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24 Penn St. Int'l L. Rev. 745 (2005-2006)
Why Transnational Law Matters

handle is hein.journals/psilr24 and id is 753 raw text is: Why Transnational Law Matters Harold Hongju Koh* What is transnational law and why does it matter? Transnational law represents a hybrid of domestic and international law that has assumed increasing significance in our lives. Let me address why transnational law is important, and then turn to some emerging trends, which I call transnational legal process, transnational legal substance, and the rise of transnational public law. I will close by considering ways in which legal education and American law schools should act to keep pace with the ascendancy of transnational law. In his 1956 Storrs Lectures, Judge Philip Jessup famously defined transnational law as all law which regulates actions or events that transcend national frontiers ... [including] [b]oth public and private international law... [plus] other rules which do not wholly fit into such standard categories.' Perhaps the best summary of the extant doctrines of transnational law can be found in the American Law Institute's Restatement (Third) of Foreign Relations Law.2 One might think of transnational law as law that is neither purely domestic nor purely international, but rather, a hybrid of the two. Consider, for example, the metric system or the Internet business concept of dot.com. Are these domestic or international concepts? Of course, the intuitive answer is neither. Both are hybrids, purely transnational ideas. Perhaps the best operational definition of transnational law, using computer-age imagery, is: (1) law that is downloaded from international to domestic law: for example, an international law concept * Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law, Yale Law School; Assistant Secretary of State for Democracy, Human Rights and Labor, 1998-2001. This essay is a footnoted version of remarks delivered at the plenary session on What Is Transnational Law And Why Does It Matter? at the 2006 AALS Annual Meeting in Washington, D.C. on January 4, 2006 and shares thoughts with Harold Hongju Koh, The Ninth Annual John W. Hager Lecture, The 2004 Term: The Supreme Court Meets International Law, 12 TULSA J. COMP. & INT'L L. 1 (2005). I am very grateful to Kate Desormeau of the Yale Law School class of 2008 for her outstanding research assistance. 1. PHILIP C. JESSUP, TRANSNATIONAL LAW 2 (1956). 2. See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1987).