A-Khavari, Afshin --- "The Opportunities and Possibilities for Internationalising the Curriculum of Law Schools In Australia" [2006] LegEdRev 5; (2006) 16(1&2) Legal Education Review 75

THE OPPORTUNITIES AND POSSIBILITIES FOR INTERNATIONALISING THE CURRICULUM OF LAW SCHOOLS IN AUSTRALIA

AFSHIN A-KHAVARI*

I  INTRODUCTION

A common concern of the legal profession and academic community is the extent to which emerging lawyers need to have an internationalised education. The increasing numbers of private and public organisations operating internationally are no doubt driving such needs. The need to look beyond one’s borders seems more urgent and apparent when one considers how power is globally dispersed. For instance, decisions of the United States Federal Government could potentially have more impact on domestic legal and political strategies of many nations around the world than what their own government’s might do. Human Rights Watch, Amnesty International, and Greenpeace appear to have greater powers of persuasion in developing domestic policies of some nations than the individual or sometimes the collective efforts of states. It is arguable that legal education which is not internationally contextualised can develop lawyers with significant blind spots in terms of how change really takes place in the world.
Many conferences,1 special issues of journals,2 books,3 reports and policy papers by government bodies of various countries have focused attention on legal education and globalisation.4 The concern of this body of work is no longer about whether to internationalise legal education or not, but the manner in which it should be carried out.5 As one would expect, approaches to internationalising legal education vary significantly and not all law schools would benefit from or would want to internationalise legal education to the same degree.6 Claudio Grossman has pointed out, for instance, that there are no standard approaches to internationalising legal education, and one can differentiate between them on the basis of how deeply one responds to the presence of the different forms of law in the world.7
When discussing legal education, the reference to ‘internationalisation’ is potentially vague but in general terms it means to put something under international control. It is the way that this term is characterised in its application to legal education that is the subject of this commentary. The context that is naturally considered when defining internationalisation of legal education is the student population that is going to be subjected to the educational experiences and the competencies that they must have at the end of their degree. For instance, the International Legal Education and Training Committee (ILET committee) of the Attorney-General’s Department of the Australian Government argued in a recent report that the internationalisation of Australian legal education should mean that:

• the curriculum and pedagogy should prepare students to apply legal skills in trans-national and international transactions;
• students should be able to understand and apply fundamental principles of law and legal reasoning in all international, regional and trans-national contexts. With these skills students can act as facilitators in international transactions, liaising between differing legal systems and practices;
• international materials should be integrated into the whole legal curriculum, fundamentally extending the reach of legal study and analysis (the aim of internationalisation is not necessarily met, for example, by adding new international or comparative subjects to the range of options); and
• students from other countries with different legal systems and cultures should be able to gain a law degree from an Australian University that is genuinely internationally focussed, rather than parochial or domestic in approach.8

This definition adopts the view that legal education services in Australia must develop student competencies in relation to transactions involving or spanning more than one legal jurisdiction. Its focus is on the potential mobility of graduates but in a way that prioritises legal services and law as a problem solving device. This is emphasised in the ILET committees comments about private international law needing to be more strongly integrated into the core content to ensure that students are better prepared for ‘global legal practice’.9 Part II of this work, drawing from the existing literature in this field, highlights three very distinct ways in which legal education can be or is being internationalised by law schools. In this way, this part of the work highlights the qualitative shifts in terms of strategy that law schools have adopted or might adopt to internationalise their curriculum offerings. It also helps highlight how definitions, such as the ILET committee’s one, can ignore deeper shifts in legal education that appear to be emerging in the literature on this area. In this way, this part also highlights how the ILET committee’s definition is a fairly moderate but practical view of the impact that internationalisation should have on legal education. As a result it is possible to see how the ILET committee’s definition of internationalisation is driven by current possibilities within Australian law schools, rather than alternate views of the role of legal education.10
The third part of this work however argues that the definitions of internationalisation and strategies associated with it have to be based on a framework that gives content to the kind of experiences that students should receive at law school. In this sense, Part III of this work argues for the adoption of a framework that characterises internationalisation in terms of skills, attitudes and knowledge that students should have at the end of their degree, given the current shifts in globalisation. The fourth and last part of this work outlines how the 2005 review of the Griffith Law School’s curriculum dealt with the choices that law schools have before them to implement part or all of the possibilities arising out of the framework discussed in Part III. In doing this, it develops an argument for the kind of vehicles that the 2005 review adopted for internationalising the Law School’s curriculum. It outlines the adoption of the concept of the vertical subject as it applies to internationalisation and the manner in which it incrementally imbeds learning objectives into standard horizontal courses offered by the Law School.
The main purpose of this work is to highlight the potential that internationalisation has for legal education in Australia. It describes ideas that can give structure to the varied choices available to law schools when considering whether and how to internationalise legal education. These include the: rationale for internationalising a curriculum; choosing what to internationalise in particular; and what vehicles to use to do it effectively. The choices available to law schools are in this work contextualised within the curriculum reform that was carried out by the Griffith Law School in 2005. Although the work makes reference to the ILET committee’s definition of internationalisation and uses it to give context to the descriptive work below, the purpose of this paper is to establish a framework that discusses the increasing opportunities that these issues present for law schools considering further internationalisation of their curriculum.

II  A FRAMEWORK FOR DEVELOPING INTERNATIONALISATION STRATEGIES

A law school’s financial and human capital is crucial in developing its internationalisation strategies for its curriculum.11 The market is also likely to push law schools in particular directions. For instance, employers may find that students with a broader understanding of the operation of law in a global context are able to give better advice on negotiations, legal memos, or general litigation. Students might also select law schools that will give them more mobility or enhance their employment prospects when they graduate.12 Lastly, universities themselves may want to be positioned in particular ways compared to others around the country and the world and may push their respective schools to adopt strategies with this in mind.
The ILET committee’s definition of internationalisation discussed in the introduction highlights how defining the term develops a sense of the kind of strategy that will be pursued by a given law school or an institution in this case. This section identifies and discusses three different drivers of curricular change that a law school can adopt for internationalising what it does for its students.13 The first describes legal education as a professional degree offered to students who want to work transnationally. The second strategy conceptualises studying an internationalised law degree as enhancing graduate competencies within the context of national jurisdictions. The third sees legal education as a mechanism for generating income otherwise not directly available to the law schools. Although this section describes three different strategies it impliedly highlights how a law school can choose to define internationalisation for itself. This argument is important for the way in which Part III of this work describes the range of skills, attitudes, and knowledge areas that can potentially be integrated into the way that a law school characterises internationalisation for itself.

A Global Law Degree

One option available to law schools is to train graduates that are equipped for work in multinational companies around the world and help develop the reputation of the law school for producing cosmopolitan and globally mobile graduates. This is not the same as suggesting that graduates will be able to get admission to practice in any jurisdiction they want. With the increasing number and size of multinational firms (legal and other) and public organisations a school might choose to train graduates only for this kind of work environment. One important driver for this choice is to develop graduates who have the skills, attitudes and knowledge that enable them to not be tied to any particular jurisdiction for their professional legal work.
John Sexton and Michael Reisman have on separate occasions (although agreeing with each other) argued that legal education itself needs an overhaul given the changes we are witnessing in the way the world and the legal community works these days.14 Reisman writes that ‘[c]urricula design requires a way of thinking efficiently about a range of possible futures’.15 This to him means that we should assess the way the world will look at the time that our students graduate. He argues that ‘the legal curriculum should be based upon a notion of a comprehensive transnational legal system rather than an autonomous national system that connects to other states and an international system through certain formal linkages’.16
Others have pointed out that the graduate’s ability to understand issues from the perspective of different legal systems is very relevant to international business.17 It is an important part of this strategy to have graduates who can understand the ‘legal mentality’ of other nations.18 Graduates who are ultimately destined to work in the field of international business will need to understand the continental approach19 to law which is very different to the common law approaches of the Australian legal system.20 According to this strategy, aside from developing graduate bi- or multi-juralism, one might also aim to equip students with the capacity to function in practices that span across jurisdictions, or are suited to international academic or diplomatic careers, or who can potentially work for an international organisation.21 Working long hours might for instance be one of the skills that law schools might teach students if they were seeking to act in accordance with this strategy.22 Other employers, it has been argued, prefer graduates who are ‘multiple dimensional, highly skilled, culturally sensitive, strategic minded, creative and appropriately aggressive’.23 When working with this strategy, the priority which is usually given to particular content areas might need significant changes. For instance, a school might use the following courses as compulsory parts of its curriculum: international business and corporation law, international finance, capital markets, international banking law, and European Union law.24

B Strengthening the Domestic Curriculum

Some schools may only be able to train students who will ultimately practice law in domestic firms. The choice of law for most disputes is ultimately bound to be the law of a particular nation. In which case, students from around the world will need strong training in their own legal traditions. The approach to internationalisation in this instance seeks to strengthen the existing curriculum and the materials used for it.
Internationalisation will benefit existing curriculum developments by encouraging more work on the origins and history of the law that students study. They can learn about the depths of certain doctrines by comparing them to alternative and foreign responses to similar issues. A domestic curriculum can be strengthened through comparative law studies by giving a stronger impression of the pitfalls, blind spots, and unjust practices adopted by one’s own current domestic institutional settings.25
Since legal and social issues often span jurisdictions, law schools will need to properly integrate transnational developments and contexts into the curriculum.26 To avoid the transnational implications of a subject or concept only gives students a partial understanding of the relevance of the material being employed for educational purposes. To properly understand ideas in a jurisdiction ‘one must look beyond its boundaries, indeed, beyond one’s own time’.27 This approach requires that a school gives serious consideration to all of its domestic law offerings so that its curriculum is deeply relevant for the graduates who will no doubt require a broader understanding of law in the current professional environment.
The definition of internationalisation adopted by the ILET committee, mentioned in the introduction, also focuses on the need to develop student competencies to effectively deal with international transactions. This raises the point about how strategies aimed at modifying existing law degrees can differ. For instance, training students to deal with international transactions would be different to training them to be globally mobile as graduates. The later would require a deeper understanding of other legal systems of the world in contrast to the former that prioritises an understanding of the legal structures of international finance, economics and trade. In either case however, the law school would need to consider how much of its existing degree must be subjected to international control.

C Catering for an International Market

Developing the market for international students can potentially bring great prosperity to any law school and can help fund activities otherwise not within their reach. In a report commissioned by the Australian Universities Teaching Committee (AUTC), Johnstone and Vignaendra commented that academics in Australia see internationalisation as, amongst other things: the internationalisation of the student body and also offshore teaching programmes.28 In relation to both these cases the reputation and profile of the law school develops internationally as long as they can continue to provide a high standard of quality education. There is no guarantee however that in either of these cases of internationalisation the school itself or the general student population benefit from introduced changes to the way staff manage their time. In fact in the report commissioned by the AUTC, Johnstone and Vignaendra quote an interviewee who notes that ‘[Drawing in] overseas students increases student numbers, without increasing resources to teachers’.29 The report also comments on how there is an increased level of support that needs to be given to international students to cope with difficulties they might have with language, participating in discussions and thinking in the classroom, writing essays and avoiding plagiarising of other works.30 In the case of offshore programmes, there is no reason to believe that these programmes continue enhancing curricular changes for the law school itself other than developing the experiences of the academics involved with them.
Increasingly law schools are also considering a variety of twinning programmes which are offered across at least two institutions. These programmes sometimes aim to increase international student populations but in other cases they develop and strengthen the expertise of the law school in particular areas. For instance, a jointly offered Masters of Laws programme in legal theory would give students the opportunity to complete that degree by doing courses from two different law schools. The point of this is that some programmes designed to increase the international student population within a law school can have positive repercussions for the curriculum itself and twinning programmes are an example of this.
It is important to highlight some of the strengths and weakness of these three approaches. It should be apparent that the first, fairly innovative, approach would require the right kind of commitment and resources. The degree programme would require that students be given more than legal training and would include social and policy as well as management related training to cope with international business. A programme could face some difficulties catering for individuals who would potentially practise transnationally because of the presence of a large work force that is employed by international organisations, non-governmental organisations as well as transnational corporations. This approach also means that domestic law schools would need to add to their standard programmes and would need to establish credibility very quickly to ensure their survival. Australia is considered to be a cheaper market for students studying abroad, but one would have to carefully balance this advantage against the comparatively limited presence of the transnational work force on our continent.
The second and third strategies have already been adopted by many Australian law Schools with varying degrees of commitment. As will be discussed in Part III, curricular changes must go beyond simply managing course content. The second strategy requires that one gives serious consideration to the vehicles that will carry curricular reforms (discussed in Part IV of this paper). Without the right vehicles which can contribute to long term and systematic change, programmes may stop evolving or will do so in very ad hoc ways. Also, it is possible that only a select group of academics will get involved in changing the law school’s culture. If this happens the second strategy can potentially create dissonance between parts of the curriculum and impact upon the overall quality of legal education. More importantly, internationalisation can be characterised in many different ways, and being clear about how a standard degree will be modified will be important. A law school needs to be clear about whether it is promoting a view of internationalisation as involvement in international transactions or whether for instance, it is developing graduate capacities for mobility. This would give strategic direction to law schools who need to allocate scarce resources for curriculum development.
A genuinely diverse student population will add significantly to any internationalisation strategy by, for instance, generating interesting classroom discussions. The third strategy however requires that international students receive proper support (in the form of language, writing, and communication skills support) and that this is commensurate with the number of foreign students from non-English speaking backgrounds within the school. The ILET committee’s definition for internationalisation discussed in the introduction seeks to ensure that domestic programmes aimed at foreign students give them genuinely internationalised degree programmes. This would create difficulties for law schools given the reliance of all Australian law school curriculum on Priestley 11 requirements.

III  INTERNATIONALISATION AND CURRICULUM DESIGN

In the last section three different strategies for internationalising the curriculum provided by law schools were put forward. It was argued at the start of that section that the conceptualisation of internationalisation as a vague term depends very much on how it is characterised by the institution seeking to apply it in developing their curriculum. In this section, that characterisation process is further refined by listing and reviewing how a law school opting for the second strategy, for instance, has a variety of choices depending on how far they wish to go. This second strategy is adopted because of the reliance of most schools on Priestley 11 requirements. It is also chosen to allow this work to highlight the results of the 2005 curriculum review of the Griffith Law School which is described in Part IV of this work. This paper and this part in particular uses skills, attitudes and content/knowledge areas as the basis of the conceptual framework for organising what is potentially the ‘content’ of a law school’s curriculum. This is important because of the way Part IV of this work describes embedding skills, attitudes and knowledge areas into subjects across the five years of a combined law degree. In particular, it highlights how a broad approach to internationalisation can potentially be narrowly contextualised by a law school with strengths in particular areas.
Other taxonomical approaches to characterising the content of a law school’s curriculum are also available in the general literature on legal education. Christensen and Kift for instance, suggest that one should first focus on the attributes of a legal graduate and use them to develop a list of generic and legally specific skills that can be mapped onto courses offered at law schools.31 The categories used to develop their taxonomy of skills include: attitudinal, cognitive, communication and relational.32 This work has not used Christensen and Kift’s taxonomy because it marginalises the development of ‘attitudes’ and therefore the emotional and ethical side of legal education that is highly relevant for the transnational lawyer. It is argued that lawyers’ motivation and volition for something is as important as the skills they need for carrying them out. A taxonomy of ‘attitudes’ built around the language of skills is misleading in some way and has the potential to avoid certain opportunities for developing student experiences.33 An attitude disguised within the nomenclature of skills ignores the possibility that students might lack the motivation and volition to do something.
Christensen and Kift’s focus on skills also marginalises the way that certain substantive content areas of the law serve as springboards for, or develop the attitudes of, students towards issues. That is, it is fair to assume that the focus on skills means that students will be able to discover the law for themselves but not all knowledge is so fluid that it is constantly being constructed. Some areas of transnational law actually construct the students (eg, the notion of sovereignty and consent in public international law) to make use of skills in particular ways.
In the three sections that follow, a selection of skills, attitudes and knowledge areas that are of particular importance to the second internationalisation strategy outlined in Part II are described. It should be noted that the three categories are not exclusively of benefit for developing responses to the second strategy but can help also with the first and third. The focus of Part IV of this work is on how the Griffith Law School responded in 2005 to the second strategy in terms of what it identified as the vehicles to help integrate skills, attitudes and knowledge areas into its curriculum. This section is developed to identify the scope of the options available for other law schools that might choose different vehicles to internationalise their curriculum.

A Skills Relevant for Transnational Practice

A skill, such as the development of a multi-jural mind (discussed below), is potentially of relevance only for an internationalised legal education. In contrast, many other skills would be useful to anyone practicing law and because of their potential transferability to other situations and countries they would be considered in a survey of skills of relevance to internationalising a law degree. In this section, a list of skills of particular relevance to lawyers who value both mobility and involvement in international transactions is listed and in some cases very briefly described:

• Reflexes of a bi- or multi-jural mind.34 Bi- or multi-juralism is the ability to think through different legal problems using two or more different legal systems. It gives graduates the ability to switch between deeper perspectives and approaches to law. Being bi-jural for instance is necessary for Canadian legal practitioners because of the presence of both civil and common law systems in their country. It is hypothesised that bi- or multi-juralism is also an ability that can better equip Australian lawyers to deal with transactions that have contracting parties from more than one legal system in the world. It could also help professionals who want to deal with a legal issue from different perspectives for reform purposes or simply to convince a client that one jurisdiction would be better than the other for a choice of law provision in a contract.
• Contextualised (interdisciplinary) problem solving particularly with intercultural dimensions.35
• Legal research particularly in foreign law, public international law, soft laws and customary practices of individuals and organisations.
• Legal analysis within an intercultural dimension.
• Dealing with information overload and sorting between urgent, valuable and important information.36
• Oral, cultural and non-verbal communication skills.
• Oral presentations, particularly in multi-lingual environments.
• Mediation, arbitration, diplomacy, advocacy and legal consulting skills.37
• Teamwork, particularly in a multicultural and religiously diverse setting.
• Comfortable and skilled in dealing with different cultures of the main regions of the world.
• Client contact. All lawyers need skills in dealing with clients but it is argued by Szeplaki for instance that the transnational lawyer’s client work happens ‘in a complex international legal environment, sometimes filled with inconsistent legal rules and hardly predictable public authority interpretive actions’.38 Touching on the relational aspect of problem solving for clients, she also identifies that lawyers must ‘address complex or unprecedented situations and persons with the help of basic insight in the cultures and customs of the main regions around the world and know at least slightly the sources of the regional political and religious tensions’.39 It is argued that client contact in a transnational context requires additional sensibilities that graduates will benefit from having.

B Attitudes Relevant for Transnational Practice

The motivation and volition to do something does not necessarily come from having the skill or the knowledge to do it. For instance, just because one is aware of the potential of a contract to beneficially or detrimentally affect a population in another part of the world does not mean that the legal adviser will do anything about it. If a practitioner sees themselves as a global citizen, their motivation and therefore their response to the way they work around an unconscionable contract for another population might be very different to someone who has not been trained to think in that way. This example is only given to highlight the potential for training lawyers to consider their attitudes beyond just their professional responsibilities. Below is a list of attitudes that might be embedded within an adequately internationalised law degree.

• Empowering people around them. One author has argued that of all groups of transnational lawyers, the most challenged in this regard seem to be those whose practice relates to non-governmental organisations. This is because NGO lawyers deal with people at a grassroots level and work to transform thoughts or instil new values, in contrast with those that are concerned with business transactions or perhaps governmental organs. Even if transnational NGO lawyers learn on the job, experience has shown that this is not without great expense in terms of money, time and expertise.40
• Global citizen. To be able to rise above nationalisation is argued as a virtue worth instilling in graduates. For instance, Linda Smiddy writes that lawyers should value ‘the worth of human life, the potential of common human abilities and the struggle to resolve common human problems’.41
• Appreciate and comfortably work with the cultural choices behind legal systems and alternative ways of conceptualising normativity, such as international soft law and lex mercatoria. Law is potentially a hegemonic tool that can be used to instil capitalistic ideals in developing economies.42 Hutchinson for instance argues that transnational lawyers need to develop an attitude that ‘law is always a situated series of dynamic, cultural and historical enterprises’.43
• Intuitively develop an interdisciplinary response to issues. For example, transnational transactions will always involve some kind of political and economic risk beyond the borders of the negotiating parties’ countries. Sexton notes that it takes humility and wisdom to look beyond legal systems to find solutions and criteria for assessing legal institutions.44 A focus on other disciplines can also heighten our awareness of issues we need to be considering as lawyers in practice, reform and scholarship.
• Promoting the interest of the public good when serving the client as well.

C Knowledge Areas Relevant for Transnational Practice

In 2003, Justice Kennedy and Justice Scalia of the United States Supreme Court debated very publicly in relation to the integration of the law of nations and the European Court of Human Rights within the context of the very public case of Lawrence v Texas.45 This case and the facts surrounding it highlighted the way in which the judiciary in the United States, for instance, seeks to protect itself from the forces of internationalisation but also about the way in which attitudes of judges to globalisation have potentially changed in the past decade.46 It also highlights the possibility of disagreement amongst academics as to the extent to which domestic materials need to be internationalised in a given course offered by a law school. For a school that decides to internationalise its approach to legal education, the more difficult question to deal with is where one should stop. Any of the three strategies discussed in the second part of this paper will develop different priorities for the core courses a school offers. For instance, an understanding of Islamic Law (Sharia Law) is indispensable to students who value mobility within Asia.47 In the case of law schools producing graduates for international firms, then it is argued that the following courses are more important: international business and corporation law; international finance; capital markets; international banking law; and European Union law.48 In the section that follows, an argument is developed, based on the emerging literature, for an approach to content that values giving Australian law students at least a strong foundational understanding of legal systems other than the Australian common law system.

1 First Year Content Driven Courses

A core subject dealing with international/transnational/comparative law at the early stages of the curriculum can serve as a foundation for the incremental development of skills, attitudes and an understanding of law across the full length of a degree. This means that academic lawyers teaching other core and elective courses can choose to build on the students’ experiences with the law rather than teaching them the basics. An early interaction with legal systems other than the Australian one would encourage students from the beginning to consider mobility across jurisdictions as an essential feature of their relationship with the law. An early interaction with other legal systems, reinforced by incremental developments across the degree, could develop the students’ multi-jural sensibilities in a way that might enrich their interactions with Priestley 11 core materials. In the rest of this part, options already canvassed by the literature on the internationalisation of legal education are considered.

2 Public International Law

It has become common to discuss making public international law a compulsory course in the curriculum of law schools.49 It has been argued however that ‘public international law needs to be taught at a much more advanced level than it has been in the past in some law school’.50 Alternatively, one writer comments that employers require more from their graduates than just an understanding of public international law.51 This same writer argues that a better option would be to develop student expertise at the undergraduate level in ‘international legal practice’ with an emphasis on ‘international business and trade law, international company law, competition law’, ‘international finance and project finance law (including capital markets) and conflict of laws studies’.52

3 Transnational Law

At the Law School of the University of Michigan, an alternative approach to having public international law as a core course has been the introduction of a subject loosely termed transnational law.53 This option appears to be finding favour in the literature on the internationalisation of legal education.54
The term transnational law has no established meaning. Phillip Jessup is often quoted for his definition of transnational law which is said ‘to include all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories’.55
A more ‘open-textured’ definition of transnational law has been adopted by a project being run through the New York Law School titled ‘Lawyers in Transnational Practice’.56 According to this definition transnational lawyers are those people:

who work on commercial transactions involving multiple national jurisdictions; lawyers who work on relations among sovereign actors, such as nations, and among supra-national actors, such as the World Trade Oganization, the International Monetary Fund, or other similar institutions; lawyers involved in building supra-national legal regimes and institutions; and lawyers who mobilise across national borders to advance social, political and economic agendas, including lawyers working for international NGOs and other social movement organisations. It also embraces lawyers whose causes are advanced through international strategies.57

This definition of the work of the transnational lawyer is developed in a much larger socio-legal context than the way Jessup defines transnational law. This definition would also justify the importance placed on skills and attitudinal training as part of increasing the potential for mobility of our graduates. However, these definitions state the nature of the work that a graduate could do if they were practicing transnational law rather than studying it. Depending on the design of the curriculum, a transnational law course could potentially offer a very wide range of experiences for the students arising from the need to develop or deepen their sensibilities to legal systems other than the Australian one.
James Carter, commenting on a transnational law course for law students, writes that ‘[t]his sounds like a course that I would have been delighted to have had available to me as a student’,58 and then continues to ask ‘whether it does not try to cover too much’.59 The choice whether to offer a first year course of this kind is a decision about ‘curriculum’ design which requires much broader consideration than ‘subject or course design’. The academic lawyer designing a transnational law course will have to grapple with the potential breadth of what students must know, but this will need to be done in the context of the overall curriculum adopted by the law school.

IV  CURRICULUM CHANGE AT THE GRIFFITH LAW SCHOOL

In 2005, the Griffith Law School reviewed its existing curriculum which it started developing more than 12 years ago. One of the terms of reference for this review was to examine existing internationalisation strategies built into the curriculum and to improve upon them. Previous to this review in 2005, the Griffith Law School curriculum contained the following relating to internationalisation:

• It was compulsory for students to complete an international/comparative law elective during their degree. Although traditional courses like Public International Law and Private International Law were counted as one of these courses, other electives such as Refugee Law and Human Rights Law were also designated as an international/comparative law elective.
• General and legally specific skills training had been an important part of the overall curriculum of the Griffith Law School. This helped mobility in cases where the skills were transferable. For instance, the Offices Programme at the Griffith Law School created opportunities for students to develop their skills in teamwork.60
• A number of core courses contained international and comparative law materials integrated within them. It was only compulsory for Law and the Modern State, and Constitutional Law to contain materials on international or comparative law.61

After an extensive review of its curriculum, the Griffith Law School made a number of changes to its undergraduate programmes. The changes are being gradually rolled out with the first ones being introduced in 2006. Introduced changes relating to internationalisation are:

• The introduction of a vertical subject that allows the incremental integration of skills, attitudes and knowledge areas relevant for increasing the potential of graduates to be professionally mobile.
• The introduction of a core course introducing students to legal systems other than the Australian one. The course is currently titled transnational law and it is meant to be the foundation for other knowledge areas that students might study during their degree. It is also an integral part of the vertical subject policy mentioned above and discussed below.
• Clearing an entire semester of the law degree (graduate and undergraduate) of core courses so that students can choose to exchange their experiences with another student from another university in the world.

These three changes are the vehicles that the Griffith Law School sees as appropriately carrying its motivations and substantive interests for internationalising the curriculum. In the previous section, the internationalisation of skills, attitudes and knowledge areas was discussed without giving too much consideration as to how they might effectively be integrated into a curriculum. The rest of this part describes and assesses the potential of these three introductions for the Griffith Law School curriculum.

A Vertical Subject at the Griffith Law School

Since the start of 2006 there are now 6 vertical ‘subjects’ at the Griffith Law School in addition to the usual horizontally arranged ‘courses’ that are commonly offered by law schools across Australia.62 These vertical subjects are linked to particular competencies and/or sensibilities that graduates must have at the end of their degree and which is recorded in their academic transcripts. A student begins a vertical subject in the first year of their studies and completes it once they are ready to graduate. Each vertical subject has a convenor who is responsible for designing the subject and integrating parts of it into the relevant sections of the Law School’s curriculum. The vertical subjects are designed to contain learning objectives which can be integrated (with the cooperation of the convenor of the core courses) into relevant core courses. The learning objectives of vertical subjects complement those of the core courses within which they are integrated (referred to as horizontal courses). The intended aim is that each year a student works through incrementally more difficult learning objectives until they graduate. For instance, in first year students learn how to do legal research and in their final year they need to be able to do this in an interdisciplinary manner and produce a 10,000 word paper.
The internationalisation vertical subject in its early stages of implementation cannot develop learning objectives around all the skills and attitudes outlined in Part III of this work.63 This partly reflects the difficulty of embedding these numerous objectives into core courses of the curriculum. A modest number of objectives are embedded in Legal Research and Writing, Constitutional Law, Transnational Law and Property Law.
Two core requirements of the standard law degree which are an integral part of the vertical subject but which also remain independent of it (because they are graded) are: (1) the compulsory international/comparative law elective; and (2) transnational law. By the time students come to do their elective courses they would have had exposure to foundational aspects of the internationalisation vertical subject. This means that in their elective choices students can further their understanding of a particular knowledge area that will build on their previous experiences with this particular competency. For instance, the elective course in public international law will now develop its materials in response to students having some competencies in what is required to be a mobile graduate.
In their second year of study (or first year for graduate students), students also have to complete a course loosely termed Transnational Law. This ‘course’ is relevant for the vertical ‘subject’ because a number of the attitudes, skills and knowledge areas promoted are embedded into this course. It is the flagship of the vertical subject and a core course within the law degree. This course builds on learning objective embedded by the vertical subject into the first year courses of Legal Research and Writing as well as Law and the Modern State.
There are advantages to making internationalisation a vertical subject of the Law School’s new curriculum. For instance, it allows internationalisation to be an important element of a continuously evolving and developing curriculum. As the literature develops in relation to legal education and internationalisation, as the needs of the profession change because of transnational developments, and as certain practices evolve internationally, the vertical subject can embed new learning objectives into the incremental development of the student’s overall capacity. In relation to internationalisation, the vertical subject is also a practical compromise that allows only academic lawyers with an interest in law and globalisation to engage students with relevant skills, attitude and knowledge areas.

B Transnational Law

The Griffith Law School decided to introduce a course that would serve as the foundational experience for students in developing their skills, attitudes and understanding of the law in contexts outside that of the Australian legal system. Conceptions of transnational law have already been canvassed in Part III of this work.64 Given that this course comes at an early stage of the student’s experience with the law, it was decided that they should be given a very broad and surface level exposure to legal systems other than the Australian one. The following content will be covered in this course:

• basic principles of public and private and international law (including legal systems of the major regions of the world such as the European Union);
• basic principles of comparative law with an introduction to the major legal systems of the world (eg, civil law and Sharia law);
• The law of merchants as an example of law emerging out of transnational developments in business practices, and
• developments in global law emerging out of indigenous customary practices.

The following skills and attitudes will also be integrated into the course:

• reflexes of a multi-jural mind;
• cross cultural dimensions of negotiation, mediation and arbitration;
• problem solving taking account of cultural differences and complexities in ascertaining the relevant law, and
• cultural choices behind legal systems and alternative ways of conceptualising normativity.

C Student Exchange Opportunities and the Curriculum

Given the extensive list of skills, attitudes and content areas that were described in Part III of this work, it would be a formidable task if one was to integrate all of them into a single curriculum with five other vertical subjects and a host of core courses designed to deal with Priestley 11 prescribed materials. A student’s participation in an exchange programme gives them the choice to further develop their interests and competencies in the vertical subject of internationalisation. It is an opportunity for students to go to a different law school and specialise in areas that are not strengths of the Griffith Law School. It also allows students to experience different social, cultural, linguistic and environmental conditions that can hone their reflections on the way in which law works in society. Depending on the institution that students visit, they are likely to experience very different things during their period of exchange. The benefits of an exchange are numerous, only a couple of which are described here.65
The Curriculum Review Committee of the Griffith Law School did not suggest that student exchanges should be a compulsory feature of the new curriculum. It made it a prominent option that students could choose, assisted by removing one of the obstacles to doing an exchange, which was having a semester free of core courses so that a student’s programme would not be significantly impacted by it. As a result, the last semester of the degree is now devoted to electives to encourage them to complete these at an overseas university of their choice.
Given the way in which students should have come to develop their skills, attitudes and understanding of the law by the time they come to the 4th and 5th years of their degree, a student exchange will hopefully add to their competencies. A well-developed student exchange programme will also mean that the pool of foreign students in the classrooms of the Griffith Law School will increase. These students, who are likely to be better aware of their own legal systems, will contribute to the way in which standard core courses are experienced by domestic students themselves. This aspect of the exchange programme also adds depth to adopting it as a vehicle for driving internationalisation.

V  CONCLUSION

An important issue that has underlined this paper is the need for a coherent and incremental approach to the internationalisation of legal education. Current approaches to internationalisation, within Australian law schools were outlined by the ILET committee, which followed the AUTC report. They identified the following as the responses of various law schools to what they were doing to internationalise their legal education:

• internationalising core subjects by integrating international and comparative materials;
• encouraging an inter-disciplinary approach, such as the introduction of a new combined degree program: Arts (International Studies)/LLB (eg University of New South Wales, University of Canberra);
• negotiating international exchange agreements and internships (eg University of Adelaide, Monash University);
• arranging study tours to China/Vietnam (eg University of Melbourne, University of Sydney, Monash University);
• developing Asian Law studies through the establishment of specialist centres (eg University of Melbourne);
• fostering visits and lectures by international academics, especially from the Asian regions;
• increasing the number of international and comparative law options available to undergraduates, though ability to select options is constrained by the need to meet the Priestley 11 and may not be necessary if international and comparative perspectives are integrated into core curricula;
• including international law in the core subjects required for the LLB (eg University of Sydney, Australian National University);
• cultivating an international network of alumni (eg Monash University);
• marketing the law school’s program overseas to attract a larger number of international students; and
• offering LLM programs that specialise in international and comparative law (eg University of Melbourne, University of Sydney, University of New South Wales).66

What the ILET committee report does not pick up after outlining these approaches to internationalisation is the potentially ad hoc way in which they are often embedded into the cultural life and curriculum of the mentioned law schools. Even if a law school is systematic about one of the above-mentioned areas, the link with other areas may not often be conceptualised within an overall framework that rationalises graduate capabilities relating to internationalisation. A coherent and systematic approach to embedding skills, attitudes and content into a curriculum is important to develop graduate capabilities for mobility and practice in a transnational environment.
The most common measure adopted by law schools to internationalise their curriculum is bound to be the integration of international and comparative materials into core courses. This measure, however, depends strongly on ensuring that students are incrementally exposed to increasingly varied and difficult aspects of international and comparative law materials. Again, the need to develop graduate capabilities in an incremental way as an aspect of the law school’s strategy is also not examined or exposed by the ILET committee’s report.
In the review of its legal curriculum, the Griffith Law School’s curriculum review process was bound to develop a response that adhered to what is known as the Priestley 11 range of content areas. A law school’s accreditation in Australia is driven by its ability to offer a curriculum teaching students the Priestley 11. The amount of space left in a 3 year graduate degree programme is limited by virtue of the requirements of the Priestley 11. This meant that when the Griffith Law School sought to internationalise its curricular strategies it was limited to the second option outlined in the second part of this work. Also, when the vertical subjects of the Griffith Law School, such as internationalisation, seek to embed themselves in core courses, their potential is impacted by the lack of space because of Priestley 11 content that has to be included in them. There is no doubt that Priestley 11 requirements in Australia are a significant barrier to curricula innovations67 and to internationalisation strategies in particular.
Developing a curriculum that adequately accounts for the changing landscape of legal education is both interesting and difficult. This paper has reviewed the literature in the broad area of internationalisation and legal education. In doing so, it has put forward categories that can be used to examine individual law school approaches to internationalising their own curriculum. In particular, the paper highlights how a definition of internationalisation is also a description of strategy. It therefore placed greater emphasis in Part III on the range of skills, attitudes and content areas that need to be incrementally embedded (even if this is done selectively) into a curriculum that is also focused on internationalisation. Importantly, the last part of the paper dealt with the need to develop vehicles that will drive the internationalisation strategies of law schools rather than encourage fixed approaches that would require significant drive and initiative to adapt when something interesting appears on the horizon. It did this through an outline of the Griffith Law School’s recent changes to its own curriculum which was used as a case study.

  * Senior Lecturer, and Internationalisation Coordinator, Griffith Law School, Australia. I am grateful for the help of the following colleagues who I worked with in the various stages of the Griffith Law School’s curriculum review dealings with internationalisation: Richard Johnstone, Jeff Giddings, Sandra Berns, Mary Keyes, Shaun McVeigh and Rosemary Hunter. My thanks also go to the Socio-Legal Research Centre at the Griffith Law School for funding Fiona Lubett who contributed to this research project. All observations are my own and in no way directly reflect those of the Griffith Law School or colleagues who read parts of this work and participated in the review with me.

  1 For instance: Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004; Educating the Transnational Lawyer, Spring Meeting of the American Bar Associations Section of International Law & Practice, 2003.

  2 Some examples include: ‘Papers from the LSU-Canada Bijuralism Conference’ (2002) 52(1) & (2) Journal of Legal Education; ‘Symposium on Continuing Progress in Internationalizing Legal Education — 21st Century Global Challenges’ (2002) 21 Pennsylvania State International Law Review; ‘Emerging Worldwide Strategies in Internationalizing Legal Education’ (2000) 18 Dickinson Journal of International Law; ‘Harmonization or Homogenization? The Globalization of Law and Legal Ethics — An Australian Viewpoint’ (2001) 34 Vanderbilt Journal of Transnational Law; ‘La Pietra Conference of International Legal Educators’ (2001) 51 Journal of Legal Education.

  3 For instance: Louise Trubek and Jeremy Cooper (ed), Educating for Justice Around the World: Legal Education, Legal Practice and the Community (1999); and Nicholas Burbules and Carlos Torres (eds), Globalization and Education: Critical Perspectives (2000).

  4 As an example of some Australian reports either written by government agencies or commissioned by them see: Internationalisation of the Australian Law Degree (Attorney-General Department, International Legal Education and Training Committee, 2003); Richard Johnstone and Sumitra Vignaendra, Learning Outcomes and Curriculum Development in Law (2003).

  5 For an example of a sophisticated exploration of this ideas see, eg, Adelle Blackett, ‘Globalization and Its Ambiguities: Implications for Law School Curriculum Reform’ (1998– 1999) 37 Columbia Journal of Transnational Law 58, 67; Michael Young, ‘Training for Global Competency in the Legal Profession: One School’s Experience’ in Richard Lambert (ed), Educational Exchange and Global Competence (1994) 103.

  6 See, eg, Internationalisation of the Australian Law Degree (International Legal Education and Training Committee, International Legal Services Advisory Council for the Australian Government, 2003) 4.

  7 See, Claudio Grossman, ‘Building the World Community: Challenges for Legal Education’ (2000) 18 Dickinson Journal of International Law 441; and Claudio Grossman, ‘Global Legal Education and Human Rights’ (Paper Presented at the Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004).

  8 Internationalisation of the Australian Law Degree (Attorney-General Department, International Legal Education and Training Committee, 2003) 5.

  9 Ibid 7.

 10 See, eg, Catherine Valcke, ‘Global Law Teaching’ (2004) 54 Journal of Legal Education 160. See also the statement by the International Association of Universities in 2000 who committed themselves to the internationalisation of education but with the stated goal that it would contribute to ‘raising the overall quality of life, world wide’: Towards a Century of Cooperation: Internationalisation of Higher Education (2000) International Association of Universities <http://www.unesco.org/iau/internationalisation/i_statement.html> at 20 November 2006.

 11 For a more general discussion of motivations and rationales for internationalising higher education activities see: Jane Knight and Hans de Wit, ‘Strategies for Internationalisation of Higher Education: Historical and Conceptual Perspectives’ in Hans de Wit (ed), Strategies for Internationalisation of Higher Education — A Comparative Study of Australia, Canada, Europe and United States of America (1995).

 12 See especially, Mary C Daly, ‘The Ethical Implications for the Globalisation of the Legal Profession: A Challenge to the Teaching of Professional Responsibility in the Twenty-first Century’ (1998) 21 Fordham International Law Journal 1239; and Muna Ndulo, ‘Legal Education, Internationalisation and African Law Schools’ (2004) 2(2) Journal of Commonwealth Law and Legal Education 23.

 13 For other discussion of motivation in the context of Australian law schools see, eg, Internationalisation of the Australian Law Degree (Attorney-General Department, International Legal Education and Training Committee, 2003).

 14 John Sexton, ‘The Global Law School Programme at New York University’ (1996) 46 Journal of Legal Education 329; and Michael Reisman, ‘Designing Law Curricula for a Transnational Industrial and Science-Based Civilization’ (1996) 46(3) Journal of Legal Education 322.

 15 Reisman, above n 14, 326.

 16 Reisman, above n 14, 327.

 17 Roger Goebel, ‘Professional Qualification and Educational Requirements for Law Practice in a Foreign Country: Bridging the Cultural Gap’ (1989) 63 Tulane Law Review 443, 449.

 18 Barbara D Barth, ‘American Legal Education: Some Advice from Abroad’ (1974) 23 Buffalo Law Review 681, 687.

 19 The continental approach is more than just teaching students the ability to memorise legal rules and texts. It is more focused on giving students a ‘panoramic’ view of the systems. See, eg, Stefan Riesenfeld, ‘A Comparison of Continental and American Legal Education’ (1937) 36(1) Michigan Law Review 31.

 20 Luz Nagle, ‘Maximizing Legal Education: The International Component’ (1999–2000) 29 Stetson Law Review 1091, 1099.

 21 See note 38 and accompanying text.

 22 Gerard Tanja, ‘The Teaching of “International Law”: The Need for Curriculum Change’ (2002) 4 International Law FORUM du droit international 199, 204.

 23 Gerald Sumida, ‘Doing Business in the Era of Globalization: What Kind of Lawyers Do I Want?’ (Paper presented at the Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004).

 24 Tanja, above n 22, 204.

 25 See, eg, Matthew C Mirow, ‘Globalizing Property: Incorporating Comparative and International Law into First-Year Property Classes’ (2004) 54(2) Journal of Legal Education 183.

 26 Sexton, above n 14, 331.

 27 James Gordley, ‘Comparative Legal Research: Its Function in the Development of Harmonized Law’ (1995) 43(4) American Journal of Comparative Law 555, 555.

 28 Johnstone, above n 4, especially chapter 7. In relation to offshore programmes generally see for instance, Offshore Programmes of Australian Universities (2003) Australian Vice-Chancellors Committee <http://www.avcc.edu.au/documents/policies_programs/international/activities/Offshore%20Programs%20-%20May %202003.pdf> at 30 August 2006.

 29 Ibid 206.

 30 Ibid.

 31 Sharon Christensen and Sally Kift, ‘Graduate Attributes and Legal Skills: Integration or Disintegration?’ (2000) 11 Legal Education Review 207.

 32 Ibid 217–218.

 33 See for instance the potential for jurisprudential consideration of the need to use law and legal processes to change attitudes, David B Wexler and Bruce J Winick, Law in Therapeutic Key: Developments in Therapeutic Jurisprudence (1996).

 34 See generally, Sebastien Lebel-Grenier, ‘What is Transnational Legal Education’ (Paper Presented at the Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004); and Papers from the LSU-Canada Bijuralism Conference (2002) (1) Journal of Legal Education 1–74.

 35 The value of this skill is potentially vast. See comments by Linda Smiddy, ‘Competencies Required by the Lawyer of the Future’ (Paper Presented at the Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004) 3, who writes that this involves ‘identifying the pressure points causing misunderstanding in inter-cultural encounters; identifying fundamental human goals, needs and capabilities; examining critically one’s own culture and legal traditions, rather than simply accepting them; examining critically other cultures and legal traditions; and being able to re-imagine the problem at hand from another’s point of view.’ Sumida above n 23, 5 identifies a different but just as crucial factor ‘where lawyers must be sensitive to the complex interplays of cultural, business and political dimensions in shaping and influencing a business transaction or relationship.’ In relation to this last point George Dent, ‘Lawyers and Trust in Business Alliances’ (2002) 58(1) The Business Lawyers 45 points out for instance that in some situations trust is often more important in a relationship than signing a contract.

 36 See especially, Ruben Sanabria, ‘The Law, Its Ties and the Lawyer of the Future: Challenges for Tomorrow’s Lawyers’ (Paper Presented at the Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004) 6.

 37 On legal consulting skills see Tanja, above n 22, 201.

 38 Valeria Szeplaki, ‘Transnational Curriculum for Tomorrow’s Lawyers, Curricular Approaches’ (Paper Presented at the Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004) 1.

 39 Ibid 2.

 40 Ali Ahmad, ‘Educating Lawyers for Transnational Challenges: The Challenge of Islam’ (Paper Presented at the Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004) 4.

 41 Smiddy, above n 35.

 42 Alan Hutchinson, ‘Expression of Interest’ (Paper Presented at the Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004) 1.

 43 Ibid.

 44 John Sexton, ‘Structuring Global Law Schools’ (2000) 18 Dickinson Journal of International Law 450.

 45 (02-102) 41 S. W. 3d 349 (2003).

 46 Stephen Zamora, ‘Studying Foreign and International Law as an Antidote to Juridical Isolationism’ (Paper Presented at the Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004) 4.

 47 See, eg, Wik Mahmod, ‘The Importance of Understanding and Teaching Islamic Law in Asia’ (Paper Presented at the Asian Law Institute Symposium on Legal Education, Singapore, 10–11 November 2005).

 48 Tanja, above n 22, 204.

 49 Ellen Hey, ‘Teaching International Law Matters (Recurring Themes)’ (2002) 4 International law FORUM du droit international 183; Hans Correll, ‘International Law and the Law School Curriculum’ (2002) 4 International law FORUM du droit international 195; and Tanja, above n 22, 199.

 50 Mathias Reimann, ‘From the Law of Nations to Transnational Law: Why We Need a New Basic Course for the International Curriculum’ (2003–2004) 22 Pennsylvania State International Law Review 397, 397.

 51 Tanja, above n 22, 204. He writes that ‘[i]n their future career/practice, public international law plays virtually no role. And when it does play a role, one of the very few specialists from within the network will provide the answers or an outside expert will be instructed’.

 52 Ibid 201.

 53 In relation to the course offering in the University of Michigan see: Mathias Reimann, ‘From the Law of Nations to Transnational Law: Why We Need a New Basic Course for the International Curriculum’ (2004) 22 Pennsylvania State International Law Review 397; Mathias Reimann, ‘Panel, International Law and the Legal Curriculum’ (2002) 96 American Society of International Law PROC 54.

 54 See eg, James Carter, Transnational Law: What is it? How Does it Differ from International law and Comparative Law? (2005) <http://www.aals.org/am2005/fripapers/400carter.pdf> at 28 August 2006; Lebel-Grenier, above n 29; Reimann, above n 45; Mathias Reimann, ‘Panel, International Law and the Legal Curriculum’ (2002) 96 American Society of International Law PROC 54; Michael Reisman, ‘Designing Law Curricula for a Transnational Industrial and Science-Based Civilization’ (1996) 46(3) Journal of Legal Education 322.

 55 Philip C Jessup, ‘The Concept of Transnational Law: An Introduction’ (1963–4) 3 Columbia Journal of Transnational Law 2; Philip C Jessup, Transnational Law in a Changing Society: Essays in Honor of Philip C. Jessup (1972) 136.

 56 New York Law Schools Centre for Professional Values and Practice, ‘Lawyers in Transnational Practice Project Description’ <www.nyls.edu/pages/1681.asp> at 20 November 2006.

 57 Ibid.

 58 Carter, above n 65.

 59 Carter, above n 65. For other forms of criticism of the transnational law project see for instance: Valcke, above n 9.

 60 Lee Godden, et al, ‘A Case Study of the “Offices” Project (Teacher-Less, Cooperative Learning Groups) at Griffith University: Implementing Educational Theory’ (1993) 2 Legal Education Review 2.

 61 In the case of Constitutional Law this is a Priestley 11 requirement anyway.

 62 The vertical subjects are: (1) Skills; (2) Legal Theory and Interdisciplinarity; (3) Legal Ethics; (4) Internationalisation; (5) Indigenous Australians; and (6) Team Work.

 63 Although some of the skills and interdisciplinary issues are picked up in modified form by the skills and the Legal Theory/Interdisciplinarity vertical subject.

 64 See note 48 onwards and accompanying text.

 65 See, eg, Ian Holloway, ‘Special Methods and Tools for Educating the Transnational Lawyer: Exchanges’ (Paper Presented at the Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004).

 66 ILET Committee, above n 8, 12.

 67 For criticisms of the Priestley 11 in developing an Australian curriculum, see: Mary Keyes and Richard Johnstone, ‘Changing Legal Education: Rhetoric, Reality, and Prospects for the Future’ [2004] SydLawRw 26; (2004) 26(4) The Sydney Law Review 537. The ILET committee’s report argues that the ‘Priestley 11 subjects do not inherently impede the adoption of international, trans-national and comparative materials. They do, however, have a chilling effect on the adoption of a wider vision of the 11 subject areas, partly reflecting a perception that the LLB curriculum is already overburdened with priorities to teach basic Australian law’. See, ILET Committee, above n 8, at 7.