Reimann, Mathias W.

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Penn State International Law ReviewVolume 23Number 4 Penn State International Law Review Article 105-1-2005Making Transnational Law Mandatory:Requirements, Costs, BenefitsMathias W. ReimannFollow this and additional works at: http://elibrary.law.psu.edu/psilrThis Article is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International LawReview by an authorized administrator of Penn State Law eLibrary. For more information, please contact ram6023@psu.edu.Recommended CitationReimann, Mathias W. (2005) "Making Transnational Law Mandatory: Requirements, Costs, Benefits," Penn State International LawReview: Vol. 23: No. 4, Article 10.Available at: http://elibrary.law.psu.edu/psilr/vol23/iss4/10Making Transnational Law Mandatory:Requirements, Costs, BenefitsMathias W. Reimann*I will make a few brief remarks about what it takes, and what youmight get out of, making Transnational Law a mandatory course becausethat is what we did at Michigan four years ago. As a result, we now haveseveral years of experience with such an approach.In order to make such a course mandatory, you need essentiallythree things. You need the will to bite the bullet-the faculty must makea decision to take the plunge. You need a group of teachers that can staffthe necessary sections you have to offer. And you need materials toteach from. Let me briefly comment on each of these conditions.First, whether you can ever persuade your faculty and your Dean tobite the bullet is something only you can tell. At Michigan, I found itmuch easier than I had anticipated. We had a Dean who was verysupportive of the project. We also had an international advisory boardpushing for it. When the matter came before the full faculty, it turnedout most of my colleagues were complete pushovers. After an intensebut relatively brief discussion, they voted almost unanimously not onlyto introduce Transnational Law as a new course but also to make itmandatory. Incidentally, much help came, perhaps somewhatsurprisingly, from our clinical faculty. They emphasized that, while theywere operating not in New York or D.C. but in a midsize town in theMidwest, they come across international issues all the time in theirpractice. This provided powerful anecdotal evidence of how inescapablesuch issues have become in the American legal universe today. Itprobably convinced quite a few of my colleagues who had been sittingon the fence that a basic understanding of transnational legal issues istruly indispensable for an early 21 st century lawyer in the United States.Second, regarding the requisite teaching force, you, of course, needenough bodies to staff the necessary sections, taking into account that inany given semester, some people will be on leave, visiting elsewhere, or* Hessel E. Yntema Professor of Law, University of Michigan; Dr. iur.utr.,University of Freiburg, 1982; LL.M., University of Michigan, 1983.PENN STATE INTERNATIONAL LAW REVIEWnot available for some other reason. At Michigan, we need to teach fivesections per year which translates into a need for six or seven regularteachers of the course. We found it amazingly easy to assemble such agroup. Especially the younger colleagues have been very open to it,perhaps because they realized that teaching a basic Transnational LawCourse will force them to learn a few generally very useful things. Inaddition, one can rely on adjuncts to some extent which is, of course,easier in New York, Washington, or Chicago than in Ann Arbor. On thewhole, we have never had the staffing problems we had feared. Wenever even had to knock on doors or twist arms. Of course, we are arelatively large faculty with a relatively strong overall comparative andinternational orientation. But we also emphasized that teaching such acourse does not require deep erudition and broad expertise ofinternational law since the course should be kept on a basic levelanyway.Third, regarding suitable teaching materials, there is, at least in myopinion, no casebook out there that truly serves the purpose of anintroductory overview course of Transnational Law. You can, of course,use one of the established International Law casebooks but that would befar from an ideal fit because they are not written with a very basic andbroad-based course in mind. Thus, we compiled our own set of teachingmaterials. I took the lead and was helped by various colleagues tovarying degrees. We then developed the materials over time as we foundout what worked well and what didn't. Currently, we have, so to speak,the third edition. All of us teach pretty much from the same set ofmaterials though everybody fine-tunes them according to his or herindividual needs or interests.What are the costs of making a Transnational Law coursemandatory?. It does, of course, entail the expenditure of resources, i.e.,teaching capacity, classroom space, student time, etc. In that regard, it isno different from any other new course. In addition to theseconsiderations, we had worried about two other downsides none ofwhich, however, materialized-at least not in any significant way. Onewas a concern regarding possible student resentment: would the studentsreact strongly against having to take such a new course? The answerturned out to be, by and large, no. I am sure that there are some studentswho resent it but then again, there are others who resent Civil Procedureor Criminal Law. At the end of the day, the students take whatever youtell them to take, especially once the course is firmly established. Theother concern was that such a mandatory course might deter studentsfrom coming to Michigan because an additional mandatory requirementmay be resented. Our recruitment office, however, tells us consistentlythat there is no such adverse effect. If anything, the Transnational Law[Vol. 23:4MAKING TRANSNATIONAL LAW MANDATORYcourse is a recruitment asset, i.e., an advantage. There is a lot of (mostlyunsophisticated) excitement about international law among both lawschools and law school applicants, and a school that puts its moneywhere its mouth is probably looks more, rather than less, attractive. Ihave heard from several students that they have chosen Michigan over apeer school for that very reason.Let me briefly mention three further benefits. The most obviousone is that you are graduating a student body every member of which hasat least a minimal knowledge of law beyond American borders. To besure, that knowledge is often minimal indeed. Still, at least everygraduate knows what a treaty is, can read the recent crop of SupremeCourt cases dealing with international issues and understand them, has asense of what the WTO does, and realizes that the UN General Assemblycannot legislate. While that is not much, it is a lot more than what themajority of graduates knew before. Second, a Transnational Law courseprovides a basis for upper class international courses. Whatever youteach in that area-International Human Rights, Business Transactions,Arbitration or, in my case, International Litigation, you do not have to goback to the 101 level every single time. You do not have to explain whatthe Hague Conference on Private International Law is, that there is noforeign sovereign immunity for commercial activity, and that theConvention on the International Sale of Goods is binding law in theUnited States while the Unidroit Principles are not. As a result, it ismuch more gratifying to teach advanced international courses, not tomention that it saves a lot of time. Finally, there is a benefit that we hadnot anticipated but which turns out to be quite important. Sharing theteaching of the Transnational Law course has integrated the faculty,particularly its international component, because we each had to learn aminimum about each other's fields. I, for one, had been happily ignorantabout international trade or the principles governing the use of force.Now, I had to come up to some speed and thus began to understand whatmy colleagues in these and other areas were doing. The trade specialists,in turn, had to learn something about human rights, the act of statedoctrine, and arbitration clauses, etc. All this has entailed broader dialogand fostered cooperation. It has, so to speak, created an environment ofcontinuous legal education in international matters for all of us. Even thenon-international faculty have been drawn into that orbit in increasingnumbers. In other words, international and comparative perspectiveshave become an almost routine aspect of faculty activity.Today, the Transnational Law course is so firmly entrenched as arequirement that nobody wants to go back. A few weeks ago, those of uswho teach the course went before the faculty and requested that it beupgraded from a two to three credit-course because we simply needed20051PENN STATE INTERNATIONAL LAW REVIEWmore classroom time and student attention. The motion passedunanimously.Questions raised by Roger Goebel (Fordham Law School):Does anyone have this as a required upper level course?What substantive material do you teach in this course?And especially, do you include international human rights in thatfirst year course?Answer by Mathias Reimann:We require the course-but not in the first year. So, while studentshave to take it before graduation, it is up to them when they do so.Seventy percent take it as a first year elective, the rest take it in thesecond or third year. Those of us who teach it are not sure which is thebetter option. Sometimes I wish more students would take it in theirsecond year when they have a more solid grounding in law generally andin their own legal system in particular. It is difficult to explain what itmeans that treaties are the "supreme law of the land" if they knownothing about the federal system.In terms of the substance we cover, I will gladly share the currentsyllabus with anybody who wants to take a look at it. I need toemphasize, though, that we do not try to teach much substance as such.Instead, we aim to teach how the international system is shaped, how ithas evolved, and how it differs from our domestic legal system. Forexample, we do not try to teach the substance of international humanrights but rather show the students what international human rightsdocuments look like, where they come from, and why it is so difficult toenforce most of them. In a similar vein, we do not emphasize thesubstantive content of bilateral investment treaties but rather teachstudents why they matter, what developments they signify, and that onecannot just read them like a statute. It is teaching by illustration andexample without any ambition to cover whole areas in anycomprehensive fashion. The ultimate goal is to familiarize students withsources, thought processes, and pervasive issues. We hope that this willenable them to handle transnational issues, realizing that this is notrocket science but also that this area is full of pitfalls and that one cannotsimply proceed as usual in the domestic context. Teaching substance assuch is a forlorn cause in a two or three credit-hour introductory courseof that nature.[Vol. 23:4

Making Transnational Law Mandatory: Requirements, Costs, Benefits

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