The American Society of International Law (ASIL) has long been engaged in fostering the study of international law as much as it has with promoting the establishment and maintenance of international relations on the basis of law and justice.Footnote 1 Central to the study of the field, especially a field as diverse as international law, is its scholarly output and the academic literature that forms not just a foundational and critical review of the law but that in some instances contributes to the development of the law very directly and may even constitute a source of law.
Despite the centrality of international law scholarship in international law, little work has been done to understand the contours and forces at work in what international law scholars write, where they publish that work, who reads international law scholarship, and scholarship's relationship to the policy world. For international lawyers, identifying answers to these questions and appreciating the impact of our collective work is essential, particularly at a moment of profound political struggle in communities around the world. We have remarkably few data as to what topics, methodologies, and perspectives of international law scholarship journals and publishers print, by whom, in what languages, through what media, and subject to what parameters.
The SAILS project—the Consortium for the Study and Analysis of International Law Scholarship—seeks to fill this gap.Footnote 2 SAILS is an effort by a committed group of international law scholar-practitioners to cultivate this sustained attention to international law scholarship, and its interaction with practice. The purpose of the consortium of doctrinal, clinical, and library faculty from around the world is to elucidate answers to these many lingering questions to help us understand our own discipline as well as the forces behind it and that it unleashes. SAILS investigates the relationship among theory, research, and practice to address international law's twenty-first century challenges.
This panel, which also served as a launch event for the first SAILS essay symposium, was charged with some stocktaking and some introspection on these matters. First, the moderators—three student editors from the Georgetown Journal of International Law, the Virginia Journal of International Law, and the Yale Journal of International Law—recognized their recent publication of the symposium. Each of the three journals published three essays as part of the symposium, reflecting the bread of and interest in the SAILS network. Second, the moderators invited five distinguished speakers to reflect on their own scholarship and that of the symposium to explore how leading scholars approach their contributions to the field. They asked the speakers to describe who they consider to be their audience, and whether they write with international law journals in mind as compared to other types of scholarly outlets. They invited the speakers to consider whether the field is oversaturated with publication outlets such that the collective impact of international law scholarship may be diminished. They also pursued distinctions between international law scholarship in the United States and international law scholarship in other parts of the world, among other issues.
At the core of the panel, the speakers were asked to consider whether the current system of international law scholarship relates to the values that the speakers believed international law should reflect, and more squarely: does international law scholarship support international law? The speakers grappled with this important query, and then turned to the fundamental issue of scholarship's impact on international law practice. The speakers likewise engaged in a conversation about how international law practitioners consume and benefit from some forms of scholarship.
This overview sets the scene for the two written contributions that follow from Professor MJ Durkee and Professor Steven Arrigg Koh. Also participating on the panel were Professors Julian Arato, Rebecca Ingber, and Neha Jain. Their discussion opened up several lines of inquiry that future SAILS participants and contributors will benefit from unpacking in future years.
In many conference rooms at this meeting of the American Society of International Law we have heard that international law is at a moment of reckoning. International law is not solving existential cooperative problems like climate change, preventing disordered uses of force and grave civilian harms, or living up to its promise to afford equal dignity and rights to all. Moments of reckoning are good moments to imagine larger systemic change. International legal scholars have something important to contribute in imagining, forecasting, and even producing change. It is therefore an appropriate time to think not just about the object of our study—international law itself—but also our process of studying it. Specifically, I have been asked to discuss the choices international legal scholars confront about where to publish, and the significance of these choices. I will offer two kinds of answer.
First, processes of production and dissemination of international legal scholarship can affect how legal scholarship develops the law. Consider that international legal scholarship bears a special relationship with the development and practice of international law. In a panel in this conference on “The Authority of Legal Scholarship,” panelists discussed scholarship's role as a subsidiary means for the determination of rules of law under Article 38(1) of the Statute of the International Court of Justice. They observed that legal scholarship can have a constitutive function. Anne Orford reminded us that law is made, and not discovered, and legal scholarship is part of what makes it. Jutta Brunnée argued that because law is a social practice, international legal scholarship has the power to contribute to, strengthen, or undermine shared understandings. Professor Brunnée advocated for the legal scholar's responsibility to “maintain” the law, that is, to uphold these shared understandings.
If international lawyers are contributing to the maintenance and development of international law through their scholarly work, then it is reasonable to ask how publication practices affect the development or robustness of the rules-based global order. Congratulations are due to Kathleen Claussen for spotting this issue and launching the SAILS project, and to the student journal editors and all the authors in the SAILS symposium being published this year.
In this context, let us consider whether the system of many diverse legal journals serves the agenda of developing legal ideas and constructing and maintaining the law. One of the most remarkable features of our current moment in legal publishing is its fragmentation, both regionally and within the discipline. In the United States, legal scholars seeking to publish an article in a journal have three choices: (1) so-called “flagship” student-edited law reviews, which publish a wide variety of legal topics, such as, for example, the Washington University Law Review or the Yale Law Journal; (2) “specialty” student-edited law reviews that focus on international law, like the three publications printing the SAILS symposium, the Yale, Virginia, and Georgetown journals of international law; and (3) peer-reviewed publications, such as the American Journal of International Law and the many peer-reviewed international legal publications around the world.
The conversations in these three different fora can become siloed from each other. Part of the siloing effect seems to stem from the fact that many U.S. legal faculty members publish only in student-edited law reviews, and not in peer-reviewed publications, unless their work has an interdisciplinary component. U.S. law faculties do not have a particularly strong tradition of reading peer-reviewed publications, and do not necessarily know how to find and evaluate work in these journals. At the same time, academics elsewhere in the world tend to rely exclusively on peer-reviewed publications and do not necessarily know how to find or evaluate work in student-edited journals. There is a further fragmentation in the United States between conversations in the “flagship” and “specialty” student-edited law reviews. Confining international legal scholarship to specialty journals draws a perimeter around international legal scholarship rather than bringing it into conversation with other literatures in the legal academy. This reduces the impact and perceived importance of international law to domestic legal practice in the United States. Thus, as a U.S. legal scholar, it is possible to see fragmentation between the U.S. international legal community and internationalists elsewhere, and between U.S. internationalists and the remainder of U.S. legal academy.
That fragmentation has effects on the discipline. Aggregating systems like Westlaw and Lexis in the United States do not always pick up peer-reviewed publications. Researchers in U.S. law schools sometimes have trouble finding articles in peer-reviewed publications, and the same can happen the other way as well, with respect to the accessibility of student-edited articles to researchers outside of the United States. The result is that these different scholarly communities can be having different conversations, even about the same topics. This has real effects on whether international lawyers can realistically create and maintain “shared understandings” across these divides.
This fragmentation also affects U.S. isolationism, and this is my second point. Aspiring U.S. academics have a choice between publishing in flagship or specialty publications. Publishing in flagship journals is the safer path to a tenure-track position, and ultimately tenure. If junior scholars wish to publish in flagship journals, however, they need to translate their work to a mainline audience or pick a topic that is less “international” and thus more cognizable to student journal editors and non-internationalist members of a law school faculty. It is plausible to assume that this mix of exogenous filtering and self-selection leads to fewer internationalists in the legal academy in the United States. Fewer international law professors results in fewer international law courses, fewer students learning international law, less knowledge of international law among U.S. lawyers, and, predictably, more American exceptionalism and isolationism, from the Supreme Court right on down. Then a feedback loop reinforces the trend: When students think international law has less relevance, classes draw fewer students, law schools hire fewer professors, international legal scholarship exits the pages of flagship law reviews, and international legal conversations in faculty lounges peter out. Fledgling U.S. lawyers emerge to practice with little to no knowledge of international law and thus can do little to cultivate or maintain it.
The bottom line is that the fragmentation and siloing of international legal scholarship carries consequences. It can diminish the coherence of international law as a shared social practice across national borders. It can also diminish the perceived salience of international law within the United States, contributing to U.S. propensities toward exceptionalism and isolationism.
Where to from here? Print journals used to set the canon, but formal legal journals are not the only ways to disseminate ideas. International legal scholars can use tools like podcasts, social media, blogs, and other multi-media, short form, and open-access formats to circulate ideas and help scholars and literatures make contact. These non-traditional formats have equalizing and connecting functions, but there is still room for growth when it comes to aggregating scholarship across regions and across linguistic and disciplinary divides. Finding ways to do that will help international lawyers better accomplish the field's normative goals: to develop, cultivate, and improve the rules-based international legal order.
I am going to talk a bit about the import of international law scholarship to government practice. I just came out of a two-year stint in the government where “academic” can be a bit of a pejorative term. Nevertheless, academic scholarship, and international law scholarship in particular, has a significant persuasive value and “work” value, such as the real work of canvassing actual state practice and opinio juris on a matter, or parsing through the travaux of a treaty. On both of these fronts, international law scholarship serves a real purpose to people inside the government. In fact, in some ways international law scholarship may serve a greater purpose for government officials than scholarship on domestic law in part because there is less case law in the United States in the international law arena. So, unlike in the domestic law sphere, within the United States, there are not many other actors doing the work outside of the government other than academics.
I gave some thought before this panel about what role international law plays in practice and I canvassed the views of other government folks, both lawyers and policymakers. One policymaker gave me two suggestions for scholars: (1) keep it short; and (2) make sure there is an executive summary. Putting aside for the moment what these suggestions say about the extent to which government officials read, I have some suggestions for thinking about what is useful scholarship to government officials, and where international law scholars can have the greatest impact.
As an aside, on the other side of the coin, being “useful” is often a pejorative term in the academic world. But as someone who likes to keep a toe in both worlds and has taken up residency at different times in each, I happen to think useful scholarship is a positive thing. That is my bias. And so if you are interested in scholarship that is useful to practitioners, and in particular government practitioners—who are doing the lion's share of public international law work in the United States, although there are lots of other places where it is happening—here are some thoughts on the vehicles for influence on practitioners:
I. Immediate Current Events
Academics get read quite regularly when they produce quick work on blogs and the like in the immediate aftermath of sudden events. New events arise regularly that lawyers and practitioners within the government are called upon to deal with. Some of are these going to be issues that people have dealt with many times before. But sometimes these events raise issues that are tricky or even novel, or tricky and novel both, and lawyers and other practitioners need to quickly come up the curve.
These folks inside the government are already drinking from a firehose on several different urgent issues, and they do not necessarily have the time to dissect everything that is happening in the news in immediate time. A quick explainer in a blog post, going through and plotting out the various issues raised by an event is going to be useful for the issue spotting exercise alone and as a framework of analysis whether or not the poster provides a firm view on the law and whether or not the practitioner agrees with that view.
This is a quick and dirty way that academics can be exceedingly useful to practitioners in an immediate sense, and they can rely upon their scholarship in doing so.
II. Major Novel Issues
The second and more significant way that in-depth scholarship in particular can be useful is when major novel legal questions arise for the U.S. government with a longer time horizon.
As I said, there are not necessarily going to be significant sources—and certainly not domestic sources—that U.S. practitioners can look to when novel events arise. And this happens. Often there is not going to be a court decision out there—domestic or international or even foreign—that gives you the answer. There might not be a lot of or any state practice or opinio juris. The U.S. government sometimes has to deal with questions that do not necessarily arise for other states, or where other examples are unknown.
In such cases, there may not be a lot of sources for government practitioners to go to even to help them think through the varying kinds of issues that this event or potential action raises. Legal scholarship has the potential to be very helpful here, and I saw people seek out academic sources all the time.
This then raises another question: what kind of legal scholarship is going to be useful to practitioners in such circumstances? What I saw from the inside is that legal scholarship that merely offers conclusions, that just says, “this is how you should think about the law,” without real significant elbow grease, or service work, is a lot less useful. These officials do not primarily need and certainly do not want someone telling them what to think, though such scholarship may serve a persuasive function. (And this will be more so if the scholarship in question has first put in the work.) What they need most is someone who has done the heavy work of plodding through, ok here are the seven times something similar has happened, and this is the way that states have responded, and these are the legal sources that are relevant to this inquiry. The most useful and sought-after scholarship is going to be heavily documented, footnoted with substantive and substantial solid information, not the heavily prescriptive stuff, at least for lawyers in the government.
III. Changing Hearts and Minds
Following on the above, rarely will government officials seeking to get smart on an issue gravitate toward the academic work that is framed as, “this is a totally novel way for you to think about this issue, which no one has ever done before, and you should change everything you do.” Novelty of this sort might get a scholar published but it is probably not the best way to impel change by practitioners (or, for that matter, courts).
This is not to say that government officials are not persuadable—you absolutely can push government actors in a direction with your work. But a heavily prescriptive article that is framed in terms of sheer novelty and is not backed up by all of the other grunt work I mention above is not usually going to be the way to do it.
One opportunity window for change is the debate that is already happening inside the government. And let me assure you, it is happening. On the outside, some tend to think of the government as one unitary actor, and it is us Academics on the outside trying to push The Government to do something. Well, that represents zero percent of what is happening inside the government. What is always happening inside the government is that there is some debate going on about the proper course of action. This is an opportunity for you to weigh in on one side of the debate or the other and give that side fodder for their arguments. Then they can send around your law review article or your blog post and point to it as persuasive authority. Honestly, I can write an email when in government, and somehow it is going to be less important than the Just Security blog post I wrote three years prior because, well, that is in print! It is true. I watched this happen. People could be citing me but nevertheless disregarding me at the meeting.
So that is another opportunity window for influence.
Another is finding other government constrainers who may be like-minded or whom you can persuade of your position. You as an academic might not alone have the most power to change a course of action. But you could seek to convince some members of Congress of your approach, or get some political momentum behind your position, or alternatively add your scholarly heft to a movement: all of this can have real effect. Suddenly you have a political movement that is bolstered by your scholarship and legal argument. People find this compelling. Even though “academic” can be used pejoratively, the same people often think the title “professor” gives you a certain gravitas. And so people who have a political agenda love to be able to cite scholars supporting them; thus you can influence the movement and also empower your ideas.
This too requires real work; it is not a question of just sending a law review article out into the void and hoping it changes some minds. It means writing blog posts, getting allies, talking to hill staffers or members of Congress. These are all ways that legal scholarship can have a significant effect.
In closing, I want to double down on something my colleagues said about the importance of this work and the work of the journals in creating and continuing an international law community in these law schools. There are always a lot of students who are interested in international law. But they and we are facing an increasingly hostile domestic legal environment where international law is being sidelined. To become a Supreme Court justice today, whether you are appointed by a Republican or a Democrat, you apparently believe you must answer the question about the role of international law in the domestic system as, “foreign judges should not be making law for Americans.” Inapposite, misleading, inaccurate description of what international law is, and hostile. This is the litmus test you have to pass to become a justice in this country. So we are tilting against windmills a bit here. It is that much more important that we continue to do this work. To be clear, there are hundreds of international lawyers inside the government who are doing this work every day. International law continues to play a real role in state decisions. But they are also fighting these same forces. And the more the public ceases to care about international law the less power it has. Public law, after all, operates on faith. It operates on belief in institutions. It is not a guy showing up on the president's doorstep with handcuffs. The more people disregard the significance of international law as law, the more the most powerful legal players in our country mislead the people about what international law even is, the less power it has. So it is incumbent upon all of us to continue to do this work, to continue to teach our students that it matters, and to continue to feel outrage when it is undermined.
What are the values of international legal scholarship? From my perspective, we may think through three levels.
Let us start at the outermost, tertiary level. Today's panel concerns this: the Study and Analysis of International Law Scholarship. We may call this “international law scholarship about international law scholarship.” This is essentially a sociology of knowledge question: how is knowledge distributed between and amongst groups? Who has more influence than others? Who is marginalized or disempowered in that conversation? The overarching fear is the tension between epistemic fragmentation and integration. How do we judge the various types of authority that we have? Many critical scholars, of course, would say this gets to the heart of historic marginalization, power, and institutional authority.
The secondary level is the value within international law scholarship itself. At this level, our principal commitment is to academic integrity and intellectual rigor in our analysis of international law in the world. We debate theory and methodology—sometimes implicitly in our discipline, at other times more explicitly. Some scholars are content to rest with such values at this secondary level.
But others of us also care about how such scholarship interrelates with the innermost, primary level of the values that international law itself upholds. What are those values? Peace, security, universal rights, self-determination, guaranteeing coordination for flows of global economic activity, and many more. These are the deepest commitments at the heart of the international legal system.
Now, some of us as scholars do not care too much about this deeper level, and that is fine. For some of us, our primary commitment is to academic rigor. But for others of us—and I put myself in this category—our primary scholarly values are intertwined with the values of the international system itself.
My recent experience in Ukraine underscored this scholarly commitment to the fundamental values of international law. In December 2023, I had the honor of traveling to Lviv, Ukraine for the ASIL Stand Tall for the Rule of Law event in December. This drove home for me: what we are doing in international legal scholarship is not just an academic exercise. We care about knowledge production because we care about international law itself. In Lviv, we cared about the fundamental question: how will the international legal system address the conflict in Russia and Ukraine? This is about the Ukrainians rendering their struggle universal through the global language of law. This is not just a question of Ukrainian territory. This is a question of the universal right to sovereignty and territorial integrity.
In sum, three sets of values govern international legal scholarship. First, we are rooted in international law's deepest values—peace, justice, security, and universal rights. Second, as scholars, we are committed to intellectual rigor and understanding. And third, “international law scholarship about international law scholarship” is concerned with epistemic fragmentation and integration—questions at the heart of the sociology of knowledge.
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