This week is “International Education Week”, a joint initiative of the U.S. Department of State and the U.S. Department of Education to promote “programs that prepare Americans for a global environment and attract future leaders from abroad to study, learn, and exchange experiences in the United States.”  Schools and other educational institutions around the country have been carrying out activities around this national theme, including Marquette University.

The thematic week prompts me to explore the role of international law in the American law school setting. Although the curriculum of law schools in the United States has traditionally offered a narrow focus on domestic law, it has slowly expanded over the last century to include an international focus, albeit a limited one.   While this development can be seen most readily with the proliferation of foreign exchange programs such as Marquette Law School’s own summer program in Giessen, Germany, it also appears through the positioning of international law classes in the curriculum of traditional legal education.

Since the mid-century, it has become common for law schools to sprinkle course listings with upper-level and elective classes in international law. 

More recently, some law schools have gone as far as requiring students to take international law as part of the standard core curriculum.  Michigan Law School took the lead in this direction by requiring students to take a full course that incorporates aspects of private, public, and comparative international law.  A handful of law schools, such as Columbia Law School and the University of Wisconsin School of Law are making international law an elective available to first-year students, thus providing them with a foundation for gaining a more profound mastery of the subject in upper class courses.

Yet, at the turn of the last century, few law schools even taught international law classes.   Responding to this exclusion, Columbia Law Professor James B. Scott is credited for taking the lead in pushing for the inclusion of international law in the law school curriculum, becoming “well-known among his contemporaries as a leading spokesman for a new and important discipline.”

Nonetheless, to accomplish his mission, Professor Scott first had to prove that international law was really “law” at all, and not just morality.  Certainly, legal positivists and proponents of the Austinian theory of law argued that the international system had no identifiable sovereign law-maker who could also guarantee enforcement.  Interestingly, Professor Scott’s first line of defense relied on our very own United States Constitution, which gives Congress through Article 1(8) the power to define “offenses against the law of nations” and recognizes “treaties” in the Supremacy Clause of Article 6.  Scott then discussed the new line of cases (that is, new at the time Professor Scott wrote his appeal in 1903) in which the U.S. Supreme Court gave deference to international law, like the Charming Betsey (1804), Paquete Habana (1899) and Smith (1820) cases.  He then declared:  “It is submitted that this case settles the question for an American lawyer . . . that international law is law; that it is part of our municipal law; that our courts take judicial notice of it as such.  It should, therefore, find a place in a lawyer’s education.”

Professor Brunson MacChesney of Northwestern University Law School, writing in 1965 about the school’s required class in international law — a novelty for its time — remarked in his article “International Law: the Utility of its Study as Preparation for Law Practice”: 

Although international law was part of the stock in the trade of those founding fathers of our country, who were lawyers, it seemed to get lost in the expanding growth of the continent in the nineteenth century.  It did not get lost literally, but the average common lawyer tended to consider it as a somewhat esoteric specialty not related to his daily concerns. (36 Miss. L.J. 171 1965)

Fast forwarding, today advocates of international law no longer need to prove it is “real” law.  Instead, they benefit from the argument of necessity.  For example, Michigan Law School’s rationale for making it a required course rests on the belief that “every lawyer should know about law beyond the domestic ( American) orbit in order to be qualified for practice in an age in which virtually every area of law is being affected by international aspects.”

Indeed, a quick survey of law review articles dealing with the mainstreaming of international law in legal education base their case primarily on how globalization has “internationalized” almost every area of life.  The movement of goods, people, and service and changes in technology and communication make transnational interdependence, contact, and cooperation a commonplace occurrence.   To stay competitive, trade and business must go global.  Since all these matters touch some aspect of law, we then, by necessity, must prepare new lawyers for today’s reality.

This impetus to reorient legal education has encouraged conferences and meetings to grapple with how to adapt the “parochial” American law school to grow into the shoes of this new worldly “cosmopolitism.”  For example, in 2007 the University of Helsinki Faculty of Law and the Academy of Finland Centre of Excellence in Global Governance Research convened a meeting of the European-American Consortium for Legal Education (EACLE).  An array of European and American academics contributed to a thematic volume of the journal Ius Gentium aptly titled “The Internationalization of Law and Legal Education.”  One of the volume’s editors Mortimer Sellers, Professor at the University of Baltimore School of Law and Director of the Center for International & Comparative Law, explains that EACLE arose in response to the “world-wide phenomena” of the “internationalization of law.”

In attendance at the EACLE conference, Professor Larry Catá Backer of Penn State Dickinson School of Law warns in a foreboding tone:

Law schools that fail to conform their educational mission to the realities of law and the practices of the great global legal actors — merchants, immigrants, communities, nongovernmental organizations, economic entities, banks and other users of legal services — will find themselves playing a limited role in the future of the development of law and the production of law and lawyers for the global marketplace.

The late Mary C. Daly, former dean of St. John’s University School of Law, took a more direct tactic and scolded the law academy:

Given the inescapable march of globalization and the pervasiveness with which the law permeates the U.S. society, law schools have a unique obligation to prepare their graduates to practice in a global environment.  It is unfortunate for the students and disastrous for the country that most law schools have failed so miserably. (“Law Schools’ Shameful Neglect of the Transformative Effect on Globalization on the Practice of Law”, Paper for the ABA Section on Legal Education: Out of the Box Committee, 2001).

This “shameful failure” points, in part, towards a still-existing debate on whether international law really figures as an essential part of a lawyer’s education (despite of or perhaps because of its slow evolution in that direction). 

This debate came to a head (not surprisingly) on cyberspace.  

In September 2009, Professor Duncan Hollis of Temple University’s Beasley School of Law posed the question on the blog Opinio Juris of whether 1Ls should be required to take international law.   University of Chicago Law School Professor Eric Posner, who both teaches international law (as an elective first-year course) and serves as one of its biggest critics, responded with a resounding “NO!” 

Posner explains that only a handful of students would ever need international law, but “the chance that [a law student] will encounter the type of issue taught in a public international law course over the course of your career is close to zero.”  He then takes the dagger and plunges deeper, contending that the recent trend to mainstream international law does not

rest on any coherent theory of pedagogic priorities. They are marketing gimmicks that play off buzzwords like globalization. They do little more than reflect transitory intellectual fashions. They are patronizing efforts to turn you into citizens-of-the-world. If you have time on your hands and want to learn something that might increase your value to future employers, take statistics! 

Is international law just a passing fashion (even though introduced by Professor Scott at the turn of the century), or do advocates for mainstreaming international education have their finger on the pulse of legal education’s “tipping point” of transformation? (By the way, this same debate occurred on prawfsblawg in 2006.)

Hollis questions the “utility” approach to legal education proposed by Posner. As one commenter to the post remarked, “The same could be said of most of what’s mandatory in 1L year. I’m still waiting for my rule against perpetuities litigation.”  But that rebuttal aside, Hollis poses to the world (cyberspace world, that is) the question of whether international law really has “as small a footprint” as Posner suggests.  Do people in “more traditional domestic practices” find they really do not deal with international legal issues EVER?  Moreover, is it really true that “types of public international law concepts that might come in handy for a law firm lawyer — such as treaty interpretation — are easily picked up,” as argued by Posner?

Having myself always practiced in the international arena, I cannot fairly answer this question.  So I recently asked a recent MULS graduate working at a large Milwaukee firm if international law is relevant to private firm practice. She gave me a resounding “yes”.

So perhaps we go back to the beginning.  As one earnest commentator posted in response to Posner: “B-b-b-but isn’t international law on equal footing with the Constitution??”  So, I suppose only time will tell whether the forefathers had it right after all.