Jensen, C M --- "The Case for a Flat Earth Law School" [2007] LegEdDig 44; (2007) 15(3) Legal Education Digest 17

The Case for a Flat Earth Law School

C M Jensen

[2007] LegEdDig 44; (2007) 15(3) Legal Education Digest 17

15(1) Cardozo J Inter & Comp L, 2007, pp 1–9

‘Globalisation’ is an omnipresent buzzword in the legal academy. We’re all actors on a world stage, and the goal of legal education is to prepare students for future starring roles in global (or even intergalactic) productions. Or so we’re told. For example, Harold Koh, Dean of Yale Law School, says that one of his school’s ‘four key challenges’ is ‘how to incorporate a truly global perspective into every facet of [its] intellectual program.’ The effects of globalisation on the legal academy can be seen everywhere, not just at Yale. International, transnational, and comparative courses are overwhelming law school curricula. Teachers of the most pedestrian courses are being pushed to find global components to ‘enrich’ their offerings. And law schools in the middle of cornfields are establishing international law journals and centers for the study of international law — to go along with the centers for hopscotch law and cosmetology that everyone now seems to have.

I hasten to add that this isn’t an argument to eliminate international law curricula in law schools, nor is it an argument for doing away with the more esoteric of the new international courses — those dealing with war crimes and such. I concede that those subjects are worthy of serious study in a university setting. But they aren’t the core of legal education, and we need to re-establish a sense of perspective. We do our students a disservice if we signal to them that these areas of study are more important than anything else in preparing to be a lawyer. And we do an even greater disservice if we require students to immerse themselves in international concepts before they have learned the local ones — those that are the building blocks of good lawyering and that will occupy most of the students’ professional lives.

At the vast majority of American law schools, only a small percentage of graduates will have practices with significant international, transnational or comparative content. No one wants to admit this — who (other than me) wants to appear provincial? — but it’s true.

Given that no lawyer can be expected to know the relevant laws of every conceivable jurisdiction or the provisions of every conceivably relevant treaty, how should a student prepare herself for a life in the international transactional arena? The traditional answer to that question — still right, I think — is to study commercial transactions generally. Learn what the legal concerns are in the U.S. context, and you’ll have a leg up on understanding what is needed to put a deal together internationally. If a recent graduate skipped over the basics of U.S. transactions in law school, however, how in the world can she advise an American client on an international deal, or a foreign client on the U.S. aspects of the deal? Taking a few courses on international death penalty policy won’t help her at all.

Even when we were openly and notoriously provincial in our legal training, we made no effort to train students in the laws of all fifty state jurisdictions. We let them know that they might have to check the law (and probably seek local counsel) in jurisdictions other than their own — and to ask for advice about substantive areas outside their own specialisation. The same principles apply here. We can sensitise students to the need to secure help with the law of Zamboni if Zamboni law is relevant. (We ought to be able to make that point in five minutes of class time — or less.) And no one should have to complete a concentration in international law to know that transaction-specific research is likely to be necessary for any sophisticated deal.

If we try to teach everything (assuming we have the capability to do that in the first place), we’ll inevitably give short shrift to the basics. If our graduates aren’t grounded in U.S. law, they’re a disaster waiting to happen — regardless of their training in international esoterica.

In a recent article, Professor Raymond J. Friel of the University of Limerick makes several points that are, to my mind (because I agree with them), incontestable: Transnational legal education needs to start from a solid base: the study of a relevant national legal system. Students need to have mastered the intricacies and nuances of at least one national legal system. The lack of such knowledge would threaten both the students and the program with a quagmire of uncertainty.

As it is, we’re approaching the quagmire fast.

The above discussion focused on transactional practice, which is what most lawyers will wind up doing (whether they want to or not). It’s also what law schools are paying much less attention to these days. Where international matters are emphasised, it’s usually not in relation to commercial deals, the bread-and-butter of the bar. Instead, it’s whatever is currently glamorous.

Of course it’s hard to resist the issues that wind up as front-page news. What law student wouldn’t get caught up in the glamour (yes, the glamour) of war crimes trials, especially if the alternative is learning about estate planning? What would happen to Saddam Hussein was a fascinating subject.

It was fascinating but, as is true with many subjects now emphasised in American law schools, the fascination wasn’t in the ‘legal’ issues involved. Does anyone really think the ‘trial’ of Saddam was fundamentally a legal exercise?

Having political trials isn’t necessarily a bad thing, I suppose, and whatever their nature, war crimes trials are worthy of intellectual analysis. But much of what is involved in ‘trials,’ where only one result is possible, isn’t ‘law’ as that term has been understood in the U.S. system. It’s nice to be interdisciplinary but, in the law school setting, it’s also nice to have a little law involved.

What else is wrong with overemphasising international, transnational and comparative law in law schools? I’ll note four other concerns, although there are others too.

First, although international law is law — I don’t question that proposition — it has its own, distinctive characteristics. The new emphasis on international and transnational law in law school has the unhappy effect of diminishing the significance of the ‘law,’ as it is traditionally understood, in the minds of many impressionable law students. The international law concepts are too soft and too malleable to guide behavior in the way that we ordinarily expect the law to operate.

Second, the overemphasis on international and transnational law helps convince students that all issues, including those of international politics, are fundamentally legal ones. We all want to think that what we’re doing as lawyers is the most important thing in the world, and sometimes it is. But not always. Trying to turn all international disputes into legal controversies — you know, wars will end if we just operate under the rule of law and punish the perpetrators — may boost lawyerly self-esteem. But it gives students a misleading impression of international relations and of the real world more generally.

Third, the globalisation of curricula pushes students in the direction of the politically correct, but misguided, view that modern, foreign principles and practices should inform the interpretation of historical American documents, including the Constitution — a view now blessed by the Supreme Court. We might be citizens of the world, in some abstract sense, and of course we want to appear wise in the ways of the world. But it’s still a peculiar interpretive notion that would use foreign ideas to decipher documents that were adopted (obviously) without the ‘benefit’ of those understandings. Nothing in the language, purpose or structure of the Constitution supports looking overseas for twenty-first century concepts to interpret that document.

Finally, and most important, the emphasis on international law in American law schools diverts students from understanding their own legal system. Law schools are pushing students into making comparisons with the laws of other nations before the students have any sense of the U.S. rules. Several years ago, my school had a Dutch law professor teach a course on comparative environmental law, and he was surprised to find that he had to teach American students the American law before comparisons could be drawn. In their rush to globalise, the students had skipped the first step — learning their own country’s law. Horrifying.

And that was not a situation peculiar to my school. It’s now common for international and comparative law to be introduced to students in ‘perspectives’ courses (required or recommended) early in law school. The students are urged to get these new ‘perspectives’ on the law before they know very much about the law. For most students, the law is itself a new perspective on the world, and focusing on the basics of American law should be enough to tax even the most conscientious student. Piling on additional concepts, particularly in the first year of law school, would be cruel and unusual punishment. As a result, what happens (inevitably?) is that international, transnational and comparative ideas replace, rather than supplement, instruction in the American legal system. Students wind up with the ‘perspective,’ but without the substantive knowledge to which the perspective relates. It’s that ‘quagmire of uncertainty’ that Professor Friel warns us about.

I’ve used some hyperbole in this essay, I admit. I really don’t want American law schools to ignore the larger world. As a tax professor, I’m often frustrated at how willing American tax lawyers are to ignore useful data about the way the rest of the world does things. But we can go too far in the other direction, and we often have.

The more you know, the better you’ll be as a lawyer. If you have the civil rights law of Zamboni on the tip of your tongue, ready to respond to questions, that’s great. All other things being equal, it’s better to know the law of Zamboni than not to know it.

But all other things are never equal. Law school time is a scarce resource. Many of our students are misallocating their time, and they’re doing so at our direction — or at least with our encouragement. No one is going to become a great international or transnational lawyer without being, first and foremost, a great lawyer. Before we overdo the global, we need to reconsider the merits of the old, flat-earth conceptions of the law.