European legal education, or: How to prepare students for global citizenship?

Law Teacher

Volumn 45, Issue 2, 2011, Pages 163-180

  Smits, Jan M ^a,b  

^a MAASTRICHT UNIVERSITY   (Netherlands)

^b UNIVERSITY OF HELSINKI   (Finland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79960682560     PISSN: 03069400     EISSN: 19430353     Source Type: Journal    
DOI: 10.1080/03069400.2011.578880     Document Type: Article

References (104)

1. In 2007 Harvard Law School followed other American law schools in adding an internationally oriented course to the first year as part of the first substantive change of the 1L curriculum in 130 years. First year students now have to take one of three courses devoted to public international law, international economic law, or comparative law.
2. There is abundant literature on the "transsystematic" programme at McGill (taught since 1999).
3. See the special issue of (2005) 50 McGill Law Journal 701-1006 and most recently.
4. H. Dedek and A. de Mestral, Born to be Wild: "The 'Trans-systemic' Programme at McGill and the De-Nationalization of Legal Education" (2009) 10 German Law Journal 889-911.
5. P.L. Strauss, "Transsystemia - Are we Approaching a New LangdellianMoment? IsMcGill Leading theWay?" (2006) 56 Journal of Legal Education 161-171.
6. See on the Maastricht ELS programme (taught since 1995) A.W. Heringa, "Towards a European Law School! A Proposal for a Competitive Diversified Model of Transnational Co-operation", in M. Faure and J. Smits (eds), Towards a European Ius Commune in Legal Education and Research (Antwerp, Intersentia, 2002), 3-13.
7. A.W. Heringa, "European Legal Education: The Maastricht Experience" (2010) 29 Penn State International Law Review 81-94.
8. McGill graduates are increasingly hired by the big international law firms (including those in New York) because of their ability to work in both civil law and common law jurisdictions.
9. Seemost recently the special issues of (2008) 26 Penn State International Law Review 811-912 and of (2009) 10 German Law Journal 629-1168.
10. Prime examples of such programmes are the Hanse Law School (a cooperation between the universities of Bremen, Oldenburg and Groningen, focusing on German and Dutch law) and the joint LLB programme of Paris I and King's College London (focusing on French and English law). In addition, numerous transnational programmes exist at the master's and "post-master's" levels.
11. Of course, there have always been dissident voices. One of the earliest is Rudolf Von Jhering's famous lament that legal science had deteriorated into a provincial field of study ("Die Rechtswissenschaft ist zur Landesjurisprudenz degradiert"): Geist des Römischen Rechts, vol. i (Leipzig, Keip, 1852), 15.
12. More recently the turn towards a European legal education received theoretical and programmatic underpinning in Cappelletti (ed.), New Perspectives for a Common Law of Europe (Florence, EUI, 1978).
13. B. de Witte and C. Forder (eds), The Common Law of Europe and the Future of Legal Education (Deventer, Kluwer, 1992).
14. The exchange of students and staff in Europe is facilitated by the highly successful Erasmus Programme (established by the European Commission in 1987, later part of the Socrates Programme and now part of the Commission's Lifelong Learning Programme) and by the creationof the European Higher Education Area (as a result of the Bologna Declaration of 1999).
15. More in particular in the so-called "English track" of this programme ("ELS-ET").
16. See, with many references, J.M. Smits, "The Complexity of Transnational Law", in Netherlands Reports to the Eighteenth International Congress of Comparative Law (Antwerp, Intersentia, 2010), 113-130.
17. The importance of which for teaching is emphasised by Akkermans, "Challenges in Legal Education and the Development of a New European Private Law" (2009) 10 German Law Journal, 803-814.
18. G. De Burca, "Developing Democracy Beyond the State" (2009) 46 Columbia Journal of Transnational Law 101-158, at 104.
19. For an elaboration of the idea of private law beyond the nation-state, see Michaels and N. Jansen, "Private Law Beyond the State? Europeanization, Globalization, Privatization" (2006) 54 American Journal of Comparative Law 843-890.
20. N. Jansen and R. Michaels, "Private Law and the State" (2007) 71 Rabels Zeitschrift 345-397.
21. And the special issue of (2008) 56 American Journal of Comparative Law 527-843.
22. H. Patrick Glenn, "Aims of Comparative Law", in J.M. Smits (ed.), Elgar Encyclopedia of Comparative Law (Cheltenham, Elgar, 2006) 59.
23. H.W. Arthurs, "Law and Learning in an Era of Globalization" (2009) 10 German Law Journal 637.
24. Southern Pacific Company v Jensen, 244 U.S. 205, at 222 (1917), opinion of O.W. Holmes.
25. See the recent book by Jansen, TheMaking of Legal Authority (Oxford, OUP, 2010), 28. cf. p. 43.
26. the "abstract authority of a text giving expression to a legal norm consists in the legal profession accepting it as an ultimate source of the law".
27. D. Kennedy, "Legal Education as Training for Hierarchy", in D. Kairys (ed.), The Politics of Law: A Progressive Critique (New York, Free Press, 1990), 38-58.
28. See below, text surrounding n. 22.
29. Strauss, supra n. 2 (2006) 56 Journal of Legal Education: today's lawyers should be "resourceful in imagining alternative approaches to clients' needs, drawing on the full range of the law's possibilities".
30. See, among many, the overview by Bell, "Legal Education", in P. Cane and M. Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford, OUP, 2003), 901-919.
31. the recent book by Kronman, Education's End (New Haven, Yale UP, 2007).
32. Cf. Strauss, supra n. 2 (2006) 56 Journal of Legal Education 165: the goalmust be to "catch students in a University enterprise".
33. M.C. Nussbaum, "Cultivating Humanity in Legal Education" (2003) 70 University of Chicago Law Review 265-279, at 265.
34. for a more general account Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education (Cambridge, MA, Harvard UP, 1997).
35. Y.-M. Morisette, "McGill's Integrated Civil and Common Law Program" (2002) 52 Journal of Legal Education 12-28, at 22.
36. T.D. Rakoff and M. Minow, "A Case for Another CaseMethod" (2007) 60 Vanderbilt Law Review 597-607, at 606.
37. "The focus will be more on alternatives, choices, and living with the sequential consequences of earlier choices."
38. This view fits in with what I think is at the core of normative legal scholarship, namely a concern with the ought, on which opinions will always differ.
39. see (in Dutch). J.M. Smits, Omstreden rechtswetenschap (The Hague, BJU, 2009).
40. G.S. Becker, "The Economic Way of Looking at Life", Nobel Lecture in Economics (Stockholm, 1992).
41. S.D. Levitt and S.J. Dubner, Superfreakonomics (New York, 2009), at 13: economics is not a subject matter, but "a decision to examine the world a bit differently".
42. E.L. Rubin, "The Practice and Discourse of Legal Scholarship" (1988) 86 Michigan Law Review 1835-1905, at 1893.
43. "The conflict of norms is the essence of normatively-based scholarship".
44. A. Sen, The Idea of Justice (Cambridge, MA, Harvard UP, 2009), at 106: we should "have something to say about the choices that are actually on offer".
45. On the strong tradition of having (and teaching) only one law (the ius unum).
46. H.P. Glenn, "A Transnational Concept of Law", in P. Cane and M. Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford, OUP, 2003), 839-862.
47. Apparent in the use of the terms LLB (legum baccalaureus or Bachelor of Laws), LLM (legum magister or Master of Laws) and LLD (Doctor of Laws).
48. See Strauss, supra n. 2 (2006) 56 Journal of Legal Education.
49. R.A. Posner, The Problems of Jurisprudence (Cambridge, MA, Harvard UP, 1990), 431-432: (national) doctrinalwork is now"work for followers rather than leaders", if not "old-fashioned, passé, tired".
50. There is more than just anecdotal evidence that the graduates of McGill and the Maastricht European Law School get better job opportunities than traditional graduates.
51. But important variations exist among countries and universities. A useful overview is provided at http://www.europaeische-juristenausbildung.de (last consulted 8 October 2010).
52. See for the same view Heringa, "Towards a European Law School!", supra n. 3.
53. The term "European" is not completely correct. I use it to indicate an approach that seeks to teach lawyers about alternative approaches, not necessarily restricted to those adopted in the European Union.
54. Ideally, terms like "contract law" and "constitutional law"would already of themselves imply that these topics are treated in an international way: likewise, one should not teach "comparative law", but law. As the current understanding of these terms is different, I add the term"European" to denote this international aspect.
55. P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law (Oxford, OUP, 1987), 394.
56. Strauss, supra n. 2 (2006) 56 Journal of Legal Education.
57. Strauss, supra n. 2 (2006) 56 Journal of Legal Education.
58. U. Mattei, T. Ruskola and A. Gidi, Schlesinger's Comparative Law (7th ed., New York, 2009), Preface. After the famous expression of Louis Brandeis in New State Ice Co. v Liebmann, 285 U.S. 262.
59. Rakoff and Minow, supra n. 24 (2007) 60 Vanderbilt Law Review 597-607, at 604.
60. On the importance of doctrinal thinking in French law, see themuch discussed book by Philippe Jestaz and Christophe Jamin, La doctrine (Paris, Dalloz, 2004).
61. See for this distinction in the context of teaching: W. Mincke, "Practical and Propositional Knowledge as the Basis of European Legal Education", in De Witte and Forder (eds), supra n. 7, 285-294.
62. See resp. O. Lando and H. Beale (eds), Principles of European Contract Law I and II (Boston, Kluwer, 2000)
63. O. Lando et al. (eds), Principles of European Contract Law III (Boston, Kluwer, 2003)
64. European Group on Tort Law, Principles of European Tort Law (Vienna, Springer, 2005)
65. D.J. Hayton et al. (eds), Principles of European Trust Law (Deventer, Kluwer, 1999)
66. K. Boele-Woelki (ed.), Principles of European Family Law, various volumes (Antwerp, Intersentia, 2004)
67. Von Bar and E. Clive (eds.), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Munich, Sellier, 2009).
68. Jan Smits, "A Principled Approach to European Contract Law?" (2000) 7 Maastricht Journal of European and Comparative Law 221-223.
69. See for a theoretical foundation P. Legrand, "The Same and the Different", in P. Legrand and R. Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge, CUP, 2003), 240-311.
70. Also see C. Valcke, "Global Law Teaching" (2004) 54 Journal of Legal Education 161-182
71. L. Catá Backer, "Global Law in American Law Schools: Prospects and Difficulties of Incorporating a Transborder Element in Legal Education", 2007, available at http://papers.ssrn.com/sol3/papers. cfm?asbtract_id=969870 (last consulted 8 October 2010).
72. Heringa, "Towards a European Law School!", supra n. 3, at 7.
73. McGill did so by introducing its "transsystematic" programme (see the text surrounding n. 2 above) and Maastricht by adding an "English track" to its European Law School.
74. R. Junker, "Where Lawand PedagogyMeet in the Transsystematic Contracts Classroom" (2005) 50 McGill Law Journal 789.
75. J. Husa, "Turning the Curriculum Upside Down: Comparative Law as an Educational Tool for Constructing the Pluralistic Legal Mind" (2009) 10 German Law Journal 913-926.
76. Arthurs, supra n. 15 (2009) 10 German Law Journal 638.
77. Also see Rakoff and Minow, supra n. 24 (2007) 60 Vanderbilt Law Review, 607.
78. who point to the lesson of Langdell: "the template for legal thinking established in the first year of law school has real staying power".
79. The advocated approach may be difficult to apply, but "the greater fear is that, if we do not make the effort to challenge students in this way, students will learn to think of the legal system as only so many rooms, so many pieces of furniture, that they can never reorder".
80. K. Lipstein, "European Legal Education in the Future: Teaching the 'Common Law of Europe"', in De Witte and Forder (eds.), supra n. 7, 255-263, at 258.
81. M.J. Dunkin, "A Review of Research on Lecturing" (1983) 2 Higher Education Research and Development, 63-78.
82. Nussbaum, supra n. 23 (2003) 70 University of Chicago Law Review 273.
83. There is a voluminous literature on PBL in law.
84. among many, G.A. Moens, "The Mysteries of Problem-Based Learning: Combining Enthusiasm and Excellence" (2007) 38 University of Toledo Law Review 623-632.
85. M. Tzannes, "Problem-based Learning in Legal Education: Intentionally Overlooked or Merely Misunderstood?" (1997) 31 The Law Teacher 180-197.
86. For an example of how to do this: Wade, "Meet MIRAT: Legal Reasoning Fragmented into Learnable Chunks" (1990) 2 Legal Education Review 283.
87. G. Stigler, The Intellectual and theMarketplace and Other Essays (London, 1963), 14.
88. Rakoff and Minow, supra n. 24 (2007) 60 Vanderbilt Law Review.
89. this as the core of legal education: "the analysis of complex, rich factual descriptions of problems and the generation of alternative avenues for problem-solving".
90. On the difference between deep and surface learning see Ramsden, Learning to Teach in Higher Education (2nd ed., London, 2003), 62.
91. L.F. del Duca, "The importance of understanding the role of statutes, regulations, and cases in legal practice and legal education in the United States legal system", in IALS Conference Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World (Washington, IALS, 2007), 296.
92. Both lawschools admit about 200 students per year. At Harvard, the entire first year class of about 550 is split into sections containing a maximum of 80 students (which seems too large to pursue the type of teaching advocated in this article).
93. Probably (but unjustly) motivated by concerns of accountability and quality assurance.
94. On the enormous importance of students writing papers as critical examination of the materials (and oneself).
95. Nussbaum, supra n. 23 (2003) 70 University of Chicago Law Review 273.
96. Yale had already abolished letter grading in the 1960s.
97. H. Kötz, "A Common Private Law for Europe: Perspectives for the Reform of European Legal Education", in De Witte and Forder (eds.), supra n. 7, 39.
98. The suggestion is not as unworldly as it seems: it is part of the internationalisation mission of various Dutch universities to insist on all faculty (including those teaching Dutch law) teaching in English.
99. On which see the special issue of (1993) 41 American Journal of Comparative Law 351 ff.
100. The importance of international cooperation is emphasised by Akkermans, supra n. 11 (2009) 10 German Law Journal 803.
101. L.F. del Duca, "Cooperation in Internationalizing Legal Education in Europe - Emerging New Players" (2001) 20 Penn State International Law Review 7.
102. G.H. Samuel, "What Is It to Have Knowledge of a European Public Law?", in De Witte and Forder (eds), supra n. 7, 171-184.
103. Although the dichotomy of public and private law can already be found in Roman sources (D. 1.1.1.2), its importance as an epistemological categorisation is much more recent and directly related to the emergence of the nation-state.
104. An example is the discussion about comparative inspiration in private law and about "constitutional dialogue" in constitutional law