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Sunday, February 12, 2006

Making International and Comparative Law a First Year Requirement

I’ve been a very poor guest here at PrawfsBlawg. I have lingered long beyond my welcome while failing to provide much of the conversation a good guest should provide.  So let me try to make amends, even as I start packing up my belongings and heading for the door.

This past semester, Hofstra’s faculty approved the adoption of a required first-year course in international and comparative law. 

Hofstra thus becomes the second law school in the U.S. to make a course in international and comparative law mandatory for first-year law students (Michigan was the first). Hofstra’s new course will be called “Transnational Law”.  It will introduce first year students to the basic doctrines underlying public and private international law.  It will also require students to develop a basic understanding of the major foreign domestic legal systems.

Obviously, I think this is a good idea. But I would think that. After all, I am interested in foreign and international law, and foreign affairs in general.  But we are not talking about adding another elective.  We are requiring all first-year students to take this course.  Can we justify requiring first year students to take a course in transnational law even if they have no intention of ever practicing in this area?

I think the answer is yes.  After all, the traditional first year curriculum is full of courses which may have little practical value in the long run.  I have spent little time thinking about torts since my first semester, and even less thinking about property. 

But the fact that the other first-year courses are not useful does not necessarily mean that transnational law is the right course to plug in.  There are lots of useful courses that could be added to the first year curriculum.

I believe I have a very good case for making transnational law a part of the first year curriculum.  There is the practical reality of economic globalization and consequential pedagogical necessity of training lawyers to interact with foreign as well as international legal systems.  And there is also the possibility that “mainstreaming” transnational law, so to speak, will de-mystify these areas of law.  It could wrest topics such as foreign affairs law and international treaty interpretation away from the egghead specialists like myself and make it part of the everyday conversation of the average law student and lawyer. 

Even though I think this is a good idea, developing such a course is fraught with difficulties. We could easily end up making law students resentful and even more skeptical of the relevance of transnational law.  Those of us who will be teaching the course have been busily putting our heads together to develop a completely new set of materials and a really different approach to teaching these subjects. 

I don’t believe we can simply use standard public international law materials with a sprinkling of comparative materials. Unlike an upper-level elective, the faculty here has now decided to require all Hofstra students, whether or not are interested in foreign affairs or international law, to take this course. This is a really different audience requiring a completely new approach. 

What is this new approach?  Well, that is currently something I and my colleagues are working on.  But I’m always willing to take suggestions.

Posted by JulianKu on February 12, 2006 at 07:09 PM in Teaching Law | Permalink

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Comments

What other courses are compulsory at Hofstra? For the average Hofstra law student, Is practical benefit ofstudying comparative law greater than studying evidence, corporations, tax, administrative law, or criminal procedure? Are those courses required?

Posted by: m | Feb 12, 2006 8:19:06 PM

I don't have a firm opinion as to whether this is a good idea or not. but, I'm curious as to whether you'll cover both private and public international law. (Much of private international law seems to be more regulation than law, strictly speaking, but perhaps is also more likely to be what a typical lawyer would come in to contact with- a question about whether a regulation on securities listings were met by a foreign company or the like- as opposed to whether a treaty was violated or there is standing for a case before the ICJ or something.)

Posted by: Matt | Feb 12, 2006 9:54:20 PM

From my fast perusal of the Hofstra Law course selection guide (online), it appears that none of the following courses are required:

- Administrative Law;
- Evidence;
- Business Organizations (aka corporations).

Students are "strongly encouraged" to take the latter two.

So at Hofstra, studying "transnational law" is now considered more important than studying U.S. evidence law, and significantly more important than studying U.S. administrative law.

Seen in this light, the new requirement seems hard to justify except as (1) niche marketing (which is fine); and/or (2) a fairly strong, and contestable, prediction by Hofstra about the future course of American law, perhaps coupled with a contestable normative/political statement about that law.

Both of which Hofstra is perfectly entitled to make, of course. It would be a dull world if every law school had identical curricular requirements. But this particular judgment is not one I would endorse if it were my institution.

Posted by: Plainsman | Feb 12, 2006 9:59:24 PM

Incidentally, the Fall '05 course guide I referred to (http://www.hofstra.edu/PDF/law_courseselection_guide_fall05.pdf) also lists Federal Income Tax and Criminal Procedure as non-required courses. (Tax is strongly encouraged; the coursebook says "should be taken by nearly every student," which is also the phrase that should have been between quotes instead of "strongly encouraged" in my previous comment.)

Julian or a colleague will have to verify whether other course requirements are now being added or changed along with the new Transnational Law requirement.

Posted by: Plainsman | Feb 12, 2006 10:24:10 PM


I am all for both the predictive and normative parts of this that Plainsman talks about (I'm not sure what types of predictive power it takes for us to acknowledge that, for instance, contract law has been impacted by the increasing global trade and financial ties given that everyone already thinks this is true, but still).

However, I wonder if a semester or year long course specifically on transnational or comparative law makes a lot of sense. The two main impulses behind such an action, I think, are that (A) all areas of law are changing because of the impact of an increasingly interconnected world and (B) that our law has things to learn from law as it is practiced elsewhere. The best way to translate these two beliefs into instruction is not to create a course on transational law but instead to figure out a way to work international law, comparative law and intra-national dispute resolution into every course, from contracts to civil procedure to constitutional law (even those who think that foreign constitutions should not be used to help us interpret our own do (or at least should) think that foreign constitutions are important on their regard, both to lawyer's practices and to world peace, security and hapiness). Aside from teaching important (but not important to everyone) areas like treaty interpretation, international trade disputes and the law of war, I think it would be better to have every course include a section or more on how similar issues are handled in other countries and how disputes between our system and theirs are resolved.

Since Hofstra has this requirement, I think a good way to go about teaching it would be to track the other required courses. Start off with a section on classic international law issues that you'd want to teach to give other classes a chance to get ahead and then teach mini-sections on say, contract disputes internationally, choice of law and other procedure areas and comparative constitutionalism.

Posted by: BuddingProf | Feb 13, 2006 2:18:41 AM

Being a 2L currently in a lawschool (not Hofstra), I believe this is a good idea. My school offers an EU law class as a first year elective (1 of ~5) that students are allowed to take in their second semester. It's always full and extremely interesting. Through Hofstra requiring this course, it is making an attempt to open people's minds into thinking about different law heritages and showing that the law is quickly becoming global. I never did, and still don't, have any want to practice internationally, but it didn't stop me from taking an International Business Transactions course.

I don't think it's fair to say "how can they require X class without requiring Y and Z classes." If that were the case, there would be no electives. By requiring the courses people would not take, and only "highly recommending" other courses which people should take, the school is making a decision to push students to think through more than what the Bar tests. It's not required for me to take Evidence, Business Assoc., or Admin law, but I've taken 2 out of the 3 so far and plan on taking the last in my 3rd yr.

Good for Hofstra and their students, they will only benefit from the Transnational viewpoint, even if they don't like taking the class.

Posted by: Aaron | Feb 13, 2006 9:31:55 AM

"And there is also the possibility that “mainstreaming” transnational law, so to speak, will de-mystify these areas of law. It could wrest topics such as foreign affairs law and international treaty interpretation away from the egghead specialists like myself and make it part of the everyday conversation of the average law student and lawyer."

But that's an argument for making *any* course a requirement -- the more obscure the better, since you get more benefits from "demystifying" mystifying subjects. After all, ancient Greek commercial law is very definitely the province of specialists, why not open it up a bit? The question is why treaty interpretation *should* be a part of the everyday conversation of the average lawyer when, say, tax or evidence or administrative law or corporations or bankruptcy or securities law should not be. I can't imagine how the argument for that position would go. Maybe you'd say something vague about the increasingly global nature of law practice and leave it at that. But *treaty interpretation*? Honestly?

It is worth pointing out occasionally that law school is a professional school. The likelihood that many Hofstra grads will use public international law (or methods of legal reasoning derived from the study of public international law) in their practice is infinitesimal. The argument that public international law is a necessary part of any lawyer's professional background has not been made here, and I am personally skeptical that it can be made.

Posted by: Matt | Feb 13, 2006 10:47:22 AM

Good idea. One cannot appreciate the common law or direct representative system without first understanding a civil law or parliamentary system. Additionally, one could probably competently practice law without knowing what a fee simple determinable subject to open is.

Posted by: Kleczek | Feb 13, 2006 11:02:06 AM

I appreciate all of the comments, even the vaguely skeptical ones, because it helps me gauge the reaction of other folks to our new plan here at Hofstra. As far as I can tell, the skeptics have two complaints:

(1) Transnational law is unlikely to be very useful to law school graduates in the practice of law.

(2) Transnational law might be useful, but it is less useful than all sorts of other courses that might be required, like tax or corporations.

(3) Transnational law shouldn't be severed from other first year courses, but integrated within them.

I am sympathetic to all of these criticisms, but I ultimately disagree. Here's why.

One commenter scoffs that treaty interpretation ever be relevant to legal practice, particularly the legal practice of a Hofstra grad. But is it out of the realm of possibility that his client would make an international contract for the sale of goods? But that is governed by an international treaty, the Convention for the International Sale of Goods. Why wouldn't it be useful to understand how that treaty applies and how it should be interpreted? See also the zillions of tax treaties that any competent tax lawyer has to be aware of and understand how to interpret.

The second criticism is a bit more persuasive to me. Sure, transnational law is important, but is it any more important than other candidates, like corporations or tax? I think this is a good point, but it begs the question about the purpose of the first year curriculum? Is the goal really to teach "useful" law or is the goal to provide a general understanding of different methods of legal reasoning? If it is the latter (which I think is embraced by most lawprofs and practitioners), then transnational law has a stronger claim to the first year curriculum than the aforementioned corporations and tax, and indeed, to many of the traditional first year courses.

Finally, there is the argument that severing transnational law will neuter its effectiveness. I think there is some truth to this, but there are both practical and analytical reasons to think otherwise. Practically, it is easier to develop a new course rather than try to get half your faculty to add new material they may not be completely comfortable with. Analytically, there are some basic concepts that don't fit obviously into other courses: treaty interpretation, conflicts of laws, and enforcement of foreign judgments are just a few examples of this. We plan to start with U.S. cases but we also then seek to contrast them to foreign and international cases, which is a lot for half the faculty to swallow.

In any case, I hope with this course we can move beyond vague conceptions of a "global law practice" and really prove that there is a practical and pedagogical necessity of introducing transnational law in the first year. I think most law schools will eventually head in this direction.

Posted by: Julian Ku | Feb 13, 2006 12:36:18 PM

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