Are We All Transnationalists Now? Should We Be?

As Chris notes, I am guest blogging over at PrawfsBlawg for a week or so, and will cross-post my musings there over here.

At the AALS meeting back in January (yes, I am late catching up), Peter Strauss of Columbia Law School gave an interesting talk to kick-off the discussion of transnational legal education.  Strauss compared the current discussions about the place of international and transnational law in the curriculum to the "Langdellian moment" when Christopher Langdell introduced the case method to the Harvard Law School.  By focusing on method ratehr than learning state law out of hornbooks, HLS became the first truly national law school and, according the Strauss account, replaced Columbia as the go-to school for recruitment to the Wall Street firms.  Columbia, responding to market forces, only caught up some years later – after Langdell had raided some of its best faculty members.  Law schools are now experiencing the "trans-systemic" moment.

In the post-Langdell world, Strauss notes, all law subjects are taught in a way that lends them to relatively easy transition from being purely “American” law courses, to being transnational, comparative or “trans-systemic.”  When we teach cases, we teach through comparative methods, e.g., majority versus dissenting opinions.  When we teach the common law, we teach comparatively (N.Y. versus California in contracts or torts, for example).  The subject matter of some courses lend themselves quite easily to the notion of trans-systemic approaches (admiralty, conflicts, secured transactions).  Given that trans-systemic law is what we are all already doing, Strauss sees it as a logical and not terribly radical step for law schools to embrace trans-systemic approaches to law that encompass international, regional and foreign state legal systems.

The AALS has been engaged for some time in the valuable project of shifting curriculums and programs at law schools to prepare American lawyers for “transnational challenges.”   The question at many lower tier and more traditional regional law schools  –and I include my home institution, the University of Missouri, in that group – is how much transnational law do our students need?  Several prominent law schools have emerged to lead the way in transnational or global legal education.  At the top of the heap are NYU, Columbia, Michigan (the latter being the only U.S. school to require transnational law in the first year – soon to be joined by Hofstra).  Others have sought to fill a transnational niche (e.g., McGeorge).  I agree with Strauss that, at the end of the day, the shift from purely national to transnational legal education will be market driven.  We are already living in a world of three tiers of law schools in the U.S. :  International law schools, national law schools, and regional law schools.  Do the national and regional schools need to present themselves as “international” in order to survive?

Strauss’s approach seems to suggest that what is needed in the first year is not necessarily an introduction to public international law or even the traditional private international law, but something that reflects a problem-based approach to inter-systemic lawyering. (This is apparently already de rigeur at McGill –for reasons of  being situated in a province governed by a civil code within a national legal system grounded in the common law.)  In my own paper submitted at a 2004 AALS meeting on transnational legal education, I suggested that the incorporation into the core curriculum (torts, contracts, tax, bus org) is one way to make transnational legal problems relevant to students at the regional schools.  Many faculty are reluctant to introduce international conventions or customary international law principles or comparative case law into their classes either because they think they are not qualified to teach from that perspective or they think it adds too much complexity for students struggling with the basic doctrine.  Strauss has provided a nice framework from which to argue to the reluctant faculty that they are, in fact, already teaching trans-systemically.

I am not completely convinced (as my co-blogger Julian Ku has argued) that transnational law needs to be required at all law schools (for many of the reasons raised in the comments to Julian’s post).  But all lawyers need the tools for approaching transnational problems.  Perhaps a flexible approach to trans-systemic law through the pervasive method may be helpful.  What do the non-internationalists think?