The Study of International Law in American Law Schools: A Brief History

Posted on Categories International Law & Diplomacy, Legal Education, PublicTags

As I’ve discussed in other posts, international law has a fairly peripheral role in American legal education. Only eight schools require their students to complete a course on the subject, and the range of international electives tends to be quite limited. Wondering whether this is only a recent phenomenon or instead something with deeper roots, I did a little research into historical practice. It turns out that scholars have surveyed the state of international legal education in the United States multiple times over the course of the past century. By combining their work—including two particularly good pieces by Manley Hudson (1929) and William Bishop (1953)—with a recent survey of my own, we can gain at least a rough sense for how the curriculum has evolved over time. Here’s what I found:

First, international law had a role even in the Founding era. In 1779, for example, the law of nations was added to the instructional duties of the “moral professor” at William & Mary. In 1790, James Wilson devoted a “considerable part” of his lectures at the College of Philadelphia to the law of nations, while James Kent lectured on the subject at King’s College just a few years later. According to Hudson, “the law of nations had a recognized place in the pursuit of a legal education, and it formed a part of the learning of many of the better-educated lawyers” of the period.

But international law appears to have lost a bit of its luster as a topic of study by the mid-1800s. Hudson explains that notwithstanding a growing body of American treatises, “some prejudice against the subject grew up among those engaged in professional legal education.” Why did this happen? A number of factors contributed: law students found themselves “overwhelmed by the development of private law,” the “law-teaching profession was recruited from the ranks of practitioners, few of whom had had experience with international law,” and “the system of law reports inaugurated in 1879 gave no special place to it.” Surely another influence was the relative insularity of the pre-imperial United States.

Lack of enthusiasm manifested in the form of limited course offerings. A survey from 1907 found that while ten schools—Harvard, Yale, Columbia, Cornell, Chicago, Indiana, Iowa, George Washington, John Marshall, and Washington University—offered an elective, “[m]any of the lesser schools and most of the Western schools omit[ted] international law.” This state of affairs persisted for quite some time. Hudson complained in 1929 that law schools had “neglect[ed] the subject” for the past “several decades.” In 1933, Edward Dickinson described international law as a “curricular luxury” that “is actually affecting a very small percentage of the law students.” By 1938, only 22 of 84 AALS schools offered even one course on the subject.

Offerings did, however, increasing over time, particularly after World War II. By 1947, the number of schools with an elective in international law had increased to 30. That number soon grew to 55, or 51% of AALS member schools, by 1953 and 91, or 68% of schools, by 1964. At this point, moreover, it was not uncommon to see multiple offerings—32% of schools had three or more electives in international legal studies by the mid-1960s. Reported contributors to this shift include the publication of new teaching materials, an increase in the number of law professors who were qualified to teach the subject, and a growing student perception of the utility of international training.

The postwar trend continued into more recent decades. By 1991, John King Gamble was able to report that 98% of schools made available at least one course on international law. By 1997, roughly 90% had 5 or more international offerings. A 2004 ABA survey documented a “noted increase[]” in international electives during the 1990s, with 33 schools now making available not only an introductory course, but specialization certificates as well.

Although it is unclear whether the United Nations played a role, changes in the American curriculum over the second half of the twentieth century occurred alongside a litany of UN General Assembly resolutions calling on states to expand international legal education. In the first of these, adopted in 1947, the General Assembly resolved “to request the Governments of Members States [t]o take appropriate measures to extend the teaching of international law in all its phases . . . in the universities and higher educational institutions of each country that are under government control . . . , or to initiate such teaching where it is not yet provided.” Subsequent resolutions reaffirmed this request with more forceful language: In 1962, the General Assembly “[u]rge[d] Member States to undertake broad programmes of training . . . in the field of international law.” From 1970 to 1990, a string of ten resolutions repeatedly “[u]rge[d] all Governments to encourage the inclusion of courses on international law in the programmes of legal studies offered at institutions of higher learning.” In 1989, the General Assembly adopted a resolution declaring the 1990s the “United Nations Decade of International Law,” one of the primary goals of which was to “encourage the teaching, study, dissemination and wider appreciation of international law.” Subsequent resolutions from 1991, 1993, 1995, 1997, and 1999 “[u]rged all States . . . to make all possible efforts to implement th[is] goal,” and a resolution from 1992 specifically invited states to “encourage their educational institutions to introduce courses in international law for students studying law, political science, social science and other relevant disciplines.”

The precise extent to which U.S. students have taken advantage of the marked increase in the availability of training is unclear. Notwithstanding greater support for international law as an elective, virtually no American schools mandate any instruction on the subject, and it appears that this has long been the custom. One survey from 1946, for example, explained that international courses at the time were “nearly always elective, not required.” A 1951 survey similarly found that only five law schools required their students to complete such a course. And while there are reasons to believe that international law might be more popular with modern students than their predecessors, it still appears that only a distinct minority chooses to pursue an international elective. A 1997 study, for instance, found that fewer than 20% take a course on international law.

In short, the study of international law in the university setting has a long history in the United States, and it appears that formal training in the discipline is far more available to students today than at any other time since the Founding. But international law is still a fairly marginal part of the standard American curriculum, particularly in comparison to the curricula of other countries, many of which require all of their students to study international norms.

Sources

ABA Proceedings of the Section of International and Comparative Law, Report of the Committee on Teaching of International and Comparative Law 127-29 (Sept. 18-19, 1951)

ABA Section of Legal Education and Admission to the Bar, A Survey of Law School Curricula, 1992-2002 (2004)

John A. Barrett, Jr., International Legal Education in the United States: Being Educated for Domestic Practice While Living in a Global Society, 12 Am. U. Int’l L. Rev. 975 (1997)

William W. Bishop, Jr., International Law in American Law Schools Today, 47 Am. J. Int’l L. 686 (1953)

Michael H. Cardozo & Richard R. Baxter, The Practical State of Teaching and Research in International Law, 1974 (1977)

Richard W. Edwards, Jr., International Legal Studies: A Survey of Teaching in American Law Schools, 1963-1964 (1965)

John King Gamble, Teaching International Law in the 1990s (1992)

Charles Noble Gregory, The Study of International Law in Law Schools, 2 Am. L. School Rev. 41 (1907)

Manley O. Hudson, The Teaching of International Law in America, 15 ABA J. 19 (Jan. 1929)

Manley O. Hudson, Twelve Casebooks on International Law, 32 Am. J. Int’l L. 447 (1938)

Joseph L. Kunz, A Plea for More Study of International Law in American Law Schools, 40 Am. J. Int’l L. 624 (1946)

Philip W. Thayer, The Teaching of International and Comparative Law, 1 J. Legal Educ. 449 (1948-1949)

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