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Abstract
Commentators often lament that the American legal curriculum does not adequately focus on comparative law teaching, and that this reality has important adverse consequences for legal practice. Put simply, American lawyers are not prepared for the transnational challenges that go hand-in-hand with globalization. The natural solution for the law school would be to inject more comparative law into the curriculum. This would arguably improve the situation in legal practice. However, this article demonstrates that there are barriers to realizing that outcome. This article argues that law librarians are well placed to, in some measure, overcome these barriers by cross-institutionally designing for-credit comparative legal research courses. These courses could be implemented in interested law schools across the country.
Acknowledgments
Subject to the usual caveats, thanks to Alex Zhang and the anonymous peer reviewers for helpful feedback on an earlier draft of this article.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Phillip W. Thayer, The Teaching of International and Comparative Law, 1 J. Legal Educ. 449, 450 (1949) (internal quotations omitted).
2 For a summary of the results of the survey, see American Bar Association, Proceedings Section of International and Comparative Law 90–93 (1951).
3 Edward D. Re, Comparative Law Courses in the Law School Curriculum, 1 AM. J. COMP. L. 233, 242 (1952).
4 Id. at 236 (internal quotations omitted).
5 Id. at 241 (stating that “[a]lthough the results of the Committee questionnaire indicated that only 26 schools offer courses in comparative law, it was probable that several of the nonreporting schools also offered such courses”).
6 Id. at 236-241.
7 Id. at 242 (internal quotations omitted).
8 Id.
9 Id.
10 Id. (internal quotations omitted).
11 Jaro Mayda, A Critical Look at ‘Comparative Law’ Teaching in the United States, 17 J. LEGAL EDUC. 193, 193 (1964). See generally also Jaro Mayda, The Value of Studying Foreign Law, 1953 WIS. L. REV. 635 (1953).
12 Id. at 194.
13 Id.
14 Id. at 193.
15 Id. at 194.
16 Id.
17 George Winterton, Comparative Law Teaching, 23 AM. J. COMP. L. 69, 94 (1975) (citing Richard W. Edwards, International Legal Studies: A Survey of Teaching in American Law Schools, 1963–1964 18 (1965)).
18 Id.
19 Introduction and Interviews: Special Feature: The State of International Legal Education in the United States, 29 HARV. INT’L. L. J. 239, 243 (1988).
20 Nora V. Demleitner, A Response to Mathias Reimann: More, More, More but Real Comparative Law, 11 TUL. EUR. & CIV. L. Forum 73, 73 (1996). This point is also echoed by Demleitner’s contemporary, Mathias Reimann, whom she references in the article. However, Demleitner was ultimately not in agreement with Reimann regarding what to do about the problem. See generally Mathias Reimann, The End of Comparative Law as an Autonomous Subject, 11 TUL. EUR. & CIV. L. Forum 49 (1996).
21 Id. at 74.
22 Id. at 82.
23 Id.
24 Hiram E. Chodosh, Globalizing the U.S. Law Curriculum: The Saja Paradigm, 37 U.C. DAVIS L. REV. 843, 844 (2004).
25 Id. at 849.
26 Id.
27 James R. Maxeiner, Learning from Others: Sustaining the Internationalization and Globalization of U.S. Law School Curriculums, 32 FORDHAM INT’L. L. J. 32, 34 (2008).
28 Id.
29 Anil Kalhan, Thinking Critically about International and Transnational Legal Education, 5 DREXEL L. REV. 285, 286 (2013).
30 Id.
31 Id.
32 Id. at 288, 289.
33 Id. at 289 (citing William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007)).
34 Id.
35 Id.
36 Farida Ali, Globalizing the U.S. Law School Curriculum: How Should Legal Educators Respond?, 41 INT’L. J. LEGAL INFO. 249, 252 (2013).
37 Id.
38 Id.
39 Rosa Kim, Globalizing the Law Curriculum for Twenty-First-Century Lawyering, 67 J. LEGAL EDUC. 905, 905 (2018).
40 Id.
41 Id. at 906 (internal quotations omitted).
42 Id. at 925 et seq. (providing some contemporary data about the worrying extent to which the American law school curriculum has embraced globalization).
43 Maxeiner, supra note 27, at 37.
44 Id. at 38.
45 See, e.g., Harvard Law School, J.D. Degree Requirements Quick Reference Guide, First Year Requirements, https://hls.harvard.edu/academics/curriculum/registration-information/j-d-degree-requirements-quick-reference-guide/(last visited May 1, 2024).
46 See, e.g., Saint Louis University, Concentration in International and Comparative Law, https://www.slu.edu/law/international/academic-programs/concentration.php (last visited May 1, 2024).
47 Maxeiner, supra note 27, at 37 .
48 Id. at 39.
49 See McGill Faculty of Law, BCL/JD Program Description, https://www.mcgill.ca/law/bcl-jd/program-description (last visited May 1, 2024).
50 Maxeiner, supra note 27, at 40.
51 Id.
52 See, e.g., Demleitner, supra note 20, at 76 et seq. (criticizing the integrative approach).
53 Id. at 74.
54 See, e.g., Peter Lattman, Obama Says Law School Should Be Two, Not Three, Years, N.Y. TIMES (Aug. 23, 2013), https://archive.nytimes.com/dealbook.nytimes.com/2013/08/23/obama-says-law-school-should-be-two-years-not-three/.
55 In addition to President Obama’s call for shortening the duration of law school, there are more current concerns that may likewise jeopardize the three-year model. For example, a 2021 survey conducted by the American Bar Association found that, out of the 1,300 respondents, 90 per cent of them had loans averaging $108,000 for law school alone (i.e., not including debt from undergraduate education). One of the potential palliatives for lessening the financial burden on graduates could be to shorten the duration of law school. See, e.g., Karen Sloan, Ashamed. Stressed. Hopeless. How Debt is Weighing on Young Lawyers, REUTERS (Sept. 21, 2021), https://www.reuters.com/legal/transactional/ashamed-stressedhopeless-how-debt-is-weighing-young-lawyers-2021-09-21/.
56 Frank K. Upham, Internationalization of Legal Education: National Report for the United States of America, 62 AM. J. COMP. L. Supp. 97, 111 (2014).
57 Ali, supra note 36, at 263.
58 Id.
59 Franklin A. Gevurtz, Incorporating Transnational Materials into Traditional Courses, 24 PENN. ST. INT’L L. REV. 813, 815 (2006).
60 Id.
61 Id. at 816.
62 Ali, supra note 36, at 263.
63 Id.
64 Maxeiner, supra note 27, at 51.
65 Id.
66 Id. at 51–52 (stating “Since 1980, other than for specific area law specialties … I do not believe that a single American law faculty has genuinely advertized a position having a focus on … comparative law.”).
67 Upham, supra note 56, at 104.
68 Note that, although having a cache of course resources would be helpful as a starting point, it does not negate the preparation burden on each individual instructor.
69 See, e.g., Matthias Siems, Comparative Law 15 et seq (3d ed. 2022) (discussing the four steps of the orthodox comparative law methodology).
70 See Harvard Law School Library, Legal Research Strategy Guide, https://guides.library.harvard.edu/law/researchstrategy (last visited May 1, 2024).
71 It is useful to note that the level of expertise required of each participant law librarian in the project would be a function of the sophistication of any resulting comparative legal research methods course. For example, there is a considerable difference between a one-credit course and a three- or four-credit course offering. The former, naturally, would not demand the same degree of technical prowess in terms of navigating complex areas of foreign law in depth or the more esoteric peculiarities of various comparative law methodologies. The goal would be providing meaningful introductory exposure to the research techniques and tools for properly engaging in comparative legal inquiry.
72 There is also a fair amount of literature written by foreign, comparative, and international law librarians that could serve to fill gaps in participant law librarians’ knowledge. See generally, e.g., Charlotte Daugherty, Making Foreign, Comparative, and International (FCIL) Materials Accessible Through Collaborative Enterprise, 40 LEGAL REF. SERVS. Q. 58 (2021).
73 Gevurtz, supra note 59, at 816.
74 On the former, see generally, e.g., Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (2014); Jaakko Husa, A New Introduction to Comparative Law (2015); Michael Bogdan, A Concise Introduction to Comparative Law (2013). On the latter, see generally, e.g., Marci Hoffman, International and Foreign Legal Research: A Coursebook (2012).
75 Kim, supra note 39, at 944.
76 Demleitner, supra note 20, at 78.
77 Pierre Legrand, Antivonbar, 1 J. COMP. L. 13, 34–36 (2006).
78 Ralf Michaels, The Functional Method of Comparative Law, in The Oxford Handbook of Comparative Law 375-377 (Mathias Reimann & Reinhard Zimmerman eds., 2019).
79 Demleitner, supra note 20, at 77.
80 Id. at 76.
81 Id.
82 Id.
83 National Conference of Bar Examiners, Overview of Recommendations for the Next Generation of the Bar Exam: Content to be Assessed (2021), https://nextgenbarexam.ncbex.org/overview-of-recommendations/#ftoc-heading-4 (last visited May 1, 2024).
84 Note that there are very few law schools at the time of writing that require students to take a stand-alone (domestic) legal research course. Legal research is typically a subject matter that is woven in with legal writing in the first year. Beyond that, a separate legal research course may be offered as an elective in the upper-level curriculum.
85 For example, a comparative lens may help students to better understand why American tort law tends to be protective or why criminal sanctions are severe. See Siems, supra note 69, at 74–75.
86 Kalhan, supra note 29, at 290.