Although international law traditionally was viewed as a distinct field that was at best peripheral to legal education, recent years have seen surging interest in courses and programs described as international, transnational, comparative and global.
A primary driving force is clear — clients, and therefore law firms, are demanding law school graduates who are skilled far beyond the confines of domestic-focused subjects on the bar exam. Legal educators face the following question: How are they meeting these demands and, more importantly, what can they do better?
Law schools are rising to this challenge. This is a dynamic period of innovation and collaboration, with individual law schools exploring a variety of initiatives. But they can do more. In particular, two trends deserve greater attention.
Legal education needs foremost to more actively address the full life cycle of lawyers from wide-eyed 1Ls to seasoned veterans. Law schools must be flexible in responding to the rapidly changing market for legal services. For example, the elementary joint ventures that American lawyers structured in China during the 1980s are a far cry from today's complex financial transactions, such as China Investment Corp.'s purchase of stakes in The Blackstone Group L.P. and Morgan Stanley. New, creative law school programs should reflect these changes.
Second, law schools should increasingly emphasize meaningful, sustained collaboration with foreign partners. Ad hoc, one-off programs no doubt can be beneficial in providing students with valuable experiences. Yet this type of hit-and-run cooperation is often unsatisfying and fails to go beyond a superficial layer of knowledge and cultural understanding.
An initial hurdle in this discussion is to clarify terminology. Law school course descriptions use buzzwords such as international, transnational, comparative and global to describe curricula that extend beyond a purely domestic-centric view. The terminology varies and is applied inconsistently, creating some uncertainty as to what it all means.
The realm of treaties and other public international law subjects, for example, is quite different from conflict-of-law issues in cross-border business transactions. Comparative law, with its focus on delving into individual legal systems and then drawing comparisons across them, is yet another animal.
For simplicity, borrowing from Judge Philip Jessup in his Storrs Lectures at Yale during the 1950s, this article uses transnational law to encompass "all law which regulates actions or events that transcend national frontiers." Philip Jessup, Transnational Law 2 (1956).
In the 1950s, Jessup's lecture was directed toward a niche field. Today, it is not a question of whether we need to prepare herds of lawyers for an increasingly international legal market but rather how to accomplish this goal. Putting aside quibbles over terminology, the challenge is to foster lawyers who can readily transcend national frontiers.
How then do law schools train transnational lawyers? They must provide opportunities in line with 21st century demands and expectations, which includes relying in significant part on long-term collaboration with foreign partners. This process starts when students walk into law school.
First-year law students often arrive with a vague idea that they want to do something international. It is the law school's job to help students wrap their heads around the ways in which this can be accomplished, preferably early enough in their studies to allow time for further specialization if the students so desire.
Here lies an important point: What law schools sell as legal educators goes beyond specialization. Whereas in the business community it has long been recognized that cultural competence and global knowledge are valuable assets in the marketplace, this perspective has too rarely translated into the realm of legal education. But there are early adopters who recognize the value of legal professionals having such a background.
For example, in 2004, the University of Michigan graduated the first class of J.D.s who were required to take a class on transnational law. Harvard Law School, among others, has added international and comparative law to the traditional first-year curriculum. These are significant accomplishments, but merely first steps.
Another method is for professors to infuse a transnational element into foundational courses. Students often lack an understanding of the differing legal processes of countries — one such student revealing visible surprise upon learning that many countries rely primarily on a criminal procedure code rather than a mishmash of court opinions that interpret the constitution. The American approach is one way, but it is not the only or necessarily best way. This lesson should be learned early on.
Beyond the law school's walls, study-abroad programs benefit the students directly and are an excellent mechanism by which to forge solid ties between American and foreign institutions. There has been an explosion of study abroad programs for J.D.s, both during the academic year and between semesters — the latter making particular sense in countries with semesters that do not line up with the academic year in the United States. Short-term courses, such as Seton Hall University School of Law's programs in Cairo, Egypt; Zanzibar, Tanzania; and Geneva, are an option for students who are unable to leave for an entire semester because of law review or other commitments.
Some may question the opportunity cost of leaving the rich course offerings in American law schools for programs abroad that often lack proven track records. Rest assured that the American Bar Association watchdogs are on boondoggle alert, and the accreditation committee does not give its blessing lightly.
Turning to graduate studies, American law schools have long been a magnet for foreign-trained lawyers who seek a master of laws (LL.M.) degree and the ability to take state bar exams that comes with it. Now American schools are flipping the equation and bringing the teachers to the students abroad.
Beginning in 2007, New York University School of Law and National University of Singapore began a program that offers LL.M.s from both law schools but is taught entirely in Singapore with several NYU faculty making the trek during their summer break. This commitment to a dual-national joint LL.M. program is helping to unmoor legal education from traditional geographic bounds.
Moreover, the leading role of foreign universities such as the National University of Singapore underscores that the transnational trend is not merely an American phenomenon. One of the more innovative voices is coming from Bucerius Law School in Hamburg, Germany.
Founded in 2000 as Germany's first private law school, Bucerius has skyrocketed to become one of the country's premier law schools, in significant part due to its transnational focus as seen in its requirement that all LL.B. students complete a five-month study-abroad program. In turn, Bucerius receives a class of 100 foreign students from its partner law schools, who complete a tailored "Program in Comparative and International Business Law." Bucerius is spearheading multicountry partnerships such as the Summer Law Institute held in Suzhou, China, in cooperation with Cornell Law School and the Kenneth Wang School of Law at Suzhou University.
Although these initiatives aimed at degree-granting programs are constructive, the challenge of training transnational lawyers goes far beyond solely preparing current students. Legal education also needs to reach those already immersed in practice.
Even lawyers who took transnational law courses while in school often find that their knowledge is rapidly outdated and that on-the-job training is woefully insufficient. Organizations such as the New York City Bar are stepping in with continuing legal education courses on timely topics including compliance with the Foreign Corrupt Practices Act. Similarly, Bucerius' for-profit subsidiary, Bucerius Education GmbH, meets this demand in offering high-level executive education programs for top firms such as Linklaters, Clifford Chance and Freshfields Bruckhaus Deringer of London.
Here again, the idea is not only to enhance traditional legal skills but also to address unique expectations of the 21st century lawyer. A successful counsel needs to adapt swiftly within a rapidly changing legal environment and embrace unfamiliar views that stimulate the consideration of new and unconventional perspectives.
It is important that legal educators provide students with tools to process diverse opinions and experiences. These tools in turn will help improve legal and business decisions and contribute to problem solving in complex international environments.
In emphasizing the need to train transnational lawyers, there must be recognition of the reality that many lawyers' practices will not venture across state lines, let alone international ones. The goal of any legal education system is first and foremost to train qualified lawyers who are well versed in domestic laws.
That said, especially in these troubled economic times it is not enough for law schools to churn out competent domestic lawyers. Law schools also need to produce students who are valuable to clients operating in various jurisdictions and who are prepared for the ever-changing demands of cross-border practice.
In short, let law schools inspire students when they are 1Ls, give them options to develop their skills during the rest of their formal education and then provide resources that will refresh them over their careers. And throughout, let the schools cultivate tight bonds with foreign partners who share these goals. There is much exciting work to be done.
Margaret K. Lewis is an associate professor at Seton Hall University School of Law and a board member of the American Friends of Bucerius Law School.
