U.S. Foreign Relations Law from the Outside In

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, assessments of institutional competency, original meaning, and historical practice thus dominate debates about treaty- making, war powers, diplomatic authorities, and related matters. This tendency reflects generic assumptions about the legitimate 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.