In a post in December 2012, I had promised that I would follow up with the answer to that question, which was taken from Professor Mathias W. Reimann’s 13th Ernst Rabel Lecture, delivered at the Max Planck Institute for Comparative and International Private Law in Hamburg. Following up took a bit longer, than I had thought. However, the lecture has now been published in The Rabel Journal of Comparative and International Private Law (RabelsZ). The title of the published article is somewhat less provocative: it now reads “The American Advantage in the Global Lawyering.”
In his scholarly (in the best sense of the word) and very carefully argued article, Professor Reimann* discusses his basic claim, namely that American-style lawyering has come to dominate global legal practice, not only because of the political and economic dominance of the United States, the establishment of English as the global legal language (which he acknowledges is both a cause and an effect of the prominence of US-style lawyering), but also because “American-trained jurists enjoy an advantage in global lawyering because their conception of law fits the contemporary global legal order better than the continental European (and more broadly, civil law) understanding. In particular, the American conception of law is inherently more pluralistic, pragmatic, and political. This makes lawyering in the age of globalization easier for those trained under the US-model than for others.”
The article is well worth reading, if you would like to reflect upon the international practice of law. It provides a lot of insight, but at the same time, there is this tongue-in-cheek tone which makes it also a fun read. I will try to summaries it here, for the benefit of my readers, because it has only got one downside: it runs to 36 pages.
Professor Reimann develops his thesis in three steps. First, he contrasts a “classical” and a “postclassical” conception of law. In a second step, he demonstrates why American lawyers with their “postclassical programming” are better equipped than their European colleagues with their “classical mindset” to function in a global environment, and in a third and final step, he looks at the reasons behind the American advantage, for which he offers two possible explanations: “dumb luck and adaptation for the post-modern condition.”
In Reimann’s view, the need for American lawyers to develop a postclassical conception of the law was driven by several factors, which overturned the classical conception of the law, and which he labels as follows: (i) the farewell to unity, (ii) the abandonment of a systematic order, (iii) the blurring of categories, (iv) the questioning of rules, (v) the instrumentalization of law and, finally, (vi) the shift from law in the books to law in action. The labels which he has chosen for these factors are not all that flattering (at least not to a civil lawyer like myself, with a classical mindset). Reimann fully acknowledges that, whilst his focus is on the American advantage in the global lawyering, there are many American disadvantages as well.
The factors which, on the other hand, characterize the classical conception of law in the European tradition, are identified as follows: (i) national uniformity, (ii) systematic structure, (iii) clear demarcations, (iv) authoritative rules, (v) autonomous law, and (vi) law as decision-making by rules – doesn’t that sound much more positive?
As a result of the situation they find in their home jurisdiction, American lawyers, according to Reimann, are much more adept to handle pluralism, to tolerate incoherence, to work with fuzzy categories, to use rules in multiple ways, to employ the law for policy goals, and to create solutions for concrete problems – all that makes them letter global lawyers.
So which of the factors, dumb luck, or adaptation to globalization, explained the American advantage? Reimann first notes that the two are not mutually exclusive, and then finds that evidence for the first is much clearer than that for the second: “[T]he advantage in global lawyering just fell into the American lap, so to speak. It is not something American lawyers earned. (…) American lawyers have simply had the good fortune that their own, domestic environment conditioned them in a way that turned out to be very helpful in the global age.”
However, there is hope for others as well, in particular for Indian lawyers, who might be next to join the rank of prominent global practitioners – “after all, they too are common lawyers, in addition, they do have a strong federalism background as well as abundant experience with a fairly chaotic legal system.”
And what about the Europeans? They could either try to replicate the American advantage as best they can. On the other hand, they could play to their strenghts: “They would then have to reflect more deeply upon the classical approach’s superior ability to maintain order, clarity, and certainty in the law which are important values also in the global context.* In that case, European jurists have to decide and articulate how these strengths can be used to counter, or better yet: to complement, the American advantage in global lawyering.”
* Mathias W. Reimann is the Hessel E. Yntema Professor of Law at the University of Michigan, Ann Arbor. He received his basic legal education in Germany (Referendar, 1978; Assessor, 1981). He is a graduate of and holds a doctorate (Dr. iur. Utr., 1982) from the University of Freiburg Law School, where he taught for several years. He is also a graduate of the University of Michigan Law School (LLM, 1983).
** In his footnote here, Professor Reimann mentions the “Law Made in Germany” initiative….