In past ILPost columns I critiqued my introductory international law course (http://www.asil.org/ilpost/president/pres070209.html) and included a response by the authors of the casebook that I use for that course (http://www.asil.org/aboutasil/president.html). Having now had the benefit of responses by ASIL members as well as panels at our 101st Annual Meeting related to teaching and a joint ASIL/AALS conference on “What is Wrong with the Way We Teach and Write International Law” (held in Vancouver on June 17-20), this column considers the subject anew. I find that closer exploration of how and what we teach yields only additional inquiries and certainly not a conclusive response to, for example, French criticisms of “American” pragmatism, interdisciplinary, or parochialism.

As is suggested by the panel on “Are We Teaching International law or U.S. Foreign Relations Law?” at the 101st ASIL Annual Meeting last April (an unofficial transcript of the panelists’ remarks, produced off of the audio tape of the conference, is here), there is some tension between our aspirations as global citizens intent on elucidating public international law principles as classically understood and our pedagogical goals in professional schools devoted to producing lawyers competent to practice in the U.S. legal system. As Ved Nanda on that panel most clearly articulated, for a significant number of our students in the introductory international law course (perhaps even the majority), that course may be their only exposure to either international law or U.S. foreign relations law. While all of us could recommend structural changes to alter this (e.g., requiring law school courses in either or both of these subjects, putting either or both on bar exams, making either or both prerequisites to other courses, or incorporating “international” insights throughout the “domestic” U.S. legal curriculum (including in constitutional law courses), absent any such change, many of us are reluctant to forego possibly the only opportunity we have to convey some sense of such vital matters as our Supreme Court’s view of self-executing treaties or Act of State or our Congress’s view of sovereign immunity. Many of us believe that we have a responsibility to teach our students, most of whom will practice in the United States, how international law gets made, is implemented or enforced (or not) within the U.S. legal system. This is especially true, as Ved Nanda indicates, given the waning distinctions in terms of the practice of law between “public” and “private”/”domestic” and “foreign” in the age of globalization.

On the other hand, the French are probably right that neither our teaching materials nor (I suspect) the ways we use them always makes clear the real or potential differences between public international law and U.S. foreign relations law. As teachers, we need to do a better job than the U.S. Restatement on Foreign Relations, Third does on this point. While the Restatement acknowledges that these are two “different and discrete bodies of law” (see introductory note to Chapter Two and compare its sections 101-103 to sections 111-115), the rest of the Restatement does not dwell on the differences or even indicate what they may be. As Craig Jackson on the Annual Meeting panel indicates, it is easy for teachers and students to fail to distinguish the two. Rather than attempting this within the confines of that 3 or 4 credit course, we could instead, as Mary Ellen O’Connell on that panel suggests, reduce the amount of time we spend on U.S. foreign relations law (or U.S. constitutional law) in the basic course or even, as some of us now do, teach using non-U.S. casebooks or even from collections of ICJ opinions, trusting that U.S. foreign relations matters will be covered elsewhere.

Yet, to the extent our introductory course extends (as it probably should) to how international law gets incorporated into a domestic legal system, the teacher’s task is made more difficult because a focus only on U.S. foreign relations law does not serve our students’ needs. As Gary Horlick has written in the OGEMID TDM electronic discussion forum (relevant portions quoted here), such insularity is not simply intellectually unsatisfying, it may be professionally irresponsible. As he notes, it is increasingly imperative to make sure our students understand that other states have different views not only of substantive doctrines of international law (such as the propriety of certain forms of extraterritorial jurisdiction or of the standards for compensation in the event of an illegal expropriation of alien property) but of how international law ought to be implemented or incorporated as part of domestic law. It is important that students understand that other federal states may not have a Supremacy Clause, a Missouri v. Holland or the Paquete Habana to “clarify” (or not) the domestic status of international law; that other systems, federal or not, may not distinguish between “self-executing” and other treaties or take very different approaches to the relative powers of their executive and legislative branches with respect to foreign affairs. At a time of increased interpenetration of the international into the domestic, knowing something about comparative international law may be more vital to being an effective international lawyer than is knowledge of particular regimes, such as the law of the sea.

The French are also probably right that the relative insularity of U.S. teaching materials (in terms of the coverage of domestic law as well as the types of issues addressed) tends to reinforce the realist biases of our students. Emphasizing, for example, as did my fall 2006 course, the challenges to international law prompted by the U.S.’s “war” on terror may imply that U.S. views of the law or its institutions matter more than others’ or even that U.S. views will prevail. But, as is suggested by this response from Sophie Clavier, a French Assistant Professor who has taught at both the undergraduate and law school level in the United States (see here), not everyone agrees that this realist bias is factually wrong. Clavier argues that even students outside the United States should not ignore U.S. views of international law.

My original column drew a number of explanations for why the French apparently prefer positivist approaches while U.S. teachers and scholars are more pragmatic and inter-disciplinary. In his response to the French critique of how international law is taught in the United States, Mark Janis, the author of the supplemental text that I used for my course, suggests that the contrasting U.S.-French approaches to the subject reflect distinct views of “public law” as well as real differences in respective national interests (see here). M.J. Peterson, who teaches international law to U.S. undergraduates, offers these interesting speculations relating to alleged French/U.S. divides (see here). Explaining why U.S. scholars find other disciplines so alluring, both in terms of their teaching and in their writing, is not so hard. At one of the breakout sessions at the Vancouver conference, those of us present came up with ten: (1) because we are envious of the rigor or other qualities in other (non-law) disciplines; (2) because it may enhance the policy relevance of our prescriptions; (3) mimicry, that is, because our (national law) colleagues are doing it; (4) because more of us have advanced degrees in other disciplines; (5) because other disciplines may help bridge the gap between lege ferenda and lex lata; (6) because the increased density of international regulation demands it; (7) because we need to explain the disconnect between the real world practice and (positivist) doctrine; (8) because we need alternatives to (“imperialist” or “Eurocentric”) positivism; (9) because other disciplines are needed to explain the lack of effectiveness of our law or why states do not comply with it; and (10) because it is fun.

The clearest defenses of the pragmatic deployment of both French positivism and U.S. inter-disciplinarity in our teaching came from Clavier (see above) as well as Thomas Wäelde (see Wäelde’s response in the OGEMID TDM electronic discussion forum here (“Differences in legal-academic culture,” July 12, 2007, T.W. Wäelde, OGEMID archive available at www.transnational-disputemanagement.com). Both argue that the complex functions of law (descriptive, explanatory, and normative) merit multiple approaches that appeal to all “sides” of the human brain – ranging from that part attracted to Austinian positivism to that with greater affinity to the ‘law and society’ movement. M.J. Peterson also articulates, as does Mary Ellen O’Connell in the ASIL panel cited above, why the introductory international law course needs to devote time to explaining to students how international law operates without what Inis Claude called the “5Cs” (congress, code, cops, courts, and clinks).

A more challenging response to my original column came from Makau Mutua and Tony Anghie, both of whom convincingly argued that our questioning of U.S. teaching methods should not start (or certainly end) with “transatlantic soul-searching.” Their respective comments are here and here. Mutua complains about the “tyranny” of available U.S. teaching materials and the risk that, due to the scarcity of alternatives, such U.S.-centric materials are being used elsewhere so that international law comes to be taught “for the benefit of the Empire rather than as an experiment in creating a just international order.” Yet, as Anghie’s letter reminds us, casebooks are not the end of the story. As is suggested by these sample syllabi and exams offered by Sophie Clavier (see here), Ben Davis (see here), and Robert Blitt (see course materials at http://www.law.utk.edu/academic/currstudent/Blitt/Blitt%20(PIL)%20(Sp%2007)%20Course%20Page.htm and http://www.law.utk.edu/FACULTY/facultyblitt.htm); Blitt’s final exam is here), no two of us use even the most widely adapted U.S. casebooks the same way or to the same ends. How we use the available teaching materials and scholarship is potentially as important as what is in those materials.

Who is using the materials also matters. Anghie reminds us that some of us teach against our chosen casebook or load the dice against our casebook authors through fiercely critical supplemental readings that, for example, may give our students a sense of the historical evolution of the black law that may be blandly described in their books. That most U.S. casebooks are U.S. centric does not mean that our teaching is. For years, David Kennedy reportedly used the Henkin-Damrosch International Law casebook to teach the international law course at Harvard. One strongly suspects that his course was not at all like either Henkin’s or Damrosch’s. Anghie’s syllabus for his LLM course on “imperialism and international law” included here, also reminds us that focusing exclusively on what we do (or fail to do) in the introductory international law course is a bit unfair on the U.S. academy as a whole. At least some of us teach in resource-rich institutions where that course is part of a massive curriculum in the field, sometimes embracing, as at Columbia, some 70 courses and seminars each year on international or comparative law subjects. In such environments, students are free, at least in theory, to deepen their knowledge of the field – and even go beyond Eurocentric professors and their verities.

None of the above amounts to a convincing riposte to French critiques of how and what we teach. Worse still, while I am deeply grateful to all those who took the time to participate in this exchange, like other international law teachers, I am daunted by the advice received. Very little of it suggested what could be left out of the introductory course.

All of us are supposed to continue to cover both public international law (including the increasingly dense regimes of trade and investment) and enough U.S. foreign relations law to enable a lawyer to navigate within the U.S. legal system, while never confusing the two. All of us are, in addition, urged to include in the basic course: some comparative foreign relations law from other nations, enough historical and other critical readings to avoid endemic Eurocentric biases, enough professional responsibility materials to promote ethical lawyering, a healthy dose of interdisciplinary approaches (but not so many as to make law undistinguishable from politics), a solid theoretical grounding to enable our students to distinguish international law from national law, and enough transnational law to enable students to understand the permeable boundaries of “international” law in the age of globalization.

Am I the only one who thinks that all of this is just not going to happen in the course of three or four hours a week?

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