Globalized Americas
P U B L I C A T I O N S
Globalization and Public Opinion
Jonathan C. Hamilton and David J. Bederman, “Agents of International Discourse,” Virginia Journal of International Law (Fortieth Anniversary Issue) (2002). Mr. Hamilton was Editor-in-Chief of the Journal during law school at the University of Virginia, and subsequently a member of the Board of Advisors.
At the turn of the century, most leaders considered globalization to be a positive development for the United States, while barely half of the public viewed globalization favorably. This opinon gap portended the debate over globalization that intensified during the first decades of the century and as manifested in Brexit, the 2016 U.S. election and global issues emerging from the coronavirus pandemic.
A few years before reaching its fortieth anniversary, the Virginia Journal of International Law began to publish in the front pages of each issue an excerpt from a 1964 letter to the editors of the Journal from Hardy Cross Dillard, who was then the Dean of the University of Virginia School of Law and later became a judge of the International Court of Justice. In the words of Judge Dillard, “Some years back the notion prevailed, at least in unenlightened quarters, that International Law was merely a polite curricular ornament to be viewed with tolerant indulgence by students, mild skepticism by the faculty, and benign indifference by the Bar.”[1] These remarks still ring true in many ways as the Journal enters its fifth decade as the oldest, continuously-published student journal of international law in the nation, and perhaps the world.
When students established the Journal, the Cold War was still heating up and the United Nations was still in its infancy. Four decades later, the Iron Curtain has long since fallen and the United Nations has already experienced multiple identity crises.[2] A growing body of legal doctrines, a complex web of multilateral organizations and the globalization of the world economy have enhanced the importance of public and private international legal study and practice. Yet, there are still many in the legal community who approach international law—and international legal journals—with skepticism and indifference.
This commemorative issue amply demonstrates the important contributions that the Journal has made to the field of international law over the past four decades.[3] This epilogue responds with a note of caution.
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The Council on Foreign Relations has conducted a survey on international affairs every four years for the past quarter-century. The survey highlights differences between the general public and leaders in government, business and international affairs. According to the most recent survey, 96 percent of leaders favor an active role in international affairs while only 61 percent of the public favors such a role.[34] Similarly, 87 percent of leaders consider globalization to be mostly a positive development for the United States while only 54 percent of the public views globalization favorably.[35] The apparent uncertainty with which the general public views globalization seems uncomfortably similar to the ambivalence that many law professors and practitioners demonstrate toward international law.
Law in the United States is “lagging far behind on the ‘global playing field.’”[36] Ambivalence persists among law faculties and practitioners. There remains “a healthy dose of skepticism and isolationism when domestic legal practitioners, judges, academics, and policy-makers confront international law scholarship. International law is an unwanted intruder into domestic law.”[37] To be sure, certain educational institutions have placed the international legal curriculum at the center of institutional development. New York University, for instance, commenced a Global Law School Initiative based on the premise that “there are virtually no significant legal or social problems today that are purely domestic—from NAFTA labor standards to intellectual property and trade, to the impact of foreign creditors on domestic monetary policy.” [38]Some scholars argue that the relevance of international law to domestic law can secure a more pervasive presence for international law in the curriculum.
Family law should definitely be taught with a reference to the new treatise on abduction. Evidence should be taught with information about the Hague evidence convention. How can you teach contracts without telling your students that the international convention on the sale of goods is the governing law for contracts on sales between Americans and foreigners? I think most of our contracts teachers do not know this fact and they may be guilty of malpractice for not alerting their students to it. How can you teach securities law now without alerting students to the international securities law developments? I would like to see the person who teaches the seminar on capital punishment talk about the human rights implications of capital punishment in the United States.[39]
Yet, much uncertainty abounds about international law. Some international legal scholars worry that efforts to recast the value of international law in terms of domestic law undermines the whole premise of international law.[40] While the presence of international law in the curriculum has increased, the jury is still out as to its acceptance by the legal academy.
Similarly, many practitioners remain uncertain and unconcerned about the implications of globalization and the increased attention devoted to international law. At one level, this is a question of business strategy for global firms. Some firms hew closely to their roots while others have adopted multi-jurisdictional strategies.[41]Concurrently, internationally legal issues increasingly affect practitioners outside of the global firms, but attorneys with small firms outside major business centers tend to have little interest or background in international law. Some attorneys argue that international courses “cannot be justified as preparation for what goes on in private practice.”[42] Others counter, however, that “the number of our students who will actually practice constitutional law is ... much smaller than the number who will have some contact with international law in practice.”[43] There are many cases involving international transactions in which attorneys on each side have overlooked pertinent aspects of public international law. In many such cases, “lawyers are not aware of this body of law and that almost amounts to malpractice.”[44] As Myres McDougal summed it up, “the practitioners simply do not see all the issues.”[45]
Today, much of the work in global firms requires associates to arrive with fluency in a broad range of international legal issues ranging from BITs and ICSID to NAFTA and the WTO. Moreover, a diverse array of practitioners and courts across the country are increasingly required to examine international sources of law. Consider a recent garden-variety contract dispute in federal court in Mississippi.[46] A Mississippi telecommunications cable company contracted with a leading Peruvian cellular telephone company for the delivery of $4.3 million of merchandise. When the Peruvian company failed to pay for the goods that were delivered to Peru, the Mississippi company filed suit for breach of contract. The court dismissed the claims—twice—for improper service of process under the Inter-American Convention on Letters Rogatory.[47] The Mississippi company was let down by its legal counsel at several turns. First, the Mississippi company had used the same form contract it relied on for ordinary domestic transactions, without any special provisions for dispute resolution or choice of law. Second, the company was unable to properly litigate its claims because of a basic procedural defect involving international treaty law. In reaching its decision, the court cited to the Columbia Journal of Transnational Law, the Tulane Journal of International and Comparative Law, the Pace International Law Review and the Virginia Journal of International Law.
As this simple contract dispute reveals, international legal issues increasingly suffuse domestic law in the United States. While courts and professors traditionally tended to consult leading general-topic law journals, the complexity of international legal issues increasingly demands that they turn to more diverse sources. International law journals have a unique contribution to make because the “teachings of the most highly qualified publicists of the various nations” are actually regarded as a “subsidiary means for the determination of rules of [international] law.”[48]
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The fortieth anniversary of the Journal is, above all, a time to celebrate the remarkable accomplishments of a student enterprise that has produced one of the most significant cumulative bodies of work on international law in the world. It also is an occasion for taking stock of the criticisms of standards, obsolescence, and irrelevance that affect the Journal. The facts belie the concern that the Journal has insufficient quality control standards in comparison to conventional law journals. But the critique that law journals are nearing obsolescence should serve as a beacon for needed innovation and entrepreneurial thinking, particularly given the international audience of the Journal.
The final, and most fundamental, critique is that international law is largely irrelevant to serious legal discourse in the United States. This critique turns not on the issue of what international law is. That is an issue of contention among the converted. The real question is whether it is worth asking what international law is; what it has been; and what it may yet become. The testimony of international law journals is that they engage this debate.
The critiques of international law journals ultimately have not changed all that much since Hardy Cross Dillard described the naysayers who consider international law to be “a polite curricular ornament to be viewed with tolerant indulgence by students, mild skepticism by the faculty, and benign indifference by the bar.”[49] “The Virginia Journal of International Law adds another testimonial to the vacuity of this notion,” responded Judge Dillard.[50] His observation holds true now, more than ever. The Journal continues to serve as an agent of international legal discourse in an age when far too many in the legal community remain ambivalent about the entire enterprise of international law.
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[1] Letter from Hardy Cross Dillard, Dean, University of Virgina School of Law, to the Editors of the Virgina Journal of International Law(1964) (on display at the offices of the Virgina Journal of International Law).
[2] See, e.g., Ruth Wedgwood, Book Review, 92 Am. J. Int’l L. 150, 151 (1998) (reviewing a “progressive restatement of international law by former adversaries” in the United States and Russia).
[3] Reinhard Zimmerman, Law Reviews: A Foray Through a Strange World, 47 Emory L.J. 659, 668-69 (1998).
[4] See, e.g., 1999 Annual Guide: Best Graduate Schools, U.S. News & World Report (visited Mar. 1, 2000) <www.usnews.com/usnews/edu/beyond/gradrank/law/gdIawtl.htm>; The NLJ 250, 22 Nat’l L. J., DEC. 13, 1999.
[5] Theodore Eisenberg & Martin T. Wells, Ranking and Explaining the Scholarly Impact of Law Schools, 27 J. Legal Stud. 373-74 (1998).
[6] Id.
[7] Tracey E. George & Chris Guthrie, An Empirical Evaluation of Specialized Law Reviews, 26 FLA. St. U. L. Rev. 813, 824 (1999).
[8] Id. at 831.
[9] Gregory Scott Crespi, Ranking International and Comparative Law Journals: A Survey of Expert Opinion, 31 Int’l Law. 869, 874 (1997).
[10] James Leonard, Seein’ the Cites: A Guided Tour of Citation Patterns in Recent American Law Review Articles, 34 ST. Louis U. L.J. 181 (1990). The Journal tied for sixty-third in overall citation frequency among law reviews, the highest for an international law journal. Id. at 219. The ranking of the Journal among citations to specialty titles was also the highest for an international law journal, yet inclusive of non-specialty law reviews. Id. at 235.
[11] Colleen M. Cullen & S. Randall Kalberg, Chicago-Kent Law Review Faculty Scholarship Survey, 70 Chi.-Kent L. Rev. 1445 (1995).
[12] Id. at 1447.
[13] Even the labels attributed to law journals set up a hierarchy. Journals which are the conventional, general-topic, domestically-focus law journals are generically referred to as flagship publications whereas international journals are lumped in with journals specializing in various subsets of domestic law such as sports law. Perhaps we should begin referring to international journals as all-encompassing and relegate conventional law journals to a category of subspecialization in United States law.
[14] Crespi, supra note 9, at 878.
[15] Id. at 879.
[16] Roundtable on the Teaching of International Law, 85 Am. Soc’y of Int’l L. Proc. 102, 111 (1991) [hereinafter Roundtable] (Mary Ellen O’Connell, speaker).
[17] Id.
[18] See 1997-98 Managing Board of the Virginia Journal of International Law, 1998 Annual Report: Toward the New Millennium: The State of the Journal and a Vision for Its Future 7 (1998) (on file with the Virginia Journal of International Law) [hereinafter 1998 ANNUAL REPORT].
[19] Id.
[20] Id.
[21] Id. at 14. See also 1998-99 Managing Board of the Virginia Journal of International Law, 1999 Annual Report 14 (1999) (on file with the Virginia Journal of International Law).
[22] Id.
[23] Id.
[24] Id.
[25] Bernard J. Hibbitts, Yesterday Once More: Skeptics, Scribes and the Demise of Law Reviews, 30 Akron L. Rev. 267 (1996) (in a special journal issue responding to the arguments of Hibbitts) (also available at <http://www.law.pitt.edu/hibbitts/ akron.htm> (last modified March 6, 1997)). See also Bernard J. Hibbitts, Last Writes? Re-Assessing the Law Review in the Age of Cyberspace, 71 N.Y.U. L. Rev. 615 (1996) (also available at <http://www.law.pitt.edu/ hibbitts/lastrev.htm> (last modified March 10, 1997)).
[26] Journals such as the revived Green Bag 2d and the forthcoming Chicago Journal of International Law are challenging Hibbitts’ complaints about the time and energy spent on editing journal manuscripts by their very structural approach to editing. They feature concise manuscripts edited in rapid fashion for quick release. See, e.g., The Light Side of the Law: Lawyers Smile at Journal’s Approach,Wash. Post, November 2, 1998, at A17.
[27] See, e.g., Judge Donald P. Lay, The Importance of Law Reviews, 32 Creighton L. Rev. 779 (1999).
[28] See Alexandra Dell, The New Way to Manage Law Firm Knowledge, N.Y.L.J. (Jan.1999) <www.nylj.com>; UK Law Firm to Offer Documents Online, Lawmoney.com (Dec. 21, 1999) <www.lawmoney.com>; Top Tier Firm Launches Internet Services, Law-money.com(Jan. 25, 2000) <www.lawmoney.com>.
[29] SSRN Electronic Library (visited Dec. 15, 1999) <http://papers.ssrn.com/sol3/ search.taf>. The Legal Scholarship Network (“LSN”) describes itself as “the premier legal network on the Internet” and promises that its manuscripts “will be edited by world-renowned legal scholars and not students.” SSRN Legal Scholarship Network (visited Mar. 1, 2000) <http://www.ssrn.com/lsn/index.html>.
[30] Am. J. Int’l L. (visited Dec. 15., 1999) <http://www.asil. org/jstor.htm>.
[31] See, e.g., Jurist (visited Mar. 1, 2000) <http://jurist.law.pitt.edu>.
[32] See 1998 Annual Report, supra note 18, at 17.
[33] David J. Bederman, Why I Hate International Legal Scholarship (Sort Of), 1 Chi. J Int’l L. 75 (forthcoming 2000).
[34] See Chicago Council on Foreign Relations, American Public Opinion and U.S. Foreign Policy 4 (John E. Reilly ed., 1999).
[35] See id. at 5.
[36] Adelle Blackett, Globalization and Its Ambiguities: Implications for Law School Curricular Reform, 37 Colum. J. Transnat’l L. 57, 58 (1998) (surveying the legal implications of globalization).
[37] See Bederman, supra note 33.
[38] New York University School of Law, The Global Law School (visited December 15, 1999) <http://www.law.nyu.edu/globallawschool/>.
[39] Roundtable, supra note 16, at 112 (Mary Ellen O’Connell, speaker).
[40] See Bederman, supra note 33.
[41] See, e.g., Taking on the World, Am. Law., Nov. 1998, at 98.
[42] Roundtable, supra note 16, at 109 (Edwin Smith, speaker).
[43] Id. at 111-12 (Mary Ellen O’Connell, speaker).
[44] Id. at 120 (Anthony D’Amato, speaker).
[45] Id. at 121 (Myres McDougal, speaker).
[46] See Trilogy Communications, Inc. v. Tele Cable and Tele 2000, No. 3:98-CV-514BN (S.D. Miss. 1998).
[47] Inter-American Convention on Letters Rogatory, Jan. 30, 1975, S. TREATY DOC. No. 27 (1984).
[48] Statute of the International Court of Justice, art. 38, para. 1(d).
[49] Dillard, supra note 1.
[50] Id.