At Home Abroad
HLS faculty and students look to other countries to better people's lives and increase their own understanding of the world of law
Professor Lucie White '81 says it was as if she'd hit a wall. She'd done social welfare work in the United States for 30 years and taught law for 20, but she found that to be able to continue, she needed to put poverty in a global framework. Two years ago, White began taking Harvard Law students to Ghana to work in one of the poorest areas in the capital-- neighborhoods where raw sewage floats in open gutters past people's homes. The students work with the community on the long road to securing sanitation and the access to health care guaranteed under the law. White says it's a journey she's found incredibly rewarding.
Professor Howell Jackson '82 began his career at HLS in the late '80s focusing on domestic financial regulation. He's since researched cross-border securities transactions and advised foreign governments on the way American securities regulation might be adapted for use overseas. This semester he's teaching a new course on international securities. He says it's where many of the most interesting problems in the field now arise.
In the 1980s, in her writing on family law, Professor Martha Minow focused primarily on domestic issues. In 1996, as the South African Truth and Reconciliation Commission got under way, she began a book on possible legal responses to mass violence. It stemmed from her work with Facing History and Ourselves, a genocide education organization, and her long-standing interest in the question: How do you create a world where difference is respected and not a grounds for extermination? The book, "Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence," won an award from the American Society of International Law. She's since run the program for the Office of the U.N. High Commissioner for Refugees to promote coexistence when refugees return home, focusing on Rwanda and Bosnia. She's also been part of the Independent International Commission on Kosovo, flying around the world to hold hearings about the NATO intervention. She's written books and developed a new course on related topics. Even a book she published last year on school vouchers and the privatization of welfare in the United States has comparative elements.
For years, such quiet transformations have been at work among the Harvard Law School faculty. As the legal profession has become more global, so has legal education. In the midst of political and economic changes, faculty like White, Jackson and Minow, who did not begin their careers as internationalists, have found their scholarship taking them outside the borders of the United States. Whether it's working for change or dealing with jurisdictional questions affecting U.S. law, their work sheds new light on old assumptions. They bring new expertise and insight back to the classroom.
Although previously he hadn't worked in comparative law, Professor Frank Michelman '60 has developed a new class looking at the South African and U.S. constitutions. He got involved in 1995, just as the South African Constitutional Court was about to hold its first round of hearings. He participated in discussions in South Africa with other academics as well as lawyers and judges about Bill of Rights interpretation a year before the final constitution was instituted.
Being present at this early stage in a country's constitutional development has been exciting and moving, Michelman says. It's also given him a new angle on teaching. He hopes the course allows students "to get some distance on American ways by getting a close-up look at how matters quite similar looking were developing in another legal system in a country, of course, which is vastly differently situated."
Some striking differences between the constitutional texts, he says, involve specific guarantees in the South African Bill of Rights that are absent from the U.S. Constitution, including housing, means of subsistence and health care. And recently in South Africa, he says, Bill of Rights guarantees have been drawn upon in the resolution of disputes between private individuals in ways they would not be in U.S. constitutional law.
Michelman's outlook is in part what makes 2L Sandra Badin happy to be at HLS. Badin, who is also completing a Ph.D. in political science and comparative politics at Columbia University, came to law school because of her interest in equality and equal protection jurisprudence. She has been working as Michelman's research assistant and is taking his class this semester.
"I love that some people here are really alive to the fascinating intellectual questions that each case raises," she said. She envisions a third-year paper on how the Israeli Supreme Court has dealt with equality claims from Arab Israelis. For her, it's part of a broader question: How does a state's national character set limits on individual rights and on who has claims to equality? Badin hopes to teach law someday and to develop an expertise in comparative constitutionalism. Comparison, she says, can only sharpen your focus.
It seems many faculty at HLS agree. As part of the Strategic Plan, the faculty voted to add an international or comparative course to the list of recommended classes. Professor Bill Alford ' 77, associate dean for the Graduate Program and International Legal Studies, estimates that right now no more than 30 percent of J.D. students take such a course. "The thinking is that ideally you should have some grounding in things international to be a literate lawyer in the 21st century," he said. "There may be international implications to decisions that have been historically domestic."
Although most J.D. students may not be taking international courses yet, they have a growing interest in international work. April Stockfleet, assistant director for international programs and law teaching in Career Services, says more than 100 students have approached her this year about the possibility of working abroad their first summer in law school. It is partly in response to employer demand in a legal workplace that has become increasingly global. But she says it also reflects the backgrounds and experience of the students themselves, more and more of whom have studied abroad and speak foreign languages.
Beyond living abroad, many students want to work in the United States on international issues. Part of the rationale for exposing students to the international is that it helps them think more reflectively about what they do at home.
"By offering courses that instruct students in the international or comparative aspects of the very same subject matters that especially interest them in U.S. law," said Todd Rakoff ' 75, dean of the J.D. program, "we are trying to make international or comparative law a part of the everyday law school experience, rather than a specialty that only attracts a small segment of the student body."
Alford says he has sought to promote this phenomenon because "it both builds on the faculty's strength and has the potential to infuse the international pervasively into the heart of the curriculum." In particular, he hopes to create more opportunities for colleagues to immerse themselves in international work early in their careers as part of a plan to further internationalize the law school. That plan, he said, includes "utilizing foreign visitors more fully, mapping out a faculty-approved experiment that would permit J.D. students to spend a semester abroad, generating a range of new international activities on campus and strengthening links with foreign alumni."
In addition to teaching courses that focus specifically on international or comparative issues, many faculty now include comparative elements in their basic courses. "You cannot responsibly teach the subject of civil procedure without dealing with international issues," Minow said. "The nature of the caseload, the nature of the docket of the federal court has changed in the past 22 years that I've been here."
Jackson has found the same to be true in his field. "It used to be that one of the standard legal issues was whether things should be dealt with at a state level or a federal level," he said. "Increasingly, we're now asking whether regulatory issues should be addressed on a bilateral or even multilateral basis."
There are limits, of course, in classes that focus on U.S. law. Professor Mark Roe ' 75, who teaches Corporations, says he saves most of the comparative dimension for a separate course--this year a seminar on current topics in comparative corporate law. But even in the introductory course, focused on the American corporation and Delaware corporate law, he finds that some issues cry out for comparative comment. "It's too easy to assume one mechanism is the only mechanism," he said. "For example, we have elaborate rules on tactics in takeovers, rules that contrast with, say, the British."
Roe says he began thinking about comparative corporate governance when he was writing about corporate governance in the United States, examining whether financial institutions could and should play a larger role. He found that abstract arguments weren't nearly as compelling as the examples from other nations where financial institutions do play more of a role. This led to his 1994 book, "Strong Managers, Weak Owners," and he's continued this exploration in his most recent work, "Political Determinants of Corporate Governance," published in December. Roe examines why most U.S. companies have dispersed stock ownership with managers who effectively control the company, as opposed to companies in other parts of the world, which are more likely to have a controlling stock owner.
"The explanation I'm selling in the book," he said, "is that one can't get a complete explanation without looking at the sharp political differences between the United States and, say, continental Europe--most of them revolving around labor politics. The American polity is much more friendly to shareholders, and these differences help to explain differences in ownership structure and can induce differences in corporate law rules."
Professor Carol Steiker '86 says she now includes a small comparative element in her basic criminal law class and her advanced class on criminal procedure. "It's not a huge amount," she said, "but it's judiciously placed to remind students that there is nothing natural or inevitable about the resolution of these issues." An expert on the death penalty, Steiker has also been exploring a comparative question in her own research. It came up, she says, after people asked her again and again why the United States is alone among peer countries in retaining capital punishment. Steiker has written a paper on the topic in which she looks back to the early ' 70s, when the death penalty was temporarily abolished, and explores reasons why the abolition didn't last, including high homicide rates, cultural issues, American federalism, populism and race relations. Steiker says this paper will become part of a book she is working on with her brother, University of Texas Law Professor Jordan Steiker '88, on the American approach to capital punishment.
In Steiker's first-year class, two S.J.D.s (one a criminal lawyer from Argentina and the other a former Israeli public defender) lectured on an issue in American criminal law that's handled differently in their countries. In addition to providing perspective, Steiker said, she wants "to let the J.D.s know early on in their career that there is a great resource at the school--LL.M.s and S.J.D.s, who can really enrich their understanding of the world of law."
Jackson, who is associate dean for research, praised the opportunities for graduate students and J.D.s to work together in research programs as well as the classroom. In the international finance concentration he's started with Professor Hal Scott, he recalls an American J.D. and an LL.M. from China who both wrote papers on Chinese financial reform. They came at the topic from very different perspectives and reached different conclusions, and the class got to hear both sides.
White says an important part of the advocacy project in Ghana is providing opportunities for collaboration among people living in very different parts of the capital. When they first started, most of the Ghanian law students had never set foot in this desperately poor area of Accra and had no desire to do so, she says. Now the legal services organization and the university that are partnering with Harvard on the project have formed their own ongoing relationship.
When it comes to her students, White's objective is to get them to bring home what they learned. "My personal goal in terms of teaching is to give students a different lens for looking at social equality in the U.S.," she said. "In Ghana, power differences, racial differences are so enormous that you have to face them. And I think you come back with a sense that because you cannot escape those issues, you have to work through them."
Many of the students who went to Ghana continue to work with White in the ongoing Kitchen Table Conversations Project, which brings together a group of low-income women in East Cambridge around issues including access to health care. Joy Radice '02 was one of White's students who participated in both projects. "The way things worked in Ghana taught me so much that I was able to bring back and use here," she said. "It was integral to my learning about how lawyers can do organizing work from the bottom up."
Radice helped community members organize to improve sanitation in the neighborhoods, where trash in overflowing bins sat uncollected. She also contributed to the community meeting that brought hundreds of residents together. She took the experience back to East Cambridge, and now she's brought it home to her native New York City. She grew up in a working-class neighborhood in Queens where it seemed people had no power to make a difference. She wanted to change that. She still does, and one of the places she learned how, thanks to Harvard Law School, was 5,000 miles away.