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Henry E. Smith and Oona Hathaway Join Yale Law School Faculty

Two new faculty members have joined Yale Law School beginning in the 2002-03 academic year.

Henry E. Smith '96 has been named professor of law. He was previously a visiting professor at YLS in 2001-02 and was on the faculty at Northwestern University School of Law, where he started teaching in 1997. Smith graduated from YLS in 1996 and clerked for Judge Ralph K. Winter on the U.S. Court of Appeals, Second Circuit. Smith also holds a Ph.D. in linguistics from Stanford University and taught Germanic linguistics as a visiting assistant professor at Indiana University.

Smith decided to attend law school as a break from the field of linguistics, which he saw as "becoming more non-empirical." Legal studies appealed to him, because "law is pretty analytical, but it is also more tied to the real world than linguistics is," he says. However, some of his recent scholarship has integrated insights from linguistics into his consideration of legal questions.

One aspect of Smith's current work springs from a parallel in the structure of communication in natural language and legal relations. In both systems, says Smith, "there's a basic tradeoff that I'm trying to identify between communicating intensively with a small, homogeneous, personal group with a lot of background knowledge, versus more extensively with an indefinite, large, heterogeneous group." For instance, the communication of a property right, which is broadcast to the world at large, is much less "intense" than the terms of a contract, which are more likely to be between informed and limited parties.

"What I'm trying to see," says Smith, "is if the law sometimes intervenes to make sure that people are not communicating too intensively with an extensive audience--particularly when [the audience doesn't] really have a consensual, contractual choice about what mode of communication to be engaged in."

Smith has also used the framework of new institutional economics to examine the nature of property as a bundle of features. In "Semicommon Property Rights and Scattering in the Open Fields" (published in the Journal of Legal Studies), for example, Smith wrote about how the medieval commons "combined common property aspects and private property aspects over the same physical resource. But for different features or activities, one or the other regime would govern."

Smith will teach Patent Law in the fall term, in which he will cover the field both as a specialized discipline and as a subset of property law. He will also teach a Natural Resources Seminar by covering the history of the public lands in the United States, followed by an "interlude about the division of authority over public lands and natural resources. Then I go through several resources: water, hard-rock minerals, oil and gas, and wildlife." Smith anticipates that the two courses will be interesting to teach simultaneously, as they both deal with the delineation of property rights over various resources.

Oona Hathaway '97 comes to YLS as an associate professor, after teaching for two years at Boston University School of Law. She graduated from Yale Law School in 1997 and then clerked for Judge Patricia Wald on the U.S. Court of Appeals, D.C. Circuit, and for Justice Sandra Day O'Connor on the U.S. Supreme Court. She then spent two years as a fellow at the Harvard University Center for Ethics and the Profession and the Harvard University Carr Center for Human Rights Policy.

Hathaway's recent academic work has focused primarily on two areas. The first is an exploration of human rights treaties. This is in fact an area of law that originally drew Hathaway as a student to YLS, where she studied international human rights litigation and law with Harold Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law, and others.

In a paper titled "Do Human Rights Treaties Make a Difference?" (published in the Yale Law Journal), Hathaway says that she set out "with the hope of finding that human rights treaties would make a positive difference in countries' practices, and hoping to dispel the cynics about human rights treaties." However, her results "suggested almost the opposite": where a country's having ratified a treaty correlated with a difference in human rights practices, it usually correlated with worse practices, not better. Hathaway emphasizes that this doesn't mean that human rights treaties cause bad practices. There are many possible explanations: for instance, it could be that countries with worse practices are more likely to join such treaties. Her ongoing research is trying to explain these results by looking at why nations subscribe to international human rights treaties in the first place.

Hathaway ventured into a second area of investigation with a paper, "Path Dependence in the Law: The Course and Pattern of Change in a Common Law Legal System," published in 2001. In this work, she applied a body of literature from political science, called path dependence theory, to argue that common law systems don't necessarily evolve toward greater and greater efficiencies. Under the doctrine of stare decisis, judicial decisions depend on earlier precedents. This is an "example of path dependence," says Hathaway, "where one step taken in a particular direction will lead to future steps in that same direction . . . and not necessarily the direction that would be most efficient." Hathaway plans to further develop this approach by comparing path dependence in common law and civil law systems.

Hathaway will teach three courses in the upcoming academic year: Civil Procedure; Ideas, Culture, and Rationality in International Law and Politics, which will draw on both legal and international relations scholarship; and a seminar, International Law and State Behavior Seminar, which will follow many of the issues in Hathaway's own scholarship.

Hathaway looks forward to the new academic year. "For me, it's wonderful to come to Yale, because there's such an amazing group of scholars and students who are interested in, excited about, and knowledgeable about international law," she says.