DeJarnatt, S; Rahdert, M --- "Preparing for the globalised law practice: the need to include international and comparative law in the legal writing curriculum" [2011] LegEdDig 13; (2011) 19(1) Legal Education Digest 45

• Preparing for the globalised law practice: the need to include international and comparative law in the legal writing curriculum

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Preparing for the globalised law practice: the need to include international and comparative law in the legal writing curriculum

S L DeJarnatt and M C Rahdert

Temple University Legal Studies Research Paper No. 2010-10, 2010, pp1-64

The case for globalisation of American legal education is by now well established. Beginning in earnest in the 1990s and continuing apace to the present, legal educators of many stripes have commented extensively on the rapid globalisation of law and the consequent need to globalise legal education. Legal educators now widely agree that American law schools need to do more to bring international and foreign law prominently into the law school curriculum.

Not surprisingly, the case for globalisation has spawned a variety of explicit proposals for curricular reform. These include proposals for both significantly expanding transnationally focused upper-level electives and incorporating transnational legal issues into the traditional domestic curriculum, including first-year programs.

Many institutions now include international and/or comparative law somewhere in their first-year curriculum, sometimes as free-standing courses such as contracts, torts, and property.

Empirically, the globalisation argument rests on the assertion that cross-border legal interaction is an increasingly substantial component of law practice, one that reflects growth in both global business activity and transborder social interaction. Where legal transactions and interactions cross borders, they typically acquire a transnational character that implicates the laws of more than one nation, as well as international legal norms. To determine the rights and legal interests of the affected parties, it becomes necessary for skilled practitioners to understand and evaluate a complex set of transnational and/or international legal rules and principles.

In order fully to probe the deeper social significance of law, students need to be exposed to alternative legal systems that rely on different principles, procedures, modes of reasoning, fundamental governmental arrangements, and the like. They also need to understand the process by which competing national legal systems can produce legal synthesis through the development of international law that transcends (and potentially overrides) domestic legal arrangements.

Dealing with foreign and international law no longer remains the specialty of a select few practitioners but is becoming the norm for the ordinary lawyer. Thus, it becomes necessary to prepare students for this role by exposing them to the characteristics of transnational practice, and by affording them opportunities to utilise transnational law in both oral and written legal analysis.

If, as many have argued, exposure to international principles and the law of other legal cultures provides an important perspective on the development and operation of domestic law, then training in basic skills needed to acquire further knowledge of foreign and international law surely facilitates development of that perspective.

Including exposure to foreign and international law in LRW reinforces the importance of these topics elsewhere in the curriculum. Indeed, if American legal education is truly serious about the globalisation of law, we should demonstrate that belief by including global legal research in the ‘toolkit’ of essential skills that students are expected to acquire. Lawyers who remain ignorant of global legal skills will be at a competitive disadvantage, one that deepens as the globalisation of legal practice progresses.

What are the transnational skills that LRW should convey? The most obvious one is the ability to identify, locate, and acquire information about relevant foreign and international law. Doing so effectively calls for research skills beyond those that students acquire through working with domestic legal resources. Mary Rumsey explains that students must go beyond their dependence on domestic data bases to learn how to access the different resources relevant to international and comparative law.

International legal rules often play a complex role in domestic law, presenting issues of interpretation and enforceability that do not easily fit within traditional domestic US legislative, administrative, and judicial legal structures. Integration or application of rules from foreign nations may be even more complex, especially where those systems are substantially different from our own.

Several law schools have experimented with introducing foreign and international issues into basic LRW instruction. Typically, this has been accomplished in a largely ad hoc fashion through the creative efforts of individual instructors, who sometimes offer a special ‘international’ section of the basic LRW course.

While these experiments with globalisation of LRW are salutary developments, we do not believe that they fully respond to logic of the case for globalizing LRW. That argument, after all, posits that most (perhaps all) future lawyers will need global legal skills, not just a self-selected subgroup.

There are some important constraints on what can be done. With regard to displacement, we think the case for globalising LRW is essentially additive. It does not diminish the importance of domestic law, nor does it claim any significant reduction in the role that domestic law will play in the law practice of the future. As a consequence, students will still need all of the present domestic LRW instruction they now receive, along with the addition of global component. That component must be structured in such a way that it does not displace or undermine any of the existing important domestic objectives of LRW teaching.

Transnational legal developments, and the growth of transborder commercial and social interaction, certainly provide logical support for inferring a growth in transnational practice among American lawyers.

We began this project with the theory that international and comparative law issues are no longer the sole province of the specialist. To test our hypothesis, we determined that it might be illuminating to survey the active members of the Philadelphia Bar Association to determine whether they regularly face the need to consider such issues.

We chose Philadelphia principally because our home law school, Temple, is located there, and the region is a primary market for our graduates. Philadelphia is not known as a centre for international legal work, although it has a diverse legal community including many major corporate law firms that maintain offices in other countries.

As of the time of our survey, the Philadelphia Bar Association had 10740 active members. We received 1050 tabulated responses, representing a 9.69 per cent response rate, which seemed good enough for our purposes and within the range of what colleagues experienced in survey research identified as an acceptable response.

The most informative result from the survey is that a substantial majority, 67.5 per cent of the respondents reported that they had worked on a legal matter that required them to know something about foreign and/or international law. This response supports our original thesis that international and comparative legal issues have become part of the general practice of law. The respondents, moreover, represent a fairly wide array of practitioners in terms of demographics. The median year of graduation was 1991 (18 years in practice) with 24 per cent of respondents in practice for five years or less; 30 per cent in practice from five to 20 years, and 46 per cent in practice more than 20 years.

The majority of respondents identified themselves as lawyers in private practice but we also received responses from civil government and public interest lawyers, prosecutors and public defenders, and corporate in-house lawyers. Very few, only three per cent described the geographic base of their practice as international.

We tried to gather more details about how often needed to know about foreign law, how often international law, and how often both. Of the respondents identifying such a need, about half (48 per cent) said they needed to know only foreign law, defined as the law of another country. Eleven per cent identified only international law and 41 per cent replied they needed to know both foreign and international law.

We also asked how often the need has arisen within the last year. Nearly 83 per cent said from one to five times and only nine per cent said more than 10 times. During the last five years, approximately 47 per cent said the need had arisen one to five times and 17 per cent said more than 10 times. In an effort to determine whether the need to know about foreign or international law is growing, we also asked about the frequency of need to know foreign and international law more than five years ago. Approximately 37 per cent again said one to five times and 15 per cent said over 10 times.

It was evident from the survey responses that the bulk of our respondents encounter foreign and international law occasionally and unexpectedly, in the course of representing fairly ‘ordinary’ clients on apparently ‘ordinary’ matters that primarily involve domestic US law. We think that these survey results support and reinforce the case for globalising LRW.

Relatively few LRW programs to date have incorporated international or comparative law into the generic LRW curriculum. Pacific McGeorge School of Law has the most extensive incorporation program to date. All students at Pacific McGeorge take two years of a legal writing and skills program called Global Lawyering Skills which introduces them to and requires them to use international and foreign sources as well as domestic sources in solving client problems.

LRW is typically the only first year class that has a direct focus on advocacy. One of our fundamental beliefs is that lawyers generally – not just constitutional advocates before the US Supreme Court – need access to the scope of arguments available through a global approach. Consequently, we think the advocacy component of the traditional LRW course may be the best place to think about incorporating a global legal issue.

Expanding to include international and comparative law is important and can be energising for the LRW professor as well as the students. An effective LRW problem needs to challenge the students to think creatively about research, to use the available sources effectively, and to take on the role of counsellor or advocate. One of the skills should be some form of research that requires the students to find and use international or foreign sources.

At Temple, we are committed to teaching LRW through the process method. We teach through the problems and interact with the students throughout the research and writing process. With that commitment in mind, for the purpose of this project it was necessary for Professor DeJarnatt to try to figure out how best to add this element without losing critical steps that already form part of the course design. What follows is her first-person reflection on how that process worked over two course administrations in 2008-09 and 2009-10.

The final memo problem I designed presents the students with the challenge of predicting how the court will resolve a dispute between two couples who used the same fertility clinic. Both underwent in vitro fertilisation but, due to clinic negligence, the embryos of the first couple, the Garcias, were accidentally and mistakenly used in the IVF procedure of the second couple, the Cohens. As a result the Garcias have a genetic connection to the resulting child who the Cohens have been raising with the belief that he is the genetic child of his birth mother, Mrs Cohen. The Cohens had intended to use the wife’s eggs fertilised by donor sperm. California law does not provide any easy way to determine who the legal parents should be.

To those who do not practice family law, it may seem surprising that there are many potential international aspects to such a fundamentally domestic legal subject. Yet when we first began this project, and I asked every lawyer I met whether they ever confront international law issues, the family law specialists uniformly stressed that that need comes up frequently, particularly in the context of a divorced or separated spouse wanting to take a child on a trip outside of the United States. More recently, the Artificial Reproductive Technologies (‘ART’) subcommittee of the ABA Family Law section has been focused on several international issues involving the law relating to transnational use of ART techniques and international adoption. These issues require the domestic lawyers to access the various Hague Conventions relating to children. It was thus both logical and relatively easy to find a way to incorporate international and comparative law into my family law problem.

In 2009, I advanced the litigation so that genetic testing has already established the link between the child and the genetic parents, the Garcias, who have now been granted monthly visitation pending the final resolution of the case. Mrs Garcia’s mother lives in Guatemala, is seriously ill, and is unable to travel. The Garcias ask the court to order the Cohens to sign a passport application for the child so that he may travel with them to Guatemala to visit the grandmother during one of the monthly visits.

The students must determine that, under California law, the court uses a factors test to decide whether the travel should be allowed. Several factors implicate international and comparative law. The court must evaluate the ties that the requesting parent has to the jurisdiction. The judge must also consider the risk of abduction. Implicit in this analysis is the ease or difficulty the objecting parent may have in securing the return of an abducted child. This issue implicates the Hague Convention on child abduction. The students then need to find the convention, determine the processes it provides for return of children, determine whether Guatemala is subject to the convention, and research case law under the Convention to see how courts have handled claims of abduction.

The second way I tried to incorporate comparative law was in the motion for summary judgment on parentage that was the final project for the year. I did not think I could ask the students to consider the parentage laws of the entire world given the limited amount of time they had to conduct their research. Instead I directed them to research Canadian law. I chose Canada because it is primarily a common law jurisdiction, has a statute governing ART, and has a variety of cases, all published in English. The style of writing in the cases, however, is quite different from what is typical in US judicial writing.

This experiment was less successful because it was too artificial. Few students were able to use Canadian law in any effective way, and they all recognised that in real life it would not be particularly persuasive to try.

In 2009-2010, I altered the problem to try to address at least some of the limitations I experienced the previous year. My main goal was to make the need to examine Canadian law more realistic. Just after the genetic testing is performed and the court grants temporary custody to the Cohens and visitation to the Garcias, the students learn that the Cohens are going to move to Toronto so that Mr Cohen, a television writer and director, can work on a television show that is being produced there. I asked the students to determine whether the move makes Canadian law controlling and to evaluate the arguments their clients could make or have to rebut under Canadian law.

Professor DeJarnatt’s approach was to construct an occasion for a limited foray into the law of a sister common-law jurisdiction that conducts business in English and shares substantial jurisprudential common ground with the United States. Choosing a civil-law jurisdiction with a divergent legal structure and a different language would have added considerably to the challenge of even such a relatively simple problem.

Using the kinds of issues that ordinary lawyers face will drive home the reality that these skills are going to be useful to the students in their practice lives and will give them experience in situations that may actually arise when they enter practice.

LRW problems typically focus on a disputed area of law or at least a factual dispute. However, it could be worthwhile to build a memo problem that would require students to determine the requirements to properly serve process on a foreign defendant. Students need to develop familiarity with domestic rules of procedure as well as international requirements. One survey respondent reported handling the personal injury action of a woman who sued a hotel in Cairo that is part of an international chain, alleging the hotel was liable for the hotel employee who directed the woman to take a camel ride that was not hotel sponsored, and that resulted in her injury. This scenario would no doubt raise questions about jurisdiction over the Egyptian subsidiary.

As matters presently stand in most American law schools, it is quite possible to obtain a J.D. without ever having taken an international law course or without having considered how other countries might approach or solve a problem. In most jurisdictions, it is quite possible to be admitted to the bar without knowing anything at all about law outside the United States. But at this juncture it is much less possible to practice law without confronting some issue arising from international or foreign law. Leaving international and foreign law solely to specialised experts contributes to the outdated notion that such law is not part of the ordinary lawyer’s world. Opening the door to the world of international and comparative law in the context of first year legal research and writing will help our students recognise and prepare to work effectively in the global legal practice that awaits them.