Mainstreaming International Law in Legal Education

globeThis 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.

This Post Has 6 Comments

  1. Matthew Fernholz

    Prof. Laplante,

    Before I can give a full response, I have a few questions:

    1. What do you mean by international law? Are you referring to case law in other countries, or some world tribunal that issues binding edicts? Assuming the latter, then:
    2. Who enforces international law?
    3. What provision in our Constitution allows for an international body to abrogate American sovereignty? And I am not referring to the treaty making power, which is obviously binding because it requires Senate ratification.

  2. Michael Waxman

    I strongly support the premise that law schools must interweave international and domestic legal analysis in order to prepare law students for the breadth of legal practice in the 21st century. Indeed, in 2001 I wrote an article advocating the use of comparative law throughout the law school curriculum [Teaching Comparative Law in the 21st Century: Beyond the Civil/Common Law Dichotomy, 51 Journal of Legal Education 305 (2001]. A course that introduces “international” legal concepts needs to be complemented by the adoption of materials in diverse courses that allow students to see how these concepts fit and don’t fit with traditional American legal thinking.

    To the extent students are introduced to the concepts and practices of international public and private law and comparative law at an early stage in their legal educations they will be able to see not only how these “foreign” legal concepts impact the practice of law in the U.S. but also they will be much more effective in counseling clients when addressing complex extraterritorial matters. Currently, there is a battle of sorts going on at the United States Supreme Court as to the relevance and significance of “foreign” legal concepts in American law (I tend to think this is where Mr. Fernholz is going but I am not sure). Whatever the result of that debate it is beyond question American attorneys will need to be able to address transnational and international legal issues as we march headlong into a severely splintered yet ever shrinking world.

  3. Lisa Laplante

    Mr. Fernholz,
    As mentioned in my blog entry, the law schools which have begun to require international law or offer it as a first year elective tend to take a broad view of international law to encompass private, public and comparative aspects.

    As far as sources, treaties are certainly the most common although Prof. Scott referenced early seminal Supreme Court cases that applied customary law. You might refer to the Restatement of the Law (3d) of Foreign Relations Law of the United States to get more clarity on your question.

    Enforcement of international law occurs often through municipal courts, arbitration, international treaty based bodies like the ICJ, the WTO and other entities. As far as your second question, I am not sure how it is relevant to the discussion since international law is by definition a consent based system of law in order to accommodate issues of sovereignty.

    I hope I have satisfactorily answered your questions.

  4. Matthew Fernholz

    Prof. Laplante,

    Thank you for clarifying. Your definition of international law seems benign; when I read the last paragraph of your initial post about international law being on equal footing with the Constitution, I thought you were implying that American sovereignty could be subjugated by international agreements, even those that the U.S. did not consent to.

    As for whether law students could benefit from an international law course, I have to agree with Prof. Posner. Granted, my legal experience is limited, but I cannot imagine too many scenarios where a Wisconsin lawyer will need to know about the inner-workings of The Hague or the jurisprudence of New Zealand. I also cannot agree with the hyperbolic statement by the University of Michigan Law School that “virtually every area of law is being affected by international aspects.” It is true that transactional lawyers in large Manhattan and Washington law firms will need to know about the laws affecting international markets, but I suspect one can successfully practice probate law or work in the D.A.’s office without studying international law.

    Perhaps this is debate over semantics. Examining international law may be interesting as a survey, but I doubt that many attorneys would ever encounter international concepts in their day-to-day work.

  5. Gordon Hylton

    International and comparative law are making their way into the first year law school curriculum and not just as a first year elective.

    Washington & Lee has recently dropped Criminal Procedure from its first year curriculum and replaced it with a required course on international and comparative law. The new law school at UC-Irvine has replaced Property in the first year curriculum with a similar course. Harvard added such a course to its first year curriculum a couple of years ago amid much fanfare on the banks of the Charles.

  6. Lisa Laplante

    Mr. Fernholz,

    Just to clarify, the U.S. constitution does view international law on par with all national law (assuming it does not violate the U.S. Constitution, which is the same standard for all law):

    “Article VI – Debts, Supremacy, Oaths

    ….This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    Also, while I am sure your experience thus far would lead you to the conclusions you make, I would encourage you to perhaps keep an open mind as you enter practice–I think you will be surprised. Or better yet, why not take an international law course to allow you to make an informed assessment of the matter? (assuming from your post that you have not already done so). I certainly would encourage that approach to assure a richer debate!

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