[Einer Elhauge, guest-blogging, May 21, 2007 at 9:12am] Trackbacks
Will Basic Legal Subjects Become Globalized?

In today’s global markets, firms face the reality that they are subject to simultaneous legal regulation by many nations. Lawyers face the reality that they must advise clients subject to such multinational regulation. Yet law schools continue to teach and research basic legal subjects from the parochial perspective of whatever nation they are located in. This doesn’t make much more sense than having, say, Harvard Law School offer a curriculum limited to Massachusetts law on topics like contracts, property, torts, antitrust, and corporate law, just because it is located in Massachusetts.

To be sure, some law schools, including Harvard, are introducing first-year required courses in international and comparative law, which is I think a very welcome step. But generally international law courses focus on resolving conflicts in national laws, and comparative law courses focus on general differences in legal cultures to gain perspective on our own system, in a way that does not necessarily get deep into substantive theory in any particular area. Neither quite confronts the reality that the basic law applicable to much conduct simply is multinational.

Focusing on courses in international and comparative law also, in a sense, ghettoizes the laws of other nations, treating them as something to consider at the margins outside the basic legal subjects. It would be like saying the Massachusetts law curriculum I noted above would be fine if Harvard also offered first year courses in conflicts of laws and comparative state law.

I confess I have a personal stake in this issue, because I have just finished a book (with my European co-author Damien Geradin) called Global Antitrust Law & Economics, which I believe is the first casebook to take the approach that the law applicable to a basic legal subject is multinational. We put US regulations and cases side by side with the EC regulations and cases that regulate the same conduct on global markets, without suggesting that one of them is more important or necessary to understanding basic antitrust law and that the other is only useful to add perspective. We designed the book to be able to replace parochial books on basic antitrust law and teach antitrust lawyers the global landscape they must face, not to merely provide grist for advanced courses in comparative and international antitrust.

I think this is the first casebook to go this far, but glancing through advertising for other casebooks, it seems clear that casebooks in every area are popping up which add an increasing amount of global content to basic legal subjects. My prediction is our book will just be the leading edge of a wave of such books, and that they will transform legal education more than anything else we have seen in the last few decades. Perhaps we will even get to the stage where we do not need courses in comparative and international law because each substantive course already addresses the comparison and how to resolve international conflicts in that subject.

It is not too surprising that antitrust would be the leading edge in such a transformation, much like it was for the incorporation of economic analysis of law. Antitrust economics offers a common body of scholarship across nations already, and there is the convenient fact that the US and EC dominate antitrust enforcement, with other nations generally borrowing the approach of one or the other. This makes it possible to take the approach, like my book did in this first edition, of analyzing the US and EC law in depth and just summarizing other nations’ stance unless they take a distinctive third way approach.

But I can already see that, if I could just find the time to write the necessary casebooks (or find someone else who would), I really should be teaching all my other subjects from a global perspective. Contracts, corporate law, health law – all these raise issues across multiple nations and understanding the laws of many nations on these topics would better describe reality. Doing so in basic substantive courses would also, if my experience from the global antitrust book can be generalized, reveal many interesting theoretical issues that a national approach tends to submerge, and pose very interesting areas for possible empirical studies into what works and what doesn’t. This last point brings us to the next big transformation in legal studies – the growing trend toward empirical analysis – which will be the subject of my blog post tomorrow.