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[Einer Elhauge, guest-blogging, May 21, 2007 at 9:12am] Trackbacks
Will Basic Legal Subjects Become Globalized?

In today's global markets, firms face the reality that they are subject to simultaneous legal regulation by many nations. Lawyers face the reality that they must advise clients subject to such multinational regulation. Yet law schools continue to teach and research basic legal subjects from the parochial perspective of whatever nation they are located in. This doesn't make much more sense than having, say, Harvard Law School offer a curriculum limited to Massachusetts law on topics like contracts, property, torts, antitrust, and corporate law, just because it is located in Massachusetts.

To be sure, some law schools, including Harvard, are introducing first-year required courses in international and comparative law, which is I think a very welcome step. But generally international law courses focus on resolving conflicts in national laws, and comparative law courses focus on general differences in legal cultures to gain perspective on our own system, in a way that does not necessarily get deep into substantive theory in any particular area. Neither quite confronts the reality that the basic law applicable to much conduct simply is multinational.

Focusing on courses in international and comparative law also, in a sense, ghettoizes the laws of other nations, treating them as something to consider at the margins outside the basic legal subjects. It would be like saying the Massachusetts law curriculum I noted above would be fine if Harvard also offered first year courses in conflicts of laws and comparative state law.

I confess I have a personal stake in this issue, because I have just finished a book (with my European co-author Damien Geradin) called Global Antitrust Law & Economics, which I believe is the first casebook to take the approach that the law applicable to a basic legal subject is multinational. We put US regulations and cases side by side with the EC regulations and cases that regulate the same conduct on global markets, without suggesting that one of them is more important or necessary to understanding basic antitrust law and that the other is only useful to add perspective. We designed the book to be able to replace parochial books on basic antitrust law and teach antitrust lawyers the global landscape they must face, not to merely provide grist for advanced courses in comparative and international antitrust.

I think this is the first casebook to go this far, but glancing through advertising for other casebooks, it seems clear that casebooks in every area are popping up which add an increasing amount of global content to basic legal subjects. My prediction is our book will just be the leading edge of a wave of such books, and that they will transform legal education more than anything else we have seen in the last few decades. Perhaps we will even get to the stage where we do not need courses in comparative and international law because each substantive course already addresses the comparison and how to resolve international conflicts in that subject.

It is not too surprising that antitrust would be the leading edge in such a transformation, much like it was for the incorporation of economic analysis of law. Antitrust economics offers a common body of scholarship across nations already, and there is the convenient fact that the US and EC dominate antitrust enforcement, with other nations generally borrowing the approach of one or the other. This makes it possible to take the approach, like my book did in this first edition, of analyzing the US and EC law in depth and just summarizing other nations' stance unless they take a distinctive third way approach.

But I can already see that, if I could just find the time to write the necessary casebooks (or find someone else who would), I really should be teaching all my other subjects from a global perspective. Contracts, corporate law, health law -- all these raise issues across multiple nations and understanding the laws of many nations on these topics would better describe reality. Doing so in basic substantive courses would also, if my experience from the global antitrust book can be generalized, reveal many interesting theoretical issues that a national approach tends to submerge, and pose very interesting areas for possible empirical studies into what works and what doesn't. This last point brings us to the next big transformation in legal studies -- the growing trend toward empirical analysis -- which will be the subject of my blog post tomorrow.

Nobody Special:
Prof. Elhauge, I believe that your analysis misses a couple of extremely important points.

As a preliminary matter, while I'm tempted to make a snide comment or two about the growing rift between the academic world and legal practice, I think that you're too thoughtful to have fallen into the worst of that disjunction. Nevertheless, I believe that your thinking on this matter vastly overstates the reality of the present legal landscape that presents itself to practitioners.

1) Most law remains local. While there is an ever-increasing trend toward the same basic fact and controversy playing itself out across multiple jurisdictions, the vast majority of legal practice, even at the highest level, remains a local enterprise. Sophisticated clients' ease of associating additional counsel will help this always remain so as well.

Consider an analogy to the medical profession: yes, there are advantages to a general practitioner being familiar with most other medical fields, but, at the end of the day, most patients will still choose the specialist surgeon, or the opthamologist, rather than the general practitioner. Likewise, most clients will continue to opt for the attorney/solicitor/advocate/etc. that is deeply rooted in the local legal world, rather than turning to their generally trained first attorney.

2) The provincialism of practice laws. This too is extremely difficult to overcome, even within a unified body of law. In the United States, bankruptcy law and practice is essentially uniform nationally. And yet there remain extremely restrictive rules for admission to most bankruptcy courts, preventing the growth of truly national practices (admittedly, there is a move away from that, but consider the inertia, and then ask it to occur across national borders and legal systems).

3) The realities of the legal marketplace weigh against the growth of trans-border practices. A significant number of law firms have grown beyond their original nation and into global conglomerates. And yet, even so, the vast bulk of those foreign offices are dedicated to providing local companies with advice about doing business in the firms' home countries, not about local legal issues. Given the continual pressure to build and expand revenue generation, it is unlikely that these firms would have neglected to build transnational practices were they practical to do so.
5.21.2007 10:31am
Jeremy T:
I agree with Nobody Special. I don't believe a cost-benefit analysis supports teaching 1Ls international law. Most of them will never deal with any international law whatsoever.
5.21.2007 12:04pm
OrinKerr:
Einer,

I dealt with similar questions when writing my computer crime law casebook. I think the answer to how much comparative &international law a casebook should have is answered by a pretty simple question: How much comparative &international law is useful for a practitioner to know? The answer should be driven primarily by what practicing lawyers say they need.

In some areas, the answer is "a lot," or at least some. In computer crime law, for example, international issues come up all the time. The Internet is global, so crimes are often committed and evidence needs to be collected extraterritorially. Lawyers who specialize in computer crime law need to know what to do in these sorts of cases.

In other areas, however, materials on comparative and international law would be useless -- or at least much less useful than more materials on U.S. or state law. For example, in a standard course in criminal procedure, it's not "parochial" to ignore the law outside the U.S. U.S. law has evolved very differently than the laws of other countries, and most prosecutors and defense attorneys will go their entire careers without encountering a question of comparative or international law.

International and comparative law is very hip right now in the legal academy; its inclusion is seen as a mark of sophistication, like understanding French wines or modern art. But its usefulness in the law school curriculum will be determined by its usefulness to practicing lawyers, and I'm not so sure its role in modern U.S. legal practice is or will be as significant as you suggest.
5.21.2007 12:17pm
Einer Elhauge (mail) (www):
Excellent comments from Nobody Special. A few responses:
(1) Outside of antitrust law, my point is mainly focused on a prediction about the future, rather than on a claim about the present. The point is that the applicable law will turn on the footprint of the relevant market, and as the latter expand, so will the relevant law, and I think that is inexorable even though most markets are still not global. I also think the analogy to medicine cuts the other way. One wants a specialist in a particular subject matter (like antitrust or opthamology) not from a particular area. Antitrust law in the US has much more in common with antitrust law in Europe or Asia than with US law on any other subject. That is as true for practitioners as it is for academics.
(2) This obstacle has been increasingly breaking down in reality. Think at how much more national legal practices are than they were just a couple of decades ago. But I certainly agree that reforming inefficient limitations on legal practice remains an important obstacle to eradicate.
(3) I agree entirely that an important test is where law firms are actually putting their money, but looking at this factor cuts the other way. Certainly in antitrust, law firms have established foreign offices throughout the world to help provide counsel about the antitrust laws of those foreign nations as well as about US law to foreign firms. Indeed, US law firms have discovered that this is a major growth market, offering opportunities for expansion that far exceed those offered by the already saturated US legal market. Legal expertise turns out to be a major export for us.
5.21.2007 12:23pm
Stanfordgrad:
You should talk to Hon. Abe Sofaer at Stanford/Hoover Inst. who tought (teaches?) Transnational Law at SLS. His course was a very practical course in interntional law based on his years as a judge and in the state department.
5.21.2007 12:26pm
Random Lawyer:
Sure, this would help those who work at megafirms in NYC and DC, or those who go to prestigious law schools and want to teach. This is not the majority of lawyers, even though those in the two aforementioned categories may think of themselves as the only true lawyers. We fill law students' heads up with the 18th century law of no nation in particular and theoretical courses that don't inculcate practice skills. Don't you think its time to teach some practical tools that these law students will actually use in their careers?
5.21.2007 1:24pm
Simon Elliott:
I agree with the good Professor that Int'l and Comparative Law should be taught as a required subject, to give students a perspective on their study of local and national law, and as an insight into the future.

That said, I agree with the other comments about the parochialism of law. Unlike medicine (where the practicioners all must deal with a common underlying reality: the human body), the practicioners of law deal with vastly different underlying reality that they themselves modify. Moreover, they have a vested interest in making their own law as arcane and parochial as possible to keep out the outsiders. Businesses too have some interest in keeping differences between jurisdictions: while it raises costs in having to deal with all the local variations, they can also take advantages of different tax, IP, tort etc rules.
5.21.2007 1:36pm
Simon Elliott:
I agree with the good Professor that Int'l and Comparative Law should be taught as a required subject, to give students a perspective on their study of local and national law, and as an insight into the future.

That said, I agree with the other comments about the parochialism of law. Unlike medicine (where the practicioners all must deal with a common underlying reality: the human body), the practicioners of law deal with vastly different underlying reality that they themselves modify. Moreover, they have a vested interest in making their own law as arcane and parochial as possible to keep out the outsiders. Businesses too have some interest in keeping differences between jurisdictions: while it raises costs in having to deal with all the local variations, they can also take advantages of different tax, IP, tort etc rules.
5.21.2007 1:36pm
Avatar (mail):
Certainly an interesting idea. However, I'm not certain how this could possibly go into enough detail to be useful... that is to say, the sheer number of potential jurisdictions you have to deal with will necessarily limit the amount of detail you can afford to go into from any particular nation. Certainly the amount of information imparted to the student will be insufficient to make them knowledgeable to the point of giving considered advice on legal issues pertaining to that nation.

Also, throwing it at first-year law students seems counterproductive. We're talking about students who, by definition, haven't been introduced to several of the legal concepts whose difference in application between nations is precisely the topic of this course; if you're not already familiar with the local applications of tort law or criminal law or what have you, what's the point of learning subtle distinctions between how they are implemented between various EU nations and the US?

Additionally, since you can more or less guarantee that none of the other courses a student is taking in 1L (or 2L, probably) will be interested in this information, aren't students going to rationally discount putting a lot of time into it? As others have noted in the comment thread, it's NOT a big area of legal practice, so for the vast majority of law students, it's going to be a dead end in their legal training. Furthermore, should they confuse an international application of a category of law with the local application when writing an essay test, their other professors are going to savage their grade; better to have less conflicting information in the head and pick it up later, should the need assert itself (and once you've secured your JD and passed the bar, no?)

Finally, the law is a dynamic structure. Lawyers can reasonably expect to keep up with how laws work in the jurisdictions in which they work, and there are plenty of tools designed to help them do that. But the task gets geometrically harder when you're dealing with many countries. What's my legal resource for the latest updates to how Polish police are allowed to conduct searches? What about contract law in Argentina? Family law in Morocco? Enough small changes, being made in a multitude of dynamic systems for which the (non-interested) lawyer has limited time and resources to track, would quickly act to render the worth of his knowledge of comparative law useless.

Certainly, there are exceptions for bodies of law that share a great deal of similarities across national jurisdictions; I'd be interested in an international approach to anti-trust law, for example, and certainly things like trade laws have to be examined in an international context. But, I mean, isn't the 1L curriculum a good place to put the things that all lawyers have to know, rather than one for what amounts to elective knowledge?
5.21.2007 3:24pm
Peter Wimsey:
I am generally sympathetic to the idea of teaching more international courses at law schools, having both taken a course in US/EU antitrust offered at my law school about 15 years ago as well has having studied at a law school in Germany for a year - but I agree with most of the other posters that, realistically, knowledge of international law will be of limited, if any, utility to practicing lawyers.

That doesn't mean it shouldn't be taught, though, since I think a lot of courses offered in law school are of even less utility - Law and Philosophy, Jurisprudence, Law and Psychology, Law and Sociology, and Legal History spring to mind, for example. But I think that one has to have fairly modest expectations about the actual usefulness of the subject.

I think it's worth keeping in mind that antitrust law is fairly unusual, if not unique, in that you can cover a lot by dealing just with the law of the US and the EU. (I suppose you could do something similar with admin law...) But the EU isn't a country and Europe doesn't have a unified jurisprudence - criminal law, say, is different in Germany than it is in France than it is in Sweden. This means that for many areas, you would need to either have a fairly shallow comparative law survey class (which isn't a bad idea), or else have a more in depth US/Country X comparison.
5.21.2007 6:01pm
Randy R. (mail):
I agree that most lawyers basic training in law schools in the subjects of which they will mostly practice. A lot of international law is bogus stuff, like the law that defines how countries are formed, or border established. Interesting stuff, perhaps, but something that you can learn by reading a book later in life.

I think that there is a place in law school for things like Legal History, or Law and Philosophy. If you don't learn it there, where WILL you learn it? And it can give you background and perspective that can be of very real value.

As for international law, I have tell my people that there is only one global market. Everything you do is worldwide, and you can't avoid it. it's not uncommon for an wills and trusts attorney to have to deal with property or assets that are owned in a foreign country, for instance. The world will only get smaller, and it's an important part of any lawyer's training, I think.

As for global law, I think international trade would benefit immensely if there were uniform laws on many subject matters.
5.22.2007 2:19am
Dan Moylan (mail):
In addition to these worthwhile comments concerning ingrained parachialism in the law, which seem essentially valid as a statement of current affairs, I'm curious (accepting your basic premise) how an international casebook can accomplish the stated goal, without contributors hailing from a sufficiently large number of legal traditions to provide adequate coverage of the subjects in those different traditions. Maybe it is possible with antitrust law, due to its specialized nature, but with many other disciplines one would run the risks of very incomplete, superficial, and/or biased coverage, or works that are far too long to be useful in a law school curriculum. I don't deny the premise, but it seems tough to achieve the right balance outside of specialized subjects.
5.22.2007 12:37pm