Stepping out of the European Shadow: Why Comparative Law in the United States Must Develop Its Own Agenda

Abstract

In the United States today, comparative law does not play nearly as prominent a role in teaching, scholarship, and practice as one would expect in our allegedly cosmopolitan age. Perhaps the discipline is not in an outright crisis but it surely does not occupy a prominent place in the American legal universe either. It is quite common to blame the parochial attitude and lack of international sophistication of American lawyers for the marginal role of comparative law. But, as a matter of fact, interest in international legal subjects, ranging from human rights to foreign trade law and international litigation, is currently high and growing fast. Course offerings in these and other specialized areas have mushroomed,1 the number of international journals is staggering, and in January 1998 the AALS held yet another annual meeting trumpeting the globalization of law. Only classic comparative law, it seems, has somehow missed the boat. This indicates that we, the American comparatists, have simply not been able to sell our product well to our students, our academic colleagues, and certainly not to the practitioners. A major reason for this failure is that the product in its current form is not nearly as attractive as we would like to think. In large part, this is because the design of the product is badly flawed. It is essentially a copy of a foreign model which suffers from two fundamental ills: It is hopelessly out of date and it was never fashioned to fit either global or American needs. As a result, comparative law in the United States is both behind the times and far off the mark. In this essay, my main goal is a (partial) deconstruction of the traditional model of comparative law in the United States. I first briefly describe this model and its European lineage (I.). I then explain why its three major features neither reflect current global realities nor serve modern American needs (II.- IV.). I conclude that the