Q&A with Law Professor Marcus Hurn

Marcus Hurn has been a New Hampshire attorney for 33 years and a professor at Franklin Pierce Law Center, now the University of New Hampshire School of Law, for 30 of those years. Here he shares some of his thinking on the evolution and teaching of law and of the rebranded law school.

Q. Has the affiliation with the University of New Hampshire and the name change had much effect on things here?

A. Well, so far not for me. The lady who answers the telephone was amazingly quick at catching on to it. There’s been a little turmoil with e-mail addresses. But people seem to have switched over pretty easily.

Q. How do you feel about being part of a big organization, as opposed to being part of a small, independent law school?

A. We’re still a separate corporation and we will be until the boards of trustees decide differently.

And I’m hoping that as the university learns more about us, they will see that our private, independent legal status is advantageous to them.

It’s the only unit they have that is not subject to system-wide regulations for damn near everything in the university system.

It’s understandable. There’s so much money, so many entities, so much politics. It’s sort of like Pentagon contracting. But they don’t need to run the law school that way and I’m hoping we will never have to.

Q. Does it make the University of New Hampshire a more “complete” university, now that it has a law school?

A. I assume that was a major part of the motivation. You can call yourself a university, but if you don’t have one of the learned professions represented, it’s a lot harder to say that with a straight face.

Q. Do you think law is becoming less of a profession and more of a business?

A. Even 33 years ago a lot of lawyers operated in a way that necessarily you would think was more like a business. Even then there was a great deal of specialization. Some kinds of practices are high volume, low margin, lots of paralegals. There’s more of that. Clients, particularly business clients and insurance companies, are pretty aggressive now about monitoring fees, checking bills, limiting expenses.

Q. Is the piling up of billable hours and increasing the profit margins outweighing the pursuit of justice? Or has it always?

A. Although it’s honorable work and necessary work, real estate closings aren’t the pursuit of justice. And a lot of very important things that affect people enormously you don’t think of as the pursuit of justice.

If you do estate planning right, nobody is wronged and no one needs to sue and seek justice. More than half of the legal profession is transactional work.

I teach my students business and commercial law. We’re trying to help people achieve things that are worthwhile, but it’s not the same as the Perry Mason image.

Q. Is international law a growing trend and are the law schools up to speed in preparing students for that?

A. I know just regular corporate guys who have clients in Europe and are constantly representing people.

You know, we’re a country that exports and imports a lot and want to do more, at least in terms of exports, and it’s no longer the case that everybody’s all comfy just doing it the American way.

Some attempt to get people to realize there’s another layer, an international layer that includes potential complications, that’s kind of trendy in law school curricula.

We’ve been doing it a long time, partly because intellectual property has always been international. You can’t do serious intellectual property law for anybody that has a major market and not focus on other countries’ laws and international rules.

We introduce our students in the first year to a thing called the Convention on the International Sale of Goods. That’s just buying and selling across international boundaries. And it’s somewhat different from U.S. law.

Q. Is it more, or less, bureaucratic?

A. It is, in most respects, a little more like what most people think the law is. The American law on sales of goods has a little slack in the joints, partly because businessmen adapt as the transaction goes along.

But when the international transaction law was put together, a lot of countries said, “Look, we don’t have a very good cadre of trained people in either our government or our businesses, and we need to know that when we make a deal and we sign off on it that it’s not going to drift off into something else without renegotiations.”

So in the United States, a lot of things that are written can be amended essentially by the behavior of the parties. Somebody at a low level can perhaps unwisely change things a little bit and the Convention makes it harder to claim something was different from what was originally agreed to.

Q. One of the things that gives conservatives in this country fits is when the U.S. Supreme Court reaches across “the pond” and finds a ruling from a European court or even a court on another continent that buttresses the argument it has deduced from our own Constitution. What do you think about that?

A. Oh, getting stirred up about that’s just silly. It’s either silly or its cynical politics.

The United States has been doing that in field after field for years. In fact, over the length of our history it has been more the norm, and in lots of very ordinary business and commercial things.

Just yesterday I was teaching about letters of credit, which is a technical banking device that is pretty damn important for the economy.

In one paragraph, there’s an English case, in another paragraph there’s a case from Ontario. Now, of course letters of credit are used all over the world and it’s fairly important to be reasonably consistent with modern banking practices. But nobody’s saying those decisions are binding.

There was a long period in our history when practically every important case that was decided was an English one.

Now I’d be pretty upset if those opinions ended up being sort of nose counts or any suggestion that the U.S. Supreme Court had any obligation to follow the reasoning of some other court.

But I think it’s a little bit silly to say the only people who can think about a particular issue or at least can be quoted about a political issue are people in the United States.

Q. As you view the Constitution, both as a citizen and as a law professor, do you think of yourself as somewhat conservative, somewhat liberal or how do you view original intent?

A. Original intent is not super literal. If you’re super literal, we couldn’t even have an air force, because the Constitution doesn’t contemplate air power.

And I do think that some of the generalities (are because) a broad range of men affected by the 18th Century Enlightenment saw a principle and they used general language to embody that principle and had no idea of all the different ways it might ramify in the future.