Cata Backer, L --- "Global Law in American Law Schools: Prospects and Difficulties of Incorporating a Transnational Element in Legal Education" [2007] LegEdDig 27; (2007) 15(2) Legal Education Digest 23

Global Law in American Law Schools: Prospects and Difficulties of Incorporating a Transnational Element in Legal Education

L Cata Backer

[2007] LegEdDig 27; (2007) 15(2) Legal Education Digest 23

Tul U Law Sch, Penn State U & Dick Sch Law Working Paper Series, 2007, pp 1–33

By the last third of the 20th century, most law schools, reluctantly or not, and more or less enthusiastically, had embraced a ‘national law practice’ model as the foundation of their teaching and research missions. Though the foundations of that model have been challenged as perpetuating the power of wealthy elites and of contributing to the subordination of ethnic, religious and racial groups, and though some sectors of legal education have sought to avoid its pull, there are few who deny the power of the ‘national model’ as the dominant ideology of law school education.

Today law schools that embraced the national law model face a challenge similar to that confronted a century ago. But instead of confronting the challenge of a ‘national’ practice, legal education now confronts the realities of multi-jurisdictional practice, sometimes described as the internationalisation of law and legal practice, with little more than a heavily traditional set of approaches to teaching and scholarship. Legal practice, traditionally grounded in the laws of states from which American lawyers are licensed, and substantially overlain with national rule systems affecting virtually every aspect of legal relations in the United States, now increasingly includes activities dependent on the application of rule or norm systems beyond that of the state or nation. Everything from large-scale global business activity, to the movement of goods, people and services on the most modest scale, are tinged with issues the resolution of which requires facility with norm and legal systems other than the one from which a lawyer derives her license to practice law. And the freer movement of lawyers, as well as the provision of legal services, across borders, is becoming a larger reality in the market for legal services. Indeed, some within the legal academy have begun to recognise the inevitability of legal education confronting the realities of educating for a multi-jurisdictional market beyond the borders of the United States.

Law schools that fail to conform their educational mission to the realities of law and the practices of the great global legal actors — merchants, immigrants communities, non-governmental organisations, economic entities, banks and other users of legal services — will find themselves playing a limited (though no doubt important) role in the future of the development of law and the production of law and lawyers for the global marketplace.

The paper suggests a possible structure for analysis of the value of integrating the transnational element within the teaching, research and service of law school stakeholders. It will then propose a set of framework structures for incorporating the transborder element in law school curricular, research and service activities. The paper will consider three traditional models for incorporating the transborder element into law school curricula: the integration, aggregation and segregation models. Each seeks to modify existing resources and teaching/research models to incorporate a transnational element into the curriculum. Each model offers a number of benefits but also have some detriments. The paper then considers two emerging framework structures for the incorporation of transnational elements in legal education.

Context is critical; both current and future context must be assessed realistically. And it is also important to recognise that faculty preference and interest, as well as the ‘market’ for students, drive the extent and manner in which transborder issues may be incorporated into a law school’s mission, at least at this point in the development of a consensus of its general utility within American legal academic culture.

In addition, there is the issue of substance (or taxonomy). The traditional division of fields touching on transborder issues — international law, comparative law and foreign law — now may no longer realistically define the field. An assessment bounded by current or past understanding of the definition of the ‘fields’ contained within the objective (incorporating transborder legal issues within the curriculum) may substantially miss the mark.

No assessment of the necessity or form of incorporation of a transborder element in law school teaching and research can begin in the absence of an understanding of the mission of that law school. The reality of mission, rather than its formal articulation, must be the basis for assessment. That, in turn, is a function of a variety of factors.

(1) Preferences: A Law School must accept its past, and live in its present, but has some power to shape its future by changing the inputs that produce the preferences (and character) of its stakeholders. And in some schools, some success in this respect has been accomplished on a fairly modest budget. Even so, ‘there was some initial resistance to the proposal’ to internationalise the traditional domestic law curriculum.

(2) Abilities: The aptitude of faculty, over the long term, and their willingness to conform to changes in the values of the production of certain kinds of knowledge, will substantially affect the ability of a Law School to incorporate changes, including but not limited to the addition of the transborder element, to the curriculum and research.

(3) Consensus: An institution led unwillingly to follow any course of action acts at its own peril. The hard work of consensus building, of building a desire to participate based on fair assessments of future realities, present capabilities, and resources, and the benefits of success (a success that must be fairly shared among institutional actors) is critical in any program of change. Where consensus goes missing, failure, however packaged and veiled, will surely follow.

(4) Resources: A law school without the ability or will to commit the necessary resources to effect successfully the introduction of the transnational element into its teaching and research culture, ought not to engage in the exercise.

(5) Realistic Expectations: The realities of the hierarchies of the legal academy, and the rigorously enforced behavioral expectations that flow from that hierarchy are not lightly bucked. Well-resourced institutions at the top of the reputation pyramid can not only expend resources to more accurately divine the future, they can also expend resources to facilitate consensus and fund its attainment. That sort of facility is more difficult for less well resourced law schools, which tend to be placed further down the reputation ladder. This reality, usually avoided by the leveling rhetoric of academic self-assessments, is avoided at a law school’s peril.

The last point of the preceding discussion ought to lead to a focus on the third great leg of analysis: a realistic assessment of capability. Capability provides the baseline for a number of decisions: the cost of embracing a program of transborder legal education, the form that program may or must take, the cost of amassing sufficient capability to make any such program viable, the likelihood of success for the program to be implemented, and the consequences (especially in terms of resource allocation) of embracing any such program.

An inventory must take into account a number of things: (1) Current course coverage; (2) Potential course coverage given faculty ability and preferences; (3) Current programs in place; (4) Potential programs that might be implemented; (5) Necessary course coverage to meet the objectives of adding the transborder dimension in legal education; (6) Necessary programs to meet the objectives of adding the transborder dimension in legal education; (7) Necessary faculty additions to meet coverage, research and other programmatic needs; (8) Necessary administrative support necessary to support the programs.

A number of these inventory items may present difficulties. It may thus affect the form that any program of transborder legal issues may take.

There are three traditional models for incorporating the transborder element into law school curricula: the integration, aggregation and segregation models. Of course, no law school has committed to any single model; most law schools have sought to incorporate some aspect of each of the models. The mix chosen will depend on the resources available at a law school, as well as its sense of itself, its mission and its determination of the centrality of transnational law orientation for the future of the professions (law and legal academic).

(1) Integration model: The first is the most comprehensive and ‘deep’ form of integration, one that parallels the integration of ‘national’ law in law school curricula, research and service at the start of the 20th century. It is marked, at least in theory, by an attempt to refocus the educational and research hub of the law school from the national to the transnational to the greatest extent feasible. The object is to produce generalists.

This more or less comprehensive approach is complicated and requires a large institutional commitment in terms of resources and a willingness to change traditional academic culture. Thus, the integration model requires a certain amount of education of stakeholders and a willingness to develop programs for the long term. In the absence of this sort of comprehensive and long-term commitment, this form of international law programming is unlikely to prove successful.

(2) Aggregation Model: The second, and most popular, model of integration, is based on the ‘field of law’ or aggregation model, by which transborder issues are segregated and privileged as one among equals of areas of study of law — like labour, corporate or tax law. The strength of this approach lies in its ability to leverage conventional approaches to law teaching. The great danger of this approach is that it will reinforce the conventional framework that privileges a strictly delimited territorial approach to legal education.

Under this model, transborder law (however understood) is consolidated in a number of courses, the extent and number of which will vary with the tastes of a faculty, their resources, capacities and the perceived interests of their local markets. Perhaps additional programs, ad hoc or more institutionalised in nature, are established, and students are encouraged to take advantage of the ‘value added’ of such programs in the same way they would be encouraged to take advantage of other institutional resources that might be good for them.

At its least imposing, this approach is informal, easily integrated with other similar programs, and reducing any possibility of privileging the transborder element of law. At the Pennsylvania State University Law School, for example, the faculty adopted changes in the mandatory curriculum creating a requirement for a first-year law student elective. Among the elective courses offered is on ‘Transnational Law and Legal Issues.’ These sorts of aggregation or add-on programs can easily do more for the appearance of movement to an incorporation of a lively transborder component to legal education than actually make it so. It can suggest that transnational law neither presents systemic issues of education or approaches to law and legal practice, nor does it require a change in the way law is understood. It is an add-on course.

(3) Segregation Model: Under this approach, a law school creates an administrative device that serves as the institutional base from which all transborder programs can be developed, offered, assessed and participate in the education and research mission of the law school. This method is powerful. It can avoid the issue of systemic integration and the training of faculty across disciplines. It respects more or less traditional disciplinary boundaries within the conventional law school. It can provide an easy way to monitor resource allocation and the performance of the programs, now gathered together within a single subunit. It can also be combined with certificate or other specialised programs in legal education offered to willing law students.

Thus, rather than sending its students out into the world, it attempts to bring knowledge of the world to its students. But the resources required for this sort of program may be beyond the reach of all but a few schools.

Two emerging framework structures stand out among the less traditional approaches to the incorporation of transnational elements in legal education. The first, the immersion model, applies the lessons of economic globalisation to the business of legal education. The second, the multidisciplinary departmental model, is based on the idea that the transnational element in law is distinct enough to merit a substantial treatment in its own right.

(4) Immersion Model: The immersion method starts from the idea that law of other jurisdictions is best learned in those jurisdictions, with their students and in their language. It suggests that international and transnational law may require a sensitivity to context that makes collaborative efforts essential to understand all sides of any transaction involving the application of the law of multiple jurisdictions. As a consequence, a truly transnational program requires the participation of educational institutions in multiple jurisdictions.

The greatest expenditure would be focused on the cultivation and maintenance of webs of relationships with other institutions in other states. This would require arrangements that would permit American students to study in other places, with reciprocal rights in the students of the host institution.

But institutionalising these relationships, and rationalising them to provide a consistent and measurable cumulative educational experience would be more difficult. This is especially so where the object is not merely exchange, but the attainment of an educational experience sufficiently detailed to merit the awarding of a degree.

Moreover, it is not clear that leveraging the ‘domestic’ component of a network of globally placed law schools will provide any education in the transnational element of law. On the other hand, it requires much more administrative resources than academic resources. In a sense, this approach adapts the framework on which the E.U.s highly successful Erasmus and Socrates Programs are grounded.

Emerging Framework Structures: A Multi-Disciplinary Departmental Model for Incorporating the Transborder element in Law School Curriculum, Research and Service: Law schools have begun to consider the value of establishing schools or departments of international transactions or international affairs (a ‘DIA’).

A DIA can also serve as a space within which all of the transborder energies of a law school can be focused. This approach is essentially the conceptual opposite of the immersion model. Instead of incorporating the transnational element within the curriculum and research/service of a substantial portion of the faculty, the multidisciplinary department model starts with the assumption that the most efficient means of bringing the transnational element of law into law schools is to segregate the efforts.

Once segregated, the transnational elements can be extracted and privileged within an environment in which it can be amplified by other related disciplines — international relations, politics, economics and business, for example.

A DIA affiliated with a law school should differ in significant ways from a typical school or department of international or foreign affairs. A DIA should concentrate on the law aspects of all areas of international affairs. The DIA might then serve not only law students but also serve graduate students with an interest in international affairs from other university departments. In this form, such a department could serve as the focal point of a J.D. program as well as a department autonomous enough to make available its own graduate degree (a Master’s degree and ultimately perhaps even doctoral programs).

DIA could be most effective if it can avoid two great pitfalls. The first centers on the creation of a unit of graduate study that did little more than duplicate or focus substantive study in fields already offering graduate degrees at the university. The second centers on its affiliation with a law school. DIA could do more than merely serve as a basis for a focused legal postgraduate degree — a dressed-up LLM. To differentiate DIA, that is to justify its creation, DIA must offer something unlike anything offered at the other units of the University or otherwise within a law school.

DIA could create an environment in which to focus on all aspects of challenges that transcend national boundaries. Today, these challenges can be global, regional or bilateral. DIA could focus on the major transnational policy actors affecting and affected by law, actual current policy issues, the language and recognised approaches to contemporary policy analysis and the methodologies of implementation and monitoring of policy ‘as applied.’

To that end, the DIA curriculum could be built upon the realities of the actual ‘business’ of international affairs in the contemporary world.

An important step in the development of any DIA is the construction of a Vision and a Mission Statement. Though usually largely general, they can provide the boundaries for the implementation of any program.

A vision statement ought to provide a general framework within which a law-related program of international affairs could be constructed and against which such a program could be measured. The mission statement ought to provide the department with the opportunity to focus its objectives. It should memorialise a commitment to the teaching of transborder legal issues by indicating the nature of its commitment to the training of students and should indicate the nature of the department’s focus on research and service. The mission statement might also indicate the sort of training the department will impart. In addition, it might be worth considering the ways in which the DIA could leverage the particular strengths of the law school to which it is affiliated.

In considering the mission or vision statements, there should be a significant consideration of the ways the department could be built as an organisation that insists on respect for individual and intellectual diversity that defines the interdisciplinary vision demands from the faculty, staff, and students.

Realising the Mission/Vision: An Example of a Possible Core Curriculum: The core curriculum should reflect this understanding of the framework for international affairs. On this basis a core curriculum will be created consisting of the following yearlong courses as the foundation of any program of study in DIA. Each course described below would likely be a new course.

(i) Introduction to Actors in Institutional Affairs (2 semesters): This course is designed to introduce students to the principal actors in international affairs as well as to the frameworks within which they operate. The focus in this course will be on law and political science, with additional contributions from other disciplines.

(ii) Introduction to Current Policy Challenges (2 semesters): Provide the students with a comprehensive introduction to those areas of policy that form the basis of the current discussion within international affairs. This should be designed as a ‘topics’ course, with the topics changing from time to time to reflect the most significant policy issues of the day.

(iii) Analytical Methods (2 semesters): Provide the student with the tools to conceptualise, formulate, analyse, adopt, implement, and monitor policy through rigorous application of recognised modes of analysis.

(iv) Implementation (1 semester): The basic purpose of this course is to prepare students to become effective leaders in any organisation involved in international affairs. The students will be introduced to organisation theory, systems theory, sociology and organisational psychology, as well as the legal framework of organisational functioning. To a great extent, this course should be conceived as a practicum: how to get things done.

(v) Economic Analysis (1 semester): In addition to the four basic courses, the core curriculum might also include an introduction to economic theories. The emphasis should be on contemporary microeconomic theory. But substantial time should be devoted to introducing students to alternative theories of economic relationships. Since much policy difference can be ascribed to the embrace of fundamentally different and incompatible assumptions about economic behaviour, knowledge of these differences will be critical for developing analytical skills.

(vi) Additional Requirements: A number of additional requirements could be considered. The importance of these and additional courses will depend on the focus of the department, the degree of interaction with the law school, and the ultimate objective of the educational experience.

The interdisciplinary and cooperative potential of DIA will be realised beyond the core curriculum. The objective would be to combine this core training with specialised study in one or more areas. The curriculum also might draw upon regional or cultural subspecialties and language training.

All candidates for the Master’s degree will be expected to select an area of concentration (AC). ACs should reflect the evolving emphases of policy makers and the interests of our students. Most could be identified as the substance of the evolving core course Introduction to Current Policy Challenges.

The specific courses suggested for completing each of these concentrations, of course, would have to be developed at every institution. Once developed, students will also be encouraged to develop their own specialisation based on their needs and desires. Programs of concentration will be adopted in close cooperation with DIA core and affiliate faculty, who will act as program of study advisors to DIA Master’s students.

In addition, the law school would have to be sensitive to accreditation issues under ABA and AALS rules. These would require a showing that the additional programs would not substantially detract from the traditional J.D. program.

Internationalisation of the legal curriculum is inevitable. There are several possible responses to legal internationalisation. I have suggested one approach that I believe will pay significant dividends to law schools, the university of which they are part, and their faculty and students.

Whatever model is chosen, whatever choice is made, it is clear that at some level, the character of American legal education is changing.

Those changes might be resisted at the local level and for good reason (or not so good reason) by individual institutions. But change is coming nonetheless.