Thursday, December 29, 2005

What's Your School?

I've been grading exams this week and reading various student explanations of how a decision on an international legal issue (defining torture) will vary depending on whether the decision-maker has a positivist or naturalist approach to international law. Of course, I could have asked my students to consider other "schools" of international legal theory -- e.g., the New Haven School, championed by scholars such as Myres McDougal and Michael Reisman, or the New Stream scholarship of Martii Koskenniemi and David Kennedy. Moreover, I could've asked my students to draw on the whole set of "international law and . . ." scholarship, whether it's Anne-Marie Slaughter's work integrating international relations theory with international law or my colleague Jeff Dunoff's work with Joel Trachtman advocating an international law and economics approach. And that's just the tip of the iceberg.

My question though is how much of this matters to the international law practitioner? I know when I worked at the State Department there was little discussion of international legal theory or reference to how it might influence the outcome of particular cases or problems. Now, of course, I think about theory much more. But I do wonder how often lawyers in practice rely on it, or even consider how the analysis of a particular problem they are facing might vary depending on which "school" of international law they apply. Put another way, I'd be interested in knowing whether those readers who practice international law rather than teach it, self-identify with a particular school of thought, and if so, which one?


Blogger Jason Wojciechowski said...

Not to be overly snarky, but I find it amusing when Ivory Tower types start realizing that their theorizing doesn't necessarily play in the regular world.

Please note that I say this with all respect, and that I'm not denigrating the IT people: I once hoped to be one myself, after all, but started to give up on those dreams when my standardized test scores weren't really up to snuff.

12/30/2005 12:02 AM  
Blogger Chris Borgen said...

The thing is, Duncan came to academia after being a practitioner, so he probably has a better sense than most as to what does and doesn't play in the actual practice of public international law.

For my part, I can say that when I was doing international transactions at a law firm I was of the "law and..." school. Law and Billable Hours.

12/30/2005 12:18 AM  
Blogger Anthony D'Amato said...

I've practiced international law throughout my teaching career, usually one case per year but sometimes two or three. I've also discussed the topic of this blog with many international lawyers. I've also read the briefs of many international lawyers in many cases involving questions of international law. And all that build-up, folks, is to tell you one salient fact.

The fact is that the practicing lawyer who says that international legal theory never comes up in his or her daily practice is correct, but only for the reason that he/she does not realize its relevance. Having never studied the subject seriously, the practitioner and his colleagues (who also haven't studied or taken it seriously) simply misses out on what could be, and rather often is, the critical argument that could win the case. But this critical argument never occurs to them, or to the other side, or to the court.

This salient fact leaves lots of room for people like me to win cases against these folks. In fact, it's too easy, and I would not have wanted to spend my life doing this sort of thing exclusively.

If you think about the education you learned in law school, you recognize a "tort" in a set of facts because you took a course in torts, you recognize a tie-in arrangement because you took a course in antitrust, etc. etc. But when it comes to international practice, every practitioner thinks he knows all there is to know, or can look it up in a slick cheap hornbook, about international law. No matter how big the stakes, the miasma of ignorance hanging over practicing lawyers, and posters like Jason assume that the fault is with the academy.

Years ago I started a movement to change all this when it occurred to me and a few other international law teachers that our subject would remain in limbo until the standardized bar exam put in a decent number of questions involving international law. Not choice of law, or French law, or European law, but international law, treaties, custom, etc. The trouble was that no one could make up such questions since they didn't know the subject matter, and even if they did, the bar graders wouldn't be able to tell a good answer from a bad one. But the goal is, as always, worth pursuing. If the ASIL wanted to do something useful, they could take on this challenge. Of course, they already did; they set up a committee, a study group, etc. And then they went back to the other things they do, mainly endless meetings on which persons to nominate to be officers in the ASIL.

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