The Plight of Academic International Law

When I entered the academic world almost twenty years ago, one of my objectives was to change the way public international law was taught, and more generally how it was understood by the wider community of academics and practitioners. The subject as presented to me when I was a student had been dominated by stale theoretical questions having to do with the sources, hierarchical status, and binding nature of international law, and by a puzzling reverence for the cases of the International Court of Justice. Even as a student, I sensed that what I was learning had little to do with the real world of government decision-making, politics, and commerce. Then, in private law practice on Wall Street, I found that my academic training had prepared me poorly to deal with the interconnected issues of domestic and international law, with which I grappled in tax and business planning, foreign government bond offerings, commercial bank loans, and joint ventures abroad, and all the associated human problems involving tax, estate, and immigration law. My next experience-as a lawyer in the Department of State-brought home additional gaps in international law as it had been presented in the academy, notably its neglect of the processes by which law was formed and implemented, how those processes related to the bureaucratic decision-making structures of governments, and the importance of foreign and domestic constitutional law in shaping realistic options available in any given situation. My academic training also lacked much consideration of important things that lawyers actually do in their practices, such as counseling, blending non-- legal/policy considerations with legal analysis in the formation of professional judgment and advice, and negotiating (both at the intragovernmental and the intergovernmental levels). As an academic, I have had the opportunity to reflect on the relevance of my experience to the academic enterprise, and, perhaps more importantly, the leisure to contemplate the role of international law in shaping our thinking about the world and in defining the problems that lawyers are asked to solve. I sought to address the deficiencies in academic international law as I had experienced them by adjusting the content of the courses I offered (deviating from the published teaching materials then available), by eventually authoring a new course book that could correct the problems that I saw, and by focusing my scholarship on presenting international law in a more realistic framework that would better reflect the political world in which it operated. I first recast our International Organizations course. The principal casebooks presented abstract rules and procedures of various organizations, without reference to context or to the actual impact of these organizations.1 The usual approach seemed to privilege the United Nations (which at the time was a politically marginal institution of little actual consequence, even for most international lawyers) as the preeminent example worthy of study. I substituted study of economic institutions-the GATT, the World Bank and the IMF-and I included material showing how these organizations worked in practice. Such a topic seemed to me hardly unimportant to lawyers whose practice could include counseling with respect to their projects or lobbying these organizations on behalf of a client, or to academics who might propose realistic reforms. I also sought to convey a sense of the actual impact of these institutions on the societies in which they operated, for example, examining the effects of IMF structural adjustment programs on the price of food in connection with considering their legal status and legitimacy. In our Public International Law course, I introduced subject matters that I felt American lawyers needed to know about.2 These included international law elements potentially relevant to civil litigation (the Hague Service and Evidence Conventions), choice of law and choice of forum, the Foreign Corrupt Practices Act, extraterritorial application of law, tax treaties and self-executing treaties in general, the potential effect of Presidential constitutional power, and individual problems associated with immigration, refugees, and the trans-border movement of persons. …