Institutional Pluralism and International Law

Kudos to John Garvey for focusing on “institutional pluralism” as the overarching theme of this year’s AALS. As he noted in introducing the theme, “This year’s theme focuses on the values of our institutional differences. Institutional pluralism is a good thing for our students in the same way choices are good for consumers in other fields…. A community of scholars working on the same problem, or in the same idiom, may accomplish things a group of disconnected individuals could not.” The focus was on law schools that are truly distinctive, either because they are religiously affiliated (Notre Dame, Cardozo, Pepperdine, etc.), historically black (Howard), or pursue intellectual efforts from a particular point of view (George Mason).

What struck me from attending the AALS and thinking through the idea of institutional pluralism is that the idea does not fit nicely when it comes to the discipline of international law. We used to talk about the “New Haven School” but in the current environment almost no one speaks of a school of thought in international law today that is pegged to a particular law school. Some schools may have an emphasis in one specialty or another, but no law school seeks to distinguish itself as uniformly following a school of thought. The revisionists do not cluster together at one law school while the international legal empiricists cluster at another. One cannot examine the faculties populating the top law schools in international law and accurately say that a school of thought is percolating from that locale.

Why is that? It probably reflects two independent movements. First, international law scholarship is disaggregated from and independent of school affiliation. Some of the best stuff coming out today is published by scholars who are not at the top law schools in the country. You do not have to be affiliated with a prestigious school to be a leader in a particular international law specialty.

Second, international law is so pervasive in the curriculum that law schools have many more scholars doing international law. The coverage spans the gamut from foreign relations law to private international law to international criminal law. It is almost impossible to cover the full array of international law subjects from a particular school of thought. How does one teach foreign relations law as an empiricist or international trade from a revisionist perspective? There is just too much to cover and one size does not fit all.

I seriously doubt we will ever again have the equivalent of a “New Haven School” or a “Chicago School” when it comes to international law. We will continue to have schools of thought, but they will not be labeled based on geography. When it comes to international law, there is much intellectual diversity, but there is not much in the way of institutional pluralism.