Unless you are new to the legal academy or you’ve been working on another planet for the last ten years, you are probably already aware of the trend toward “internationalization” of U.S. legal education. However, you may be less aware of some of the practical aspects of this trend, e.g., the justifications law school deans use to sell internationalization to their various constituencies, the differing approaches taken at different law schools, and the difficulties of internationalizing the traditional law school curriculum.
Let’s begin with a look at the justifications. According to Yale Law’s Dean Harold Hongju Koh, transnational law (“a hybrid of domestic and international law that has assumed increasing significance in our lives”1) matters to U.S. lawyers because “it increasingly influences laws and policies that govern us . . . .”2 As examples of this influence, Koh cites President Bush’s recent statement that a U.S. President cannot order torture, federal courts’ holdings that torture is a tort in violation of the law of nations, and the increasing willingness of the Supreme Court to interpret U.S. law in light of international legal norms (see, e.g., Roper v. Simmons, 543 U.S. 551 (2005)).3 Peter Strauss of Columbia has asserted that the world’s many national economies are undergoing a merger similar to the post-Civil War merger of the various U.S. states’ economies, and that this merger will result in a legal services market that rewards law schools who adapt to globalization and punish law schools that do not.4 A Columbia alum recently remarked to Strauss that “85% of the transactions that crossed his desk at a not particularly international New York law firm had one foot or another in a distant country.”5
How are U.S. law schools responding to the need to produce internationally aware graduates? There appear to be two major approaches: (1) the “integration model,” and (2) the “separation model.”6
In the integration model, law schools attempt to present a global perspective across the first-year curriculum (considered by commentators to be the optimal time for this type of approach) by “presenting occasional comparative, international or transnational perspectives in all (or at least most of) the courses in a piecemeal fashion.”7 An advantage of this system is that it reaches students in the early formative stage of their legal education when they can most easily accept foreign and international law as normal parts of the legal discipline.8 A disadvantage to this approach is that, as a practical matter, it is difficult to implement. First-year faculties tend to be heterogeneous groups, many members of which have no particular interest in or knowledge of international and comparative law.9 The integrated approach also requires teaching materials that present comparative or international perspectives in many different legal contexts; the need to create such materials leads to a high start-up cost. Furthermore, the integrated approach to teaching international and comparative law fails to convey a deep, coherent understanding of either international or comparative law.10
In the separation model, law schools create a separate introductory course in international and/or comparative law and make it mandatory.11 This approach is easier to implement than the integration approach because it requires the participation of only those faculty with interest and expertise in international and comparative law. With fewer faculty involved, there are fewer coordination problems. Also, this approach requires only one set of teaching materials.12 However, the separation model also has its disadvantages. First, in this model global perspectives are presented outside of standard legal topics, and usually after the first year of law school. “Second, it is difficult to avoid sliding into teaching simply a watered-down version of the traditional (public) international law course . . . . [Most of our graduates] need basic knowledge not about treaty making, the UN Security Council or the laws of war and peace but about international business transactions, litigation, and trade.”13
It is worth noting one example of a hybrid approach, and one extreme example of the integration approach. Georgetown Law’s “Week One” program is a hybrid of the integration and separation models. In Week One, Georgetown’s first year students attend approximately 15 hours of intense instruction in international and comparative law topics during the week prior to the beginning of the traditional spring semester; students are also required to complete a writing assignment that integrates U.S. law issues from the traditional first-year courses with international and foreign law issues.14 The extreme example of the integration approach comes not from a U.S. law school, but from McGill University in Montreal, Quebec, Canada. McGill’s program integrates the study of civil and common law traditions throughout the law school curriculum, and students graduate with two degrees: one in civil law and one in common law.15
Other programs of note include special international moot court sections of first year legal writing at Brooklyn Law School; first-year international law electives at several schools including American University, the University of Maryland, and the University of Michigan; and American University’s J.D. International Dual Degree programs with Canadian, French, and Spanish universities.
1 Harold Hongju Koh, Why Transnational Law Matters, 24 Penn St. Int’l L. Rev. 745 (2006). Also according to Koh, “Today, the concept of transnational law embraces a range of law school courses thought to be neither purely domestic nor international . . ., for example: Comparative Law, Immigration and Refugee Law, International Business Transactions, International Commercial Law, International Trade Law . . . and the Law of Transnational Crimes.” Id. at 746.
2 Id. at 747.
3 Id. at 747-50.
4 Peter L. Strauss, Transsystemia: Are We Approaching a New Langdellian Moment? Is McGill Leading the Way? 24 Penn St. Int’l L. Rev. 763, 763-66 (2006).
5 Id. at 765.
6 Mathias W. Reimann, Two Approaches to Internationalizing the Curriculum: Some Comments, 24 Penn St. Int’l L. Rev . 805 (2006).
7 Id.
8 Id.
9 Id.
10 Id. at 805-06.
11 Id. at 806.
12 Id.
13 Id.
14 Week One: Law in a Global Context, http://www.law.georgetown.edu/documents/weekone2006.pdf.
15 Rosalie Jukier, Challenging the Existing Paradigm: How to Transnationalize the Legal Curriculum, 24 Penn St. Int’l L. Rev. 775 (2006).