Attainable Globalization: International and Comparative Law "Bridge Course"
Mark A. Drumbl, Assistant Professor, Bowen School of Law, University of Arkansas-Little Rock

As "there are few significant legal or social problems today that are purely domestic,"¹ the demand for transnational legal advice has grown.² However, despite these expectations of competence in transnational practice, law school education and bar admission remain strongly focused on national or sub-national law. I have raised elsewhere my concern that this may create a disconnect between supply (the knowledge lawyers graduate with) and demand (the knowledge clients expect lawyers to have).³ This disconnect between curricular content and the nature of legal practice is beginning (and should continue) to attract the attention of law schools as an assessment concern. A challenge for legal educators is how to achieve "attainable globalization": namely, how to integrate international and comparative law into the legal curriculum in a manner that is effective, user-friendly, compatible with other courses, relevant to students, and not too taxing on budgetary or faculty resources. One technique to achieve "attainable globalization" is the "bridge course", of which this short paper provides an overview.

A. International and Comparative Law: Isolated and Ignored?

The traditional way to teach international and comparative law is through separate and independent courses in the upper-year curriculum. A drawback to this traditional approach is that students may be led to view international and comparative subjects in isolation from the core elements of the legal curriculum, possibly even as a mere "interesting sideshow". Having a conventional first-year curriculum devoid of international or comparative materials means that once students pass from the first-year to the upper-classes, they may not view international or comparative materials as "core" to the legal curriculum, thereby failing to appreciate the pervasive role of international and even foreign materials in many areas of legal practice.

Another drawback is that not all students will take these courses: in fact, many students will graduate law school without taking any international or comparative law courses. This is particularly the case at many of the smaller state schools such as the one at which I teach. The lack of familiarity with international and comparative law materials, however, affects even those new lawyers who graduate from smaller state schools and intend on practicing locally. In certain areas of law, for example contracts, a failure to teach these materials may result in "producing lawyers who are ill equipped to represent their clients competently."⁴ In other areas, for example civil procedure, materials such as the Hague Convention on the Taking of Evidence Abroad are quite relevant even to local practice; so, too, are foreign materials such as blocking statutes or legislation that grants privileges and immunities.⁵ Although some of this information can be disseminated to the practicing bar through CLEs, this dissemination really ought to be the province of the law school.

B. Toward Integration

Legal scholars are beginning to consider alternate approaches to integrating international and comparative law materials into the law school curriculum. One approach is directly to teach relevant international and comparative law materials in core first-year and core upper-year classes. This allows international and comparative materials to be "mainstreamed". By way of example, in my 1L contracts course (6 credits) I have integrated important international materials that directly relate to the practice of contract law. However, as the first-year curriculum is already a crowded one, covering both legal method and skills as well as a range of procedural and substantive subjects, this integration can be a difficult process. Moreover, many 1L instructors may be uncomfortable handling these materials (particularly comparative law materials) or may be unwilling to divert time to them. This may spark resistance to these curricular innovations. At present, it may be unrealistic to expect most 1L instructors in any given law school to "mainstream" international and comparative materials in this way.

A second alternate approach consists of a "bridge course", called this because it seeks to bridge the core curriculum with the globalization of law in order to address this gap between legal education and the increasingly global demands of legal practice. As developed by George Bermann (Columbia Law School) and myself, this course is organized around several concrete problems that have consciously been drawn from areas of the law with which first-year students have become familiar. The course is thus taught situationally. Each problem is accompanied by a set of readings (cases, treaties, legislation, secondary literature) designed to acquaint students with the kind of materials that would have to be considered in devising a solution or offering advice in transnational practice. The materials are equally comparative and international, and are diverse in nature. In this regard, one of the goals of the "bridge course" is to sensitize students to what such materials "look like", where they can be found, how they work, and how they interface with more conventional domestic texts within the process of legal research, writing, and reasoning.

As currently taught at Columbia Law School, this 1 credit elective course comes between the first and second years. It is offered in intensive format (3 hours per day) during the week immediately preceding the beginning of second year classes (hence, late August). The course has been elected by 60 to 70 incoming 2L students in each of the two years it has been offered. Evaluation is by in-class open-book examination, graded on a credit/no-credit basis. Although we did not opt to do so, the interactive nature of the course could allow for class participation to count toward a substantial portion of the final grade. Our student evaluations have been very positive. We found that the problem based-approach lends itself to active class participation; and that co-teaching further enlivens the classroom presentation. It would also be possible to offer these same materials to students in an intensive format either after the first semester of the first year, at some point during the second semester of that year, or at any point during the upper years. We selected the week immediately preceding the beginning of second year classes because (a) students will very recently have completed the entire first year of study, and (b) students will be just about to embark on the upper-class curriculum where they can put the comparative and international law insights to work in the selection and enjoyment of elective courses. The point is to make such a course and its materials available to law students at a relatively early point in their law school career, while at the same time enabling them to build upon subjects just freshly studied. Our experience indicates there is no need for prior work in international or comparative law in order for the students successfully to complete this course. This course introduces students to some of the basic concepts of international law (e.g. non-self-executing treaties; reservations; customary international law; state responsibility) and comparative law (e.g. law reform; diversity of legal methodologies and structures).

At the University of Arkansas-Little Rock, the "bridge course" has been approved into the curriculum and will be geared towards 2Ls. Although the thinking is that the course could be offered for 1 credit, I have been pleased that my colleagues support it being offered for up to 3 credits.⁶ As my law school has upper year courses in public international law and IBT, as well as seminars in international human rights, trade policy, and global environmental law, the "bridge course" can serve as an effective preparation for these more advanced offerings. There is also talk about making the "bridge course" (in a 1 or 2 credit format) a mandatory part of the curriculum. In all cases, the course would be evaluated on a letter grade basis and class participation would be included in the evaluation. The focus of the "bridge course" at a small state school such as Arkansas-Little Rock will likely be somewhat different than at a school such as Columbia that will have a broader variety of international law courses and a broader geographic provenance in its student body. For starters, the fact problems and the lawyering aspects of transnational practice will likely be emphasized more than theoretical discussion; students also enjoy class-room visits from local lawyers engaged in transnational practice as these make the materials more "real" to them. With these points in mind, the "bridge course" might orient itself more toward the substantive areas of the law that these students are most likely to encounter in local practice: contracts, civil procedure, criminal law (notably extradition), trade, and transnational torts. Of course, this is not only relevant to students but also to those colleagues who may be unfamiliar with international or comparative law materials and who will be more supportive of the integration of these materials into the curriculum if there is a practice-oriented bent to them.

At Arkansas-Little Rock individual pieces of the "bridge course" have already been taught within the first-year curriculum. For example, I taught our transnational contracts materials in my 1L contracts course in Spring 2000 and will do so again in Spring 2001; the plan is for the comparative civil procedure materials to be taught in Spring 2001. Although the contracts chapter was taught in the last 5 classes of the year, throughout the course reference was made to key international materials such as the Convention on the International Sale of Goods (CISG) and the UNIDROIT Principles so as to "mainstream" these materials (please see my course syllabi – available on the Workshop website). Attention also was focused on important differences between the civil law's approach to contracts (in this case French and German law) and the U.S. approach and how these comparative differences help inform the content of the CISG. The students were extremely interested in the international and comparative materials and I observe among successive entering classes an increased demand for instruction in these sorts of materials. I used the same pedagogical approach to teaching the materials at Arkansas-Little Rock as at Columbia, and I did not notice significant differences in the way students learned from the materials. The fact problem really helped Arkansas-Little Rock students contextualize the materials (perhaps more so than the Columbia students); at the end of the day this might be a definite advantage to teaching transnational law at smaller law schools away from major urban centers. Embedding these international and comparative materials in the 1L curriculum also mitigates chauvinistic tendencies some students may have in assuming U.S. law is the "best" way law is made or the "only" law that is out there. The inevitable contrast of domestic and foreign materials that results from the "bridge course" actually helped the students better understand the unique nature of certain elements of U.S. contract law. This comparative exercise opened the door to good discussions of law reform.

C. A New Set of Materials for the "Bridge Course"

As previously discussed, the "bridge course" integrates international and comparative legal materials into the core curriculum through the vehicle of concrete factual situations in which clients require transactional advice, drafting or litigation strategy. The casebook now in production mirrors this methodology. Each factual situation attaches itself to a chapter (approximately 80 to 100 pages) in the materials. As a result, with the exception of an introductory chapter on general readings on international and comparative law, each chapter or section of the course begins with a detailed fact pattern that resonates with legal problems students will have encountered in the first-year, the principal difference being that these problems are now "transnationalized". (In some cases the same fact pattern is slightly amplified to suit a second or third chapter). Based on each fact pattern, students are asked to give legal advice and make litigation decisions for the benefit of named clients. Immediately following are a variety of pertinent legal materials: foreign, international or arbitral decisions; foreign, international or arbitral procedural rules; treaties and other international conventions; treaty implementing legislation; pertinent Restatements; domestic and foreign legislation and judicial decisions giving effect to foreign law and/or international norms; and a wide range of academic literature of various foreign, comparative and international law stripes including some of the newer "critical" literature. In so far as the foreign element is concerned, the scenarios and materials are cosmopolitan. Although the earliest chapters draw upon French, German, Swiss, European Union and Canadian law – the staples of traditional comparative law – the succeeding chapters involve the law and legal interests of a diverse range of countries and regions, such as Mexico, Turkey, Guatemala, Indonesia, Russia, South Africa, and the Islamic world. These materials are tied together by connective notes and questions not unlike those found in most casebooks.

The chapters (which are currently being developed) are as follows:

1. Comparative and International Law: An Introductory Reader
2. Contracts: Pre-contractual Liability and Remedies in a Transnational Deal
3. Transnational Litigation and Comparative Civil Procedure
4. International Criminal Law: Extradition and the Death Penalty
5. Transboundary Torts
6. Property: Gender Equality, Religious Law, and the International Estate
7. International Human Rights: Litigation, Reparations, and Punishment
8. Immigration: Asylum, Political Rights, Professional Responsibility of Lawyers
9. Supranational Regulatory Governance: NAFTA, Trade, and the Environment
10. Supranational Regulatory Governance: WTO, Trade, and Labor Law Reform
11. Constitutional Law: Extraterritoriality and the Right to Life
12. Product Liability: Comparative Liability Standards

Given the breadth of subject matter covered, a teacher's manual will be designed to assist in providing background information and additional guidance for instructors.

Although the materials are anchored in practical problems, they offer ample opportunity for instructors who wish to discuss more theoretical areas in international and comparative law scholarship. The civil procedure chapter, for example, permits a direct comparative analysis of German and U.S. civil procedure and institutions and encourages students to bring judgment to bear on the relative merits of the two systems. The NAFTA and WTO chapters, which nicely complement first-year curricula that include "regulatory state" or some other "public law" course, will familiarize the students with the literature on law and development and the relativism of rights (as well as scholarship in the environmental and labor policy areas). The contracts chapter unpackages the pros and cons of arbitration as a method to settle disputes. The international human rights chapter includes materials on the limits of trials as mechanisms to respond to mass atrocity and of the growth of U.S. courts as "supercourts". The criminal law chapter will venture into the realm of the "cultural defense" to criminal liability and also explore complex issues regarding the implementation of international treaties into domestic U.S. law. The property chapter will focus on the comparative status of women and on feminist legal theory. Throughout, an effort has been made to reference other issues such as the professional responsibility of U.S. lawyers who give advice implicating foreign law as well as the interface between domestic and international public policy.

The chapters can be dissembled, depending on the number of credits for which the course is offered (from 1 to 4). This permits the instructor the flexibility to select the chapters believed to be of greatest interest to the students or the law school's curriculum. Because the chapters can be dissembled, this course-book could also be used as a "companion" piece to the usual readings of the first-year at the discretion of individual instructors. If enough first-year instructors at a given school were agreeable, the book could serve as a supplement to virtually the entire first-year curriculum and used in the context of those courses rather than as a separate offering. In the long(er) run, the materials could be made available on-line so that individual instructors may be able to select only the chapters they wish.

4. Conclusion

In all likelihood, law and legal practice will remain primarily local. But increasingly the boundaries, content and practice of both law and regulation are shifting as a result of the global mobility of capital, labor, service providers and criminals. The "bridge course" is one way to shift the boundaries of legal education so as to prepare students for these new realities of legal practice. The "bridge course" can be a persuasive and effective way to introduce students to the globalization of law at those schools that seek to become global law schools (for example, one of our most repeated comments on student evaluations at Columbia Law School was that students took the "bridge course" to see what international/comparative law was like, and now they plan on taking more courses in these areas). For those schools that have neither the resources nor the inclination of becoming global law schools, the "bridge course" may be an option to recognize the realities of the globalization even of local legal practice in a manner that is accessible, attainable, cost-effective, and compatible with other curricular goals.

[View Professor Drumbl's syllabi for Contracts I and Contracts II. (PDF format)]

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