When Newsweek–hardly a right-wing rag–does a profile of Harold Koh that takes him on in tough and comprehensive fashion concerning his “transnational” legal views, one has to believe that there is a great deal to Dean Koh’s legal views that are not palatable to the mainstream of American legal and political thought. Usually, the function of magazines like Newsweek is to pooh-pooh concerns about the views of people like Professor Koh; we are generally supposed to be assured that there is no way people like Professor Koh could be as far out of the mainstream as the VRWC claims he is. But to their credit, Stuart Taylor and Evan Thomas carefully examine Koh’s views, take them to reasonably logical conclusions, and give us plenty to worry about. There can be no doubt that much of Koh’s legal “transnationalism” would, in fact, lead to the significant deterioration of American sovereignty, and there is plenty of precedent to suggest that American law and policy would find itself encroached and impinged upon per Koh’s worldview.
No one doubts that Koh is highly intelligent and very talented. He makes for a provocative teacher and provocative teachers are good to have; were I back in law school and had a chance to take a class with someone like Koh, I would jump at the opportunity. We’d probably argue back and forth a great deal but what’s life without a little argument? But we are not talking about giving Harold Koh the keys to yet another faculty lounge. We are, rather, talking about giving him the chance to make policy. However interesting he may be as a teacher, his policy views leave us much to worry about.
Here at the New Ledger, Ted Bromund wrote an excellent article about the significance of the Koh nomination and the nature of his worldview. Paying attention to Koh’s statement that respecting and incorporating transnational law is part and parcel of paying “a decent respect to the opinions of mankind,” as referenced in the Declaration of Independence, Bromund rightly points out that
The Declaration’s purpose was to tell the world the U.S. had a right to independence. The Founders believed it was necessary to pay “decent respect” by explaining why this was so. To transform this reasoned assertion of self-government and sovereignty into an argument that judgments in foreign courts should guide American judges, or that the U.S. should sign treaties simply because other states have done so is, at best, specious and distorted.
As Bromund writes, Koh’s views could have an especially deleterious impact on international policy concerning the transfer and sale of arms. Read it all. And while you are at it, check out my piece on the shortcomings of “universal jurisdiction,” as well as Christopher Badeaux’s piece on the potential international criminalization of lawyering.