{"id":8058,"date":"2009-11-19T10:09:29","date_gmt":"2009-11-19T15:09:29","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=8058"},"modified":"2009-11-19T10:09:29","modified_gmt":"2009-11-19T15:09:29","slug":"mainstreaming-international-law-in-legal-education","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/11\/mainstreaming-international-law-in-legal-education\/","title":{"rendered":"Mainstreaming International Law in Legal Education"},"content":{"rendered":"

\"globe\"This week is \u201cInternational Education Week\u201d, a joint initiative of the U.S. Department of State and the U.S. Department of Education <\/a>to promote \u201cprograms that prepare Americans for a global environment and attract future leaders from abroad to study, learn, and exchange experiences in the United States.\u201d \u00a0Schools and other educational institutions around the country have been carrying out activities around this national theme, including Marquette University<\/a>.<\/p>\n

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.\u00a0\u00a0 While this development can be seen most readily with the proliferation of foreign exchange programs such as Marquette Law School\u2019s own summer program in Giessen, Germany<\/a>, it also appears through the positioning of international law classes in the curriculum of traditional legal education.<\/p>\n

Since the mid-century, it has become common for law schools to sprinkle course listings with upper-level and elective classes in international law.\u00a0 <\/p>\n

More recently, some law schools have gone as far as requiring students to take international law as part of the standard core curriculum.\u00a0 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>.\u00a0 A handful of law schools, such as Columbia Law School<\/a> and the University of Wisconsin School of Law<\/a>\u00a0are 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.<\/p>\n

Yet, at the turn of the last century, few law schools even taught international law classes.\u00a0 \u00a0Responding to this exclusion, Columbia Law Professor James B. Scott is credited for taking the lead <\/a>in pushing for the inclusion of international law in the law school curriculum, becoming \u201cwell-known among his contemporaries as a leading spokesman for a new and important discipline.\u201d<\/p>\n

Nonetheless, to accomplish his mission, Professor Scott first<\/em> had to prove that international law was really \u201claw\u201d at all, and not just morality.\u00a0 Certainly, legal positivists and proponents of the Austinian theory of law <\/a>argued that the international system had no identifiable sovereign law-maker who could also guarantee enforcement. \u00a0Interestingly, Professor Scott\u2019s first line of defense relied on our very own United States Constitution, which gives Congress through Article 1(8) the power to define \u201coffenses against the law of nations\u201d and recognizes \u201ctreaties\u201d in the Supremacy Clause of Article 6. \u00a0Scott 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<\/em> (1804), Paquete Habana<\/em> (1899) and Smith<\/em> (1820) cases.\u00a0 He then declared<\/a>:\u00a0 \u201cIt 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.\u00a0 It should, therefore, find a place in a lawyer\u2019s education.\u201d<\/p>\n

Professor Brunson MacChesney of Northwestern University Law School, writing in 1965 about the school\u2019s required class in international law \u2014 a novelty for its time \u2014 remarked in his article \u201cInternational Law: the Utility of its Study as Preparation for Law Practice\u201d:\u00a0<\/p>\n

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.\u00a0 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)<\/p><\/blockquote>\n

Fast forwarding, today advocates of international law no longer need to prove it is \u201creal\u201d law. \u00a0Instead, they benefit from the argument of necessity.\u00a0 For example, Michigan Law School\u2019s rationale<\/a> for making it a required course rests on the belief that \u201cevery 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.\u201d<\/p>\n

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 \u201cinternationalized\u201d almost every area of life.\u00a0 The movement of goods, people, and service and changes in technology and communication make transnational interdependence, contact, and cooperation a commonplace occurrence.\u00a0 \u00a0To stay competitive, trade and business must go global.\u00a0 Since all these matters touch some aspect of law, we then, by necessity, must prepare new lawyers for today\u2019s reality.<\/p>\n

This impetus to reorient legal education has encouraged conferences and meetings to grapple with how to adapt the \u201cparochial\u201d American law school to grow into the shoes of this new worldly \u201ccosmopolitism.\u201d\u00a0 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).\u00a0 An array of European and American academics contributed to a thematic volume of the journal Ius Gentium <\/em>aptly titled \u201cThe Internationalization of Law and Legal Education.\u201d\u00a0 One of the volume\u2019s editors Mortimer Sellers<\/a>, Professor at the University of Baltimore School of Law and Director of the Center for International & Comparative Law, explains<\/a> that EACLE arose in response to the \u201cworld-wide phenomena\u201d of the \u201cinternationalization of law.\u201d<\/p>\n

In attendance at the EACLE conference, Professor Larry Cat\u00e1 Backer of Penn State Dickinson School of Law warns in a foreboding tone<\/a>:<\/p>\n

Law schools that fail to conform their educational mission to the realities of law and the practices of the great global legal actors \u2014 merchants, immigrants, communities, nongovernmental organizations, economic entities, banks and other users of legal services \u2014 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.<\/p><\/blockquote>\n

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:<\/p>\n

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.\u00a0 It is unfortunate for the students and disastrous for the country that most law schools have failed so miserably. (\u201cLaw Schools\u2019 Shameful Neglect of the Transformative Effect on Globalization on the Practice of Law\u201d, Paper for the ABA Section on Legal Education: Out of the Box Committee, 2001).<\/p><\/blockquote>\n

This \u201cshameful failure\u201d points, in part, towards a still-existing debate on whether international law really figures as an essential part of a lawyer\u2019s education (despite of or perhaps because of its slow evolution in that direction).\u00a0<\/p>\n

This debate came to a head (not surprisingly) on\u00a0cyberspace.\u00a0\u00a0<\/p>\n

In September 2009, Professor Duncan Hollis of Temple University’s Beasley School of Law posed the question <\/a>on the blog Opinio Juris<\/em> of whether 1Ls should be required to take international law.\u00a0\u00a0 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<\/a>, responded with a resounding \u201cNO!\u201d\u00a0<\/p>\n

Posner explains<\/a> that only a handful of students would ever need international law, but \u201cthe 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.\u201d\u00a0 He then takes the dagger and plunges deeper, contending that the recent trend to mainstream international law does not<\/p>\n

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!\u00a0<\/p><\/blockquote>\n

Is international law just a passing fashion (even though introduced\u00a0by Professor Scott at the turn of the century), or do advocates for mainstreaming international education have their finger on the pulse of legal education\u2019s \u201ctipping point\u201d of transformation? (By the way, this same debate occurred on prawfsblawg<\/a> in 2006.)<\/p>\n

Hollis questions the \u201cutility\u201d approach to legal education proposed by Posner. As one commenter to the post remarked, \u201cThe same could be said of most of what’s mandatory in 1L year. I’m still waiting for my rule against perpetuities litigation.\u201d\u00a0 But that rebuttal aside, Hollis poses to the world (cyberspace world, that is) the question of whether international law really has \u201cas small a footprint\u201d as Posner suggests.\u00a0 Do people in \u201cmore traditional domestic practices\u201d find they really do not deal with international legal issues EVER?\u00a0 Moreover, is it really true that \u201ctypes of public international law concepts that might come in handy for a law firm lawyer \u2014 such as treaty interpretation \u2014 are easily picked up,\u201d as argued by Posner?<\/p>\n

Having myself always practiced in the international arena, I cannot fairly answer this question.\u00a0 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 \u201cyes\u201d.<\/p>\n

So perhaps we go back to the beginning.\u00a0 As one earnest commentator posted in response to Posner: \u201cB-b-b-but isn’t international law on equal footing with the Constitution??\u201d\u00a0 So, I suppose only time will tell whether the forefathers had it right after all.<\/p>\n","protected":false},"excerpt":{"rendered":"

This week is \u201cInternational Education Week\u201d, a joint initiative of the U.S. Department of State and the U.S. Department of Education to promote \u201cprograms that prepare Americans for a global environment and attract future leaders from abroad to study, learn, and exchange experiences in the United States.\u201d \u00a0Schools and other educational institutions around the country […]<\/p>\n","protected":false},"author":25,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[20,34],"tags":[],"class_list":["post-8058","post","type-post","status-publish","format-standard","hentry","category-international-law","category-legal-education","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/8058","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/25"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=8058"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/8058\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=8058"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=8058"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=8058"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}