The increasing overlap of various legal systems throughout the world has resulted in a new set of complex considerations for attorneys of all stripes, and law students are taking note. For young lawyers, the ability to thrive in a rapidly globalized environment is more important than ever before, and that’s where the first-year elective Lawyering Across Multiple Legal Orders comes in.
It is mid-afternoon on a Tuesday in early spring, and Professor George A. Bermann ’75 LL.M. stands at a lectern asking questions about procedural rules for which there are no answers. In some first-year classes, questions without answers might be considered tricks, problems posed in mischief intended to stump students like those typing up notes during Bermann’s lecture. But this is Lawyering Across Multiple Legal Orders. The questions are not tricks, and, in this first-year course, even the most thorough note-taking will only get you so far.
“The class is not about writing information down,” says Bermann, who directs the Center for International Commercial and Investment Arbitration and co-directs (with Professor Anu Bradford) the European Legal Studies Center, and who has co-taught Lawyering Across Multiple Legal Orders with Professor Katharina Pistor since 2007. “It’s about learning how to think and use techniques that help students ask the right questions in a world with overlapping legal orders.”
In other words, Pistor, who directs the Center on Global Legal Transformation, says the class is more about process than substance. “Our students don’t become experts in any foreign law system,” she adds. “They develop a skill set that helps them navigate across, and play in, multiple legal orders.”
That skill set is increasingly a prerequisite for practicing law in a globalized world of ever-evolving jurisdictional complexity. This day’s lecture, for example, deals with civil procedure. But not the Federal Rules of Civil Procedure that students learn during the first semester of law school. In this class, civil procedure is seasoned with a dash of chaos. It bounces around on contested and untested ground, where national courts, supranational bodies, and international conventions vie for supremacy, often without the benefit of clear precedent. In international relations terms, it holds the law up to the reality of “anarchy,” which accompanies the lack of a single, universally recognized global legal authority.
As the class session proceeds, Bermann tests the critical thinking skills of his students with a case involving overlap between the German civil code, EU law, and various Hague Conventions.
“This is a classic paradigmatic interface,” says Bermann, challenging the class to work through numerous possible points of cooperation and conflict that arise between courts of two or more legal systems. “What is internationally negotiable? What is the least nebulous jurisdiction?”
With its lack of fixed answers, Lawyering Across Multiple Legal Orders encourages modes of thought (and teaching) that can resemble non-law classes in the humanities—for example, art history. “We sometimes compare class session scenarios involving foreign legal systems to the study of Gothic cathedrals,” says Pistor. “It’s crucial to recognize the elements and structures, even if you can’t master the particulars.”
Why are Katharina Pistor and George Bermann spending so much time and energy training first-year students to think differently than first-year students of the past? Delyan Dimitrov ’08 and Erik Lindemann ’11 know exactly why.
Dimitrov, an associate at the New York City law firm of Holwell Shuster & Goldberg took the class during its inaugural year and says the lessons he learned continue to inform his work—both in terms of general theory and the continued relevance of model cases discussed during course sessions.
“For instance, when teaching us about the various property regimes abroad, the professors used the expropriation of one of the largest oil companies in Russia as a vehicle to discuss Russian concepts of property law and, more generally, the Russian concept of the rule of law,” Dimitrov explains. “Little did I know then that, only a few years after taking the class, I would be actively working on a number of cases arising directly out of the expropriation of the same Russian oil company.”
Lindemann, another former student, likewise describes the course as uniquely valuable in preparing him for future career endeavors. He says he repeatedly referred to notes from the class while completing a masters program at the London School of Economics. And Lindemann now works as an associate in Freshfields Bruckhaus Deringer’s international arbitration group, advising clients and foreign colleagues on cross-border disputes and international sanctions compliance.
Applying static, one-dimensional legal analysis in that setting would be a recipe for disaster, he says.“In my work, I routinely employ the comparative tools I learned to wield in Bermann and Pistor’s class,” Lindemann continues. “Like an impressionist painting, it’s a course that analyzes the specific and the discrete to paint a broader and more colorful picture of the whole, often in ways that cannot be articulated in a top-down approach. The course demands that you not only understand foreign legal principles, but that you stop along the way to contrast them with your own. You come to embrace the subtle distinctions of international law, transnational or cross-border legal theory, and the structure and system of law, both foreign and domestic, as it is invoked around the world.”
Lawyering Across Multiple Legal Orders begins with an overview of the history of legal theory, starting with English-born common law, expanding from the Justinian to Napoleonic codes, and across the globe as German legal thought is embraced in Asia. The course is then divided into sections familiar to first-year students entering spring semester: contracts, civil procedure, torts, criminal law, regulatory law, and constitutional law. But that is where the familiarity ends. In this course, the ground rules learned in other first-year required classes are thrown out the window.
Instead of memorizing the facts and holdings of major cases from a single system, students grapple with a heady mix of scholarly articles and competing statutes, civil codes, and cases that are culturally diverse. For example, a lecture on contracts may examine a dispute between American and Chinese firms that has landed in a Shanghai court. And after the explanation of a fact pattern during class sessions, a seemingly simple question usually follows: What now?
Students may have learned something about U.S. contract law earlier in the year, but that knowledge will be of little use in determining why the case is being heard in Shanghai, or which Chinese laws are applicable.
The goal of these exercises, according to Pistor and Bermann, is to get students thinking critically about contested jurisdiction and foreign legal orders. “Unless they understand that [other legal systems] come with a very different framing of what looks like the same issue, they can’t even have a meaningful conversation,” explains Pistor. “Most top foreign lawyers know something about the American legal system, but American lawyers don’t know as much about the rest of the world. The idea of the course is to give them a comparative advantage over [foreign-trained lawyers] who come here and get a glimpse of the American system.”
There is inevitably an anthropological aspect inherent in comparing systems that stretch across the world’s cultures. Students learn the legal families, from legal structures used in countries throughout Asia to the variegated systems within the Napoleonic Code–based legal families of Latin America and Europe. Often these systems are closer than geography would suggest. In terms of common law, for example, students are sometimes surprised to learn there is more similarity between the German and Japanese traditions than between that of France and Germany.
Initially, the challenge of analyzing and understanding the global mesh and friction between legal orders can be disorienting. “The first month, I was thrown into it, and I felt a little lost,” says William Hackett ’12, one of two TAs for this past spring’s class. “It’s unlike any other course, especially first year. It forces you to shift between modes of thinking. Some classes talk about harmonizing international law, but in this course you face questions about whether a court will apply foreign or domestic law, and the questions only multiply from there. This class is the best opportunity for a 1L to get exposure to cross-border law.”
The fruits of that unique opportunity do not come easy.
“This course’s greatest strength is also its greatest challenge,” says Ramya Ravishankar ’14, a second-year student. “It requires us to approach areas in foreign law with a critical lens, even though we are just learning the nuances of that area of law domestically. Unlike our more doctrinal 1L classes, Lawyering Across Multiple Legal Orders surveys how property, torts, constitutional law, and civil procedure are practiced, interpreted, and otherwise enjoyed across jurisdictions. It’s refreshing, but it means swimming in some deep waters.”
Just as international travel can help one better appreciate and understand his or her native culture, so can Lawyering Across Multiple Legal Orders help students with their required first-year classes. Pistor and Bermann say the course chapters are designed to explore and“In Lawyering Across Multiple Legal Orders, I figured out what civil procedure, torts, and contracts were really about,” says Jacob Johnston ’12, the other TA for the course this past spring. “I took those classes, but only after Professors Bermann and Pistor broke things down in this course, and we looked at how another system has made different choices, did I really understand the core concepts. The use of juxtaposition sharpens the contrast and focus on the key concepts.”
Because the economy is increasingly global, each new year brings new international legal regimes. As a result, the course rapidly adjusts to reflect the acceleration of global legal change. There is no corpus or static nutshell from year to year. The class syllabus is always combining and recombining disciplines and exploring new inter-systemic issues as they arise.
“We’re doing comparative and international law at the same time,” says Pistor. “We have all of these legal orders stacked on top of each other, coexisting with one another, relating in interesting ways. And the complexity is growing. The students realize how the world is changing. Even civil divorce cases can involve people living in different countries. Students need to learn the techniques to navigate these complexities.”
If students somehow fail to fully grasp this truth while progressing through the difficult first-year elective, they will quickly get the picture upon entering the real world of lawyering across multiple legal orders as practicing attorneys.
“Most firms in New York do exactly this kind of international law,” Johnston says. “The class gives you a sense of what you’ll be covering in upper-year courses and helps you figure out exactly what aspect of transnational law you’re interested in.