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Coper, Michael --- "Legal Knowledge, the Responsibility of Lawyers, and the Task of Law Schools" [2006] ALRS 2

Last Updated: 7 May 2010


Opening Plenary Session: Legal Knowledge
5 July 2006

Legal Knowledge, the Responsibility of Lawyers, and
the Task of Law Schools

Paper presented by

Professor Michael Coper
Dean and Robert Garran Professor of Law
Australian National University
Chair, Council of Australian Law Deans

Legal Knowledge, the Responsibility of Lawyers, and
the Task of Law Schools

A former colleague of mine recently asked me whether being Dean left me time for any serious legal research and writing. Putting aside any question of intellectual impairment caused by decanal duties, and assuming also that one is on the right side of that well-known equation in which accumulated experience keeps one just ahead of one’s biological decline, I mentioned that I had gravitated to shorter, more reflective pieces. In particular, I had just written a piece of extreme brevity—only a page and a half of printed text—with which I was nevertheless very pleased. It explored the phenomenon of deep antinomies in the law, particularly the tension between the concept of law as an autonomous body of knowledge and the notion of law as comprehensible only by reference to its context, especially its political, social, economic, and historical context.[1] He said to me, ‘Why am I not surprised? The theme of all of your writing seems to be the irreconcilable tension between competing ideas!’

He had in mind, I think, what I have described in various places as the ‘intractable dilemma’ of the judicial process: the idea that judges in courts of final appeal cannot abandon legalism to such an extent that it endangers their legitimacy, nor embrace it to such an extent that it endangers their credibility.[2] But my first thought was, he is saying that I am, at best, chronically ambivalent, or, at worst, hopelessly indecisive. My mind started racing: is there a risk, in seeking balance, of saying nothing? Is knowledge advanced by the assertion of strong views that provoke reaction—a kind of Hegelian thesis/antithesis/synthesis—or by taking smaller, more qualified steps? Then I realised that here, too, was another tension, a tension between two different concepts of the advancement of knowledge, two different ways of assessing my perceptions of antinomies and dilemmas in the law. I was trapped! Trapped by empathy for competing points of view, and by a kind of meta-tension between alternative ways of thinking about the significance of that competition!

That, however, is evidently how I see the world, and it provides a convenient starting point for my commentary on legal knowledge: how it is acquired; who has it, and for what ends; why it is important; and what the implications are for teaching and research. For me, the underlying questions are, what is a lawyer? What is the purpose of a lawyer? What, indeed, is the discipline of law? And, most importantly, how can we, as law teachers, produce lawyers who add value to society and make the world a better place?

Framing the questions in terms of lawyers immediately brings my theme of antinomy and ambivalence to the fore. Lawyers are at once lionised and demonised; simultaneously seen as brave champions of the rule of law and yet as clever exploiters of loopholes and purveyors of sharp practices; widely admired as members of a noble profession, yet universally mocked as the butt of ‘lawyer jokes’ that date back to antiquity;[3] clearly respected for their analytical skills and clear thinking, yet often belittled for their focus on process rather than outcomes; and held generally in high esteem (and engaged in a career to which high demand suggests many aspire), yet stereotyped as obstructors rather than facilitators, parasites rather than producers of material wealth, pragmatists rather than men and women of principle. No doubt all of these images are partly true and none of them is wholly true. But the cavalcade of opposites should give us pause to think about what it really means to be a lawyer; how we can come closer in practice to the ideal type of a lawyer that we might agree to admire; and whether what we are doing in our law schools is helping to break down the stereotypes or to perpetuate them.

We face many dilemmas in educating lawyers, none more striking than the dilemma of whether our primary task is training lawyers for professional practice or educating them in the intellectual discipline of law. This will sound a little odd to our American keynote speaker, given the more professionally-focused graduate legal education in the US, but this dilemma—fuelled in Australia by the high demand for entry to law school from those without a clear desire to practise—is, I think, one of the easier ones to resolve. At the end of the day, the two perspectives are, I think, profoundly consistent; there has never been any doubt in my mind (despite my unflattering self-portrait as a person prone to paralysing introspection) that, whatever one thinks of the tension between law as having meaning and integrity as an autonomous body of knowledge and law as unintelligible if divorced from its context, the effective practice of law is informed and enhanced by a deep understanding of its history, its development, its role, and its impact. To understand an abstract rule in the context of its historical development can of course be critical to an argument that the values it embodies are no longer relevant or acceptable, and thus to a prediction of a shift from the law as it appears to be to the law as it may become. A practitioner without these kinds of insights—without, generally speaking, the sense that history used intelligently is liberating rather than constraining[4]—is likely not only to have a superficial grasp of the law but also, as a consequence, a significantly reduced capacity to render to a client the best or most complete advice. I therefore have no difficulty in addressing my remarks to the education and training of lawyers for entry to a profession.

I like, in any event, to think of lawyers as members of a profession. True, the possession of specialised knowledge—one of the hallmarks of a profession—has all the potential to be highly exclusionary, and to allow a legitimate concern about standards to transform itself, sometimes almost imperceptibly, into the covert protection of vested interest.[5] It is exactly 100 years since George Bernard Shaw made his famous observation that ‘all professions are conspiracies against the laity’.[6] But it is the other great hallmark of a profession on which I want to focus: the idea that the members of a profession have not simply won the right to exploit their specialised knowledge for their own personal material gain, but that they have a higher duty of public service.[7] Although this is standard learning in much legal writing and many law school courses, from basic courtroom ethics to more sophisticated and more amorphous notions of professional responsibility, it is surprisingly elusive. I want to try to tease out a few strands of the idea, and give it a bit of an admittedly personal stamp.

I have written elsewhere[8] about the responsibility of the legal profession, from individuals to organisations, to contribute to the continuous improvement of the law and the operation of the legal system; to have a pervasive ethos of the promotion of law reform and the advancement of social justice; not to allow this ethos to be quarantined and owned exclusively by professional law reform agencies and the like, but to take every opportunity in the course of a life in professional practice to use one’s special knowledge and skills for the common good; and, hopefully, at the end of a career of altruistic service to the community, to leave the law and the legal system in better shape than one found it. I do not pause to defend this view, which, when stated in summary fashion, probably sounds hopelessly idealistic, if not off-puttingly evangelical. However, I do believe that it has significant implications for how we think about legal education, and about the formation or acquisition of this law reform and social justice ethos.

In my experience, significant numbers of beginning law students bring to their law studies a high degree of idealism and aspiration to use the law, in ways unknown to them and, at that stage, unknowable by them, to make the world a better place. At my law school, this correlates highly with an aspiration to gravitate to the international stage, but is by no means unique to the seekers of world peace. The challenge for us is, in my view, to harness that idealism, to nurture it, and to channel it into practical pathways—not, as often seems to be the case, to kill it. This brings me to one of my favourite dilemmas.

It is beyond doubt, in my view, that the first requirement of effective lawyering is professional competence. This is self-evident in relation to day-to-day advising or the day-to-day facilitation of transactions. But even in the realms of law reform and social justice, nothing undermines the construction of a case for change, or indeed one’s credibility in making it, like a poor or insubstantial foundation.[9] Effective lawyers have a sound knowledge base, at least of general principle, combined with a sound understanding of the dynamics of legal reasoning; the capacity to research the relevant legal material; the analytical rigour to make the necessary judgments about relevance; the creativity to analogise to new situations; and the precision to communicate advice or recommendations with clarity and persuasive force.

Sometimes this is characterised as learning to ‘think like a lawyer’. Years ago, I came across a nice definition of this beguiling idea. Thinking like a lawyer, the author said, was ‘taking a positive delight in using logical reasoning to reach conclusions that offend one’s humanitarian instincts’.[10] The cleverness of the definition should not obscure (though perhaps it only underlines) its ominous warning. There is a real danger that inculcation into a legal culture—learning the rules of the game—can divert the initiates into a love of legal reasoning for its own sake. Seduced by the search for elegance and coherence and obsessed with technique, they lose sight of the ends and purposes which the law is intended to serve. But herein lies the dilemma. To present legal doctrine as an artificial construct, the certainty of which is only an illusion, and which is in reality the product of social forces, hidden values, and judicial discretion, is to court the opposite danger that the neophyte will lose interest in, and even the capacity for, that rigorous analysis which is the necessary underpinning of professional competence. Effective lawyering is a craft of the highest order; yet it requires a challenging unity of opposing ideas: the immoveable object of law as an autonomous body of knowledge and the irresistible force of law as comprehensible only in its social context. One has to simultaneously construct and deconstruct; positivism meets postmodernism, and they must live happily ever after (aspiring, perhaps, to civil union rather than marriage, at least if one is located in that most legally and constitutionally interesting of all Australian jurisdictions, the Australian Capital Territory).

What, then, is a lawyer, by the time he or she emerges from the schizophrenic world of law school?

At my law school, we are about to embark upon a discussion of the attributes we want our graduates to have—a matter of obvious importance, yet often neglected, taken for granted, or buried in jargon. Without pre-empting that discussion, and speaking in broad terms, I see four major attributes as desirable. First is the knowledge base, the attribute which has perhaps dominated Australian legal education. Certainly, it has dominated the accreditation requirements for Australian law schools, and I have observed over my career many colleagues who have felt a compulsion, whether driven by external demands or internal impulses, to ‘cover’ certain material at the expense of mature reflection. This is in part the old chestnut of breadth vs depth, but it runs the risk of being a parody of the kind of knowledge one needs to be an effective lawyer. A knowledge base is important—without it, even the greatest virtuosity in the exercise of legal skills and legal techniques will be an empty shell—but I mean knowledge that engages the antinomy between law in the abstract and law in context, knowledge that has been constructed, deconstructed, and, most importantly, reconstructed. This is not one-dimensional knowledge, not some superficial statement of propositions of law as immutable, coherent and internally consistent, but is knowledge that incorporates an understanding of the processes of legal change and the impact of social change. It is knowledge that combines craft and insight.

The second attribute I would label as skills. Although, in recent times, the enhancement of legal education has been seen largely in terms of the need for a shift from an emphasis on knowledge to an emphasis on skills, this is not as obvious as it seems. If we understand knowledge in the sophisticated sense which I am advocating, it is already the product of many skills: skills, for example, of selection, analysis, synthesis, and critical assessment. How, pedagogically, we can best impart these skills is a matter of much debate. But, generally speaking, discussion of the skills one needs for effective lawyering usually focuses on the more generic skills of communication, negotiation, advocacy, and the like, often quarantined into separate practical legal training programs. Other skills, like the skills of legal research and creative problem-solving, either underpin or overarch the two categories of knowledge and skills; at the end of the day, the demarcation between the categories is perhaps contestable. In any event, some combination of knowledge and skills, whatever those categories embrace when taken separately, is an uncontroversial pre-requisite for effective lawyering.

The third attribute I would describe as a critical mindset. Again, this is integral to the development of deep knowledge,[11] but it is useful, I think, to conceive of it as a separate attribute. It needs careful nurturing, but here is another dilemma. I always encouraged my students to be prepared to disagree with my analyses and opinions on constitutional law, in other words, to exercise their own judgment. One of my better students once said to me: ‘You have put me in an impossible position. If I agree with you, I cannot demonstrate that I have developed my own independent view and critical mindset. Yet if I disagree with you, I am meekly following your instruction to do so. What can I do?!’ I was delighted. I said to the student, ‘Congratulations, and welcome to my world of intractable dilemmas and piquant paradoxes’.

The fourth attribute is, in my view, the most important, though, as I have said, it cannot be effectively put to use without the solid foundational base of the other three. It goes to values.[12] It is, as I have foreshadowed, the ethos of law reform, social justice, and the continuous improvement of the law and of the operation of the legal system. It converts the critical mindset, as applied with high level skills to a sound knowledge base, into a positive and constructive force for tangible improvement. It enables lawyers to really add value to the society they serve and which gives them a privileged position. At the risk of sowing a seed of doubt in your minds about whether I could sustain a claim to be, as I think I am, more secular than spiritual, can I also say that it may assist lawyers to find meaning in their lives. Perhaps it might even turn around those negative stereotypes of lawyers; and those pesky lawyer jokes might, one day, become relics of a bygone era.

In advocating this, I would not want to be taken as diminishing the importance of the pivotal role that lawyers currently play in their capacity as competent legal advisers. Business transactions would not be secure, the intentions of the makers of wills and contracts would not be realised, and officials may not stay within the boundaries of legality, without the assistance and scrutiny of competent and vigilant lawyers. The importance of lawyers to the orderly conduct of human affairs, and to observance of the rule of law, should never be underestimated. Without a class of experts knowledgeable in and faithful to the fundamental values of the law, society could descend into chaos, and turn not on due process and equality but on privilege and raw power. Perhaps this is insufficiently understood in the community at large. Certainly, it has not been enough to counter the negative images of lawyers. I should add as well that this function of lawyers is necessary but not sufficient to promote equality and combat privilege; lawyers may be able to provide a degree of certainty, transparency and fairness in the day-to-day application of the rules of the legal system, but can hardly be expected to counteract the realities of economic power and political processes.

In any event, it seems to me that the role of lawyers in upholding the status quo, important as it is in the ways I have mentioned, is not enough. To return to my theme of antinomy and dilemma, lawyers must simultaneously challenge the status quo. Working for continuous improvement in the law and the operation of the legal system—and, in doing so, deploying the special knowledge and skills that ground their professional status—should be thought of as the other component that completes and truly justifies the bestowal of that professional status. It may be thought of as part of the discharge of the lawyer’s higher duty of public service.

I said earlier that I would not pause to defend this view. I have sought to do that elsewhere.[13] I rather want to focus on the implications for legal education. But I will acknowledge that what I am urging will often be contentious in practical application. It is one thing to use one’s knowledge and skills to seek to improve a technical area of the law by participating in or making a submission to some official or quasi-official investigation of the matter. It is another thing to take a stand on a highly contested and controversial matter, in which the legal issues are engulfed in an intense policy and political debate. We may think, though we may not be able to objectively establish, that there is merit in Bills of Rights; that our traditional civil liberties represent fundamental values of the legal system and are unduly and unnecessarily put at risk by a regime of control orders and preventive detention; that our current treatment of refugees is bad policy and bad law; or that the recent Commonwealth override of the ACT’s recognition of same-sex civil unions is discriminatory and inconsistent with basic human dignity, let alone with self-government. As lawyers, we have no monopoly of wisdom on these matters, but we can add value to the debate. In appropriate circumstances, we can urge fidelity to the rule of law or its underlying values, or we can urge the removal or renovation of bad law. In either case, it is not enough for the keepers of special knowledge about the law and the holders of special legal skills to be passive bystanders.

Legal education has not adequately embraced these goals. It has generally stopped at the acquisition of legal knowledge and has not addressed its deployment. I understand why. It is a challenge to get even to that first step in the time available. There is the fear of eroding hard-nosed competence with the sloppy thinking of woolly idealism. There is the fear of trading the safe neutrality of the law (riddled as that is with the values of a previous era) for the unruly partisanship and politics of how it might be improved. There is a feeling that it is all too hard, too dangerous, and not the province of law school.

In my view, it is the province of law school, as I have argued. I put aside all ambivalence, antinomy, tension and paradox to say that there has to be more to being a lawyer than the possession of knowledge and technique. As we have seen in the debates about other perspectives in the curriculum, past and present—gender issues, international and comparative dimensions—that ‘something more’ has to be integrated rather than marginalised. It is a challenge that I urge upon all law schools, engaged, as we are, in the great common endeavour of educating lawyers for membership of a noble profession.

I have been speaking in general terms, consistent with either a local or a global perspective. You will take my message in the way all listeners filter what they hear through their own preconceptions. But my perspective is essentially global (although, dare I say, there is a potentially rich analysis in the tension between the two). I have just come back from discussions in Washington between an Australian delegation and the American Bar Association about the mobility of lawyers between the two countries. To speak of a global legal profession may tend to overstatement, but there are global or transnational trends at many levels. Mutual practice rights were the immediate concern, but it was interesting to observe the palpably serious concern of the ABA with fundamental issues like the rule of law and the independence of the judiciary on a worldwide basis. And in case you think that this is all a step removed from legal education, mutual practice rights hinge to an extent on the recognition of legal qualifications. When one country drills down into the legal education and training of another, I have no doubt that the portability of a degree will bear a direct relationship to the international, transnational, and comparative dimensions of its curriculum, and to the extent to which it embraces the ethos and values of professional responsibility that have such powerful potential to unite and empower lawyers around the globe.

I should comment, however, on Dean Garth’s rather different spin on globalisation,[14] or perhaps not so much of a different spin as an additional twist, as he takes for granted the imperative for legal knowledge to embrace globalisation. But he pushes well beyond this with a healthy dose of realpolitik. Globalisation, he says, is not just about the spread of legal thought, but is a reflection of the realities of power. It is about the use of, say, human rights norms for political ends and as a foreign policy tool, by political elites who control the agenda, and in a way that exudes colonialism. It is not conspiracy, he says, but rather part of the nature and structure of domestic and global power and the conduct of international relations.

The scholarship of globalisation[15] touches and has implications for all disciplines, not just law, and it is hard to gainsay the importance of Dean Garth’s emphasis on the need for sociological study of the processes and outcomes of the globalisation of law. Moreover, I concede that the idea of the ‘march of progress through law’, let alone my pitch for lawyers to be concerned not just with the rule of law but with the rule of good law, is a highly romantic one, in which the noble aspiration of the ‘ought’ must confront the harsh reality of the ‘is’. But I maintain a steadfast faith in the power of ideas. I am not so naive as to underestimate the drive of economic forces, the weight of vested interest, or the impact of cultural relativism on the search for universal norms, but we have to believe in the power of ideas. We cannot just describe things as they are, important as that is to a proper understanding of the world and how it works. We must also have a vision of how things should be—a benchmark, a goal, a focal point for debate.

When I think of the power of ideas, I always take inspiration from the closing words of Oliver Wendell Holmes’ famous essay, ‘The Path of the Law’, which will be well-known to you as the brilliant precursor of legal realism. Speaking to students at the Boston University Law School over 100 years ago, he conceded that, for lawyers, the pursuit of material wealth was ‘a proper object of desire’, (and, for the avoidance of doubt, I do not seek to question that in my advocacy of an ethos of public service). However, Holmes went on,

To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. If you want great examples, read Mr Leslie Stephen’s History of English Thought in the Eighteenth Century, and see how a hundred years after his death the abstract speculations of Descartes had become a practical force controlling the conduct of men. Read the works of the great German jurists, and see how much more the world is governed today by Kant than by Bonaparte. We cannot all be Descartes or Kant, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.[16]

Very Holmesian—poetic, enigmatic—but tapping into the human spirit. Curiously, I find myself very much attracted to Holmes,[17] despite the frequent criticism that Holmes the great sceptic paid insufficient attention to values. Perhaps I am feeling the opposite pulls of another tension here, the tension between scepticism and faith;[18] in any event, on the question of values, and in the context of globalisation, I conclude by turning to a more contemporary source.

I had the privilege in Washington of listening to an outstanding speech at the annual meeting of the American Law Institute by Harold Koh, Dean of Yale Law School, on law and globalisation.[19] Koh’s theme was how, in the US, globalisation had been turned on its head since 11 September 2001, with dramatic shifts from foreign policy based on diplomacy to foreign policy based on force; from universalism in human rights to obsession with freedom from fear; from building democracies from the bottom up to imposing them from the top down; and from solving global problems through global cooperation to strategic unilateralism and antipathy to international law. Koh also saw this inversion of the US vision of international affairs mirrored in internal constitutional theory, with broad assertions of executive power, law-free zones like Guantanamo Bay, erosion of civil liberties, and growing distinctions between citizens and aliens. Then, after outlining the sharp opposition between national and transnational attitudes in the current Supreme Court, Koh made a plea for a return to the transnational perspective that had in truth characterised US law from the very beginning, and urged law schools to orient their students more comprehensively to the role of globalisation in law and the role of law in globalisation.

It is not my purpose to agree or disagree with some or all of Dean Koh’s substantive views, and I repeat my acknowledgement of the force of Dean Garth’s call for empirical studies of the structures and processes of globalisation; indeed, I believe that the two approaches can sit side by side. However, Dean Koh’s talk was a powerful example of the lawyer’s contribution to an important debate, and a powerful disavowal of the role of bystander. I was particularly struck by his response to a comment from Michael Greco, President of the ABA, who himself made a powerful plea from the floor of the meeting for lawyers to support the ABA in its quest to promote an independent, corruption-free judiciary as an ingredient of global democracy.[20] Dean Koh said, and I conclude with this quote, as it encapsulates the view I have advocated in this paper, only more briefly and more eloquently:

I do not believe it is our job to simply bless the status quo. We stand for principles about what the rule of law ought to be. As a law dean, I think that law schools are not just professional schools. They are institutions of moral purpose. We must speak up for the rule of law when someone is threatening it, because if we don’t, who will?[21]

Can I just repeat and endorse the central point for our collective enterprise as law teachers and legal scholars: law schools are not just professional schools, they are institutions of moral purpose. Let us endeavour to come to grips with all that that entails.

Professor Michael Coper
Dean and Robert Garran Professor of Law
Australian National University

5 July 2006

[1] 'Foreword to the Third Edition' in Stephen Bottomley and Simon Bronitt, Law in Context (The Federation Press, 3rd ed 2006) v-vi.
[2] Encounters with the Australian Constitution (CCH Australia Ltd, 1987) 419-422; 'The High Court and the World of Policy' (1984) 14 Federal Law Review 294, 298-301; 'Interpreting the Constitution: A Handbook for Judges and Commentators' in Tony Blackshield (ed), Legal Change: Essays in Honour of Julius Stone (Butterworths, 1983) 52, 60-65.
[3] Amy Ruth Tobol, 'Integrating Social Justice Values into the Teaching of Legal Research and Writing: Reflections from the Field' in Jeremy Cooper and Louise G Trubek (eds), Educating for Justice: Social Values and Legal Education (1997) 95, 102; Marc Galanter, Lowering the Bar: Lawyer Jokes and Legal Culture (The University of Wisconsin Press, 2005).
[4] See especially Enid Campbell, 'Lawyers' Uses of History' (1968) University of Queensland Law Journal 1, 22-23.
[5] Ivan Illich, Ideas in Progress: Disabling Professions (Marion Boyars, 1977).
[6] George Bernard Shaw, The Doctor's Dilemma (1906) Act 1.
[7] See generally Paul Boreham, Alec Pemberton, and Paul Wilson (eds), The Professions in Australia: A Critical Appraisal (University of Queensland Press, 1976); Roger Cotterrell, The Sociology of Law: An Introduction (Butterworths, 1984) 188-215.
[8] 'Law Reform and Legal Education: Uniting Separate Worlds' in Brian Opeskin and David Weisbrot (eds), The Promise of Law Reform (The Federation Press, 2005) 388.
[9] Hal Wootten, 'Closing Reflections', ANU Conference on Australian Lawyers and Social Change, September 2004, viewed 30/6/2006 at; Gary Bellow, 'Turning Solutions into Problems: The Legal Aid Experience' (1977) 34 NLADA Briefcase 106, cited in Steven K Berenson, 'Institutional Professionalism for Lawyers: Realizing the Virtues of Civic Professionalism', TJSL Legal Studies Research Paper No. 885577, n19, viewed 30/6/2006 at
[10] My record of this quote is buried in my pre-decanal archives (a euphemism for dozens of unmarked boxes of hard copy material of the pre-electronic era stockpiled inaccessibly under my house), and I would be grateful to any reader who can more easily source it for me.
[11] Nickolas James, 'A Brief History of Critique in Australian Legal Education' [2000] MelbULawRw 37; (2000) 24 Melbourne University Law Review 965.
[12] My paper is aspirational. For empirical work on the values of Australian law students, see Josephine Palermo and Adrian Evans, 'Australian Law Students' Values: How They Impact on Ethical Behaviour' (2005) 15 Legal Education Review 1; Adrian Evans, 'Lawyers' Perceptions of Their Values: An Empirical Assessment of Monash University Graduates in Law, 1980-1998' (2001) 12 Legal Education Review 209.

[13] 'Law Reform and Legal Education: Uniting Separate Worlds' in Brian Opeskin and David Weisbrot (eds), The Promise of Law Reform (The Federation Press, 2005) 388.
[14] Bryant Garth, 'Legal Knowledge', Keynote Address to ALTA Conference 2006, Victoria University, 5 July 2006.
[15] See especially William Twining, Globalisation and Legal Theory (Butterworths, 2000).
[16] Oliver Wendell Holmes Jr, 'The Path of the Law' in Collected Legal Papers (Harcourt, Brace and Howe, 1920; repr Peter Smith, 1952) 201-202 (also published in (1897) 10 Harvard Law Review 457).
[17] Michael Coper, 'The Path of the Law: A Tribute to Holmes' (2003) 54 Alabama Law Review 1077.
[18] Michael Coper, Encounters with the Australian Constitution (CCH Australia Ltd, 1987) 419.
[19] Harold Hongju Koh, 'On Law and Globalisation', Address to the American Law Institute, 17 May 2006, viewed 30/6/2006 at
[20] Comment on Harold Hongju Koh, 'On Law and Globalisation', Address to the American Law Institute, 17 May 2006, viewed 30/6/2006 at, transcript pp17-19. See also Michael S Greco, 'Advancing the Rule of Law: ABA's Efforts to Promote Stable Justice Systems and Economic Growth Around the World (2005) 91 American Bar Association Journal 6.
[21] Harold Hongju Koh, 'On Law and Globalisation', Address to the American Law Institute, 17 May 2006, viewed 30/6/2006 at, transcript p20.

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