Just over ten years ago, Germans tore down a wall that divided their country and the whole of Europe. Stepping through the hole in the Berlin Wall, they took the first steps towards the reunification of West and East Germany and the end of the Cold War. Today another wall is being torn down—that between purely domestic law and international law. Companies are engaged in international trade at ever increasing rates. Environmental degradation has proved to be a global problem that cannot be solved with uncoordinated local measures. Individuals worldwide are pressing their governments for the recognition of a common set of human rights.
These and other aspects of an increasingly interdependent world each present new challenges and opportunities for U.S. lawyers who must assess this evolving legal, regulatory, economic, and political context for their clients. United States law and the legal profession are each evolving due to globalization. Conversely, U.S. law and the legal profession each play a part in fostering globalization. This trend towards increased interdependence should make the internationalization of law school curricula a priority for the academy so that its students may meet the challenges of modern legal practice. Such internationalization would include not only increased analysis of foreign law, but also of public and private international law. As other commentators have focused on the need for U.S. lawyers to study comparative law, this article will focus instead on the intertwining of international law and domestic law and the importance of assessing this relationship as part of one's legal education.
Lawyers trained in U.S. law schools learn that the Constitution gives Congress the power "[t]o define and punish... offenses against the Law of Nations." Some might also be able to cite the oft-quoted dicta from the Supreme Court's decision in The Paquete Habana that "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." But what does this mean for today's practitioner? One century after Paquete Habana, we ask what is international law, how does it affect U.S. legal practice, and how should the law schools prepare their students?
This article will proceed with the following main arguments: 1. What we call "international law" is currently in a period of rapid transformation; 2. It is more important than ever that graduating law students have at least a basic knowledge of the structure and instruments of public and private international law, as well as comparative law, because: a. International law is increasingly part of the U.S. lawyer's world, whether they know it not; and, b. U.S. law has been and continues to be a defining feature of international law. By assessing how the practice of law is evolving, this article hopes to provide signposts for ways in which the academy should adjust the methods and substance of legal education.
Ku, Charlotte and Borgen, Christopher J., "American Lawyers and International Competence" (2001). Faculty Publications. 123.