How UChicago’s ‘innovative community’ caught the eye of a top legal scholar

Prof. Adam Chilton, who co-chaired the Law School’s appointments committee with Prof. Jennifer Nou, said Bradley’s “approach to research fits perfectly with the University of Chicago’s academic values

“He is productive, collaborative and willing to challenge conventional wisdom,” Chilton said. “But Curt not only has a well-earned reputation as one of the country’s leading legal scholars, he also has a reputation for being a phenomenal teacher, mentor and community builder.”

Bradley’s knack for bringing together a diversity of perspectives extends to both his colleagues and his students. “I have had the great benefit of being able to talk through many of my scholarly ideas with students,” he said. “I think that being excited about teaching and being excited about scholarship go hand in hand.”

Shedding light on the U.S. legal system

A graduate of the University of Colorado and Harvard Law School, Bradley clerked for Judge David Ebel of the U.S. Court of Appeals for the 10th Circuit and Justice Byron White of the U.S. Supreme Court. After his Supreme Court clerkship, he practiced at Covington & Burling in Washington, D.C., where his work with overseas litigation clients sparked an interest in international law. At the firm, he worked with current Harvard Law scholar Jack Goldsmith, who also had been a Supreme Court clerk during the 1990 term. The two became frequent collaborators. 

Over the years, Bradley has pushed against conventional thinking on foreign relations law, arguing, for instance, that the government’s actions in foreign affairs are not exempt from domestic constitutional considerations—an idea that has been a theme in much of his writing. 

“Before [Goldsmith and I] came in, a lot of scholars in the area placed little weight on structural constitutional values—such as the interest of the states in retaining some regulatory autonomy,” Bradley said. “The idea was basically that once you get to foreign affairs, the Constitution’s concerns about separation of powers and federalism should either go away or become greatly diminished—and I started pushing against that in a series of papers, and I coined a term to describe it.”

That term, foreign affairs exceptionalism, is now commonly used in foreign affairs law scholarship.

In December 2020, Bradley and Goldsmith—along with fellow co-author Oona Hathaway of Yale Law—released the results of an unprecedented empirical study that, for the first time, shed light on the system surrounding the hundreds of binding international agreements that U.S. presidents make each year.

Published in the Harvard Law Review, the paper was the product of a three-year project that involved interviews with government lawyers as well as a Freedom of Information Act (FOIA) lawsuit to obtain more than 5,000 documents from the U.S. Department of State. The scholars concluded that the executive branch’s reporting to Congress has been incomplete, that the process is opaque, and that Congress is “failing in its oversight role.”

The scholars are now studying the executive branch’s growing practice of entering into nonbinding international agreements, which often fall outside of the reporting and publication requirements that Congress has imposed for binding agreements.

Developing a new field

Bradley has also helped reshape how judges and lawyers interpret common law, or law established by courts. Between 2012 and 2018, he worked as a reporter on the American Law Institute’s influential fourth Restatement of the Foreign Relations Law of the United States, a successor to the third Restatement that had been published in 1987. Early in his career, Bradley criticized aspects of the third Restatement, and he was delighted by the opportunity to work on the fourth Restatement, which he called “a privilege.”

As part of that process, the group sought the perspectives of scholars and government officials from other countries—and the experience deepened Bradley’s appreciation for the value of comparative study.

“It got me thinking pretty quickly that a lot of constitutional democracies are struggling with some of the same foreign relations law questions we are in the U.S.,” he said. 

Although other scholars—including Tom Ginsburg, the Law School’s Leo Spitz Professor of International Law—were engaged in comparative work on general issues of constitutional law, there was “no sustained thinking about how to do that in foreign relations law,” Bradley said.

So, in 2015, Bradley launched an event series that brought leading foreign relations law scholars from around the world to conferences in Japan, South Africa and Europe. Supported in part by a prestigious Andrew Carnegie Fellowship, which provided $200,000 in funding, those symposia led to the 2019 publication of The Oxford Handbook of Comparative Foreign Relations Law. It contains 46 chapters that include empirically focused research, theoretical work and in-depth case studies representing a variety of perspectives. (Ginsburg is among the contributors.)

“In the first section of this book [we explore]: What is foreign relations law? What is comparative foreign relations law? How do you study it as a scholar? And to my delight, there are different views about that in the book,” Bradley said. “What's exciting is that we don't have to agree exactly how to define the field or even where it should go. My hope was just to get it started.”

Bradley said collaboration and debate have always been essential to his scholarly work. He describes himself as “a big conference person,” and said the University of Chicago’s emphasis on both interdisciplinarity and varied perspectives were a big part of what drew him the Law School. 

“That is how you get genuine innovation in ideas,” he said. “The prospect of being a part of that innovative community is enormously appealing to me.”

—To learn more about Bradley’s scholarship, read the full version of this story at the Law School website.