Summer 2009 Closing Arguments

BY DAVID SLOSS, PROFESSOR OF LAW AND DIRECTOR OF THE CENTER FOR GLOBAL LAW AND POLICY AT SANTA CLARA LAW

David Sloss

Globalization is a fact of life. I can communicate almost instantaneously with colleagues in Europe, Asia, and South America. I am writing this essay while traveling on an airplane at an altitude of more than 30,000 feet. The laptop I am using incorporates hardware and software that was probably designed and/or manufactured by engineers working on three or four   different continents.

The fact of globalization inevitably influences the practice of law. A current student who graduates in 2010, and who expects to practice law for the next 30 or 40 years, is virtually certain to confront legal problems requiring the application of international or foreign law.  In this era of globalization:

• Corporate lawyers routinely draft contracts for transnational business deals requiring application of international legal rules governing shipment of goods, taxation of income, and many other details.

   

• Litigators who handle disputes arising from such contracts must be familiar with procedural rules governing international arbitration because that has become the standard method for resolving disputes involving international commercial transactions.

   

• Criminal defense lawyers must know something about international law to defend clients whose status as foreign nationals entitles them to certain rights under bilateral and multilateral treaties.

   

• Family lawyers routinely handle divorce cases and child custody disputes that require knowledge of foreign or international law because one or more family members have strong ties to other countries.

   

• The list goes on.

   

Ironically, the importance of international law for practicing attorneys is really a return to our roots, not a departure from traditional norms. In the 18th and 19th centuries, international law was an essential component of every lawyer's professional training. In 1900, the U.S. Supreme Court famously declared in The Paquete Habana that "international law is part of our law." Given the broad consensus that international law was part of U.S. law, and since every lawyer was expected to be familiar with U.S. law, there was general agreement that familiarity with the key principles of international law was an essential component of the knowledge base of every practicing attorney.

Legal training and legal practice changed significantly during the 20th century. Legal training shifted from an apprenticeship model to a classroom model. Law schools throughout the United States adopted a standardized curriculum that did not include international law as a core requirement. Judges and legal practitioners who knew very little about international law turned to more familiar domestic legal sources to resolve problems that previously might have been resolved by applying international legal rules. The legislative, executive and judicial branches erected legal "walls" to insulate the domestic legal system from the effects of international law. 

The legal walls erected in the 20th century will not withstand the onslaught of globalization. For the reasons noted above, international law now exerts varied and growing influence over our domestic legal system. Thus, it is imperative for the U.S. legal community to rediscover its 19th century roots and ensure that every practicing attorney receives a basic education in the fundamental principles of international law.

Santa Clara Law offers its students a broad spectrum of opportunities, both inside and outside the classroom, to learn about international and foreign law. The curriculum at SCU includes a wide variety of classes related to international and comparative law. We offer more summer abroad programs than any other law school in the United States. Most of our summer abroad programs include an internship component, thereby enabling students to gain practical experience working in a foreign legal environment. Interested students can spend a semester studying abroad at a foreign law school, or doing an externship overseas with an international court or tribunal. These and other programs help ensure that future SCU alumni will be prepared for the practice of law in an era of globalization.