The Profession, the Public, and International Law

In the fall of 1976, Richard R. Baxter, the Manley O. Hudson Professor of International Law at Harvard Law School, gave an address entitled "The Current Science of International Law in the United States Today."1 In a portion of the speech relevant to this symposium,2 Professor Baxter noted that, like many professions, American international lawyers believed they "could play a larger part in public life, or could do more for mankind..., or [could] simply capture somewhat more influence and prestige within society [or the] public arena." The capacity of the profession to do this, Baxter said, depended in part upon its ability to assess honestly its strengths and weaknesses. Among the strengths that Baxter noted were the openness of the American government concerning United States practice in foreign affairs; the growth of American publications in the field (including the many student publications); and the "plethora" of international law organizations and conferences and other continuing legal activities related to international law. The quarter-century that has passed since Baxter's speech has brought further favorable developments in these contexts. On a less self-congratulatory note, Professor Baxter acknowledged that the American international law profession was also characterized by many weaknesses. Taking into account the changed circumstances of the years since Professor Baxter's speech, much of this criticism is relevant today. I propose to look at the principal criticisms that Professor Baxter raised, to reflect on the criticisms as they apply today, and to add a few new ones to the list. I speak from the perspective of a private practitioner who has watched talented young lawyers join my law firm and often depart for a life in government or teaching. Because of my involvement in the American Society for International Law ("ASIL") and other professional organizations such as the International Law Association, and an occasional foray into teaching, I also spend a good deal of time with law professors and their students. I. PROVINCIALISM Professor Baxter's first criticism of the American international law profession was its "provincialism." He pointed out that many American international lawyers draw their perceptions of international law "from our own practice ... the length and shadow of our own law." Noting that the Restatement of the Foreign Relations of Law of the United States3 takes an American view of international law, he worried that American international lawyers' "knowledge of the views and practice of other countries is too often superficial or non-existent." He added that American students of international law, "wrapped in the cocoon of English" and unable to read the three or four languages of their European counterparts, did not study other countries' state practices or even their scholarship. Knowledge of French and one other foreign language was, in the Professor's estimation, essential for American scholars in the field. My sense is that we are beginning to see some improvement on this front. The new joint programs with foreign law schools are alleviating this problem. I refer, for example, to the joint degree programs that Columbia and Cornell have established with the French law schools. This being said, the fall-off in the study of French and German in the high schools and colleges is having a severe impact in the law schools. My law firm does not receive applications from many students who are well-versed in French or German and who have studied law in one of those systems. Even with the increased popularity of Spanish, the study of Spanish and Latin American law does not attract as great a number of students as it should. Also, many of our scholars do not devote adequate attention to following the literature and considering the work of colleagues in other nations, even when they are in English. In particular, our scholars tend to write without mentioning the work of overseas colleagues who have explored similar subjects in their national publications. …