Should You Pursue an International Law Career?

China Law Blog recently linked to a post I wrote in June while I was living and working in Beijing entitled, "The Allure of Working in China". My post was a pugnacious post written in response to a post on Asia Business Intelligence. I was venting my general frustration with my own inability to reconcile my impatient desire to practice in China NOW as opposed to adhering to the sound advice of those who know better, which is that it would behoove me to get a couple years of legal experience in my home jurisdiction before going to China. Since China Law Blog has brought up the subject again, there have been a few interesting posts written in response that I want to share and comment on.

We'll begin with Dan Harris' opinion at China Law Blog, which was embodied in his posted entitled, "So You Want To Practice China Law?" Harris said that eager law students sometimes ask him how they can become an international attorney (in China specifically) and Harris said that his "advice to them is usually a somewhat rambling dissertation on the need to build a solid legal foundation while working on improving language skills." He said that this advice is generally not specific enough for the inquiring student/young lawyer, but it sounds like solid advice to me. Harris identified two key elements to becoming an international attorney: (1) A solid legal foundation and (2) language skills.  There seems to be little debate about the necessity of acquiring language skills; the debate is centered around the question, "What exactly is a solid legal foundation?"

David Carnes at China Breezes captured the essence of the debate in his post, "Go East, Young Man - The China Syndrome: Why the US is exporting lawyers to China and why you should think twice before joining them". Carnes spent his summers working in China before graduating from law school with a high GPA and a proficiency in Mandarin. The moment he graduated he returned to China and a couple of years later he tried coming back to the USA only to discover that the best job he could get was delivering pizza. His advice to people considering an international law career is to look in a mirror and ask, "Is your primary focus on law, or on China?" If the answer is law, then Carnes said:

Because when it’s all said and done, the inside of an office is the inside of an office whether that office is in Beijing, Caracas, or New York. And like it or not, the inside of an office is where you’re going to be spending most of your waking hours as a lawyer. Likewise, legal work is essentially legal work whether you’re drafting documents and consulting with clients in English, Chinese, or classical Arabic.

This is a very persuasive line of argumentation: if I want to be a lawyer, it shouldn't matter where I'm practicing law. I agree, and the corollary to this argument is if being in China is what is important, then it should not matter what you're doing to live in China. Carnes hinted at this corollary when he advised that a person wanting to practice in China should introspectively inquire, what is my plan B? Is plan B practicing law in your home jurisdiction, or teaching English in China?

I do not agree with the corollary. Someone once told me that they would be willing to scrub toilets if that's what they had to do to live where they wanted to live. I'd be willing to scrub toilets to survive but not to live in Beijing, Paris, or San Francisco. I also wouldn't teach English, which is partly why I'm not in China now. There is a difference between teaching English in China and working as a foreign attorney in China, and Carnes stated it in his post. "American lawyers are tolerated in China because they help seduce Western investment into China." Working in China as an attorney will provide me with a greater opportunity to make significant contributions to China as an evolving and powerful nation that rivals the USA. I could not make this impact teaching English or with a PhD or an MBA.

However, this naturally brings up the questions, "Wouldn't my contribution be greater if I had the practical experience of working in the USA prior to working in China?" Any experience a person can bring to their job is valuable, but the question becomes what kind of legal experience in the USA would benefit me as an attorney abroad? How different are international business transactions in the USA compared to Paris or Beijing? Are they not still international in essence? Yet, collective bargaining for unions in the entertainment industry is going to be really different in the USA than it is in China. Would a person's practical experience in this field even culturally and politically translate in China? This brings to light the core issue of this problem; viz., by immediately embarking on a career in China, I will acquire skills that are not applicable in my home jurisdiction, but the same is true about the skills I acquire while working in my home jurisdiction.

That is what is so troubling about this dilemma; someone that wants to work internationally has to make that decision prior to beginning his or her career. Moreover, once he or she embarks on this path, coming back to the USA may not be an option. This is why I think professionals such as Harris and Carnes take a practical approach and suggest procuring a few years of experience at home prior to going abroad---not really for the legal foundation but just in case you want to come back. 

Carnes also said, "As the English language level of Chinese lawyers improves, numbers increase, and foreign investors develop greater confidence in the local legal system, American lawyers will become increasingly unnecessary." I also agree with this statement and I believe it supports my notion that working in China as an attorney will provide me with a greater opportunity to contribute to China because the Chinese legal system is embryonic compared to the legal systems of the West. Chinese attorneys need foreign attorneys not for their language skills but for their erudition. Undoubtedly, once they have learned all that they can from us, they will reduce our presence in their country. Should such a concern prevent someone from making a contribution to this process? I don't believe so because there will always be jobs for international attorneys.

In "The Future of Law is International" I posited that law students today who do not learn the fundamentals of international law and acquire some proficiency in a foreign language will greatly limit their options in the future legal market. I'm obviously not the only one who holds this opinion. According to Opinio Juris, international law is now a required course for first year law students at Harvard, Hofstra, and Michigan. An international attorney functions with a different skill set than an attorney who simply practices in their home jurisdiction. The international attorney is a master at comparative law and is able to research the applicable laws in multiple countries that will apply to a single transaction. Working as an international attorney is not about being an expert in two systems of law or customary international law or the CISG. It's about being dynamic in a world composed of nations beset on all fronts by illusory boundaries that are defined by mental constructs called laws. Most importantly it's about being creative. The practice of international law requires an attorney to confront issues that have yet to be addressed. The example that immediately comes to mind is the recent debate over the Military Commissions Act (see our most recent post here), which has required the members of the Executive and Congress to be international lawyers. Another example is anyone that is representing a detainee at the Navy base in Guantanamo is an international attorney. This illustrates that even people practicing in the USA are still required to possess a skill set that  is capable of navigating international law arguments.

Harris at China Law Blog also said, "[A]lmost every lawyer I know just fell into/morphed into their practice area after many years as lawyers." This seems like the most realistic and honest advice anyone could give to someone coming out of law school, and it's the kind of advice I like to hear because, lets be frank, no one knows where they'll end up or how they ended up where they are. Take a bearing, set a course, and let the adventure begin.

Comments

[David A Carnes]

"...no one knows where they'll end up or how they ended up where they are. Take a bearing, set a course, and let the adventure begin."

Words of wisdom. I would never have imagined that I'd be where I am today. I took the "wrong" path (went overseas directly out of law school), suffered the consequences (I'll never work as a lawyer in the USA); I am not making nearly as much money as I would have been making staying home in Kentucky defending DUIs...and life is good.

I have had a fascinating (although hardly lucrative) career, and I find myself the object of resentful envy of people back home who make five times as much as I do.

My advice to law students came from my head, but from my heart all I can say is: follow your heart; don't live for a resume. Life is not lived on paper.

[Patrick S. O'Donnell]

'The international attorney is a master at comparative law and is able to research the applicable laws in multiple countries that will apply to a single transaction.'--I'll take this to be a normative desideratum, not a description, inasmuch as as those involved in international law (some are both scholars and practitioners) seem to have very little knowledge of 'comparative law.' In response to the decision at PrawfsBlawg not to include comparative law among the subjects for their 'research canons' project, I wrote: 'Still, no "comparative law"? Other legal traditions of the world unimportant? Legal systems of Asia and Africa irrelevant? No significant differences between Romanistic, Germanic, Anglo-American, and Nordic Legal Families? Religious law (e.g., [Islamic] fiqh) not worth our attention? This leaves us open to the reasonable criticism that we are rather parochial and provincial, still unduly local in the era of globalization. In short, this is a glaring, serious, and debilitating omission.' Randall Peerenboom is an example of that rare scholar and practitioner who actually has some knowledge of the indigenous legal systems in the country he specializes in, namely China. There does not seem to be any educational requirement or legal training to the effect that assures one who is proficient in international law is also proficient in comparative law. An example of a good overview and introductory text in this regard is Werner Menski's Comparative Law in a Global Context: The Legal Traditions of Asia and Africa (Cambridge, UK: Cambridge University Press, 2nd ed., 2006).

[Travis Hodgkins]

Mr. Carnes--

As you can imagine, this entire subject weighs heavily on my mind since I'm in the midst of making the very decisions that you have already made. Thus, I can't begin to express to you how grateful I am for your advice and insights. I have taken the liberty of making public my thoughts about your advice because I have no doubt there are other students trying to make the same decisions.

Thank you for saying, "[F]ollow your heart; don't live for a resume. Life is not lived on paper." Far too often I think people come to law school to make the "big bucks" and loose sight of the fact that the knowledge and skills we acquire here in this particular ivory tower can permit us to live an extraordinary life.

Duoxie.

--Travis

[Travis Hodgkins]

Mr. O'Donnell--

I appreciate all of your comments on TLB! I also appreciate you pointing out how loosely I used the term "comparative law" in my post.

A foreign attorney in China, which is what I had in mind when I wrote that, does engage in a form of comparative law since he/she has to be familiar with the ever evolving legal system in the PRC. However, the practicing attorney is obviously not going to be a scholar in comparative law (even though folks like Steve Dickinson at China Law Blog probably are considered or should be considered scholars in this field).

--Travis

[Patrick S. O'Donnell]

Travis,

I understand. I don't think I intended to suggest otherwise about a 'foreign attorney in China,' as I would agree that he/she is engaging in a form of comparative law as described. I just wanted to respond in regards to the quote, in which reference is made to an attorney being a '*master* at comparative law and is able to research the applicable laws in *multiple countries* that will apply to a single transaction.' [emphasis added] I take your point about the difference between a practitioner and a scholar.... Several of the bloggers at Opinio Juris, for instance, are both scholars and practitioners, but I've noticed, with a couple of exceptions, little evidence of facility with comparative law. In other words, it seems there's international law and domestic law, the latter frequently in sole reference to such law in a few European states and U.S. municipal law. There does not seem to be a real understanding, let alone appreciation, of other, indigenous legal systems.

[Travis Hodgkins]

Mr. O'Donnell--

Thank you for clarifying and I hope to return the favor now. I am not certain what you mean by "a real understanding...of other, indigenous legal systems." First, I doubt that there are any truly autochthonic legal systems; it is probably best to describe a system of law as being heterochthonic. For instance, the USA system of law is derived from English common law and China's modern system of law is derived from German civil law. Attempting to discover an untainted, truly original form of law would be an attempt to discover the progenitor of all law and that would undoubtedly lead to a digression in either theology or philosophy (or possibly even solipsism). All attorneys have an appreciation for and an understanding of the law's origin, including the legal systems of other countries.

The international attorney IS a master of comparative law and is able to research the applicable laws in multiple countries that will apply to a single transaction. Until you've sat down as an American attorney and tried to initiate an IPO in Hong Kong for a Chinese company with backers and assets in Canada, you can't really appreciate the international attorneys job, contending with a vast array of laws from multiple countries as well as common, public, and private international law. This is just one example and it's not an extreme example. There is a huge difference between writing a book about a country's legal system and being able to utilize a country's legal system in combination with the laws from other countries.

Moreover, it's an affront to every attorney-- particularly, international attorneys-- to say that they do not have any appreciation for comparative law. Granted, there is a distinction between domestic law and the many forms of international law, but that doesn't support the inference that American attorneys lack an understanding of or an appreciation for the legal systems of other nations. All of the attorneys (and law students) that I know have spent a good deal of time learning about the legal systems of other countries. Obviously, some will devote more time than others but, in the end, it's inescapable. As I stated before, legal systems are dynamic and influenced by the legal events in other countries, and practitioners and scholars are continually looking to other countries for inspiration and guidance. You also have to keep in mind that attorneys are specialists, and one area of law will require an attorney to know about another country's system of law more than some other area of the law-- in this sense the law is provincial because it's practical! When you get a divorce, do you really care if your attorney knows what the divorce laws are Mexico?!

Attorneys that are practicing in foreign countries have devoted a great amount of energy and time to the understanding of at least two systems of law. Those that practice in China-- which I keep referencing because that's what I am familiar with-- know the legal system in China and probably have a different (if not greater and more realistic) appreciation for the system's nuances than some academic who wrote a book on the subject. However, that's not to say that practicing foreign attorneys do not read the books written by the academics, but you have to keep in mind that the academic was undoubtedly consulting a practitioner.

Part of our legal education is the attainment of research skills, and these skills apply to comparative law as much as they do to any other field of law. The only parochial element of the law is the training, which is tucked away in the academy and kept from those unwilling or unable to jump through the necessary hoops, and this is something I would like to see eradicated someday, but that is a different subject.

--Travis

[Patrick S. O'Donnell]

By 'indigenous,' I was not meaning to refer to some 'essentialist' legal system (hence 'truly autochthonic') bereft of influence from other legal traditions. I was rather using it more liberally, as is the case when one referes to indigenous peoples, evidence for which may not be definitive, thus serving as a term of art or shorthand.

I would in fact fault academics more than practitioners....

It is simply not the case that many scholars or practitiones are familiar with, for example, Islamic law, as that is an oft-heard complaint from within the legal community itself. Same would go for American Indian Law, Law in Hinduism, African laws, etc. Always exceptions to the generalization, but the generalization holds nonetheless.

Your reply strikes me as overwrought

Re: 'Moreover, it's an affront to every attorney--particularly, international attorneys--to say that they do not have any appreciation for comparative law.'

That is not an accurate rendering of what I in fact said: please re-read what I in fact said.

Re: 'There is a huge difference between writing a book about a country's legal system and being able to utilize a country's legal system in combination with the laws from other countries.'

Nothing I said stated or suggested otherwise.

Re: 'attorneys are specialists, and one area of law will require an attorney to know about another country's system of law more than some other area of the law--in this sense the law is provincial because it's practical!'

This is rather condescending. Having contributed for about a month now to the 'research canons' project at PrawfsBlawg which is categorized largely by the principal areas of specialization in the law, I'm keenly aware of this fact and was not something I was quibbling with in the least.