When Should American Law Students Take International Law?

by Duncan Hollis

I started teaching my introductory course to international law this week.  I’ve got nearly 80 upper-level students, which is a pretty good number considering that an equal if not greater number of students had the opportunity this past spring to take international law as a first year elective.  Nor is Temple alone in moving international law into the first year curriculum.  Schools like HarvardGeorgetown,  Michigan and Virginia all offer ILs similar opportunities; while Pacific McGeorge continues to promote integrating international and comparative law angles into traditional first year courses.  And even recognizing that there remain quite a few schools where you have to wait until your second year to get a taste of international law, it still sure looks like international law is becoming a core course in law school.

Now, obviously, we international law professors love this heightened attention to our chosen speciality (indeed, we’re the ones who have spent so many years pushing to move international law out of the hinterlands of the law school curriculum where it lay for so many years).  Having international law as part of the first year course load confirms for many of us the significance and importance of our field to the practice of law (and, to be clear, I do think international law is of increasing importance to all lawyers, not just those who follow human rights, trade, or international environmental issues).

But, what about the student’s perspective?  Say you’re an incoming 1L interested in international law; should you take international law at the first opportunity (or might we even say if you’re really serious about becoming an international lawyer, you “must” take it as a 1L when it’s available)?  I can see clear arguments for why it makes sense to advise students to take international law courses early and often; they broaden the student’s conceptions of law beyond the traditional common law courses that predominate in the first year, while also giving students a foundation on which to take the more specialized international coursework that is increasingly necessary to becoming an international lawyer.

On the other hand, I like teaching international law to upper-level students.  They’ve got a deeper foundation in U.S. law, which makes it easier to explore how international law differs from domestic legal systems.   And, to the extent I spend a lot of time exploring how international law operates within the U.S. legal system, I like having students already versed in constitutional and criminal law subjects.  For example, I’m teaching Sanchez-Llamas and Medellin tomorrow, and I can’t imagine doing that with first years given how much time I’d need to spend explaining domestic legal issues like procedural default rules or federal court jurisdiction in lieu of focusing on the international law questions that make these cases so interesting and important.  I wonder if it’s not possible, therefore, that upper-level law students are more likely to “get” internaitonal law than their first year colleagues, and, as such, get more out of the course by taking if after finishing the first year.   

So, what do readers think?  If you want a career in international law, does it make sense to take international law as soon as possible, or can students get just as much of a foundation in this subject by waiting and taking it as a second (or even third) year student?  Or, is this–like many issues in legal education–one where we’d do well to take a case-by-case approach, where some students should be advised to take international law ASAP, while others with the same career aspirations would do well to wait a bit before doing so?


10 Responses

  1. Alternatively, one might suspect that the upper level students would be a more difficult audience, because their indoctrination in American style legal thinking gets in the way of their ability to look at IL problems correctly.

  2. What sort of indoctrination in American style legal thinking are you referring to and how is it less correct from an IL point of view than indoctrination in Country X-style legal thinking?

  3. From a UK perspective many Cambridge professors often  complain that students exposed to having been exposed year of “real” uk common law, never really “get” international law and its way of visualising a legal system. Although to be honest i do not think 1st year would be any better for obvious reasons, so the 2nd year of studies seems the way forward.

  4. Perhaps the answer lies not in the timing of the course but in the nature of instruction.  I start the course by teaching the intellectual and social origins of international law.  I then briefly trace the progression its nature and function in (admittedly Western) legal thought (think Blackstone, Benthem, Hart, Austin).  We briefly trace the law of nations as described by Vattel to the modern sources of international law in the ICJ statute.

    Throughout the course I continuously stress the different ways of viewing the nature and function of international law raised in the introduction to the course.  I emphasize that these differences rest not only in different legal philosophies (natural v. positive law) and legal systems (common v. civil law v. others) but also in the different status of international law within given countries or communities. 

    For example, we discuss the fact that if my country’s Constitution says that international law is supreme law of the land – supreme even to the Constitution, my understanding of its nature and function is quite different from a strictly dualist country, or a “hybrid” country (as I would categorize the U.S.).  We discuss the possible effect the European Convention of Human Rights and its enforcement mechanisms might have on a European’s view of what international law is and does, etc.

    At bottom, I think we have it in our power to introduce students to the topic in a variety of ways that will guide their conception of it regardless of the legal system in which they are being trained.  Of course, that they struggle to think about it from a different perspective will not alter whatever belief they ultimately adopt as to its proper form, function and purpose.

  5. International law is so very broad.  And increasingly, as a young associate, I find myself butting heads with the gray hairs when we run into international issues: Partner X, we really must pay attention to swiss privacy laws when asking for document discovery; “partner Y, it’s possible that the french court won’t honor the district court’s subpoena;” “partner z, I don’t know if zimbabwe’s going to recognize that judgment.”  employment law? What happens if your client opens up shop in Brazil? Do your US employees get Brazilian collective bargaining rights? Do your Brazilian employees get to take advantage of the US minimum wage?

    The jurisdictional issues, the comity issues, the normative issues…they pop up in any subject, anywhere.  I understand the importance of a beginner’s “international law 101” course, especially  when it comes to public international law.  But for most law students (who likely will not, in fact, work at an NGO or for some multilateral organization), a much broader approach is needed.  I think it is far more important to introduce international aspects into *every* law school course.

  6. @Ellis Telford: I didn’t have anything particularly sinister or uniquely American in mind. I just meant that studying the law normally does not involve a great amount of comparative law, meaning that you start to take many things for granted.

    I remember having a discussion on Volokh, for example, about “extraterritorial” laws. (The post was about Italian internet regulation, I think.) I tried to explain that the case in question could reasonably be characterised not as extraterritorial, but as based on a different definition of the location of certain torts. This lead to all sorts of confusion.

    Similarly, prof. Anderson has recently been posting about companies and the ATS. If I understand the issue correctly, he thinks companies cannot be subjects of international law the way individuals are. To me, coming from continental Europe, that is an extremely strange proposition. Over here, the standard rule is that corporations have all rights and obligations, including human rights, except those that they are – by their nature – unable to enjoy. In practice, that implies a significant difference, but the idea that there should be a categorical difference between legal persons and natural persons was quite surprising to me.

    International Law is based on broadly shared legal concepts, which are not necessarily the same as the concepts used in US law. (Or any other municipal legal system.) A law student who has incorporated the common law distinction between liability for acts and omissions might run into trouble in international law. Teaching IL earlier, after they learned about that distinction but before they have come to view it as self-evident, might be more useful.

  7. At the risk of getting off topic:

    Similarly, prof. Anderson has recently been posting about companies and the ATS. If I understand the issue correctly, he thinks companies cannot be subjects of international law the way individuals are.

    That’s not what I got from Mr. Anderson’s article at all.  Rather, the issue seems to be whether international law (minus genocide and other war crimes, as he disclaimed) can bind non-state actors, which would encompass both individuals and corporations.

    Really, though, the whole issue is about very tenuous theories of liability, in my opinion.

  8. @M. Gross: Does he not make a clear distinction between corporations and individuals in this Volokh post, for example?

  9. From his Volokh Conspiracy post:

    Ordinarily, neither individuals nor private entities are ‘subjects’ of international law – individuals might have rights under international law, but are not subjects of it as such, as states are

    While he does mention Corporate Liability by name, I think that’s more because personal liability rarely comes up.  The whole reason ATS suits are aimed at corporations is that that is where the collectable money is, and the corporate veil prevents suing individual executives under most circumstances.

  10. Back on topic:
    Martin: Int’l Law 101 doesn’t teach comparative law. It won’t teach you how other countries interpret the law except, at most, how they incorporate treaties (monists, etc.). IL 101 primarily focuses on international law from a US perspective: how the US incorporates international law or ignores it, threats to sovereignty, and case studies of US incidents.  To learn about other countries’ viewpoints and systems, you have to take comparative law classes. 

    I think a US law student runs into trouble with international law because it’s so mushy. Treaties say one thing but state action says something different. Is there a breach? Who says? Is there a reservation? An objection? Does that matter? Meanwhile, international tribunals officially do not follow precedent but unofficially do. The mushiness is worse than Con Law.

    I think the mushiness problem is an issue at any point in a US law student’s career so I don’t think it really matters when IL 101 is taught.  I’m happy that IL 101 is being offered to 1Ls. My introduction to IL was by taking Int’l Crim and Int’l Business at Temple Rome right after 1L year. It would have been nice to have had the background of IL 101 before then.  As for the Civ Pro stuff, I think it can be summarized pretty quickly for the purposes of understanding the cases.  I believe, Prof Hollis, that you already do this for those upperclassmen (like me) who dumped out their civ pro knowledge after 1L year.

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