Chesterman, S --- "The globalisation of legal education" [2009] LegEdDig 6; (2009) 17(1) Legal Education Digest 17

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The globalisation of legal education

S Chesterman

Sing J L Stud, July 2008, pp 58–67

Legal education has always borne an ambiguous relationship to the practice of law. Is a law degree a technical qualification, like carpentry or medicine, or a serious field of intellectual inquiry, like philosophy? The uncertain answer to that question is evident in the fact that so many jurisdictions require a professional qualification administered by the local guild — a pupilage, or a bar examination — as well as a degree in order to practice.

How one answers the question affects more than the careers of professional lawyers: it will have important implications for how one teaches in a law school. In Australia, for example, law is increasingly regarded as a kind of de facto Arts Degree — only about half of all law graduates actually end up entering the private legal profession. Singapore, by contrast, until recently treated law more as a technical qualification, with the government’s Third Committee on the Supply of Lawyers capping the number of law students at the estimated number of lawyers required in the republic. As a result, Australia has more than six times as many law students per capita — 28,000 compared to around 1,000 in Singapore, or one student for every 700 people in Australia as opposed to one for every 4,600 in Singapore — but has also embraced a more critical and theoretical approach to the study of law.

This article focuses not on how legal education is changing within any particular jurisdiction, but as a result of transformations across jurisdictions. The difference now is that the engine of change is not top-down politics but bottom-up practice. The transformations identified here have been led, first, by the profession, as changes in the way law is practised have necessitated a change in the way in which it is taught. Such influences are linked to developments in transportation and communication and the enmeshing of diverse economies embraced by the loose term ‘globalisation’. A second influence has been the more mobile student population that law schools confront, with immigrants, expatriates, and exchange students making up ever larger proportions of our classes. Thirdly, there has also been an intellectual shift, as those of us studying the law realised that there was far more to be gained from comparative analysis and, more recently, that something interesting was happening that transcended traditional jurisdictional analysis.

These influences have seen legal education move away from a purely local approach and through three broad paradigms, which one might term ‘international’, ‘transnational’, and now ‘global’ approaches to legal education.

Even with the standardisation of legal education in common law jurisdictions, the guild-like nature of the profession encouraged a focus not merely on national but on sub-national jurisdictions.

As interstate commerce and thus cross-jurisdictional legal practice increased, so did the need for lawyers to be familiar with other jurisdictions and, with the movement of professionals, to have a means of transferring accreditation.

As a modest advance on a purely local conception of the law, this international paradigm saw the world as an archipelago of jurisdictions, with a small number of lawyers involved in mediating disputes between jurisdictions or determining which jurisdiction applied.

Students within this period rarely moved. The vast majority studied in the jurisdiction in which they lived and within which they would practice, with the exception of those living under colonial rule who might be sent to the metropole for instruction and recruitment into the ruling class.

The term ‘transnational law’ is commonly attributed to Philip C. Jessup’s Storrs Lectures at Yale in the 1950s, where he used the term to embrace ‘all law which regulates actions or events that transcend national frontiers’. For present purposes, it denotes the shift in perspectives that came slightly later, in the 1970s and 1980s, where the world came to be seen not as an archipelago but as a patchwork of jurisdictions. The increasing mobility of capital and people required, and made possible, greater familiarity across jurisdictions.

Law schools began to offer summer programs abroad: in the United States in 1975, five American Bar Association (ABA)-approved law schools offered such programs; a generation later 120 law schools did.

Of more lasting significance was the increase in exchange programs and the rise in the number of foreign students admitted into law degree programs. The National University of Singapore, for example, today has one of the most extensive exchange arrangements in the world. More than a third of its undergraduate law students spend a semester or full year on exchange to one of more than 50 universities in 16 countries, with a corresponding number of students coming from abroad to study in Singapore.

The world has moved from archipelago to patchwork to web — both in the sense of the rise of the Internet as well as in the sense that commercial and other activities do not simply overlap at the edges but may be structurally and inextricably linked. Leading law firms increasingly present themselves as ‘global’, a status measured for the first time in 1998 when the American Lawyer first published its ‘Global Fifty’ list of firms ranked by size and revenue. This has been augmented by the increasing importance of non-traditional regulatory regimes that transcend traditional jurisdictional analysis. Whether it is compliance with ISO standards, controlling the behaviour of multinational corporations, or — to pick the most obvious example — regulation of the Internet itself, contemporary normative questions are frequently global rather than local.

To operate effectively in such a world, individual lawyers need to be comfortable in multiple jurisdictions, often simultaneously. In the words of one dean, we need to educate lawyers to be ‘residents’ rather than ‘tourists’ in new jurisdictions. At the same time, the students entering law school are different. In the course of the twentieth century, we moved from a tradition of a person having one job as a career to expecting to move jobs once or twice. We now deal with students who expect to move countries a few times, seeing themselves as part of a global elite in a worldwide market for talent.

Within legal education, the first mark of globalisation as distinct from transnationalisation was the move from exchange programs to double-degree programs across national jurisdictions.

Such double-degrees are essentially an extension of traditional exchange programs. More interesting intellectually is when law schools actually start teaching together.

The NYU School of Law and National University of Singapore Dual Degree Program, known informally as ‘NYU@NUS’, is a move in this direction. It offers master of laws degrees from each of the partner institutions, but is taught entirely in Singapore with NYU faculty flying out during the northern summer months; students then stay on to take courses with NUS and visiting faculty. What is novel about the approach is that it is a genuine collaboration between the two institutions, going beyond the exchange model to integrate courses into a whole that is greater than the sum of its parts.

When planning the program, it had been assumed that two broad categories of students would apply: first, Asian students who aspire to an American legal qualification but choose not to base themselves in the United States; and, secondly, American and European students who recognise the benefit of an NYU-brand degree, but see their intellectual or professional future in Asia.

Interestingly, we had assumed that the largest contingent would be in the first, Asian, category — in fact Asians made up less than half of the inaugural cohort. In the second year of the program, over 50 students from two dozen countries enrolled, once again touching every continent and with well under half from Asia itself. This reflects the extraordinary international interest in Asia as the future of globalisation, as well as the suitability of Singapore in general and NUS in particular as a gateway to that region.

The above description of the changing paradigms of legal education is not intended to suggest that the evolution that has taken place is either equitable or progressive in the political sense of the term. Indeed, on the face of it the exact opposite would appear to be true, as the ability of graduates to enter into the top jobs is increasingly tied to their ability to study in the most expensive or exclusive institutions.

In this context, a small ray of hope in the phenomenon of global legal education is that it is essential for lawyers to be able to cope with diversity. This offers an incentive — heavily litigated in the United States — for law schools to use scholarships to expand opportunities to candidates that are diverse in every sense. Nevertheless, the emergence of ‘global law schools’ predicted by Dean Tan in this journal recently will certainly be an elite phenomenon.

A second critique that might be made of the phenomenon and the way it has been described in this article is that what is occurring is not so much globalisation as Americanisation. Of the ‘Global Fifty’ law firms cited earlier, 30 of the top firms by size were American; when ranked by revenue all but seven were. Within academia, one can see the shift of English-speaking educational pedigrees from Oxbridge to the United States (for example within the faculty of the National University of Singapore) as well as the gravitational effect of US institutions on pedagogy and US journals on research.

The US model of legal education has also exerted its own pull, clearly influencing reform initiatives in Japan and Korea, which have moved to adopt JD-style graduate law degrees. The same may happen in Australia, where the University of Melbourne has adopted a similar approach.

Comparable developments appear to be underway in Hong Kong and the Philippines, where the JD is offered alongside the LLB.

Nevertheless, programs like NYU@NUS also exemplify the limitations of the US model — and a recognition (by Americans and others) that a truly global legal education requires not simply the exporting of US ideas but a genuine engagement with the people and the places that make up today’s global profession.

As an Australian educated in Europe working for an American law school based in Asia, these reflections are of more than academic interest. The transformations driven by changes in the practice of the law, by the types of students pursuing degrees, and — somewhat belatedly — by research developments in the loosely defined area of ‘global law’ have radically changed the nature of legal education. This is true even if not all law schools have recognised this, and these forces are going to continue exerting pressure as the notoriously protectionist world of lawyers becomes exposed to market forces.

One constant is that basic law degrees will remain within the province of individual jurisdictions. (Similarly, admission to practice will continue to be controlled at the jurisdictional level — though there will be pressure from industry to liberalise the recognition of foreign-trained lawyers.) Nevertheless, the push for standardisation in the global market for legal talent will encourage more states to move in the direction of an American-style JD graduate law degree. England will probably remain an outlier with its three-year undergraduate programme, but a higher proportion of its students will seek graduate qualifications elsewhere. The content of the basic law degree will continue to emphasise the traditional subjects, but the move away from the memorisation of black-letter law will become irresistible: faculties will seek ways to ensure that their graduates are both intellectually and culturally flexible, capable of adapting not merely to new laws but to new jurisdictions. Comparative and international subjects will receive greater emphasis, with comparative and international perspectives also being introduced to a wider range of subjects.

In addition, at least some international experience will increasingly be seen as essential to the practice of law at the upper echelons, with more law schools offering exchange and double-degree programs. Early collaborations were transatlantic, but many future tie-ups will focus on Asia, recognising the important role that Asia now plays in economic terms and the role it will assume — eventually — in political and cultural terms. A second locus will be the Gulf, offering enormous financial resources but less conducive to genuine partnership given the dearth of English-language scholarly institutions.

Law’s ambiguous status as both a professional qualification and a subject of serious research has seen it evolve fitfully, driven by the demands of the profession and the needs of students, with pedagogy often being more ex post justification than forward looking agenda. It is an exciting time to teach law, but an even more exciting time to study it.