American Lawyers and International Competence

Penn State International Law Review Volume 18 Number 3 Dickinson Journal of International Law Article 11 5-1-2000 American Lawyers and International Competence Charlotte Ku Christopher J. Borgen Follow this and additional works at: https://elibrary.law.psu.edu/psilr Part of the Legal Education Commons Recommended Citation Charlotte Ku & Christopher J. Borgen, American Lawyers and International Competence, 18 Penn St. Int'l L. Rev. 493 (2000). This Article is brought to you for free and open access by the Law Reviews and Journals at Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized editor of Penn State Law eLibrary. For more information, please contact . American Lawyers and International Competence Dr. Charlotte Ku* and Christopher J. Borgen** Just over ten years ago, Germans tore down a wall that divided their country and the whole of Europe. Stepping through the hole in the Berlin Wall, they took the first steps towards the reunification of West and East Germany and the end of the Cold War. Today another wall is being torn down - that between purely domestic law and international law. Companies are engaged in international trade at ever increasing rates. Environmental degradation has proved to be a global problem that cannot be solved with uncoordinated local measures. Individuals worldwide are pressing their governments for the recognition of a common set of human rights. These and other aspects of an increasingly interdependent world each present new challenges and opportunities for U.S. lawyers who must assess this evolving legal, regulatory, economic, and political context for their clients. United States law and the legal profession are each evolving due to globalization. Conversely, U.S. law and the legal profession each play a part in fostering globalization. This trend towards increased interdependence should make the internationalization of law school curricula a priority for the academy so that its students may meet the challenges of modern legal practice. Such internationalization would include not only increased analysis of foreign law, but also of public and private international law. As other commentators have focused on the need for U.S. lawyers to study comparative law,1 this article will focus instead on the * Executive Director, The American Society of International Law. **Director of Research and Outreach, The American Society of International Law. The authors wish to thank Professor Thomas M. Frank of NYU School of Law for his helpful comments. 1. See, e.g., ABA Section of International Law and Practice Spring Meeting 494 DICKINSON JOURNAL OF INTERNATIONAL LAW [Vol. 18:3 intertwining of international law and domestic law and the importance of assessing this relationship as part of one's legal education. Lawyers trained in U.S. law schools learn that the Constitution gives Congress the power "[t]o define and punish... offenses against the Law 6f Nations."2 Some might also be able to cite the oft-quoted dicta from the Supreme Court's decision in The Paquete Habana that "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination."3 But what does this mean for today's practitioner? One century after Paquete Habana, we ask what is international law, how does it affect U.S. legal practice, and how should the law schools prepare their students? This article will proceed with the following main arguments: 1. What we call "international law" is currently in a period of rapid transformation; 2. It is more important than ever that graduating law students have at least a basic knowledge of the structure and instruments of public and private international law, as well as comparative law, because: a. International law is increasingly part of the U.S. lawyer's world, whether they know it not; and, b. U.S. law has been and continues to be a defining feature of international law. By assessing how the practice of law is evolving, this article hopes to provide signposts for ways in which the academy should adjust the methods and substance of legal education. I. The Convergence of Public International Law, Private International Law, and Comparative Law The term "international law" has been used at various times to describe public international law, private international law, comparative law and international business law.4 Historically, Symposium: "Law Schools and International Law: Curricula, Practice and Opportunities- Coordinating the Needs of Law Schools and Law Students with the Dynamics of International Law Practice (April 12, 2000); Ernst C. Steifel and James R. Maxeiner, Why are U.S. Lawyers Not Learningfrom Comparative Law, LIBER AMICORUM FOR THOMAS BAR AND ROBERT KARRER 213 (1997). 2. 3. 4. U.S. CONST. art. I, § 8, cl. 10. The Paquete Habana, 175 U.S. 677, 700. See, e.g., John A. Barrett, Jr., InternationalLegal Education in U.S. Law 2000] INTERNATIONAL COMPETENCE there have been two divisions in the field: one between private international law - conflicts of law, international business transactions and the like - and public international law, "the law which regulates the intercourse of nations."5 Anecdotal evidence suggests that U.S. students and practitioners have traditionally been more responsive to learning private international law because it seems more "real world" than the supposedly academic public international law. There has also been a divide between international lawyers in general and comparativists who study the similarities and differences of different domestic legal cultures.6 While in the past there was a certain division between these specialties, this article argues that today the U.S. practitioner is likely to need to be competent in each of these facets of what one can broadly term "international law." Thus, while this term has usually referred to public internationallaw and focused on nation states rather than peoples, business entities, and individuals,7 this classic, Westphalian definition of international law is under pressure from the realities of modern practice. For example, public international law itself is increasing in breadth of subjects. As the Honorable Rosalyn Higgins, a judge on the International Court of Justice and a former Professor of International Law at the London School of Economics, explained, public international law today is best understood as applying to Schools: Plenty of Offerings, But Too Few Students, 31 INT'L LAW. 845, 846 (1997). 5. BLACK'S LAW DICTIONARY 733 (5th ed. 1979). 6. In discussing the "atomization" of international law, Prof. James Feinerman of Georgetown University Law Center has argued that public international law has proceeded in one direction, international economic law in another and comparative law in a third. James Feinerman, Addr (...truncated)