The Utility of International Law Courses — A Response to Posner

As Ken noted, Eric Posner has responded to my question on whether 1Ls should take international law with an emphatic “No!”  In fact (and perhaps not surprisingly given his scholarly positions) Eric’s not very keen on law students taking international law courses at all; he advises them to take statistics instead.  Eric does concede that international law belongs in the law school curriculum, and that students may take it if they “think it might be interesting.”  On the whole, however, he observes that:

There is no reason to take international law in any year unless you want to work as a lawyer in the State Department or certain obscure precincts of the Justice Department, hope to work for an international organization such as the United Nations or an international NGO with a legal agenda such as Human Rights Watch, or have an academic or intellectual interest in international law and international relations. If you are in any of these categories, wait till your second year. For most law students, who aspire to work in regular law firms, or in prosecutor’s offices and other government agencies outside the State Department, the chance that you will encounter the type of issue taught in a public international law course over the course of your career is close to zero.

There’s a threshold question lurking in this critique, of course, on whether a course’s utility to an aspiring lawyer turns on whether that lawyer will encounter the relevant issues in later practice.  If that’s the standard, it begs the question of why law schools spend so much time on constitutional law (especially separation of powers and federalism questions) with which only a relatively few practicing lawyers get to engage (or, why we continue to emphasize common law doctrines in an administrative state).  It seems more likely that utility-to-actual-practice is only a standard for including a course in the curriculum, rather than the standard; in other cases, we want students exposed to certain courses because it provides a shared foundation about the law for all in the profession; hence, everyone gets the joy of learning battery, efficient breach, and servitudes whether or not their practice ever involves torts, contracts, or property.  Similarly, if we’re to advise lawyers to take non-legal courses like statistics that are undoubtedly attractive to certain future employers, does that mean we should encourage other courses like Spanish, which are also of undoubted benefit to other areas of legal practice?    

In any case, assuming a course’s utility is a function of subsequent practice in the material covered by the course, does international law really have as small a footprint as Eric suggests?  Now, my own resume fits two of the career choices Eric says favor a foundational course in international law (i.e., State Dept. lawyer, academic interest in international law and international relations). But I actually got my start in international law in private practice at Steptoe & Johnson, and was one of a dozen or so young associates there doing so.  And, when I was at the State Department, I tended to engage on international law questions mostly with the Solicitor General’s Office and the Office of Legal Counsel, which I’m pretty sure were not the “obscure precincts” of DOJ to which Eric referred.  But perhaps my experiences in practice or with DOJ were exceptional?  I’d like to open the comments for others to weigh in on whether international law was useful to their subsequent careers.  In particular, I’d be interested to hear from those who “work in regular law firms, or in prosecutor’s offices and other government agencies,” recognizing that we already have among our readers a fair number of folks in jobs Eric concedes would benefit from having had international law.   For those in more traditional domestic practices, did having international law matter at all?  Did it give you any theories, doctrines, or skills that came up again in practice? 

Separately, I’d be interested to hear from other academics on Eric’s suggestions about the relative place of international law in the law school curriculum.  Eric views it as a “poorly attended” course and recent efforts to demarginalize it as “marketing gimmicks.”  I can’t speak to enrollments at Chicago, but at Temple more than half of each graduating class now takes international law.  Are other schools experiencing a similar growth in attendance?  Do others agree that international law’s increased visibility has come from marketing or fashionable intellectual trends?  I, at least, attributed it to increases in international institutions, international norms, as well as heightened cross-border movements of people, goods, services, and ideas.

Now, perhaps, some of Eric’s critique and my corresponding defense turns on the fact that we might not be talking about the same thing — namely what an international law course involves today.  One could, I imagine, teach an international law course with little attention to the U.S. legal system or questions facing private practitioners — e.g., focusing on topics like the formation of treaties, recognition of states, use of force.  But, I think a lot of international law courses have evolved, consciously or unconsciously, to topics that do arise with greater frequency or within larger legal communities.  In my own international law class, I spend a fair bit of time, for example, on (a) the VCCR-related cases, with particular attention to the roles of the defense bar, state governments and state judiciaries in these issues; (b) foreign direct investment standards and arbitrations that occupy a host of Big Law firms; (c) prescriptive and enforcement jurisdiction questions that matter in criminal and civil contexts; and (d) debates over the development and implementation of human rights norms within domestic legal systems. 

To be clear, I’m not saying international law is the most important course in law school, nor that its coverage never strays into high theory or rare situations (I don’t expect many of my students to litigate before the ICJ after all).  I do, however, think it is an important course, and one that many, if not most, future lawyers would benefit from taking.   As always, though, I’ll be interested to hear what others think.