The Global Lawyer: Is US law failing to engage with outside world?

US law schools brag about their ‘global’ offerings. But when the Australian scholar Anthea Roberts sampled some as a professor at Columbia and Harvard law schools, she tasted a peculiar flavour. The Alien Tort Statute, which dominates US human rights, “was to international law what Tex-Mex was to Mexican cuisine” she found. “You could see the foreign influence, yet it seemed utterly Americanised.” By extension, she might have called Foreign Relations Law the Häagen-Dazs of legal studies: a wholly US product with an ersatz global brand.

Ms Roberts’ recent book, Is International Law International?, marshals an impressive body of sociological evidence across legal cultures to show that, even at its most cosmopolitan, the US is provincial.

US-born law teachers tend to stay at home throughout their careers. While a majority of high court clerks in Japan and South Korea study overseas, Ms Roberts could not find a single US high court clerk who did so. While about three-quarters of elite law professors in the UK and Australia have studied overseas, less than one-third in the US have done so, and that overwhelmingly reflects professors who are foreign born.

The dominant training ground for US international law scholars is the State Department Office of the Legal Adviser, clubbily called ‘L’ by those in the know. L alumni have authored more than 1000 works of scholarship, and represent six of the eight reporters for the Restatement of Foreign Relations Law. Their instinct is to ask: “Is it good for America?”

When at last they storm the ivory tower, US scholars must gear their work toward generalist US faculty workshops and student-edited law journals. Their incentive is to ask: “Can it be understood by my colleague who studies zoning law?” Or: “Will a kid who spent one summer on Wall Street get it?”

The result is that US global legal writing relies on US cases to a shocking degree. Only one-fifth of citations in UK global law texts are domestic. In the US it is nearly two-thirds. Ms Roberts slyly suggests that some texts might be titled, International Law: A Hegemon’s Perspective. 

Briefs and opinions are only more insular, as the precedents proliferate and fold in upon themselves. With litigious clients in every sector, the million-strong army of US lawyers has a unique ability to cleave itself in two, and brilliantly litigate any global concept that makes landfall beyond all recognition. 

Though Ms Roberts may be the first scholar to systematically study the parochialism of US international lawyers, the phenomenon has not escaped notice by their peers abroad. “Much that passes for the study of international law in the US academy is at best the foreign relations law of the US with ideological interpolation,” says the UK scholar and jurist James Crawford. “The overwhelming impression on reading this body of scholarship… is one of isolationism. It is as if we heard the sound of one hand clapping.” Presumably this clapping is in self-applause, for the Japanese international lawyer Yasuaki Onuma calls US casebooks “incredibly egocentric”. As the leading World Court advocate Alain Pellet remarks acerbically: “‘Self-confinement’ might be the way empires collapse.”

Of course, law is not the only field that falls prey to provincialism. To give credit where it is due, the US academy is supremely multidisciplinary, and Ms Roberts might have benefited from some US-style vision across the disciplines. The historian Thomas Bender made Ms Roberts’ point more broadly in A Nation Among Nations: America’s Place in World History. “The time has long since come for a more cosmopolitan vision to inform civic work in the humanities,” he wrote. “Notions of American exceptionalism cut us off from this larger understanding of ourselves and our place in the world… They produce an odd combination of parochialism and arrogance. They encourage intellectual and moral isolation and discourage the concern for the ‘decent respect to the opinions of mankind’.”

Michael D Goldhaber serves as US correspondent for the International Bar Association. He has been tracking the world’s largest disputes since the turn of the millennium. Email: michael.goldhaber@gmail.com