The Utility of International Law Courses — A Response to Posner

by Duncan Hollis

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.

http://opiniojuris.org/2009/09/04/the-utility-of-international-law-courses-a-response-to-posner/

15 Responses

  1. I would think Julian might have something to say on this, cf.: http://prawfsblawg.blogs.com/prawfsblawg/2006/02/making_internat.html

    And there’s more food for thought here: http://www.concurringopinions.com/archives/2008/10/globalizing_the.html#comments 

    In fact, I think a search using simply the term “international law” at several of the law blogs suggests a plethora of possible reasons for requiring international law courses. But as this is outside my own professional experience, I’ll leave the discussion to others.

  2. I weighed in on this discussion a while back (see this OJ post that was cross-posted at Prawsblawg with several comments) and cross-cited to Julian’s endorsement of transnational law in the first year.  Posner’s description of introductory “international” (at some schools called “transnational”) law courses as focused purely on public international law is quite misleading. In the many  AALS and ASIL discussions/proposals on the “internationalization” or “globalization” of the curriculum, the focus has been — as it should be — on addressing the kinds of problems lawyers will encounter in practice, whether private or governmental, criminal or civil.  And from what I know of them, that is the approach of the schools that are either requiring a first-year transnational law course or are offering it as a first-year elective.

  3. Peggy,

    I apologize for not linking to your post as well.

  4. I work at a large law firm as an international lawyer so maybe I am not the best to speak about “regular” law, but let’s work with an example that Posner provides.

    He writes:

    “Do not confuse public international law and private international law! Private international law, which essentially involves choice-of-law issues, could be useful if you expect to work for a law firm whose clients include corporations that do business across borders. . . .” (emphasis mine.)

    So let’s say you are one of those lawyers who anticipates working at a firm with clients who work across borders. They are looking to structure a project financing transaction in a foreign country and you have to mitigate the risk of their investment.  Knowing what a bilateral investment treaty is and does is incredibly helpful.  What about the “soft law” international entities that can help provide you with financing or with political risk insurance?  Again, useful to know what those things are and how they function.  What about sovereign immunity?  How do you stabilize the law for your client against regulatory change? What about the tax implications for your project finance vehicle? 

    Now your client is seeking to merge with another entity and there are antitrust/competition implications across the globe.  Wouldn’t you prefer that your starting attorney have an understanding of not only US antitrust law but how EU competition functions, at least at a basic level?

    Let’s say your client turns out to have been implicated in bribery to procure a foreign contract?   The UK starts to investigate.  The DOJ soon follows. Do you want a white collar lawyer who only focuses on US criminal law or has an understanding about how international law works and can assist on a global investigation.

    You can think of numerous other examples in both transactional and litigation practices.  I can’t speak for others, but my public international law course was well-attended and had immense practical value.

    I will say this:  I don’t think it’s all that necessary to add it to a first-year law student’s curriculum.  If anything, I think if I could make a change to the first-year curriculum it would be to focus on how to negotiate and draft a contract.  But would I suggest that a US law student take an international law course before leaving law school? Definitely. 

  5. It’s also a subfield, but international arbitration draws very heavily from public international law and is widely practiced at top international litigation shops.

  6. Any big firm is going to have international clients.  Even if you’re working for GSK, out of philadelphia, you’re going to be dealing with, e.g., Belgian and EU privacy laws if litigation ever crops up about a drug–since all the giants have overseas labs.  And you’re going to have to educate a lot of US judges (that went to law school many decades ago) as to how to deal with them.

  7. A utility-to-actual-practice standard seems like it could open up some interesting questions that I suspect most lawyers and law profs don’t want to open up. Mightn’t it suggest that we ought to allow people to take shorter 1- or 2-year specialized courses, and pass specialized exams, to practice in certain areas of law, rather than requiring a JD and a bar exam for everyone? Surely an entire law-school curriculum is not actually the optimal arrangement, from a utility-to-practice perspective, for someone who will go on to a career in drafting wills and trusts.

  8. Mark N., why would that be the case? 

    If someone were drafting wills and trusts I could see them wanting to know the basics of the following (i) contracts; (ii) torts; (iii) property; (iv) civil procedure; (v) trusts and estates; (vi) corporations; (vii) tax; (viii) family law; (ix) accounting for lawyers; (x) conflict of laws; and (xi) professional responsibility.  I’m sure I’m missing some that could be included but I think I filled at least two years of legal education with my off the top of my head list, including some in private international law.   You could probably also add some clinical experience dealing with probate/family law in the third year and get a well-rounded law school education that focused on preparing you for a practical experience in drafting wills and trusts.

  9. Non Liquet, I agree you can create an arbitrarily long course for any specialty, because there is so much to know. I’m starting from the current education as a starting point, and arguing that if the goal is utility-to-actual-practice, many areas of actual practice will use at most 2/3 of of what a typical law-school curriculum teaches. Therefore, one cost-effective approach would be to offer stripped-down degrees lacking the irrelevant parts. For example, the wills-and-trusts lawyer probably does not need criminal procedure or constitutional law.

  10. Speaking as a current law student who took International Law in my first year, the course has value  as much prospectively as retrospectively.  Prior to law school, I worked at the UN. In my policy and advocacy position, I quickly understood there was a legal component that I was not fully grasping.  Likewise, in talking to other students in my course, their interest in taking the course arose largely from having encountered international legal issues in various domains. I guess my point is that isn’t it enough that it instills an understanding of prior experiences?  And I would add, if we as students knew there was a gap in knowledge in non-lawyer capacities–wouldn’t it follow that we would benefit from the knowledge even more so as lawyers? Even if we don’t practice international law in our careers, we will at least develop a greater global civic-mindedness.  And that’s enough utility to satisfy me.

  11. Moving off topic:
    Mark N.: The problem with the utility-to-practice approach is that it limits your career choices right out the door.  As a new lawyer currently job searching, I’m relying on the broad range of courses I took (from IP to IL to nat’l security to the generic bar courses) to give me a chance in the numerous fields to which I need to apply in order to find a single job.  If you focus yourself too early, you hobble yourself.  Especially if the market changes, as it has in the past couple of years.

    If you’re looking for a cost-effective approach, it would first help if law schools weren’t subsidizing the rest of the university.  Is $30-$45K/yr really needed for 4 walls, some desks, chairs, and a few professors? I know that’s oversimplified, but I really would like to know where the money goes.

    Last, as a lawyer, you are a representative of the legal world and, to some extent, the law itself. Think on how many people ask you questions on legal topics that are not your specialty.  How pathetic would it be if you didn’t have a clue how to answer or clarify a basic Con-law question simply because the course wasn’t worth your time in school?  And that aside, you might find that you do, indeed, need some knowledge of Con-law issues even in wills-&-trusts.  I’m finding that issues from all my courses pop up in unexpected places, including from both Con-law and International Law.

  12. “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.”

    Without trying to be too wilfully contrarian, for my money the utility of a particular course is only one consideration in assessing the benefit of that course. Other, perhaps more ephemeral, considerations also apply, such as wishy-washy philosophical questions about alternative approaches to the resolution of conflict in human relationships.

    I guess this is where jurisprudence comes in. Both it and international law were optional courses at my Australian university. I opted for the former, and only later studied international law at a post-graduate level. Yet in the study of jurisprudence I was exposed to the International Relations/International Law school.

    If the growth/development of international law affects domestic legal practice even only in so far as it challenges/changes our approach to jurisprudential questions, then I think it is worth at least a little bit of every law student’s attention.

  13. In Eric Posner’s defence: I do think that he was posting out of fondness for polemics. Nevertheless, his post does deserve a response.

    First of all: why study law at all? Common law tradition has it that law is practical rather than academic. Britain’s famous Lord Denning spent a lot more time studying maths than law at university. “Practical training” would be a better description of the education you received as a barrister or solicitor. The same holds true for elite American universities: the law they teach is not always the law that is applied (does Stanford teach the CA Civil Code in Contracts?). What students learn is method, argument, logic, thought. Brilliant students can learn the law later: in an extremely shallow version it is taught by BarBri, more in depth by law firms.

    But that is just a bit of the answer. Law school does not aim at teaching methodology with irrelevant content. Law school is trying to do both: teach methodology AND the law. And this is where Eric Posner is entirely mistaken with his attitude to international law, comparative law and private international law. The US exported goods worth $125.8 billion in June 2009 alone. We all know that the number for imports is higher even. That is an enormous market. But if you want to counsel competently on a deal between, say, a US producer and a French importer you will have to know the effects of the deal under US and French law. You don’t – you’re toast. That comparative law class might come in handy, after all.

    But it is not just that. Let us say you are figuring out residency requirements under US law for immigration or tax purposes. And your (immigrant) client tells you what he just did in Mexico or Spain or Italy. Is it relevant or not? You might never know, because if you are not aware of how to understand the foreign legal system, you might not know if it fits under US law conditions.

    But even if you have no immigrant client and no internationally active client (if you like statistics, you can figure out whether there is even a single place in the US where you can expect that) you might have to deal with foreign legal systems to be a competent counsel: in Germany, for example, it has become popular to try to threaten companies with discovery in the US (it does not exist in Germany) – on tenuous jurisdictional grounds. In the US you might want to advise your client to sue for libel in Britain where you stand a chance of winning the case.

    Admittedly this makes the case for comparative and private international law, so what about public international law? Well, sooner or later you will have to touch on this if you venture across borders. What does UNIDROIT have to say (and what is it)? How do the Hague Conventions work? Can I sue under International Investment Law? What the heck is ICSID?

    In my legal education I once had a test case in which the defendant lived in Switzerland. The teacher did not know that he could not solve the case with the ordinary (German) CivPro rules. His solution was wrong.

    Most certainly a lack of education.

  14. If I can suggest two common themes of the rebuttals offered to Posner’s comments, they are:

    – Prof Posner (as shown by the scathing critiques that Limits justifiably received) doesn’t know much about international law; and

    – Based on the examples given above and my own experiences in practice, he doesn’t know much about what serious legal practitioners do either.

    While Posner and his ilk may be wedded to (and can, if they like, advocate for) a vision of a United States legal system in isolation from the world, that’s simply not the reality either in public international law terms or in terms of serious contemporary commercial or other legal practice, which must increasingly negotiate a world subject to WTO dispute processes and decisions, investment arbitrations, cross-border regulatory measures and so forth.

    While Posner’s reductionist model of international law might suggest that these are each separate fields that one can pick up in isolation, that, again, doesn’t tally with the reality of those fields or with the demands of practice.

Trackbacks and Pingbacks

  1. […] OJ Co-Blogger Duncan Hollis Responds to VC Co-Blogger Eric Posner on the question of classes in public international law. (I will try to find a moment to weigh in on this, but I’m trying to make the final copy edits to my Targeted Killing chapter, finish my long-suffering UN-US relations manuscript, and help my daughter paint her room a tasteful eggshell blue while my Beloved Wife is in Guatemala over the weekend.) I’m also going to add, apropos of nothing in particular, that while I like the title of Eric’s book, The Perils of Global Legalism, I probably would have named it, Parlous Global Legalism. I’ve always wanted to have an academic title with “Parlous” in it. […]