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Internationalism and Pluralism

By John Garvey

Not long ago most American law schools offered an international perspective in just two courses: Public International Law (states, treaties, force, the UN), and Private International Law (trade, finance, economic regulation). Today every course has an international flavor. Environmental Law deals with air, water, and bugs that move across borders. Intellectual Property Law deals with software and internet matters that move as freely as air. Antitrust Law can be more concerned with EU rules than American ones. Constitutional Law borrows from other cultures. This is not surprising. We drive Japanese cars, eat Thai food, and wear Italian shoes. Operators in Mumbai make our travel plans and fix our computers. The law organizes human relations. It will reach into all the places we go.

In legal education this shift first affected individual faculty members, whose courses took on a more cosmopolitan aspect. But the ripples spread quickly outward. Most schools have created LL.M. programs for foreign lawyers. This is a sensible business strategy for two reasons. It expands the market for American law schools, who are selling a product much of the world wants to buy. And it changes the character of classroom conversation for American students, by bringing in an international perspective. (LL.M. students are off the books for U.S. News rankings. This may add to their appeal.) There is also more traffic on an individual basis – foreign faculty and graduate students visit as teachers and fellows; American students study abroad. The AALS has responded to these developments by creating number of new sections. There are now nearly a dozen sections dealing with things like Africa, North American Cooperation, International Legal Exchange, Islamic Law, and Graduate Programs for Foreign Lawyers. Most are new since 1990. The work of the more traditional sections has evolved too. In the last couple of years sections like Torts, Tax, and Conflict of Laws have held programs with international themes.

These developments have one thing in common. They occur within the framework of American legal education – schools that are accredited by the ABA and are members of the AALS. But here is something else I have begun to notice: law schools in other countries have shown an appreciation for some aspects of the American model of legal education. It is not fanciful to imagine a world in which American law schools compete for faculty and students with schools outside our borders, just as Oracle competes with SAP for engineers and software customers. The AALS has been asked twice in the last few years to do mock membership reviews by schools overseas, in Kuwait and Argentina. The Law School Admission Council has 18 Canadian member schools. This spring it admitted to membership the Melbourne Law School, Australia’s first all-graduate law faculty. Peking University, China’s oldest, will open a School of Transnational Law this fall with an American-style J.D. program and courses taught in English. The School intends to seek ABA accreditation.

Over the last four years the AALS has played an important role in the creation of the International Association of Law Schools, an organization devoted to improving the quality of legal education around the world. Our Executive Director, Carl Monk, has served as the first President, and we have provided space and administrative support while the IALS got on its feet. The new Association held its first general assembly in Montreal this spring to adopt a charter, elect a governing board, and host a program not unlike those we put on at AALS annual meetings. The IALS has 65 American member schools, and nearly a hundred members from outside the United States. The new President and President-elect are from Argentina and China. It will take some time for the new Association to develop the kind of vibrant intellectual life that characterizes the AALS. But the structure and the people are in place to make that happen.

All this brings me back to the subject of institutional pluralism. In my Presidential Address I argued that law schools were different from one another, and that this was a good thing. The nascent interest in American-style legal education around the world is a new and complicated phenomenon. Schools may spring up in Asia, South America, and elsewhere that offer English-language graduate-level instruction in American subjects. It is a tribute to the organizations that serve American law schools – the AALS, the ABA, the LSAC, and others – that foreign schools aspire to the level of professionalism these organizations have brought about. When new schools join that company, though, they will continue to exhibit important differences from our members and from one another. People in China and Senegal think differently than people in Alabama about the nature, foundation, and limits of law. This is a good thing for students (consumers of legal education); it will give them more options. And it will be good for the progress of legal thought. We must not suppose that we in this part of the western world have seen the fullest flowering, the final state of perfection, of the modern legal system. We have a lot to learn from each other.