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Article

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Immunity and Prescription, 14 Yale Journal of International Law 489 (1989)

Abstract

The Third Restatement's treatment of diplomatic and organizational immunities, and of extradition law, committed to this reviewer, reveals Professor Henkin's characteristic craftsmanship. His scholarship and erudition will make the Restatement of Foreign Relations Law a signal aid to judges and practitioners. Yet the critical reader must raise the question of what a Restatement should seek to accomplish beyond the scope of an ordinary hornbook or practitioner's text.

The project of restating American law first flowered at the hand of Joseph Story, the original Dane Professor of Law at Harvard and exegete for John Marshall on the Supreme Court. In the early Republic, federalism menaced as much as it promised, economically and intellectually. Commerce can be as harshly taxed by the parochialism of disparate legal systems as by any open tariff, requiring merchants who trade among states to master costly detail. Localism may dampen the hope of cultivating law as a liberal art and as a vocabulary for a common politics. Prompted by the dangers of centrifugal federalism, Story's comparative law treatises made an early protest against isolation. Story drew on great English judges of the common law and law merchant, civilians, and writers of the law of nations, as a frame for American law in commercial subjects such as partnership, agency, bills of exchange, promissory notes, and, to reconcile all, conflict of laws. As capstone, Swift v. Tyson promised that coherent jurisprudence in a country of separate state legal systems might be advanced by an enlightened federal commercial bar, administering a federal common law. In Swift's world of intellectual nationalism, though there would be no automatic preemption of state law in commerce among the states, federal courts would offer litigants in diversity an alternative forum and a federal gloss on the common law.

Date of Authorship for this Version

1989

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