Jack Landman Goldsmith

Henry L. Shattuck Professor of Law

Areeda 233

617-384-8159

Assistant: Jan Qashat / 617-496-2026

Biography

Jack Goldsmith is Henry L. Shattuck Professor of Law at Harvard University. He is the author, most recently, of The Terror Presidency: Law and Judgment Inside The Bush Administration (W.W. Norton 2007), as well as of other books and articles on many topics related to terrorism, national security, international law, conflicts of law, and internet law. Before coming to Harvard, Goldsmith served as Assistant Attorney General, Office of Legal Counsel, from October 2003 through July 2004, and Special Counsel to the General Counsel to the Department of Defense from September 2002 through June 2003. Goldsmith taught at the University of Chicago Law School from 1997-2002, and at the University of Virginia Law School from 1994-1997. He holds a J.D. from Yale Law School, a B.A. and M.A. from Oxford University, and a B.A. from Washington & Lee University. He clerked for Supreme Court Justice Anthony M. Kennedy, Court of Appeals Judge J. Harvie Wilkinson, and Judge George Aldrich on the Iran-U.S. Claims Tribunal.

Areas of Interest

Jack L. Goldsmith & Curtis Bradley, Obama’s AUMF Legacy (Aug. 24, 2016).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Executive Office
,
Military, War, & Peace
,
National Security Law
,
International Law
Type: Article
Abstract
Despite massive changes in the geographical scope of the conflict that began on 9/11, the strategy and tactics employed, and the identity of the enemy, the 2001 Authorization for Use of Military Force (“AUMF”) remains the principal legal foundation under U.S. domestic law for the President to use force against and detain members of terrorist organizations. For many years, President Obama proclaimed that he wanted to repeal the AUMF and end the AUMF-authorized conflict. By the closing year of his presidency, however, his administration had established the AUMF as the legal foundation for an indefinite conflict against Al Qaeda and associated groups and extended that foundation to cover a significant new conflict against the Islamic State. This transformation of the AUMF is one of the most remarkable legal developments in American public law in the still-young twenty-first century, and it will stand as one of President Obama’s primary legal legacies. In addition to establishing this descriptive claim, this Essay considers how the Obama administration has invoked international law in making arguments about the scope of the AUMF. As the Essay explains, although the Obama administration often maintained that international law was an important constraint on its actions, on a range of issues where international law was unsettled it interpreted it in ways that supported presidential discretion and flexibility under the AUMF.
Jack L. Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835 (2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
Separation of Powers
,
Supreme Court of the United States
Type: Article
Jack L. Goldsmith & Matthew Waxman, The Legal Legacy of Light-Footprint Warfare, 39 Wash. Q. 7 (2016).
Categories:
Government & Politics
Sub-Categories:
Military, War, & Peace
Type: Article
Jack L. Goldsmith, The Contributions of the Obama Administration to the Practice and Theory of International Law, 57 Harv. Int’l L.J. 456 (2016).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Executive Office
,
International Law
,
Foreign Relations
,
Treaties & International Agreements
Type: Article
Abstract
With this essay, Professor Goldsmith provides a tour of the horizon of the Obama administration's international law record in order to identify the distinctiveness of its approach and to tie it in to some general themes in international and foreign relations law. He describes what is interesting and distinctive about the Obama administration's approach to international law by considering its practices through the lens of the two mechanisms through which a president and his team can influence international law: the interpretation of international law commitments, and the use of tools of diplomacy to contribute to the making of new international agreements.
Jack L. Goldsmith, The Ends of Privacy, New Rambler Rev., Apr. 06, 2015 (reviewing Bruce Schneier’s Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World, 2015).
Categories:
Technology & Law
Sub-Categories:
Information Privacy & Security
Type: Other
Lea Brilmayer, Jack L. Goldsmith & Erin O’Hara, Conflicts of Laws: Cases and Materials (Aspen 7th ed. 2015).
Categories:
Civil Practice & Procedure
Sub-Categories:
Conflict of Laws
Type: Book
Abstract
The books starts with a discussion of traditional approaches to choice-of-law problems, followed by an examination how modern courts and commentators have struggled to formulate more responsive approaches.
Jack L. Goldsmith, Zivotofsky II as Precedent in the Executive Branch, 129 Harv. L. Rev. 112 (2015).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Executive Office
,
Foreign Relations
Type: Article
Bradley A. Curtis & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials (Aspen 3rd ed. 2009).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Foreign Relations
Type: Book
Abstract
Features: Reorganizes the material into three thematic parts, concerning the government institutions that interact with foreign relations law, the role of international law in the U.S. legal system, and the legal issues associated with ...
Jack L. Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 (W.W. Norton & Co. 2012).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
,
Executive Office
,
National Security Law
Type: Book
Abstract
Conventional wisdom holds that 9/11 sounded the death knell for presidential accountability. In fact, the opposite is true. The novel powers that our post-9/11 commanders in chief assumed—endless detentions, military commissions, state secrets, broad surveillance, and more—are the culmination of a two-century expansion of presidential authority. But these new powers have been met with thousands of barely visible legal and political constraints—enforced by congressional committees, government lawyers, courts, and the media—that have transformed our unprecedentedly powerful presidency into one that is also unprecedentedly accountable. These constraints are the key to understanding why Obama continued the Bush counterterrorism program, and in this light, the events of the last decade should be seen as a victory, not a failure, of American constitutional government. We have actually preserved the framers’ original idea of a balanced constitution, despite the vast increase in presidential power made necessary by this age of permanent emergency.
Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity and Domestic Officer Suits, 13 Green Bag 2D 137 (2010).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Foreign Relations
,
Human Rights Law
Type: Article
Abstract
Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials.
Jack L. Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (W.W. Norton 2007).
Categories:
Government & Politics
,
Criminal Law & Procedure
Sub-Categories:
Terrorism
,
Executive Office
,
National Security Law
Type: Book
Abstract
The author's duty as head of the Office of Legal Counsel was to advise President Bush what he could and could not do...legally. The author took the job in October 2003 and began to review the work of his predecessors. Their opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, and he found many—especially those regulating the treatment and interrogation of prisoners—that were deeply flawed. The author is a conservative lawyer whose unflinching insistence that we abide by the law put him on a collision course with powerful figures in the administration. This book provides his analysis of parallel legal crises in the Lincoln and Roosevelt administrations, which shows why Bush's apparent indifference to human rights has damaged his presidency and, perhaps, his standing in history.
Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation, 13 Green Bag 2D 9 (2009).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Foreign Relations
,
Human Rights Law
Type: Article
Abstract
For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are directed against state officials rather than the state itself. Recently, however, courts have begun to reject this assumption, and the issue is now before the Supreme Court in Yousuf v. Samantar. This essay makes two contributions to the debate over whether the FSIA applies to suits against individual foreign officials. First, it shows that, contrary to what some courts have assumed, suits against individual officials fall naturally within the plain language of the FSIA’s immunity provisions. Second, it shows that the international law of state immunity, which is relevant to the proper interpretation of the FSIA in several ways, supports this construction. Combining these and other points, the essay concludes that the FSIA confers presumptive immunity in suits against state officials, including former state officials, for their official acts committed while in office, and that this immunity applies even in human rights cases. This conclusion, if accepted, would narrow the scope of human rights litigation in U.S. courts, but it would not affect other legitimate mechanisms of human rights accountability.
Jack L. Goldsmith & Alan O. Sykes, Lex Loci Delectus and Global Economic Welfare: Spinozzi v. ITT Sheraton Corp., 120 Harv. L. Rev.1137 (2007).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Torts
,
Litigation & Settlement
,
Courts
,
International Law
Type: Article
Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 870 (2007).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Courts
,
Executive Office
,
Foreign Relations
,
Foreign Law
,
Human Rights Law
,
Admiralty & Law of the Sea
Type: Article
Jack L. Goldsmith & Tim Wu, Who Controls the Internet? Illusions of a Borderless World (Oxford Univ. Press 2006).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Cyberlaw
,
Networked Society
Type: Book
Abstract
This book tells the story of the Internet's challenge to governmental rule in the 1990s, and the ensuing battles with governments around the world. It's a book about the fate of one idea - that the Internet might liberate us forever from government, borders, and even our physical selves. We learn of Google's struggles with the French government and Yahoo's capitulation to the Chinese regime; of how the European Union sets privacy standards on the Net for the entire world; and of eBay's struggles with fraud and how it slowly learned to trust the FBI. In a decade of events the original vision is uprooted, as governments time and time again assert their power to direct the future of the Internet.
Jack Goldsmith & Eric A. Posner, The New International Law Scholarship, 34 Ga. J. Int'l & Comp. L. 463 (2006).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
International Law
,
Legal Scholarship
Type: Article
Abstract
In this response, the authors address criticisms of their 2005 book, "The Limits of International Law," identifying points of agreement, clarifying some of their positions, and responding to major criticisms. They also outline what appears to be an emerging consensus about the appropriate path of international law scholarship.
Curtis A. Bradley & Jack L. Goldsmith, The War on Terrorism: International Law, Clear Statement Requirements, and Constitutional Design, 118 Harv. L. Rev. 2683 (2005).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Terrorism
,
Executive Office
,
Congress & Legislation
,
Military, War, & Peace
,
Laws of Armed Conflict
Type: Article
Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047 (2005).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Terrorism
,
Congress & Legislation
,
Military, War, & Peace
,
National Security Law
,
Executive Office
,
Laws of Armed Conflict
Type: Article
Jack L. Goldsmith & Eric Posner, The Limits of International Law (Oxford Univ. Press 2005).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
International Law
,
Foreign Relations
Type: Book
Abstract
In this book, Jack Goldsmith and Eric Posner argue that international law matters, but that it is less powerful and less significant than public officials, legal experts, and the media believe. International law, they contend, is simply a product of states pursuing their interests on the international stage. It does not pull states towards compliance contrary to their interests, and the possibilities for what it can achieve are limited. This book has important implications for debates about the role of international law in the foreign policy of the United States and other nations.
On Nineteen Eighty-Four: Orwell and Our Future (Jack L. Goldsmith, Abbott Gleason & Martha C. Nussbaum, eds., Princeton Univ. Press 2005).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
,
Law & Political Theory
Type: Book
Abstract
George Orwell's Nineteen Eighty-Four is among the most widely read books in the world. For more than 50 years, it has been regarded as a morality tale for the possible future of modern society, a future involving nothing less than extinction of humanity itself. Does Nineteen Eighty-Four remain relevant in our new century? The editors of this book assembled a distinguished group of philosophers, literary specialists, political commentators, historians, and lawyers and asked them to take a wide-ranging and uninhibited look at that question. The editors deliberately avoided Orwell scholars in an effort to call forth a fresh and diverse range of responses to the major work of one of the most durable literary figures among twentieth-century English writers.
Ryan Goodman Jack L. Goldsmith, U.S. Civil Litigation and International Terrorism, in Civil Litigation and International Terrorism (John Norton Moore ed., 2004).
Categories:
Civil Practice & Procedure
,
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Terrorism
,
Litigation & Settlement
,
International Law
Type: Book
Abstract
Since September 11, the United States has mobilized enormous military, political, and legal resources to combat the threat of terrorism. This paper examines one component of these efforts: civil suits for acts of terrorism. We analyze current U.S. law governing civil actions against terrorists, consider the strengths and weaknesses of such actions, and propose alternative reforms. The paper proceeds in four parts. Part I describes the central pivot around which the doctrinal issues turn - the problem of state action. Part II analyzes U.S. law governing civil litigation against alleged terrorists who do not implicate the Foreign Sovereign Immunities Act ("FSIA"). Part III analyzes U.S. law governing civil litigation against alleged terrorists who do implicate the FSIA. Part IV discusses the policy tradeoffs of civil actions against terrorists, considers the strengths and weaknesses of current law in light of these policy issues, and analyze several legal reforms.
Jack L. Goldsmith, Liberal Democracy and Cosmopolitan Duty, 55 Stan. L. Rev. 1667 (2003).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Political Theory
,
National Security Law
,
Foreign Relations
,
Treaties & International Agreements
Type: Article
Abstract
This essay critiques the "cosmopolitan duty" argument that is raised in criticizing the United States for its failure to take affirmative steps that would help other nations and their peoples. This argument maintains that the United States should ratify global treaties and intervene more vigorously to stop human rights abuses, even if doing so would lower net U.S. welfare. This essay argues that underappreciated theoretical, practical, and moral factors limit the duty of liberal democracies to engage in cosmopolitan action, and that there cannot be a coherent ideal of liberal democracies' cosmopolitan duties unless these realistic limits on what liberal democracies can do is understood. However, this essay does not criticize the cosmopolitan stance per se; rather, it suggests ways that cosmopolitan sentiments can be more fully realized by being more realistic.
Jack L. Goldsmith, The Self-Defeating International Criminal Court, 70 U. Chi. L. Rev. 89 (2003).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
Courts
,
International Law
,
Human Rights Law
Type: Article
Jack L. Goldsmith & Eric A. Posner, Moral and Legal Rhetoric in International Relations: A Rational Choice Perspective, 31 J. Legal Stud. S115 (2002).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Foreign Relations
,
International Law
Type: Article
Abstract
Critics of realist and rational choice approaches to international law argue that if nations were motivated entirely by power or self-interest, their leaders would not make moral and legal arguments because no one would believe them. Thus, the prevalence of moral and legal rhetoric on the international stage refutes the behavioral assumptions of realism and rational choice. This paper argues that even if nations are not motivated by a desire to comply with morality or law, the use of moral and legal arguments could occur in equilibrium. Signaling and cheap talk models show that nations may engage in talk in order (1) to deflect suspicion that they have unstable political systems or adversarial interests, and (2) to coordinate when gains from coordination are available. International talk is often moral and legal because the obligational vocabulary of moral and legal dispute between individuals is also useful for purely amoral strategic interactions when cooperation and coordination are involved. The existence of moral and legal rhetoric in international relations is the result of strategic incentives, not of the desire to comply with morality or law.
Curtis A. Bradley & Jack L. Goldsmith, The Constitutional Validity of Military Commissions, 5 Green Bag (2002).
Categories:
Government & Politics
,
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Terrorism
,
Executive Office
,
Congress & Legislation
,
Military, War, & Peace
,
National Security Law
Type: Article
Abstract
This essay defends the constitutional validity of the Military Order issued by President Bush on November 13, 2001, which authorizes the establishment of military commissions to try certain non-citizens involved in terrorism. The essay begins by describing the ways in which military commissions have been used throughout U.S. history. It then explains why President Bush had statutory authority to issue the Military Order, and why he probably also had independent constitutional authority to do so as Commander in Chief. Although the Order was not preceded by a congressional declaration of war, the essay argues that such a declaration is not constitutionally required in order for the President to exercise his constitutional or statutory war powers, including his power to establish military commissions. Finally, the essay argues that the September 11 terrorist attacks, to which the Order was a response, violate the laws of war and therefore fall within the jurisdiction of military commissions.
Curtis A. Bradley & Jack L. Goldsmith, My Prerogative, 80 Foreign Aff. 188 (2001).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Foreign Relations
,
International Law
Type: Article
Jack L. Goldsmith & Alan O. Sykes, The Internet and the Dormant Commerce Clause, 110 Yale L.J. 785 (2001).
Categories:
Technology & Law
,
Civil Practice & Procedure
,
Constitutional Law
Sub-Categories:
Jurisdiction
,
Cyberlaw
,
Networked Society
,
Communications Law
Type: Article
Jack L. Goldsmith & Curtis Bradley, Treaties, Human Rights, and Conditional Consent, 149 Pa. L. Rev. 399 (2000).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Foreign Relations
,
International Law
,
Human Rights Law
Type: Article
Jack L. Goldsmith, The Internet, Conflicts of Regulation, and International Harmonization, in Governance in the Light of Differing Local Values (Law and Economics of International Telecommunications) (Christoph Engel & Kenneth H. Keller eds., Nomos 2000).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Cyberlaw
,
Networked Society
Type: Book
Jack L. Goldsmith, Statutory Foreign Affairs Preemption, 2000 Sup. Ct. Rev. 175 (2001).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Federalism
,
Supreme Court of the United States
,
Foreign Relations
Type: Article
Abstract
This paper examines the problem of statutory foreign affairs preemption. There are two related interpretive issues. One concerns the proper interpretive default presumption. Should preemption analysis indulge a presumption in favor of the federal government's strong national interest in conducting foreign affairs? Should it instead be biased to protect traditional state prerogatives? Or should no presumption attach in either direction? I argue that neither an interpretive canon favoring federal foreign affairs interests, nor one favoring state interests, is warranted in this context. Considered separately, each canon rests on implausible institutional and empirical assumptions. When a foreign relations statute touches on traditional state prerogatives, both canons are implicated, and both lose coherence. The prudent course is for courts to apply "ordinary" principles of preemption without any presumption in favor of state or federal law, even when they think the statute concerns foreign affairs. Of course, courts have an array of "ordinary" preemption doctrines at their disposal even after they have resolved the default presumption issue. The second issue, therefore, is: Which preemption doctrine(s) should they apply in the foreign relations context? When a case involves a state law that appears to implicate foreign relations, options for preemption include express preemption, conflict preemption, obstacle preemption, field preemption, dormant commerce clause preemption, dormant foreign affairs preemption, and the federal common law of foreign relations. These doctrines can be compared along two dimensions: (a) the degree to which the political branches have spoken to the preemption issue, and (b) the extent to which preemption doctrines require courts to engage in an independent assessment of the state law's effect on U.S. foreign relations. I argue that, for reasons of institutional competence and political process, and because of the waning of the domestic-foreign affairs distinction, courts should engage in minimalist statutory foreign affairs preemption. They should eschew independent judicial foreign policy analysis, and preempt state law only on the basis of policy choices traceable to the political branches in enacted law. This, I argue in the last Section of the paper, is precisely what the Supreme Court did in its recent decision in Crosby v. National Foreign Trade Council, 120 S Ct 2298 (2000).
Jack L. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199 (1998).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Cyberlaw
,
Networked Society
,
Communications Law
Type: Article
Abstract
This article discusses the fundamental question of whether the state can regulate cyberspace that was raised when the Supreme Court partially invalidated the Communications Decency Act on First Amendment grounds in the 1997 case of Reno v. ACLU. Professor Goldsmith challenges three specific errors made by those who are skeptical as to whether the government can regulate cyberspace: (1) their overstatement of the differences between cyberspace transactions and other transnational transactions; (2) their failure to recognize the distinction between default laws and mandatory laws; and (3) their underestimation of the potential of traditional legal tools and technology to resolve the multijurisdictional regulatory problems implicated by cyberspace.
International Dispute Resolution: The Regulation of Forum Selection (Jack L. Goldsmith, ed. 1996).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Arbitration
Type: Book
Abstract
For situations where the forum selection clause can make all the difference, this book is invaluable. The text shows how parties can mitigate the effects of concurrent jurisdiction ex ante through the use of forum selection clauses in arbitration agreements, and also explains the role of provisional and protective measures in the regulation of forum selection and judicial doctrines that directly regulate "improper" forum selections.

Current Courses

Course Catalog View

Areeda 233

617-384-8159

Assistant: Jan Qashat / 617-496-2026