On nourishing the curriculum with a transnational law lagniappe

Journal of Legal Education

Volumn 56, Issue 4, 2006, Pages 578-595

  Bernstein, Anita ^a,b  

^a EMORY UNIVERSITY   (United States)

^b NEW YORK LAW SCHOOL   (United States)

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EID: 35348825452     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (93)

1. See, e.g., Bethany Rubin Henderson, Asking the Lost Question: What is the Purpose of Law School?, 53 J. Legal Educ. 48, 75 (2003) (proposing drastic revisions in the first-year curriculum to embrace law and society and legal norms);
2. Todd D. Rakoff, The Harvard First-Year Experiment, 39 J. Legal Educ. 491 (1992) (noting discontents with pedagogical traditions at Harvard).
3. For a challenge to this approach from a recent law school graduate, see Christophe G. Courchesne, "A Suggestion of a Fundamental Nature": Imagining a Legal Education of Solely Electives Taught as Discussions, 29 Rutgers L. Rec. 21, 51-53 (2005) (proposing to reverse "the impulse in law school faculties" to add more requirements to the second- and third-year curricula by eliminating requirements in the first-year curriculum).
4. For example, in his essay reflecting on being a dean after five years in the job, Allan W. Vestal equated "curriculum reform" with changes in the first-year curriculum. "A River to My People...": Notes From My Fifth Year as Dean, 37 U. Toledo L. Rev. 179, 190 (2005).
5. See American Association of Law Schools, 2006 Annual Meeting Program Brochure, What is Transnational Law and Why Does it Matter?. The AALS likes to troll in these waters. The term "transnational law" is, according to one scholar in this field, even "more nebulous" than "comparative law" and "international law." Catherine Valcke, Global Law Teaching, 54 J. Legal Educ. 160, 163 (2004).
6. Valcke notes a common "technical" understanding of this phrase: "an amalgam of legal relations and instruments that, while involving private citizens directly, cross national boundaries." Id. This understanding is present in the online Transnational Law Database, operated out of the University of Cologne. See Central's Transnational Law Digest Sc Bibliography, available at 〈http://www.tldb.de〉 (last visited May 3, 2007).
7. It is close to my own working definition of what law school curricula call "international business transactions." In this forum, however, I believe that many contributors regard "transnational law" as extending beyond "private citizens" to cover comparative law and international law as well. See Gerald Torres, Integrating Transnational Legal Perspectives Into the First Year Curriculum, 23 Penn St. Int'l L. Rev. 801, 802-05 (2005) (offering reflections from a recent president of the AALS on adding international law to his property course).
8. See infra notes 65-66.
9. A classic of American literature offers an amiably extended definition: We picked up one excellent word-a word worth traveling to New Orleans to get; a nice limber, expressive, handy word-"Lagniappe." They pronounce it lanny-yap.... It is the equivalent of the thirteenth roll in a "baker's dozen." It is something thrown in, gratis, for good measure.,.. When a child or a servant buys something in a shop-or even the mayor or the governor, for aught I know-he finishes the operation by saying,"Give me something for lagniappe." The shopman always responds; gives the child a bit of liquorice-root; gives the servant a cheap cigar or a spool of thread; gives the governor-I don't know what he gives the governor; support, likely. Mark Twain, Life on the Mississippi 450 (1891). The 2006 AALS Annual Meeting was originally scheduled to be held in New Orleans, Well housed in our Washington, D.C., substitute location, some speakers at the meeting adverted to the devastation of Hurricane Katrina, a catastrophe that I wish to remember here.
10. For my earlier exploration of this point see Anita Bernstein, Conjoining International Human Rights Law with Enterprise Liability for Accidents, 40 Washburn L.J. 382, 410-11 (2001).
11. Valcke, Global Law, supra note 4. Grossman may intend a point similar to Valcke's when he recommends "a qualitative rather than a quantitative change in legal education." Claudio Grossman, Building the World Community: Challenges to Legal Education and the WCL Experience, 17 Am. U. Int'l L. Rev. 815, 818 (2002).
12. A plateful of lagniappes might be an example of quantitative rather than qualitative change. In his summary of curricular reform at his own institution, however, Grossman refers to large numbers of options and offerings-see, e.g., id. at 838-39 (enumerating eight clinical programs); id. at 844-50 (reporting on the large number of projects undertaken by the Center for Human Rights and Humanitarian Law)-suggesting that he cares about quantity too. On hefty buffets for students,
13. see infra notes 34-40 and accompanying text.
14. In the original, "La fonction de touriste de la connaissance se conforme à des lois de surface qui capitulent devant les premières rigeurs." Valcke, Global Law, supra note 4, at 160 & n.1 (quoting René Char, Recherche de la base et du sommet 741 (1965)) (translation by Catherine Valcke).
15. Valcke, Global Law, supra note 4, at 176-81.
16. Id. at 160.
17. See Bernstein, Conjoining International Human Rights Law, supra note 7, at 410.
18. Provincialism in United States Courts, 81 Cornell L. Rev. 4 (1995).
19. Michael D. Ramsey, International Materials and Domestic Rights: Reflections on Atkins and Lawrence, 98 Am. J. Int'l L. 69, 69 (2004).
20. McFadden, Provincialism, supra note 13, at 11.
21. Id. at 11.
22. Id. at 14-15.
23. 504 U.S. 655 (1992).
24. 504 U.S. at 657-60.
25. United States v. Caro-Quintero, 745 F. Supp. 599 (C.D. Cal. 1990) (involving Dr. Alvarez-Machain as a co-defendant).
26. United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991).
27. McFadden cites Malvina Halberstam, In Defense of the Supreme Court Decision in Alvarez-Machain, 86 Am. J. Int'l L. 736, 737 (1992),
28. and John M. Rogers, Response to President's Notes on Alvarez-Machain, ASIL Newsletter, Jan.-Feb. 1993, at 5. McFadden, Provincialism, supra note 13, at 16, 21-22.
29. McFadden, Provincialism, supra note 13, at 17.
30. Alvarez-Machain, 504 U.S. at 669.
31. McFadden, Provincialism, supra note 13, at 20.
32. Id.
33. Id.
34. See generally Larry Catá Becker, Human Rights and Legal Education in the Western Hemisphere: Legal Parochialism and Hollow Universalism, 21 Penn St. Int'l L. Rev. 115, 137 (2005) ("The current state of curricular parochialism in U.S. law schools is well known.").
35. John A. Barrett, Jr., International Legal Education in the United States: Being Educated for Domestic Practice While Living in a Global Society, 12 Am. U.J. Int'l L. & Pol'y 975, 1011-13 (1997)'
36. For example, under Constitutional Law one finds "Treaties"; under Environmental Law, "Transboundary Issues"; under Trusts and Estates, "Foreign Assets." Id. The list is underinclusive: for example, under Legal Ethics it reports zero, but at least one legal ethics teacher has been covering international and comparative material in her course for years, and writing about it.
37. See Mary C. Daly, The Ethical Implications of the Globalization of the Legal Profession: A Challenge to the Teaching of Professional Responsibility in the Twenty-First Century, 21 Fordham Int'l L.J. 1239, 1252 (1998) (describing a class called "Professional Responsibility in Corporate, Business and International Practice").
38. Search tip: Try "Canad!," because Canadian scholars and teachers have contributed disproportionately to the literature on global law teaching. See Mark A. Drumbl, Amalgam in the Americas: A Law School Curriculum for Free Markets and Open Borders, 35 San Diego L. Rev. 1053 (1998);
39. Aline Grenon and Louis Perret, Globalization and Canadian Legal Education, 43 S. Tex. L. Rev. 543 (200a);
40. Craig Scott, A Core Curriculum for the Transnational Legal Education of JD and LLB Students: Surveying the Approach of the International, Comparative and Transnational Law Program at Osgoode Hall Law School, 23 Penn St. Int'l L. Rev. 757 (2005);
41. Valcke, Global Law, supra note 4.
42. Grossman, Building the World Community, supra note 8, at 829.
43. Stephen H. Legomsky, Globalization and the Legal Educator: Building a Curriculum for a Brave New World, 43 S. Tex. L. Rev. 479, 489 (2002). "There has been a movement to introduce international or transnational elements, known as 'modules,' into courses that have primarily a domestic law focus, especially courses required as part of the first year curriculum."
44. John F. Murphy and Jeffery Atik, International Legal Education, 37 Int'l Law. 623, 624 (2003).
45. In the footnote attached to their sentence, however, Murphy and Atik provide no example of developments in this "movement," saying only that an article by Phillip Trimble has "provocatively stated" a rationale for this approach. Id. at note 4. The Trimble article does not appear to recommend "modules," however, observing that instructors seem to resent appropriations of their class time to fulfill what they perceive as someone else's agenda.
46. See Phillip R. Trimble, The Plight of Academic International Law, 1 Chi. J. Int'l L. 117, 119 (2000) (concluding that "fundamentals" of international law instead "could be introduced in a mini-course often or fifteen hours in the first year of instruction").
47. See generally Barrett, International Legal Education, supra note 29, at 995-96 (reporting results of an ABA survey that found very little inclusion of international materials in domestic law courses).
48. The danger has not gone unnoticed. See, e.g., Daly, The Ethical Implications, supra note 29,
49. at 1249-50 (arguing that cross-border work is on the increase for American lawyers, even-or especially-within specialties and contexts like family law, criminal defense and prosecution, in-house general counsel positions, and small firms, where newcomers to the profession may have thought they were going into an entirely domestic practice). Grossman, Building the World Community, supra note 8, at 826 (2003) ("The continued focus on standard courses, which remain inextricably attached to domestic concerns, is inadequate to prepare lawyers for a new world reality.").
50. At a panel discussion of the Sarbanes-Oxley statute when it was new, one securities law scholar offered a humorous illustration of the point in another setting: It reminds me of a student I had many years ago. I failed the student in securities law, and he came around and said, "Oh, I really need these credits to graduate. You're preventing me from graduating. Can't you give me a makeup?" Then to try and persuade me, he said, "Professor Karmel, I promise, I'll never practice securities law." I said, "The trouble with you is that you won't know if you're practicing securities law or not." Panel 2: The Evolution of Corporate Governance, 52 Am. U. L. Rev. 613, 634 (2003) (remarks of Roberta Karmel).
51. Among American law schools a prominent exception to this generalization is Villanova, where students may opt into an international section for the spring semester of legal writing. Students in this section prepare a memorandum on an international issue for an international tribunal, and argue before judges whom they address as Your Excellency. E-mail from Doris Del Tosto Brogan, Associate Dean, Villanova, to Anita Bernstein, May 29, 2006 (on file).
52. On the neglect of statutes in the American law school curriculum see, e.g., Douglas R. Haddock, Collaborative Examinations: A Way to Help Students Learn, 54 J. Legal Educ. 533- 534 n.4 (2004);
53. Jack Stark, Teaching Statutory Law, 44 J. Legal Educ. 579, 579 (1994);
54. see also John F. Manning, Comment, Justice Scalia and the Legislative Process, 62 N.Y.U. Ann. Survey Am. L. 33, 33 n.2 (2006) (noting and endorsing criticisms of this omission in the curriculum). The neglect-of-scholarship critique, a more diffuse literature, comes from interdisciplinarians who seek to add one or more theoretical perspectives to first-year courses. See Jean Stefancic and Richard Delgado, How Lawyers Lose Their Way: A Profession Fails Its Creative Minds 35 (Durham, N.C., 2005) (objecting to formalism in the required curriculum); James E. Krier and Richard B. Stewart, Using Economic Analysis in Teaching
55. Environmental Law: The Example of Common Law Rules, 1 UCLA J. Envt'l L. & Pol'y 13, 17 (1980) (advocating reform of the first-year curriculum to include an introduction to economics for all students who lack minimum training).
56. Several law schools devote large sections of their websites to our subject. See, e.g., Internationalism, available at 〈http://www.law.umich. edu/prospectivestudents/graduate/international.htm〉 (last visited May 3, 2007); Welcome to International Programs at Duke Law, available at http://www.law.duke.edu/internat; Center for Global Law and Policy (Santa Clara), available at 〈http://www.scu.edu/law/international〉 (last visited May 3, 2007); and the especially vast Hauser Global Law School Program at NYU, available at 〈http://www.nyulawglobal.org〉 (last visited May 3, 2007).
57. Comparative law scholar David Clark found the number of programs circa 1997 "substantial." David S. Clark, Transnational Legal Practice: The Need for Global Law Schools, 46 Am. J. Comp. L. 261, 271 (1998). There were 122 then; there are 206 now. See American Bar Association Foreign Study Programs, available at 〈http://www.abanet.org/legaled/study-abroad/foreign.html〉 (last visited May 3, 2007).
58. See Barrett, International Legal Education, supra note 29, at 993-94 (suggesting that law schools tend to overcount their offerings).
59. When Ugo Mattei was surveying U.S. law schools to rate them on a 100-point scale that measured their commitment to comparative law, he gave points for "comparative" and "foreign" law journals but not international ones. Ugo Mattei, Some Realism About Comparativism: Comparative Law Teaching in the Hegemonic Jurisdiction, 50 Am. J. Comp. L. 87, 94 (2003).
60. The majority of ABA-accredited law schools offer the LL.M.; while lawyers trained in the United States are eligible for this graduate degrees, LL.M. programs tend to orient their offerings toward foreign students. See generally Masters of Laws Programs Worldwide, available at 〈http://www.llm-guide.com/ usa〉 (last visited May 3, 2007) (describing 132 American LL.M. programs).
61. These indicators align fairly well with what Mattei examined. Mattei also counted the number of foreign professors teaching regularly at each school-a datum that pertains to how comparative a school is but not, usually, to its presentation of itself to student consumers. Mattei, Some Realism, supra note 41, at 94.
62. Id. at 95 (awarding Tulane 89 out of a possible 100 points; the "silver medal" went in a tie to Columbia, Texas, and Illinois, which all scored 71).
63. John Edward Sexton, The Global Law School Program at New York University, 46 J. Legal Stud. 329 (1996). In October 2006, the original home of Langdell took a bold step by announcing a new first-year required course "introducing global legal systems and concerns." Harvard Law School, HLS Faculty Unanimously Approves First-Year Curricular Reform, Oct. 9, 2006, available at 〈http://www.law.harvard.edu/news/2006/10/06_curriculum. php〉 Gast visited May 14, 2007)-more than a lagniappe-sized move, but not yet the Tulane-sized commitment to comparative legal education.
64. Mattei, Some Realism, supra note 41, at 94.
65. Id.
66. One advocate of increasing the presence of international law in the required curriculum nevertheless acknowledges the cost of this increase. He must be quoted at length because length-or bulk-is his point: Every course should include an alternative dispute resolution ("ADR") component because otherwise students will think that all legal disputes have to be settled through adversarial means. Each course should integrate procedure with substance because how can students understand the substantive law if it is set adrift from its procedural moorings? In the United States, despite our common law origins, every course should include a statutory component because otherwise students will erroneously assume from the typical first-year courses that the common law continues to dominate the U.S. legal system. Every course should incorporate an administrative component because we do, after all, live in an administrative state.... Every course should contain an ethics component because we want our students to live ethical lives and to be a credit to the legal profession. Each course should include a social policy component because we want lawyers to contribute to the betterment of society, not become rigid technocrats who think about nothing but the bottom line. Each course should include a law and economics component because future policymakers need to know how to balance competing interests. Every course should have a critical legal studies component because otherwise students will be excessively influenced by law and economics. Every course should have an interdisciplinary dimension because not every problem has an answer that can be found in "F.3d", and besides we want our graduates to be well-rounded individuals. Each course should pay tribute to history because law is an evolving process that can be understood only in its historical context. Every course should contain a jurisprudential component because how can our students understand the practice of law if they do not understand its theoretical underpinnings? Nowadays every course should incorporate a cyberspace component because we live in an information age, and those who do not know how to access information will be at a distinct competitive disadvantage. Each course should include race and gender components because for too long law courses have been taught, at least in the United States, as if the only people who mattered were white males, and at any rate students will interact with diverse groups of people when they get out in the world. On top of all this, every course should integrate an international law component because we live in a global village. Each course should also include a comparative law component because we do not want to turn out narrow-minded chauvinists who think that the law of their particular country is God's gift to the world. Legomsky, Globalization and the Legal Educator, supra note 32, at 485-86.
67. One dean takes up the question, as part of his larger commentary on business aspects of law school administration. He suggests that both expanding and failing to expand one's international curriculum are potentially costly options. Jay Conison, Financial Management of the Law School: Costs, Resources, and Competition, 34 U. Toledo L. Rev. 37, 44 (2002).
68. Elizabeth Rindskopf Parker, Globalizing the Law School Curriculum: Affirming the Ends and Recognizing the Need for Divergent Means, 23 Penn St. Int'l L. Rev. 753, 756 (2005) (remarking that adding "modules" to the core curriculum is likely to be cheaper than adding a mandatory course or large numbers of electives).
69. For a polite reference to faculty hostility toward international law, see David J. Bederman and Jonathan C. Hamilton, Agents of International Discourse: A Conspectus on the Future of International Law Journals, 40 Va. J. Int'l L. 817, 826 (2000).
70. In the inaugural essay of a new international law journal, one scholar of this field implicitly warns reformers that faculty opponents might fight a transnational-law curriculum reform plan stealthily, without acknowledging (or even being aware of) their aversion. Anthony D'Amato, The Path of International Law, 1 J. Int'l Legal Stud. 1, 9 (1995).
71. Trevor C.W. Farrow, Dispute Resolution, Access to Civil Justice and Legal Education, 42 Alta. L. Rev. 741 (2005).
72. On alternative dispute resolution as an increment that, like transnational materials as discussed in this symposium, can be imported into every first-year class, see Leonard L. Riskin, Disseminating the Missouri Plan to Integrate Dispute Resolution Into Standard Law Courses: A Report on a Collaboration With Six Law Schools, 50 Fla. L. Rev. 589, 591-95 (1998) (reporting on an experiment that brought dispute resolution exercises into the first-year required curriculum at seven U.S. law schools).
73. Farrow, Dispute Resolution, supra note 52, at 756-68. The three approaches to teaching ADR are the institute or center (centre, to Farrow), working in conjunction with traditional courses; traditional courses alone; and a "pervasive" approach, which seems like the best fit within the first-year curriculum. See Grossman, Building the World Community, supra note 8 (describing pervasive efforts at American University); Farrow, Dispute Resolution, supra note 52, at 741.
74. Farrow, Dispute Resolution, supra note 52, at 801.
75. Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968).
76. One law professor-yet another Canadian contributor to this conversation-speaks of "marketing and the unending search for 'newness'" in North American legal education as a problem of the commons: In response to the increasing competitiveness of the legal education environment, individual schools are anxious to be able to market their services to prospective students, donors and alumni. Enlarged budgets are devoted to the production of trendy web-sites, glossy brochures, newsletters, invitational open-houses and promotional events. All law schools are constantly on the look out for innovative projects, that can be trumpeted as "the best," "the only" or "the first." Placement offices, distance education initiatives, alternative dispute resolution programs, exchange programs, co-operative placements and externships are proudly introduced by one or two schools, and then all or most of the rest swiftly follow suit. The cachet of the initial innovation recedes and the search is on for yet another "one of a kind" initiatives. Constance Backhouse, The Changing Landscape of Canadian Legal Education, 20 Windsor Y.B. Access to Just. 35, 28 (2001).
77. See supra notes 8-11 and accompanying text.
78. Ramsey, International Materials, supra note 14, at 69.
79. Lawrence v. Texas, 539 U.S. 558, 598 (2003) (Scalia, J., dissenting).
80. Ramsey, International Materials, supra note 14, at 69.
81. Id. at 72.
82. See supra note 10.
83. Ramsey, International Materials, supra note 14, at 76.
84. Id. at 77.
85. Barrett, International Legal Education, supra note 29, at 997 (quoting a survey reporting that only 23 percent of professors teaching international law favored this requirement).
86. See Parker, Globalizing the Law School Curriculum, supra note 50, at 754-55 (describing bar examiners as the only cohort among one school's alumni who would not likely cooperate with transnational-curriculum reform);
87. Anne-Marie Slaughter, The International Dimension of Law School Curriculum, 22 Penn St. Int'l. L. Rev. 417, 417 (2005) (adverting to "debate" among members of the American Society of International Law over how to present international law to state bar associations and other sources of input on the content of bar exams).
88. Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002), quoted in Ramsey, International Materials, supra note 14, at 77.
89. Ramsey, International Materials, supra note 14, at 78. Ramsey further criticizes the Court for not bothering to look at the actual laws and practices of countries that use the death penalty, which might have presented examples of statutory law providing a categorical exemption. Id. (noting the availability of information about "relatively accessible death penalty jurisdictions such as Jamaica and Trinidad").
90. Id. at 79.
91. Id. at 78 ("[I]t seems plain that the EU brief is not a serious investigation.").
92. Claudio Grossman, Techniques Available to Incorporate Transnational Components Into Traditional Law School Courses: Integrated Sections; Experiential Learning; Dual J.D.s; Semester Abroad Programs; and Other Cooperative Agreements, 23 Penn St. Int'l L. Rev. 743, 744-45 (2005).
93. See supra note 6 (quoting the Mark Twain definition of lagniappe).