Op Ed by John Haffner, BCL/LLB’06
In the 1870s Christopher Columbus Langdell, Dean of Harvard Law School, introduced a major innovation in legal education in the form of the case method. Rather than students’ passively memorizing the law in a vacuum, Langdell initiated a curriculum based on reading past judicial decisions in order to understand the evolution of the common law. His innovation set a new standard in legal pedagogy and remains the hallmark of an American legal education today.
Nearly a century and a half later, another innovation is afoot: the globalization of law. But whereas we can now look back on the Langdellian innovation with clarity, we are still in the midst of the evolution towards a more globalized legal education, and there is considerable debate as to its scope, significance and desirability. To what extent does globalization make a difference for U.S. law and U.S. law schools? As Andrew Guzman, director of graduate programs at the University of California at Berkeley School of Law candidly comments, “I don’t think that law schools, collectively, have figured out what it is they should be doing. A lot of schools are trying different things with the word ‘international’ in them.”
In this uncertain context, some conservative commentators have weighed in with strong reservations over the specter of what is being called “legal transnationalism.” There have been talk show polemics, opinion pieces and even Senate resolutions suggesting that judges, practitioners, policy-makers, and law students do not need to be exposed to or engage with anything other than U.S. law, and that inordinate attention to other forms of law reveals a misunderstanding of the Constitution and the intentions of the founding fathers. During his Supreme Court confirmation hearings, Justice Samuel Alito stated that “I don’t think it’s appropriate to look to foreign law;” while during Justice Elena Kagan’s Senate confirmation hearings, Senator Jon Kyl said he was troubled by the suggestion that “you can turn to foreign law to get good ideas.”
But these critics of transnational legal understanding miss the mark: U.S. law schools ought to continue and even accelerate their efforts to adopt more expansive and globally enriched curricula. American law schools should require courses in — or at least increase their offerings in — the other major legal traditions of the world: civil law, indigenous legal traditions (within both developed and developing countries), forms of sacred law (especially Islamic law), and Chinese law. They could do so through a range of initiatives including expanded study abroad programs, visiting lecturers from around the world, expanded research and sabbatical opportunities, and the use of information technology like webinars and videoconferencing. The more ambitious schools could look at development of joint and comparative degree programs in collaboration with universities abroad. Especially at a time of spirited debate about the cost-benefit of the traditional J.D. program in the U.S., there is plenty of room for experimentation and differentiation. What is important is the underlying policy commitment, and how it will generate a range of creative approaches and productive outcomes.
There are at least four reasons why U.S. law schools should globalize their curricula. First, comparison enriches understanding. By examining legal norms across legal traditions, students will gain a better understanding of their own predominant legal tradition, inherited from British common law. They will understand that the human imagination has devised more than one way to establish a binding contract, compensate individuals for civil wrongs, and govern the use and transfer of property. By understanding that continental Europe, Latin America, Quebec, and Louisiana, among others, follow civil law principles, U.S. law students will avoid the dangerous mistake of equating their common law with the rule of law, as though the former entailed the latter and the latter could not exist without the former.
Second, comparative understanding will enhance U.S. competitiveness. Most of the world’s dynamic emerging economies are rooted in legal traditions other than the common law. As the global business environment becomes more competitive, the United States and its institutions must work harder to attract and maintain investment and business, at home and abroad. Business – including the business of law – is largely about trust, relationships and mutual comfort. When American lawyers can show for example that they understand the difference between common law in Hong Kong and civil law in mainland China, it sends Chinese businesspeople an important signal.
Third, graduates of law schools outside the U.S. often have some familiarity with the U.S. legal system. Consider the rise of dual degree and international programs in India, China, Canada, and elsewhere. If future American lawyers lack familiarity in kind, they will suffer a comparative disadvantage, both collectively and at the negotiating table in individual transactions. Lawyers who understand “codes and civil law methodology” are better equipped to work their way through a particular civil code. Thus an American lawyer who has studied the French or German civil code in law school would have an easier time approaching the Mexican civil code than one who had studied only the common law. On a recent trip to China, American Bar Association president Steve Zack was impressed with questions Chinese law students asked regarding the U.S. legal system,commenting: “I doubt that any similar questions could be asked if the president of the Chinese bar or even the English bar came here.”
Finally — and it is here especially that the conservative phobia of global law study is harmful — greater comparative understanding will better equip the United States to contribute to world affairs. Many lawyers trained at U.S. law schools engage in legal reform in other countries, whether in post-conflict reconstruction efforts, advisory work on behalf of multinational corporations or NGOs, or otherwise. All too often, such efforts fail because reformers naively impose US legal principles where they have no roots. As New York University’s Frank Upham says candidly, “the record of externally imposed law reform is dismal.” Lawyers whose imaginations and sensitivities have been expanded through comparative law study would better collaborate on reform, mindful of the host country’s legal traditions. By bridging U.S. institutions and foreign legal traditions, American lawyers will play a more helpful role as they attempt to broker agreements and establish legal principles in support of public goods that transcend borders.
Rather than bowing to the legal protectionism that is often now making its way into TV sound bytes and newspaper headlines, American law schools should continue tailoring their curricula to meet the growing demand for globally literate practitioners and legal thinkers. In doing so, they will play a vital role in equipping American businesses, government, and scholarship for the transnational challenges that lie ahead. Just as Dean Langdell’s nineteenth century vision for a more sophisticated and responsive legal education has proven prescient, so a serious and systematic approach towards globalizing legal education may come to define U.S. law schools for many decades to come.
This post was written by Cyrus Habib and John Haffner. Habib, a Rhodes Scholar and graduate of Yale Law School, practices law in the Seattle office of Perkins Coie. Haffner, a renewable energy executive based in Asia and 2008 Yale World Fellow, holds common and civil law degrees from McGill University. Originally published February 8, 2011, in The Huffington Post.