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Tuesday, April 18, 2006

Are We All Transnationalists Now? Should we be?

I want to thank Dan for inviting me to guest blog at PrawfsBlawfg for a week or so.  My usual perch is as part of the team over at Opinio Juris -- a blog so dedicated to international law that we named ourselves after an element of customary international law.  I will be cross-posting both here and at OJ while guest blogging, making up for some lost time at OJ during a writing-induced “bloggatical.” (Dan, does that count for annoying “blawg speak?”)  It is from the perspective of an international law professor that I raise the questions in my title.  Is all legal education heading toward transnational approaches across the curriculum?  Should it be?

At the AALS meeting back in January (yes, I am late catching up), Peter Strauss of Columbia Law School gave an interesting talk to kick-off the discussion of transnational legal education.  Strauss compared the current discussions about the place of international and transnational law in the curriculum to the "Langdellian moment" when Christopher Langdell introduced the case method to the Harvard Law School.  By focusing on method ratehr than learning state law out of hornbooks, HLS became the first truly national law school and, according the Strauss account, replaced Columbia as the go-to school for recruitment to the Wall Street firms.  Columbia, responding to market forces, only caught up some years later – after Langdell had raided some of its best faculty members.  Law schools are now experiencing the "trans-systemic" moment.

In the post-Langdell world, Strauss notes, all law subjects are taught in a way that lends them to relatively easy transition from being purely “American” law courses, to being transnational, comparative or “trans-systemic.”  When we teach cases, we teach through comparative methods, e.g., majority versus dissenting opinions.  When we teach the common law, we teach comparatively (N.Y. versus California in contracts or torts, for example).  The subject matter of some courses lend themselves quite easily to the notion of trans-systemic approaches (admiralty, conflicts, secured transactions).  Given that trans-systemic law is what we are all already doing, Strauss sees it as a logical and not terribly radical step for law schools to embrace trans-systemic approaches to law that encompass international, regional and foreign state legal systems.

The AALS has been engaged for some time in the valuable project of shifting curriculums and programs at law schools to prepare American lawyers for “transnational challenges.”   The question at many lower tier and more traditional regional law schools  --and I include my home institution, the University of Missouri, in that group – is how much transnational law do our students need?  Several prominent law schools have emerged to lead the way in transnational or global legal education.  At the top of the heap are NYU, Columbia, Michigan (the latter being the only U.S. school to require transnational law in the first year – soon to be joined by Hofstra).  Others have sought to fill a transnational niche (e.g., McGeorge).  I agree with Strauss that, at the end of the day, the shift from purely national to transnational legal education will be market driven.  We are already living in a world of three tiers of law schools in the U.S. :  International law schools, national law schools, and regional law schools.  Do the national and regional schools need to present themselves as “international” in order to survive? 

Strauss’s approach seems to suggest that what is needed in the first year is not necessarily an introduction to public international law or even the traditional private international law, but something that reflects a problem-based approach to inter-systemic lawyering. (This is apparently already de rigeur at McGill –for reasons of  being situated in a province governed by a civil code within a national legal system grounded in the common law.)  In my own paper submitted at a 2004 AALS meeting on transnational legal education, I suggested that the incorporation into the core curriculum (torts, contracts, tax, bus org) is one way to make transnational legal problems relevant to students at the regional schools.  Many faculty are reluctant to introduce international conventions or customary international law principles or comparative case law into their classes either because they think they are not qualified to teach from that perspective or they think it adds too much complexity for students struggling with the basic doctrine.  Strauss has provided a nice framework from which to argue to the reluctant faculty that they are, in fact, already teaching trans-systemically.

I am not completely convinced (as my co-blogger Julian Ku has argued) that transnational law needs to be required at all law schools (for many of the reasons raised in the comments to Julian’s post).  But all lawyers need the tools for approaching transnational problems.  Perhaps a flexible approach to trans-systemic law through the pervasive method may be helpful.  What do the non-internationalists think? 

Posted by McguinnessM on April 18, 2006 at 06:57 PM in Teaching Law | Permalink


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Simon -- can't people let the "evils of the use of foreign precedent" thing rest a bit. This post just didn't have anything to do with the issue of whether the Supreme Court should cite to foreign precedents, which is what you are really getting after in your post. It has to do with the necessity of dealing with foreign law in a world where clients are increasingly international and where policy-making is increasingly made on an transnational basis (e.g. see anne marie-slaughter about how regulators work together internationally).

As for the post, I totally agree. Legal education must follow legal problems and in a world of multinational corporations, increasing international trade, ever more open financial markets and efforts by regulators to catch up to this through international cooperation (by, for instance, police and corporate regulatory bodies). I think it is irresponsible to teach courses like contracts, corporations and antitrust without teaching how law operates in various jurisdictions. Similarly, units on conflicts of law, arbitration and the differences between procedure in civil and common law systems should be incorporated in first year procedure courses.

Posted by: JustaThought | Apr 19, 2006 7:44:01 PM

The trend towards trans-systemic legal education is occurring not only at elite schools like NYU and Columbia, but also at the flagship state law school in the only "mixed" civil and common law jurisdiction in the United States -- Louisiana. At LSU, students take courses not only in the usual subjects like torts, common law contracts, and criminal law, but also in civil law obligations, civil law property, and Legal Traditions (which includes a unit on Roman law). When they graduate, they receive both a Juris Doctor and a Bachelor of Civil Law degree.

Posted by: Stuart Green | Apr 19, 2006 10:03:24 AM

I suppose the relevant question is: define "transnational approaches" in this context?

Melissa Waters, who is currently guest blogging at Concurring Opinions, has an interesting (as much for what it says as for the assumptions that undergird the premise - and by "interesting" I mean "heart-stoppingly terrifying") paper on something explicitly termed transnationalism, "Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, which I'm still digesting.

To be sure, I think that there is some value in comparative studies. I think that any understanding of the political systems in other countries is absolutely fatal to any harbored dissent from the virtues of the American system. Likewise, learning another language teaches one much about one's own language, and in much the same way I think that understanding how other countries organize their legal systems helps foster a great appreciation and understanding of how our system works.

However, it seems to me that the phrase "transnational approaches" implies something more extensive and more sinister than mere comparative studies. To be sure, one might learn something useful about English by learning Russian, but that does not mean that one should then turn around and attempt to impose Russian linguistic concepts upon the English language. Imagine a Supreme Court opinion wherein Justice Kennedy declared that having learned from experience of Russians, opinion will no longer use definite or indefinite articles, as terms such as "the", "a" or "an" are no longer in mainstream of international understanding. I doubt that we'd put up with that sort of behavior, and it isn't immediately clear to me why Russian law should be any more relevant to our interpretation of American law than Russian language is to our use of the English language.

Today's students are tommorow's lawyers and judges. To answer the question - are we transnationalists? Should we be? - the obvious question is, do you simply mean passingly conversant with other countries' legal structures, as a matter of comparative studies for personal interest, or do you mean something deeper, that envisions a role for foreign law (in which I include "international legal norms", as Waters terms it) in domestic jurisprudence.

Posted by: Simon | Apr 18, 2006 11:14:33 PM

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