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A World View

jeri zeder

Anyone else might casually toss an old course catalogue into recycling, but not BC Law Dean John Garvey. For him, it’s raw material for tracking trends. So you might catch him in his office flipping pages, counting subjects, and plotting graphs. The data turn mere hunches into actionable information, invaluable for figuring out how to plan and allocate resources.

Recently, Garvey looked back at course catalogues spanning the twentieth century and through 2005 to verify areas of growth at the Law School. He knew that international law was one area that had become an enormous subject of scholarship, teaching, and learning. But his exercise in pedagogical
archeology really crystallized just how enormous. “It’s everywhere,” Garvey says. “It’s everything we do. It’s huge.”

He’s not exaggerating. Fifteen, twenty years ago, the BC Law course catalogue listed several international law courses, and they covered the subject in the classic sense: the law that governs relations between states. Courses in contracts, torts, constitutional law, property, family law, tax, trusts and estates—all other subjects—focused almost exclusively on US domestic law. Today, the law school still offers international law courses—in fact, it offers many more—but here’s the difference: International law now covers more than just the relations between states. It also covers rights created among individuals across national borders. And, international law topics have a significant presence in courses that used to be dedicated entirely to domestic law. “Historically, international law has been seen as an hermetically sealed discipline,” says Professor David Wirth, who directs BC Law’s international programs. “That model will no longer hold. The array of international subject matter has become very large and is expanding at an exponential pace.” It all goes back to globalization. Routine transactions involving husbands, wives, children, employers, workers, businesses, financial institutions, and other entities increasingly cross borders. “It is no longer the case that international and domestic issues are cordoned off from each other,” says Wirth. Law schools must teach the overlap and interaction between international and domestic law. It’s the future of law practice.

It’s also law practice of the immediate past. Stephen K. Fogg ’75 handles corporate matters as a partner with Day, Berry & Howard in Boston. While his work has had an international component for the last twenty years, he says it has “exploded” in the last five. The international aspect of a matter used to be obvious—Fogg cites the example of a client wanting to raise funds overseas. Now, he says, “transactions not necessarily on their face cross border are in fact cross border cases.” A contract between a Massachusetts business and a New York business might be of interest to the European Union Commission, which administers and enforces EU policy and law, because one of the companies has a factory in Italy. The US business attorneys representing these parties must be able to advise on and resolve the international issues.

Intellectual property is licensed throughout the world; transactions that cross borders incur foreign taxes; exports of ideas, resources, cash, and products are growing; markets in Eastern Europe, China, and southeast Asia are new and emerging; outsourcing results in the creation of business entities in foreign jurisdictions—these all have transformed the practice of corporate law, requiring practitioners to know at least enough to spot the issues, if not actually handle them. John Montgomery ’75, litigation partner at Ropes & Gray in Boston, says, “Lawyers must be able to navigate in a world in which clients are trying to accomplish things in other countries.” Ropes & Gray has designated groups of lawyers to specialize in the law of various countries.

And it isn’t just corporate law. As more people cross borders, so does crime—and so you need more international criminal lawyers. With nationals of different countries marrying, having children, and divorcing, you need international matrimonial lawyers to address who gets the children and the assets. Robert Trevisani ’58, of counsel at Gadsby Hannah LLP in Boston, provides this example. Say a woman who is a citizen of the United Kingdom files for divorce in the UK. She claims against her husband’s pension. The company is situated in the UK, but the owner is a US national. Whose interests must be considered? What law applies? “These are bread and butter subject matters you wouldn’t think would involve international issues, but they do,” says Trevisani.

GIVEN THIS NEW GLOBAL LANDSCAPE, how can BC Law best prepare its graduates to be, literally, world-class lawyers? To make the question more concrete, take this telling hypothetical from David Weinstein ’75, executive vice president of government relations for Fidelity Investments. Your US business client wants to open an office in a South American country and seeks a fixed-rate lease. You start drawing up the papers, only to discover that fixed-rate leases are outlawed in that country—a legal rule based in an economy that experiences huge and frequent fluctuations in the value of its currency. How, Weinstein poses, do you train for that in law school?

One way you don’t do it, he suggests, is by teaching technicalities. Young lawyers can learn that on the job. What law school can give them is the beginning of wisdom that will serve them throughout their careers and deepen with time and experience. Here, practitioners start using words not popularly associated with the legal profession: “cultural humility,” “sensitivity,” “openness.” What they are getting at is this: Students have to notice and look beyond the assumptions that have been ingrained in them just by living under the rule of law of the United States. Comparatively speaking, the US is politically and economically stable and technologically extremely advanced. These realities bubble up to create law that makes sense for US society. Fixed-rate leases make sense here; they don’t make sense in a country with volatile currency.

Students need to peer beneath the law of other countries to see what drives it. They will have to ask questions most lawyers a generation ago didn’t need to think about. “There is an ethos in the US that respects the rule of law as enforced by judges who don’t carry guns,” Weinstein says. That’s not true everywhere. Even in those countries most nearly like the US, students must be aware of potential differences. “We think it’s a right of free speech to contribute to candidates for political office,” says Weinstein. “In England, it’s illegal.” There are legal systems that allow individuals to profit unfairly from unethical dealings. Financial institutions and international regulators are looking at ethical violations and how to prevent them. It is the “thankless job of the lawyer,” Weinstein says, to explain to a client why a US business model might not make the best approach in a particular transaction. Students need to know that, as lawyers, they’ll have to be the interpreter of international dynamics to American clients.

Students must learn about international regulatory agencies. It is no longer enough to be cleared by US anti-competition review or securities regulations. Overseas agencies now have oversight of US businesses as well—even small businesses—because business in general now crosses borders nearly all the time.

Practitioners also point to a need for students to learn how to manage teams. “Many lawyers learn process management by the process imposed on us,” says Weinstein—the rules of civil procedure, for example. But in a global economy, lawyers must learn to manage a team from an ambiguous situation, he says.

The ambiguity comes from cultural differences and language barriers, but also from the nature of international law itself. “Law schools ought to be teaching an appreciation for the growing intersections between the laws of various jurisdictions, and the growing tendency of legal systems to accommodate one another,” says Ropes & Gray’s John Montgomery. He cites the example of intellectual property. It was once the case that businesses had to concern themselves only with US protection. Today, intellectual property must be protected in multiple countries. “Lawyers must look at everything on an integrated basis,” Montgomery says. “The entire strategy must work together. Lawyers in multiple jurisdictions need to appreciate the systems of the other jurisdiction for the client to arrive at a strategic plan of protecting those assets that makes sense.”

If cultural humility, the structure of international regulation, and sophisticated team management skills are among the most important things students need to learn, what has BC Law done to keep pace—and anticipate future trends? Behind a quick glimpse at the BC Law website, which describes a broad and deep international law program, including the International Human Rights Program headed by Professor Daniel Kanstroom, is an array of scholarship, teaching, and clinical programming that blends into the curriculum to instill the flexibility and rigor of mind that students need to practice in an increasingly internationalized legal world.

Hands-on opportunities, like the London school abroad program endowed by Stephen Fogg, or internships founded by Professor Sanford Katz and Philip Weiner ’80 at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court make it possible for students to experience another culture firsthand and to meet students, professors, and lawyers who approach law from a perspective that isn’t US-centric. But even here at home, BC Law faculty bring a richness of international expertise to the classroom. BC Law faculty have:

• Advised the UK’s House of Lords on death and dying;

• Published widely in the US, Europe, and throughout the world on issues in biomedical ethics, world trade, international environmental policy, international private dispute resolution, international tax policy, human rights, family law, and intellectual property;

• Been Fulbright Scholars in Europe and Latin America;

• Participated in international conferences and on advisory committees involving security, the environment, trade, tax policy, biomedical ethics, family law, securities and financial instruments, human rights, and constitutional law;

• Lectured and taught in Europe, Asia, Latin America, and South Africa; and

• Blazed trails in the teaching of comparative law using international sources.

The school also regularly welcomes visiting scholars from other countries (see sidebar Page 16). Adjunct professors, with their real-world experience, add another important dimension. BC Law Professor Frank Garcia agrees that law students will learn technicalities when they join law firms. “But the law school can help by bringing in adjuncts to teach transactions courses,” he says.

The depth of the faculty’s international scholarship, connections, and experience has transformed the curriculum. There’s the straight-on teaching of international law, of course, which covers treaties, US and foreign rules governing cross-border transactions, and the impact of the 800-
pound US economic gorilla on the laws of other countries. But the faculty now infuses international law issues into courses that used to be seen as solely domestic. When Associate Professor Diane Ring teaches domestic tax law, for example, she’ll often contrast a US tax rule with an analogous one from another country. “The comparative piece helps students think more openly about their own system,” she says. This enables students to develop the cultural humility and flexible mode of thinking practitioners say they’ll need.

Professor Charles Baron teaches constitutional law, an area where politicians are questioning whether it is appropriate for judges to look to international sources when interpreting US law. Baron points out that globalization has not left the judiciary untouched. US judges and Supreme Court justices travel the world, attend conferences with their French, German, British, Indian, Israeli, and South African counterparts, and learn to respect good legal reasoning, regardless of the source. Baron has his students examine the decisions of both state and foreign courts in their studies of the US Constitution. “More and more I teach my basic American constitutional law courses as courses in con law, period. I’m teaching constitutional thinking without artificial boundaries,” he explains.

Professor Garcia agrees that international law is becoming global law, penetrating areas of human life that used to be regulated only domestically. These laws influence local economic policies, which in turn affect the lives and welfare of individuals and families worldwide. “Faculty are looking farther down the road. What are the major trends shaping economics as a whole? In this sense, academics are taking the lead,” he says—and taking their students along with them as they incorporate these analyses in their teaching.

STUDENTS LEARN NOT ONLY FROM THEIR professors, of course; they also learn from each other. When Diane Ring taught at Harvard, she noticed that more than half the students in her international tax courses were foreign. Often practicing lawyers back in their own countries, they brought another level of experience and perspective to the classroom. The discussions could be real eye-openers for the US students. In one conversation about a particular tax rule, Ring recalled, the foreign students pointed out that the US method would never work in their own countries: the US rule depended on the Internal Revenue Service having very sophisticated computers to do the calculations. Countries lacking fancy computers need their tax rules to do something less precise and more manageable. There it is again: cultural humility.

Because of the value of foreign students, the BC Law faculty is considering the possibility of attracting non-US practitioners to the Law School by offering them a chance to earn an advanced LLM degree here. The idea is very much in the exploratory phase, according to Associate Dean for Academic Affairs Lawrence Cunningham, but he says the faculty is looking at it because of its potential to diversify the student body—which would, in turn, expand the perspectives of all BC Law students and deepen the quality of the exchange of ideas.

Meanwhile, Dean Garvey speaks for the brave new world of law teaching and practice when he says, “There isn’t international
law anymore. There’s just law.”

Jeri Zeder is a freelance writer in Lexington, Massachusetts,
and a frequent contributor to this magazine.