class takes on eight to ten projects per semester. The students’ work is extraordinarily intensive with thousands of hours of research, discussion, and an average of fifty rounds of revision for each report they draft. (“Students are fantastic about doing the grunt work as well as the glory work,” Hathaway says.) It’s an intense and collaborative process and it’s thoughtprovoking work for Hathaway as well as for her students.

“Often the topics are things I don’t know much about,” she says, “that’s part of what I love about it, because I learn so much. This class has been very generative for my own thinking—especially on the doctrine of the law of war.”

The class also offers students a window to the issues being discussed most vigorously in Washington. Lately, national security law questions have topped the list.

Students from the seminar recently wrote an amicus brief for the Supreme Court case Kiyemba v Obama, a case involving the question of whether a federal judge has the authority to order the release onto U.S. soil of foreign citizens detained by the U.S. military after capture abroad.

The seminar is a melding of both clinical and academic work. Hathaway’s research and writing with the students has resulted in several co-authored articles.

An article that seminar students and Hathaway wrote titled “Recent Developments in the Extraterritorial Application of Human Rights” will be published in the Arizona Law Review. An article titled “Lessons from the Past for Sovereign Immunity After Samantar v. Yousuf Saurabh Sanghvi” was presented before the advisory committee at the Department of State. And at least three other articles written by the class in the past year will also be developed into law journal articles. In fact, the class has been so prolific that there is talk of a book collection of articles about the law of war.

“Students pretty unanimously tell me that it is the hardest they’ve worked in law school and their most rewarding experience at YLS,” Hathaway says. “They feel like the stakes are high and the issues matter. They’re producing things that are actually going to be read, and handed to people who are decision makers.” “This course has been perhaps the most influential force in my law school experience,” says Rebecca Crootof ’11, who took the class in the fall of 2009 and assisted Hathaway with the class in the fall of 2010. “Having participated in three clinics and taken numerous academic courses, I can easily say it combined the best of both,” she adds. “I learned a tremendous amount about the relationship between international and domestic law. I gained numerous concrete skills, including how to effectively research a domestic or international law question (with a focus on legislative history, agency materials, and foreign law as well as cases) and how to write and structure legal reports, op-eds, and legal briefs. I was able to spin one of my projects for this course into my SAW, which I am now publishing as a student note in The Yale Law Journal.”

The seminar students also had the opportunity to visit Washington, D.C., this past year. They observed a full day of meetings of the advisory committee at the State Department and had a chance to meet with the Chief of Staff and Chief Counsel of the Foreign Relations Committee.

Hathaway would like to create a center at the Law School to fund the types of projects taken up by the seminar and expand its work. “This is a class that could only be taught here because of the resources available here—including the library staff—and because of the students, who can really be trusted to do the best possible work that can be done.

“I have a new appreciation for the clinical faculty after this,” Hathaway continues, explaining that the intensity of supervision in the context of this class is greater than what she had experienced before. “When you’re doing this kind of real-world work you’re responsible for what goes out the door. It really matters that our work is right since it has implications beyond that of an academic exercise. Something really rides on this work.”

And, just as important, the work is a win-win when it comes to the students’ education—giving them solid experience in researching and writing on real world matters. “The work also helps students understand the broader ethos of being a good lawyer,” Hathaway adds. “They learn to work together in a highintensity situation, to craft legal arguments, and to refine those arguments through repeated revision, all while keeping in mind both the details of the legal doctrine and the bigger context in which it fits.”

This article appeared as part of a feature in the Summer 2011 Yale Law Report titled "Beyond the Book—The Expansion of Experiental Learning."  View the entire feature here
Experiential Learning