Foreign Law Full Frontal

Newly-minted U. S. Supreme Court justices John Roberts and Samuel Alito may not be ready to give foreign law precedence over the Constitution on United States’ soil but American law school professors are increasingly tan, rested and ready to do so.

“Globalizing the American law school is clearly on the agenda of many people,” David Fontana writes in The Chronicle of Higher Education. “Close to two decades ago, when John Sexton became dean of the New York University School of Law, he promised to transform it into the first Global Law School Program.”

“The University of Michigan Law School became the first law school to require a course in transnational law, commencing in 2001.” Fontana himself will be poised to put his ideas into practice when he becomes an associate professor at George Washington University’s law school this fall.

He received his own legal degree from Yale—a feeder line not only to clerking opportunities with federal judges but also to judicial appointments themselves. “Two years ago, Harold Hongju Koh—former assistant secretary of state during the Clinton Administration and noted international law scholar—was named dean of the Yale Law School,” Fontana reports. “But, as my findings and those of others suggest, for all the potential for change that these particular breakthroughs promise, life inside American law schools more generally has hardly changed,” Fontana laments.

“The best approach to make substantial changes would be to integrate foreign law into the entire American law-school experience, to use the so-called ‘pervasive method’ (a phrase originally coined to discuss how legal ethics should permeate the law school curriculum).”

And Fontana has some specific ideas on how to achieve this result. “Even better, law schools could establish permanent affiliations with foreign faculty members, having them teach a class on an American legal subject every year,” Fontana suggests.

“The University of Michigan Law School has such a program; a few scholars, like Ronald Dworkin, a professor of law and philosophy at New York University and at University College London, do have joint appointments.”
“But these are the exemptions and we should move closer to making that happen.” Fontana, who clerked for federal judge Dorothy W. Nelson on the Ninth appellate circuit, claims that foreign law is already becoming predominant in the American legal system. “In fact, it has become increasingly relevant to domestic law,” he notes. “Foreign law has become part of the daily legal issues lawyers face in their practice.”

“According to some of the best available research, a study published in The American Journal of Comparative Law in 1998, well more than 10 percent of the revenue generated by the 100 largest law firms in the nation comes from foreign clients (and that figure is surely higher today), and more and more of our of our law students are working for those large firms.”

Malcolm A. Kline is the executive director of Accuracy in Academia.