Thursday, August 17, 2006

Comparative Constitutional Law, The Neglected Stepchild of Legal Education

After only a week hanging out with the international LLMs, I am already referring to my apartment as "my flat"; calling sneakers "trainers" and jackets "jumpers"; eating real French chocolate (my tendency was to eat the Trader Joes "Belgian" chocolate, which while made in Belgium isn't really Belgian apparently); baking things like pomme tarte tatin (instead of say, blondies), commenting that everything is "very nice" instead of say "really good" or "delicious"; and so I fully expect to develop a faux accent in about a week.

I sort of had this Eurofication (and the attendant post-colonial anxiety, but I am over that now) in my third year of law school. For some reason or another, I became friends with a group of the European LLMs, and once again, my status as the "least-American" American was affirmed. I may be hyper, super-friendly, say "dude" a lot, and have a firm handshake (and apparently, an "American"--nay, "Californian" accent), but I have been half flattered/insulted a lot this week. In my third year, I got a lot of "ah, so you know about our politics?" (I read the international section, and studied international relations in college) as well as "ah, you have seen La Vie Rêvée des Anges?" (I watch a lot of foreign cinema). This year, I already admit "no, I am not the typical American" and state my views on American/European politics from the get go--it just makes it easier, so that they don't assume they have to say "We don't have a president, we have a prime minister." But apparently, I am not a "full American" because I have some style, wear "proper" shoes instead of trainers, and read Balzac. So on the one hand, I am flattered, and on the other, I am insulted on behalf of my unstylish, sneaker-wearing countrymen. But if I am totally honest, I'm more flattered, because I probably have the same semi-unpatriotic views about America's current standing in the international community. I am proud to be an American, and glad that I can voice my dissent by vote and rhetoric--but I often find myself wanting to make apologize for things I see as America's curious maverick ways. Such as our non-use of the metric system (mostly it's because I have no idea how tall I am in centimeters, and so rather than blame my poor "math in my head" skills I blame America); our lack of universal health care; the international treaties we declined to sign/are trying to back out of; our weird sexual politics and how they impact healthcare, particularly with respect to young women; etc. etc. There is a lot that I love about our nation, don't get me wrong (I am BIG on separation of church and state)--but there is a lot that is befuddling when you, like the apparently impeachable Justice Kennedy, compare our nation to international norms.

I often brood over jurisprudence being the neglected stepchild of American legal education. Hardly anyone goes to the trouble of teaching postive vs. normative legal theory anymore, and if any jurisprudence classes are offered, they are more concerned with specific "problems," such as the laws "governing the body" or "moral emotions and the law." Which is all well and fine, but I can't believe the best survey course in jurisprudence was one I had (and later, TA'd) in college. I have never seen H.LA. Hart in the law school bookstore, but I was assigned it in my freshman year of college (and I went to a big public state university known more for its quantitative emphasis than theoretical work and was taught by an adjunct). So I grumble about that a lot.

But just recently, I have realized that even more neglected (not necessarily by legal scholars, but rather by law professors and law schools) is comparative constitutional law. There are plenty of international law courses (International Civil Litigation; Business Law in China, Latin American Politics)--but not the same macro/systems analysis of constitutional structure. I suppose that is something you could learn as an undergraduate--but not everyone does comparative political science as an undergrad (I did both domestic and comparative, it can be done). If I had only been an English literature major I certainly could have avoided it entirely. But it seems to me that if law school is not only for learning how to pass the Bar (that is what Bar/Bri is for), then it should consider it important that students have the ability to learn about the different governmental structures and constitutional systems in the world.

The Europeans I meet know about Marbury v. Madison and judicial review! What, I ask you, do you know about the French judicial system? (I only know a bit, because one of my favorite professors from college, now at Yale Law, wrote a book on it.) Any international cases you can name? Have you heard that there is this thing called the "European Constitutional Court"? They know more about us than we do about them, and that's a poverty on our part. I suppose it is good in the sense that it reaffirms my American belief that We Are The Best and We Are The Most Important, but you know, as an American I don't need such validation.

One of the funniest things I've heard this week was from a guy named Pierre (yes, not kidding) who told me that the professor teaching the one-week course on American Law (you would not believe the breadth they are covering in 4 days) said, with all seriousness, "This may surprise you, but in America there is the separation of powers." (beat.) Pierre: "Um, we know about that. It is not like it is something completely foreign to us." Then the German chimed in: "Yes, didn't the French come up with the idea? Montesquieu?"

I just love that. In a few sentences, an encapsulation of American insularity and belief in its singularity, and that despite the fact that we cribbed our constitution and political system from about 3 traditions, we still think we came up with it first. I know that the professor probably meant his statement to communicate "as compared to Europe's parliamentary system, in which the prime minister is chosen by the parliament itself...."--but to the Europeans, it just sounded like that maverick (or so we think) Americanness asserting itself.

Perhaps if we learned more about international law, we would not be so surprised to discover that the internationals already know much about our own legal system.

The poor neglected stepchildren of the legal education system--one day, they will be remembered.