National Security Law Fall Semester 2012
Professor Perez ; x5820
Course Objectives
This is a course for lawyers about the law that affects national security policymaking, which is the added value lawyers provide in national security policymaking. Accordingly, the casebook emphasizes legal doctrine rather than policy issues. As such, this course will further your understanding of constitutional law (as well as its interface with certain areas of foreign and international law). That said, I would be surprised if you did not find the issues we discuss to be among the most topical, important, and intellectually-stimulating issues that can be addressed in law school.
Thus, the core of the course will involve an exposition of legal principles and their various permutations in national security and foreign relations policy contexts. The doctrinal structure of the table of contents of the casebook is self-explanatory; and I urge you to study it closely and repeatedly as the semester proceeds. You will also find the notes and commentary after cases indispensable, because they provide exhaustive analysis of the relevant cases and secondary literature discussing the doctrines presented in the main cases. (Indeed, on any given day, our class discussion may move immediately to hypothetical questions, with the expectation that you will have already fully mastered the main cases and the notes.) As we fill in doctrinal gaps, through frequent review you will in time be able to unpack complicated factual scenarios of the kind that will appear on the final exam or in practice. You should realize, however, that legal clarity is a scarce commodity in the cutting-edge problems that arise for a practitioner in this area on almost a daily basis. Certainly that was my perception of this area of practice when I was a lawyer in the State Department’s Office of the Legal Adviser, working on national security issues.
Course Requirements & Rules
Exam: The final exam will take the form of a traditional 3-hour hypothetical exam, along the lines of what one normally sees in the ordinary law school exam. It will be a limited-open-book exam (which means that you may bring to the exam the casebook, any handouts, and any course outlines you have prepared yourself or prepared in cooperation with classmates, but not any commercial materials). There is no paper option. I have discovered teaching this course that research papers without the proper foundation, which can be achieved only through mastery of the doctrine for the course, tend to be superficial and counter-productive. (In appropriate cases, I will consider supervising directed research during the semester following this course.)
Class: I expect you to be prepared for class every day. If you do not have a feel for it already, you will soon appreciate the standard of preparation to which I will hold you, and you will soon understand why that standard is necessary for you to reach the level of understanding that you will need to master the course materials, prepare yourself for the final exam, and survive in this area of practice. If you are not prepared for class on a given day, you must inform me prior to class. Repeated failure to be prepared may cause me to reduce your grade in accordance with the academic rules. No laptop use is permitted during class, and you will need to turn off all your other portable electronic devices. I have discovered that students who use laptops tend to fall in the habit of taking verbatim notes rather than participating actively in class discussion or simply thinking deeply about the issues raised in class. (I have noticed that students who organize their thoughts immediately after class seem to do quite well in law school. You may explore that approach.) Any accommodation issues should be addressed to the Office of the Associate Dean for Academic Affairs. By the second week of the semester, I will post office hours, and you should feel free to stop by without an appointment to discuss the material.
Assignments: There is a TWEN page for the course to continue class discussion, for you to post questions, and for me to supply class assignments. I do not employ a rigid syllabus, because I adjust coverage to the progress that the class is making on a weekly basis. For the most part, after the first week, we will follow the sequence in the casebook, Bradley and Goldsmith, Foreign Relations Law: Cases and Materials (4th ed. 2011), with the exception that we will defer coverage of the “War on Terror” chapter until later in the semester, when you will have acquired enough background knowledge to assess critically the legal-policy debates of the last decade. We will begin the course with a review of relevant constitutional law methodology through a study of the Steel Seizure Case (pp. 165-80) and handouts I will provide on the first day of class that will facilitate an introduction to international law and international relations theory through a close study of the debate over Washington’s Neutrality Proclamation.