Professor David Sloss, the John A. and Elizabeth H. Sutro Professor of Law, joined the faculty in 2008. His scholarship focuses on the relationship between domestic law and international affairs.
Why do you write?
I write for two main reasons. First, I really love the process of research and writing. Even if I knew that no one would read my work, I would probably still spend time on research and writing because I enjoy it. Second, I hope that my scholarly work will help promote the development of a world in which all governments respect and protect the fundamental human rights of all human beings.
Is there a scholar who most inspires you?
It is impossible for me to single out one person because there are dozens of scholars whose work I greatly admire. In the field of U.S. foreign relations law, I admire the scholarship of Curt Bradley, Bill Dodge, Michael Ramsey, Martin Flaherty, and Carlos Vazquez, among others. In the field of U.S. constitutional law, I have been heavily influenced by the scholarship of Cass Sunstein, Mark Tushnet, Robert Post, Larry Kramer, and others. In the field of international law, I admire Tom Ginsburg, Greg Shaffer, Jose Alvarez, Karen Alter, and Oona Hathaway, to name just a few people. I really admire Harold Koh because he has moved seamlessly between academia and government service over the course of his career, making important contributions in both areas.
What do you think has been your most impactful work?
In 2011, I co-edited a book on the history of international law in the U.S. Supreme Court. We had more than 15 contributing authors. It is the first and only book to provide a comprehensive account of international law in the U.S. Supreme Court from 1789 until the early 21st century. The book has become an essential resource for both scholars and litigators who work on issues involving the application of international law in U.S. courts.
What impact did it have?
The book has been cited in at least 75 law review articles over the past decade. I know that litigators use the book as a resource, but courts tend to cite cases that are discussed in the book, rather than citing the book itself.
What work are you most proud of and why?
I am very proud of my book “The Death of Treaty Supremacy: An Invisible Constitutional Change.” The book traces the history of a particular constitutional rule, which I call the “treaty supremacy rule.” Article VI of the Constitution specifies that treaties are “the supreme law of the land” and that “judges in every state shall be bound thereby.” From the Founding until World War II, there was almost universal agreement that Article VI created a mandatory constitutional rule — that judges are obligated to enforce treaties. However, there was an invisible constitutional revolution that occurred between about 1945 and 1965. Since about 1965, the common understanding has been that the treaty supremacy rule is optional — judges have a lot of discretion in choosing when and whether to enforce treaties. My book tells the story of that invisible constitutional revolution. The revolution was invisible because most of the people responsible for the revolution believed that they were following existing precedent, and most scholars and judges today believe (wrongly) that modern law is consistent with the doctrine that courts applied before World War II.
What’s your next project?
I am currently working on several major projects. I have two books that will be published in 2022 — a book on Chinese and Russian information warfare (to be published by Stanford University Press) and a book that explores the question whether the international legal order is unraveling (to be published by Oxford University Press). Currently, I am starting work on a book that will criticize the U.S. Supreme Court for its role in eroding the foundations of American democracy.
