Thursday, February 02, 2012
Law is Going Global--or is it?
Thanks to Dan and everyone at PrawfsBlawg for the opportunity to post this month. As my research focuses on transnational litigation (in other words, what happens when civil procedure meets foreign law and parties), I have been thinking a good deal lately about the role of international law in United States courts. Recently, though, I have begun to wonder: Is globalization of law a reality in U.S. judicial decisionmaking? One recent study concluded that the number of transnational cases filed in United States courts is going down and has been for some time from a high of 3,293 cases in 1996 to 1,637 in 2005 even though the general caseload of the federal courts has continued to rise.
What accounts for this? These numbers call into question in an empirical way the globalization of law narrative that many of us know. But, these numbers aren’t presenting the only questions. As one leading federal appellate judge and former law professor provocatively argued before a recent gathering of the Association of American Law Schools, the “cult of globalization” that has entranced law schools should be discarded. According to Judge Cabranes, “[q]uite a few law schools have launched programs overseas, entered partnerships with foreign law schools, hosted globalization conferences, founded centers geared towards globalization and fosters student exchanges overseas.” In his view, while “many of these programs are worthy endeavors, they are a distraction from the core objective of a law school.”
So, let me begin my stint with a question: Is international law a distraction or is there a reason to globalize legal education and the legal profession in light of these numbers and Judge Cabranes's criticism?
Posted by Trey Childress on February 2, 2012 at 06:32 PM | Permalink
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International issues are becoming increasingly important in antitrust--or competition law, as just about everyone outside the US calls it. I'd say that most matters don't have an international element, but many of them do. And the best antitrust lawyers have some familiarity with the law in other jurisdictions, especially the EU.
Posted by: Jarod Bona | Feb 2, 2012 6:50:12 PM
Wouldn't you need to know why such cases are going down before you could draw this conclusion? If fewer claims are being filed in the US, but the total number of transnational claims is as higher or higher, than the claim that law isn't "going global" would be too hasty. Or, if the reason that there were fewer claims filed in courts was that more and more are being dealt with via international arbitration, then the claim would be, at least, highly misleading. So, I might suggest that the question isn't well formulated enough to draw any conclusions so far.
Posted by: Matt | Feb 2, 2012 7:11:46 PM
I second Matt. Looking at cases filed in US courts alone can tell you nothing if during the same period the number of disputes in other fora (arbitration, foreign courts) increased.
Posted by: Anon | Feb 2, 2012 8:21:01 PM
Thanks for the great thoughts! I agree that arbitration might be a possible answer, as may settlement and other ADR. It does seem to be interesting however that the number of cases filed under alienage jurisdiction in US courts has dropped so much. Any thoughts on Judge Cabranes's observations?
Posted by: Trey Childress | Feb 2, 2012 8:24:42 PM
Yes, the data is only "US court litigation"-specific, excluding arbitration (which from all indications has been increasing substantially in the last 10-15 years), foreign litigation, and also the transactional-practice needs for knowing international law. The CISG is a prominent example of an international treaty important for transactional practice. Not many cases cite to it in raw numbers but think of the number of transactions in which it is the governing law unless opted out of, and even in those opt-out cases, it may govern contract formation issues, for example, in a battle of the forms situations). What we have found here at University of Nebraska is that many of our graduates, regardless of practice area, are encountering issues in their practice (even small firm practice) that require familiarity with international law. We even had a lawyer from a major firm in the state speak to students earlier this semester commenting how many enterprises in the central and western part of the state were in need of more legal services and advice on international transactions. Even if the amount of such work is relatively small for many graduates, the absence of any exposure to international law is something that is tougher for them to overcome or to "learn on the go" as compared to a domestic law gap in their JD education from having not selected a particular course. This is one of the reasons, the faculty approved a required 2-credit International Perspectives course (including both international and comparative law aspects) in the 1L year as part of our curriculum reform.
Posted by: Matt Schaefer | Feb 3, 2012 12:55:38 AM
I don't think I have enough information to comment on the specifics of any particular program, but I'd want to distinguish between the question of whether law is becoming more "global" or not and whether the sorts of initiatives mentioned by Cabranes are of much use or not. My guess is that many of those programs are mostly for entertainment value, or otherwise have small, if any, pay-offs, though I can't say for sure and some might be better than others. (I do wonder if they are all rightly lumped together.) But as Matt Schaefer notes, that's quite a different thing from whether there's good reason for more students to learn some basic international law principles or to integrate some study of some aspects of international law into the curriculum. So, I'd guess that the better message would be that schools shouldn't waste money on programs that are expensive (to them or to students) but that have little, if any, clear pay-off. But there's nothing special about international law for that.
Posted by: Matt | Feb 3, 2012 7:44:20 AM
The SJD students at Harvard Law School are organizing a conference on Global Legal Education, from March 23-25, 2012.
The aim of the Global Legal Education Forum is to develop a thicker understanding of the intellectual and professional trajectories of contemporary legal education reforms, their implications for global and national elite leadership, the potential distributive effects for law schools that lack the resources to “go global,” and the distinctiveness
of these reforms relative to other disciplines. The Global Legal Education Forum will convene HLS S.J.D. Alumni, law school deans, law professors, legal practitioners,law students and graduate candidates, as well as academics from other disciplines.
For more information, please visit http://hlsorgs.com/sjd/glefoverview/
Posted by: ricey | Feb 3, 2012 9:20:30 AM
Matt Schaefer sums it up more eloquently than I possibly could have. I'll add that at UNH Law (formerly Franklin Pierce) we've seen the same thing with our graduates. In addition, we have a very high number of foreign LLM students, and their perspectives and comments have been invaluable in teaching: from being able to point out certain differences in US legal doctrines and the rationale for such divergence to getting them and their American counterparts accustomed to interacting with one another in a semi-professional environment. Finally, Judge Cabranes' list of globalization activities aren't all the same - some may add little perceived value to a school's "core" mission, but others might be considered crucial to the educational experience, e.g. by exposing American law students to different cultural approaches and legal systems, which they are likely to encounter in any sort of transactional practice.
Posted by: Mary Wong | Feb 3, 2012 12:59:47 PM
I don't have numbers to back this up, but as someone that practices law at a large firm, I can tell you that big firms have made international arbitration an increasingly important priority over the last few years. A lot of businesses are choosing to include international arbitration clauses in their agreements.
Posted by: Jarod Bona | Feb 3, 2012 5:27:20 PM
Thanks to all for these great comments! I agree with Mark Drumbl that we need to continue to think about creative ways to bring the international, transnational, and comparative into our teaching and research! Obviously, further work remains to be done in this area!
Posted by: Trey Childress | Feb 9, 2012 11:39:00 AM