Saturday, September 26, 2009

international law and the law school curriculum

The customary talk about law schools being more "practical" having subsided a bit, a related topic has surfaced concerning international and/or comparative law in the first year, or its requirement later in law school. Eric Posner, who apparently teaches international law, has taken a negative view on the subject. Others have been more positive, although the general tone remains skeptical.

I think it depends a lot on what we are talking about. Traditional international law courses, with their emphasis on sovereign immunity, law of the sea, and other esoteric topics, make very good electives but perhaps not a required course. Many comparative law casebooks, which get overly focused on theoretical matters, are probably in the same category. (Try keeping students awake through a discussion of the differences between French and German code-writing and you'll see what I mean.)

But what if one tried a different approach, which integrated comparative law into the regular first-year curriculum? Instead of simply learning American approaches to tax or torts or contracts, what if one included in each course a brief unit on foreign approaches, with a small (say, one or two credit) umbrella course or seminar to make sure students had the basic comparative law vocabulary to do this successfully? Something like this already happens at McGill, which teaches both common and civil law in the first year; indeed, it is already happening in American law schools, all but a very few of which teach Model Acts or Restatements rather than the law of the state in which they happen to be located. We don't call this comparative law, because it's part of our larger Federal system, but in essence that's what it is.

A little historical research might be of interest here. The trend toward teaching national law, or comparing results in different (American) jurisdictions, is relatively recent; all but a few national law schools traditionally taught their own local law. I am willing to bet that, when the switch was being made, many traditionalists bemoaned the changes, arguing--like Posner today--that only a few elitists would be interested in the law outside their state borders. I think this was an understandable but ultimately a losing argument then, and I think the same thing now.


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