pageok
pageok
pageok
The Importance of International and Comparative Law to Legal Practice:

The Boston Globe has a piece on Harvard Law's new first-year curriculum, which is going to include some unspecified emphasis on international and comparative law. The article quotes Prof. Martha Minow: "So we are making a strong statement that legal education ought to reflect the problem-solving, prospective, constructive, legislative, comparative, and international work that is central to law today." I wonder whether it's true that "comparative and international work" is "central to law today." I've written a lengthy comparative piece on expert evidence, so I'm certainly not averse to such work, but I don't recall a single American decision on expert testimony that cites a foreign legal opinion. As a practical matter, I wonder whether even Harvard Law graduates frequently encounter international and comparative issues in their practice, other than international matters that are really "domestic foreign" matters they wisely hand off to attorneys in the relevant country. Any thoughts from recent grads?

alkali (mail) (www):
I've written a lengthy comparative piece on expert evidence, so I'm certainly not adverse to such work, but I don't recall a single American decision on expert testimony that cites a foreign legal opinion.

That may be true, but formulating the question that way presupposes the centrality of litigation to "law today" (as opposed to, by way of example only, transactional and IP work).
10.9.2006 11:58am
The River Temoc (mail):
In international transactions, U.S. lawyers are hired to advise on the U.S. law aspects of deals. English lawyers advise on the English or E.U. law aspects of deals. Relying on U.S. counsel to the English law work is shoddy at best, and grounds for malpractice at worst.
10.9.2006 12:07pm
Kate1999 (mail):
The idea that the Harvard Law School faculty knows anything about modern legal practice is highly amusing. Maybe some of their recent hires worked on international law issues when they were summer associates at Covington.
10.9.2006 12:08pm
alkali (mail) (www):
In international transactions, U.S. lawyers are hired to advise on the U.S. law aspects of deals. English lawyers advise on the English or E.U. law aspects of deals.

So if I were doing a US deal, I'd hire a US firm like Clifford Chance, and if I were doing a UK deal, I'd hire a UK firm like Sidley Austin?

I'm kidding but I do think this oversimplifies things greatly.
10.9.2006 12:23pm
Hans Bader (mail):
I graduated from Harvard Law School, and I am disturbed by the proposed changes deemphasizing basic legal subjects like contracts and torts in favor of trendy but ill-defined subjects like international law.

My education at Harvard was already so theoretical and impractical that I had to study hard AFTER law school just to pass the New York bar exam.

If the changes go into effect, Harvard students will learn even less of value than I did.

I myself have worked on a few international trade law cases, but I doubt that having taken an international law class while in law school would have been of any use to me even in handling international law cases.

Many law-school international law classes are just left-wing politics camouflaged in legal garb, without any practical focus on the areas of international law that a real-world client will actually pay a lawyer to litigate.
10.9.2006 12:34pm
j..:
I'm not a Harvard grad, but...

Large antitrust work often has both a US and EU focus - the recent litigation of CDMA standards is an obvious example.

It is hard, too, to be at a lawfirm with a large client focus and not have interaction with the Hague Conventions at somepoint - at the least through a blast email.

I've no idea if any of this would be a part of the new 1L curriculum.
10.9.2006 12:35pm
Jon Rowe (mail) (www):
I wonder if this makes my LL.M. in Transnational Law (Temple, 2001) any more valuable.
10.9.2006 12:50pm
Observer (mail):
I've been practicing corporate law for almost 25 years, both domestically and internationally, and see no benefit whatsoever to introducing international or comparative law into the first year curriculum.

Indeed, the first year of law school is the one thing that most law schools, including Harvard, do right. Teaching students how to read cases closely and how to construct legal arguments is the heart of the first year program and those are the fundamental skills that all American lawyers need. The substantive law taught in the first year - torts, contracts, civil procedure, property and criminal law - is generally more useful in the long run than the more specific classes that upperclassmen take.

The only thing change that Harvard is proposing that might be useful is to add some classes on legislation and administrative law to the first year, but even there, how in the world can you study the art of drafting or reading legislation until you know something about how courts interpret language, and how can you possibly study administrative law if you know nothing about civil procedure?
10.9.2006 1:04pm
Ted Frank (www):
I'm not a Harvard grad, but I did get an acceptance letter. In ten years of big-law-firm practice, I dealt with international law issues in two cases, which is two more cases than I dealt with the Rule Against Perpetuities.

A comparative law class designed appropriately would be a great addition to the law-school curriculum. Many Western nations have well-functioning legal systems that do not incorporate procedures or remedies that American lawyers take for granted, and it's worthwhile to analyze these features from first principles. Then again, the trend seems to be for European nations to adopt the worst parts of the American system rather than the American system to adopt the best parts of the European system.
10.9.2006 1:08pm
Randy R. (mail):
I was a practicing lawyer before I gave that up to start my own business, which is exporting software and IT to Asia and other countries. I deal only with SMEs (small and medium sized enterprises)

One of the things that I tell my clients is that now that I am no longer an attorney, I can tell them the things that no attorney will tell them, among which is the fact that a contract isn't worth the paper it's written on.

Oh, I exaggerate, of course. Sure, it's important to hammer out the details of what, where, when and so on. But at the end of the day, if there is a real dispute between you and your client, are you really going to sue them in a Japanese court of law? Nonesense. You don't have the resources. It's better to cut your losses and move on.

So the bottomline is that it's far more important to do your due diligence in investigating who is your partner, and then spend time developing that relationship. I say it time and again, all international trade is based on personal relationships. If you have a good relationship, you will work things out. If not, then you just have to move on.

Took me a long time to learn that. But clients respond very favorably to that, because that's a businessman's approach to the real world.

Query: How many times have you had a client who got screwed by a foreign client, and you pressed them to sue. Was it worth it for the client?
10.9.2006 1:25pm
Randy R. (mail):
Just in case anyone wants to jump all over me, I always require my clients to consult with their own attorneys before they sign any contract, and for my end, I make sure they are comfortable with the terms, and check to make sure everything was discussed that needed to be discussed.

There are some not-so-terrific lawyers out there, even Harvard grads, and they sometimes don't have the clients best interests at heart, or don't know what needs to be discussed.

(Sorry, I had to get that dig in!)
10.9.2006 1:28pm
Anderson (mail) (www):
Well, Scott Horton implies one reason for a basic grasp of international law -- it might prevent your being convicted of war crimes for giving criminally reckless legal advice to your government masters.

John Yoo must be blamed on Yale Law, but I can see Harvard's wanting to take preemptive steps, given that he managed to learn nothing in four years of undergrad there.
10.9.2006 1:50pm
Ben Barros (mail):
In my former life as a big firm litigator, my practice focused on international litigation and arbitration. Even though I did a ton of international work, I have a hard time seeing the value of a generic first-year international/transnational course.
10.9.2006 2:03pm
RHD (mail):
I graduated for law school 30+ years ago, and haven't been in a law school, except as a moot court judge, in a long time. But as I remember it, the 1L year was all about learning the basic vocabulary of the law, and how the legal concepts fitted together across the artificial boundaries of the 1L curriculum so that the general lay of the land began to come into focus. Courses in property, torts, civil procedure, criminal law, con law, and admin law, all served that end. This latest twist offered by HLS on the first year of law school dosen't seem to have much in its favor. Just as a matter of sensible pedagogy, the schools ought to leave the fancier stuff to the second and third years, after the students have become at least somewhat familiar with basic legal concepts. From what I've seen of newly minted lawyers from HLS and elsewhere, it's a quite rare to find a new law school graduate who's even come close to mastering the basics.
10.9.2006 2:04pm
Christopher M (mail):
I don't have a strong position on the curriculum reform. But it's worth noting that a comparative law course -- which is not remotely the same as an international law course -- could have a great deal of instrumental value. You don't have to be some crazy lefty to realize that a lot of things in American law are the way they are for historical reasons, not because they're necessarily the best way to do things. Exposing a generation of lawyers to the way in which other legal systems operate -- in the fields of contracts, torts/delicts, criminal law, constitutional law, etc. -- could lead to greater receptivity to beneficial change.
10.9.2006 2:05pm
gvibes (mail):
U of Michigan has had a transnational law course for years now. I thought it was useless.
10.9.2006 2:53pm
kfm:

From what I've seen of newly minted lawyers from HLS and elsewhere, it's a quite rare to find a new law school graduate who's even come close to mastering the basics.


I couldn't agree more. While young lawyers obviously lack experience, most of them seem to lack a basic legal foundation. It doesn't particularly help me that a first year associate took some rediculous public policy course, but it will definently hurt him or her if that associate is totally lost on practical areas such as procedure and evidence.
10.9.2006 3:12pm
curious (mail):
I've been at a major Washington firm for 9 months. I *really* wish I'd had a basic course in international law during law school. Internatinoal commercial law has been the entire basis for the biggest case I've been on this year, and two of my other cases have had substantial international treaty questions.

My experience is obviously well on the high end. But it's a basic building block of what law today is, and getting a *structural* sense for how international law works would have been tremendously useful. Wish I'd been requried to do it in law school (when I sniffed at the whole concept in much teh same way as David seems to here.)
10.9.2006 3:18pm
kfm:

You don't have to be some crazy lefty to realize that a lot of things in American law are the way they are for historical reasons, not because they're necessarily the best way to do things. Exposing a generation of lawyers to the way in which other legal systems operate -- in the fields of contracts, torts/delicts, criminal law, constitutional law, etc. -- could lead to greater receptivity to beneficial change.


Greater receptivity to beneficial change? In other words, convince a judge that our laws are wrong because the Europeans do things differently (aka "more liberally" or "better"). Other legal systems are the last places that our courts should look in interpreting our Constitution and our criminal laws.
10.9.2006 3:18pm
Davide:
From what I've seen of newly minted lawyers from HLS and elsewhere, it's a quite rare to find a new law school graduate who's even come close to mastering the basics.

So true. I remember when I was in law school, I learned how to trudge 15 miles to my nearest Court of Equity in thread-bare shoes while keeping a copy of Joseph Story's Commentaries under my left arm. We were smart and hardy back then!
10.9.2006 3:20pm
Houston Lawyer:
The practice of law is an art that we learn from our superiors at work. The first year curriculum, however, has served lawyers well for a long time. It helps to know the basics before you go on to more specialized areas. International law is not in any way helpful to first year law students.
10.9.2006 3:32pm
LeftLeaningVolokhReader:
Here's the real answer:
1) Harvard's brand name will never cease to be amongst the elite - too much funding, alumni support, and a continuing influx of the finest law applicants (no, I'm not a Harvard Law Grad). As such, a "curriculum change" won't do much. Harvard Law grads will not, in the long run, be behind the 8-ball in the preparation of a law practice. Too many advantages.
2) The reality of 1st year law curriculum is that it's mostly useless in the practice of law. You're either doing really menial work or taking on complex subjects. If there's a happy medium, then you can learn that as you go in practice.
3) If you want a really useful curriculum change, then law school schools should focus on more "hands-on" experiences. A clinic, drafting courses, etc.
10.9.2006 3:56pm
whit:
"Greater receptivity to beneficial change? In other words, convince a judge that our laws are wrong because the Europeans do things differently (aka "more liberally" or "better"). Other legal systems are the last places that our courts should look in interpreting our Constitution and our criminal laws"

and yet in the case of our SCOTUS, they do. See: the recent case on death penalty and juveniles, that relied on (in part) international law to justify a constitutional law decision IN the US. That I find that disturbing, is an understatement
10.9.2006 4:37pm
Christopher M (mail):
In other words, convince a judge that our laws are wrong because the Europeans do things differently (aka "more liberally" or "better").

Well, in "other words" that mean "other things" than what I said, yes. As you may know, (1) Not all lawyers are judges. Many are lawmakers, policymakers, or advisers to the same. (2) Under the common law system, it's actually the job of many judges to make the law in many areas, and has been for hundreds of years. (3) There are places in the world other than the United States and Europe, and many of them actually have legal systems. (4) Even the Europeans don't always do things "more liberally." You might look into abortion law, criminal procedure, and various aspects of (what we call) tort law for examples.
10.9.2006 5:09pm
Falafalafocus (mail):
I always thought that we should consider adopting the abortion and property laws of Zimbawe, myself. For the death penalty, I would look at Saudi Arabia. For anti-discrimination, I choose South Africa and Germany. Finally, for gun laws, I'm going to go with Switzerland. I think that America should adopt those changes as soon as possible. If only we had classes where I could indoctrinate others to think as I do...
10.9.2006 5:50pm
Abe Delnore:
I'm sorry but I don't see why you interpret Minow as saying that comparative and international work is central to legal practice, as your headline states. She says it's central to law and thus her school is making it part of the curriculum.

Surely law school is not simply preparation for legal practice. It is also sustained and rigorous study of law. In order to study something, you have to figure out what it is, and one way of doing this that is certainly taken for granted in (other?) humanities fields is examining many different examples--that is, comparative studies. It's at least worth giving a chance at law schools, particularly when they proclaim what they are doing and give prospective applicants the information to make their own decision.
10.9.2006 5:52pm
wm13:
Is Minow's statement that comparative and international work is "central to law today" at all accurate? Maybe it's central to handful of recent, "sexy," high-profile Supreme Court cases with outcomes that the academy generally supported, but is there any more to it than that, when we examine actual lawmaking? Did the committees that revised Articles 8 and 9 of the UCC spend a lot of time studying the legal systems of other countries? Did the authors of any recent Restatements? When the New York State legislature decided whether to allow non-judicial foreclosure, did they study foreclosure in other countries? When the EEOC puts out new regs on sexual harassment, do they study employment discrimination law in other countries? When the Delaware Chancellor decides whether directors can rely on the business judgment rule in a particular contest, does he evaluate the laws relating to directors' duties in other countries? I really think Minow is living in fantasyland.
10.9.2006 6:17pm
Public_Defender (mail):
A basic understanding of international and foreign law is not necessarily important for the substance, but it could help the students better analyze US law. It would certainly help students to question why US law is what it is.

Of course, it would be silly to cite German contract law in almost any American contact case, but understanding how foreign systems work could give a practicing lawyer a new angle on a difficult case.

I'm not sure international or comparative law should be a 1L requirement, but it seems like a reasonable experiment.

As to the person who says the basics are useless to practice, that's just nonsense. Understanding civil and criminal procedure, contracts, evidence, corporate law, etc. is critical for any lawyer in litigation and any transactional lawyer whose clients might end up in litigation.

As my name indicates, I practice criminal law, but corporate law teaches concepts of group accountability that I find useful. Contract law in invaluable in analyzing plea bargains. Civil procedure is needed because those rules provide the default for all other rules, and sometimes my clients have issues that need to be resolved in civil courts.

Further, understanding the basics is what helps lawyers sort through conflicting authority. If you don't understand the basics, it's hard to convince a judge to follow Precedent A instead of Precedent B.

Tying this back to the topic of the thread, a good comparative law class would only help students sort though conflicting precedents. If nothing else, they could demean the precedent that hurts their client by arguing, "Judge, that's how they do it in Finland, but this is how we do it in the US." (OK, I'm joking there, a little.)

Some in this thread appear to think that it's a lawyer's job to use cases to preserve this view or that of what the law is or should be. That's wrong. It's the job of lawyers job to push the law (within reason) in the direction that benefits their clients. Knowledge of how other countries do things is just another arrow in the quiver of a good litigator.
10.9.2006 6:54pm
JB:
IANAL, but I think the discussion is getting off track. Some people are arguing that "International Law is good and useful," while others are arguing that "International Law isn't central to the practice of law." Neither of those statements contradict. Those of you who are defending International Law, or wishing you'd taken it, do you really mean to defend it as part of the core curriculum, or just as a good idea to take at some point during law school?
10.9.2006 7:22pm
Carolina:
Whatever the merits of such a course (personally, I think they are minimal to nil), I can think of no rationale for including it in the 1L year.

Anything added to the 1L cuuriculum is at the expense of something else -- there are only so many class hours.First year students already don't give enough prep in the foundational topics of torts, contracts, and property. Further diluting the 1L year seems a poor choice.

If there is merit to such a class, there is absolutely no reason it cannot be taken as an elective (or even a required course, should HLS wish) in the 2L or 3L years.
10.9.2006 7:24pm
Alan Gunn (mail):
I'm not a recent grad (unless we're talking geological time here), but a story from my law-school days seems apt. Cornell, back then, had an international specialization program, which many of us, including me, took part in. Most of us were very careful, though, not to complete the requirements for getting "international" put on our diplomas, lest a prospective employer see it someday. (During WWII, lots of fighter pilots did much the same thing with glider training--take enough to see what it's like and have some fun, but don't finish the course or they might actually put you in one of those crates in combat.)
10.9.2006 7:30pm
Public_Defender (mail):
do you really mean to defend it as part of the core curriculum, or just as a good idea to take at some point during law school?
I'm willing to defend experimenting with making it part of the core curriculum.
10.9.2006 8:12pm
CJColucci:
I took international law as a 1L as an elective. I was going to take it at some point, and it happened to be convenient to take it then. I've had absolutely no use for it since in the pure "trade school" sense during the last 25 years. But law schools have -- whether they should or not is a topic for another time -- pretensions beyond teaching the "trade school" basics. Making mandatory some kind of exposure to legal systems other than the current American one (via international law, comparative law, legal history, or any number of other possible courses) makes sense from the "liberal arts" or "learned profession" angle, and requiring some such kind of course at some point in your time at law school seems sensible. The details of just which course to take and just when to take it are just that, details, and not very important.
10.9.2006 8:55pm
Mike BUSL07 (mail) (www):
Prof. Gunn: Some folks, myself included, are doing that today with concentrations. I'm "not" doing a finance concentration largely for the same reasons. The stuff is very interesting, but I don't want to close doors by appearing to have exclusive interests.
10.9.2006 9:16pm
Christopher M (mail):
No one here is really making the distinction between (1) "international law," in the sense of the norms and obligations that bind nations vis-a-vis one another &one another's citizens; and (2) comparative law, in the sense of the various domestic law systems that other countries have. They're really not especially related subjects.
10.10.2006 12:25am
Christopher Cooke (mail):
Whether such a course is useful will depend on what, exactly, the course covers. For example, some legal principles of common law jurisdictions might be insightful. We did read several criminal law decisions from England in my 1L class on criminal law. And, my 1l property law was filled with some old English cases. Some of these English decisions are important antecedents to cases in the US.
10.10.2006 1:14am
spider:
wm13 at 5:17pm says :

Did the committees that revised Articles 8 and 9 of the UCC spend a lot of time studying the legal systems of other countries? Did the authors of any recent Restatements? When the New York State legislature decided whether to allow non-judicial foreclosure, did they study foreclosure in other countries? When the EEOC puts out new regs on sexual harassment, do they study employment discrimination law in other countries? When the Delaware Chancellor decides whether directors can rely on the business judgment rule in a particular contest, does he evaluate the laws relating to directors' duties in other countries?


Um, well I don't know, but I damn sure hope so. To the extent that lawmakers are not constrained by constitutional rules or simple considerations of time and effort, they should seek to figure out the best policies possible for societies. And it's highly likely that other countries have good ideas on foreclosure, employment discrimination, etc. etc. And please don't tell me about Iran's capital punishment or China's free speech laws. I trust our elected officials to figure out what's good and what's bad. (Granted, American elected officials have come up with some idiotic statutes, so they couldn't do any worse by getting ideas internationally!)
10.10.2006 1:32am
Public_Defender (mail):
CJColucci makes a good point. Law school is not just a trade school. Law students should have an understanding that law is done differently elsewhere. International or comparative law would give students a taste of this. Teaching the subjects would help create more well-rounded and better-educated lawyers.

One downside to making a specific requirement is that it decreases student freedom to pick an international or comparative law class that interests them. For example, a student with economic or business interests should be allowed to pick a course with that focus instead of a more general class.

It may make more sense to push the requirement back to the second year, so that the students can get learn the basics of American law before delving into comparative or international law. Students have to understand US law to compare it to something else. Otherwise, a comparative law professor would have to devote significant amounts of time to US law so that students can understand what they are comparing foreign law to.

This is a worthy experiment, as long as it is carefully thought through. Let Harvard have a go at it and see how it works.
10.10.2006 6:45am
Break the oxen to the yoke:
I think you all miss the bigger picture. The requirement of international law is not so much to help future attorneys as to justify future judges and justices use of the laws of other nations in enforcement and interpretation of our Constitution. If you teach the future legal and judicial leaders early to accept as valid and given that the laws of other nations are to be referenced and binding on the American public, then you simply have to wait 20 years or so and see your wishes come to fruition.

Today there is a pretense played about by the liberals on the Supreme Court and elsewhere that they are merely citing the laws of other nations or of unratified treaties in dicta or as examples, not as "binding" or dispositive.

Tomorrow, that pretense will simply fade away. They cannot find what they want to acheive in terms of their philosophy or policy here, so they have to go elsewhere. This decision by Harvard is not the first step in that direction, but it most certainly is another step down that road.

They are breaking America slowly to the idea that other nations acts and their courts' decisions are binding on us. It is only a matter of time and patience for them.
10.10.2006 8:42am
Pete Freans (mail):
Just as a matter of sensible pedagogy, the schools ought to leave the fancier stuff to the second and third years, after the students have become at least somewhat familiar with basic legal concepts.

That's an excellent point and I certainly wouldn't suggest replacing the 1L curriculum for an international law class, as my earlier post may have suggested.

Lawyers that are interested in transnational law have a tendency to overstate the importance of it (as I often do)but I believe that one required course will serve a young lawyer well. My first international law class was largely legal theory and my reaction was of similar derisiveness. It was when I continued with international litigation and international business/trade law that I came to appreciate the importance of this area. While I am not a recent HLS graduate, I have had the opportunity to work with foreign lawyers on a few trans-Atlantic matters and I certainly felt comfortable enough not to contract the work out to anyone else. While it may have been largely "domestic foreign" in nature, a basic understanding of transnational litigation gave me additional confidence to handle those matters.

Justice Breyer may refer to Zimbabwean precedent as a legal guide but I must defer to Justice Scalia on the matter. A broad course in international/comparative law however - with no further requirements on the subject - will at a minimum give a young lawyer more concrete reasons to dismiss it.
10.10.2006 9:36am
Colin (mail):
Today there is a pretense played about by the liberals on the Supreme Court and elsewhere that they are merely citing the laws of other nations or of unratified treaties in dicta or as examples, not as "binding" or dispositive.

Tomorrow, that pretense will simply fade away. They cannot find what they want to acheive in terms of their philosophy or policy here, so they have to go elsewhere. This decision by Harvard is not the first step in that direction, but it most certainly is another step down that road.

They are breaking America slowly to the idea that other nations acts and their courts' decisions are binding on us. It is only a matter of time and patience for them.


Does it seem to anyone else that ludicrous, hyper-partisan rants are on the rise in the comment section lately? I don't know, it seems like I've seen three or four this morning that were just bizarre, frothing conspiracy theories.

Oh, well. Back to my Liberal Breakfast Platter - Christian baby, roasted over the embers Bill of Rights and enjoyed with the permission of our foreign masters.
10.10.2006 10:28am
Colin (mail):
Ahem. "Emberts of the Bill of Rights..."

Oh, how our left-wing mandatory statist education system as backfired upon us.
10.10.2006 10:32am
Colin (mail):
Sigh. Embers. No 't'. I'm going back to bed.
10.10.2006 10:46am