International Association of Law Schools Conference
The Role of Law Schools and Law School Leadership in a Changing World
Australian National University Canberra, Australia
May 26 – 27, 2009
ANU College of Law Funded Conference On-Site Expenses
Association of American Law Schools Funded Developing Country Participation and Staff Support to IALS
Zeit-Stiftung Ebelin und Gerd Bucerius and The Wang Family Foundation Funded Developing Country Participation
The Role of Law Schools and Law School Leadership in a Changing World
Welcome
It is an honour and a pleasure to welcome you, in my capacity as Chair of the Planning Committee, to this challenging IALS conference on 'The Role of Law Schools and Law School Leadership in a Changing World' — a conference that will ask the big questions about why we are here: do we have broader purposes than merely producing technically competent lawyers, what are those purposes, and how can we best achieve them?
The three previous IALS conferences (Suzhou 2007, Hamburg 2008 and Montreal 2008) have been immensely valuable in sensitising us to difference, opening our minds, and enabling us to learn from each other. That process will undoubtedly continue. But I wonder if in this conference — Canberra 2009 — we might push a little further and explore not only the differences that illuminate but also the commonalities that unite. Are there any universals that define our collective mission as law schools around the world in the 21st century?
The program has been put together by a wonderfully diverse planning committee, whom I want to acknowledge: Jassim Alshamsi, United Arab Emirates University, UAE; Nathalie Des Rosier, University of Ottawa, Canada; Tan Cheng Han, National University of Singapore, Singapore; Vera Kalvodova, University of Brno, Czech Republic; Tahir Mamman, Nigeria Law School, Nigeria; Arie Reich, Bar-Ilan University, Israel; Juan Vargas, Diego Portales University, Chile; Reese Hansen, Brigham Young University, USA (replacing the late Mary Daly, St John's University, USA); and myself as Chair from the ANU College of Law, Australian National University. I also acknowledge the valuable input from a very engaged IALS Governing Board, and the indispensable assistance from our very committed administrators in Washington and Canberra.
In my other capacity, as Dean of the host law school, the ANU College of Law, may I also welcome you warmly to Australia, Canberra, and the ANU. To get here, you have impressively overcome multiple barriers: the global financial crisis, a global outbreak of swine flu, having to obtain (in some cases with great difficulty) an Australian visa, taking time out from your busy lives, and travelling from the other end of the earth. I congratulate you! You are all clearly committed to advancing our collective global enterprise, and to doing so through this wonderful organisation, the International Association of Law Schools. I look forward very much to meeting you all, and to three rich and stimulating days of discussion, debate, and cultural exchange.
Michael Coper Dean, ANU College of Law
Chair, Planning Committee for the IALS Canberra Conference 2009
3 The Role of Law Schools and Law School Leadership in a Changing World
4
Table of Contents
Page
WELCOME ...... 3
PROGRAM...... 13
IALS GOVERNING BOARD ...... 21
PLANNING COMMITTEE ...... 23
CONFERENCE SPEAKERS ...... 25
CONFERENCE PARTICIPANTS ...... 29
IALS MEMBERS ...... 39
PARTICIPANT PAPERS ...... 47
Participant Papers Papers by Subject Matter; alphabetical by last name
EDUCATING OUR STUDENTS FOR WHAT? THE GOALS AND OBJECTIVES OF LAW SCHOOLS IN THEIR PRIMARY ROLE OF EDUCATING STUDENTS ...... 47
The Style of Legal Education as Applied to The Role of The Faculties of Law in a Changing World Osama Al Neimat, Jordan ...... 49
Research and Teaching in a Global Law School: The Case in Favor of Transnational Legal Research Networks Marcelo Alegre, Argentina ...... 51
What are the Goals and Objectives of Law Schools in Their Primary Role of Educating Students? What are We Educating Our Students for? Jassim Ali Salem Alshamsi, United Arab Emirates ...... 53
What are the Goals and Objectives of Law Schools in Their Primary Role of Educating Students? What are We Educating Our Students for? Ahmed Belal, Egypt ...... 55
The Role of Law Schools and Law School Leadership in a Changing World: A Reflection Paper Rick Bigwood, New Zealand ...... 59 Goals and Objectives of Law Schools under Bologna Process Salomé Adroher Biosca, Spain ...... 65
Legal Education and Development – Achieving Professional Competence and Pursuing Emancipatory Opportunities Roger Burridge, United Kingdom ...... 73
Nurturing Law Student Vision Alan Button, Korea ...... 79
What are the Goals and Objectives of Law Schools in Their Primary Role of Educating Students? What are We Educating Our Students for? Anthony J. Connolly, Australia ...... 83
Educating Lawyers for What? Reshaping the Idea of Law School Michael Coper, Australia ...... 87
Better Judicially Educate, Another Teaching Law Roch Gnahoui David, Sengegal ...... 93
Educating Our Students for What? The Goals and Objectives of Law Schools in Their Primary Role of Educating Students (Comments on Plenary I) – How Do We Actually Achieve Our Goals and Objectives? (Comments on Plenary III) Louis F. Del Duca, United States ...... 95
The Role of Law Schools in Founding and Reviving Legal Professionalism. The Need for Ethical Leadership Kim Economides, United Kingdom ...... 103
The Role of Law Schools and Law School Leadership in a Changing World Anton Fagan, South Africa ...... 107
A Comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires) Alejandro Gomez & Monica Pinto, Argentina ...... 111
Implications of Globalization for Legal Education Sibel Hacimahmutoglu, Turkey ...... 115
The Goals and Objectives of Law Schools in Their Primary Role of Educating Students Chumas C. Himonga, South Africa ...... 119
What are the Goals and Objectives of Law Schools in Their Primary Role of Educating Students? What are We Educating Our Students For? Vivien Holmes, Australia ...... 123 What is the Primary Task of Law Schools in a Changing World? What are We Educating Students For? Věra Kalvodová, Czech Republic ...... 127
Untitled Tahir Mamman, Nigeria ...... 131
The Goals and Objectives of the Caucasus School of Law in its Primary Role of Educating Students Zaza Maruashvili and Nodar Kereselidze, Georgia...... 135
The Role of Law Schools and Law Schools Leadership in a Changing World; A Special Reference to the Law Schools of Indonesia I Nyoman Nurjaya, Indonesia ...... 139
What are the Goals and Objectives of the Law Schools in Their Primary Role of Educating Students? What are We Educating Our Students For? V.S. Elizabeth, India ...... 141
Goals and Objectives of Law Schools in Their Primary Role of Educating Students Gurjeet Singh, India ...... 145
The Role of Law Schools in a Changing World Ranbir Singh, India ...... 149
What are the Goals and Objectives of the Law Schools in Their Primary Role of Educating Students? What are We Educating Our Students For? A.T.H. Smith, New Zealand ...... 153
The Role of Law Schools and Law Leadership in a Changing World – Polish Experience Jakub Stelina, Poland ...... 157
Building a New Paradigm in Law Education in Terms of Upholding the Rule of Law in Indonesia through Clinical Study Wasis Susetio, Indonesia ...... 161
Educating Our Students for What? The Challenge of The Market Margaret Thornton, Australia ...... 165
New Objectives of Law Schools in A Changing World A. Can Tuncay, Turkey ...... 169
Goals and Objectives of Law Schools: A Brief Discussion of Universals and Differences China and the United States Francis SL Wang, China ...... 175 WHY ARE WE HERE? THE GOALS AND OBJECTIVES OF LAW SCHOOLS BEYOND EDUCATING STUDENTS: RESEARCH, CAPACITY BUILDING, COMMUNITY SERVICE ...... 181
On Law Schools and Leadership Roberto Aponte Toro, Puerto Rico ...... 183
Purposes and Objectives of Law Schools – Beyond Educating Students (Research, Capacity Building, Community Service and Outreach) Noor Aziah Haji Mohd Awal, Malaysia ...... 189
Sustaining Law School Research and Service Mary Anne Bobinski, Canada ...... 193
The ‘Know Your Rights! Project’ Putting Community Service and Outreach in the Heart of the Law School and in the Heart of its Graduates Fatou Kiné Camara, Senegal ...... 201
Creating a Culture of Professional Responsibility and Community Service: A Leadership Role for Law Schools Bruce P. Elman, Canada ...... 207
The Third Strand of the Law School’s Mission: Capacity Building, Community Service and Outreach Simon Evans, Australia ...... 215
Purposes and Objectives of Law Schools Beyond Educating Students (Research, Capacity Building, Community and Outreach) Christine Haight Farley, United States ...... 219
A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires) Alejandro Gomez & Monica Pinto, Argentina ...... 111
The Role of Law schools in Research Development: The Asian Experience Kamal Halili Hassan, Malaysia ...... 225
Academic Legal Research and Academic Research Capacity Enhancement Terry Hutchinson, Australia ...... 229
The Goals and Objectives of Law Schools Beyond Educating Students: Research, Capacity Building and Community Service Gerhard Lubbe, South Africa...... 223
The Clinical Education Revolution: The Link between the Academic World and Legal Practice Arie Reich and Roni Rothler, Israel ...... 237 The Goals and Objectives of Law Schools Beyond Educating Students: Research, Capacity Building and Community Service Babaly Sall, Senegal ...... 241
Purposes and Objectives of Law Schools Beyond Educating Students (Research, Capacity Building, Community Service and Outreach) Karsten Schmidt, Germany ...... 245
The Role of Law Schools and Law Leadership in a Changing World – Polish Experience Jakub Stelina, Poland ...... 153
The Goals and Objectives of Law Schools Beyond Educating Students: Research, Capacity Building and Community Service Cheng-Han Tan, Singapore ...... 251
Building on “women’s law” across jurisdictions in Eastern and Southern Africa to Advance Research and Advocacy Skills Among Post Graduate Law Students Amy S. Tsanga, Zimbabwe ...... 255
Promoting the Rule of Law and Legal Education Around the Globe Michiel van de Kasteelen, The Netherlands ...... 261
Untitled Juan Enrique Vargas, Chile ...... 265
The Goals and Objectives of Law Schools Beyond Educating Students: An empirical study, based on qualitative data Fernando Villarreal-Gonda, Mexico ...... 269
HOW DO WE ACTUALLY ACHIEVE OUR GOALS? STRATEGIES AND TECHNIQUES TO REALISE OUR AMBITIONS ...... 273
Reflections on Teaching Access to Justice in Law School Reem Bahdi, Canada ...... 275
Achieving Our Goals: How Should We Teach Our Students? Stephen Bottomley, Australia ...... 287
Educating Our Students for What? The Goals and Objectives of Law Schools in Their Primary Role of Educating Students (Comments on Plenary I) – How Do We Actually Achieve Our Goals and Objectives? (Comments on Plenary III) Louis F. Del Duca, United States ...... 95
The Role of Government, Government Policy and Italian Law Faculties (1999-2009) Maria Gigliola di Renzo Villata, Italy ...... 295 Constituting the New Global Law School: Concrete Measurement of Legal Ethics and Justice Education Adrian Evans, Australia ...... 301
A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires) Alejandro Gomez & Monica Pinto, Argentina ...... 111
How Do We Actually Achieve Our Goals?: Strategies and Techniques to Realise our Ambitions Rosalind Mason, Australia ...... 309
Legal Education in Jordan for the 21st Century Mohamed Y. Olwan ...... 313
Building a New Paradigm in Law Education in Terms of Upholding the Rule of Law in Indonesia through Clinical Study Wasis Susetio, Indonesia ...... 157
WHAT IS THE ROLE OF THE DEAN INTERNALLY? LEADERSHIP ISSUES WITHIN OUR LAW SCHOOL.319
What Is The Role of The Dean Internally? Chioma Kanu Agomo, Nigeria ...... 321
What Is The Role of The Dean Internally? Joash Amupitan, Nigeria ...... 325
Nurturing Law Student Vision Alan Button, Korea ...... 79
What Have we Learned from Each Other? What Can we Learn from Each Other? Lafi Daradkeh, Jordan ...... 331
What Is The Role of The Dean Internally? Baldomero C. Estenzo, Philippines ...... 335
Leading a Regional and Rural Australian Law School Bee Chen Goh, Australia ...... 339
A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires) Alejandro Gomez & Monica Pinto, Argentina ...... 111
The Internal Role of the Dean of the Law Faculty at Freie Universität Berlin Helmut Grothe, Germany ...... 345 Being a Law School Dean in These Challenging Economic Times H. Reese Hansen, United States ...... 349
The Dean as Drudge? James C. Hathaway, Australia ...... 353
What Is The Role of The Dean Internally? Mike McConville, Hong Kong, China ...... 357
What Is The Role of The Dean Internally? Angelo Pantazis, South Africa ...... 365
The Leadership Role of the Dean Internally Jaroslaw Warylewski, Poland ...... 369
WHAT IS THE ROLE OF THE DEAN EXTERNALLY? LEADERSHIP ISSUES IN CONNECTING WITH OUR EXTERNAL COMMUNITIES ...... 373
Reflections on Law Deans and Leadership David Barker, Australia ...... 375
A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires) Alejandro Gomez & Monica Pinto, Argentina ...... 111
The Art of Balancing: The External Role of the Law School Dean Shashikala Gurpur, India ...... 381
The Dean as An Integral Member of The Legal Profession Lawrence K. Hellman, United States ...... 387
The Role of Law Schools and Law School Leadership in A Changing World on Being an “Outside Dean” Elizabeth Rindskopf Parker, United States ...... 391
External Roles of Deans of Color LeRoy Pernell, United States ...... 397
Synergies Between the Dean’s Internal and External Roles: The Examples of Fundraising Susan Westerberg Prager, United States ...... 401
WHAT HAVE WE LEARNED FROM EACH OTHER? WHAT CAN WE LEARN FROM EACH OTHER? THE ELUSIVE QUEST FOR UNIVERSALS IN A WORLD OF DIFFERENCE ...... 395
Universals in Law School Education Jay Conison, United States ...... 409 A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires) Alejandro Gomez & Monica Pinto ...... 111
Universals in Law School Education Molly Townes O’Brien, Australia ...... 419
The Role of Law Schools and Law School Leadership in a Changing World
INTERNATIONAL ASSOCIATION OF LAW SCHOOLS IALS Conference 2009
The Role of Law Schools and Law School Leadership in a Changing World
Monday 25 May 2009 – Wednesday 27 May 2009 Hosted by ANU College of Law Australian National University Canberra, Australia
All sessions are located in the University House unless otherwise noted.
SUNDAY 24 MAY 2009
13:00-17:00 Tours of National Institutions of Canberra Stops include: Australian War Memorial, National Museum of Australia and the National Gallery
Bus departs from the University House at 13:00 and returns to the University House at 17:00.
MONDAY 25 MAY 2009
09:00-19:15 Common Room Foyer Registration Main Floor
13:45 Common Room Welcome to Country from Indigenous Australians Main Floor
14:00-16:30 Common Room IALS General Assembly Main Floor
16:30 (Buses Depart) IALS Reception
Hosted by Her Excellency Ms. Quentin Bryce AC, Australia's 25th Governor-General Location: Government House, Yarralumla, Official Residence of the Governor-General of Australia
Buses will depart from the Main Entrance of the University House at 16:30. Buses will return to the University House at 18:00.
13 The Role of Law Schools and Law School Leadership in a Changing World 19:30 The Hall Dinner Hosted by the Law School Admission Council Main Floor
Host: Daniel O. Bernstine, President and CEO, Law School Admissions Council, Newtown, Pennsylvania, United States
TUESDAY 26 MAY 2009
09:00-09:15 Common Room IALS Canberra Conference 2009: Official Opening Main Floor
Introduction and Welcome Michael Coper, Dean, ANU College of Law; Chair, Conference Planning Committee
Welcome to ANU Ian Chubb, Vice Chancellor, ANU
Welcome to the Conference Mónica Pinto, University of Buenos Aires and IALS President
09:15-10:45 Common Room Plenary I – Educating Our Students for What? Main Floor The Goals and Objectives of Law Schools in Their Primary Role of Educating Students
Speakers • Kim Economides, Professor, University of Exeter Law School, United Kingdom • Gillian Triggs, Dean, University of Sydney Law School, Australia • Francis SL Wang, Dean Emeritus, Kenneth Wang School of Law, China
10:45-11:15 Hall Foyer Refreshment Break Main Floor
11:15-12:30 Common Room Plenary II – Why Are We Here? Main Floor The Goals and Objectives of Law Schools Beyond Educating Students: Research, Capacity Building, Community Service
Speakers • Roberto P Aponte-Toro, Dean, University of Puerto Rico School of Law, Puerto Rico • Mary Anne Bobinski, Dean, University of British Columbia Law School, Canada • Karsten Schmidt, Dean, Bucerius Law School, Germany • Fernando Villarreal Gonda, Dean, Facultad Libre de Derecho de Monterrey, Mexico
12:30 Walk to ANU College of Law for Official Photo
12:45 Official Photo of Conference Delegates
14 The Role of Law Schools and Law School Leadership in a Changing World
13:00-13:45 The Garden IALS Luncheon Hosted by ANU College of Law University House
13:45-15:15 Small Group Discussion of Plenaries I & II
See the handout in your materials folder for your small group assignment and its meeting room location.
15:15-15:45 Hall Foyer Refreshment Break Main Floor
15:45-17:15 Plenary III – How Do We Actually Achieve Our Goals? Common Room Strategies and Techniques to Realise our Ambitions Main Floor
Speakers • Ahmed Belal, Dean, University of Cairo Law School, Egypt • Gigliola di Renzo Villata, Professor, University of Milan, Italy • Adrian Evans, Associate Professor, Monash University Law School, Australia • Mike McConville, Dean, Chinese University of Hong Kong, China • Mohammad Olwan, College of Law, Yarmouk University, Amman
18:30 The Ottoman Restaurant IALS Dinner Hosted by ANU College of Law Blackall Street, Barton, ACT
Speaker Justice Michael Kirby, High Court of Australia (Retired 2009) and Distinguished Visiting Fellow, ANU College of Law, Australia
Buses will depart from the Main Entrance of the University House at 18:30. Buses will return to the University House at 22:00.
WEDNESDAY 27 MAY 2009
09:00-10:30 Common Room Plenary IV: What Is The Role of the Dean Internally? Main Floor Leadership Issues Within our Law Schools
Speakers • Chioma Kanu Agomo, Professor, University of Lagos, Nigeria • H. Reese Hansen, Professor, Brigham Young University, United States • Arie Reich, Dean, Bar Ilan University, Israel
10:30-11:00 Hall Foyer Refreshment Break Main Floor
15 The Role of Law Schools and Law School Leadership in a Changing World 11:00-12:30 Common Room Plenary V: What Is The Role of the Dean Externally? Main Floor Leadership Issues in Connecting with our External Communities
Speakers • Elizabeth R Parker, Dean, University of the Pacific McGeorge School of Law, United States • Shashikala Gurpur, Dean, Symbiosis Law School, India
12:30-13:45 The Hall IALS Luncheon Hosted by ANU College of Law Main Floor
13:45-15:00 Small Group Discussion of Plenaries IV & V
See the handout in your materials folder for your small group assignment and its meeting room location.
15:00-16:00 Common Room Plenary VI: What Have We Learned From Each Other? Main Floor What Can We Learn From Each Other? The Elusive Quest for Universals in a World of Difference
Moderator • Michael Coper, Dean, ANU College of Law, Canberra, Australia
17:30 The Boathouse Restaurant Conference Closing Dinner Hosted by ANU College of Law Grevillea Park, Menindee Drive Barton, ACT
Speaker The Honorable Robert French, Chief Justice of the High Court of Australia
Buses will depart from the Main Entrance of the University House at 18:30. Buses will return to the University House at 21:30.
THURSDAY 28 MAY 2009
09:30-12:30 Tours of National Institutions of Canberra Stops include: Parliament House, Old Parliament House and High Court of Australia
Bus departs from the University House at 09:30 and returns to the University House at 12:30.
16 The Role of Law Schools and Law School Leadership in a Changing World
ISSUES FOR DISCUSSION
PLENARY I – EDUCATING OUR STUDENTS FOR WHAT? The Goals and Objectives of Law Schools in Their Primary Role of Educating Students
Overview Is it the mission of law schools to go beyond producing technically competent and ethical lawyers? Does the mission extend to training lawyers to stand up for the rule of law, to work for law reform, to be community leaders? Should it? Is this a part of professional responsibility? What is the impact of globalization? Are we training lawyers for local, national, transnational or international practice?
Some possible questions • Is it the primary task of law schools to engage students in intellectual enquiry into the discipline of law, or to train lawyers for professional practice? If both, are these twin tasks complementary or opposed? How should this tension be resolved? • Beyond ensuring graduates are technically competent, how important are the following goals? o Ethics: embedding a sense of ethical conduct and professional responsibility o Rule of law: promoting a sense of duty as a lawyer to stand up for the rule of law, including the independence of the judiciary o Law reform: inculcating an aspiration to work for the improvement of the law and the operation of the legal system, and for the achievement of social justice o Leadership: educating for leadership and civic responsibility o Internationalisation: educating for globalization • What is universal and what is culture-bound in the values that underlie legal education? o Do, for example, the same values underlie education for the common law system that expects justice to emerge from adversarial combat before detached judges, and the civil law system that seeks a more objective truth through inquisitorial judicial intervention? o Is, for example, the core common law principle of an independent judiciary equally valued in civil law systems under which lawyers are educated directly for judicial office rather than drawn from an independent bar?
17 The Role of Law Schools and Law School Leadership in a Changing World PLENARY II – WHY ARE WE HERE? The Goals and Objectives of Law Schools Beyond Educating Students: Research, Capacity Building, Community Service
Overview Although often seen as the primary role, many law schools play a far greater role than simply that of educating future lawyers (discussed in Plenary I). For example, law schools may be a primary source of the research that advances legal knowledge. They may play a significant 'outreach' role in providing services to the community, through clinical programs, service of faculty members on government or community bodies, advice to government and non-government organizations, expert media commentary that educates the general public, and so on. Is this part of the core, defining business of law schools?
Some possible questions • What is the relative importance of these multiple roles? How do law schools balance them? Are they replicated throughout the world, or are they confined to certain cultures? Are there other roles beyond the roles identified above? • Why are these topics important? Are they important to everyone? How do these goals and objectives relate to the first panel topic of the goals of legal education? Why is research part of the mission of a law school? How important are law reform activities? • Is there a unifying theme that law schools have certain moral imperatives? If so, can law schools remain passive actors or mere educators? What are the pitfalls of activism by law schools or by faculty? Should a law school distance itself from or embrace the activities of its members?
PLENARY III – HOW DO WE ACTUALLY ACHIEVE OUR GOALS? Strategies and Techniques to Realise our Ambitions Overview If law schools really espouse the broad goals identified in Plenaries I and II, how do we achieve them? As far as the educational goals are concerned, is this primarily a curriculum issue? If so, how do we translate these goals into the curriculum, given the broad range of constituencies involved?
Some possible questions • Leadership. There is much learning in relation to curriculum and pedagogy so far as it relates to the transmission of legal knowledge and the acquisition of legal skills, but if we also take seriously the broader goals identified above, how do we address those goals? For example, if we assert that our law schools are training future leaders, are we consciously imparting leadership skills, or is this simply an accidental by-product of the students' education? • Ethics. How can we ensure that we produce ethical lawyers and lawyers with a sense of public service? Can law schools be expected to shape character, or merely to inform and sensitise students to their ethical responsibilities? Are the fundamentals of legal ethics universal, or do they vary from culture to culture? • Comparative law. How important is the study of comparative law and comparative practice? • When goals compete. How should the various goals of legal education be prioritised? In particular, how should this question be approached in the context of limited resources or even civil strife?
18 The Role of Law Schools and Law School Leadership in a Changing World • Government policy. What is the role of government and government policy in supporting or affecting the capacity of law schools to achieve their goals? • Thinking like a lawyer. Is rigorous analytical training to 'think like a lawyer' compatible with or antithetical to the promotion of broader goals such sensitivity to law reform and social justice? • Impact of legal education. Think about some of your country's (or the world's) greatest lawyers. Are they great because of or in spite of their legal education?
PLENARY IV: WHAT IS THE ROLE OF THE DEAN INTERNALLY? Leadership Issues Within our Law Schools
Some possible questions • Role. What role does the Dean play in achieving the goals of the law school? • Status. Is a Deanship an honorable, sought-after and respected position, or a drudge to be avoided at all costs in favour of the real business of research and teaching?
• Governance. What can we learn from a comparison of our diverse governance structures? Can 'best practice' be identified, or do different governance structures suit different cultures? What are the relative merits of a strong executive as against a more democratic governance structure? Who controls the curriculum?
• Leader/Manager. What are the normative factors influencing the Dean’s role? How does the Dean respond to external pressures in discharging his or her internal role? Are there factors that make the Dean’s role peculiar to his or her country, region, or type of institution?
A possible practical outcome in relation to professional development? • Are there practical measures that might be taken to share decanal experience globally? • Is there scope for mentoring and professional development programs, or does this make too many assumptions about the universality of leadership qualities, the availability of resources, and the scope of what is within the practical power of the Dean?
PLENARY V: WHAT IS THE ROLE OF THE DEAN EXTERNALLY? Leadership Issues in Connecting with our External Communities
Some possible questions • How do external factors affect the Dean’s role as leader, including governance issues? • What is the Dean’s relationship with alumni? • What is the Dean’s role in fundraising, law reform, and other external activities? • Generally, as manager, setter of policy, and leader: what factors influence the role of the dean? • How does the Dean ‘represent’ and promote the law school externally? • Are the Dean's internal and external roles compatible?
19 The Role of Law Schools and Law School Leadership in a Changing World PLENARY VI: WHAT HAVE WE LEARNED FROM EACH OTHER? WHAT CAN WE LEARN FROM EACH OTHER? The Elusive Quest for Universals in a World of Difference
Some possible questions • What can we learn from each other in considering the comparative role of law schools around the world and the comparative role of the law school Dean? • Are there any universals, or is it rather a matter of simply illuminating our understanding of our own system with the assistance of insights about other systems? • What explains difference in the comparative role of law schools around the world? Tradition, culture, resources, government policy, historical accident? • Is it possible for the conference to reach agreement on a 'communiqué' or 'manifesto', even if only aspirational, about the ideal role or roles that a law school might play in the advancement of civil society, or are the universals too elusive, too contentious, or too general to be useful?
20 The Role of Law Schools and Law School Leadership in a Changing World
International Association of Law Schools
Governing Board
Mónica Pinto, Universidad de Buenos Aires, Argentina IALS President
Francis SL Wang, Kenneth Wang School of Law, Soochow University, China IALS President-Elect
Carl C. Monk, International Association of Law Schools, United States IALS General Secretary/Treasurer
Mariam Hassan al-Khalifa University of Bahrain College of Law, Kingdom of Bahrain
Mohammad A. A. Al-Moqatei, Kuwait University College of Law, Kuwait
Noor Aziah Haji Mohd Awal, Universiti Kebangsaan Malaysia, Malaysia
Reem Bahdi, University of Windsor, Canada
Markus Baumanns, Bucerius Law School, Germany
Roger Burridge, University of Warwick School of Law, United Kingdom
Fatou Kiné Camara, Université Cheikh Anta Diop de Dakar, Senegal
Michael Coper, Australian National University, Faculty of Law, Australia
Dakas CJ Dakas, University of Jos, Nigeria
Vincenzo Ferrari, Universitá Degli Studi di Milano, Italy
Claudio Grossman, American University Washington College of Law, United States
Chuma C. Himonga, University of Cape Town Faculty of Law, South Africa
Flávia Piovesan, Pontifíca Universidade Católica de São Paulo, Brazil
V. S. Elizabeth, National Law School of Indian University, India
Fernando Villarreal-Gonda, Facultad Libre de Derecho de Monterrey, Mexico
21 The Role of Law Schools and Law School Leadership in a Changing World
22 The Role of Law Schools and Law School Leadership in a Changing World
IALS Educational Program The Role of Law Schools and Law Schools Leadership in a Changing World Planning Committee Members
Jassim Ali Alshamsi, United Arab Emirates University, United Arab Emirates
Michael Coper, Australian National University, ANU College of Law, Australia, Chair
Natalie Des Rosiers, University of Ottawa, Civil Law Section, Canada
H. Reese Hansen, Brigham Young University, United States
Věra Kalvodová, Masaryk University in Brno, Czech Republic
Tahir Mamman, Nigeria Law School, Nigeria
Arie Reich, Bar Ilan University, Israel
Cheng-Han Tan, The National University of Singapore, Singapore
Juan Enrique Vargas, Universidad Diego Portales, Chile
23 The Role of Law Schools and Law School Leadership in a Changing World
24 International Association of Law Schools Educational Program The Role of Law Schools and Law School Leadership in a Changing World
Australian National University Canberra, Australia May 27, 2009
Educational Program Speakers
Professor Chioma Kanu Agomo, University of Lagos, Nigeria, [email protected] Professor Chioma Kanu Agomo is the immediate past Dean of the Faculty of Law, University of Lagos, Nigeria. She is a graduate of Queen Mary College, University of London LL.B Second Class Upper Division, 1976 and LL.M 1977. She was called to Nigerian Bar in 1980. Chioma is a Fulbright Scholar and Fellow of International Training Centre of the ILO, Turin, Italy. She is the author of Modern Nigeria Law of Insurance, and Monograph on Labour Law, Nigeria, in the International Encyclopaedia of Laws by Kluwer. She teaches Labour Law, Insurance Law, Law of Contract and Gender and the Law.
Dean Roberto P. Aponte-Toro, University of Puerto Rico, Puerto Rico, [email protected]
Dean Ahmed Belal, University of Cairo, Egypt, [email protected]
Dean Mary Ann Bobinski, University of British Columbia, Canada, [email protected] Mary Anne Bobinski has served as Dean and Professor of Law at the University of British Columbia (UBC) in Vancouver Canada since July, 2003. UBC Law offers post-baccalaureate J.D. , LL.M. and Ph.D. programs to 675 students drawn from across Canada and around the world. The Faculty’s research centres focus on Asian Legal Studies, Environmental/Natural Resources Law, First Nations/Indigenous Legal Studies, Business Law, and Feminist Legal Studies. Dean Bobinski's research and teaching interests include torts, health law, health care finance and bioethics, legal aspects of HIV infection, and reproductive health law issues. She previously served as the John and Rebecca Moores Professor of Law and Director of the Health Law and Policy Institute at the University of Houston Law Centre in the United States.
Professor Maria Gigliola di Renzo Villata, University of Milan, Italy, [email protected] Prof. GIGLIOLA DI RENZO VILLATA, Full Professor since 1980, since 1984 is Professor with the Chair of History of Italian Law at the Facoltà di Giurisprudenza of Milan University; for the past few years she has also been holding a course of History of modern codifications, focused on legal European history between 18th and 20th Century. Most of her studies were devoted to family law, legal science and civil and criminal legislation from Middle Ages to present days. Recently, she published several essays on jurists' legal culture and role between 18th and 19th Century. Along her scientific career, she was always interested in lombard legal history, in different ages. She participated with papers in national and international Congresses in Italy and abroad, she lectured at the International School of Ius Commune of Erice and at different European Universities, particularly at Paris II University, where she taught as visiting professor . She was charged with the scientific coordination of various research projects, both national and local. She is on the directing Committee of the "Rivista di storia del diritto italiano", on the directing Counsels of the "Società Italiana di storia del diritto" and of french "Société d'histoire du droit", she is also member of "Istituto lombardo di scienze, lettere e arti". Since 1994 to 2000, she was Director of the Istituto di Storia del diritto italiano and since 1989 to 2006 she was Faculty scientific Director. Now she is Director of the Center for studies in justice at the Facoltà di Giurisprudenza of Milan University.
Professor Kim Economides, University of Exeter, United Kingdom, [email protected] Kim Economides is Professor of Legal Ethics and former Head at Exeter School of Law. In the 1990s he was Education Secretary to the Lord Chancellor's Advisory Committee on Legal Education & Conduct and founded the international journal Legal Ethics. He chairs the Hamlyn Trust and is series editor of the Hamlyn Lectures. He was appointed Specialist Adviser to assist scrutinizing the Legal Services Act 2007 and, in 2008, Distinguished Visiting Mentor at the ANU College of Law. From July 2009 he will be Professor and Director of the new Legal Issues Centre at the University of Otago, New Zealand.
Professor Adrian Evans, Monash University, Australia, [email protected] Adrian Evans is both an academic and a lawyer, with teaching and managerial responsibilities in legal ethics and clinical case supervision and a research record in legal ethics, clinics, the values of legal practitioners, and monitoring and controlling lawyer theft. Adrian has been closely involved in the development of the Global Alliance for Justice Education, is the co-chair of the International Bar Association’s Professional Ethics Committee and is a recipient of the Monash Vice-Chancellor’s Award for Distinguished Teaching. Adrian convenes legal practice programs at Monash Law School and is currently writing about enhanced processes of assessing lawyers’ individual ethics.
The Honorable Robert French, Chief Justice of the High Court of Australia, Australia
Dean Shashikala Gurpur, Symbiosis International University, India, [email protected] Dr. Shashikala Gurpur has done her B.Sc., LL.M, Ph.D and is the Principal, Symbiosis Law School and the Dean, Faculty of Law, Symbiosis International University, Pune. She holds a Ph.D in International Law from the Mysore University, State Government Youth Award, Gold Medal for topping in LL.M and was the AHRB Visiting Fellow, Edinburgh Law School. Currently, visitor in Foreign Service Institute, Government of India. She has 15 years of graduate and postgraduate teaching, advocacy and research experience along with 3 years of corporate and legal advisory experience enabling research and publications.
Professor H. Reese Hansen, Brigham Young University, United States, [email protected] H. Reese Hansen, Howard W. Hunter Professor of Law at Brigham Young University in Provo, Utah, USA, was dean of the Law School from 1989 to 2004. Professor Hansen is president-elect of the Association of American Law Schools. He serves on the Utah Supreme Court Advisory Committee on Professionalism. He served as a commissioner of the Commission on Uniform State Laws. He was trustee of the Law School Admission Council and member of the ad hoc advisory committee for the Sister Law School Program of the Central and East European Law Initiative of the American Bar Association.
The Honarable Michael Kirby, Australian National University, Australia Following his retirement from the High Court of Australia, Justice Michael Kirby accepted appointment as only the second Distinguished Visiting Fellow at the ANU College of Law. He joins former High Court Chief Justice Sir Anthony Mason as one of the College’s two Distinguished Visitng Fellows. Former Justice Kirby, who will be Sydney-based, will visit the College for up to a week at a time to meet with staff and students and to give talks to staff and students on topics of current interest. Justice Kirby has a strong connection with the ANU College of Law, having been Patron of the ANU Law Students’ Society as well as a member of the Advisory Board to the College’s Centre for International and Public Law. Justice Kirby was a member of the High Court of Australia from 1996 to 2009. He is one of Australia’s most distinguished jurists, and has been very active on the international stage. He was awarded an honorary doctorate of laws by the ANU in 2004.
Dean Mike McConville, The Chinese University of Hong Kong, Hong Kong, China [email protected] Professor Mike McConville, a graduate of the University of London (LLB) and the University of Nottingham (PhD) is Dean of the Faculty of Law, The Chinese University of Hong Kong. Among other posts, he has previously been Dean at City University of Hong Kong, Director of the Legal Research Institute at Warwick University and Head of the School of Law at Warwick University, Walter E. Meyer Professor of Law at New York University and Senior Tutor at the University of Birmingham. He was Convocation Trust Prize Scholar, University of London and winner (with his colleague Professor John Baldwin) of the Cobden Trust Human Rights Award. His main work has been in the broad area of criminal justice and he has specialised in empirical research supported by most of the major foundations. He is the author of some twenty books and over one hundred major articles.
Professor Mohamed Olwan, Yarmouk University, Jordan, [email protected] Mohamed Olwan is Professor of Law at University of Jordan. He is one of the founders of the Faculty of Law at Yarmouk University where he served as Dean from 2005-2008. He is the author of numerous articles and books on international law, human rights law, and issues of migration. He is a member of the Board of Trustees for the Jordanian National Center for Human Rights.
Dean Elizabeth Parker, University of the Pacific McGeorge, United States, [email protected] Dean Parker became the eighth Dean at Pacific McGeorge in 2002. For over a decade Dean Parker served in key federal government positions and several major law firms. Her fields of expertise include national security and terrorism, international relations, public policy and trade, technology development and transfer, commerce, and civil rights and liberties litigation. During her tenure as Dean at Pacific McGeorge, she has begun several grant-supported initiatives involving national security issues and high school-to-professional educational pipeline programs designed encourage at-risk students in the preparation for success in college and law school.
Dean Arie Reich, Bar Ilan University, Israel, [email protected]
Dean Karsten Schmidt, Bucerius Law School, Germany, [email protected] A doctorate and post-doctorate in Bonn, subjects: civil law, commercial law, business law, cartel law and civil procedural law. Professorship in Göttingen, Hamburg, Bonn. President of Bucerius Law School since 2004. Member of academies in Hamburg and Salzburg and Honorary Fellow of the Institute for Advanced Legal Studies, London, corresponding member of the Academia Nacional de Derecho y Ciencias Sociales, Cordoba/Argentina. He holds the honorary doctorates of the Universities of Athens (Greece) and Vienna (Austria). In 2006 he was awarded the Order of Merit of the Federal Republic of Germany. Editor of several law periodicals and has written textbooks on commercial and company law, as well as monographs, commentaries and numerous academic articles.
Dean Gillian Triggs, University of Sydney, Australia, [email protected]
Dean Fernando Villarreal Gonda, Facultad Libre de Derecho de Monterrey, Mexico, [email protected] Academic Dean, Facultad Libre de Derecho de Monterrey, Mexico. Licenciado en Derecho, Universidad de Monterrey, 1985. LL.M., Harvard Law School, 1990. DEA Droit International Privé et Droit du Commerce International, Université de Paris I, 1991. Maestría en Docencia Jurídica, Facultad Libre de Derecho de Monterrey, 2007. Board member of the IALS.
Dean Emeritus Francis SL Wang, Kenneth Wang School of Law, Soochow University, China, [email protected] Professor Wang is the Dean Emeritus and Professor of Law at the Kenneth Wang School of Law, Soochow University, Suzhou, China, as well as a Visiting Professor of Law and Distinguished Scholar in Residence at the University of Pacific – McGeorge School of Law. He is a Visiting Professor at the University of California at Berkeley where he is one of the founding members and the Senior Counsel of the U.C. Berkeley War Crimes Studies Center. He serves as the Executive Director of The Wang Family Foundation. In the field of education, Professor Wang is the President – Elect and one of the founders and a governor on the Board of Governors of the International Association of Law Schools, and a Trustee on the Board of Trustees and a member of the Executive Committee of Hampshire College, in Amherst, Massachusetts. He is a member of the Superintendent’s Advisory Board of the Napa Valley Unified School District, as well as a member on the Board of Advisors of the C.V. Starr East Asia Library at the University of California at Berkeley. He also serves as a Regent and Honorary Chair of the Board of Regents of Soochow University in China. Professor Wang has testified before the U.S. Senate, the U.S. Department of Commerce, the U.S. Trade Commission and the U.S. Trade Representative’s Office. He has published widely and lectures frequently in the United States, Europe and Asia on selected aspects of international law and related issues.
The Role of Law Schools and Law School Leadership in a Changing World
28 International Association of Law Schools Educational Program The Role of Law Schools and Law School Leadership in a Changing World
Australian National University Canberra, Australia May 27, 2009
Educational Program Participants
Osama al Neimat, Philadelphia University, Jordan, [email protected]
Marcelo Alegre, University of Palermo, Argentina, [email protected] Marcelo Alegre. LL.B. School of Law, Universidad de Buenos Aires, LL.M. (1999) and JSD (2004) New York University Law School. His doctoral dissertation, Egalitarian Rights and Constitutional Democracy was supervised by Thomas Nagel. He is a full-time Professor of Law at the Universidad de Palermo. He was a visiting professor at the law schools of the Universidad Pompeu Fabra, Spain; Universidad de Puerto Rico; and the Universidad de Chile, and a visiting researcher at the Stanford Center for Latin American Studies. He worked with Carlos Nino at the Consejo para la Consolidación de la Democracia and the Centro de Estudios Institucionales, and was counsel for former President Raúl Alfonsín. His interests are lmoral, legal, and political philosophy, human rights, constitutional law and legal education. He has published in Argentina and abroad on issues of equality, social rights, global justice, civil disobedience, conscientious objection, the flaws of presidentialism and transitional justice. His recent work includes the co-directed books El Derecho a la Igualdad (Lexis Nexis, 2007), and Homenaje a Carlos Nino (UBA, 2008). He is a board member of the Sociedad Argentina de Análisis Filosófico (SADAF), the philosophical journal Análisis, and a founding member of the IALS.
Jassim Ali Alshamsi, United Arab Emirates University, UAE, [email protected]
Noor Aziah Haji Mohd Awal, Universiti Kebangsaan Malaysia, Malaysia, [email protected]
Reem Bahdi, University of Windsor, Canada, [email protected] Reem Bahdi teaches access to justice, tort law and a course about torture and national security at the University of Windsor, Faculty of Law. Her research focuses on two areas: the human rights dimensions of national security laws and policies in Canada; and, access to justice in the Palestinian context. She is Co-Director of KARAMAH, a CIDA funded initiative which supports access to justice in Palestine through research, continuing judicial education and directed civil society engagement. She is co-Editor-in-Chief of the Windsor Yearbook of Access to Justice,, a board member of the IALS and the BC Civil Liberties Association.
David Barker, University of Technology, Australia, [email protected] Emeritus Professor David Barker AM. Secretary and Foundation Fellow, Australian Academy of Law; Secretary and former Chair and President, Australasian Law Teachers Association: Former Chair Council of Australian Laws Deans; Editor, Legal Education Digest. Sometime Dean, Law Faculties of University of Technology, Sydney and University of Westminster, United Kingdom.
Paula Baron, Griffith University, Australia, [email protected]
Daniel O. Bernstine, Law School Admission Council, United States, [email protected] Daniel O. Bernstine is the President of the Law School Admission Council. For the last decade, he served as president of Portland State University in Oregon. He was also dean of the University of Wisconsin Law School from 1990 to 1997. Dean Bernstine obtained his BA at the University of California, Berkeley (1969), a JD at Northwestern University School of Law (1972), and an LLM at the University of Wisconsin School of Law (1975). Prior to his tenure at Wisconsin, Dean Bernstine was a professor of law and interim dean at Howard University (1988-1990). He has been a visiting professor and lecturer all over the world, including Taiwan, Germany, and Cuba, and additional US law schools.
Rick Bigwood, University of Auckland, New Zealand, [email protected] Rick Bigwood is a Professor in the Law Faculty at the University of Auckland. His teaching and research interests lie principally in the area of contract law. He is currently Director of the Research Centre for Business Law in the Faculty.
Stephen Bottomley, Australian National University, Australia, [email protected] Stephen Bottomley is Associate Dean and Head of School, and Professor of Commercial Law at the ANU College of Law in the Australian National University. He has been a law teacher for 30 years, and joined the ANU in 1988. He teaches and researches in corporate law. His book The Constitutional Corporation – Rethinking Corporate Governance won the UK’s Hart Socio-Legal Prize in 2008 for the most outstanding piece of socio-legal scholarship. He is the co-author of the text Law in Context, now in its 3rd edition. He has not yet succeeded in merging his interest in bird-watching with his research.
Roger Burridge, University of Warwick, United Kingdom, [email protected] Professor Roger Burridge joined Warwick Law School in 1979. He was Head of the Law School from 2005 until August, 2008. Before joining Warwick, Roger was a barrister practising in London chambers and in Newham Rights Centre, a community law centre in East London. His main areas of practice were crime, housing and administrative law. Roger has published widely on legal education issues and has a particular interest in legal education and development. Until May 2006 he was the Director of the UK Centre for Legal Education, which is the Subject Centre for Law, funded by the UK Higher Education Academy to promote learning and teaching development throughout UK law schools. He has served as a consultant on legal education and development for the EU, USAID, and the British Council. He has worked on teaching projects including clinical teaching, curriculum development, quality enhancement and lawyer training in Chile, Ethiopia, India, Malawi, Montenegro, Poland, the Philippines, Tanzania, Uganda and Zimbabwe. He is a member of the Bar Vocational Board for the General Council of the Bar. and is on the Board of the International Association of Law Schools. In January 2005 he was appointed a Member of the Order of the British Empire for services to health and safety. In 2002 he was a Visiting Scholar at New York University Law School as part of the Hauser Global Law Programme and is currently Visiting Professor at University College Dublin. He is a founder member of the Free Representation Unit, a charity that provides free legal representation.
Alan Button, Handong International Law School, South Korea, [email protected] Dean Button received his LL.M. from Cambridge University, his J.D. from Washington and Lee University, and his A.B. from Cornell University. He served as a clerk for Judge Donald Russell of the U.S. Court of Appeals (4th Circuit) and then as an attorney with Nixon, Hargrave, Devans & Doyle in Rochester, New York. He later served Bausch & Lomb Incorporated as Litigation Counsel and then taught law for 19 years at Campbell University. Dean Button has also taught in Guatemala and as a Fulbright Senior Scholar in Slovenia. He is a member of the New York and North Carolina bars.
Lidia Casas, Universidad Diego Portales, Chile, [email protected]
Jay Conison, Valparaiso University, United States, [email protected] Jay Conison is Dean of the Valparaiso University School of Law in Valparaiso, IN (metropolitan Chicago), USA. He is currently Vice Chair of the Accreditation Committee of the American Bar Association Section of Legal Education and Admissions to the Bar and has previously served as Co-Chair of the Section's Clinical and Skills Education Committee. His fields of scholarship are legal education, legal philosophy, and employee benefits law.
Anthony J. Connolly, Australian National University, Australia, [email protected] Dr Anthony J. Connolly completed his BA.LLB (Hons) at the University of Western Australia. Following this he practiced as a lawyer for a number of years, predominantly in the areas of criminal law, indigenous rights law and native title. In 2001, he commenced teaching and research at the Law School of the Australian National University, specialising in legal philosophy, constitutional law, evidence and indigenous rights law. He is the author of a number of articles and book chapters on these topics. He has a Ph.D. in philosophy from the Research School of the Social Sciences at the Australian National University, under the supervision of Professors Philip Pettit (Princeton) and Robert Goodin (ANU). He is the editor of Indigenous Rights (Ashgate Publishing (UK): 2009).
Lillian Corbin, Griffith University, Australia, [email protected]
Michael Coper, Australian National University, Australia, [email protected] Professor Michael Coper is Dean of the Australian National University College of Law, and Immediate Past Chair of the Council of Australian Law Deans. He is a constitutional lawyer, and has worked in government and private practice. He has been much involved in the internationalisation of legal practice and legal education, participating in numerous Australian delegations to negotiate the export of Australian legal services and recognition of Australian legal qualifications. He has visited law schools in many countries, including Canada, India, Japan, Singapore, and the US. He is on the IALS Board, and chaired the planning committee for this conference.
Akram Daoud, An-Najah National University, Palestine, [email protected]
Lafi Daradkeh, Yarmouk University, Jordan, [email protected]
Louis Del Duca, Pennsylvania State University, United States, [email protected] Louis Del Duca is the Edward N. Polisher Distinguished Faculty Scholar and a professor at the Penn State Dickinson School of Law. He is a graduate of Temple University (B.A.), Harvard Law School (J.D.) and the University of Rome Law School (Dott. Di Giur.). He is a leader in the internationalization of American legal education and a member of the American Law Institute, and a United States collaborator to the Rome International Institute for the Unification of Private Law (UNIDROIT). Professor Del Duca serves as editor of the Uniform Commercial Code Law Journal and the Pennsylvania Bar Quarterly. He has published a great number of books, book chapters and scholarly articles in the areas of commercial, comparative, international and transnational law and in the field of legal education.
David Dixon, University of New South Wales, Australia, [email protected]
Bruce P. Elman, University of Windsor, Canada, [email protected] Bruce P. Elman, B.Sc. (McGill), LL.B. (Dal), LL.M. (Harvard) was appointed Dean of Law at the University of Windsor in 2000. Previously, Dean Elman was Belzberg Professor of Constitutional Law and Chair of the Centre for Constitutional Studies at the Faculty of Law, University of Alberta. Dean Elman has been Visiting Professor of Law at the Hebrew University of Jerusalem on two occasions (1988-1989 and 1995-1996). He has also been a Visiting Professor at Niigata University in Japan (1994). Dean Elman serves as Chair of the Board of Directors of Legal Assistance of Windsor, Community Legal Aid and the University of Windsor Mediation Service.
Baldomero C. Estenzo, University of Cebu, Philippines, [email protected] Dean Baldomero C. Estenzo graduated from the University of San Carlos, Cebu City, in 1963 with a degree of Bachelor of Science in Commerce, major in Accounting. After passing the 1963 Licensure Examinations for Certified Public Accountants, he enrolled in the College of Law at the University of the Philippines, where he graduated as No. 5 in 1968. He passed the 1968 BAR Examinations, the result of which was released in March of 1969. After taking his Oath as a Lawyer, he began to practice Law. At the same time, he was teaching Business Law subjects at the University of San Carlos and at the then Cebu College of Commerce (now University of Cebu). In 1979, he was hired as In- House Counsel of San Miguel Corporation in Mandawe City. He became an Assistant Vice President in 1990 and later, was promoted to Vice President and Deputy General Counsel. He retired from San Miguel Corporation on December 31, 2006. When the College of Law of the University of Cebu was established in 2002, he was appointed as Asst. Dean. At the same time, he was a Professor of Business Law. In 2007, he was appointed as Dean of the College, which position he is holding up to the present.
Simon Evans, Melbourne Law School, Australia, [email protected]
Anton Fagan, University of Cape Town, South Africa, [email protected] 1963 Born in Cape Town; 1986 BA (Law Stream) from the University of Cape Town; 1988 LLB from the University of Cape Town; Rhodes Scholarship to the University of Oxford; 1989 Research assistant to Dr Reinhard Zimmermann, Professor of Private Law, Roman Law and Comparative Legal History, Regensburg University, Germany; 1991 BA (Philosophy and Politics) from the University of Oxford; 1997 DPhil from the University of Oxford; Senior lecturer in the Private Law Department of the University of Cape Town Law Faculty; 2001 Associate Professor in the University of Cape Town Law Faculty; 2003 Humboldt Research Fellowship at the Max Planck Institute for Foreign and International Private Law, Hamburg; 2005 W P Schreiner Professor of Law in the University of Cape Town Law Faculty; 2006 Head of the Department of Private Law in the University of Cape Town Law Faculty; 2009 Deputy Dean (LLB) in the University of Cape Town Law Faculty.
Christine Haight Farley, American University, United States, [email protected] Professor Farley teaches courses in Intellectual Property Law, U.S. Trademark Law, International and Comparative Trademark Law, and Law and the Visual Arts. In addition, she serves as the Associate Dean for Faculty and Academic Affairs at the Washington College of Law and as Co-Director of the Program on Information Justice and Intellectual Property. Before joining the law faculty at American, Professor Farley was an associate specializing in intellectual property litigation with Rabinowitz, Boudin, Standard, Krinsky & Lieberman in New York. She received her B.A. from Binghamton University, her J.D. from University at Buffalo Law School, and her LL.M. and J.S.D. from Columbia Law School. Professor Farley's scholarly work is in the areas of on intellectual property, international law and art law. Her current projects study the intersection of art and IP; and the unstable basis of rights in the development of trademark law. She has just completed a book chapter on art law and is finishing a casebook on international trademark law. Professor Farley has been a visiting professor at the University of Puerto Rico, where she taught art law, at the University of Paris X-Nanterre, where she taught international intellectual property law, and at Monash University’s Program in Prato, Italy where she taught comparative trademark law. In addition, she has lectured on intellectual property law in Australia, Canada, Columbia, Cuba, Jordan, Mongolia, Namibia, Panama, Peru, Portugal, Scotland and Turkey.
Bill Ford, University of Western Australia, Australia, [email protected]
Bee Chen Goh, Southern Cross University, Australia, [email protected] Professor Bee Chen Goh is the Head, School of Law and Justice at Southern Cross University, Lismore, New South Wales, Australia. She is also the Co-Director of the Centre for Peace and Social Justice at Southern Cross University. Her current research deals with 'Peace as a human consciousness movement in the development of contemporary International Law', with a focus on the increasingly significant role of the individual-collective in influencing international legal principles. She believes firmly in equity, diversity, access and opportunity.
Alejandro Gomez, Universidad de Buenos Aires, Argentina,
Helmut Grothe, Free University Berlin, Germany, [email protected] Professor Dr. Helmut Grothe (*1960) has been the Dean of the Faculty of Law at the Free University of Berlin since April 2009. He is also the director of the Institute for Private International Law, International Civil Procedure and Comparative Law at the Free University of Berlin. His Doctorate thesis on International Corporate Law was published 1989. In 1998 he presented his Habilitation thesis on International Currency Law, and the University of Osnabrück conferred upon Prof. Dr. Grothe the venia legendi for the subjects Civil Law, Civil Procedure, Private International Law, Comparative Law, Commercial and Corporate Law.
Sibel Hacimahmutoglu, Hacettepe University, Turkey, [email protected] LL.B., Ankara, 1984; LL.M. (in law), Ankara, 1987; Ph.D. (in law), Leicester, 1998. Following graduation from law school, while I was pursuing my post graduate degree, I worked as an intern for the Bar Association of Ankara from 1984 to 1985 and I worked as a research assistant at Hacettepe University from 1985 to 1994. Upon completion of my LL.M. at Ankara University I pursued and obtained my Ph.D. at Leicester University in United Kingdom specializing in corporate governance. Following obtaining my Ph.D., I worked as a Lecturer at Galatasaray and Bilgi University in Istanbul. Since 2007 I teach company, EU Ccompany and commercial law at Hacettepe University and serve as Vice Dean of Hacettepe University Law Faculty.
Abdul Halim bin Sidek, Universiti Teknologi MARA, Malaysia, [email protected]
Kamal Halili Hassan, Universiti Kebangsaan Malaysia, Malaysia, [email protected]
James C. Hathaway, Melbourne Law School, Australia, [email protected]
Lawrence K. Hellman, Oklahoma City University, United States, [email protected] Lawrence K. Hellman is dean and professor of law at Oklahoma City University. He received his B.S. degree from Washington & Lee University and M. B. A. and J.D. degrees from Northwestern University. Before commencing his teaching career, he served for four years as an attorney with the Antitrust Division of the United States Department of Justice. He has been a member of the Oklahoma City University School of Law faculty since 1977 and became dean in 1998. His teaching and research have focused primarily on the legal profession.
Chuma C. Himonga, University of Cape Town, South Africa, [email protected] Professor of Law at the University of Cape Town; teaches the Law of Persons and Marriage, and African Customary Law; research interests in these fields of law and in children’s and women’s rights; past deputy dean of the University of Cape Town Faculty of Law; and member of the International Association of Law Schools.
Vivien Holmes, Australian National University, Australia, [email protected] Vivien teaches Legal Ethics in the ANU College of Law’s pre-admission practical legal training programme. She also supervises clinical students at ACT Legal Aid. Prior to academe, she worked in private and government practice, government policy work, as a court registrar, deputy coroner and on the Social Security Appeals Tribunal. Publications include ‘What is the right thing to do? Reflections on the AWB scandal and legal ethics’ in Farrall and Rubenstein (eds) Sanctions Accountability and Governance in a Globalised World, (forthcoming, 2009); The Power of Rationalization to Influence Lawyers’ Decisions to Act Unethically.” (with Kath Hall, ANU)
Terry Hutchinson, Queensland University of Technology, Australia, [email protected] Terry Hutchinson is a Senior Lecturer within the Queensland University of Technology (QUT) Law School. Her specialist areas are postgraduate legal research training, criminal law and access to justice. Dr Hutchinson has been a pioneer in the development of legal research skills methodologies and training in Australian law faculties. Over the past 15 years, Terry has produced books and refereed articles. In 2006 she published the second edition of her text Researching and Writing in Law. Terry has researched and published refereed articles on refugee children’s rights, youth justice and equalising opportunities in the law. In 2004 and 2006 she visited Canada working on these research programs. Terry Hutchinson chairs the Queensland Law Society's Equalising Opportunities in Law Committee, is a member of the Law Council of Australia Equalising Opportunities in Law Committee and serves on the Executive of the Australasian Law Teachers' Association (ALTA). Terry has served as Editor in Chief of (2004-2008) and on the Editorial Committee (2008) of the peer reviewed Legal Education Review.
Věra Kalvodová, Masaryk University, Czech Republic, [email protected] Ms. Věra Kalvodová has been working at the Masaryk University Faculty of Law since November 1990. She serves as the Vice-dean responsible for science and international affairs. She is Associate Professor in the Department of Criminal Law. The areas of her expertise are Criminal Substantive Law, Criminal Procedural Law, Comparative Law and Penology. She deals namely with the system of criminal sanctions, alternative punishments and prison system. Ms. Kalvodová works as the advisor at the Supreme Court of the Czech Republic, as well. She is also a member of International Criminal Law Network.
Nodar Kereselidze, Caucasus Law School, Georgia, [email protected] Education: 2005–2006 Danube University Krems (Austria) Department of European Integration and European Business Law Master’s Degree in European Law and European Economy and Business (M.E. S. Master in European Studies); March-July 2002 University of Saarland (Germany) Diploma for the Summer Semester Course of study: EU Law, German Law; 1999-2004 Ivane Javakhishvili State University of Tbilisi Department of International Law and International Relations Specialization: International Law Diploma of Law with Honors; 1999-2004 Ivane Javakhishvili State University of Tbilisi Department of Economics Specialization: Finances and Banking, Bachelor’s Degree in Economics. Professional Background: February 09-Present Ministry of Agriculture of Georgia - Head of the Policy Analysis Unit; 2008-2009 Ministry of Agriculture of Georgia Adviser to the Minister; 2007-2008 European Public Law Center – Athens, Greece Researcher; 2007-Present Caucasus University, Caucasus School of Law Assistant Professor 2007-2008 Caucasus University, Caucasus School of Law Director of Graduate Studies; 2006-2007 National Democratic Institute for International Affairs (NDI) Adviser of the Speaker of the Parliament of Georgia; 2005-2006 Ministry of Foreign Affairs of Georgia Attaché of the Department of International Organizations
Gerhard Lubbe, University of Stellenbosch, South Africa, [email protected] Studied at the University of Stellenbosch and the Yale Law School, professor of Law at Stellenbosch since 1977, appointed as dean in 2007; sometime member of SA Law Commission’s Project Committee on Unfair Contract Terms and member, Standing Commission on the Reform of Contract Law; co-author of two textbooks on Contract Law, contributor of numerous articles to scholarly journals; teaching and research interests comprise Contract, Assignment, International Sales, Estoppel; Organiser of and participant, South African Lawyer’s Conference, held with exiled ANC lawyers in Harare in January 1989.
Tahir Mamman, Nigerian Law School, Nigeria, [email protected] Current Job: Director General, Nigerian Law School (2005 – to date). Former Jobs: Deputy Director-General & Head of Kano Campus of the Nigerian Law School (2001 – 2005). Taught in the University of Maiduguri before moving to the Nigerian Law School (2001). Acting Dean of Law, University of Maiduguri, Dean, Students Affairs University of Maiduguri (1985). Academic area of Specialization Constitutional Law
Zaza Maruashvili, Caucasus Law School , Georgia, [email protected] Education: 1996-1999 Doctorate Post-Graduate Courses at Moscow City Pedagogical University, Certificate D#11/01; 1982-1986 Post-Graduate Courses at Tbilisi State University Certificate #39; 1977-1982 Kutaisi State Pedagogical Institute; Faculty of History and Philology Qualified teacher of Georgian Language and Literature and History Diploma G-I #174347 Scientific Qualification: 1990 Candidate of Historical Sciences (Ph.D.) IT#015223; 2000 Doctor of Historical Sciences (Russia), Diploma DK#001724; 2004 Certified by the Georgian Scientific Experts Council, Code 07.00.03 - World History (Diploma 001414) Professional Background: September 2005 - Present Dean of Caucasus School of Law of Caucasus University; 2005 Caucasus School of Business ,, Law’’ Program Manager; 2004- 2005 The Georgian David Aghmashenebeli University, Vice-Rector for Education and Scientific Department; 2004 – 2006 The S-S Orbeliani Pedagogical University, Professor At the Chair of World History; 1999-2004 Adjara Autonomous Republic, Council of Ministers,Head of Department for Education, Science and Culture; 1995-1999 Tbilisi City Hall, Head of Main Department for Education; 1991-1995 Tbilisi #1 Experimental Secondary School, Director; 1989-1991 Tbilisi Saburtalo District Party, Instructor; 1986-1989 The Georgian Agriculture Institute, Senior teacher at the Chair of History; 1985-1986 Terjola Regional Young Communist League Secretary; 1982-1985 Georgian Young Communist League, Central Committee, Instructor; Scientific Works: One monograph and nearly twenty research theses Rewards and Prizes: 1982 Medal for “Labor Success”
Rosalind Mason, Queensland University of Technology, Australia, [email protected] Professor Rosalind Mason is Head of the Law School at the Queensland University of Technology, Brisbane. She has a Doctor of Philosophy from the University of Queensland on insolvency and private international law. After practising as a solicitor, Rosalind began her academic career at the University of Southern Queensland. In 2007, she was appointed to QUT and heads one of the largest law schools in Australia. She is Chair of the Australasian Law Teachers Association that represents the interests of more than 1,000 law teachers in Australia, New Zealand, Papua New Guinea and the Pacific Islands.
Luke McNamara, University of Wollongong, Australia
Carl C. Monk, International Association of Law Schools, United States, [email protected] Carl C. Monk recently retired from his position as Executive Vice President and Executive Director of the Association of American Law Schools, a position he held since 1992. He is currently on leave from the position of Distinguished Professor of Law at Washburn University, where he also served as Dean for ten years. His primary teaching and research is in the field of Constitutional Law, with a particular emphasis on “The Press and the First Amendment.” He received his B.A. from Oklahoma State University and his J.D. from Howard University School of Law. In his role as chief executive officer of the Association, he spoke throughout the world on the role of voluntary associations in improving the quality of legal education and the legal profession. He is the founding President of the International Association of Law Schools and is currently serving as the Secretary/Treasurer of the IALS. He taught a Comparative Media Law course at the American University, Washington College of Law. He has been a visiting professor at the University of Hawaii School of Law, and a visiting scholar at Brooklyn Law School.
I Nyoman Nurjaya, Brawijaya University, Indonesia, [email protected] I Nyoman Nurjaya is a teaching staff Faculty of Law and Head Postgraduate School of Law Brawijaya University. He graduated in law from Faculty of Law Brawijaya University in 1980. In 1985 he earned his masters of law from Postgraduate School of Law Gadjah Mada University. And in 2001 he reached degree of Doctor in Legal Antropology from Indonesia University. Since 2007 he has been a Professor of Law at Faculty of Law Brawijaya University. His specializations are primarily in the subjects of legal anthropology, natural resources law, and environmental law. Recently, he published his books in bahasa Indonesia entitled (1) Magersari: Dinamika Kehidupan Petani-Pekerja Hutan dalam Perspektif Antropologi Hukum (Magersari: The life of Forest Peasants and Workers in the Perspective of Legal Anthropology); and (2) Pengelolaan Sumber Daya Alam dalam Perspektif Antropologi Hukum (Natural Resources Management in the Perspective of Legal Anthropology).
Molly O’Brien, Australian National University, Australia, [email protected] Molly Townes O’Brien is an Associate Professor at the ANU College of Law, where she teaches Evidence, Litigation and Dispute Management and Criminal Justice. Molly has served on the law faculties of Emory University, University of Akron and University of Wollongong and is a former chair of the AALS Education Law Section and former co-chair of the Clinical and Skills Education Committee of the ABA Section on Legal Education and Admissions to the Bar. Prior to entering the academy, she worked as a judicial clerk and as a public defender. She writes on issues relating to race, education, criminal law, and trial theory and practice.
Rosemary Owens, The University of Adelaide, Australia, [email protected] Professor Rosemary Owens is Dean of Law at The University of Adelaide. Professor Owens’ scholarly interests are the law of work (including employment, labour and industrial relations law, and anti-discrimination law), constitutional law, and feminist- and socio-legal theory. She has taught a range of courses at both post-graduate and undergraduate levels in these areas. Professor Owens is the co-author of The Law of Work (OUP, 2007), which presents a reappraisal of the regulation of work in Australia in the global era. Her publications also include a collection of essays, entitled Precarious Work, Women and the New Economy: The Challenge to Legal Norms (Hart Publishing, 2006).
Angelo Pantazis, University of the Witwatersrand, South Africa, [email protected]
Stephen Parker, University of Canberra, Australia, [email protected]
LeRoy Pernell, Florida A&M University, United States, [email protected]
Mónica Pinto, Universidad de Buenos Aires, Argentina, [email protected]
Susan Westerberg Prager, Association of American Law Schools, United States, [email protected] Susan Westerberg Prager, succeeded Carl Monk as Executive Director, the chief executive officer of the Association of American Law Schools (AALS) last year. (The AALS is an organization of 171 U.S. Law Schools that meet AALS membership criteria. The AALS Annual Meeting, attended by approximately 3,000 people each year, is the largest gathering of law professors in the world. AALS provides staff support to the IALS and has provided significant seed funding for the IALS throughout its formative years). Professor Prager is a graduate of Stanford University with honors in history. She earned an M.A. in history from Stanford and a J.D. from UCLA School of Law. She joined the UCLA law faculty in 1972, later serving for 16 years as Dean (1982-1998), the longest tenure of any Dean in the UCLA School of Law’s history. Under her leadership the law school established programs in public interest law and policy, business law, and environmental law. The size of the faculty devoted to clinical programs and international subjects also grew significantly. She led one of UCLA's first public/private partnerships to dramatically expand the law school facilities and built a significant fundraising effort at a law school that was younger than she was at the time she became Dean. She served as President of the AALS in 1986-87, the second woman ever to serve in that role. She has served as a Trustee of Stanford University, Provost of Dartmouth College, President of Occidental College. She is the Arjay and Frances Fearing Miller Professor of Law, Emeritus, at UCLA. Throughout her career and in a multiplicity of settings, Professor Prager has been a strong voice for racial diversity and has furthered the work of a wide range of disciplines and perspectives. Her early research centered on family property law, particularly community property. In more recent years her research has focused on the legal history of California.
Murray Raff, University of Canberra, Australia, [email protected]
Babaly Sall, U.F.R Sciences Juridiques et Politiques, Senegal, [email protected]
V.S. Elizabeth, National Law School of India University, India, [email protected] V.S. Elizabeth, Additional Professor teaching history and women & law related subjects since 1991 at the National Law School of India University. I am the Coordinator of the Centre for Women and Law since 1994 as well as the Coordinator of the International Student Exchange Program since 2003 at NLSIU. I teach historiography, History of Pre-British India and Legal History of India. My area of interest in Women and Law is Violence Against Women with specific focus on Domestic Violence and Sexual Harassment of Women from the perspective of Human Rights.
Ranbir Singh, National Law School University, Delhi, India, [email protected] Prof. (Dr.) Ranbir Singh is the Founder Vice-Chancellor of National Law University, Delhi established by the Delhi Government in 2008. He was the Founder Vice-Chancellor of NALSAR, University of Law, established by the Andhra Pradesh Government in 1998 and has been there for ten years as the Vice-Chancellor of the well-known premier institution for legal education and research in the country which was rated as one of the Best Law University in the Country in the year 2008 in ‘India Today’. Prof. Singh’s contribution in redesigning legal education in the country has been significant while he was a member of the Legal Education Committee of the Bar Council of India. His legal writings span the areas of Jurisprudence, Human Rights, Legal Education, Legal Aid, Personal Law and Justice, Education and has more than 50 research publications to his credit. He has edited two publications one on “Human Rights Education, Law and Society” and the other on “Cyber Space and the Law – Issues and Challenges”. He has also authored along with Prof. A. Lakshminath two scholarly publications one on ‘Fiscal Federalism – Constitutional Conspectus’ and the other on Constitutional Law. He has associations with several national and international organisations in advisory capacities.
Gurjeet Singh, Rajiv Gandhi National University of Law, India, [email protected]
Tony Smith, Victoria University of Wellington, New Zealand, [email protected] Professor A.T.H. (Tony) Smith is currently Pro-Vice Chancellor (Government Relations), Dean of the Law Faculty and Director of the New Zealand Centre for Public Law at Victoria University of Wellington. A New Zealander by origin (LL.M., 1st, Canterbury 1972), he has spent much of his academic career in England, latterly at Cambridge where he was for a period Chairman of the Faculty and from which university he holds the LL.D. degree. He is a Life Fellow of Gonville and Caius College. Prior to Cambridge, he was a Reader at the University of Durham (and briefly Dean) and Professor at the University of Reading (and Dean equivalent there). He was the Chair of the Committee of Heads of University Law Schools. He has held visiting Professorships at the University of Iowa, Northwestern University, Paris II, City University (London) Auckland and Otago. He is a Barrister and an Honorary Bencher of the Middle Temple and a Tenant of the Media Law set 5 Raymond Buildings in London. His books include (with Sir David Eady), Arlidge, Eady and Smith On Contempt (3rd ed 2005) and Glanville Williams, Learning the Law (13th ed 2006), and with A.P. Simester ed, Harm and Culpability (1996).
Jakub Stelina, Gdansk University, Poland, [email protected]
Herman Suryokumoro, Universitas Brawijaya, Indonesia
Wasis Susetio, University of Indonusa Esa Unggul, Indonesia, [email protected]
Chris Symes, Flinders University, Australia, [email protected] Dr Symes is Deputy Dean of Flinders Law School in Adelaide, Australia. He has been a tenured academic at Flinders University since 1993. He worked as an accountant and hospital administrator before studying law and upon graduating he practised as a commercial lawyer before moving to academia. Dr Symes holds Masters degrees in Law and Education and his doctoral studies were in the field of corporate insolvency. Dr Symes is the author of 4 books and has current research projects in comparative bankruptcy law. Dr Symes is Director of Studies and sits on Academic Senate at Flinders University.
Cheng Han Tan, The National University of Singapore, Singapore, [email protected]
Margaret Thornton, Australian National University, Australia, [email protected] Margaret Thornton is Professor of Law and ARC Professorial Fellow at the Australian National University. Her research interests include discrimination law and policy, the legal academy, the legal profession and feminist legal theory. A recent research project has addressed the impact of neoliberalism and the new knowledge economy on legal education and the legal academy. She is a Fellow of the Academy of Social Sciences in Australia and a Foundation Fellow of the Australian Academy of Law.
Amy S. Tsanga, University of Zimbabwe, Zimbabwe, [email protected] Amy S. Tsanga. Senior lecturer in Law at the University of Zimbabwe. Deputy Director of the Southern and Eastern African Regional Centre for Women’s Law. Areas of specialisation include gender and human rights, and law and social justice. Also strong interest in community legal education. Author of Taking Law to the People: Gender Law Form and Community Education in Zimbabwe( Weaver Press 2003)
Aziz Can Tuncay, Bahçeşehir University, Turkey, [email protected] He was born in Ankara in 1944. After graduation from high school he began to study law at Ankara University Faculty of Law. After graduation he began his academic career as an assistant professor at the Faculty of Law at Istanbul University. His main field of specialization is Labour and Social Security Law. In 1975 he obtained a Ph.D. Degree. He became associate professor in 1980 and a full professor in 1988. He taught Labour Law and Social Security Law for 32 years at same faculty. In 2000 after choosing retirement from Istanbul University he joined the staff of Bahçeşehir University Law Faculty. There he teaches Labour Law, Social Security Law and Law of Obligations. During his academic career he has visited some foreign universities where he studied, researched and occasionally delivered some lectures by getting scholarships. Between 1973-1975 he visited the Law Faculty of University of Zürich, in 1977he visited the Maximillian University in Münich and in 1983 he visited the University of Kentucky, College of Law as a Fulbright scholar for one year. In the year 2001 he visited Sweden’s University of Lund, Faculty of Law for a short time. He has published twelve books and a number of articles and papers as much as 300 on a variety of subjects but mostly on Turkish Labour and Social Security Laws. Since 1976 beside his academic career he is a practicing attorney at law and serving as a legal consultant to some national and international trade companies. Michiel van de Kasteelen, Utrecht University, Netherlands, [email protected] Drs. Michiel van de Kasteelen studied International Law and International Relations at Leyden University. After having been the youth representative in the Netherlands delegation to the UN General Assembly, he has held positions in international youth work, the United Nations Association, as well as in organisations for development cooperation, specifically Oxfam-Novib. Since 1992 he is the Head of the International Office of the Utrecht School of Law (Faculty of Law, Economics and Governance). In that capacity he deals with student and staff exchange as well as international projects. He has represented Utrecht in ELFA and its working group on Quality Assurance
Juan Enrique Vargas Viancos, Universidad Diego Portales, Chile, [email protected] Law School Dean at the Diego Portales University (2008). Expert for the High Public Direction of the Civil Service in Chile. Member of the Executive Committee of the National Center on Arbitrage in Chile. Awarded special recognition by the Universidad Tecnológica of Monterrey, México, due to academic performance and contribution to the Judicial Reform in the Americas (2008). Executive Director of the Justice Studies Center of the Americas, International Organization created by the OAS to promote the Judicial Reform in the Region (2000-2008). Director of the Law Research Center, (1999-2000), Professor of Criminal Procedure and litigation, and Researcher (since 1997) at the Law School. of the Diego Portales University. Advisor to the Ministry of Justice in Chile (1990-1997). Director of Centro de Desarrollo Judicial from Corporación de Promoción Universitaria (1994-1997). Founder and Director of the Program on Training, Administration and Judicial Policies Reform in Chile. Member of the Board that directed the Criminal Procedure Reform in Chile (1993-2000). Consultant and Advisor to different programs of Judicial Reform in several countries of the Region, such as Argentina, Ecuador, Colombia, Costa Rica, Panama, Paraguay, Peru, Uruguay and Venezuela. These assignments were requested directly by their Governments or by their Judiciary Systems, as well as the Inter American Development Bank, The World Bank or the GTZ (since 1995). Member of the staff of the Chilean Commission on Truth and Reconciliation (1991). Professor on Human Rights matters (since 1991). Lecturer and panelist in numerous meetings on Human Rights and Judicial Reform in the Region. Author of 82 publications on these matters, including books, papers and articles. Lecturer on more than 200 national and international seminars.
James W. Vaseleck, Law School Admission Council, United States, [email protected] James M. Vaseleck is Executive Assistant to the President and Associate General Counsel at Law School Admission Council [LSAC] where he has been employed for more than 20 years. He has served on the administrative staff at Syracuse University College of Law and at the College of William and Mary. He earned his AB in classical studies and his JD from the College of William and Mary. Mr. Vaseleck speaks frequently on legal issues in admissions for LSAC, the National Association of Graduate Admission Professionals, and other higher education organizations.
Jaroslaw Warylewski, Gdansk University, Poland, [email protected]
Hal Wootten, The University of New South Wales, Australia [email protected]
The Role of Law Schools and Law School Leadership in a Changing World
Membership
Schools Universidad de Buenos Aires, Argentina Universidad de Palermo, Argentina American University of Armenia, Armenia The University of Adelaide, Australia Australian National University, Australia Bond University, Australia University of Canberra, Australia Flinders University, Australia Griffith University, Australia University of Melbourne, Australia Monash University, Australia University of New South Wales, Australia Queensland University of Technology, Australia The University of Queensland, TC Beirne School of Law, Australia University of South Australia, Australia Southern Cross University, Australia University of Sydney, Australia University of Tasmania, Australia University of Western Australia, Australia University of Bahrain, Bahrain K.U. Leuven, Belgium FGV Direito Rio, Brazil Pontifíca Universidade Católica do Rio de Janeiro (PUC-Rio), Brazil Pontifica Universidade de Catolica de São Paulo, Brazil Neophyt Rilsky Southwestern University, Buglaria University of British Columbia, Canada McGill University, Canada Osgoode Hall Law School-York University, Canada University of Ottawa-Civil Law Section, Canada Queen’s University, Canada Université de Sherbrooke, Canada The University of Western Ontario, Canada
39 The Role of Law Schools and Law School Leadership in a Changing World
University of Windsor, Canada Universidad Diego Portales, Chile Pontifica Universidad Católica de Chile, Chile Kenneth Wang School of Law, Soochow University, China Nankai University School of Law, China Tsinghua University, China Universidad Sergio Arboleda, Colombia Universidad de Costa Rica, Costa Rica Masaryk University in Brno, Czech Republic University of AArhus School of Law, Denmark University of Copenhagen, Denmark University of Turku, Finland Caucasus School of Law, Georgia Tbilisi State University, Georgia Bucerius Law School, Germany Freie Universität Berlin, Germany Ludwig-Maximilians Universität, Germany Christ College of Law, India Dr. Ram Manohar Lohiya National Law University, India Jindal Global Law School, India KIIT University (Kalinga Institute of Industrial Technology), India Mats Law School, India NALSAR University of Law, India National Law School of India University, India Rajiv Gandhi National University of Law, India Symbiosis Law School, India University of 17th August 1945 Jakarta (UNTAG), Indonesia Universitas Brawijaya, Indonesia Universitas IndonUnited States Esa Unggul, Indonesia Dublin Institute of Technology, School of Social Science and Law, Ireland University College Dublin School of Law, Ireland Bar Ilan University, Israel Universitá Degli Studi di Firenze, Italy Universitá Degli Studi di Foggia, Italy Universitá Degli Studi di Milano, Italy Philadelphia University, Jordan
40 The Role of Law Schools and Law School Leadership in a Changing World
Yarmouk University, Jordan Handong International Law School, Korea Kuwait International Law School, Kuwait Kuwait University, Kuwait Vytautas Magnus University, Lithuania Advance Tertiary College, Malaysia Islamic Science University of Malaysia-Faculty of Syariah and Law, Malaysia Universiti Kebangsaan, Malaysia Universidad Autónoma de Nuevo Leon, Mexico Facultad Libre de Derecho de Monterrey, Mexico Universidad Panamericana, Mexico University of Maastricht, The Netherlands Tilburg University, The Netherlands Utrecht University, The Netherlands VU University Amsterdam, The Netherlands University of Auckland, New Zealand Victoria University of Wellington, New Zealand University of Wellington, New Zealand Nigerian law School, Nigeria University of Jos, Nigeria University of Cebu, Philippines University of the Philippines, Philippines University of Gdansk, Poland Lazarski School of Commerce and Law, Poland Leon Kozminkski Academy, Poland Universidade Lusiada, Portugal Universidad de Puerto Rico, Puerto Rico Qatar University College of Law, Qatar Université Cheikh Anta Diop de Dakar, Senegal The National University of Singapore, Singapore Singapore Management University, Singapore University of Trnava, Slovak Republic University of Cape Town, South Africa University of Limpopo, South Africa Nelson Mandela Metropolitan University, South Africa University of Pretoria, South Africa
41 The Role of Law Schools and Law School Leadership in a Changing World
University of Stellenbosch, South Africa University of the Free State, South Africa University of Venda School of Law, South Africa University of the Witwatersrand, South Africa Instituto de Empresa, Spain Universidad Pontificia Comillas, Spain Lunds Universitet, Sweden Université de Fribourg Suisse, Switzerland University of LaUnited Statesnne, Switzerland Universität Zürich, Switzerland National Chiao Tung University,-Institute of Technology Law, Taiwan Chulalongkorn University, Thailand Bahcesehir Universitesi, Turkey Hacettepe University, Turkey Dubai Police Academy, United Arab Emirates United Arab Emirates University, United Arab Emirates Bradford University Law School, United Kingdom University of Warwick, United Kingdom Academy of Intellectual Property Law, United States University of Akron, United States American University, United States Arizona State University, United States University of Arkansas at Little Rock, United States Atlanta’s John Marshall Law School, United States University of Baltimore, United States Boston College, United States Brigham Young University, United States University of California at Davis, United States University of California at Hastings, United States California Western, United States Case Western, United States The Catholic University of America, United States Chicago-Kent College of Law, United States University of Cincinnati, United States Concord Law School, United States University of the District of Columbia, United States
42 The Role of Law Schools and Law School Leadership in a Changing World
Florida A&M University, United States Florida International University, United States The George Washington University, United States Georgetown University, United States Hamline University, United States Harvard Law School, United States hofstra University, United States University of Illinois, United States Indiana University-Bloomington, United States University of Iowa, United States Lewis and Clark Law School, United States Marquette University, United States University of the Pacific-McGeorge School of Law, United States Michigan State, United States Mississippi College, United States University of Missouri, United States University of Nebraska, United States New England School of Law, United States New York Law School, United States New York University, United States Northeastern University, United States Nova Southeastern University, United States The Ohio State University, United States University of Oklahoma, United States Oklahoma City University, United States Pace University, United States The Pennsylvania State University, United States University of Pittsburgh, United States St. John’s University, United States St. Mary’s University of San Antonio, United States Santa Clara University, United States Seattle University, United States South Texas College of Law, United States Stetson University, United States Suffolk University, United States Syracuse University, United States
43 The Role of Law Schools and Law School Leadership in a Changing World
Taft Law School, United States Temple University, United States Thomas M. Cooley Law School, United States University of Tulsa, United States Valparaiso University, United States Vanderbilt University, United States Vermont Law School, United States Washburn University School of Law, United States Washington University in St. Louis, United States Widener University, United States William Mitchell College of law, United States Yale Law School, United States Yeshiva University, United States University of Zimbabwe, Zimbabwe
Sustaining Members Cornell Law School, United States
Organizations American Bar Association Section on Legal Education, United States Association of American Law Schools, United States Deutscher Juristen-Fakultätentag - Germany Law Faculties Association, Germany European Law Faculties association (E.L.F.A), Belgium Law School Admission Council, United States National Conference of Bar Examiners, United States
44 The Role of Law Schools and Law School Leadership in a Changing World
Individuals David Barker, University of Technology, Australia Marek Boyarski, Wroclaw University, Poland Fatou Camara, Université Cheikh Anta Diop de Dakar, Senegal Juliana V. Campagna, The John Marshall Law School, United States Krystian Complak, Wroclaw University, Poland Kurt Deketelaere, K.U. Leuven, Belgium Cynthia L. Fountaine, Texas Wesleyan University School of Law, United States Gregg S. Garrison, Southern California Institute of Law, United States Terry Hutchinson, Queensland University of Technology, Australia Kevin Malunga, University of the Witwatersrand, South Africa Obeng Mireku, University of Limpopo, South Africa Anjanette Raymond, Queen Mary University of London, United Kingdom Paula Rhodes, University of Denver-Sturm College of Law, United States Mark E. Wojcik, The John Marshall Law School, United States
Founding Benefactor The Wang Family Foundation, China
45 The Role of Law Schools and Law School Leadership in a Changing World
46 The Role of Law Schools and Law School Leadership in a Changing World
Plenary I
Educating our Students for What?
The Goals and Objectives of Law Schools in Their Primary Role of Educating Students
47 The Role of Law Schools and Law School Leadership in a Changing World
48 The Role of Law Schools and Law School Leadership in a Changing World
The Style of Legal Education as Applied to The Role of The Faculties of Law in a Changing World
Dr. Osama Al neimat Philadelphia University Faculty of Law Jordan
The application of legal education is the subject of multiple benefits. If it is conducted honestly, it deepens the educational quality of education and contribute to the development of the basis for a deeper sense of professional obligation to the law students to public service carry with them throughout their professional lives. And is, often, at the same time, provides legal services needed by the larger community outside the classroom in more than one aspect of the legal aspects.
In the end, this makes the education of applied academic corners of the legal environment – students and professors in the world - in fact, indulge as the actual players and not as observers only.
For this type of legal education in the world have different definitions. Practices that can be applied within or outside the Faculty of Law at the legal offices, where the student works under the supervision of practicing lawyers, either for or without signs of a total award of this work. If the program of practical application practiced within the Faculty of Law, it is possible to choose between making it on the basis of actual or hypothetical cases. The processes of simulation and other methods of playing the roles are often the basis for practical courses for students of law, they face a legal professional practice in a controlled environment.
In some environments, educational applications, do not engage students in effective legal representation for the customer, but also provide other services to the community. One model commonly applied to the legal education of the so-called "law of the street" (Street Law), which is to educate students or trainees the most vulnerable groups in society during the later, as prisoners, law and rights. There are models are applied to make the trainees are providing legal services transactions eg sale of land, or in writing, the legal guardian, or the establishment of a small company or non-governmental organization, not-for-profit
The cornerstone of all forms of practical legal education, as described here for the definition of this term, it is the link between the place or the field of practical training and university. In the more complex applied education programs, students record themselves in the applied legal course for grades at the end of the course. In these sessions students conduct as legal representation to clients in real while they are studying a course parallel with this practice at the University. There is a similar model of practical training outside the university for the law students which is a combination of practical application and the university seminar. The professors of the Faculty of Law here at the close supervision of the work of students trained in a limited number of cases only, leaving the students a chance to & quot; learn by doing & quot; as they are, ie, professors, students participate in the service of
49 The Role of Law Schools and Law School Leadership in a Changing World
customers through the provision of legal advice or other legal services to them. The practical legal education involves the real facts and issues which arise from the perspective of customers who are the real substance of this education applied, not theories or constitutions or legal issues closed. This includes education model applied in the case of an educational component to another application. Law students will not be able to see some real issues related to ethics and values of the legal profession but only through careful consideration in their work on behalf of their clients. Applied Education makes the student extract the theory form the real application.
One of the many objectives of the practical legal education under the supervision are: • First, it provides a unique educational opportunity for law students to observe and practice of representation of reality simulator or the actual client, and the development of skills and appropriate values and ethics of this practice. • Secondly, it provides, in some contexts, an important complement (not substitute) for the provision of legal services needed by persons who were unable to access such services without this training.
• Thirdly, Some certain types of this applied education provides to law students the opportunity to see for themselves the benefits of working for the public good, and establish this spirit to build a career committed to them in the field of law. • Fourthly, the use of teaching methods urges students to practice performance and immersion in the law in ways that are not often lectures and readings theory. • Fifthly, the supervisors of the teachers on the applied education elaborate the legal profession skills and knowledge of theory, and tied the legal profession links in the Faculty of Law.
• Finally, the practical legal training seeks to strengthen civil society, through the development of a sense of professional responsibility to counsels and provide legal services to the population.
Education practice is one of the most successful innovations in the field of legal education in the past few decades. This began to appear in the United States in the sixties of the twentieth century, and has now become commonplace in the study of Law at American universities. Since then, started to spread outside of the United States to Africa, Asia, Europe and Latin America.
In addition to what the supervisors of applied education have presented such as legal services to the community in parallel with the supervision, they worked on the development of other skills and legal knowledge in conducting interviews, and the theory of the case, and deliberation, negotiation, and the conduct of the trial and appeals, and the alternative solutions to the conflict - as well as in the theories of legal practice and legal institutions and the ethics of the profession. Many of them also contributed to legal practice and services directed to the public interest in the development of effective legal assistance programs for the poor.
50 The Role of Law Schools and Law School Leadership in a Changing World
Research and teaching in a global law school: The case in favor of transnational legal research networks.
Professor Marcelo Alegre University of Palermo Argentina
1. Introduction.
My question is what is the relation between the activities of research and teaching in the context of a global law school? I aim to explore some aspects in which research enhances teaching in ways which are critical given some minimal requirements a global law school must cover. (This is a very rough note to provoke discussion)
2. Research, teaching, caring about society: 3 competing aims?
Most universities accept that their final goal is to produce knowledge, to offer high level teaching and to serve the public interest. All these three aims pose important challenges and require significant funds and efforts. The first temptation is to conceive of them as competing objectives. This temptation should be resisted.
Instead, we should aim at harmonizing these aims. For example, serving the public interest could be seen as risky, or ideologically sectarian, but in fact, it is a crucially defining factor for a university. Public interest activities strengthen the ethos of its community, adding value to, and increasing the loyalty and solidarity of to the whole organization.
Research could be seen as subtracting resources from effective teaching, but that is illusory. True teaching is backed by research. An ethical point could be made: A substantive part of what we teach is either outmoded, or inaccurate, or just wrong. Only an active pursuit of truth though rational scrutiny of all relevant legal material, can help us minimize obsolescence, falsity and mistakes. We owe that to our students because as part of the basic requirement of an honest effort to provide the best legal education. (I do not want to reduce research to just one conception of it. There are different ways of understanding research, and different disciplines are preferred by different professors as the more fruitful approach to a rational analysis of law (philosophy, sociology, economics, etc, etc). The sense in which I am referring to “research” is a minimal one, requiring just that significant time and talent is put to study legal phenomena in order to better understand them.
3. Research in a global law school
I define a law school as global if it possesses one or more of these features: i. Its courses are (at least potentially) subject to accreditation in other jurisdictions.
51 The Role of Law Schools and Law School Leadership in a Changing World
ii. Its professors are able to teach at schools or to students of different legal cultures. iii. It has some minimal technical capacities to interact and dialogue with other people and institutions at a global level. iv. Its members (academic and administrative staff, students, graduates) have the explicit will of acting globally. iv. Its members (academic and administrative staff, students, graduates) have the explicit will of acting globally.
Given these components of a global law school, research becomes, for these institutions, even more important. The absence of research creates a “capiti diminutio” for non-research law schools, presenting an undesirable asymmetry in the relations between research and non research universities.
Besides, global students, an increasing population, will demand to be taught in a research environment throughout their entire course of studies. Research, with its welcomed externality of creating an enthusiastic environment of debate, experimentation and critique will be demanded by students as part of the basic of the educational services they enjoy.
The new technologies of information make it easier to organize transnational legal research networks. These networks could produce valuable scholarship, better informed by other cultural perspectives, and more focused on basic, universal values.
Global research should be linked to education in search of synergy. Two classrooms at different continents joined in a videoconference is an excellent starting point for a joint research project. I can mention two cases from my institution, Palermo University Law School, in Buenos Aires. Besides the different research projects at Palermo, some global programs have produced positive effects in terms of legal research. These benefits have accrued to all the universities involved in these programs. A joint legal clinics program on Human Rights with Harvard Law School, which takes place at Palermo every winter, is becoming the locus of discussion and improvement of excellent essays on transitional justice, enforcement of socio-economic rights, etcetera.
And the Yale Law School-Palermo Linkage Program, born in the early 90s, brings to Buenos Aires outstanding researchers, who are doing important work on freedom of expression, retroactive justice, legal theory, and constitutional law, while they enrich our academic life and interact with our scholars.
Conclusion There are reasons to think that fostering research improves teaching. This is even truer in regards to global law schools. Research fosters a high quality playing field for global institutions. Transnational research teams are an important part of the incoming legal education environment at a global level.
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What are the Goals and Objectives of Law Schools in Their Primary Role of Educating Students? What are We Educating Our Students For?
Prof. Jassim Ali Salem Alshamsi United Arab Emirates University College of Law United Arab Emirates
The Goals and objectives of UAEU College of Law are as follows:
a. Prepare students according to the latest educational and technical methods in order to competently and distinctively take over the various jobs in legal fields.
b. Provide students with continued self learning abilities, criticizing mind, creativeness and use of modern technologies, ensuring their keen abiding by noble legal work ethics.
c. Participate in bearing the message of thought and legal studies that clarifies the reality of legal concepts which they themselves represent the reality.
d. Additionally, teach students the Islamic law to clarify the reality of Islam, emphasizing on its genuine ability to achieve humanity and develop current life away from atrocious extremism.
e. Make genuine and innovative researches of scientific and practical value in the areas of jurisprudence, law and those in between.
f. Provide scientific, research and training services to United Arab Emirates society including all its public and private institutions, and look forward to extend those services to the Arabian Gulf and Arab societies in general.
g. Exchange scientific, practical and educational experiences with the various colleges, research and services centers within and outside the University
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The study program objectives encompass the following items:
1. Produce a well qualified graduate capable of practicing the various legal tasks in United Arab Emirates at a very good level.
2. Produce a willing graduate, capable of continuous self learning and development of knowledge and skills.
3. Produce a willing graduate, capable of positive and effective participation and interaction within his work and community.
4. Produce a graduate who is bound to compliance with positive and genuine values of his society and profession, but open to other global cultures, and willing for positive interaction with them and benefiting in a safe manner.
5. Provide students with all the knowledge, skills and values leading to a graduate bearing all above characteristics.
6. Providing easy access to post graduate studies by offering appropriate programs that meet their research and professional ambitions, such as a post graduate program in arbitration, banking, human rights, etc, after studying the actual reality and demand on academic programs and specialties in the various branches of law.
In order to achieve these goals and objectives, proper means must be made available, either by preparing and developing faculty members, linking them with new knowledge in their respective disciplines. Developing the college administration and staff is also a requirement for achieving the goals and objectives by organizing workshops on regular basis. This has proved to be successful in this college. Another important factor is the availability of sufficient budget to make all these efforts and steps successful.
There should be ability and keenness in leading students towards connection and interaction with other students in other universities, but of same specialties, especially in other countries. This is what we are actively doing now.
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What are the goals and objectives of Law Schools in their primary role of educating students? What are we educating our students for?
Dr. Ahmed Belal Dean – Faculty of Law Cairo University Egypt
The study of law is not like any other university discipline, due to the very nature of the object of study. Law is not just a specific discipline that can be treated on its own. It is necessarily a multi-faceted topic requiring acquaintances with a variety of fields of knowledge: history, civilizations, sociology, politics, economics, morality and ethics, psychology, psychiatry, medicine, anthropology, religion, customs, and more…etc. Rarely does any other university syllabus present such a multitude of fields of human knowledge.
It is within this framework that the issue of the goals and objectives of law schools should be addressed. As with other disciplines educated in universities, some professional benefit is understandably envisaged. Educating law has, however, something peculiar: a variety of other indirect, sometimes undeclared objectives are no less important.
1- Direct Objectives: Preparing for a professional career.
It is naturally a primary objective of educating law to prepare graduates for a living relating to a job in some legal field or other. Some new law students enroll while having a definite goal in mind: being a notorious lawyer or a judge for instance. Others do not set up any specific target; they just wait for any opportunity to come, others yet might find out that the legal issues are not quite appealing.
It is undoubted that achieving the purpose under discussion will entail further difficulties for those in charge of education and administration in law faculties. A first degree in law studies is always a pre-requisite for practicing in many fields of the legal profession in general. The traditional jobs relate everywhere to advocacy and judiciary, other careers are equally envisaged: preparing law students to be legal consultants and advisors, public prosecutors, member of the Conseil D’etat (Administrative Judiciary), members of government's lawyers and legal departments in governmental and non-governmental bodies, members of the administrative prosecution authority, members of the authentication of documents authority, agents and dealers in real estate and financial markets, …etc.
2- Indirect Objectives:
Behind the overt objectives of educating our law students, some other unspoken of objectives should not be disregarded.
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The problem with such objectives is that they might present themselves as being mere hopes or aspirations. Usually they do not come under scrutiny in assessing the standards of performance of law schools. Here are some of the objectives that can be listed under the heading in question:
a) Enhancing law-abiding in society
Law students are necessarily doomed to be members of a community governed by some form of social control. The study of law increases the awareness of the importance of law as an essential instrument to achieve social control. The sense of the importance of being a law-abiding citizen can easily be conveyed to other members of society through law students.
b) Enhancing human dignity and human rights
Educating our students different disciplines of law entails coping with many issues relating to the dignity of man and the fundamental rights attached to him as a human being.
Here again, legal education is an efficient instrument in increasing the awareness of the concept of human rights as one of the rare ideas shared by human beings. Law-students are known to be proud of their legal formation and rarely show readiness to wave their basic rights as human beings. They will pave the way to others who will follow suit. The outcome will certainly be beneficial to society and the common values in the community.
c) Promoting political rights and democracy
Educating our law students is equally supposed to create active members in society, not only in advocating their personal rights as voters and candidates in public elections, but also as would-be political figures, party leaders, thinkers, philosophers, …etc.
Propagating legal culture through the faculties of law is undoubtedly a valuable means in underlining the importance of the rule of law and consequently forms a good guarantee against political despotism.
d) Preparing lawyers to serve as peace makers
It is a fact that educating law is not limited to rules in force at the time of peace. War, with all the evils it brings, is equally governed by law, in the form of international treaties which attempt to alleviate its impact on people and belongings.
Law students will naturally get a feeling of the atrocities of war and the necessity of doing everything to avoid it. Negotiations might be conducted before, during and after the war. Lawyers are supposed to play a significant role in the process. Wise
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lawyers will be wise advisors to Heads of the States in their dramatic decisions on war and peace.
e) 5 – Preparing lawyers as “tools” for future changes
It is commonplace that major changes in society, be they political, economic, social, cultural, etc… can only be made through law. Significant decisions in those fields are normally decided and phrased by lawyers involved in the process of law- making. Lawyers are praised on some occasions and are severely criticized on others. Their role can be easily be detected. Educating law should therefore emphasize the training and the preparation of law students for their prospective roles of being future decision-makers, social reformers, legislators, executive managers, etc…. Law students should be brought to understand that they are doomed in the future to lead their society and to be instrumental in developing every aspect of it. By their wide background in many fields of knowledge, law students should be educated to draw the maximum benefit of their legal formation for the good of their country, and for a more humane world.
Before concluding this modest paper on the objectives and goals of educating law, one final remark has to be added. Despite the idealistic nature of the goals sought or hoped for, a feeling of disenchantment usually haunts law professors. We are often blamed for being in an ivory tower while teaching law. We are frequently reminded that there exists a wide gap between law as it is taught, and law as applied in practice. Concepts of justice, equality, human dignity, fundamental human rights, can be ignored, impaired or only respected in a discriminatory form. We are often embarrassed by some questions of our students referring to internal problems in which the law we teach does not seem to apply due to factors which curtail the reliability of the rule of law.
Furthermore, we are very often faced with embarrassing questions on the utility of teaching international law and whether it is really law at all. The questions are understandably prompted by a deplorable state of the international community in which massacres on a large scale have been committed, in which international rules concede in many cases their place to the “law of the force”, in which human rights are routinely sacrificed, in which the same rule does not apply to similar cases, in which wars, terrorism, fanatism and racism are daily headlines everywhere.
Nonetheless, the disenchantment referred to is per se another motive to enhance the importance of the rule of law on the national and international levels. If the law is not respected, ignored or discriminately applied, it is incumbent on the law faculties to educate students to fight for the proper application of law, to stand up for the aspirations they are asked to turn into reality. They should be trained to be self-confident and capable of leading reforms and changes to a better life for all human beings.
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58 The Role of Law Schools and Law School Leadership in a Changing World
The Role of Law Schools and Law School Leadership in a Changing World: A Reflection Paper
Rick Bigwood University of Auckland* New Zealand
Law schools doubtless have multiple functions, but being, or trying to be, everything to everyone all of the time is not one of them. Beyond preparing (or beginning to prepare) law students for legal (and indeed in many cases non-legal) practice and lifelong learning, producing quality (“high-impact”, “critical”) legal research, and dutifully serving various other stakeholders (or “communities”), more and more seems to be demanded of law schools in the early twenty-first century. This is not necessarily a bad thing (to some extent, perhaps, it is inevitable), but it can turn into a most undesirable thing if resources are unable to match expectations. That is a distinct possibility, in my experience.
Each of us seems to be asked to more with less. Choices must of course be made as a consequence, particularly if law schools are to maintain the levels of “excellence” that they each promise in their several mission statements while remaining “resource viable”. Resources invested into educating domestic students for a “global” legal culture might well come at the expense of properly training those for mundane service within their own jurisdiction, and at present most law schools are duty-bound to certify that their students have been suitably trained for competent and ethical domestic legal practice, even if only about half of their graduates will ultimately embark upon that journey. We presently have no choice about that function and so must continue to invest resources into our basic undergraduate curricula, the content of which is controlled to a significant extent by external public agencies (yet another “stakeholder”), the Council of Legal Education in my own country. The choice that each law school must make will naturally vary with the range of factors that affect individual law schools, and there is no reason to think that one size will fit all in that regard, as various factors will influence individual law schools differently.
The fact that law schools have choices available to them differentially — that there is no necessarily “correct” mission applicable to all law schools universally — has created opportunities for market or role differentiation among various law school institutions, whether they exist within the same city, region, nation, or jurisdictiontype. Given the way that universities are currently funded, such differentiation is virtually an imperative — not necessarily a good or a bad thing, just a reality. Law school missions will be driven in part by naked market considerations as well as loftier higher education goals. And to paraphrase Montesquieu and Mill: the visions, missions, and values of each law school should be adapted in such a manner to the people for whom they are made, as to render it very
* The views expressed in this paper are personal ones and not necessarily representative of my Faculty and/or University. I apologize in advance for the quality of this paper. I became a delegate for my Law School at short notice and have had little time, amidst my other responsibilities, to prepare a well considered paper. Also, I was not aware, until after this paper was written, that authors were to focus on a discrete theme within the conference program. My arrangements memorandum merely stated that “Attendance at the two-day educational program requires a 3–5 page paper on the subject of the conference” (emphasis mine). Accordingly, my paper is quite unspecific in its focus, for which I also apologize.
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unlikely for those of one law school to be proper for another. No one is at all capable of determining what is right for a particular law school institution until he or she knows its circumstances.
Therein lies the rub. Reasonable minds can differ wildly over the needs and circumstances of particular law school institutions, not least because “the people for whom they are made” is an essentially contestable phrase/notion/object. Even ignoring the “global” stakeholder community for domestic law schools (of which more below), I imagine that most law school institutions in Australasia would view their broad stakeholder groups as including at least the following (in no particular priority order): students (undergraduate and postgraduate, whose needs and expectations naturally differ), staff, alumni, indigenous communities, regional and community interest groups and organizations, professional groups and accrediting bodies (typically admission boards), industry and business organization and employers, primary and secondary schools, other educational organizations and providers, local and national government, government departments and agencies (including, obviously, courts and tribunals), research funders, and cultural organizations. Given the diversity within this list, it is a small wonder that law schools might at times feel compelled be everything to everyone all of the time (while in fact risking being only some things to some stakeholders some of the time). To the extent that law schools are under pressure to take the interests and/or perspectives of a variety of stakeholders into account, for example when developing or reviewing their curricula, it is no given that all stakeholders will share a common vision for legal education. Still, I think that no law school can currently deny that it is entrusted with making a major contribution — and at a high level — to the training of skilled, ethical, and knowledgeable legal professionals. To that extent, I suppose, law schools have a universal mission, but this is not to imply that universal values or imperatives do or must therefore underlie that particular dimension of their mission or function.
Also, let us not forget that law schools typically are not atomistic entities but rather exist as an integral component of a much larger enterprise: the university that houses and supports them. To some extent, then, law schools are constrained to align with their university’s own mission, vision, and values, which, granted, tend to be so generically expressed and aspirational — “pursue excellence in all that we do”; “act with fairness integrity, and responsibility”; “respect rights and responsibilities of freedom of inquiry and expression”; “serve the local, national, and international communities”; “encourage innovation, creativity, and breadth of knowledge”; etc — that no one could plausibly take issue with them, at least at the abstract level, and every law school can easily locate its own mission, vision, and values somewhere within such statements.1 I am confident that most law schools would view themselves as aspiring to the creation of a diverse collegial scholarly community in which individuals — whether student or teacher-scholar — are valued and respected, academic freedom is exercised with intellectual rigour and high ethical standards, and critical enquiry is encouraged and supported. But whenever we are forced to
1 My own Law School’s mission, for example, comprises: “Research and scholarship that contributes to the advancement of knowledge, the betterment of the law and legal institutions, and an understanding and engagement with law as it operates.” “A challenging curriculum that attracts the best students, engages them in the mission of the Law School, and equips them for life-long learning. Service to our various other communities of interest.”
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articulate what each aspiration demands in particular circumstances, given the inevitable constraints (not least ballooning staff–student ratios), consensus is much less likely to be forthcoming, and therein lies the rub for the discussants at this conference. There is unlikely to be a single right answer for everyone all of the time, but that is not to imply that we cannot take valuable insights from one another’s experiences and visions nonetheless.
Brief reflections on law and legal education in New Zealand in particular
Since the late 1980s, law schools in Australasia have (to differing degrees) been moving away from their traditional “trade school” approach, towards what might be described as the “classic, liberal” model of university education. Typically this has been evidenced by an increased commitment to teaching theoretical, critical, and contextual approaches to law, while ensuring that due attention is maintained towards the “core” subject areas required for admission to the legal profession in the relevant jurisdiction. Although the assumption that the dominant purpose of legal education is “preparation for legal practice” has been criticized by some at the forefront of the “scholarly-approach-to-legal-education” movement,2 it doubtless remains valid as an empirical observation that the vast majority of our students study law in order to satisfy the academic requirements for entry into the profession, even if only approximately half of them ultimately exercise that option.3 If that is their legitimate expectation, it is critical that the legal academy, in their teaching and learning function at least, must continue to certify that they have so educated them, and as expertly as possible. This dictates that modern legal education must in its learning objectives attempt to combine and balance three curricula:
• Generic or transferable academic skills (eg, familiarity with and achievement in attributes such as the scholarship of discovery, integration, and transmission of knowledge, ability to integrate interdisciplinary thinking, effective written and oral communication skills, computer literacy, selfreflection, attitudinal awareness, and teamwork);
• Legal-academic content (essentially the transmission of content knowledge, ie, legal rules and doctrine sufficient for an understanding of law and its practice, though especially of the subjects required for admission to the legal profession); and
• Professional or vocational skills (such as legal analysis/reasoning and problem- solving, legal research and information-gathering skills, mooting, client interviewing, witness examinations, oral presentations, an awareness of ethics, the habits of persistence, flexibility, and attention to detail, etc).
Basically, as we all know, this is an attempt to combine a liberal education with a professional qualification, and getting that balance right will always remain a challenge, or
2 Keyes and Johnstone, for example, have lament the fact that vocationalism — the mere preparing of students for work in private legal practice — is (in their view) hindering real progress in legal education in Australia; see M Keyes & R Johnstone, “Changing Legal Education: Rhetoric, Reality, and Prospects for the Future” (2004) 26 Syd LR 538. An interesting counterpoint study (for Canada and the United States, at least) is the Carnegie Foundation’s report, Educating Lawyers: Preparation for the Profession of Law (2007). 3 Cf J Webber, “Legal Research, the Law Schools and the Profession” (2004) 26 Syd LR 565, 571.
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at least a point of contention, for law schools. Again, the balance will be struck differentially across individual law schools according to their own circumstances, (collective?) perception of the role of legal education, and stakeholder expectations, many of which will be shaped by considerations of a “local” nature.
A modern gloss on this fairly uncontroversial model of legal education, however, is the trend toward law and legal education as a “global enterprise”. My own law school, for example, views even domestic legal education as becoming more internationally focused. In our current Strategic Plan (2008–2012) the stage is set by the statement: “The future of law and legal education is ‘global’.” Partly this is a factor of New Zealand being such a small legal system that it must to an extent be “outward looking” in the development of its law. However, the trend to “global law” is also underscored by the fact that the realm of legal ideas is itself international: it is informed by global conversations as sovereign nations engage with similar problems. Many such problems, of course, transcend national borders (consider, for example, the rules for international trade and dispute resolution, climate change, population pressures and scarcity of natural resources, human rights conflicts, terrorism and state security, and transnational crime), and domestic law is dictated or influenced by a variety of international treaties. I think it is fair to say that New Zealand has a reputation as innovative in its legal responses to global challenges, and it certainly has a contribution to make to the world as much in the realm of legal thinking as in other realms. Moreover, as the world is shrunk by technology and ease of travel, legal practice itself routinely involves transactions that span jurisdictions.
Ideally, one might hope that law schools could one day train lawyers capable of practicing in any jurisdiction. However, this is presently unrealistic, if not overly ambitious even in the abstract. It has serious implications for the subjects taught, the way in which they are taught, the recruitment of staff, and the constituency of students to whom legal education is aimed. For the near future, at least, the “globalization” of legal education in New Zealand is likely to develop as it has in the past: through the inclusion of new internationally oriented courses into the curriculum, and through the content of existing courses evolving to engage with the international dimension of law. (The trend to internationalization in legal scholarship seems more straightforward: publication in international periodicals, the forging of international links between the staff of leading law schools, the development of research centres with international specializations, etc.) Although law and legal education have a new and significant international dimension, it is in my view to the credit of the New Zealand law schools that they have, for the most part, stuck to what has remained the core of modern legal education, which is a robust and critical understanding of foundational principles: the law of obligations, criminal responsibility, property, public and private law, legal ethics, procedure, and legal theory. Although the international dimension has added to this core, it has not displaced it, and is unlikely to do so. For these “foundational principles” are the building blocks for our students mastering other functional categories in the law, including environmental law and international law. They enable our students to critique the law as it currently stands, with a view to its continuous improvement for the betterment of society. Moreover, most of the foundational principles continue to be taught in subjects that are delivered over the course of an entire academic year in New Zealand law schools; they have not been sacrificed to a mere semester’s treatment, as has occurred in many Australian law schools. Patient mastery
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of the core legal subjects — most of which are prescribed as “compulsory” by the Council of Legal Education in New Zealand — is not simply about enabling our students to become technically adept as potential lawyers; they are also a gateway for allowing learners to understand the role of law in society, the relationship between law and justice, and the professional responsibilities of lawyers.
Just how far law schools can effectively pursue specialist educational goals beyond training their graduates to “think like a lawyer” without risking discharging that vital function less well than they currently do is inscrutable. Perhaps it is easy to overestimate the impact that a law school education can have on the professional and regular lives of law graduates, although doubtless individual teachers encountered within a law school institution can have a direct and massive influence on the future choices and actions of learners. Law schools are, after all, potentially no better than the staff members who comprise them and administer their functions. This is why law schools, if they are to stand any hope of progressing in the early twenty-first century, must continue to try to recruit and retain the best teachers/scholars/administrators available. That is getting increasingly difficult in some “core” areas of the curriculum. Also, it is no given that the best teachers/scholars/administrators available will possess a shared vision for legal education within the institutions that house them, despite the formal mission statements of such institutions. Indeed, the creation of a diverse collegial scholarly community is what make many law school’s great, but it renders elusive the answers to many questions posed about the role of law schools in a changing world.
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64 The Role of Law Schools and Law School Leadership in a Changing World
Goals and Objectives of Law Schools under Bologna Process
Dr. Salomé Adroher Biosca Vice-Dean of International and Institutional Relations Law Faculty Pontificia Comillas Spain
The goals and objectives of a law School as Comillas University, are conditioned by two factors, one an “outside” exigencies and other “inside” necessity; the Bologna Process requirements and the Jesuits University identity. I will explain how we concrete our goals and objectives working with both conditions.
1.- The Spanish legal framework and the “Bologna process”
1.1. The demands of the European Higher Education Area (EHEA) The “Bologna Process”, an initiative which seeks to create a European Higher Education Area by 2010, is faced by the difficult and complex challenge to achieve that the students can be capable of choosing education in a wide range of high quality studies in several countries and that they can use simple procedures for the recognition of these studies. This process responds to the need felt throughout Europe to modernise the university institutions, aggiornamento or updating, which is undoubtedly necessary if we wish to approximate to the functioning of educational systems, such as those of the North America and Asia, which, as show by the data, have better results than the French, German or British systems, in principle, the European leaders.
The three priorities of the Bologna process are: a) the introduction of the system of three cycles (graduate/master/doctorate); b) the guarantee of quality; and c) the recognition of qualifications and periods of study.
The first consequence of the Declaration of Bologna was the political decision of the Ministers of Education to carry out the convergence of the educational systems, which led to these systems entering a process of transformation. In order to contribute to this process, among other initiatives, the so-called Tuning Project1 was approved with the intention to design a methodology for understanding for the understanding of the curriculum of the students in such a way that this was comparable.
In order to each this goal, among other objectives the Tuning project put forward the objective to encourage transparency in the academic and professional profiles of the degrees and syllabuses, while leaving room for diversity, liberty and autonomy. In the opinion of the Tuning team, the objective sought involved accepting the ECTS as a single European system of accreditation and perfect this as a system for the transfer and accumulation of credits and developing professional profiles, results of learning and the wished for competences, in terms of generic and specific competences2, as instruments for
1 The Socrates-Erasmus Project. Tuning Educational Structures in Europe. 2 The specific competences would be those concerning each area of studies including skills, knowledge and content by thematic areas.
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understanding, apprehending and easily comparing the different educational systems, thus facilitating the process of harmonisation of university teaching at the graduate and postgraduate levels which will permit the approximation of the different systems.
In my opinion, it can be said that the Tuning Project has achieved at least part of its objectives as today the European Credit Transfer System (ECTS) is a reality and the European university systems begin to accept, as happened at least in the Spanish system as we will see later, that the degrees be defined in terms of results of learning and generic (instrumental, interpersonal and systematic) competences and competences which are specific to each thematic area.
1.2. The controversial response of the Spanish legislator to the new system
A) THE REGULATION OF THE EUROPEAN CREDIT SYSTEM ECTS The Spanish State formally established the ECTS system through “Royal Decree 1125/2003 of September 5, whereby the European Credit System was established”, with the announcement that the European credit had become the unit of measure of academic assets in official university education3.
B) THE REGULATION OF POSTGRADUATE PREVIOUS TO GRADUATE LEVEL OR “HOW TO START TO BUILD A HOUSE FROM THE ROOF DOWN”. Once the ECTS credit system, which was to be the basis for the reform of university studies, was established, it was necessary to wait until 2005 for the Spanish State to begin a timid reform of the university system. Royal Decree 55/2005, of January 21, established that university education leading to the obtaining of official titles valid throughout Spain would be structured in three cycles, termed graduate, master and doctorate. This law announced that the ECTS credit system, contained in Royal Decree 1125/2003, was going to be used in the design of Spanish university degrees. On January 21, Royal Decree 56/2005 was promulgated, whereby the official postgraduate was modified using the ECTS credits as a measure of academic assets.
Criticism was almost immediate; it did not seem to make sense that postgraduate education should be modified before addressing the appropriate reforms at graduate level. Despite this criticism, the modification came into force and the Spanish universities set about creating official master degrees, which began to compete with the unofficial private titles which were the only ones which ha existed on the market until then. Royal Decree
3 According to article 3 of this Royal Decree “the European credit is the unit of measure of academic assets and represents the amount of work of the student in order to comply with the objectives of the syllabus and is obtained by passing each of the subjects which make up the syllabus of the studies leading to the obtaining of official university degrees valid throughout Spain. Theoretical and practical studies are integrated into this unit of measure, as well as other guided academic activities, with the inclusion of the amount of study and work which the student must carry out in order to achieve the educational objectives proper to each of the subjects of the syllabus”. Article 4.5 of Royal Decree 1125/2003 also sets out that “the minimum number of hours per credit will be 25, and the maximum will be 30”. In article 4.3 the Spanish legislator considers that between 25 and 30 of these hours must be integrated into theoretical and practical teaching, as well other guided academic activities, with the inclusion of hours of study and work which the student must complete in order to achieve the educational objectives proper to each one of the subjects of the corresponding syllabus. It should also be pointed out that article 4.1 of this same law includes a specific provision concerning the maximum credit load per academic year: 60 ECTS credits.
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56/2005 entrusted the responsibility for the organisation of the master and doctoral programmes to the autonomy of the universities, and these were not subject to general directives from the State, although procedures were established in order to guarantee quality. Thee legislation also included a minimum regulation in article 8 of the Royal Decree which established that the official master degrees would involve a minimum of 60 credits and a maximum of 1204, and they would involve advanced education of a specialised or multidisciplinary nature aimed at academic or professional specialisation or at promoting research. As regards the doctorate, this required the student to have achieved a minimum of 60 postgraduate credits or that he have a master degree (article 10.3 of the Royal Decree) in order to access the phase for writing the thesis.
C) THE NEW REQUIREMENTS TO ACCESS THE LEGAL PROFESSIONS With regard to the professional practice of the law through Law 34/2006, of October 30, “on access to the professions of Lawyer and Court Attorney”, the system of access to these professions was radically transformed. It can be said that a spectacular turnabout has taken place in this area as previously it had been sufficient to be a graduate in law, with no additional prerequisites, in order to join the Spanish Bar and practise these professions. However, articles 1.2 and 1.3 of Law 34/2006, which did not come into force until October 31, 2011, imposed the obligation to obtain the professional title of lawyer or court attorney in order to supply assistance as a lawyer and legal representation in those court or out of court proceedings where legal regulations require this. In order to obtain these qualifications, it is necessary to have a degree in Law (article 2.1) and have acquired the specialised training required to be able to access the evaluations in order to obtain these titles (article 2.2). The training referred to in this law is regulated education of an official nature, which the law does not refer to as a master degree, but which must consist of training courses organised by the universities (article 4.1) and accredited jointly by the Ministry of Justice and the Ministry of Education and Science (article 2.2). The training courses will consist of 60 credits and it will be necessary to carry out external practical training which will be assigned 30 credits (articles 4.3 and 6.1).5
D) THE FINAL REGULATION OF GRADUATE LEVEL “HOW TO FINISH THE HOUSE WITH THE FOUNDATIONS” As regards the studies of graduate, it was necessary to wait until 2007 for the new regulation of university education through Royal Decree 1393/2007, of October 29, whereby the official university education system is established6 using the ECTS credit system.
The system for regulating graduate university education deriving from the conjunction of the norms laid down in Royal Decree 1393/2007, of October 29 and Royal Decree 1125/2003, contains the following guidelines:
4 One or two academic years as stipulated in article 4.1 of Royal Decree 1125/2003 5 The law does not clarify whether the credits of the external practical training are included or not within the 60 credits referred to in article 4.1. It does state that the duration of the training will be one academic year or one and a half academic years. This point must be clarified in the Implementation Rules stipulated in Law 34/2006, which have not yet appeared. 6 Royal Decree 1393/2007 derogates Royal Decrees 55/2005 and 56/2005, therefore, it not only regulates graduate education but also establishes a new legislative framework for postgraduate education.
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A) The title of graduate involves 240 credits (article 12.2 of Royal Decree 1393/2007), divided into four academic years of 60 credits each (article 4.1 Royal Decree 1125/2003). B) The minimum number of hours per credit will be 25 and the maximum number 30, taking as reference a student engaged in university studies full time for a minimum of 36 and a maximum of 40 weeks per academic year (articles. 4.4 and 4.5 Royal Decree 1125/2003). C) Among other criteria, the regulation of official education involves the ideas of diversity, the encouragement of intra-university and inter-university mobility and the orientation of education towards the learning of the student and the employability of the graduates, which are reflected in several requirements of the composition of the syllabus: 1) A minimum of 60 credits for basic subjects is established, and of these, at least 36 must be linked to some subjects of the particular branch of knowledge7. 2) It is possible to incorporate practical training into the syllabus, with a maximum of 60 credits. 3) There is an obligation to incorporate an end of degree paper to the syllabus with between 6 and 30 credits. 4) A “system for the transfer and recognition of credit” is regulated in order to encourage the mobility of students. 5) It is proposed that the objective of the configuration of the education be the acquisition of competences.
The legislative block constituted by the aforementioned Decrees considerably alters the existing Spanish university regulation and the adoption of the ECTS system entails a conceptual re-formulation of the higher educational system, which passes from being focused on class hours to being centred on the work of the student.
2.- Our Law Faculty and the “Bologna” revolution
2.1. The teaching tradition of the Jesuit Universities and the challenge of Bologna
The challenge which the Spanish university addresses has been considered by UNIJES (Association of Jesuit Universities in Spain) as an exceptional opportunity to revise the ultimate objectives of its presence in the university world in the light of its identity and mission. Thus, a framework-document was drafted, “i+m orientations 8 for the new curriculum designs” which essentially addressed the “reason why”, the ultimate specific objectives of the universities of the Society of Jesus. As we will see below, these objectives are very close to the “spirit of Bologna”.
As regards the “reasons why” the Association of Jesuit Universities in Spain points out that “the objective of all education is the formation of the person”, taking into account that Jesuit teaching encompasses this s the “complete person” which involves four dimensions: “utilitas, humanitas, iustitia et fides”. Thus, based on this, the syllabuses drawn
7 Law is integrated into the branch of knowledge of the Social and Legal Sciences whose basic subjects are: Anthropology, Political Science, Communication, Law, Economics, Education, Business Administration, Statistics, Geography, History, Psychology and Sociology. 8 The letters stand for identity and mission.
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up at the Universidad Pontificia Comillas, and, of course, in its Law Faculty (ICADE), must provide training which is useful, integral, for justice and capable of responding to the Christian vocation of the student. 1) Utilitas: In the words of Father Kolvenbach, “Jesuit education is eminently practical and is intended to provide students with the knowledge and skills required to excel in any area they might choose”.
Within the Jesuit paradigm, the fact that their students aspire to professional competence involves two important factors: a) on the one hand, qualifying the professional competence with categories of excellence, academic quality, rigor…, and, b) on the other hand, alerting against the reduction of ‘competence’ to ‘skill /dexterity’ or to ‘pure technology’.
In my opinion, the professional competence which the EHEA also aspires, includes not only “knowledge” (knowing) and “skill-ability” (knowing how) but also “value references” (knowing how to behave, knowing how to be) such as creativity and innovative capacity, critical thought and personal maturity, leadership and orientation to achievement, which ties in perfectly with the Jesuit utilitas. 2) Humanitas: A Jesuit University will be highly practical as it continues to insist on integral formation (in the sense of forming persons capable of a harmonious development of their professional, personal and social life) and a holistic focus on education. In short, it is not possible to educate excellent professionals who are uncultured or illiterate in humanity. 3) Iustitia: Throughout their education, the students must allow the disturbing reality of this world to enter their lives in such a way that they learn how to feel this, to think critically, to respond to suffering and to commit themselves to it constructively. They will have to learn to perceive, to think, to judge, to choose and act in favour of the rights of others, especially the more disadvantaged and the oppressed. 4) Fides: In addition, we must be able to educate our students in the faith. The education of the Society of Jesus respects religious freedom as a value and assumes religious pluralism as a fact but it is oriented to making man capable of discovering his ultimate destiny in God and of responding generously to the call of God to realize his potential as His son.
2.2. The Universidad Pontificia Comillas and the new European challenges
At our university a university of the Church directed for over a century by the Society of Jesus, the private institution which has most universities in the world, we have always known how to combine the excellence of educational experience provided by our tradition with the continual updating which social changes require. Thus, even before the new law on the regulation of graduate education was approved, at the Law Faculty, we have endeavoured to approximate our teaching system to the methodological change required by the ECTS system. Now, the legislation also obliges us to revise the university titles and to redefine the academic syllabuses. The objectives proposed by UNIJES are backed up by the regulations of our University.
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2.3. Teaching Law in the Universidad Pontificia Comillas: what and how.
Within this objective framework, the Law Faculty undertakes the reform of its current graduate degrees9 and official postgraduate degrees10. The list of our current qualifications clearly shows that our Faculty has a dual vocation: legal-business studies, which have been taught for many years, and legal-international studies, which commenced only a few years ago. The new syllabuses we are drawing up are intended to continue and intensify these areas of work.
As I have explained how we teach at our Law Faculty, I’ll talk about how we teach. In consonance with the words of Father Kolvenbach, the motto chosen by our University is “the value of excellence”. This motto is the expression of the “Ignatian magis” and our Institutional Declaration explains it as follows, “The university endeavours to achieve quality as a distinctive feature, precisely at the historical time in which quality is so often proclaimed rhetorically while it collectively declines”.
One of the reasons why our students choose our Faculty is this “quality” which has always provided prestige to our studies and to which we permanently tend. However, quality is only achieved with effort and the continual effort to self-improvement, achieving what is “even more difficult” has always been a distinctive feature of Jesuit teaching. The Ratio Studiorum, a fundamental document of Jesuit teaching, put into practice in teaching since the middle of the XVI century, continues to be present in our teaching method and, in our opinion, this can be considered to be precursor of what Bologna is and represents today.
Our particular pedagogy is characterised by the following three points: 1) Teaching founded on values and based on a particular vision of the world and on the centrality of the human being. 2) Teaching with its own theory of knowledge, which, in accordance with the so- called Ignatian Pedagogical Paradigm, consists of the interaction between experience, reflection and action or as watching, judging and acting. As stated in our Institutional Declaration “Comillas aspires to the systematic approximation to reality in all its complexity, to interdisciplinary methodology in the statement and search for solutions to the problems of man and society”. That is to say, we teach from experience and to transform reality. For example, one of the instruments which we use to achieve this objective is the Programme of External Practical Training where our students are encouraged to contact with the environment through immersion in the daily life of the most prestigious institutions, firms, companies and non-government organisations In fact, all our students are obliged to take part in this external training as part of their education. We also encourage our students to take advantage of the exchange programmes, such as Erasmus and similar programmes. 3) Teaching which incorporates its own theory of education, and here I point out only one of its points: the insistence on the formation of a critical sense. As stated in our.
9 Degree in Law and Diploma in Business Studies, Degree in Law and Diploma in International Legal studies, Double degree in Law and Management and Business Administration, and Double degree in Political and Administration Sciences 10 Master in Business Law, a Master in Taxation and International Taxing and a Master in International Affairs, there is also a Doctoral Programme on the Foundations of Law, Economic Law and Business Law.
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Institutional Declaration, “The sound basis of a critical sense requires science, the interdisciplinary search for truth, the assimilation of the fundamental values and a profound knowledge of the social reality.” This theory of education flees from two temptations of the present time, dogmatism and relativism, in order to propose an education based on experience rooted in reality.
In order to implement this objective, we intend that our graduate syllabuses do not focus exclusively on knowledge of positive law, which is the main focus of Spanish law and the law in the countries in our area, and on learning the techniques for its application as this entails the risk of converting the law into an instrument in social life and in professional practice, but rather that they focus on what is proper to law: the just regulation of society. Thus, we intend to draft programmes which start from a there dimensional conception of Law, which involve legal norms, the social reality and values. At teaching level, our objective is to place emphasis on general legal concepts regarding the institutions and the underlying interests concerning these and the practical consequences of choosing one or other technical-legal solution in their regulation. The knowledge of positive law, which has changed so much recently, is reserved for the Master degree as this will qualify the person for professional practice. Finally, as the university is a teaching and research area, and it is thanks to this research that science progresses and new solutions to the problems of our time come to light.
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72 The Role of Law Schools and Law School Leadership in a Changing World
Legal education and development – achieving professional competence and pursuing emancipatory opportunities
Roger Burridge School of Law University of Warwick United Kingdom
The potential that legal education holds as an instrument of development is invariably overlooked by universities and governments alike. Law schools are welcomed by their institutions for the popularity of their low cost teaching but struggle to compete with other disciplines in the competition for research funding. Teaching and research dominate the departmental strategy and law school heads are occupied distributing resources, marketing programmes and managing personnel. This paper argues for an emancipatory and developmental responsibility for law schools. It is a role that is followed to differing degrees by many law schools including Warwick. It is also a vision that is under pressure in the competition for scarce resources and may be denied by those who believe that a narrow and too often self serving legal scholarship precludes the distractions of practical engagement. The justice role for law schools has frequently been championed1. Recently the narrowness of a liberal legal education that eschews vocational objectives and social engagement has been debated2. This paper, whilst acknowledging the importance for law schools of the justice mission and an ethos of humanitarianism, explores the wider practical potential for law schools to realise the responsibilities of their scholarship. The emancipatory possibilities for law schools Legal education is conventionally redolent of the regulatory rather than emancipatory paradigm. Boaventura de Sousa Santos suggests that the crisis of modernity stems from ascendancy of knowledge-as-regulation that has eclipsed knowledge-as-emancipation3. Law, he argues, has played a central role in the hegemony of Western thought. With some trepidation, I want to explore the contradictions that post modernity has exposed for those seeking local change, and a degree of indigenous emancipation. The developmental role of legal education I believe is significant for five principal reasons. Firstly, law itself as an objective of development is too abstract a project. It reduces to support for the administration and management of processes of justice at the expense of consideration or promotion of the values or such processes. It encourages the transportation of models of justice from resource rich jurisdictions to those with little experience of the architecture of justice. Legal scholarship leans to Rawls and Dworkin
1 See for example the collection of papers, ‘The Justice Mission of American Law Schools’ in memory of Robert McKay, Dean of New York University Law School in Cleveland State Law Review 1992 Vol. 40 Nos. 3 and 4. 2 Burridge R and Webb J, “The values of Common Law Legal Education: rethinking rules, responsibilities and relationships in the law school”, Journal of Legal Ethics, (2007), Vol. 10, Part 1, pp 72-97 3 Toward a New Commonsense: Law, Science and Politics in the Paradigmatic Transition, Routledge, London, 1995 p. 25- 27
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rather than Said or Baxi4. Law’s role in development to be both appropriate and effective needs a basis in the indigenous institutions of legal scholarship. Secondly, justice both as concept and process needs to look to education theory as much as legal theory. The values of law across the developed world receive little attention in the law school either in the curriculum or in the pedagogy. With the important exception of clinical legal education and other experiential learning initiatives, the power of law is traditionally taught throughout the advanced common law and civil law worlds by exegesis, and applied hypothetical reasoning. The potential that education methods as well as content hold for personal and community development espoused by Dewey, Kohlberg, Schon, Freire and others are largely ignored in the law school where the ‘legal’ usually eclipses the ‘educational’. Thirdly, legal education is emerging more in Europe than elsewhere as a distinctive discipline that embraces theoretical and empirical evaluation in addition to doctrinal analysis5. The efforts of Harold Laswell and Myers McDougal6 in 1943 and Julius Stone a few years later7 failed to convince US law schools that their mission should focus upon democracy and public interest as their mission. In the law schools of Europe with their preference for studying law as part of a programme of liberal higher education rather than trade school, the possibility of a broader curriculum is at least more feasible in theory if ignored in practice. The recent upsurge in enthusiasm in the UK for addressing the values of law as well as its rubrics in the law school may be received with some incredulity by those countries whose customs and values have been pillaged by the British. All of us however are in a process of development. The insistence that globalisation requires the law schools of the lesser developed world to concentrate exclusively upon furnishing its graduates with the wherewithal to promote international trade would represent an additional disenfranchisement – from the market of intellectual entrepreneurialism and the global trade in ideas. To eschew the theoretical and empirical research necessary to produce alternative visions of law and the administration of justice would ensure the continuing domination of western modes of justice. Fourthly, economic and political expediency has forced the organs of international governance to reassert the role of law and lawyers in national security and market stability. ‘High-end Globalisation’8 reaffirmed law’s role in development. Law making achieved some
4 See Upendra Baxi, Oxford Handbook of Human Rights, 2005,OUPOxford 5 The suggestion is by no means novel. In 1972 a group of international scholars published, Legal Education in a Changing World ((1975) Committee on Legal Education in Developing Countries, International Legal Centre, New York). They noted that legal education is a culture specific phenomenon and viewed universities as a critical resource centre. They advocated a study of law that draws upon the sources of philosophy, history, and the social sciences as well as from its own memories. The Report recognised that legal education holds a wider significance than accrediting lawyers for practice. It suggested that the law degree should be capable of equipping students for a wide variety of law jobs, dependent upon each institution’s objectives. 6 Harold D. Lasswell & Myres S. McDougal, (1943), Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale Law.Journal 203 at p. 207 7 Julius Stone, (1959), Legal Education and Public Responsibility, AALS 8 L Michael Hager, ‘Low-end Globalisation, Bringing Wealth-Creation to the Poor’ in Governance, Development and Globalization, Faundez J, Footer M and Norton J (eds.), 2000, Blackstone, London at p 186
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status, albeit a fragile one9 as an important item on the development agenda. The construction of court systems for the local adjudication of disputes became accepted as a prerequisite for widening markets. Corruption control provided a fresh impetus for criminal justice upgrading. Lawyer training (or rather its absence) became a concern. Most significantly, however, human rights discourse has taken hold as a complementary framework for addressing injustices amounting to a new legality that is no longer the secret domain of lawyers. Constitutional assurances that foundational rights of individuals can be protected, even if the infrastructures of enforceability are lacking, resonates in parts of civil society that lawyers and the courts may be unable to reach. The discourse promises local attention realisable at a political as much as a legal level. It also carries a significant economic potential for donor aid, as the NGO sector delivers more direct, accountable and malleable mechanisms through which a variety of economic, environmental, educational, religious and heath related policies can be realised. The new legality has presented legal education and law schools with an opportunity to return to the abandoned efforts to equate law teaching with justice, and to invert the perception of human rights-in-law to an understanding of law-in-human rights. This reappraisal of legal education as an instrument for local development has a particular spatial resonance. Whilst it should alert us to the oligopolistic potential for northern law schools in the international market for law students, it also promises the possibility of locally articulated and culturally honed human rights. The exertion of political and economic power that fuels globalisation also creates vacuums that alternative forces may occupy. However fragile, these may support alternative solidarities and succour independent dissents. Public interest legal education can help bolster geocentric legality and withstand what de Sousa Santos has identified as a renewed egocentric legality, pursued by multinational corporations eager to trample the tiresome regulations and costly procedures of state based laws. This paper continues with a brief reassessment of the global role of legal education, recognising the importance of lawyer expertise within a wider responsibility for legal scholarship, including interrogation of legal philosophy, the design of administration of justice systems and the development of alternative legal services. It then considers the implications of globalisation for locally focused law schools. It recognises the distortions that ‘high-end globalisation’ can impose on the race for an international corps of business lawyers, regulated to ensure efficient market development. It concludes with a tentative agenda of issues and activities for law schools to adopt in pursuit of national and international development. The contested spaces for law informed development In advancing the possibility of a wider consideration of lawyer competences, the traditional responsibilities of law schools to the profession should not be underestimated. A reappraisal of the opportunities for turning attention to legal discourse as a mechanism for promoting an emancipatory as opposed to regulatory development is pursuant to an appreciation of the role of legal expertise and knowledge in the furtherance of wider
9 Faundez, J, “Legal Reform in Developing and Transition Countries: Making Haste Slowly”, in Governance, Development and Globalization, Faundez J, Footer M and Norton J (eds.) op. cit. p. 31
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political and humanitarian objectives. It involves on the one hand the acceptance of law’s ‘pre-eminent role in confining the state to its proper place in the new neo-liberal dispensation’10; and the simultaneous rejection of law as the pivotal guarantor of justice in the development process. It leans instead towards the theories and practices of education and human rights culture for promoting a justice strategy. A traditional function of legal education has included the norms and processes for market and financial services regulation. The legal system reforms promoted by the World Bank are focused upon the ordered development of emerging economies and the democratisation of unorganised or ‘failing’ states. The processes of governance and justice systems for transplant are predominantly models developed in the US and Europe. As the current global financial crisis reminds us, the much vaunted checks and balances of Western models of governance are fallible. Market collapse and regulatory failure may also open the possibility of fresh solutions and revised systems for which legal education has a local and international role. Legal education has become a field that is fulfilling a range of functions. It promotes knowledge and expertise about the role of law and how it works to a wider audience than those who will practice it. Its role in promoting the market and containing excessive state power has already been noted. It also has the potential to become a vehicle for defining and upholding democratic and legal accountability; for describing and maintaining the function of the legal system and the administration of justice; for providing instruction in and about law for any personnel who work with it; for monitoring and evaluating the use of state power, the regulatory role and the discharge of statutory duties and fulfilment of civic responsibilities; and it can assume a significant role in securing rights for individuals and collectives. It is a discipline that is gaining international recognition as a focus for reflection, critique and comparative evaluation. In a small but significant way legal education can contribute at more than one level to the quest for ‘instrumental freedoms’ in development11 that Amartya Sen viewed as the principal means of substantive freedom. Valuable though such conventional initiatives have been, the most radical contribution to local emancipation and global justice has emanated from the disparate ideas and individual projects of a small band of law teachers who practice their profession under the motley banners of cause or collaborative lawyering; human rights, justice education and public interest clinics. The international spread of clinical programmes and a fresh pedagogy for the study of law privilege education alongside legal trope and technique in the law school. The balance between appreciating the distinctiveness of legal reasoning and its context, with an understanding of the practical implications of law’s use is a key challenge for any legal education system. Some societies have a greater need for paralegal workers than practitioners, for which the assimilation of the appropriate skills and familiarity with practical challenges is as significant as the accomplishment of the rudiments of appellate advocacy may be for practitioners in another jurisdiction.
10 Lawrence Tshuma, ‘The Political Economy of the World Bnak’s Legal Framework’ in Governance, Development and Globalization, Faundez J, Footer M and Norton J (eds.), 2000, Blackstone, London at p 7 11 Amartya Sen, Development as Freedom, 1999, Knopf, New York at p 38
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The suggestion that legal education has a wider relevance than the service of the private profession is not therefore to denigrate that role. It may however prompt enquiry into why, where state support is involved, the professions should wield influence over and beyond the wider purposes that a country may expect from its higher education system. It is the wider sphere of the legal infrastructure – courts and institutions to ensure that property and personnel are secure, and that profits will not be illegally usurped – to which much international legal effort is directed. It is in the interstices of the framework of laws, courts, administration and citizenship that legal education can contribute. It is pertinent because law provides the backstop for controlling commercial and citizen behaviour when other normative influences fail12. It is also relevant because as well as being concerned with rules, it ascribes to a value system. However elusive and problematic the latter may be, concepts of justice and human rights can and should inform the teaching of law, and some breaches of these values may be justiciable. This does not mean that legal education is the only method of pursuing the wider agenda of development. Education, health, welfare, environment, and the institutions of central and local government bear similar responsibilities. Law happens to bring with it personnel, practices and inherent value systems that are adaptable to the wider role. Few today would deny the role that law plays in development13. Since the role is now acknowledged, it would be perverse to deny its wider significance in contributing to the creation of social conditions that can facilitate economic growth. The wider that recognition becomes, the greater the influence that legal education can exert in a development strategy. Drafting a developmental agenda The dominant model of legal education as training ground for the private profession therefore requires radical readjustment to accommodate the range of needs that countries in different stages of development may have of their universities. The broader starting point of law school as the forum for the inculcation of substantive law, knowledge of legal systems, legal work study, and the values of justice and human rights offers the potential for a variety of approaches, both between and within legal education institutions. It also suggests that each law school could reflect upon its regional and parochial responsibilities, its capacity to meet all of some of its societies’ demands, and its ability to maintain a balance of supply between legal expertise that services the City (in the sense of financial core) and those who administer legal services on behalf of the citizens. The more successful ones may also be able to consider how they address the growing demand for international legal expertise and experience. Meeting these demands would involve a much wider consideration of education methods than most jurisdictions presently consider. An approach focused on social needs for legal services opens up possibilities for involving students in the activities of law as part of their basic legal education. The emphasis today upon clinical teaching methods as mirroring the
12 Sen observes that external enforcement processes are required when accepted market ethics and business trust are not yet established. Law thus plays a key role in economic development in providing the ‘assurances’ that contracting parties need. Sen (1999) (supra note 8) at p 268 13 See, for example, Burg, EM, Law and Development: A Review of the Literature and a Critique of ‘Scholars in Self-Estrangement’, American Journal of Comparative Law, Vol. 25 (1977)
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private lawyer, personal plight scenario can be adjusted to embrace active and experiential learning through involvement in street law projects, and paralegal outreach work. A developmental agenda emerges which expands significantly the part that legal education can play. In doing so it transcends the established view of legal education as a system essentially designed for generating private practitioners. The new functions of legal education require a strategic approach that pursues theoretical and empirical scholarship with the promotion of practical expertise for a wider constituency than the legal profession. It extends legal knowledge beyond professional study, or even as a subject for higher education scholarship, to an appreciation of law’s facilitative role in the development of civil society. To be effective such a strategy14 can be tailored to local needs and would emanate in the main from local initiatives and would engage with local expertise. It would be responsive to local circumstances and culture within an overall framework of both informing and receiving those international practices that are perceived to be in the broad interests of its citizens and will expand their opportunities for advancement. A local strategy can aspire to building regional strengths when provision may be beyond local resources. In developing a strategy it may be helpful to plot the various constituencies to be considered against the functions available. Constituencies should reflect core educational responsibilities to the institution within the financial and legal frameworks of higher education, including the needs of students. Professional accreditation imposes further obligations. Beyond these core stakeholders are the broader needs of community and state. These could embrace corporate, government, constitutional, environmental, educational or social interests. Responsibilities are owed beyond tangible interests of particular constituents and extend to humanitarian, moral and pedagogical values. The functions and activities for strategic development of a law school can then be plotted for each constituent. These would commence with the identification of the core functions of education and research. The traditional law school may be satisfied with this conventional role. The emancipatory mode however would emphasise the developmental possibilities for law schools. Moreover its core education and research activities would extend education into vocational training and recast research to embrace policy formulation and law reform. An effective legal education strategy can accomplish, but extend beyond, the production of legal expertise to service economic growth. It can also ensure that appropriate knowledge and skills are available to service the legal infrastructure and the administration of justice and democratic governance. A strategy that fails to address human rights, the broader aspirations of social justice and the promotion of participatory democracy will impede economic development. These values need to be addressed substantively as well as observed in the professional practices of law teachers.
14 Legal Education in a Changing World (Supra note 2) at pp 40-55 set out the need for objective setting and function identification. Perceptive though its authors were, the hindsight of a quarter of a century’s progress has widened even further the scope for legal education in development
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Nurturing Law Student Vision
Dean Alan Button Handong International Law School Korea
The American Bar Association’s Rule of Law Initiative (ROLI) “believes that rule of law promotion is the most effective long-term antidote to the pressing problems facing the world community today, including poverty, economic stagnation, and conflict.” At the April 2009 Forum and Annual Meeting of the North Carolina Bar Association’s International Law Section, a representative of ROLI described the impetus for that program, which seeks to promote the rule of law internationally, and listed reasons for judges, attorneys, and law professors to be involved. He started by declaring simply that “it’s the right thing to do.” In many law schools, such normative assertions occupy a somewhat awkward position.
Most of us educators are motivated at least in part by a desire to make a difference. We see in our students the potential to make the world a better place and we seek to equip them to do that – and through those who succeed we do some vicarious living, taking real satisfaction in the results of their efforts. Likewise, law school applicants write essays and speak in admissions interviews about confronting injustice and empowering the weak. They come to law school with admirable visions of service and restoration.
At the same time, those of us who have been involved in legal education for any significant period know well how the focus of our students changes. Indeed, we ourselves are not immune. And our tendency is to view that change in our students as inevitable, to adopt the cynic's stance that at least some of those applicant statements were less than genuine. That no doubt explains some of what we see. And some of the change is presumably attributable to an initial naiveté that dissipates with greater maturity and an increased appreciation for the practical realities of life. But we teachers, too – or at least the institutions and the systems we represent – bear some responsibility as well. ______
We would do well to remind ourselves periodically of why it is we do what we do, why it is that we have come to this enterprise we call legal education, and what it is that motivates these changes. In my experience there are at least three factors that contribute to the degradation of the applicant vision and over which we have some control. First are the standards of success.
(1) At both the individual and the institutional levels, we measure success according to standards that have little or no connection with a priority for service – and indeed may be opposed to such a priority. Some of those standards, such as admissions test scores (e.g.,
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the Law School Admission Test (LSAT) in the United States), offer objectively measurable indicia of competence, but they bear little if any relationship to students' underlying motivations. Such test scores, like grades later in law school and bar exam success thereafter, are often determinative of a student's available opportunities, whether law school options at the application stage or job choices following graduation. And institutions, by choice or coercion, come to be measured by these standards – their median test scores, the GPAs of their entering classes, survey rankings like that of U.S. News and World Report, results in moot court competitions, their graduates’ average bar passage rates, and employment placement percentages – and they tout or make excuses for their medians, rates, and percentages depending on where they fall relative to those law schools they would either emulate or distinguish. Accreditation standards tend, understandably and to some degree necessarily, to reinforce the primacy of such measures.
(2) A second factor that operates to the detriment of law student vision is the financial load of securing an education in law. Most students borrow money to make it through law school, especially at institutions not publicly funded. The financial realities of carrying obligations of the equivalent of tens of thousands of dollars are harsh indeed. If those realities do not extinguish visions, they at least limit and delay their implementation.
(3) A third factor is law school pedagogy. In the Journal of Legal Education more than thirty years ago, Roger Cramton, former dean of the Cornell Law School, wrote about the impact of the traditional American legal education on the worldview of students. What he observed then is perhaps even more true today. In an article aptly entitled “The Ordinary Religion of the Law School Classroom,” he concluded the following:
Legal problems that have a routine and easy solution are not considered in law school. The student is faced with a steady diet of hard cases – borderline situations that might reasonably have been decided either way. Since there is a good argument both ways, and the case could reasonably have been decided either way, the student is led to believe that life is that way, that law is that way – there are no right answers, just winning arguments. This diet of borderline cases thus contributes to value skepticism.
Cramton, R., “The Ordinary Religion of the Law School Classroom,” 29 J. Legal Educ. 247, 254-55 (1978) (emphasis in original).
C.S. Lewis poignantly described the connection between the teaching skeptic’s debunking of values and the student’s character development. Virtue is one of the casualties: “We laugh at honour and are shocked to find traitors in our midst. We castrate and bid the geldings be fruitful.” Lewis, C.S., The Abolition of Man (HarperSanFrancisco 1944) at 26. We educators should consider soberly the influence we wield in the classroom and through the syllabus. ______
Understanding and then addressing the influence of all three factors is made more complicated by the broader cultural context. Substantial elements in the popular media are relentless in their affirmation of material pursuits and narcissistic inclinations. The levers of cultural power are too often controlled by those whose agendas are largely self-centered.
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Truth is frequently either relativized or ignored altogether, and in both private dealings and public discourse the correlative virtue of honesty is too often the exception instead of the rule. Those who would make a difference outside themselves are faced with the practical realities of systems that are regularly manipulated to serve ends that run counter to justice and mercy. That culture must be consciously resisted if student vision is to be preserved or redeemed.
The example set by faculty is one potentially significant mechanism of cultural resistance. The way we teach, as well as what we teach, especially our substantive emphases, indicative as they are of our political and religious perspectives, communicate to our students, sometimes loudly, what it is that we believe is important. Similarly, our scholarship priorities presumably emanate from and therefore communicate something about our worldview. And, of course, the service in which we engage in both the broader university, outside our immediate law school contexts, and the wider communities in which we find ourselves says something significant about our values. Students hear that, too. In all of these messages, to the degree that they represent personal choices for us who are teachers, our students learn something about not only the universality of the seducing temptations with which they are dealing, but also the range of available options in responding to these pressures of culture.
Consider by way of mundane example what is communicated in the introduction of speakers or the sharing of “war stories.” Do we emphasize Ivy League degrees and big-firm experience? If we do, what does that say to the prospective student who is considering a non-Ivy law school because it is less expensive and specializes in equipping students for the nonprofit humanitarian relief world? If we dote on those who come from large corporate law firms, what does that communicate to our students about the jobs to which they should aspire?
Law school administrators – and deans in particular – have a key role in the resistance effort. To the extent that they direct faculty recruitment and hiring, they are in a position to encourage and mold that resistance through faculty modeling. To the extent that they oversee their institutions' disbursements of rewards or granting of privileges, they are in a position to influence student thinking about what is honorable and worthy of pursuit. To the extent that administrators influence institutional financial decisions, whether in the setting of tuition or in the establishment of loan forgiveness programs or in the development of donors, they are able to offer relief from the financial pressures that limit student employment choices in the nonprofit world and in similar arenas. And to the extent that law school administrators oversee curricular decisions and teaching methodology, they can influence how it is the learning of the law and the development of critical-thinking skills fit into a broader value system of real substance.
As an aside, one of our greatest challenges is to teach the law with passion and with high expectations of our students and at the same time to help them remember, or realize for the first time, that law can never by itself be enough to establish and sustain a just society. See Solzhenitsyn, A., “A World Split Apart,” Commencement Address at Harvard University (June 8, 1978), in Vital Speeches of the Day, at 680. The corruption scandals of recent years, whether involving lobbyists in the halls of government or overseers of
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multibillion dollar Ponzi schemes in the marketplace, testify to that proposition. These situations arose despite a regulatory environment the breadth and depth of which the world has never before seen. Law is necessary, but it is not sufficient. What is also needed is a populace that affirms virtue – and our students start out needing less persuasion on that point than when they finish.
In certain respects we find ourselves in that place in ancient Palestine where the question was asked in religious circles, “Is it lawful to pay the poll-tax?” The implication of the questioners was that such submission to secular authority amounted to capitulation inconsistent with faithfulness to a higher calling. Jesus of Nazareth answered the question by holding up a coin and asking whose likeness and inscription appeared on it. The answer, of course, was “Caesar’s,” and he said, “Then render to Caesar the things that are Caesar’s; and to God the things that are God’s.” See Matthew 22:15-22. It would perhaps be well for us to communicate from time to time with our students a reminder that one can live in the world and not be of it, that maintaining a priority for justice while at the same time operating within a system that presses in other directions is not impossible, and in so reminding them to acknowledge the challenge that is presented – not only for them but for us faculty as well.
Where we go as educators to identify and define those values that encourage the pursuit of justice and service to one’s neighbors is an important question. But regardless of the source of that input, we must be vigilant to guard against those forces that oppose these worthy pursuits. Law schools are populated by people who start out wanting to make a difference. Most saw injustice or other needs, either at a global level or in their local communities, or in places in between, and at some point concluded that learning the law would equip them to be part of the solution rather than the problem. May we not fall short in our opportunity to nurture those visions.
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What are the Goals and Objectives of Law Schools in their Primary Role of Educating Students? What are we Educating our Students For?
Dr Anthony J. Connolly Law School, Australian National University Australia
In addressing this question in light of the Australian experience, it is useful to note as a preliminary matter that not all students pursue a law degree with the same expectations and aims. Admittedly, there is reason to think that most enrol in law school with the intention of practicing law in some or other capacity at the completion of their degree (and even here there are a range of kinds of legal practice students might aspire to). However, not all law students aspire to practice law. Some enrol out of an intellectual interest in the law and its role in society. They want to better understand and more effectively engage with this powerful institution, independently of any career aims they might hold. Others enrol because they think a law degree will give them a knowledge and skills set which will be of assistance to them in some career or way of life other than legal practice – in business, social work, or academia (and not necessarily, legal academia), for example. And, of course, some students enrol in law with no intention other than to gain the admiration and personal validation that comes with admission to a prestigious type of degree or to gain the approval of their family.
Law schools have a responsibility to each of these classes of student (even the last, I would argue – they are, after all, generally young and not yet clear about their future direction in life). This is to say that what we are educating our students for may be a range of things, depending on the student. How law schools should go about fulfilling their responsibilities here is a challenging question. The most feasible approach to dealing with difference in the student body would seem to be to provide a degree involving a variety of streaming options for students, catering for different interests and aims, rather than to formulate a ‘one-size fits all’ degree. In any event, it seems to me that for all these classes of student, notwithstanding their differing ends, certain common core institutional goals and objectives may be justified. Put simply, these goals are to provide their students with the opportunity to learn or otherwise acquire:
• a multifaceted and globally applicable body of knowledge;
• a distinctive yet versatile set of skills and habits; and
• an appropriate ethical and political sensibility.
Knowledge
It should be the goal of a law school to provide all their students with the opportunity to acquire knowledge of the nature, content and structural workings of law within their own local jurisdiction, within other relevant jurisdictions, at the international level, and as a general theoretical matter. Such knowledge may be gained to some degree by means of courses devoted to the study of key substantive fields of law (contracts, criminal law,
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constitutional law, and so on), but these courses must be supplemented by theoretical, historical and comparative courses or course components if a comprehensive and accurate picture of things is to be gained. Courses reflecting on the relationship of law to other phenomena (politics, morality - literature even) would also be of use here in providing students with a well rounded understanding of law.
Though specific and local rules of law will inevitably be dealt with in substantively legal courses (there is some advantage in this for students intending to practice in or otherwise with an interest in the law of the local jurisdiction), I would argue that the needs of an increasingly globalised legal environment, as well as the increasingly international career options of law graduates call for a primary orientation towards and a firm grounding in the basic principles, modes of reasoning and practices and procedures underlying the range of modern legal systems in the world today. Modern legal systems and their bodies of law across the world, despite their important differences, share certain features (or, at least, sets of features) in common. Both the local and the global lawyer must have a strong grasp of these things. Local rules and processes can usefully serve as a representative and illuminating case study or focal point for acquiring this more general and universal mode of legal knowledge. Their role is subordinate, though, in this sense. A detailed local expertise can be built up later, when in practice, on the basis of this relatively non-local body of knowledge, together with an effective skill set.
Skills and Habits
It should also be the goal of a law school to provide all its students with the opportunity to acquire a range of skills – some academic and suited to the successful completion of their degree, some suited to legal practice or other related career options, and some even more generic and oriented to their roles as citizens within a modern nation state and international community or to their lives at large. The potential list of these skills is substantial. They include communication skills (verbal and written, as well as cross-cultural skills); critical thinking skills (including comprehension, analysis/synthesis, reasoning, and arguing skills); problem solving skills; personal management skills (skills to do with time management, goal setting and following through on commitments); and interpersonal skills (including skills in negotiating, as well as in effectively collaborating on projects with others). Such skills may be provided by specific skills courses (for example, courses in courtroom advocacy or mediation), as by-products of other more general courses (for example, statutory interpretation or case analysis skills as part of a criminal law course); or by clinical modes of education (for example, legal drafting and client interviewing skills in a clinical practice course). Collectively, they enable law graduates to put into practice the knowledge they have gained, to use that knowledge to actually make a difference in the world.
Associated with the development of skills, ideally, law schools should also be encouraging and facilitating, both formally through their courses and informally through extra-curricular activities, the development of certain personal traits or habits - self-confidence, sociality, intellectual curiosity, and creativity, to name a few - which might be of value to the various classes of students. To use a rather old fashioned term in this respect, the edificatory potential of a university education in fostering intelligent, effective and responsible agents in the world should not be ignored or undervalued.
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Ethical and political sensibility
Next, it should be a goal of law schools to provide students with the opportunity to develop an ethical awareness and commitment in relation to the practice of law or whatever other career or activity they pursue following the completion of their degree. By ethical awareness I mean a sensibility to matters of personal integrity, honesty, and respect for others, as well as one’s legal and professional obligations to others. Such a sensibility not only serves ends internal to the legitimacy and effectiveness of legal practice at large, but also ends more public and political than that. Law graduates as a group tend to wield great power in our society. The legitimacy of that power depends on them not misusing it for corrupt ends. Law schools should enable their students to recognise the nature of their potential role in society and the great responsibilities that go with that role (by means of the kinds of knowledge referred to earlier) and should encourage their students to fulfil the demands of those responsibilities.
This raises the associated point of the need to instil in law students a broader sensibility to issues of social justice and the public good implicated by their practice, legal or otherwise. With knowledge about the social role and professional responsibilities of lawyers and related professions in hand, some sense of the need to enact that role with an eye to the broader welfare of the society itself should be engendered. And, of course, a sound knowledge of the law of its potential and its limitations is a prerequisite to any such good intentions being effective.
Finally on this point, in addition to serving as lawyers or other professionals, law graduates must also be recognised as citizens – and potentially influential ones - of their nation state and of the world at large. To the extent that a law school has a responsibility to foster civically aware and responsible lawyering (or related practice), it might also be argued to have a responsibility to contribute to the development of a civically aware and responsible public sphere, at large. A law degree can be a highly influential training ground in relation to good (effective) citizenship. We are not only training lawyers or public servants or social workers but citizens too – citizens who might, at some point in the future, take a lead in the reform and improvement of the quality of the public sphere independently of any specifically career practice they might engage in.
Concluding remarks
One last point to conclude. Law schools should pay attention to the means by which they seek to realise the ends mentioned here. More particularly, law schools should ensure that the education they provide is informed by the best of contemporary, empirically sound education theory and practice. Those who teach should be suitably qualified to teach – whether formally or informally. One of the most important goals and objectives of law schools in their primary role of educating students, then, should be to ensure that their teachers are as informed about and effective in educating students as they can be. These days, effective education is best conceived of in terms of student learning and not lecturer teaching. Hence, my construing the issues above in terms of providing opportunities for students to acquire by learning the knowledge, skills and sensibilities mentioned, rather than construing them in terms of a teacher actively instilling or inculcating those things into students, conceived of as passive receptors.
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86 The Role of Law Schools and Law School Leadership in a Changing World
Educating Lawyers for What? Reshaping the Idea of Law School
Michael Coper1 Dean of Law and Robert Garran Professor of Law, ANU College of Law, Australian National University Australia
I have the great honour of being both the Chair of the Planning Committee for this IALS conference, and the Dean of the host institution, the Australian National University College of Law. I was also privileged to have had my suggestion for the conference theme accepted by the IALS Governing Board, of which it has been an honour and a pleasure to be a member. So in the now familiar, perhaps even iconic, task for participants in IALS educational programs, I propose to devote my 3-5 page paper to articulating a little of what I had in mind — though the broad outlines of those ideas, as massaged and augmented by a wonderfully diverse international committee,2 are readily apparent from the draft program.3 I speak, inevitably, from a Western, common law perspective, with a distinctly Australian twist (conditioned, even more narrowly, by the particular experience of my own law school), but I hope progressively to liberate myself from these chains, and to begin the search for universals in our great collective endeavour as law schools and legal educators around the world.
The three roles of law schools today Law schools today, I believe, have three major roles: inducting students into the discipline of law (the educational role); pushing back the frontiers of legal knowledge (the research role); and sharing that knowledge with our relevant communities (the outreach role). The first two roles tend to predominate, and I suspect that the educational role in particular will be the chief focus of our conference; the third role — community outreach — is largely seen, I think, as subsidiary, though I would like to see it enjoy a parity of esteem with (indeed, a seamless integration into) the other two.
Historically, we have shared all three roles with the legal profession. In education, university training gradually took over from apprenticeship, but the idea of learning by exposure to real clients and real practitioners refuses to die, as we see, for example, in the ongoing debate about clinical legal education. In research, we continue to see major contributions to legal scholarship by practitioners and judges, whose intellectual acuity is complemented by their professional experience, if not by access to working conditions enjoyed by academic researchers embedded in (and perhaps sometimes burdened by) the scholarly output expectations of a university research culture. In outreach, we see universities increasingly cognisant of a need, even an obligation, to contribute their skills and knowledge to the wider community, yet here again this role is very much shared with the legal profession,
1 Dean of Law and Robert Garran Professor of Law, ANU College of Law, Australian National University, Canberra, Australia; Immediate Past Chair, Council of Australian Law Deans; Member, Governing Board, International Association of Law Schools. 2 Representing Australia, Canada, Chile, the Czech Republic, Israel, Nigeria, Singapore, the United Arab Emirates, and the US — with assistance from the Governing Board, thus bringing in further perspectives from Argentina, Bahrain, Belgium, Brazil, China, Germany, India, Italy, Kuwait, Malaysia, Mexico, Senegal, South Africa, and the UK. 3 See http://www.ialsnet.org/meetings/role/index.html.
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whether in relation to pro bono practice, membership of outside bodies, involvement in public inquiries, media commentary, or a myriad of community activities external to the university.4
These three roles, however, while not exclusive to law schools in the modern era, and whatever the balance between them from time to time and from place to place, combine to give us a distinctive mission, and a starting point for thinking about universals in an increasingly globalised world.
The educational role The traditional role of law schools on the educational front is to prepare lawyers for legal practice. But behind this simple statement lies a plethora of contested issues and fast flowing cross-currents. In Australia, there is a palpable tension between preparing students for legal practice and educating students in the intellectual discipline of law. This tension manifests itself in many ways, from the diverse aspirations of the students5 to the question of who controls the curriculum.6
False dichotomy In my view, however, this tension can be much overplayed. A deep understanding of the law — its historical evolution, its philosophical and theoretical foundations, its role in society, and its interaction with the other disciplines of the humanities and the social sciences — is as valuable in producing an informed, aware, creative, successful and satisfied practitioner as it is in producing in the abstract a graduate who is truly educated in the law. I cannot prove it, but I have the strong belief that the best practitioners, including the best judges, are those who are the most intellectually curious and the most sensitive to the role they play in society.
Educating lawyers for what? In my view, it is not so much the tension between educating lawyers for practice and educating lawyers in the intellectual discipline of law that requires attention, as it is the nature of the role of lawyers and lawyering that requires clarification. This brings me directly to one of our key conference questions: educating lawyers for what?
In Australia, and, I suspect, in many other countries, the traditional answer has been that we are educating lawyers for a passive kind of legal practice, based on the traditional lawyerly competencies and focused on the local jurisdiction. Three things have challenged that conception of lawyering.
Problem solving First, lawyers these days are much more involved in proactive problem solving, and legal education is correspondingly more focused — whether by way of cause or effect — on imparting the skills that assist this problem solving, rather than merely transmitting a body of knowledge that is frozen in time.
4 Clinical programs may be seen to serve both educational and outreach purposes. 5 See http://www.cald.asn.au/legal_educ.html and draft report due for release soon. 6 In Australia, a large role is played in relation to curriculum content by the legal profession and judiciary through the Law Admissions Consultative Committee: see http://www.lawcouncil.asn.au/lacc.cfm.
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Globalisation Secondly, the growth of commerce and communications, fuelled by the march of new technologies, has broken down the boundaries of local jurisdictions, and, correspondingly, lawyers must be trained, as we have discussed in previous IALS conferences, for transnational and international practice — and trained by reference to a curriculum that needs to acknowledge and embrace the pervasiveness of international and comparative perspectives.7
Service to the community Thirdly, and in my view most importantly, it is my strong belief that we should be educating lawyers today, not merely for a life of material personal success, but for a life of service to the community, in the best, but sometimes forgotten, traditions of what it means to be a member of an honourable profession.8
It should be acknowledged immediately that lawyers perform an essential service to the community merely by the competent discharge of their core functions of advising clients, assisting people to vindicate their legal rights, and facilitating the orderly conduct of business and personal affairs.9 This work requires the highest standard of technical legal skills and the lawyer's craft. This high standard of technical competence also underpins any broader contribution that lawyers may make; nothing undermines a case for reforming the law more than a shoddy or unconvincing analysis of the status quo. But the core business of lawyering, and the lawyer's craft that underpins it, are, in my view, necessary, but not sufficient, to the identity and role of lawyers today. The notion of professional responsibility should be understood, in my view, to go far beyond the ethical obligations that govern interpersonal relations, the conduct of business, and the management of litigation, to the broader, active use of legal knowledge and legal skills in the service of society.
This might play out in a number of ways. I have written elsewhere about how it plays out at my law school, with its distinct ethos of law reform and social justice, that is, of harnessing legal skills and legal knowledge to work for the improvement of the law and the operation of the legal system.10 It might play out in the promotion of pro bono practice, and pro bono opportunities for students.11 It might play out in the form of a responsibility to explain and defend the rule of law and the protection of human rights, nationally and internationally.
The challenge: from rhetoric to action The challenge, I think, is this. It is easy to support noble ideals like law reform, social justice, pro bono practice, the rule of law, and the protection of human rights. But how do we move our support from the level of rhetoric and pious hope to embedding these concepts in the way we educate our students? How do we ensure that these concepts enjoy a parity of
7 For some Australian initiatives, see http://www.ilsac.gov.au/. 8 Michael Coper, 'In the Service of Society...', at http://www.academyoflaw.org.au/events/sym07.html. 9 See http://law.anu.edu.au/deansMessage.asp. 10 Michael Coper, Law Reform and Legal Education: Uniting Separate Worlds, in THE PROMISE OF LAW REFORM (Brian Opeskin & David Weisbrot eds, The Federation Press 2005), republished in 39 U. TOL. L. REV. (2008) 233; see http://law.utoledo.edu/students/lawreview/volumes/V39n2/index.htm. 11 See http://www.nationalprobono.org.au/home.asp.
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esteem and importance with acquiring the technical skills that underpin the lawyer's craft? How do we transform concepts that are currently the icing on the cake to being an essential ingredient? How do we ensure that we produce lawyers who are pivotal to social progress because of their legal education rather than in spite of it?
The research role I mentioned at the outset that education was but one of the three great roles that a law school might play, together with research and outreach. A similar analysis might be applied to the research role as I applied above to education. In particular, if I am right about elevating the importance in legal education of producing graduates with a critical mindset and a sense of professional responsibility — indeed a determination — to leave the legal system better than they found it, then one might apply the same standard to our own research and scholarship.
One need not be too prescriptively instrumentalist here — there will always be a place for 'pure' research, and who in any event can foretell its possible applications? — but to urge scholarship directed to law reform, social justice, defence of the rule of law, and protection of human rights, is no more than to harness some of the shared deep values that drive us and underpin our legal systems, and to be consistent with our teachings. In neither our teaching nor our scholarship does this overarching framework dictate particular answers to contested questions.
I should add that, by noting the research function of law schools separately from their educational function, I would not want to suggest that these functions operate in totally different spheres. Legal practice cannot proceed without research and finely honed research skills. Our research informs our teaching, and may provide opportunities for direct involvement by our students. Again, in an ideal world, a law school might achieve a seamless integration between its educational and research functions.
The outreach role It is but a small step from acknowledgement of the educational and research roles of a modern law school to acceptance of the importance of the dissemination and application of the special skills and knowledge embodied in the law school's staff and students. In a sense, the outreach function is no more than this, whether it be lending one's expertise to a tribunal or investigation, making a submission to an enquiry, writing an opinion piece for the media, sharing one's knowledge with lay audiences such as high school students, and so on. Different law schools will encourage and reward these activities in different ways, but, to my mind, they sit very comfortably as a logical extension of the educational and research roles of the modern law school, at least as I have conceptualised and described those roles. I would urge that they be seen not as peripheral to education and research, but as equally central to a law school's mission.
Conclusion I was very much struck by an off-the-cuff remark some three years ago by Yale Law School Dean Harold Koh in answer to a question following his luncheon address to the American Law Institute on the topic of law and globalisation. Dean Koh said:
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I do not believe it is our job to simply bless the status quo. We stand for principles about what the rule of law ought to be. As a law dean, I think that law schools are not just professional schools. They are institutions of moral purpose.12
That is one way to characterise and support the argument I have made in this paper, that our educational, research and outreach roles coalesce to present a unified model of a law school today that sees its mission as promotion not merely of technical competence but also of the values of leadership, citizenship, and service, so far as those values can be given expression through the discipline of law. The argument may be supported in other ways as well. It assists in seeing the lawyer as a highly ethical professional, with overarching social and community responsibilities, rather than merely as a hired gun, and may help to combat some of the familiar negative (and disturbingly age-old) stereotypes about lawyers. It also potentially brings a greater sense of purpose and satisfaction to the work of lawyering — especially in point in Australia, where recent studies reveal disproportionately high levels of depression amongst lawyers and law students.13
One of the joys of my participation to date in the educational programs of the IALS — Suzhou in 2007 and Montreal in 2008 — has been the theme of 'learning from each other', whether in relation to the essential characteristics of other legal systems (Suzhou) or effective techniques for teaching about them (Montreal). Without diminishing the importance of this theme, which of necessity remains a critical starting point, and without denying the richness of diversity, I am hoping in Canberra in 2009 to push a little beyond merely learning from each other, to embark on the search for universals. I hope that this will not be thought to be unduly optimistic, naïve, or even pompous. I am not unaware of the challenge that a universal concept of lawyers and lawyering, and the role of law schools in promoting such a concept, faces from the character that the function of lawyers may take on in legal systems with underpinnings that are authoritarian rather than democratic. Yet with the collapse of democracy in countries like Fiji,14 we do not abandon our commitment to the rule of law and the independence of the judiciary — we call for it all the more strongly. If we can find universals in these abstract values, then it should not be beyond our capacity to translate that into how we characterise ourselves, our role and our mission, as law schools around the world: what is it that, as a global community of legal educators and legal scholars, we have in common?
At its most basic, I have suggested that we have in common the proposition that our shared task as law schools around the world somehow goes beyond the mere production of lawyers with technical legal competence. I look forward very much to engaging with you on whether I can sustain this basic proposition, and, if so, whether my attempt to identify that 'something more', as outlined in this brief paper, can also be sustained.
12 Quoted in Michael Coper, Legal Knowledge, the Responsibilities of Lawyers, and the Task of Law Schools, 39 U. TOL. L. REV. 251, 260 (2008); see http://law.utoledo.edu/students/lawreview/volumes/V39n2/index.htm. 13 See http://www.unsw.edu.au/news/pad/articles/2008/sep/Jepson_release.html. 14 See http://www.abc.net.au/news/stories/2009/04/10/2540548.htm?site=local.
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92 The Role of Law Schools and Law School Leadership in a Changing World
Better Judicially Educate, Another Teaching Law
Pr. Roch Gnahoui DAVID Université of Dakar (Senegal) West African Catholic university (Abidjan Côte d’Ivoire)
What are we doing in our universities or law faculties? Obviously to teach law. With evidence, can we ask this question? Why do we teach law? In African context, it’s seemed like a mimicry approach than a real development program. We remark, most of time that law faculties are entities which used for receiving student until, invading labour market. It’s a little time a setting back way, although after their studies achievement better’s of student enter through labour life Law govern social link in society and on this case. It’s must be known and administer. Here we see the necessity to have professional in law able to give it regulation role. Law isn’t transmit at birth. It’s must be really be learned and then, It need qualified citizen
We feel that in Africa law apprenticeship still be revise, after many years of teaching. Our law knowledge method transmission must be “re examine” by us. An unanimous remark, law teaching is done in classical way most of time. After dictate course and live class with his conscience have well done a professional assignment, is teacher position. Besides it’s an assistant who debit course because the principal teacher, is busy elsewhere. The teaching theory for student knowledge is too lonely for deficiency practice reason. Furthermore, it is a total absence, which oblige student do badly with insufficient document. He qualify of these insufficient document is a major obstacle. Students are really concerned by teaching, when they imply in lawyer, bailiff solicitor careers. It’s only on this moment of their professional training that they realise law doesn’t stay like a sum of theory badly exposed by teachers. This justify, few advanced jurist implication in African society able to participate actively at international negociation. heorical knowledge “jurist” number is higher than practised jurist number. The society’s acknowledgeable doesn’t understand that in this domain, there are prohibition or authorization because our former jurist aren’t effective in text elaboration for their utility, in their application and “penalty and violation start off. Law teaching must be envisage in a radical form in universality context and more emphasis Human rights protection. Otherwise, the license masters doctorate system almost universal included international circulation of graduated and knowledge. Student after class must persued the importance of notion acquiered and put them into practice for better behaviour regulation. While human right protection incite more “incrementation” accentuation values for avoiding lose time and effort. Put together practical and theory, is a challenge to be take up. Legal clinic implantation try to do the best to filled the gap but, it isn’t yet perceive at nationals universities level. Henceforth we get conscious that our teaching way must be change. It’s the reason why it is so important to favour on others experience for a better juridical education service. It will be of course examine law faculty, responsible , in fact dean’s who must boost a pragmatics and more effective approach in our figure of teaching in African French-speaking university.
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94 The Role of Law Schools and Law School Leadership in a Changing World
Educating Our Students For What? The Goals and Objectives of Law Schools In Their Primary Role of Educating Students (Comments on Plenary I) — How Do We Actually Achieve Our Goals and Objectives? (Comments on Plenary III)
Louis F. Del Duca* Pennsylvania State University United States
INTRODUCTION
Should law schools go beyond producing competent and ethical lawyers? Should they train lawyers to stand up for the rule of law, to work for law reform, to be community leaders? What is the impact of globalization? Are we training lawyers for local, national, transnational, or international practice? How do we actually achieve our goals and objectives?
In the post World War II era, new technologies and globalization have simultaneously on the one hand generated opportunities for expanded world commerce, communication, and cultural interchange. On the other hand, they have also generated world‐wide concern over environmental, financial, commercial, and human rights issues accompanied by creation of regional and global political and economic organizations, and a plethora of public and private transnational legal issues, treaties, legal guidelines, standard form contracts, alternative dispute mechanisms and domestic legislation attempting to respond to new problems and new opportunities for their creative resolution.
How should our legal education systems respond to these changes?
At a symposium on Emerging Worldwide Strategies in Internationalizing Legal Education1, John Sexton, then Dean of the New York University Law School, perceptively commented on this phenomenon. He noted the analogy between the impact of the 19th century industrial revolution and its technology and the current impact of technology and globalization on law, legal institutions, and legal education. Commenting on the introduction in 1870 by Christopher Columbus Langdell of the case law method for training students to enter the legal profession, Dean Sexton stated:
The more and more I look at the work of Christopher Columbus Langdell, the more and more I understand that the paradigm shift we see now in sovereignty, technology and information distribution was occurring then. For them, it was not a paradigm shift involving nation states but a paradigm shift involving [individual] states [of the Union] after the Civil War. It was not technology involving computers, but it was technology involving increased literacy and newspapers, the dissemination of information. For them, it was not the internationalization of markets, but
* Professor and Edward N. Polisher Distinguished Faculty Scholar, Penn State Dickinson School of Law. 1 Symposium, Emerging Worldwide Strategies in Internationalizing Legal Education, 18 Dick. J. Int’l L. 411 (2000). Presented at the 2000 Annual Meeting of the Association of American Law Schools at the Marriott Wardman Hotel in Washington, DC.
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the nationalization of markets. I am now beginning to re‐understand what Langdell did in those terms. I guarantee you that, when he developed his method, he did not only teach Massachusetts cases.2
In today’s world of many legal cultures and traditions, development of an optimal curriculum and optimal legal methodology for individual law schools amongst a range of law schools with varying asset basis is a challenge not likely to generate a single universally useful, acceptable or desirable solution. Nevertheless, one can attempt to identify the framework within which the search for such an optimal curriculum and legal methodology can best be conducted. In this context, within the spirit and findings of the International Association of Law Schools (IALS) 2007 program on Enriching The Law School Curriculum In An Increasingly Interrelated World – Learning From Each Other held at its Suzhou, China meeting3 and the follow up symposium4 on the same subject at the 2008 Annual Meeting of the Association of American Law Schools (AALS), the following observations may be helpful.
IMPACT OF THE NEW INFORMATION TECHNOLOGY AND GLOBALIZATION – ADJUSTING CURRICULUM AND BALANCING METHODOLOGY
The impact of the new information technology and globalization in the post World War II era and into the 20th and 21st centuries far exceeds the impact on law and legal institutions generated by the 19th century industrial revolution and technology. Currently, issues in which legal norms are domestically and transnationally intertwined proliferate regarding existing and yet to be created national, regional, and global political and economic structures. In addition, environmental, health law, division of power between central governments and component governmental units in individual countries and in regional organizations like the European Union, voting systems in global organizations like the United Nations, criminal and civil transnational procedural rules, international human rights conventions, and many other topics compete for attention. The need for change in public and private law generated by new 20th and 21st century technology and globalization continues unabated and expands.
The work of regional organizations like the European Community; international conventions like the United Nations Convention on Contracts for the International Sale of Goods5 and the Cape Town Convention on International Interests in Mobile Equipment6; the convergence of rules taken partially from adversary and partially from non‐adversary systems to establish rules of criminal procedure utilized by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC); and the phenomena of common law and civil law trained lawyers both comfortably citing cases, statutes, codes, and regulations as authority in proceedings before the European Court of Justice (ECJ) all involve utilization of concepts and procedures borrowed selectively from
2 John Sexton, Structuring Global Law Schools, 18 Dick. J. Int’l L. 451, 453 (2000). 3 http://www.ialsnet.org/meetings/enriching/index.html. 4 Symposium, Achieving Optimal Use of Diverse Legal Education Methodologies, 26 Penn St. Int’l L. Rev. 834 (2008). 5 United Nations Convention on Contracts for the International Sale of goods, adopted April 11, 1980, S. Treaty Doc. No. 98‐9, 1489 U.N.T.S. 3, 19 I.L.M. 668, available at http://www.uncitral.org/en‐index.htm [hereinafter CISG]. 6 Roy Goode, The Cape Town Convention on International Interests in Mobile Equipment: A Driving Force for International AssetBased Financing, 39 UCC L.J. 1 (2003); John Atwood, The Status of the Mobile Equipment (Cape Town) Convention – Arrival of an International Registration System, 39 UCC L.J. 75 (2006).
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civil and common law traditions. These are just a few examples of many areas of law in which convergence, harmonization, and in some instances unification7 is occurring from which teaching materials can be obtained to develop the students’ professional skills and sensitivity to current policy issues. Development of teaching materials and methodologies for training students who will be the future practitioners and molders of public policy to identify and respond to such important substantive, procedural, and public and private law issues provide challenges for legal educators world‐wide.
How do we identify an optimal curriculum and how do we choose an optimal legal methodology for achieving our goals?
The conference on Enriching The Law School Curriculum In An Increasingly Interrelated World – Learning From Each Other8 and the transcript of the follow up symposium on Achieving Optimal Use of Diverse Legal Education Methodologies 9 at the 2008 Annual Meeting of the AALS provides information on possible answers to these queries. The task of balancing advantages and disadvantages in arriving at an optimal use of diverse legal education methodologies was addressed at these conferences. A balanced use of case law, case problem, lecture, simulation, clinical and other methodologies was discussed. Such discussions in the context of the history and legal cultures of individual law schools can facilitate optimal use of available assets and existing social and cultural patterns.
The “integrated” model for development of a “transnational” curriculum involves inclusion in the curriculum of a basic “transnational law” course. The “pervasive” method of introducing international and comparative law perspectives into legal education involves the introduction of international and comparative law components into each of the traditional courses already in the curriculum. A combination of these two approaches is a possibility. In addition, international competence can be enhanced by facilitating interaction amongst students from varying legal cultures in planning summer, exchange, and LL.M. programs.
CURRENT PROGRAMS IN THE UNITED STATES TO DEVELOP OPTIMAL CURRICULUM AND BALANCED LEGAL METHODOLOGY
Introduction in 1870 of the case method by Christopher Columbus Langdell at the Harvard Law School served for over 100 years as a basic pattern for law school curricula throughout the United States. Although it is still used as the primary teaching methodology in the first year of law school in the United States, the call for change has been strongly articulated10 and the implementation of change is underway.
7 Louis Del Duc a, Developing global Transnational Harmonization Procedures for the TwentyFirst Century – The Accelerating Pace of Common and Civil Law Convergence, 42 Tex. Int’l L.J. 625 (2007). 8 Supra note 3. 9 Supra note 4. 10 Dean Claudio Grossman, Building the World Community: Challenges for Legal Education, 18 DICK. J. INT’L L. 441 (2000). In an article entitled A Case for Another Case Method, 60 Vand. L. Rev. 597 (2007), Harvard Professors Todd Rakoff and Martha Minow strongly recommend utilization of a problem methodology using complex problem cases to supplement the traditional case law methodology for developing skills needed for successful lawyering in an increasingly interrelated twenty‐first century world. At the outset they lament excessive reliance on the traditional case law methodology as follows:
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Harvard Law School recently announced changes in its first year curriculum which are the most significant since the introduction of the case method by Langdell. Courses have been added in “international and comparative law; legislation and regulation; and complex problem solving – areas of great and ever growing importance in today’s world.”11 These courses “will better prepare students to practice in a legal world in which regulations and statutes play an equal or more important role in the creation and elaboration of law as do court decisions; in which transactions and interactions among parties are increasingly global in nature; and in which economic, cultural and technological changes call upon the best lawyers to become skilled in system design, problem solving and creative approaches to issues.12
As these curriculum and legal methodologies evolve in response to changing societal needs, it is important to note the distinction between the Socratic Method and Langdell’s “case method.” The two are not synonymous. The Socratic Method was the “engine” Langdell chose to power his case method.13 The Socratic Method can also be successfully utilized not only in working with cases, but also in working with statutes, codes, administrative regulations and problems.
Lawyers from the civil world tend to “assess the Socratic Method – at least when it extends beyond first year of law school – as a kind of massive overkill and a waste of precious classroom time that could be put to better use.”14
Quite to the contrary, the Socratic Method properly used provides three very important benefits:15
a) it gives professors the ability to teach large bodies of students in an active manner; b) it is instrumental in teaching cognitive skill development – to teach students to “think like a lawyer”; and c) it helps students to hone their verbal skills.
Balanced use of the Socratic Method in conjunction with lectures and other methodologies in working with statutes, codes, administrative regulations and problems as well as cases generates interaction between teachers and students. It also requires close attention and vicarious participation on the part of all students in the classroom discussion since any one of them might be called upon at any time to participate in the
The plain fact is that American legal education, and especially its formative first year, remains remarkably similar to the curriculum invented at the Harvard Law School by Christopher Columbus Langdell over a century and a quarter ago. Invented, that is, not just before the Internet, but before the telephone; not just before man reached the moon, but before he reached the North Pole; not just before Foucault, but before Freud; not just before Brown v. Board of Education, but before Plessy v. Freguson. There have been modifications, of course; but American legal education has been an astonishingly stable cultural practice. 11 Quoting Dean Elena Kagan, HLS Faculty Unanimously Approves Firstyear Curricular Reform, Oct. 6, 2006, http://www.law.harvard.edu/news/2006/10/06_curriculum.php; See also Rakoff and Minow, supra note 1 0. 12 Quoting Professor Martha Minow, HLS Faculty Unanimously Approves Firstyear Curricular Reform, supra note 11. 13 Jeffrey D. Jackson, Socrates and Langdell in Legal Writing: Is the Socratic Method a Proper Tool for Legal Writing Courses?, 43 Cal. W. L. Rev. 267, 271 (2007). 14 Herbert Hausmanninger, Legal System of Austria, Legal Education and Legal Professions, 85‐101 (1997). 15 Jackson, supra note 13, at 271.
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teacher/student exchange. The Socratic Method facilitates teacher/student dialogue and communication. It produces an active as distinguished from a passive learning process.
The depth and scope of the interest of United States legal educators in developing adjustments in both curricula and methodology in their legal education procedures to meet the needs of an increasingly interrelated world is illustrated by the Symposium on Emerging Worldwide Strategies in Internationalizing Legal Education16 held at the Association of American Law Schools Annual Meeting in January 2000. Addressing the subject of internationalizing legal education in the United States, Dean Robert Clark (Harvard) inter alia proposed inclusion of international, comparative, and transnational law components in traditional law courses such as contracts, torts, property, etc., to enrich the curriculum by supplementing international, comparative, and transnational courses. Dean Claudio Grossman (American University) inter alia vigorously challenged the almost exclusive use of the case law methodology and called for a more balanced methodology in preparing lawyers to meet challenges in an increasingly globalized world. Dean John Sexton (NYU) inter alia discussed his “global law school” concept and the manner in which different types of law schools might respond to the challenge and opportunities of globalization. Dean Frans Vanistendael (Leuven – and a founder and then immediate past president of the European Law Faculty Association) addressed European Community Erasmus and Socrates Programs, Creation of the European Law School Association, and The Bologna‐Sorbonne Declaration of 1999 re Structure of Legal Education in Europe and 5 Year Program Possibility. Professor Sang‐Hyun Song, from the Seoul National University addressed Korean Students in U.S. Law Schools and Foreign Students at Seoul National University Law School; Csilla Kollonay Lehoczky (Head of Department of Legal Studies at Central European University in Budapest) addressed Cumulative Effects of International Legal Education in the Shaping of Legal Systems of Central and Eastern Europe; Dean John Attanasio (Southern Methodist University School of Law) addressed Partnerships, Joint Ventures and Other Forms for Building Global Law Schools; Assistant Dean Charles Cramton (Cornell Law School) addressed Joint Degree Programs; Charlotte Ku (Executive Vice President and Executive Director at the American Society of International Law) addressed American Lawyers and International Competence.17
Representatives from the Universities of Michigan, Pacific McGeorge, Columbia, Villanova, Georgetown, and American University addressed the topic of Techniques To Internationalize The First Year Curriculum18 in a Symposium held at the January 2006 Association of American Law Schools Annual Meeting. Included among their suggestions are the following:
Use of a mandatory transnational law course to develop specialized skills needed for Twenty‐First Century law practice as a building block for further advanced courses or as minimal exposure for students who will not be enrolled in such courses. Professor Mathias Riemann refers to this as the “separation model.” It puts together “in an overarching theme the emergence of a more complex world which is not the traditional law of nations anymore.” Professor
16 Symposium, Emerging Worldwide Strategies in Internationalizing Legal Education, 18 DICK. J. INT’L L. 411 (2000), supra note 2. 17 Symposium, Introduction and Overview, 18 DICK. J. INT’L L. 411 (2000). 18 Symposium, Techniques To Internationalize The First Year Curriculum, 24 Penn St. Int’l L. Rev. 801 (2006).
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Riemann and his colleagues have offered this type of course for the past six years at the University of Michigan Law School.
Incorporation of transnational materials into traditional first‐year courses (e.g. contracts, torts, property). Professor Riemann refers to this as “the integration model.” In his presentation, Professor Frank Gevurtz describes the preparation of supplements to existing first‐year books which will enable law professors to implement internationalization without unduly extending the volume of material already covered. He also comments on use of the “integration” approach at the University of the Pacific McGeorge School of Law. A detailed description of this very useful series is found at http://www.westglobalissues.com.19 Introduction of a new course called Lawyering in Multiple Legal Orders. Professor Katerina Pistor stated that “this title reflects the basic philosophy of the course, mainly that legal practitioners will invariably work in more than one legal order, a concept that is not unfamiliar to lawyers practicing in federal systems, such as the United States.” She further stated that the course enables students “to navigate in a complex world, where different foreign legal jurisdictions may be relevant for resolving a particular case, or where international treaties or conventions need to be consulted.” The course also sensitizes students to the fact that “lines not only between common and civil law, but also between comparative and international law are blurring.” This course was offered at Columbia Law School beginning in the fall semester of the 2006‐2007 academic year and is co‐taught by Professor Pistor and Professor George Bermann.
Incorporation of transnational materials into legal writing, lawyering and advocacy courses. Professor Diane Penneys Edelman advocated for this incorporation model based on her more than twenty years of experience in teaching similar courses first at Brooklyn Law School, and then at Villanova University. Professor Edelman shared her insights on how to most effectively implement this approach by offering specific recommendations regarding the choice of materials and teaching techniques.
Introduction of a Law in a Global Context course. This course was offered as a one week program to first‐year students at Georgetown beginning in the first
19 The Global Issues series with Frank Gevurtz as Series Editor, includes the following: Global Issues in Civil Procedure by Thomas Main Global Issues in Constitutional Law by Brian K. Landsberg, Leslie Gielow Jacobs Global Issues in Contract Law by John A. Spanogle, Jr., Michael P. Malloy, Louis F. Del Duca, Keith A. Rowley, and Andrea K. Bjorklund Global Issues in Corporate Law by Franklin A. Gevurtz Global Issues in Criminal law by Linda Carter, Peter J. Henning, Christopher L. Blakesley Global Issues in Family Law by Ann Laquer Estin, Barbara Stark Global Issues in Labor Law by Samuel Estreicher Global Issues in Legal Ethics by James E. Moliterno, George Harris Global Issues in Property Law by John G. Sprankling, Raymond R. Coletta, M.C. Mirow. Development of the Global Issues series and in depth discussion of the “integration” approach can be found in the Report Regarding the Pacific McGeorge Workshop on Globalizing the Law School Curriculum, 19 Pac. McGeorge Global Bus. + Dev. L.J. 268 (2006).
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week of the second semester of the 2006‐2007 academic year. Dean Alex Alienkoff reported that this course is “an intensive program for integrating transnational perspectives into the first year curriculum. . . .” Students will work with a single, complicated transnational legal problem that relates to one of the first‐year courses taken during the first semester.20
Incorporation of international components into the first‐year curriculum. This is being done by Professor Claudio Grossman at American University Washington College of Law as part of a larger program to present legal phenomena to students as a totality, rather than in isolated units like torts, civil procedure, constitutional law, and environmental law.
The challenge of adjusting curricula and methodology and making other adjustments in legal education in the United States to address the problems and opportunities created by an increasingly interrelated world has been addressed in several other recent forums which are noted to facilitate ready reference.21
20 Supra note 10. 21 Symposium, Globalizing Legal Education – Educating Lawyers for Transnational Challenges, 23 Penn St. Int’l L. Rev. 741 (2005); Symposium, Globalizing Legal Education – Transnational Law: What Is It? How Does It Differ From International law and Comparative Law?, 23 Penn St. Int’l L. Rev. 795 (2005); Symposium, Developing Mechanisms to Enhance Internationalization of Legal Education, 22 Penn St. Int’l L. Rev. 393 (2004); Symposium, Continuing Progress in Internationalizing Legal Education – 21st Century Global Challenges, 21 Penn St. Int’l L. Rev. 1 (2002); Symposium, Working Together: Developing Cooperation in International Legal Education, 20 Penn St. Int’l L. Rev. 1 (2001).
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102 The Role of Law Schools and Law School Leadership in a Changing World
The Role of Law Schools in Founding and Reviving Legal Professionalism The need for Ethical Leadership
Professor Kim Economides University of Exeter United Kingdom
1. What are law schools for?
Two titans of modern legal scholarship, the late Professors Peter Birks and Professor Sir Neil MacCormick, both with strong Scottish connections, shared a common cause of death and, through their writings, made significant contributions not only to legal literature but also to the wider community of legal scholars. Both men boldly asserted the public role and responsibility of the legal scholar and were deeply committed to defending legal values. They left an important legacy to law schools everywhere reminding law teachers of their true mission, through legal education and scholarship, to promote and protect humane professionalism.1 In the mid-1990s Peter Birks edited two volumes, timed to inform the ACLEC Legal Education Review,2 one entitled What Are Law Schools For? 3 thereafter used editorials in the SLS Newsletter to target those who sought to dilute the quality and intellectual rigour of the liberal law degree. Around the same time, Neil MacCormick, in his introduction to the Society of Legal Scholars (SLS)4 opened with a powerful vision of the role of legal science in modern society and went on to describe the fundamentals of a sound legal education. Few law school mission statements can match the clarity, force and insight of MacCormick’s manifesto and his words merit reflection since, in my view, they capture the essence of what any law school should aspire to communicate to - and inspire within - the law student:
A rounded education in law must always include a sound grounding in the basics of legal doctrine: public law, both constitutional and criminal; private law, concerning obligations, persons and property and at least some elements of commercial law; also preferably through special courses dedicated to this, elements of legal history and of the philosophy and sociology of law. More important than the detail of any particular analysis of the texts of the law; understanding of texts in the light of underlying problematic aspects of law; and a readiness to enquire into the contexts in which law operates. Also, there should be a firm awareness of law's character as a practical discipline; this includes an awareness of legal practice and its requirements, but is not exhausted by that. In the broadest sense it requires a grasp of law as a domain of practical reason. The fate of constitutionalism and the Rule of Law is nowhere a matter for complacency. Teachers of law protected by a justly defined academic freedom and imbued with a proper sense of professional self-respect and civic
1 See appreciations of both academic lawyers at: http://www.law.ed.ac.uk/neilmaccormick/ and http://www.guardian.co.uk/news/2004/jul/16/guardianobituaries.obituaries. 2 This specified the following educational outcomes for law degrees: Intellectual integrity and independence of mind; Core knowledge; Contextual knowledge; Legal values; Professional skills. See further ACLEC First Report on Legal Education and Training (London, 1996) 21. 3 P. Birks, Reviewing Legal Education (Oxford, OUP, 1994); Pressing Problems in the Law. What Are Law Schools For? (Oxford, OUP, 1996) 4 On the inside cover of each issue of the SLS Directory published annually.
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responsibility have a special role to play in maintaining critical awareness of the preconditions for law and liberty. The part they play is scarcely less vital than that of an independent judiciary and legal profession.
While today’s neo-liberal climate may be hostile to traditional conceptions of ‘academic freedom’, as legal scholars almost everywhere appear to be subordinated to managerialist tendencies in higher education that risk debasing autonomous scholarship and the currency and true value of law degrees, the ideal of a liberal legal education persists and most law teachers still adhere to the belief that they should aim to produce ‘good lawyers’.5 But what is a ‘good’ lawyer and is it still realistic to expect law schools to cultivate integrity, in either lawyers or public institutions, beyond communicating skill in the handling of rules, transactions or clients? Should law schools be involved with developing moral character or ethical instruction and, if so, to what extent? It is perhaps necessary to understand the motivations of law teachers to perform the special ‘public’ role MacCormick has assigned them, and which he believed was so crucial for both law and liberty.6
2. Instilling professional awareness and commitment
Many, but by no means all, law schools in the West accept some responsibilities that reach beyond transmitting technical competence and increasingly promote awareness of public and community interests that transcend servicing the legal needs of fee-paying, private clients. They may achieve this through traditional lectures based in the classroom or through work experience, clinical legal education, pro bono and community legal services outside the physical boundaries of the law school. The point is that a new understanding of the role and responsibilities of the modern law school is emerging but much more can and should be done to raise awareness of individual and social responsibility amongst future lawyers.7 Law Schools in the East are also contemplating how they might teach students about justice as well as law.8 In this sense law schools accept they have a role - as public institutions - that, at least in part, and despite private funding, involves supporting the integrity of social and political institutions designed to protect and promote the Rule of Law. Other academic commentators have noted the role of the law school in reviving professionalism and it is clear that the law school is a significant site when it comes to encouraging the good in lawyers and discouraging the bad.9 But professionalism is an important value to be nurtured regardless of its significance to the legal profession and civil society. Ethical perspectives also matter when it comes to core academic activities such as
5 See M. Thornton, “The Law School, The Market and the New Knowledge Economy” (2007) 17 (1-2) Legal Education Rev., 1-26. See also K. Economides, “Cynical legal studies” in Cooper, J. and L.Trubek, L, eds., Educating for Justice: Social Values and Legal Education. (Aldershot: Dartmouth, 1997) 26-38. 6 See also A. Kronman The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, Mass: Belknap Press of Harvard University Press, 1993)
7 See R. Burridge and J. Webb, “The Values of Common Law Legal Education: Rethinking Rules, Responsibilities, Relationships and Roles in the Law School” (2007) 10:1 Legal Ethics 72-97 [See also: “Special Issue – The Values of Common Law Legal Education” (2008) 42:3 The Law Teacher] 8 See, eg, K. Economides, “Anglo-American conceptions of professional responsibility and the reform of Japanese legal education: creating a virtuous circle?” (2007), 41(2), Law Teacher 155-168 (available at: http://hdl.handle.net/10036/65074 ) 9 R. Gordon, “Professionalisms old and new, good and bad” (2005) 8 Legal Ethics 23 at pp.30-31.
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teaching and research if plagiarism is to be discouraged and research subjects protected. In a recent report to the Law Society of England and Wales I argue that ethics should be made mandatory in the undergraduate law curriculum and make a series of recommendations designed to strengthen the professionalism and integrity of future lawyers that should help them better connect with the fundamental values and wider civic responsibilities highlighted by Birks and MacCormick.10 It is important to state that these values and responsibilities have relevance for professional practice far beyond lawyering and, interestingly, at least within Europe ethics are seen to support the employability of students and relevant to the aims of higher education more generally, regardless of academic field and geographical boundaries.11 So, what is to be done?
3. Promoting ethical leadership
Amongst the recommendations in my report is the idea that young lawyers, at the point of admission, might make some kind of declaration analogous to the medics’ Hippocratic oath that could articulate and reinforce their professional commitments as lawyers.12 I offer the following declaration as a model that could be adapted to individual and local needs: I promise to use my legal knowledge and skill to the best of my ability and, notwithstanding duties owed to clients and the Court, will at all times serve the interests of justice without fear or favour. As lawyer, I shall work diligently, honestly, with integrity and independence to the highest standards and do my utmost to uphold the core shall uphold the rule of law, the democratic order, human rights, social justice, fair and expeditious process, and work toward the improvement and accessibility of the law, legal institutions and processes.
Some law schools require law students to swear (or affirm) an oath at the point of entry or graduation. Another recommendation is that legal ethics becomes mandatory in the undergraduate law degree. Whether or not this would be appropriate in all legal cultures is debatable but that we should set high expectations of future lawyers, whatever their career path, is something that should command almost universal acceptance for reasons set out by MacCormick and Birks. Unfortunately, many law schools appear to shirk this responsibility and settle for the lowest, not highest, common denominator. Most continue to ignore ethical instruction and the field remains under-developed and under-theorised by the legal academy. Where change takes place invariably this is led by legal practitioners with law schools reluctantly dragging their feet behind. I invite the International Association of Law Schools to demonstrate leadership by passing a resolution calling upon all law schools to
10 K. Economides and J. Rogers, Preparatory Ethics Training for Future Solicitors (London, Law Society, 2009) (available at: http://hdl.handle.net/10036/64973) For an early assessment see Martin Partington’s recent review: http://www.ukcle.ac.uk/directions/ethics.html 11 See further the Bologna Process which promotes the idea of an ‘engaged university’ (http://ec.europa.eu/education/policies/educ/bologna/bologna_en.html). In order to enhance employability European higher education aims to promote research and professional skills by increasing emphasis on a range of areas including: ethics, social responsibility, public awareness of research, multicultural skill, IPR and business skills; and global career competencies/skills. 12 Economides and Rogers, supra, n.10 at pp.34-35. See also the discussion of a legal Hippocratic oath at: http://law.exeter.ac.uk/friends/HippocraticOathforLawyers.shtml now published as, Exeter Symposium "Symposium: A Hippocratic Oath for Lawyers?" (2008) 11:1 Legal Ethics 41-66. See also: http://www.timesonline.co.uk/tol/comment/letters/article2871928.ece
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offer their students the opportunity to study ethics and reflect meaningfully on their professional commitments. I am convinced there is a tremendous amount of experience and good practice than can and should be shared.
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The Role of Law Schools and Law School Leadership in a Changing World
Anton Fagan Faculty of Law, University of Cape Town South Africa
Topic 1: The Goals and Objectives of Law Schools in Their Primary Role of Educating Students
In this brief note I will restrict myself, in the first place, to what I believe should be the educational goals and objectives of my law faculty, the Law Faculty of the University of Cape Town (henceforth, abbreviated as UCT). Some of what I have to say about these goals and objectives applies also to other law faculties in South Africa. Some of it may apply also to law schools in other parts of the world. However, given that the context wherein a law school or faculty operates differs from country to country, and even within countries, I do not assume that my views have universal, or even in all respects national, application.
In this note I will restrict myself, in the second place, to what I believe should be the educational goals and objectives of the UCT Law Faculty’s LLB programme. The Faculty also has an LLM programme, and has a number of students registered for PhDs. However, it is the LLB degree that gives access to the legal profession. Again, some of what I have to say about the goals and objectives of the UCT Law Faculty’s LLB programme may also apply to its LLM and PhD programmes, but I do not assume that to be the case.
In my view (and this is my view rather than that of my entire Faculty), the primary educational aim of the UCT Law Faculty’s LLB programme should be to provide our graduates with the fundamental knowledge and skills that they will require to become leading practitioners of South African law.
Why the emphasis on the practice of South African law? Because that is where the overwhelming majority of our LLB graduates end up. South Africa, like England, has a split profession, except that we speak of advocates and attorneys, rather than barristers and solicitors. Most South African attorneys work alone or in two- or three-person partnerships. However, there have always been a number of large law firms, specialising in commercial work, and centred in Johannesburg and Cape Town. Recently, most of these have merged into super-large firms. A survey of our recent LLB graduates shows that a majority of them joined one of these (now) super-large firms. Our register of alumni shows that a majority of our LLB graduates remain there. What about the rest of our LLB graduates? Many are practising as advocates (mainly at the Cape Bar). Some have become judges. A few have become prosecutors in the National Prosecuting Authority. A few have become legal academics. And a small number have moved into the business world (though I have only anecdotal evidence for this, it appears that this move is generally made from a law firm).
Why should we wish our LLB graduates to become leading practitioners of South African law, rather than merely good or competent ones? Because UCT is by several criteria the best university, and its law faculty one of the best law faculties, in South Africa (thus, for example, UCT placed 179th in the Times Higher Education World University Rankings in
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2008, the only South African university to make it into the top 300). And because – partly as a consequence of that – we have among the best LLB students in the country.
Why the emphasis on fundamental knowledge and skills? Because a legal practitioner’s legal education does not come to a halt the moment he or she completes his or her LLB degree. It continues throughout his or her entire career. In South Africa it does so, formally, during an aspiring advocate’s year of pupillage and an aspiring attorney’s two years of articles. It does so, informally, as an advocate or attorney gains experience over the years, often in highly- specialised and fast-changing areas of practice. Given that the LLB degree constitutes only the first three or four years of a practitioner’s continuing legal education, it should, on the one hand, lay the basis for what is to come and, on the other, focus on those bodies of knowledge and kinds of skills that are better taught ‘in the abstract’ in law faculties by law professors, than learned ‘on the job’ in chambers and law firms.
What knowledge, then, is fundamental to a legal education? Clearly, knowledge of the basic rules and principles of the law of property, the law of contract, the law of delict (torts), criminal law, and constitutional law. Most leading South African legal practitioners, it would appear, would agree with this. The UCT Law Faculty is in the process of reviewing its LLB curriculum. As a first step in that process, a questionnaire was sent to 25 judges, 60 advocates (most of them senior counsel) and more than a 100 attorneys (mostly at large or super-large law firms), asking them, in effect, to tell the Faculty which law courses they thought essential to the LLB degree. One of the questions required the respondent to identify which five courses he or she thought should be compulsory in the LLB degree, if only five were. Most respondents identified the five courses identified above (though some preferred the law of persons to the law of property, and some company law to criminal law).
But this is not the only knowledge that is fundamental to a legal education. As every thinking lawyer knows, the law often ‘runs out’ or is indeterminate. Even when it does not run out, it can at times be changed: by parliamentary legislation or by judicial over-ruling, distinguishing, or interpretation. As every thinking lawyer also knows, when the law runs out, adjudication involves evaluative reasoning. Decisions about how to change the law are similarly evaluative in nature. The fundamental knowledge required to become a leading legal practitioner thus cannot be restricted to knowledge of the rules and principles of property, contract, delict, criminal and constitutional law (and, if one wishes to expand the list, persons and companies). It must include an understanding of the relationship between law and values (morality or justice, if you like), and the role of the latter in adjudication and law-making. Again, many South African legal practitioners appear to be in agreement with this. Another question in the described questionnaire required the respondent to identify all the courses he or she thought should be compulsory in the LLB degree. A majority of practitioners (be they judges, advocates or attorneys), included jurisprudence. One of the central concerns of jurisprudence, certainly as it has been taught at the UCT Law Faculty for many years, is the relationship between law and morality.
Does it follow, from the fact that adjudication and law-making are value-based in the way described, that the UCT Law Faculty should seek to instil a particular set of values in our LLB graduates (some such values were suggested by the possible questions posed in relation to
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topic 1: respect for the rule of law and the independence of the judiciary, a commitment to social justice)? Yes and no. No, because it is not a law school or faculty’s task (no more than it is a drama school or science faculty’s task) to make its graduates morally virtuous. Yes, because – given the role of morality in adjudication and law-making – it is perfectly legitimate for a law school or faculty to explain the nature of moral virtue to its students, and because most people, once they fully grasp the nature of moral virtue, will choose to lead a morally virtuous life.
In other words, the UCT Law Faculty may and should explain to its LLB students the value of the rule of law and of an independent judiciary. It may and should explain what justice is and why it matters, particularly in adjudication and law-making. Having received and comprehended that explanation, most of our LLB students (provided that the explanations are good ones) will then respect the rule of law, will cherish the independence of the judiciary, and will seek to act justly rather than unjustly in their professional lives. However, the Faculty’s goal or objective in educating its LLB students about the values underpinning and intersecting with the law should only be the former, namely to explain those values, and not the latter, namely to instil them. Thus (to make this a little more concrete) while the Faculty could make it a condition for a student to obtain the LLB degree that he or she understand the right to equality in the South African Bill of Rights and its possible moral underpinnings, it cannot make it a condition for the student to get the degree that he or she accept that right as morally justified.
Finally, what about skills? Here it is important to recognise that skill in many activities is best acquired by actually performing that activity (think of driving a car or hitting a ball) and that some activities which are performed daily in legal practice cannot be performed at all, or only with great difficulty or artificiality, in a law school or law faculty. Before a law school or faculty makes it its aim to teach a particular skill to its students, there are thus two thresholds that must be crossed. First, the skill must be an important or fundamental one. Secondly, it must be a skill that is suitably taught in the law school or faculty rather than learned in the law firm or at the bar. Certain skills easily cross both these thresholds, such as the ability to analyse a judgment, to write an argument (making proper use of legal authority), to find the law on an obscure point, and so on. It is less clear, however, that the law school or faculty is the place to teach advocacy or negotiation skills, or how to work in a team.
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110 The Role of Law Schools and Law School Leadership in a Changing World
A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires)
Alejandro GOMEZ (Assistant Dean for Administrative Affairs) Mónica PINTO (Law professor) University of Buenos Aires Law School Argentina
The University of Buenos Aires was established in 1821 but legal teaching started in 1814 in the Academy on Jurisprudence that became the Law School in 1874. Argentina’s legal education system is mainly public – nearly thirty institutions - even though there are more than fifty private institutions awarding at least a first law degree. The University of Buenos Aires, UBA, is – perhaps – the major Argentinian Law School as per its student population and because of the leverage it exercises in law practice in the country. As other national law schools, UBA is a public institution but autonomous from the government. This status has received constitutional support with the new Constitution in force from August 24, 1994. Undergraduate university education is free. Autonomy means that national universities have their own elected authorities. In fact, the great majority of our national universities have a Board as the main organ, which is composed by representatives of the different clusters, namely faculty, alumni and students and, in some cases, staff. Each cluster elects its own representatives in free and fair periodical elections through universal vote. Once in the board, those representatives – UBA has a board of 16 members: 8 faculty, 4 alumni and 4 students – appoint the Dean and the Deputy Dean. Deans and Boards share some capacities and exercise others in order to manage the different schools. If Deans are crucial in the proposal of a policy, the Board should be functional in passing it for the given policy to become feasible. The great majority of the faculty of UBA Law School is part time because salaries are not high enough in order to be the main income of a family. At present, the Law School has almost 1000 faculty members, 400 assistants, 25.000 students. In order to provide opportunities for all those students, courses are offered from 7am to 11.30pm, twice a week. Almost 750 courses are offered for each of the two cycles. A first cycle where the main contents of almost all traditional branches of law is taught in different 14 courses, that are mandatory, and a second one with five mandatory courses – International Law, Corporations, Family Law, Tax Law and Conflict of Laws – plus others where each student can choose an orientation and build-up an own menu of 64 credits according to some guidelines, namely, 20 in the chosen orientation, 4 in Integration courses, 4 in Constitutional Law, 4 in Social Sciences, 4 in Jurisprudence, 6 in Litigation or Law Clinic and 8 free credits. This two cycles plus the introductory period last almost 5 academic years. Students are required to pass exams on three different levels of foreign languages for them to be able to understand judicial decisions and legal authorities at least in one foreign language. At present, English as a foreign language is taught and evaluated at UBA Law School.
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EDUCATING OUR STUDENTS FOR WHAT? The Goals and Objectives of Law Schools in Their Primary Role of Educating Students
UBA provides law graduates for different activities, the three branches of government but also for NGOs, intergovernmental organizations, private corporations.We are well aware that we have to produce technically competent and ethical graduates that should find their place in different occupations. Our society, as many others in Latin America and other parts of the world, is unequal and we should promote the engagement of our graduates with social justice, law reform, the struggle against poverty. When leaving the law school, our graduates should be prepared to face a world whose legal order would be at least different in a 50% to that in force while they were studying with us. This leads us to enforce a strong basic education where general principles and the tool box are known and to initiate students in the particularities of different branches of law. Practical knowledge and training are enforced through a practical litigation course, fellowships in law firms, government agencies and through clinics established together with specialized NGOs. Moot courts and other pedagogical resources are promoted. Student Exchange Programs are in force with a bunch of partner law schools in different parts of the world and the grades obtained in such programs are included in the transcripts at the home institution.
WHY ARE WE HERE? The Goals and Objectives of Law Schools Beyond Educating Students: Research, Capacity Building, Community Service
Public institutions are financed by the tax payer and are free for undergraduate studies. Law Schools are under the duty of providing services to the community, through clinical programs, advice to government and non-government organizations, expert media commentary that educates the general public, and others. Accordingly, national law schools do have a department for community services. Our main task is to provide as much free legal assistance to those members of the community that are not in a position to afford it as necessary. At the same time, this legal assistance is a testing field for our students that are learning and helping someone under the guidance of a law professor. We offer almost 150 different possibilities of legal assistance, with general and specialized approaches and in association with other institutions, mainly human rights NGOs. Last year, 12.300 persons sought advice from the Legal Services, 46% of them solved their legal problems without any litigation and the other 64% was transferred to a clinic or litigation course where a law student and a law professor sponsored their claims in justice. The main tasks of a public university school include teaching, research and community services. Research is, then, an important activity of the law school. Accordingly, law schools are under the duty to conduct the research that advances legal knowledge. However we do not have as many financed research programs as necessary. This is a sensitive issue because public universities do have research programs and structures that have been built-up on the grounds of “hard” sciences and law is not even considered to be a science. That means that we have some difficulty in trying to obtain satisfaction to our research proposals. We are working hard on that and hope to improve in the near future.
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HOW DO WE ACTUALLY ACHIEVE OUR GOALS AND OBJECTIVES? Strategies and Techniques to Realise our Ambitions
The main challenge at UBA Law School is how to achieve the proposed goals in such a huge context. At the same time, the mere fact of being huge should not lead us, inevitably, to the sacrifice of some standards. An assesment of the quality of our work reveals that there is a portion of our population that graduates with grades and standards shared with the best law schools in the world. These students have enough time to invest in their studies so as to enrol in courses offered at any time in the day and at any day in the week provided that the best professor is teaching there. The great majority of these students belong to the upper middle and high classes of our society and their families afford their years at the university. They apply to the student exchange program because they can pass the exams and have the money for their living expenses while abroad. The largest part of the student population graduates with grades and standards that are higher than those offered in other institutions in the country but even though do not reach the highest level, as shown before. The great majority of these students do have some job in which they have to invest between 6 and 8 hours per day and can only enrol in courses offered in their free time which do not necessarily match their preferred orientation. It should be noted that during the morning, early and late afternoon and in the evening the choice is great however during “rush hours” courses are populated and some applicants do not find their places in a given course and have to decide whether to move to another one or to postpone the course. These students belong to the empoverished middle classes and the lower classes of our society. They are fully on board in the system for they are actually studying at the university but the do not have the possibility of an extra book, extra time to add to regular library hours and, of course, there is no way for them to apply to the student exchange program because they cannot afford a semester abroad. A small part of them benefit from fellowships that help them with their transportation and book expenses. The smallest part of the student population takes long to graduate. They insist in course after course and they fail in their exams more than once. A set of requirements in order to keep the regular status prescribes that each student should pass at least two courses or obtain eight credits every two academic years; should not be graded “fail” in more than the 33% of the curriculum including the introductory course and should complete the law curriculum, including the introductory course) in ten academic years. The strategy to improve the situation of the largest portion of students is complex, an increased offer of courses taught by faculty aware of the situation of such students and who pays special attention to the characteristics of the situation and gradually imposes more exigency in the performance at the same time they give other by products to the students, such as supervised preparation of classes, fellowships. The Law School should enforce a fundraising campaign in order to obtain private funding – managed by a trust – for student exchange programs and other alternatives implemented with a view to improving the situation.. Faculty should be motivated and feel supported by the institution in their continuous training, in the participation in academic events, in their publications and, perhaps the more important, to get used to faculty meetings in the way some private universities do in different parts of the world.
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WHAT IS THE ROLE OF THE DEAN INTERNALLY? Leadership Issues Within our Law Schools
The Dean’s role in crucial for the proposed goals to be met. In our country, a Dean is expected to be a high ranking personality in the given field of knowledge because he or she – a desired “she” for the time being – is the head of the Board and the representative of such a Board at the Superior Board of the University where all the 13 schools of the institution are represented and where the main policies of the University are framed. At the same time, the Dean is expected to be a good manager, someone to whom access is not difficult, who measures the expectations and demands of all concerned actors in the school scenario and solves them in an inclusive way. The Dean exercises leadership and has a say in all and every matters within the scope of the school. Deans are in office for a term or two, that is four to eight years, and their administration should be known because of the added value to the existing situation.
WHAT IS THE ROLE OF THE DEAN EXTERNALLY? Leadership Issues in Connecting with our External Communities
The Dean is one of the visiting cards of a school. His or Her leadership may decide other institutions and people to join the Law school’s efforts for development, diversification. A well known personality, trusted, is crucial for the establishment of new plans and programs. International Cooperation programs should be part of the policy of the Dean, their dimensions, the partners, the scope of the programs. Deans also promote relationship with other public and private law schools in the country. A general consented policy in certain matters is all the more important in other to act efficiently.
WHAT HAVE WE LEARNED FROM EACH OTHER? WHAT CAN WE LEARN FROM EACH OTHER? The Elusive Quest for Universals in a World of Difference
We are well aware of the importance of lessons learned by law schools all over the world. In fact, our curriculum shows a good mix of the way in which lessons are taught in big European public law schools and the small groups organized in workshops and seminars in the way small private American law schools do. We followed both models in both cycles of studies and the mix proved to be successful. UBA had the chance of participating in all the process that led to the creation of IALS and to become a member institution and also to participate very frequently in AALS annual meetings. The gatherings and the products are important means for improving our methods and approaches and also for us to share our experiences with other colleagues.
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Implications of Globalization for Legal Education
Dr. Sibel Hacimahmutoglu♣ Hacettepe University Turkey
Technological innovation, increased communication, common markets facilitate interactions among citizens of different nations as well as among countries. International trade, international investment and monetary flows increase rapidly, business people in growing numbers travel abroad. Even ordinary people live temporarily or permanently outside their native countries. Integration of markets and cross border movement of people and corporations affect the work of lawyers and legal profession. They need to work in a world where different legal systems increasingly affect each other. This is internationalization or globalization.
Internationalization has led to establishment of international and supranational organizations such as International Institute for the Unification of Private Law (UNIDROIT), World Trade Organization (WTO), Organization for Economic Co-operation and Development (OECD), and the European Economic Community (now European Union) which promote building a bridge between different legal systems by issuing Principles and Rules, codes or even enacting laws. The aim of Principles and Rules or codes issued by international organizations is to harmonize1, but not to unify, laws of different legal systems so as to respond to the growing needs for legal certainty in a world where different legal systems may apply to cross border transactions. Indeed, given that law exits in different social, economic conditions and cultures, and historical development of countries, it may not be possible to change laws of different legal systems so as to achieve unification of laws of different countries. Nevertheless, approximation of laws of different legal traditions can be attained by issuing Principles and Rules and leaving their implementation and application to the national legal systems.
Such developments stemming from internationalization or globalization have substantial influence on the legal education. Law faculties have begun to add courses, such as international sales transactions,2 international commercial litigation,3 EU law,4 European company law,5 international corporate governance and transnational corporations6, to their
♣ Assistant Professor of Commercial Law and Vice Dean of the University of Hacettepe Faculty of Law, email: [email protected] 1 The terms “harmonization” and “approximation” are used interchangeably in this paper. 2 International sales transactions course is offered at the University of Leicester Faculty of Law at postgraduate level. See http://www.le.ac.uk/law/pg/llmmodules.html#lw7152 3 International commercial litigation course is offered to the students by the University of Cambridge Faculty of Law at postgraduate level. See http://www.law.cam.ac.uk/faculty-resources/courses-and-subjects/llm/papers 4 EU law is taught at graduate level in European universities. 5 The University of Ankara Faculty of Law in Turkey provides their students with European company law course at postgraduate level. 6 Advanced Legal Studies in London offers international corporate governance and transnational corporations course at postgraduate level. See http://ials.sas.ac.uk/postgrad/courses/LLM_ICGFR.htm
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curricula at either graduate or post-graduate level.7 Professors and lecturers teaching courses such as international corporate governance and international commercial litigation explain to their students Principles and Rules issued by international organizations. The focus of Principles and Rules issued by international organizations is on establishing convergence between different legal systems, namely the civil law and common law systems. Principles and Rules have been developed as the general structure aiming at reducing differences between the systems of civil law and common law.8 Principles are drafted in general terms while Rules are expressed with specific and detailed words. Detailed and specific Rules make it possible for Principles to be interpreted and applied in a similar way in different legal traditions. This structure of the basic Principles accompanied by specific Rules enables to take into consideration the cultural diversity and allows its incorporation into different legal systems in a more harmonious way.9 Since Principles and Rules are drawn on the fundamental features of the civil law and common law systems, they introduce concepts and notions of the common law system into the civil law system or vice versa. Nevertheless, there are some basic characteristics of the Continental law system that cannot be adopted by the common law system or vice versa since such characteristics have been evolved in historical, sociological, economic and political conditions of countries and then they are embedded in the legal cultures and practices of countries. Even, it has been argued that, there are differences between American legal system and the British legal system within the common law system.10
The recognition and identification of cultural distinctions between different legal systems, however, induce legislatures to create means and methods so as to build interactions between these different legal systems, such as the creation of structure of Principles and Rules. Indeed, as a result of globalization the increased attention paid to the ideas outside the legal system where the lawyer or legal profession practices leads to openness to different legal traditions and therefore to universal movements of harmonization. Further, one may also argue that there are similarities between the systems of Continental law and civil law stemming from the fact that in the evolution of legal traditions there were interactions between these legal systems. It has been stated that prior to the 19th century absolute barriers between the Continental law and the common law did not exist and there was much influence of the civil law on the common law system. The common lawyer incorporated the civil law traditions into their domestic laws.11 In the first part of the 19th century the American judges utilized Continental sources of law which was contributed to the development of the common law system. Many common citations of
7 In one American commentator argued that law schools should not just introduce courses with international dimensions, but should in fact internationalize the entire curriculum because internationalization had begun to infuse all aspects of life, see Flood, John, “ Legal Education, Globalization, and the New Imperialism” , The Law School - Global Issues, Local Questions, p. 140. 8 The structure of Principles and Rules has been used by ALI and UNIDROIT in issuing the Principles of Transnational Civil Procedure, see ALI/UNIDROIT Principles of Transnational Civil Procedure, Cambridge University Press, 2006. The same approach had been adopted by the OECD in issuing OECD Principles of Corporate Governance 2004, available at http://www.oecd.org/dataoecd/32/18/31557724/pdf 9 See, ALI/UNIDROIT Principles of Transnational Civil Procedure, Cambridge University Press, 2006, p. xxxv. 10 See ALI/UNIDROIT Principles of Transnational Civil Procedure, Cambridge University Press, 2006, p. xxxvi. 11 See Helmholz, R. H. “Continental Law and Common Law: Historical Strangers or Companions? “ (1990), 6 Duke Law Journal, p. 1208, 1223.
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Continental sources existed in English reports of the same period.12 These are only some examples for the evidence of influence of foreign law on national legislation in other countries. Given the fact that influences between different legal systems is not unprecedented13 the division between the common law system and the civil law system is not insurmountable.
Teaching concepts and notions of different legal systems to law students enable them to distinguish similarities as well as differences of foreign legal systems and allow them to compare foreign legal traditions to their domestic legal system. The comparison between the different legal systems helps law students understand the rationale behind laws of different legal traditions. Principles and Rules, together with their rationale, deserve to be explained in the relevant courses in law faculties. Given the fact that as a result of globalization the laws of countries are endeavoring to solve similar problems, the laws of different legal systems can be applied in a similar way to the situations through Principles and Rules issued by international organizations. Hence, it may be possible to overcome difficulties stemming from the differences between Continental and common law traditions.
12 See, Helmholz, p. 1224, 1226. 13 See, Helmholz, p. 1209.
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118 The Role of Law Schools and Law School Leadership in a Changing World
The Goals and Objectives of Law Schools in their Primary Role of Educating Students
Chuma C. Himonga University of Cape Town South Africa
Introduction
The aim of this paper is to discuss the missions of law schools in their primary role of educating students, and the impact of change on these missions.
I take the view that there is no uniformity among law schools in respect of the purposes for which they educate students. The definition of a school’s goals and objectives is influenced by factors peculiar to its own circumstances. Further, the mission of a school may change from time to time in response to national and international changes affecting the school in its own local setting. However, the changes surrounding legal education and the legal environment in which law graduates work seem to increasingly dictate the definition of similar goals and objectives for legal education across the world.
This paper is divided into three sections. Following this introduction, the paper presents a quotation stating the objectives of the author’s own Faculty.1 This statement is followed by a discussion of diverse factors that may influence the definition a law school’s goals and objectives. The paper concludes with observations on the effect of change in narrowing the differences between the missions of law schools.
Goals and Objectives of Law Schools in their Primary Role of Educating Students
Goals and Objectives of a Law Faculty: An African Perspective
In this section I state the mission of the University of Cape Town Law Faculty. The aim is two-fold: Firstly, to answer some of the questions prepared for discussion at the conference under the chosen theme; Secondly, to share local experience on the objectives of a school in a developing world with members of the International Association of Law Schools.
The mission states:
The central purpose of the programme is…to deliver graduates who are able to contribute meaningfully to the development goals of the country. The outcome …should be a versatile graduate with general analytical and communication skills, the dimensions of these skills that are specific to law, a basic conceptual knowledge of South African needs and international developments. In all these respects the faculty aims at excellence. To this end the faulty believes its programme should be aimed at producing broadly educated graduates who have the historical, comparative and jurisprudential background that is essential for a thorough and critical understanding of law and legal institutions, for only such graduates will be equipped to assume leadership and make full use of the opportunities for renewal
1 That is, the University of Cape Town
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provided by the new Constitution and the increasing globalising trends in law and business. 2
A careful reading of these objectives clearly and affirmatively reveals answers to the questions for discussion about whether the education of students: engages them in intellectual enquiry into the discipline of law, or trains them for professional practice; embeds a sense of ethical conduct and professional responsibility; promotes a sense of duty to stand up for the rule of law; inculcates an inspiration to work for the improvement of law and the operation of the legal system, and for the achievement of social justice; prepares them for leadership and civic responsibility; and educates them for internationalisation and globalisation.3
However, I do not assume that all law schools educate their students with these goals in mind. In the next section, I highlight some of the factors that may influence other schools’ definition of their goals and outcomes.
Factors influencing the goals and objectives of law schools
Any question on the determination of the purpose for legal education invariably raises another major question about who determines the purpose for education. Is it the student (who consumes the educational product and ultimately emerges as “educated”), or those who pay his or her fees (parents, the government or employers), or potential employers or society at large, or academic staff? 4 I submit that the answer to this major question has potential to influence a school’s goals and objectives in a particular way.
The purpose for which law students are educated may depend on other factors, such as the political history of the country and on whether the law school is a public or private institution. In this respect, Amina Mama has observed that:
In previously colonised [African] contexts, public universities have always been highly regarded, as key vehicles for the pursuit of all the national and continental aspirations intrinsic to political, economic, and intellectual de-colonisation. In terms of the ‘core business,’ this meant the production of both knowledge and people equipped with the intellectual capacities needed to pursue national and regional advancement.5
From this statement alone, it can be seen that the purpose of legal education may depend on the colonial or non-colonial history of the country. This introduces other variables, such as the country’s level of development (i.e. developed, developing or underdeveloped) and the related issues of resources.
2 See Quality Assurance Report, Faculty of Law, University of Cape Town (2003). 3 These questions were posed by the Conference Planning Committee of the Association 13. 4 L. Harvey and D. Green ‘Defining quality,’ Assessment & Evaluation in Higher Education (02602939, Apr93 Vol. 18, Issue 1 (mhtml: file//C: \Documents and Settings\Administrator\Local Settings\XPgrpwi…) (Database Academic Search Premier) 9. 5 ‘Restore, Reform but do not Transform: The Gender Politics of Higher Education in Africa’ (manuscript published in the launch issue of the Journal of Higher Education in Africa, December 2003), 1.
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The purpose of legal education may also depend on whether the school is a public or private institution. Presumably, private schools have more flexibility in determining the goals and objectives of their schools than public schools.
Amina Mama’s statement suggests another context-specific factor - that African countries may have different expectations or different degrees of expectation about the role of higher education institutions. In this respect, she further observes that while ‘Universities the world over have always been public or public-oriented institutions, this connection to the public is even more significant in Africa.’6
Thus African countries may view universities as ‘key sites for the production of intellectual capacity that is both socially responsible and relevant to the regional development agendas.’7 These expectations may, in turn, influence the goals and objectives of the schools concerned.
Conclusion: the impact of change on law school goals and objectives
The forgoing discussion suggests that, theoretically, there is no uniformity in schools’ goals and objectives. Special circumstances and settings in which each school operates inform the formulation of a school’s goals and objectives.
In some situations, however, the effects of changing conditions in the legal and business world, such as the internationalisation of law through treaties and human rights, and the process of globalisation may play a significant role in the convergence of law schools’ objectives and purposes for which they educate students. With regard to the effect of globalisation, Sanchez’s observation is instructive:
In the light of globalization, failure to train students in laws, culture and legal language of other nations will lead to inadequately prepared lawyers in the expanding legal market place…. Law schools have a duty to prepare students to be effective, competitive, and ethical practitioners. By not preparing students to specialize in foreign law areas during this era of globalisation, law schools will be failing in the performance of this duty.8
Thus, while ’globalisation does not minimise the importance of the local,’9 this phenomenon, together with other changes affecting legal education, suggest that we have reached a point in legal education when all law schools must adjust their goals and objectives to meet common demands in educating their students. Schools can neither remain indifferent to global context of legal education nor insulate their goals and objectives from demands for the production of graduates who are equipped for “lawyering” in global contexts and for transnational and international legal practice. These demands may
6 Ibid 8. 7 Ibid p 4. 8 G.M. Sanchez, ‘A Paradigm shift in Legal Education: Preparing Law Students for the Twenty-First Century: Teaching Foreign Law, Culture, and Legal Language of the Major U.S. American Trading Partners’ Hein Online – (1997) 34 San Diego L. Rev. 635-679 at 678-679. 9 See W Twinning Globalisation and Legal Theory (2000), London, Butterworths 252.
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come from potential employers and, not least, from students who are forced to search for work in a local, yet, globalising world.
Against this backdrop, schools might see the need, as this conference anticipates, to debate fundamental issues, such as what core values need to inform legal education in the early 21st century. This is not to mention the need for schools to learn from each other about managing the impact of globalisation without neglecting the goals and objectives of legal education at the local level. For, as Twining affirms:
Globalisation does not minimise the importance of the local, but it does mandate setting the study of local issues and phenomenon in broad geographical and historical contexts. For most legal scholars the maxim should be: ‘Think global, focus local.’10
Clearly, the challenge to law schools will be to develop curricula and quality assurance systems that are receptive to the inevitable influence of globalisation, whilst at the same time ensuring that domestic needs are respected. It will be for law schools to strike the balance. My stance is that an approach that is either totally euro-centric or afro-centric should be resisted. Law schools would need to take the middle ground.
10 Ibid.
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What are the Goals and Objectives of Law Schools in Their Primary Role of Educating Students? What are We Educating Our Students For? DRAFT ONLY – not for citation
Vivien Holmes Australian National University Australia
For me, this question first entails taking stock of the state to the world, thinking about the contribution lawyers can make to that world, and then musing on role of law schools in preparing lawyers to make that contribution1:
An interconnected world facing many challenges.
We live in a world in which everything is connected, sometimes instantaneously. The crises of climate change, credit and swine flu graphically illustrate the power and reach of this connectedness. It is a connectedness which offers possibilities for development and peace, and poses threats to security and the environment, on a scale we are still comprehending.
According to Jeffrey Sachs, the defining challenge of the twenty-first century will be to accept our interconnectedness, ‘to face the reality that humanity shares a common fate ... on a crowded planet’.2 As Australian ethicist Noel Preston says: ‘what is non-negotiable in the twenty-first century is that our perspective, our worldview, our understanding must have global dimensions. … I speak of our response as individuals, although the character of global citizenship may also be expected of corporate actors.’3
Our ‘common’ fate is not looking all that promising at the moment. Sachs, among others, believes that the world’s current ecological, demographic and economic trajectory is unsustainable, and that ‘if we continue with ‘business as usual’ we will hit social and ecological crises with calamitous results’.4 Many agree with his analysis. Discussing our ecological trajectory and summarizing what is now well accepted science, Flannery writes that: the climatic tipping point is the point at which greenhouse gas concentration reaches a level sufficient to cause catastrophic climate change. The point of no return is reached when that concentration of greenhouse gas has been in place sufficiently long to give rise to irreversible processes. Humanity is now suspended between the
1 This paper draws heavily on a paper I am writing with Simon Rice (ANU) on Legal Ethics in a Connected World.
2 Jeffrey Sachs Common Wealth Economics for a Crowded Planet (2008) 3. emphasis in original
3 Noel Preston, ‘Ethics sans frontiers: the vocation of global citizenship’ (2006) (Speech delivered at the 2006 Aquinas Lecture, Australian Catholic University, Brisbane Campus, 8 September 2006)
4. Sachs 5
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tipping point and the point of no return and only the most strenuous efforts on our part are capable of returning us to safe ground. 5
Of course, climate change is but one of the huge challenges facing humanity. The Millennium Project has identified 15 ‘Global Challenges for Humanity’: sustainable development, clean water, population and resources, democratization, long- term perspectives, global convergence of IT, rich-poor gap, health issues, better decision making processes, peace and conflict, status of women, transnational organized crime, energy; science and technology, global ethics (incorporating ethical considerations into decisions having global impact). The challenges, and their solutions, are all interconnected:
One of the principal findings of twelve years of research of the Millennium Project is that the most important challenges are transnational in nature and transinstitutional in solution. They cannot be addressed by any government or institution acting alone. They require collaborative action among governments, international organizations, corporations, universities, and NGOs…. Although listed in sequence, Challenge 1 on sustainable development is no more or less important that Challenge 15 on global ethics. The Challenges are interdependent: and improvement in one makes it easier to address others; deterioration in one makes it harder to address others. Arguing whether one is more important than another is like arguing that the human nervous system is more important than the respiratory system.6
The role of the lawyer What do the world’s interconnectedness, and the challenges facing humanity, mean for the profession and practice of law?
Today’s legal practice environments are many and varied. A growing number of legal professionals work as practitioners or adjudicators in international and transnational contexts.7 Those who practise law in domestic firms increasingly deal with matters that cross national jurisdictional boundaries, and lawyers working for global law firms will often practise (private) international law. But for both types of practitioner the practice of law can now radiate from a local to a global perspective and back again ‘with great speed.’8 Non- practising lawyers also are involved in many ‘global’ activities. Law graduates make and advise on many decisions which have a global impact, and many decisions which impact (immediately or eventually) on the 15 Global Challenges.
5 Tim Flannery ‘Now or Never. A Sustainable Future for Australia? (2008) 31 Quarterly Essay 25
6 Jerome C. Glenn, Theodore J. Gordon, and Elizabeth Florescu 2008 State of the Future (2008) 11
7 Pieter Bekker et al, Report of the Task Force on International Professional Responsibility (2007) The American Society of International Law < http://www.asil.org/pdfs/taskforcereport.pdf> at 30 April 2008. 8 Michael Pfeifer and Jens Drolshammer, ‘Introduction: On the Way to a Globalized Practice of Law?!’ (2000) 2 European Journal of Law Reform 391, 393.
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As the facilitators of international commerce and trade, of global transactions and multilateral agreements, lawyers are central to attempts to design a more sustainable, secure and equitable world. Law is at the heart of global cooperation in the face of crisis. International negotiations to address global problems will be informed by international law; agreements will be cast in international law, and international law will be used against non- complying nations. In Justice Kirby’s words, ‘[p]utting it quite bluntly, without international law and its institutions the evolution of humanity is most seriously endangered.’9
Of course, most lawyers are not ‘international law’ lawyers. But lawyers play a critical role – in any industrial economy of whatever politics – in ensuring social certainty and stability. They do this through their design of process, documentation and rules that give predictability to social and commercial transactions. The business of lawyers is now, more than ever, writ large on the international stage. Current international commerce and politics requires law and lawyers as much as domestic commerce and politics has done for centuries. As the world becomes smaller there will be an increasing need for professionals who are skilled in nurturing transactions and mediating disputes between different national, economic, ethnic and cultural groups. 11
Lawyers can play an important role in helping avert the worst of the possible future scenarios confronting us. Lawyers are often well-placed to mitigate or prevent (rather than facilitate!) harmful conduct. Some lawyers will choose to work directly in areas such as renewable energy, sustainable development or women’s rights, but it is not just these lawyers whose actions will have an impact. Whether a lawyer is practising commercial law in Montreal, litigation in Mumbai or administrative law in Melbourne, the interconnectedness of today’s world means that the repercussions of our own actions and those on behalf of clients can (and in many cases do) reverberate across the globe and back again.
The role of the law school
In light of this, law schools face the challenge of educating for global citizenship. As well as educating students to understand law in all its national, international and transnational forms, this will involve encouraging students to recognize humanity’s common fate and so take a global perspective in their future work. It also entails fostering in students a professional ethic that is relevant to a world where borders and boundaries no longer confine the consequences of lawyer’s actions; a world in which everything is interconnected and our actions and those of our clients can have repercussions far beyond what we may originally envisage. The current dominant ethical paradigm of the adversarial advocate is not up to this task and students should be introduced to other legal ethical models which have more guidance to offer.12
9. Justice Michael Kirby, ‘Take Heart – International Law Comes, Ever Comes’ in Ustinia Dolgopol and Judith Gardam (eds), The Challenge of Conflict, International Law Responds (2006) 283, 296
11 Peter Murray & Jens Drolshammer, ‘ The Education and Training of a New International Lawyer’ 2 Eur J L Reform 505, 54 12 see eg Christine Parker & Adrian Evans Inside Lawyers Ethics (2007) 21 - 39
125 The Role of Law Schools and Law School Leadership in a Changing World
But an intellectual recognition of the world’s connectedness is not enough. The challenge for Law Schools is to equip students to put a global ethic (and their legal knowledge) into practice. Educating students to understand themselves is key. We need to educate lawyers who are ‘emotionally intelligent’, who understand themselves as people:
Emotional intelligence is what enables us to manage ourselves and our relationships with others so that we can truly live our intentions. …Our emotional intelligence is our level of awareness of how our emotions affect all our thoughts and behaviour.13
We need to educate for self awareness/ emotional intelligence, not just so that our graduates will be more likely to be happy (though that in itself is a worthy goal in a depressed profession), but because they will be more effective lawyers. For example, as noted, lawyers often make, or advise on, important decisions (including those with global consequences). In the past, lawyers have been told to ‘think like a lawyer’, overlook emotions and make ‘rational’ decisions. It is now clear that we cannot make a decision without engaging our emotions/instincts, even if we don’t realize we are doing this. Further:
it has also become clear that listening to your instincts is just a part of making good decisions. The crucial skill, scientists are now saying, is the ability to think about your own thinking, or metacognition, as it is known. Unless people vigilantly reflect on how they are making an important decision, they won't be able to properly use their instincts, or know when their gut should be ignored. Indeed, according to this emerging new vision of decision-making, the best predictor of good judgment isn't intuition or experience or intelligence. Rather, it's the willingness to engage in introspection, to cultivate … "the art of self-overhearing."14
The ‘art of self overhearing’ forms part of the practice of reflection. Equipping our graduates with the skills of reflection will deepen their learning, about the law and about themselves.15 It is another key to equipping them to do their bit to address the enormous challenges faced by our interconnected world.
13 Colin James ‘ Seeing Things as We Are – Emotional Intelligence and Clinical Legal Education.’ 8 Int'l J. Clinical Legal Educ. (2005) 123, 133 14 Jonah Lehrer,The Next Decider, Boston.Com, 5 October 2008 http://www.boston.com/bostonglobe/ideas/articles/2008/10/05/the_next_decider/ viewed 13 May 2009 15 Karen Hinett, Developing Reflective Practice in Legal Education, UKCLE http://www.ukcle.ac.uk/ukcleadm/resources/reflection/index.html viewed 13 May 2009
126 What is the Primary Task of Law Schools in a Changing World? What are We Educating Students For?
Věra Kalvodová Masaryk University Brno, Czech Republic
In my short paper I would like to take a think about legal education, its main goals and objectives and to provide also some information about legal education in the Czech Republic.
It could seem to be easy to answer the question what is the primary task of Law schools in the present-day world. Simply told the main task is legal education of students. Such an answer is true indeed but too simplyfied. Legal education is an demanding and complex process covering many levels and areas. It does not mean only providing of basic knowledge in the field of law or of some professional skills. It should help students to become good lawyers. Of course, a good laywer has to know law and to be able to apply knowledge in practice. But a good lawyer has also to be able to identify relevant legal issues from the body of unstructured facts and to identify various legal sources. He or she has to have interpersonal skills (ability to relate to other people), to have ability to communicate with non-experts in the field of law, to be a good speaker, to have written communication skills etc. The ethical commitment is also one of the most important competences. Owing to the changing world, to the fact that legal cultures evidently influence each other and often blend together, with regards to the processes of integration and to the development of information technologies, other abilities are required especially ability to use foreign (legal) languages, the knowledge of foreign legal cultures and legal systems as well as ability to use relevant IT-tools, i.e. standard information retrieval systems and web-resources. This all makes increased demands on the Law schools and their educational programmes and of course on the their teachares and students, as well. It reguires also new methods of teaching and learning.
In my opinion the measure of all above mentioned skills and competences depends on the study programme and on the system of futher professional education. I would like to present Czech Republic, namely Faculty of Law, Masaryk University experience.
The primary and traditionally study field at the Faculty of Law in a full-time form within the Master´s degree programme Law and Legal Sciences is the field „Law“. The standars study length is five years. The graduates find careers in the area of justice, public administration and commercial professions. As there is special professional education od judges, public prosecutors, notaries and advocates in the Czech Republic organized by Ministry of Justice, Notarial Chamber of the Czech Republic and Czech Bar Association, the legal education was traditionally concentrated more on the knowlegde than on the skills. The situation has been changed during the last fifteen years. At present the programme´s main aim is for the students to gain the theoretical knowledge based on the latest scientific status quo, to be able to apply the knowledge in practice and to further their creative skills.1
1 Faculty of Law, Masaryk University, MU 2008, p. 14 The study is divided into three block. The first block covers the more theoretical and historical legal disciplines. The second block consists mainly of the private law courses, the third block focuses on the area of public law. The study programme is not concentrated only on legal disciplines. An integral part of the programme is foreign language learning. The study programme covers courses of economics and managment, as well.
The law degree in the Czech Republic is not divided into first (Bachelor´s) and second (Master´s) cycle. However, the Bachelor´s degree programme Legal Specialisation is offered at the Faculty of Law. Masaryk University. This programme takes the form of a combined study, which consists of a full-time study component (instruction via lectures and consultsations), as well as a distance study komponent (controlled self-study).2 The standard study lenght is three years. As the target group of this programme are mostly people working in the public administration area, in the area of police, in social security companies etc., the main aim of this programme is different from the aim of Master´s degree programme. The bachelor´s degree programme is more practically oriented. Its main aim is preparation the students for professions where current findings and methods are instantly used; the progamme also covers selected theoretical issues.
The Faculty of Law offers also the doctoral degree programme Theoretical Legal Sciences in both a full-time and combined form in 11 study fields. The standardstudy length is four years. The doctoral degree programme is aimed at scientific research and independent creative activities in the area of research or development.3 The main purpose of the Ph.D. studies is to prepare students for their research career, nevertheless students should gain deep knowledge of their chosen field of study and they also should learn teaching skills.
For those who does not suppose to become academics or researchers there are other forms of continuing education such as the “LLM in Corporate Law” and the “MPA” (Master of Public Adinistration) which are organized in cooperation with Nottingham Trent University, Great Britain. The “LLM” programme targets not only the lawyers involved in the commercial area wishing to further develop their expertise, but also the middle and higher management of national and international corporations wishing to acquire additional legal skills and knowledge. The “MPA” study programme´s aim is to offer this participants the possibility of broadening their knowledge and skills in the area of public administration, which they can apply in practice. This programme is targets public administration executives, managerial staff abd professionals aspiring to those positions and also districts council members, managerial staff in non-profit organisations, universities, hospitals, police, army etc., as well as lawyers involved in public administration.4
It is necessary to mention that legal education covers lifelong learning, too. There are various form of lifelong learning at the Faculty of Law, Masaryk University. As an example we can mention courses and seminars concentrated on the current issues of changes in the Czech legal system. The Faculty of Law currently offers also a general lifelong learning
2 Faculty of Law, Masaryk University, MU 2008, p. 14
3 Section 47 of the Act No. 111/1998 Coll., as amended (The Higher Education Act) 4 Faculty of Law, Masaryk University, MU 2008, p. 18 programme, which is implemented within the framework of the accredited “Law” masters degree programme, and specialised lifelong learning programme, which is implemented within the framework of the accredited Bachelor´s degree programmes.
In conclusion, I would like to sum up this paper by stating that the Law schools in the present-day world face a big challenge. They should provide legal education in the widest sense of the word. They have to reflect the changes mentioned above. They should be able to provide not only the knowledge of law and professional skills but also the knowledge of ethical principles and relations between law and other normative system (such as morals, religion). They should contribute to the intelligence, culture and legal conscience of the society.
The Role of Law Schools and Law School Leadership in a Changing World
Dr. Tahir Mamman Director General of The Nigerian Law School Nigeria
About 40 of the 95 universities in Nigeria offer Law as part of their menu of academic programmes. In the broad discipline of Arts and Humanities, Law is rated as one of the programmes in high demand and the profession’s association is considered to be the leading professional body in the country. Add to these, its unique responsibilities in providing judges and personnel for the Justice Sector at the domestic and international arena. These are services and responsibilities that are pervasive and cross-cutting unlike other professions which generally provide one line service structure to the society albeit, an important one.
The combination of this popularity and unique position of the legal profession place enormous burden on the providers of legal education, especially the faculty and the Dean.
The Faculty In Nigeria, a Law School or faculty of Law as it is generally known in the country is established first by obtaining approval from the National Universities Commission (NUC), the agency that gives initial approval for the establishment of a university and all degree programmes. In addition to the NUC, an institution desirous of starting a Law programme must also inform and be guided by the Council of Legal Education.
The two bodies undertake periodic validation or accreditation of the programme, usually every four years to ensure quality of legal education is sustained and enhanced.
Until 1989, faculties were free to determine the curricula that will meet the quality requirements of its programme. But following concerns that some universities were falling below standards in terms of programmes, the federal government through the National Universities Commission imposed Minimum Academic Standards for Law and in fact all disciplines, later reviewed and referred to as Benchmark Minimum Academic Standards.
The latter brought into the curricula other non Law Courses so that Law is taught and learned in the context of the circumstances of the society. All these, are driven by the aspiration and requirements on the part of the government, the profession and the society as to certain minimum benchmark of competence and skills required of a Lawyer.
These concerns are constantly reiterated by Judges, the Lawyers professional body and members of the public who use the services of lawyers in all ramifications.
This is therefore seen as the core responsibility of the Law School.
Community Services In Nigeria, Professors and other senior members of the faculty are periodically appointed by
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the government, NGOs and the Lawyers’ Society to serve as resources in diverse activities, such as Ministers (federal) or State Executive Councils, as Chairmen or members of ad-hoc Committees.
One cannot however state with certainty that in the course of training, some of these services are consciously borne in mind by Nigerian or any Law Schools as a Lawyer’s role. It is only implied and infact expected that Lawyers have the unique training to provide such services. In the same way that Lawyers tend to be larger in number than other professional groups in legislative houses across the country. Another important component of training of students which directly, and consciously nurture community service orientation for Lawyers is the fast growing use of clinical legal education in the Law Schools. The Clinic is designed to provide students with hands-on lawyering skills as well as provide indigent citizens with basic legal advice..
Whether consciously or not, these wider social and communal responsibilities inevitably challenge Law Schools to be conscious of the technical competence benchmarks set for Law graduates, as well as develop an inter-disciplinary approach in curriculum design and teaching of Law.
As part of the preparation of Lawyers for the enlarged societal roles, Law Schools in Nigeria pay attention to the character and appearance of students. For instance, Law Schools widely impose dress code (black/white colors) on students while the Nigerian Law School expressly prescribes what is generally labeled as “fit and proper” as good character or behaviour requirements during their period of studies as pre-condition for Call to the Bar. Students’ conduct are monitored for compliance.
Law School Administration In Nigeria, Law Schools have fairly uniform management structures. A typical Law School would comprise the Dean and three, more or less departments and all faculty members belonging to one or the other departments.
Deans are elected democratically by faculty members for a term of two years, renewable only once for a similar period.
Eligible candidates must be professors and where there is no professor, a person below may be elected for a similar term but as acting, and in both cases, an elected candidate is appointed by the Vice-Chancellor.
In many Law Schools, the process of such election and appointment can be extremely politicized with alignments which sometimes affect the ability of the Dean to have smooth administration. Unions of academic staff are known to play key roles in the election process which also bring in ideological considerations and at times primordial interests could be important like ethnic or regions of the country where the candidates come from.
Overall when elected, much of the energy of the Dean would be spent on organizing the resources necessary to manage the School. That is, ensuring that teachers teach,
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examinations are conducted, scripts marked and results processed for consideration and approval of the School’s Board and Senate respectively, and that Students’ academic needs are met, like provision of teaching materials, etc.
The Dean would also be responsible for the academic development of the Law School, subject to the formal approval of the Senate of the university.
The Dean may provide a university-wide service as a member of the Committee of Provost and Deans, Senate and many ad-hoc University Committees to which he may be appointed.
Overall, much of the academic growth of a Law School may depend on the influence and capabilities of the Dean arising from his scholarly accomplishment and the respect earned there from and his administrative acumen. An effective Dean usually is a person who commands the respect of his colleagues in the Law School as well as the senior managers of the university. In some exceptional cases, the Law School and the university in general could benefit from external funding and support due to the external relationships and influence of the Dean. On the other hand, some Law Schools are known to have suffered set backs due to the poor standing of the Dean with the university administration and poor relationship with colleagues in the School.
In Nigeria, staff development is a critical factor in Law Schools through provision of opportunity for junior and middle level academic staff to acquire additional qualifications such as masters and or doctorate degrees, supervision of research by staff for their own progress and also on matters regarding development of the Law for the benefit of knowledge and society.
In recent years, arising from dwindling financial resources to support external or foreign staff development, much of this responsibility is borne by local professors.
The current need for higher qualification is now reinforced by a specific directive from the National Universities Commission (NUC) which requires a doctorate as a pre- condition for any academic staff in all discipline to be promoted beyond senior lecturer level.
This has placed enormous pressure on faculties and the Dean to ensure there are enough senior staff to supervise the growing number of academic staff at the lower rung of the teachers. From the foregoing, it would appear that subject to important variations in nuances on programme organization, cultural diversity, etc, a great deal of the roles, values and expectations of the Law -Schools across the world evince some universality.
This combination of diversity and commonness of certain core values generate exciting opportunities and challenges to the International Association of Law Schools (IALS) institution and collaborative frameworks for Law School administrators and teachers world- wide.
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130 The Role of Law Schools and Law School Leadership in a Changing World
The Goals and Objectives of the Caucasus School of Law in its Primary Role of Educating Students
Dr. Zaza Maruashvili and Professor Nodar Kereselidze Caucasus School of Law Georgia
Caucasus School of Law (CSL) offers a high quality education, based on a western model, which is well adapted to the specific needs of Georgia.
The aim of the Caucasus School of Law is: • to compose the proper conditions for realization of the personal potential; • to provide bachelor’s, Masters and doctoral level education; • to implement additional educational programs in jurisprudence; • to be at center of continuous education in the field of jurisprudence; • to provide preparation and training of researchers and educational personnel.
Foreign partners and others who have contact with Caucasus School of Law have recognized that our training programs are not just simple intellectual exercises, but ones that provide various alternatives in jurisprudence. Caucasus School of Law has been functioning since September 2005. In the first academic year of Bachelor’s Program (LL.B.) 31 students were enrolled. We currently have 252 undergraduate students, 185 graduate students, and a number of students in certificate programs. The school curriculum, modules, syllabi and grading system coincide with the requirements established by the Ministry of Education and Science of Georgia and the European Credit Transfer System (ECTS). For the September of 2009 Caucasus School of Law offers the new LL.B program with new opportunities:
• LL.B degree in optimal time; • Major and Minor specialization; • Registration regime; • Maximal academic relaxation for students; • Support of students career development.
The LL.B. program is bilingual. Undergraduate students will be required to take the TOEFL test and graduate students will be required to take the LSAT. The academic calendar of CSL consists of 36 academic weeks per year divided into three, 12-week trimesters. CSL has a quality assurance department by which students’ and professors’ ratings are defined. The educational process is frequently monitored by foreign experts.
CSL’s motto is “The law is strict, but it is the law,” (Dura Lex, Sed Lex!) Teaching and studying at Caucasus School of Law is challenging, a fact students learn during their first days at CSL. The labor market in Georgia is selective and highly competitive. Evidence of the quality of a CSL education is evident in the fact that the majority of our undergraduate and graduate students are currently employed in law firms and international organizations prior to graduation.
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Professors are selected through open competition, and thus, we can ensure the professors’ extensive legal experience and high level of professionalism. Extracurricularly, students broaden their educational horizons in master classes, simulations, workshops and student government. Should students need additional assistance, a tutor is provided for each academic group. Caucasus School of Law also provides incentives for those students and professors who are involved in research activities. The credits gathered on the bases of the research activities are reflected in Diploma Appendix. Students of Caucasus School of Law are successful participants of the Georgian and international Olympiads in the mock trial competitions. The student government organization, CSL-U, is planning to join a major European international student organization (ESIB).
International partners of the school of law are: Georgia State University (USA), University of Chester (UK), Tallinn University of Technology (Estonia), European Public Law Center (Greece), and the European Consortium for Political Research (UK), CILS (Center of International Legal Studies). On May 29-30, 2008 the meeting of the General Assembly of the International Association of Law Schools (IALS) was held in Montreal (Canada). According to the decision of the General Assembly the Caucasus School of Law has been admitted as a plenipotentiary member of the mentioned Association. The goal of the International Association of Law Schools (IALS) is to advance the legal education and research on a continuous basis by exploring the experience of different cultures and societies throughout the world. From March 1, 2008, Caucasus School of Law became a member of the European Law Faculties Association (ELFA), which will meaningfully contribute to the school’s cooperation with leading European law schools and to CSL’s acquisition of European accreditation.
Georgian students entering the LL.B. program of Caucasus School of Law are required to participate in the Unified National Exams. For the first time, in 2008, 25 students were admitted to the Joint Georgian–European LL.B. Program. They will complete a portion of their studies in Greece. The program is implemented by the European Public Law Center (EPLC) together with Caucasus University. The EPLC (http://www.eplo.gr) is recognized worldwide as a leader in this field and is financed by European Union. It has representative offices in many countries, and its academy unites more then 50 universities. This joint program is long-term and will continue for years to come. The curriculum and programs are prepared by international experts in law. Since 2008 the program of Juridical Practice started functioning. It was prepared by the nongovernmental organization “Article 42 of the Constitution” and by the Caucasus University. Arrangements planed within the program are oriented to develop practical skills of students. This program will be the best chance for them to estimate own possibilities for planning future career. In the nearest future Caucasus School of Law will start British- Georgian program. The new undergraduate program is divided into two stages. The first two academic years will take place in Caucasus School of Law. During this stage students will focus on Georgian legal systems. Students will complete there next two years of studies in England. They will live and study at the Chester University. The studying program will be oriented on the legislation of England. Upon successful completion of the British-Georgian LL.B program, students will receive two bachelor’s degrees, granted by the Caucasus and Chester Universities.
132 The Role of Law Schools and Law School Leadership in a Changing World
The Caucasus School of Law provides second level education in following basic branches of law: • Private law; • Public Law; • Criminal Law; • International Law
The scheme of Master programs is based on the model of Master programs of the Scandinavian Countries, though it is well adapted to the Georgian legal reality. Defined programs represent the compilation of new graduate programs with advanced vision. The structure and content of the new educational product offered by the Caucasus School of Law foresees the following basic principles:
• The high quality of specialization; • Few courses; • Practice-oriented learning; • The experienced academic staff; • Program Mobility; • The redistribution of the curriculum from 1,5 up to 5 years; • Support of students career development.
The result of the renewed Master programs should be: The professional who has the theoretical education adapted to the legal practice
Curriculum Curriculum of each program consists of three different courses: A: Compulsory Courses; B: Elective Courses that are compulsory for other Master Programs; C: Elective Courses that are not Compulsory for any Master Programs e.g. specialization tracks; D: Alternative Credits
Compulsory Courses Each Master program according to its peculiarity consists of 6-7 compulsory courses. Compulsory courses are characterized by higher quality of specialization and particular academic pressure. Compulsory courses of each Master program (Block A) are elective for other (B Block) Master programs.
Classification of Elective Courses Elective courses (B and C Block) are divided into relevant and non relevant courses. Elective course is relevant if it is tightly connected to Master program and together with compulsory courses it serves to the advancement of the program chosen by Master student. Elective course is non-relevant if it is not logically connected to Master program curriculum and Master student only chooses it because of his/her own interest. Master credit is the whole complex of credits of compulsory courses and elective relevant course. Elective non-relevant course credits are not added to Master credit, although are reflected in the diploma appendix.
133 The Role of Law Schools and Law School Leadership in a Changing World
Alternative Credits Master student can gather additional Master credits by publishing scientific-research article in the relevant field of their Master program, taking part in scientific conference and a moot court process, also during the educational practice in the framework of Caucasus University. From the other Master programs offered by the Caucasus School of Law differs the “International Business Law” with its extraordinary scheme and content. Today, business and law are so closely connected that the market demands legal specialists who can work with foreign and domestic businesses. In law schools in the United States, Great Britain, Germany and France, the Master. Program in international business law is the most popular. According to statistics, international business law specialists are considered to be the highest paid lawyers in the United States, European Union and Former Soviet Union. The Masters program in international business law was developed according to similar programs in leading foreign universities. Specifically, American teaching methods are applied in this program. Graduate students must take a minimum of two courses per semester. Students pay based on the number of subjects taken. Depending on an individual’s course load, students will complete the program in two to five years.
Many of CSL professors are working as legal professionals in leading organizations in Georgia. Another advantage for students is that CSL regularly hosts guest professors from countries such as the United States and Germany.
From September 2009 double degree Masters program will be available at Caucasus School of Law. As a result of taking this program student will be granted Masters degree by the Caucasus University and Tallinn University of Technology, consequently the Master will be entitled to get diploma of two Universities. The program is two years long. First year students are required to take compulsory courses of the Masters program of their choice (6 or 7 courses), and the next year they will continue learning at Tallinn University to take selective courses of the Masters program.
From September 2009 first time in Caucasus School of Law a new PhD program will be launched. The program is based on the experience of American universities, in particular, it’s structure and layout is worked out on Rutgers University (The School of Criminal Justice, Newark, New Jersey) basis. PhD program aims to prepare scientific and pedagogical- scientific cadres of the highest qualification for science, education, management, law enforcement system, business and other fields. The program is made of academic and scientific components. The academic part of PhD program is focused on advanced learning of methodological and theoretical basics of jurisprudence in accordance of scientific specialization, as well as on training postgraduates’ skills of independent scientific research and scientific-pedagogical activities. The Scientific part of PhD program aims to work out skills of transferring received results of research in scientific thesis and representing scientific product publicly, before the specialists.
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The Role of Law Schools and Law Schools Leadership in a Changing World; A Special Reference to the Law Schools of Indonesia
Professor I Nyoman Nurjaya Faculty of Law Brawijaya University Indonesia
A changing world is facing unprecedented challenges arising from the convergent impacts of globalization. In the world of higher education development, it brings about a shift of the role of higher education institutions, included higher legal education namely law schools, from traditional learning institutions towards knowledge creator, a change from random planning to strategic planning, as well as a movement from comparative approach to competitive one. For a developing country such like Indonesia, there is a need to create a breakthrough for enhancing higher education and particularly the role of law schools in relation to the implementation of national educational development in the country.
In facing challenges of globalization, Indonesian higher education development in general implemented a new paradigm where institutional autonomy and accountability becomes a strategic issue. A great deal of efforts must be conducted in the accelerated manner to overcome the legal higher educational problems. Focus of the establishment of legal higher education is not the only meant for the institutional itself, but also for the stakeholders included the Government, as their role in such development is increasingly important. In this sense, the stakeholders should therefore consider that the development of higher legal education should be placed in the level of priority, as well as intervention of the Government in the establishment of law schools is indeed very urgent.
It is expected that in the coming years Indonesia will have a competitive leverage due to the existence of highly reputable higher legal education institutional, and a strong law schools programs will lead to a nation’s competitiveness in the coming decades.
The competitiveness can only be achieved under the framework of strong nation’s character and civilization. In this respect, the higher legal education system within the law schools in the country has the responsibility in providing students with high competence in legal knowledge and jurisprudence to good and skilled lawyers. In one hand, the system should also contribute to the process of shaping a democratic, civilized, and inclusive society, maintaining national integration through its role as moral force, and act as the bearer of public conscience particularly in the development of academic and practical lawyers that possess an appropriate legal knowledge and skill in practicing their own legal profession nationally and even internationally. And on the other hand, the law schools have a strategic position to establish their role and function in providing skilled lawyers, both legal academics and practical lawyers, which needed to fulfill concerned legal professionals within universities, the Government offices, private corporations, law enforcement agencies, legal consultants and professional such like notaries, as well as in preparing future leaders and good citizens.
In the context of Indonesia as a multicultural country, a highly quality interdependent a changing world requires an appropriate higher legal education system for
135 The Role of Law Schools and Law School Leadership in a Changing World
promoting and generating cultural diversity and fostering intercultural understanding, respect and tolerance among peoples in the country. It represents a commitment to the development of national solidarity, human security and helps to build a conducive atmosphere of national integration and the global peaceful in general.
It is in fact that objectives of higher legal education which is established and generated at law schools institutions can usually be classified under three broad heading i.e. legal knowledge and science, legal skill and practice, and legal attitude and behavior. Those are able to be directed to an essential objective to higher legal education system namely education in legal science, instruction in legal skill and practicing, promotion the general powers of the minds, the advancement of legal learning and reasoning, and the transmission of a common legal culture and standards of citizenship. In order to achieve these urgent objectives as mentioned above, the law schools institutions should develop and match their own legal education curricula, teaching methods and techniques, as well as suitable other supporting measures such like law library, mootcourt room, electronic legal information media and documentary system, law study centers , etc.
Law schools in Indonesia has for a long time not divided between academic and professional legal education. The distinction between the two is naturally urgent, and it is important to be designed in producing lawyers that has a specific legal knowledge whether in the level of academic or skilled and professional lawyers. Since legal education institutional was first introduced in the country, both academic and professional legal education which trained and educated at law schools have been fused. The mixing of university and professional legal education has clearly been expressed within the existing curriculum of law schools to achieve a general attempt and implement the legal applied approach to university and academic legal education.
In the era of globalization, the challenge of legal education at law schools especially in Indonesia is to produce graduates that are comparable with graduates from law faculties across the globe. It is, therefore, a number of law schools in the country have already consciously started to change their legal education paradigm for the purpose of preparing and providing graduates that have appropriate legal knowledge and skill in entering the era of competitiveness in the level of both nationally and internationally.
In order to answer the mentioned challenges in a changing world, the competency- based legal education paradigm is recently introduced and implemented across higher legal education throughout Indonesia. The law schools should look for ways and set up educational strategy to incorporate the recently legal education paradigm into curriculum of law schools in the country. In sum, the effort of improving legal education at law schools is primarily dedicated to prepare skilled graduates that are ready for immediate professionals employment in any specific area, as well as to provide graduates that possess theoretical and doctrinal knowledge in legal science. In other words, the role of law schools and law schools leadership are two fold namely, in one hand, providing academic or university legal education with the purpose of producing academic lawyers, and on the other hands, for facilitating professional legal education in order to preparing skilled practical lawyers that have capability both nationally and internationally to enter the era of competitiveness in a changing world.
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What are the goals and objectives of the Law Schools in their Primary Role of Educating Students? What are we educating our Students for?
Professor V.S. Elizabeth National Law School of India University India
The National Law School of India University came into being on 29th August, 1987 through a Gazette notification under the National Law School of India Act, (Karnataka Act 22 of 1986). This was the beginning of the experiment of a new model of law schools in India, at the same time it was the end of over thirteen years of concerted effort of law teachers, lawyers and judges to bring about reform in legal education in India. It was the product of the statutory responsibility that came to the Bar Council of India, in the context of the Advocates Act, 1961, for maintaining standards in professional legal education. Today there are over thirteen law school type institutions in India.
When one reflects on why a need for such an institution was felt in India as well as what was the mission and vision for such an institution it leads one into the history of legal education in India which goes back to the colonial rule, especially the nineteenth century. However, it should suffice here to confine ourselves to the immediate objective that was sought to be achieved by the setting up of the National Law School of India University (hereinafter the law school).
It was a unique experiment in the cooperation between the law teaching profession, the bar and the bench. The management of the institution is more or less is in the hands of the members of the legal profession. “The objects” in setting up this institution was not only to prepare “conscientious, competent members of the legal profession”, but also “to advance and disseminate knowledge of law and legal processes in the context of national development.”1 Thus, the law school was to encourage the study of law as an instrument of social change and this was to be achieved through the interdisciplinary approach to the study of law and by instilling in the students a sense of responsibility to the larger society.
With these objectives in mind Extension activities like legal literacy classes for women students in the women’s colleges in the city of Bangalore through the Centre for Women and Law and providing Legal Services to the marginalized groups like women and dalits in the nearby communities through the Legal Services Clinic were begun right at the inception of the law school in 1988.
From this it is clear that the role of law school was seen as part of the larger processes going on in society. This is why during the first seven years the law student was told that she was a “social engineer”. To further sensitise the students toward this goal of the law school a Law Reform Competition used to be held requiring students to make community based studies extending over a two year period. Three such competitions were held within the first seven years of NLSIU’s life. All students from institutions where law was taught were encouraged to participate. The themes selected were from the concerns that affected Indian society resulting in research on bonded labour, sex work etc.
1 Bulletin of the National Law School of India 1989-90 pp. 5 and 6
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It was also in keeping with the perspective that law is a socio-cultural phenomenon that the curriculum in the law school was prepared. The student is awarded a B.A. LL.B. (hons.) degree at the end of the five year programme since she would have studied non law courses like History, Sociology, Economics and Political Science together with some specialized subjects like Law and Rural Development, Law and Urban Development amongst others.
These courses together with the early experiments in Clinical programmes were meant to instill in the student an awareness of how law functioned in society and to be conscious of the ongoing processes in society. Thus, clearly this experiment was aimed at not just preparing a student for the legal profession. For, that would have meant focusing only on providing the students with the technical skills they needed along with the knowledge of the law. The very fact a student of NLSIU had to complete around sixty courses meant that law was seen first of all as the product of a social process and secondly as an instrument of social change.
However, after the first ten years gradually this objective was lost sight off and NLSIU appeared to be preparing students for the market, namely, the firms that practiced corporate law. A few chairs were set up by a law firm and a finance company, professors were appointed to these chairs and the activities under the auspices of these chairs focused on corporate law. As a consequence merely after twenty years since it was set up NLSIU no longer even talks about social engineers.
The question now before us is are law schools supposed to focus on providing technical training and legal knowledge and skills to students or are they supposed to sensitise the students to social issues making them socially responsible individuals who could become the catalysts in their societies. How does one do the latter if that is the objective or atleast one of the objectives?
The History of the Indian subcontinent before independence and since clearly shows the role that lawyers and judges played in the National Movement and in the social reform movements in the region. Many of them may not have been very successful lawyers but were prominent leaders and played a very important role not only in the National Movement but also in the making of the Indian Constitution and post independence they have been actively involved in politics. At least fifty percent of the members of the Constituent Assembly then and the Indian Parliament today have a degree in law. People like Gandhi, Nehru, Jinnah and others during the Indian National Movement were all lawyers. Today cabinet ministers like Chidambaram, Kapil Sibal were lawyers (This is true possibly for most of the countries that came into existence since the late eighteenth century and especially in the course of the twentieth century.)
Given this fact, for the law schools in this day and age to confine themselves to a very narrow project of merely teaching the statutes and the writing and analytical skills will not be enough. Members of the legal profession have a more far reaching role to play in society than representing their clients.
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In a county like India judges have played a very important role in ensuring the access of the most disadvantaged groups to their constitutional rights and liberties. Judicial activism of the earlier decades is largely responsible for the empowerment of women, dalits and other disadvantaged groups. It was the creative interpretation of the Constitution on the basis of Articles 15 (3) and 15 (4) together with the Directive Principles of the Indian Constitution that facilitated Reservation and special legislation leading to political participation of these groups. In fact after a long period of different benches reading the right to education, then part of the Directive Principles of State Policy into the Right to Life, Article 21, Part III, Fundamental Rights has now resulted in Article 21A Right to Education as a Fundamental Right separate from Right to Life.
Given these facts it is extremely important that Law Schools and Legal Educators realize the larger role that they have to play in development of a legal curriculum that make their students fit members of the societies of the twenty first century. It is important to ensure that even while students continue to be provided knowledge of the law and the skills they require to be successful in the legal profession that they are also taught to understand law in context and the very important role that law students have to play as citizens and future leaders of their societies.
Having well trained, skilled lawyers and judges is as essential as having lawyers and judges who understand the role of law and its limits in the process of bringing about social change and in the context of the overall development of society. I think, personally that the interdisciplinary approach to the study of law, which was one of the original objectives is an important element in achieving this goal. Understanding law in context is absolutely essential to ensure that justice is administered and the spirit of the law is upheld and not its letter. Respect for a rule of law can come about only when the litigants and others in society see that justice is done, atleast in accordance with the existing law and not in violation of it.
When judges use reasoning that defies the powers of reason and when litigants find justice denied to them it is very difficult to make citizens believe that the objective of law is justice. To ensure that we have not only lawyers and judges that respect the ends of law but also statesmen and politicians, the legislators appreciate their complete role in society it is important that law schools rethink their role in this environment of liberalization and globalization. The market cannot be the dictator of the objectives of law schools.2 Justice for one and all, irrespective of their class, gender, race and religion must be the goal and that can only be reached when Law Schools rethink their curriculum and their objectives along with their methodology and focus.
2 Now more than ever should this realized in the context of the financial crisis that is being felt and experienced the world over.
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Goals and Objectives Of Law Schools In Their Primary Role of Educating Students*
Gurjeet Singh** National Law School University India
(1) INTRODUCTION
Legal education has assumed tremendous significance in the modern day post-globalised world. In the context of India in particular, we have seen establishment of a number of independent law schools and law universities in the recent past - a development that, inter alia, owes its origin to the successful functioning of India’s first law school - National Law School of India University at Bangalore. The establishment of these specialized institutions is in addition to the existence of various law departments and law faculties in the traditional universities and, above all, in addition to a large number of private law colleges running in the country. Interestingly, the latest addition in the present day scenario is the establishment of a privately run Global Law School in one of the states in India in the recent past.
There is no denying the fact that the establishment of these law schools and law varsities is indeed a welcome and a commendable step as they are going to cater to the ever expanding market of legal services across the globe by way of providing young, articulate, well trained and professionally competent corporate lawyers and attorneys. However, their real success depends on more than one factor and only time will tell as to how far these law schools have been able to put a dent in the existing state of professional legal education and thereby improving the quality of legal services to be made available to the common citizens in the country.
In the present write up, I have endeavoured to briefly touch upon two important aspects of legal education, that is, goals and objectives of law schools in their primary role of educating students and purposes and objectives of law schools beyond educating students especially in the areas of research, capacity building, community service, and outreach and that how does law school achieve its goals actually. Let me touch upon both the issues one by one.
(2) GOALS AND OBJECTIVES OF LAW SCHOOLS IN THEIR PRIMARY ROLE OF EDUCATING STUDENTS
It is primarily on the basis of my personal experience, first as the chairman of the law faculty in a traditional university and later on as the vice-chancellor of a newly established law school that I can argue that, unlike in the Western world, where the average level of thinking and consciousness amongst the students is quite high, most students entering the India law schools do not have identical aims and objectives, nor do they have identical career plans. Some are there undoubtedly by choice; many others are there by chance - a trend that, of course, is fast changing now with more and more students opting out their career in the field of law by choice. Most law schools, therefore, face dilemma in inculcating
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the necessary interest and aptitude for legal studies amongst those students whose first choice was not law, but are there due to a variety of other reasons. In any case, once they are into a law school, there is a need not only to educate and to train them in the field of law but also to guide them about the variety of probable avenues that shall be open to them once they come out of law school with a formal degree or diploma whatsoever. We as the legal educators heading and working in the law schools have to educate them about their responsibilities as lawyers and advocates; their commitment towards the cause of their client and the like. There is also a greater need to inculcate in the minds of the young students a sense of concern, discipline, duty and social responsibility towards the society. In my view, therefore, our responsibility as administrators and educators does not simply end with providing young students the much coveted degrees and diplomas, rather it extends much further. As I said earlier, besides making them competent and articulate lawyers and attorney, we have to make them conscientious as well as socially responsible citizens and human beings who shall be potentially capable of making their contribution to the society. All this is to happen in the law schools. We need not only to educate them but to cultivate them so as to enable them to become the assets for the nation. We have to provide them the wholesome education and to motivate them to become good citizens thereby enabling them to become the chief instruments of nation building. We as teachers and educators have to act as their role models. I am sure, the emphasis on wholesome education shall go a long way in shaping the careers of the young students. It shall also lend credence to the law schools as the architects of the careers of the students studying therein. It is in the light of the above observations that the law schools should go ahead in the required direction.
(3) PURPOSES AND OBJECTIVES OF LAW SCHOOLS BEYOND EDUCATING STUDENTS ESPECIALLY IN THE AREAS OF RESEARCH, CAPACITY BUILDING, COMMUNITY SERVICE AND OUTREACH
Once a student comes to a law school, it goes without saying that he/she will be trained in the field of law. Law Schools, however, are expected to go beyond this. We as the leaders in the field of legal education need to train them in various other areas besides educating them. We have to train them in the areas of research, capacity building, community service and outreach. It is my experience that in most law schools, a lot of emphasis is laid down on teaching advocacy and oratorical skills as well as on mooting techniques, whereas hardly any attention is paid towards developing research potential amongst the law students. Strictly speaking, this cannot be done till we introduce the subject of Legal and Social Sciences Research Methodology in the law curriculum. In the law school that I am heading, we have made an experiment by way of introducing this subject in the very first semester of the B.A.,LL.B.(Hons.) Five Year Integrated Course. Quite surprisingly, this has proved to be a boon for most students, especially when they are preparing their research projects as well as their memorials that are to be submitted as part of the moot court competitions. During the teaching of this course, students are encouraged to do practicals, too. These, inter alia, include preparation of interview schedules, questionnaires, research designs, research reports etc. etc. Similarly, they are also trained in the foot noting, referencing and bibliographic techniques which a student gets acquainted at the post-graduate level. Therefore, when a student shall come out of our law school, he/she would not only be conversant with advocacy and mooting skills, they would also be apt in the research methodology and a number of research tools and techniques. It goes without saying that
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research occupies a very important place in a developing society and the modern day law graduate ought to be well trained in the tools and techniques of research. I am of the confirmed view that a good advocate needs to be a brilliant researcher, too. Once he learns about the research tools and techniques, this training is going to benefit him/her immensely in their professional work. These students should similarly be trained and well equipped for capacity building and outreach for which law schools are expected and are required to play their part.
(4) CONCLUSION
On the basis of the above discussion, the logical inference that one can draw is that law schools and law universities have the primary role in educating the students. This is their primary responsibility and there is hardly any escape from this responsibility. To conclude, I am of the opinion that we have to go a long way in educating the students in the law schools and inculcating in them a great sense of dedication, discipline, client’s cause, community responsibility and social accountability. We need to work jointly in our endeavour for making legal education meaningful and socially relevant so that the students coming of the law schools are committed and dedicated individuals who are potentially capable of making difference in the society. This is perhaps the aim of any type of education.
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144 The Role of Law Schools and Law School Leadership in a Changing World
The Role of Law Schools In a Changing World
Prof. (Dr.) Ranbir Singh* Vice Chancellor National Law University India
The law schools of the new millennium must prepare the law students to be the visionaries in our society, and also the nations legal architects who are competent enough to take up the task of renovating the scales of justice and re-designing the landscapes of justice opportunities in India. “Legal Education’ as ‘Justice Education’ has to sensitize the law students to the problems of society so that when they enter the profession, they are aware that they are the main actors on the stage of the legal system; the role being the dispensation of justice specially to the poor, the have-nots and the invisibles, the fourth world within the third world i.e., for “we the other people of India”. The lawyers of tomorrow must have a positive bias towards the helpless and should tirelessly aid the weak, the poor and the dispossessed. Today India is also facing challenges posed by malnutrition, inadequate healthcare and housing, corruption in Government and the overall fall of our political system. The whole scenario has been further worsened as those in power often have lacked personal morality or have failed to observe real values that they have possessed, to manifest in real life. In such a scenario, the burden on the lawyers is much heavier.
Justice Holmes very pertinently remarked, for a professional lawyers engaged in justice dispensation: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” Each Lawyer, Judge, Politician, Professor or Entrepreneur must make personal value judgments. Admittedly moral and human values cannot be acquired by even the most meticulous reading of opinions or statutes. Each Lawyer must endeavour constantly and consciously to acquire and transmit values and goals in forging rules of laws for the future and future generations.
*Vice-Chancellor - National Law University, Delhi. [email protected]
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The law schools of today faces much bigger challenge of teaching virtue to promote professional ethics in lawyers. But, can we teach it? Must we teach it? How do we teach it? These questions are perennial problems of any education and legal education is no exception. The question – “virtue as taught” has presented a problem in almost all systems of education. In all ages, the problem of teaching virtue is complicated by the fact that the meaning of the term is unclear and also the subject to which we apply the term is diverse. But this should not prevent one from learning what virtue is, or from teaching it. Whether virtue is narrowly or broadly understood the teaching of virtue is the teaching of a skill within a practice or form of life and is the training of a capacity in law student. Virtue is embodied in action. Accordingly, our knowledge of virtue is a kind of performity of knowledge – both knowledge acquired through action and knowledge expressed or revealed in action in performing a task. Virtue of course may be acquired genetically. It’s possibility is culturally inherited. This possibility is either inherited or acquired from the family, from the society, societal practices and the institutions into which one is born and grows up.
The academic curriculum is the most immediate example of this kind of societal framework. What is important is one must learn to exercise if one has to truly possess it? To earn and acquire it, one must spend it, use it, in a society and also in the family. We often do so by watching our elders and following them or in some cases may be, not following them. Virtue is a kind of skill, based upon performative knowledge, a capacity for judgement and action, since performative knowledge is taught performatively virtue can be taught by doing virtue, by acting virtuously. In this respect, virtue is like language. Both are inheritances that are learned and earned through use. Virtue, like language is taught by example. The intellectual and practical virtues which we find missing from law students today are matters not only that can be taught, but must be taught. They are transmissible in no other way, the continuity of virtue being transmitted takes place between generations. Taking responsibility for such transmissions is one of the highest responsibilities on a professional teacher teaching in a law school.
Question may arise as to how does one take on such responsibility. It is believed that virtue or excellence can be taught by modeling, imitation and emulation, - initiation. Teachers can fulfill this responsibility by displaying in class, virtues or excellence. Consequently, teaching virtue should be important competent of legal education which rests upon performances being given and received in the class room and then replicated by the students themselves. Teachers as performers and teaching as a performative art has to enable the student to be made aware of and accept the virtues of our society and culture. Regardless of the subject being taught, teaching is an activity that calls for courage, temperance, prudence and justice in the teacher. So teacher can play a very effective role as a model for transmitting, inculcating and nurturing values in students aspiring for professional legal education. This would ultimately inculcate natural professional ethics. Professional ethics in the legal profession would become easier to practice and perform when virtues are taught in a law school as a performative art of skill through education.
These goals and challenges of professional ethics are not mere pipe dreams and whether the law schools work to achieve them and prepare a few lawyers we search qualities which depend upon the moral philosophies that guide us. I feel confident that most law students are capable of becoming good legal architects and legal technicians. But the world today
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desire that the lawyers of tomorrow need more than mere craftsmen and craftswomen. They would be welcomed into the life of legal profession if they also pursue and commit themselves to moral visions and professional values.
H. H. Koh addressing the students of Yale Law School said:
Find your friends in small groups. Set your own limits. Never let them tell you that you have to do anything. When you don’t know, say so. Listen to others, but make up your own mind. Don’t worry – too much anyway – about the rules that don’t count. When you have to, scramble. Remember that your best hours are not billable. When you make life choices, follow your heart. Realise that all anyone can ever ask is that you do your best. And never forget that Excellence without Humanity is worthless.
The last line above i.e., “Excellence without Humanity is worthless” is the central virtue which should be taught, as one can not be a good lawyers if one is not a good human being. It should be the first and foremost duty of each law teacher to chisel students to shape them to be good human beings and good lawyers full of virtue and moral ethical values. Law schools obviously are the places where the students have to learn their first lessons in professional ethics.
*****
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What are the Goals and Objectives of Law Schools in Their Primary Role of Educating Students? What are We Educating Our Students For?
Professor A.T.H.Smith Victoria University of Wellington New Zealand
The questions posed in the title of this section of the conference are incapable of being addressed in the absence of a large amount of historical, institutional and geographical context. There may nevertheless be a core upon which different institutions might be able to agree, and that would be the mission of teaching students about how to understand and use legal materials and sources within an increasingly global context.
The institutions represented by the group under whose auspices we gather are enormously diverse. My own experience has been largely at three English Universities (Cambridge, Durham and Reading) and two in New Zealand. In all three, Law was taught as a three year degree, to undergraduates. In England, it is not necessary to have a Law degree as a prerequisite to the practice of Law. After graduating, students spend a considerable time in further academic study, and then engaging in what are, in effect apprenticeships, during which time they learnt the skills relating to the practice of Law. If they intend to practice as Solicitors, which the majority do, they must attend for one academic year one of the various providers throughout the country where they are taught the arts of drafting documents, negotiation and so forth. They then enter into a two year training contract with a firm of Solicitors, during which time they will generally work with qualified solicitors in several different branches of the Law, such as Company law, Litigation, Banking, and so on. If they wish to practise at the Bar, they must undertake the Bar Vocational course where, as one would expect, they are taught the oral skills. After that, the must undertake a Pupillage in one of the sets of Barristers Chambers (usually in London, but increasingly in one of the larger cities throughout the country). These pupilages are very difficult to obtain, especially since a requirement was introduced that pupils must be remunerated throughout the training period. The period lasts for a year, but is broken on to two halves. In the first half, Pupils may not earn money whereas in the second half, they can.
All of that background is necessary for an understanding of how the law is taught at universities in England. Although it is slightly difficult (and dangerous) to generalise in this area, the study of Law at university is not really seen as training for legal practice by most English academics, particularly in the earlier years of the degree. To qualify this, and to generalise slightly further; by agreement between the Law Schools and the practicing professions, if students do wish to practise, in either branch of the Law, they must take seven compulsory subjects: Criminal Law, Public Law, Torts, Contracts, Property, Equity and European Law. These will usually be undertaken in the first and second years of study, leaving greater choice as to subjects in the second and third years.
In Cambridge (following Bologna and Paris), the law has been studied at least since the thirteenth century (although the law was then Canon Law and Roman Law – the Common Law was not taught until the late eighteenth century), there is a further compulsory first
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year subject, namely Roman Law (or Civil Law as it is now entitled). There is a (Crown appointed) Regius Professor of Civil Law whose primary field of scholarship is in Roman Law, although the current occupant, Professor David Ibbetson is also a legal historian of considerable distinction. In the modern era, this runs to risk of seeming contrived and quaint, but its defenders, of whom I am one, would point to the fact that many of the legal systems with which the United Kingdom has become inexorably entwined since it joined the Common Market in 1973 (now of course the European Union) have their origins in the Civil Law. It does not make sense to jettison a study of the origins of these systems in a modern era. What is more, and perhaps surprising, is that the students almost universally like the subject once they become immersed in it. Whereas most of the subjects that they study are concerned with the here and now and the future, the study of Roman Law allows them to look at a complete legal system in the round; part of its attraction, I suspect, is that it will contain few difficult developments and surprises such as the courts are capable of springing on them in Criminal law and Public Law, for example.
For the compulsory subjects, the syllabus for each subject was set some years ago in agreement between the Law Schools and the professional bodies. They are very broadly framed and phrased, leaving individual schools and academics considerable leeway as to what is taught, and how it is taught. The standard mode of delivery is through lectures which are then supplemented with small group teaching. The use of the Socratic method is not at all common in the lectures, although the smaller groups do to a certain extent permit a version of it to be used.
Against that background, then, it will be seen that there is scope for considerable disagreement about the broad questions that we have been invited to consider. Very few academics in Cambridge would take the view that they are introducing students to the practice of Law (even though a very high percentage of Cambridge graduates do continue to legal practice), or to think like lawyers. Rather they are teaching them legal methodology, how to think critically about legal questions and to communicate the results of that activity in an intelligible form. Upon those fundamental building blocks, students can build in the directions that best suit their instincts and inclinations. Those wishing to work in the City of London are likely to be attracted by the commercial subjects while others who have work with non governmental agencies (for example) might be attracted by International Law (of which there is rather a lot in Cambridge) or Legal History or Jurisprudence.
One of the great benefits of this approach to the study of law is that it enables members of the Law Faculty to see themselves as an integrated part of the university community more widely. This is reinforced by the fact that the small group teaching (“supervision” as it is termed) is undertaken in the constituent Colleges to which the students must all belong, rather than through the Law Faculty.
In New Zealand, by contrast, a Law degree is required from one of the six universities. until recently, there were only five such schools, but a sixth, the Auckland University of Technology, began taking students this year. The compulsory subjects are remarkably similar to the English ones; subtract European Law, but add Legal System and Ethics. The latter is a relatively recent development. In addition, the degree must contain a certain prescribed element of non law subjects – in practice, many students undertake conjoint
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degrees which they can complete in a period lasting for five years. After graduation, a period of thirteen weeks professional study must be undertaken, but by comparison with the English experience, it is rather perfunctory.
None of the Law Schools is much older then a hundred years, and they undoubtedly have their origins as institutions at which men (and they were nearly all men until very recently) were taught to become lawyers. The teachers were nearly all legal practitioners in the local community and the learning was done by part time students either before or after work in legal practice during the day. Students wrote “opinions” rather than essays as their contemporaries in the other disciplines were doing.
In the course of the last 30 years or so, that picture has changed considerably. Now the professoriat is largely stocked with academics who are full time teachers and researchers. The younger members of the profession are generally legally qualified, but may have little or no experience in legal practice. They frequently have post graduate degrees from overseas universities, and increasingly they will hold a doctorate. To generalize (again) the older members of the Faculty tend to see themselves as preparing people to practise Law. Younger members are more inclined to see themselves as inculcating more transferable skills and ideas of the kind mentioned earlier. How to read, understand and deploy all sorts of legal sources – statutes, case law, books and periodical literature with a view to bringing them to bear on legal questions and problems, whether national or international, grappling with the ideas that are thrown up. There is, then, something of a tension between the outlooks of the more senior members and the more junior. There is also the question of student expectation – many students approach the study of law expecting that they will be taught elements of legal practice, and are puzzled when confronted with the attitudes and approaches of the younger generation.
In a small and distant country such as New Zealand, it is important that students are helped to understand that they are a part of a much bigger entity. Before England became part of the European Union, the natural place to look was to the home of the Common Law, the United Kingdom, although there has been a long tradition of postgraduate study elsewhere, particularly in North America. The internet has, of course, greatly reduced the downsides of this tyranny of distance – young New Zealanders are able to travel and experience the world in ways unimaginable to their forbears. The legal education should equip them to function as participating citizens of the world rather than as part of a narrow, high earning and specialized elite.
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The Role of Law Schools and Law School Leadership in a Changing World - Polish Experience
Professor Jakub Stelina Faculty of Law and Administration, Gdansk University Poland
1. In order to establish the role and importance of legal education and law schools in a so- called public space it is necessary to determine the scale of the discussed phenomenon first. As regards Poland, over a dozen or so of last years a dynamic development of higher education can be noted, including – first of all – certain lines of social sciences, legal science in particular. The situation stems from a number of factors. At the turn of the 1980’s and 1990’s far reaching changes of the socio-economic system took place in this country, to begin with. After almost 50 years Poland entered a new path of its development, having regained political sovereignty and freedom to decide, on her own, what her fortunes are to be like. The Poles have acquired a number of civic freedoms they had not enjoyed in the preceding decades. Immediately after the political breakthrough economic reforms were started, aimed at introducing in this country the rules of free market economy with elements of social protection (so-called social market economy). All that resulted in new development opportunities opening to the community and the individuals alike, despite numerous hardships the period of transformation was bringing about.
2. A specific phenomenon accompanying the period of transformation has been a trend towards raising the standards of training, particularly as far as higher education was concerned. Autonomy was regained by universities and other higher schools of university standing, which entities could, at last, develop – in the spirit of freedom - disciplines that had been badly neglected over many years, offering education in the lines of studies enjoying ever greater popularity in the society. Economic and managerial studies were particularly popular (considering the enormous growth of economic activity of the population), but so were also legal sciences, administrative ones in particular. The previous long-standing neglect resulted, besides high demand for legal and economic studies among those graduating from secondary schools, in an outburst, as it were, of interest in higher studies by those already employed. Under the previous socio-political system, i.e. until 1989, all manifestations of civic activity had been put to restrictions. Access to higher education institutes had thus been limited, not all those willing to take up higher studies being allowed to do so. Universities and other state-owned academic institutes were skilful enough to make the most of the new situation. Permanently underfinanced by the state, they stood a chance of supplementing their budgets with education fees. For although the rule was that in the state-owned higher schools education was free for full-time students, it was allowed to charge fees for education provided to those studying under evening or weekend schemes (and being, at the same time, employed). The system of evening studies consists in classes being run on certain weekday evenings, the weekend system – in education provided on certain Saturdays and Sundays. In a short time, i.e. in mid-1990’s, a considerable portion of students were those fee-paying ones, and proceeds from the fees soon became a major budget item in state-owned institutes. Certainly enough, the latter were not able to admit all those willing to study, hence private higher education institutes
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started emerging soon, in which institutes all kinds of education services are, of course, provided against payment. A straight majority of the schools are ones offering studies in economics and administration. As statistical data reveal, at present there are about 2 million of students in Poland, legal sciences (law and administration) being the object of studies of some 150,000 people (i.e. about 8% of the general number of students). About a half of those studying legal sciences are students of state-owned universities, the other half studying at private schools. About 20-25 thousand of people graduate from legal studies annually, about 10 thousand of those as graduates of law, the remaining portion being specialists in (public) administration. A majority of them easily find employment with law offices, governmental agencies, enterprises and other institutions where they can make use of their knowledge about the legal system which they have absorbed in the course of their studies. At present, a certain drop in the numbers of candidates to higher schools can be noted, the phenomenon resulting mostly from the fact that most of the persons that had been willing to supplement their education in previous years have already done it, and the deficiencies from the Communist era, as it were, have been made up for. Consequently, now it is mostly fresh secondary school graduates willing to gain higher education that take up studies. The demographic decline currently faced by us adds up to the decrease in the number of those studying, the fact posing a threat to, first of all, private higher education institutes; in state-owned schools of university standing only an insignificant decline in the number of students can be observed. 3. A high percentage of law school students among the general number of those studying, combined with a high prestige of the profession of a lawyer results in high responsibility and great challenges faced by higher education institutes offering that line of study. This stems from the fact what very many law and administration graduates occupy high positions in the state apparatus and business institutions. It is sufficient to point out that in each term of office of the Parliament between ten and twenty percent of MPs are people of legal background, meanwhile, over 20 years of transformation of the socio-economic system 4 (out of 12) prime ministers were lawyers; also the current President of Poland is a labour law professor. Hence a considerable part of Poland’s establishment are people of legal extraction. But it is not only high positions occupied by lawyers in structures of the state that count. Legal culture is just as (if not actually more) important. The legal culture is an ambiguous concept, with at least two dimensions (meanings). As far as the individual dimension is concerned, legal culture is legal awareness of an individual. Perceived in its collective dimension legal culture means a system of values and ideas related to law and the role it plays in the society. Related to legal culture is also the way in which the very idea of law is viewed by the nation and the approach the nation assumes to the role of law as a social system factor. In countries like Poland, where for more than half a century law had been regarded by the authorities instrumentally, as a means of consolidation of the political regime and control of the society, the task to bring law its proper glory and authority is a primordial issue. No citizen society with its respect for human rights and basic political freedoms can be built unless high legal culture is shared by the people. It is well-worth pointing out that a typical feature of authoritarian systems are human attitudes consisting in resistance to law. Law is viewed as a sort of a foreign body, a factor of domination, and not as a regular instrument whereby social relationships are provided for. And once it is perceived as a factor of enslavement, attitude of resistance is developed towards it.
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Breaking law becomes a virtue, a proof of courage, obeying law being an act of collaboration with the regime. These conditions considered, a change of the social and political system must not be limited to mere development of a new legal system, based on new axiological assumptions. The true challenge is to change human mentality, instil in it the idea of law- abidigness, evoke respect to the law in force. Also the law itself has to meet high standards concerning its quality and responding to certain fundamental values. Incidentally, for transformation of the legal system it was necessary not only to break – in an evolutionary way – with the old legal order, but also to meet new challenges. The European integration processes should be quoted here as an example, in which processes Poland has been actively involved since as early as the mid-1990’s. Satisfying all those needs not only takes time, but is also requires proper cadres. Quite new challenges are, as a result, confronted by law schools dealing with education of prospective judges, prosecutors, attorneys, politicians, managers etc. Taking care of proper quality of student education should be mentioned first. The issue is, on the one hand, that the curricula should include, besides traditional contents, also matters of modern democratic political systems, human rights, international relationships etc. On the other hand stress has to be put on development of ethical issues, being of importance in legal and administrative career. It seems that the task has been satisfactorily met. It is also well-worth mentioning that legal schools, university faculties in particular, provide the necessary think- tanks for state bodies/governmental agencies and other institutions. Law professors of considerable standing with the society contribute, through their participation in expert groups (e.g. those working for the Parliament), to including all the values that should be inherent in modern legal systems, into the law-making process. Promoting legal knowledge among the society also helps developing legal culture. The process is, by no means, a long- standing one, but its results can be noted even now, with public life standards improving and legal protection of citizens becoming more effective. New constitutional developments have provided wide access to court to all those needing it. The Constitution of the Republic of Poland includes common guarantees, extended on everybody, to fair and open examination of his/her case, without unnecessary delay, by competent, independent and impartial court. It also provides a guarantee that recourse to law when claiming one’s violated liberties or rights will not be barred by statute to anybody. Consolidation of legal status of the individual in the view of Community standards adds to all the above said.
5. As the discussion provided above shows, the role of law schools and law school leadership is enormous in modern world. And there is a common goal pursued in all the states, the issue being making good law and contribute to creation of favourable conditions that help develop legal culture. The way in which lawyers-to-be are trained and the kind of knowledge absorbed by them has a significant impact on proper operations of the whole socio-political system of the country. In countries like Poland, taking up the task of transformation of the internal system and the building of citizen society, the role of education of lawyers and, consequently, the role of law schools, is even more important, and the burden of responsibility even greater. It is definitely much easier to change the law itself than human attitudes. Hence the task of mental transformation of the society, the attempt to make them drop the attitude to contest law is not only extremely difficult to perform, but it also requires time and relevant cadres. The task is well-worth undertaking, though, as it is only following that path that a modern citizen society, well-aware of their rights and duties and observing the
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fundamental values of freedom, human dignity, sense of responsibility, can be built. The way in which lawyers are trained is thus of utmost importance for carrying out the task, hence also the role of law schools in Poland is just enormous.
156 The Role of Law Schools and Law School Leadership in a Changing World
Building a new paradigm in law education in terms of upholding the rule of Law in Indonesia through Clinical Study
Wasis Susetio Univeristy of Indonusa Esa Unggul Indonesia
Introduction
In the New Indonesian Constitution (Undang-undang Dasar 1945 The Third amendment) article 1 sub article 3 stipulates that Indonesia is a rechtstaat , it means that Indonesia has characteristically three rules to carry out: first, supremacy of law, second, equality before the law, and due process of law. It needs strong effort to make a new paradigm of law education in promoting role of law and law leadership.
Since 1998 as the regime of former President Soeharto step down, Indonesia strives to reform of its law system and enforcement successfully. Hence, one of the main agendas of Indonesia Reformation are strengthening a national law system and legal culture through any medium either formally or informally, including formal education in higher education. Indeed, based on pass experience, law system in Indonesia was not effective and weak, therefore, people wants to change it to make a better condition of national law system.
According to Komisi Hukum Nasional (National Law Committee/NLC) that established to carry out the agenda of reformation of law in Indonesia, it says that the law education is very important in disseminating reformation agenda of rule of law to public,. In that point, the faculty of law plays a strategic and vital role to achieve the idea of rule of law in Indonesia, especially to educate people in knowing the new paradigm of legal system.
Legal education as a part of higher education is needed to produce alumni of law school who has high quality of legal knowledge, skill of analysis and skill of legal practice. In fact, In Indonesia, those ideally condition still a hope due to lack of quality of law education. A fresh graduate has merely just legal knowledge not skill. As a consequence, the mission of law education is to internalising values of moral, besides improving legal skill.
In term of contributing to achieve the goal of law education, University of Indonusa Esa Unggul (UIEU) is facing 2 challenges in undertaking law education: firstly the faculty of law should be able to deliver a legal education which include skill of legal analysis and practice, secondly, law education must has complete module of ethic by cultivating moral values in upholding supremacy of law and protecting human rights as requirements of democracy and social justice in Indonesia.
The answer of such issues are able to develop comprehensively curriculum and teaching method of law education in the faculty of law in line to the goal of rule of law. The Faculty of Law of UIEU has a concept of leading curriculum by providing learning gateway of law, it works by interactive learning through internet which is able to deliver lesson anytime and anywhere, and also perform moot court as a core module.
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Learning Pyramid Theory
According to learning pyramid theory made by National Training Laboratories/NTL1 in Maine (AS) , it has a survey result that speech method, the receiving level of such method just only 5%. This is the lowest rank of method of teaching in term of receiving level by student. Meanwhile, for the writing method, the receiving level is higher than speech, 10 %, furthermore, if the class using audio-visual tools, hence the receiving level become higher, 20%, and if using demonstration method it will be 30% . Regarding the result, it indicates that generally law education in Indonesia use speech method, it may be ineffective to apply for law education.
Four methods of the lesson are categorized as a traditional method. The low level result of those categories can be resolved by another method namely Training and interactive approach that focused and centered on student.
Commonly, interactive approach is divided into three methods, first Group Discussion (GD) which has a receiving level 50%, the second one is Practice by doing which has 75% and the most effective is simulation/ role playing which has a receiving level 90%.
In McQuoid-Mason’2s point of view , Education method which focus and center on student is ideally undertaken by sharing learning experience to the students in the class where the students can getting skill of legal practice and providing social justice system at once. If there is no such opportunity in the circumstances of learning, we should create it by giving opportunity to students to practice as a lawyer in the real world. Of course, they just become an assistant of lawyer to resolve the problem by interacting to the client and student can assist their lawyer to identify and give a legal opinion to the lawyer. Their work can be openly criticize or peer group of student.
The role of law education in global changing
By providing such law education, it can be say as a Clinical Study of law education that enable to give student opportunity and deal with a real condition of legal world. They can actively participate in learning process and observe how legal system works in the real world.
Such law education model evolve a strong base for a legal expert in practice because the Clinic of law education not just deliver some theories or knowledge but also teach comprehensively some technical skill of legal practice. Besides that the students would be taught about the values or moral needed by a lawyer in order to over come the problems of social justice in society, it is a profession responsibility to do the job as a lawyer.
The mission of higher education of law in facing global changing is creating comprehensive module as described before. Hence, the students will be able to understand and do action in helping people who need legal aid effectively. The global changing make various legal problems, as consequences, the student must has a clear vision of how the legal system
1 http://www.ntl.org/inner.asp?id=241&category=10 2 http://law.gsu.edu/ccunningham/LegalEd/SouthAfrica-McQuoid-Mason-PILI.pdf
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works in unpredictable situation globally, in particular, in business activities which has a culture interaction among business people around the world. For example, people are connected interactively by telecommunication. Therefore, it must be concerned in the lesson of electronic information and transaction that has a typical perspective of dealing where someone does not meet each other physically but they ‘meet’ each other through internet. If one people deal with the other to do certain thing and it evokes legal aspects. It means, the student must know the internet law aspect is slightly different with a physical transaction. In that context, the faculty of law should comprehensively teach values of internet interaction among the public and also how to solve the problem legally either in court or non litigation. The main thing, a student has to know that a perpetrator in internet is more difficult to be caught than a thief.
Law Leadership
As a rechtstaat, Indonesia standstill strengthen its legal system, therefore, The government urge the Ministry of Education, especially Direktorat Jendral Perguruan Tinggi (General Directorate of higher education) to concern about the law education and make collaboration with related institution, including Bar Association to make a comprehensive curriculum of law study which consist of knowledge, skill, and moral.
The faculty of Law of UIEU recently is building the interactive system of law study by collaborating with three institutions to perform, first: Constitutional Court of Indonesia, Supreme Court and University of Indonesia to make a teleconference room of Moot court which can be utilized in training interactive of legal study. The legal study has two component: first, academic component and second service component.
This program will interactively train the student to know a real due process of law and court , so the students will be pretending as a lawyer, in that room, the student will be appraised by the lecturers and also guided by senior lawyer.
This Clinical study will be beneficial in developing law institutional also international institution which related to a development of legal system, and it is most likely IALS can contribute their support to empower this program in the future.
Conclusion
A. The mission of Clinical Study is to complete the modeule of legal study in sharing knowledge and legal skill to disseminate the rule of law
B. The Clinic study of law consist of academic component and service
C. The program of Clinical Study formed a legal aid and advocacy of law
D. The main point is interactive studying which utilize any medium to improve student skill of legal
E. This program teach three aspects: Intellectual, moral, and skill
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160 The Role of Law Schools and Law School Leadership in a Changing World
Educating Our Students For What? The Challenge of The Market
Margaret Thornton Professor of Law Australian National University Canberra, ACT Australia
If practice be the whole he [sic] is taught, practice must also be the whole he will ever know: if he be uninstructed in the elements and the first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: ita est scripta est is the utmost his knowledge will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn a priori, from the spirit of the laws and the natural foundation of justice.1
As Blackstone recognised, if students are taught only the ‘is’ of law without regard to the ‘ought’, they acquire no understanding of justice. Legal education in Australia as in other common law countries, is dominated by the profession. Despite the desire of law schools to be accepted as fully-fledged and autonomous constituents of the university, the profession exercises considerable influence over the curriculum by determining what subjects need to be taught to qualify for admission.2 The admitting authorities specify technical expertise alone, not critical, reflexive or theoretical knowledge. My concern is that this deference to the profession takes insufficient cognisance of the changing nature of practice. I am particularly concerned about the contemporary domination of the market.
The Changing Nature of Legal Practice
The practice of law is subject to increasing pressure to retain its commitment to professionalism in the face of powerful business imperatives. Although the global financial crisis has sounded a clarion call about allowing the market to have free rein in respect the way corporations conduct themselves, the dominance of the market is irrevocably changing the practice of law.
Neoliberal political values, which have become the norm everywhere, privilege private good and promotion of the self over collective good and public service. The focus is on the maximisation of profits and economic rationality, values that run counter to the ethics of professional practice and public service. While I do not wish to appear overly nostalgic for a past age, these developments present challenges for law schools. Recent developments in Australia highlight the urgency of the challenge.
1 Sir William Blackstone, The Sovereignty of the Law, selections from Blackstone's Commentaries, ed. and with an introd. by Gareth H Jones, Macmillan, London, 1973, p 22. 2 The eleven subjects are Criminal law and Procedure; Torts; Contracts; Property - Real (including Torrens System Land) and Personal; Equity (law) (including Trusts); Administrative law; Federal and State Constitutional law; Civil Procedure; Evidence; Professional Conduct (including basic trust accounting); Company law.
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In the 1970s, the phenomenon of the mega-firm emerged. Mergers were first of all confined to the one city, but then extended to other States and other countries. The aims of amalgamation were clearly not directed to service so much as profits, particularly the cutting of overhead and infrastructural costs.
Some of these large firms now have hundreds of associate lawyers, many of whom are vying to become partners and share in the profits in an increasingly managerialist environment. Bureaucratisation and hierarchisation have meant that the rewards of an equity partnership are available to fewer lawyers. Hence, competition policy has become the raison d’être of law firm life, so far as both individual lawyers and the law firms themselves are concerned.
However, the mega-firm is not the end of the story. The 21st century has seen a ratcheting up of the imperative in favour of the pursuit of profits with two significant developments in Australia. First, in 2001, law firms in New South Wales were permitted to be incorporated, a development that was followed by other jurisdictions. Secondly, in 2007, Slater and Gordon became the first firm to be listed on the stock exchange.
While it is undoubtedly the case that a law partnership has always had a business dimension, this seemed to coexist equably with service, at least before billable hours and bureaucratisation became the norm. Incorporation and listing on the stock exchange are not about service but are unequivocally about profit-making. The corporate law firms, that is, those that act for large corporations and multinationals, as well as being themselves corporatised, always have one eye to how to hold onto their valuable clients, who have become increasingly fickle and demanding. If the law firm declines to do their bidding, even if ethically questionable, the corporate client will go elsewhere or resort to in-house counsel. The shredding of records by one large Australian law firm, Clayton Utz, in the course of tobacco litigation illustrates the point.3
The significance for law firms of what it means to work in the shadow of large corporations cannot be gainsaid. The impact on law firms of the substantial and sometimes obscene salaries paid to CEOs has not received a great deal of attention. However, if corporate lawyers are busily effecting takeovers, mergers and international contracts that are helping to generate huge profits for their clients, the lawyers begin to feel resentful and believe that they too should benefit financially. The effect is to ratchet up the emphasis on profits, time sheets, adherence to a long-hours culture, and so on.
How can students be prepared for withstanding the pressure of this competitive corporatised culture in which lawyers now speak of themselves as ‘businessmen’?4
Students and Legal Education
The values of the market have also impacted directly on law students as a result of policy changes in the government funding of universities. As a direct result of the imperative to privatise public goods, there was a shift towards the idea of education as a private good, for
3 McCabe v British American Tobacco Australia Services Ltd [2002] VSC 72 (unreported). 4 Margaret Thornton & Joanne Bagust, ‘The Gender Trap: Flexible Work in Corporate Legal Practice’ (2007) 45(4) Osgoode Hall Law Journal 773, 804.
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which users pay (higher education was free in Australia from 1973 until 1988). Drawing on public choice theory that law graduates would gravitate to well paid corporate law practice, funding for the discipline of law has been drastically cut. The amount contributed by government for the discipline of law is now around 15 per cent of the estimated per capita cost of legal education. Hence, under a user-pays model, Australian students, like those in North America, are accumulating substantial debts and feeling the pressure to embark upon well paying jobs as soon as possible. The status of the corporate law firms together with the high salaries they pay makes them an attractive destination in accordance with the tacit government policy. The user-pays model of higher education results in a turning away from public interest law practice.
Furthermore, this new environment encourages students to lobby for changes to the curriculum. Students want more commercial law and practice-oriented subjects, which they believe will enhance their competitiveness in the labour market. The domination of the legal labour market and the legal culture by the corporate law firms, together with student demand, makes resistance difficult. As a result, there has been a resiling from critical and reflective subjects in favour of applied knowledge.5 In a context where credentialism and the desire to graduate in minimum time is viewed as all important, students have become increasingly impatient with ethical reflection. Some law schools have responded to the market pressure by opting to specialise in commercial and business law, providing further evidence of the deference towards the corporate law firms. The focus tends to be on technocratic knowledge, rather than interrogating the ethics at the heart of corporate practice.
Conclusion: An Ethical Dilemma
At every turn, we see the promotion of the power of corporate law by multiple actors in multiple sites – the state, the law schools, students and the profession itself.
What can law schools do to minimise the problems posed by corporatisation? It is acknowledged that there is an increasing focus on ethical and the prudential legal practice as the market seeps into the soul of society. In addition to specialised subjects, ethics may be spread across the entire curriculum. Research into ethics is a burgeoning field; it is no longer seen to be merely ancillary to clinical programmes. Centres devoted to the study of ethics have also emerged and Chairs in ethics have been established.6
But can this ad hoc, uncoordinated and individualist approach really address what has to be recognised as a systemic problem? While it is acknowledged that we all must do what we can and a few individual students may heed our words, the central role of the market within legal practice is unlikely to be displaced. For real change to occur, it is for the legal profession itself to put its own house in order; law schools cannot do it for them.
5 Margaret Thornton, ‘The Demise of Diversity in Legal Education: Globalisation and the New Knowledge Economy’ (2001) 8(1) International J Legal Profession 37; Margaret Thornton, ‘The Law School, the Market and the New Knowledge Economy’ (2007) 17(1&2) Legal Education Review 1-26 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1135989. 6 Eg, Kim Economides is Professor of Legal Ethics at the University of Ethics, UK.
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164 The Role of Law Schools and Law School Leadership in a Changing World
New Objectives of Law Schools in A Changing World
Prof. Dr. A. Can Tuncay Bahcesehir University, Faculty of Law Turkey
I. GLOBALIZATION FACT
During the past 30 years it is a clear reality that globalization is the most significant development that has taken place in the world order. Technological developments in accessing knowledge, growing number of internet usage and trade relations between the countries, development in the means of communication and satellite broadcasting, immigration from one country to another, free movement of capital and labour, activities of multinational companies are the major inducements that have fostered globalization. Primarily the birth and growth of the European Union, emergence of new states after the fall of the Soviet Union and the activities of the international organizations throughout the world such as IMF, NAFTA, EFTA, ASEAN, WTO, NATO etc. contributed heavily to the acceleration of globalization. Globalization affects a great number of people and areas of activity (economic, cultural, business etc.), throughout the world. Banking, trade, business, finance, production and service sectors are the most significant areas which are embraced by globalization. Not as remarkable as in those areas, the field of law including legal education and legal profession have also been affected by globalization. This “delayed reaction” might be the result of conservatist nature of lawyers and jurisdictions that are mostly domestic oriented. However a significant number of lawyers in most countries are today involved in a wide range of legal practice throughout the world due to globalization. We see the number of the law firms with offices and partners around the world coping with international or foreign legal cases that are increasing daily. While domestic law still is of principal concern to lawyers the globalization of legal practice compels them to learn the foreign legal systems and international law. Free movement of students and academic staff within the EU countries thanks to Erasmus and Socrates programs or the increasing number of students studying abroad are important indications of globalization of legal education. All these developments cause the lifting of geographical borders in law and the diminishing of national identity of law.
Successful lawyers of today are the lawyers who know not only their domestic laws but some foreign laws and international law as well. Indeed if a law firm wants to be a good, reliable and profitable law firm in the legal market it must be experienced in international law and must have international connections and liaison offices. In this context the law schools must adapt themselves to a globalized legal education and educate young lawyers of tomorrow to take places in the new world order. The first step that must be taken by the law schools is to change and reinforce the curriculums with adequate and updated courses. For example at my law school International Human Rights, Environmental Law, European Union Law, Consumers Law, Copyright and Intellectual Property Law, Competition Law, International Trade Law, Capital Market Law, Banking Law, International Arbitration Law, International Business Law, International Criminal Court, International Organizations and Comparative Law are courses which aim to teach students the global aspects of the law.
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In recent years due to the commercial and political power of the American giant companies across the world and also direct investment of American companies into the Turkish capital market American Law system and practice gained significant popularity and interest in my country and in others. In this respect many law schools included some new courses, other than those mentioned above, as legal English, advanced legal writing, essentials of American Law into their curricula. However adopting these types of courses are easier in private universities (like mine) due to their liberal structures and openness to new perspectives in the country. Law students while taking these theoretical courses, also intensify this theoretical knowledge with practical courses such as moot courts, clinical courses, practical courses etc.
I am delighted to let you know that the debate team (consisting of elected students from my university) has qualified for an international moot court contest that will take place during the coming month in the USA. This contest has been organized by ILSA (International Law Students Association) and the students in the team are trained and taught by some faculty staff members.
Possibly the most significant activities in my law school are organized by IGUL (Institute for Global Understanding of Law). The founders of this institute are Turkish and American academicians. This institute holds seminars and a number of conferences on new developments and current legal issues domestic or international, publish them and also invite foreign professors mostly from the USA and Germany and have them teach under and post graduate students. By doing so the students find opportunity to learn foreign legal orders and to widen their legal perspectives.
II. NEW STRATEGIES OF LAW SCHOOLS
Law schools in order to catch up with legal globalization and to be lucrative and competitive have to create new targets, new exercises and new programs. For example in my university a new program called CO-OP has begun. The content and aim of this program is to make agreements with famous and leading firms to provide students with the opportunity to learn about business life and practice in those firms while they are studying. The students are encouraged to participate in cooperative (CO-OP for short) education. CO-OP education is integrating classroom based teaching with on job training. Students chose this educational work in a company or law firm for 3-6 months. The CO-OP courses which use “my campus is my workplace” slogan are professional type courses delivered by the managers of the partner firms and companies both at the university or in their places. From these courses the students get credit that is needed for graduating. In this way the students find the opportunity to see business life and practice outside the university before they graduate. When they graduate they also find the opportunity to find internship place or job in these firms more easily. As far as I know this is a new program which is applied in some American universities (like Northeastern) and Dutch universities.
In my opinion a law student today in a changing world must not restrict him/herself only with studying law and his/her student books. He/she must widen his/her perspective and must improve him/herself in order to be capable of discussing and evaluating the important
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issues of our society. Bahcesehir University is deeply involved with public debate and other social issues. In my university a TV program called “Political Arena” is shot and televised once a month where some current political, economical and social issues are discussed by the experts and students. Most of the participant spectators of this program are the students. Therefore Bahcesehir University serves as a platform for the community. Another popular TV program called “Eco Dialogue” is organized by another private university every two weeks where only economical and monetary issues are discussed by an expert staff trio. The spectators of this program are also students. Many law schools (including mine) are now trying to serve as a platform for policy making and public debate.
In my university (like in some others) students have set up a number of social clubs where they work to improve themselves to be good and well trained citizens. Jazz, classical music, sports, yoga, film, theater, humor, energy and law clubs are but some available.
I myself began a new practice about 3 years ago. I recommend a book that has philosophical, cultural or historical content to the students as a reading assignment, for each semester. At the end of the semester I give them a test just before the final exam about the book they had read. They get graded. The aim of this is to instill in them the habit of reading. It is a wide known reality that students read too little besides course books today. According to the shocking results of a survey held among the university students in Ankara it was discovered that only %10 of students read other books beside course books, %5 read from time to time, %85 do not read at all. The computer, the internet, the internet games were the major obstacles to reading. Therefore law schools must train students not only to become lawyers but also a well equipped person.
I must mention also that a unity called Durable Peace Center was founded 2 years ago in my university. Its aim is to organize and run the activities realizing a sustainable world peace.
III. CAN LAW SCHOOLS AFFECT THE LEGAL POLITICAL AND LEGAL ORDER OF THE COUNTRY?
I can say YES. Because law schools and generally lawyers are regarded as respected institutions and persons in the society. Since they know how an ideal legal and social order in a society would be they will try to realize or to keep it by way of their behavior and activities. Besides lawyers have the capability to talk and convince people thanks to the education they get. It is not a coincidence and surprise that many of the world leaders today have a legal background. However and paradoxically in the 85 year political history of the Turkish Republic there has only been one president with a legal background as far as I know. From time to time law faculties and law professors are considered and blamed for being the opponents to the government in office, because they oppose and challenge naturally if the government ever deviates from rule of law.
In a democratic country it is a usual practice that the governments invite some law professors to the parliamentary commissions charged with preparing draft bills. This practice is the same in Turkey as well. For example new Civil Code, new Penal Code and the new Labour Act have been prepared by the law professors before they were discussed and passed by the Parliament. Now the new Code of Obligations and Code of Commerce are heading towards the same procedure.
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My point of view is that legal ethic varies from culture to culture in principle. However the law today, with the contribution of globalization has progressed universally. Not with standingly the rule of law, respect to law, respect to human rights, independence of judiciary, freedom of press are the fundamental rules and values in a western type of democracy and in the Turkish legal and state system as well. These rules are always and in every class of the law schools repeatedly taught. These rules are constitutionally guaranteed too. According to the Constitution of Turkey “Republic of Turkey is a democratic, secular and social state governed by the rule of law … respecting human rights” (Art. 2). “Judicial power shall be exercised by independent courts on behalf of the Turkish Nation” (Art. 9). “Judges shall be independent in fulfillment of their duties”. “No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power or send them circulars make recommendations or suggestions” (Art. 138). “Protection of the Republic and Democracy is counted as one of the main duties of the state” (Art. 5). However the critics are voicing loudly that these basic rules are under pressure from the government in office nowadays.
In some universities in my country, including mine a number of new and current legal subject like new bill drafts and proposals are open to discussion among the legal students and practitioners. As a point of fact in my country law schools train and educate students to become practicing lawyers rather than research lawyers. Likewise the curriculum and examination systems are based on this system. This shortcoming has tried to be covered by internship programs organized by the bar for the young attorney at law candidates. These programs last for one year. The post graduate study programs held by the universities serve the same objective.
IV. SHOULD GOVERMENTS GIVE FINANCIAL SUPPORT TO LAW SCHOOLS?
The response to that question should be positive without doubt. Year after year the number of students who seek a place in a law school regardless of being state owned or private are growing. And also it is clear that the number of female students interested in studying law is growing in my country. The same trend is observed in exercising the legal profession. The main reason of this preference might be that the females are now more conscious to study law in order to learn and defend their rights in a rather male dominated society.
While the number of students who plan to study law is growing, the number and quality of the law school buildings and classrooms and premises is insufficient. This situation is particularly valid for state universities. Because private universities are funded relative well by tuitions. Private universities so far do not meet significant problems in collecting tuition. Therefore financial support from the government to the state owned law faculties is much more necessary. Financial support will raise the quality of the legal education on the other hand. However the government seems to be reluctant to make financial support to not only law schools but the universities as a whole mainly due to budget restrictions. According to some statistics published recently the share of the educational expenditures among the public expenditures has dropped to %9 from %15 in the year 2005. Such shrinkage is an important issue to be considered regarding the quality of the education in my country.
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It is upon us to influence the educational establishment to incorporate Globalization into the curricula, educate the law student beyond wording of the law, encourage key opinion leaders of law to seek governing positions and most importantly convince all governments to fund higher education appropriately. However the law schools in my country can hardly play a leadership role to orient people and the society for a better and freer life, due to some social, economic and cultural reasons.
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Goals and Objectives of Law Schools A Brief Discussion of Universals and Differences China and the United States
Francis SL Wang Professor of Law 1 Kenneth Wang School of Law, Soochow University China
Dean Michael Coper has chaired an innovative and thought provoking planning committee in organizing this conference. The issues which we will be discussing are fundamental to all legal educators, and are the core values which this association is tasked to explore. The most basic is Dean Coper’s first question - What are the goals and objectives of a law school?
Such a broad question invites further questions. What are the expected outcomes of a legal education? Do they vary from country to country? If so, are there any universals? If yes, how do we arrive at them? Do differences in goals and objectives inform a different view of the “rule of law”? In this short paper I will only touch lightly on a few of these topics in the context of drawing some comparisons between the two systems I know best: China and the United States.
Much has been written and discussed as to a need to reexamine the role of law schools in the preparation of lawyers for the legal profession. In the United States the most recent thorough critique of legal education was the 2007 work by the Carnegie Foundation for the Advancement of Teaching entitled Educating Lawyers: Preparation for the Profession of Law (“Carnegie Report” or “Report”). 2 While praising the ability, particularly in the first year, of American law schools to shape a student’s intellectual ability to deeply analyze within a legal framework primarily through the case-dialogue method, the study also highlights several challenges not met by the prevailing American pedagogy. These are (1) the development of forms of expert practice necessary for competent practitioners - professionalism, and (2) a shared identity, purpose, and values of a legal professional which would serve as the basis for an ethical and community-spirited model of a legal practitioner - ethics.
The Case Dialogue or the Lecture Format
The Report highlights the signature pedagogy of American law schools: the so-called Socratic or case-dialogue method. 3 This contrasts with the distinct tilt among Chinese law schools (similar to their other civil law cousins) to the lecture format.
1 Professor Wang is the Dean Emeritus of the Kenneth Wang School of Law at Soochow University, Suzhou, China. He is also the Honorary Chair of the Board of Regents of Soochow University. 2 Educating Lawyers: Preparation for the Profession of Law; William M. Sullivan, Anne Colby, et al, Jossey-Bass, 2007. 3 The author notes that “signature pedagogy” does not mean exclusive. American law schools are increasingly employing a variety of methodologies. For instance, Harvard Law School under the inspired leadership of its
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This difference raises the obvious question of whether the skills and experiences from one jurisdiction are either relevant or transferable to the other. Are there any universals here? I believe that there are. The most fundamental universal is the expressed belief in educating one’s student as to the “rule of law”. Of course, that leads to a discussion as to the values of each culture and its own perceived meaning of the “rule of law”. Part of that answer revolves around the pedagogical approach employed in teaching law.
While the lecture format is an extremely efficient conveyor of doctrinal knowledge, many have argued that its exclusive use does not develop the skill sets necessary to transform students into actively engaged legal problem solvers. According to the Carnegie Report, American law schools are exceptionally good at honing the analytical skills necessary to identify issues in a legal context. Certainly, that has not been the strong suit of Chinese legal education.
Does the use of the case-dialogue method enhance a better approach and understanding of the rule of law? Certainly, many of my common law colleagues would argue that this inductive analytical process fostered by the case – dialogue method of arriving at principles through facts is essential not only for astute practitioners, but is primary to an acute appreciation of the interplay of fundamental principles and the facts from which all legal issues stem. However, I know that many of my civil law colleagues would disagree, preferring the deductive process of application of principle to facts as more efficient and affording a better framework for deep theoretical legal analysis. This is definitely an area worth exploring.
How and When Do We Teach Professionalism?
The United States has undoubtedly the most expensive, and, it is claimed, the most rigorous, approach to legal education. It requires a post graduate education of 3 years leading to a J.D. degree. Additionally, the growing trend of having “gap” time between college and law school is also gaining popularity. American law students are, on the whole, older and more educated than their overseas counterparts who are studying for their first law degree. In addition, the overwhelming majority of graduates from an American law school end up in the “law business” 4 – working as lawyers whether in private or public practice.
former dean, Elena Kagan, has decided that beginning in 2009-2010, all first-year students will take a simulation problem-solving course in which they will grapple with real-world challenges involving complex fact patterns and encompassing diverse bodies of law. In the Summer Law Institute where we have brought together hundreds of law students from Europe, the Mid-East, the United States, Latin America and China for the past five years at the Kenneth Wang School of Law in Suzhou, China, we have employed simulation as the core pedagogy. This program has been highly effective in conveying the doctrinal knowledge of International Business Transactions in a realistic international setting where students must work with and compete against their counterparts from different legal systems and cultures. 4 According to the American Bar Association, there were 1,116,967 licensed attorneys in the United States as of June of 2007. There are approximately 140,000 students enrolled in J.D. programs. On a per capital basis there is approximately 1 lawyer for every 265 people in the U.S. This gives the U.S. the highest per capital ratio of lawyers to population in the world.
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Education is a state controlled enterprise in China. The structure of legal education follows much of the rest of the world. 5 The first law degree is an undergraduate degree (LL.B.). Additionally, the majority of graduates from Chinese law schools do not end up in the “law business”. Actually, it is a minority (approximately 20%) of each Chinese graduating class who will become lawyers, prosecutors or judges.6 The majority of the first degree graduates normally find employment in the public sector. Most public sector hires are not on a “law” track, but start at entry level positions at bureaus in different levels of government. Others go on to work for state-owned enterprises. These usually account for approximately 55% - 60% of the graduates. The rest are employed in the private sector or go on for advanced degrees. Therefore, only a minority actually use their legal knowledge or skills as practicing lawyers or judges.7
Entrance into the profession has its similarities and differences with the U.S. Both systems require passage of a written examination. The bar exam in the United States is a state exam usually administered by the private bar association of the state under governmental auspices or regulation. 8 China’s Judicial Exam is a nationwide exam administered by the Ministry of Justice. 9 One does not need a law degree to take the Judicial Exam in China. One merely needs a bachelor’s degree. Last year over 320,000 took the exam, making it the second highest number of examinees for a state exam, only surpassed by the Civil Service Exam with approximately 800,000. As in the United States, most test takers enroll in “cram” courses. While statistics are not available, there are many anecdotal stories of a growing number of students who do not have a legal education and simply take the cram course to successfully pass the exam. The passage rate in 2007 was approximately 22% a jump from the 15% rate of the year before. 10
5 We do note that some jurisdictions are studying and some have moved towards an American model or a version of it; e.g. Japan and South Korea. 6 According to the Ministry of Justice, China has as of 2008 approximately 130,000 licensed lawyers. That equates on a per capital basis to approximately 1 lawyer for every 10,000 people in China. However, the numbers are increasing significantly. In 2004 there were 102,000 licensed lawyers. Today’s number represents an over 27% increase in 4 years. 7 In fact, in a survey of the mission statements of some of China’s leading law schools ( Tsinghua University Law School, East China University of Political Science and Law, Renmin University Law School, Peking University Law School, China University of Political Science and Law) the Chinese word for “lawyer” is never mentioned. Some of the statements express vague notions of making contributions to socialistic legal construction and modernization, while others seek to foster the systematic grasp of basic legal theory. 8 The average bar passage rate among all the states in 2007 in the United States was 67%. The 81,000 plus examinees included approximately 10,000 who either attended non-ABA accredited law schools or law schools outside the U.S. Their passage rate was significantly lower – 29% for non–ABA accredited law schools and 32% for non-U.S. law schools, versus 72% for those who attended ABA accredited law schools. The rates per state varied from a low of 49% for the state of California to a high of 89% for both Montana and Wisconsin. 9 The 2008 results have not yet been promulgated, but given the large numbers, it is estimated that the passage rate will decrease this year to between 17% - 19% versus the 22.39% for 2007. These passage rates are significantly higher than prior years when the rates ranged from 3% - 8%. 10 The Judicial Exam pass rate has been steadily climbing from approximately 11% in 2004 to about 22% rate of 2007. There has been much conjecture in the blogosphere as to the 2008 pass rate. Some estimates place it at a 17% - 19% range arguing that it would be lower because of the prior year’s high pass rate. If the number of examinees and the passage rate continue to climb, the number of Chinese lawyers will increase exponentially.
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Unlike the U.S., China requires an apprenticeship period of one year before a successful examinee can obtain his/her license to practice. This requirement, similar to that in many other jurisdictions, is quite effective in modeling professional behavior and skill sets necessary to make young entrants into skilled professionals. Outside of private practice a good number of Judicial Exam passers join the government as public prosecutors or judges. As in most civil law jurisdictions, the judiciary is a professional calling for young graduates who enter the judiciary upon graduation from law school.
Both China and the U.S. require an accreditation procedure to admit lawyers to practice. Neither American nor Chinese law schools stress the acquisition of professional skills outside of academic ones in their curriculum. China has left that to the practicing bar in its required one year apprenticeship. This may be efficient given that the majority of its law students do not become legal professionals. However, most American students do end up in practice. The Carnegie Report raises the issue of whether more resources should be devoted to providing American graduates with some of these professional skills during their legal education. This is particularly true given the more advanced age of the American law student population.
When comparing the two systems, the question arises as to whether Chinese law schools should be providing a uniform training with the goal of educating lawyers 11 for practice? As the majority end up in the public sector – would an emphasis on courses in public administration be more appropriate than steeping every student in doctrinal legal courses too specific for their future needs?
Inculcation of Values and Ethics
Another interesting contrast follows from the Report’s suggestion that American legal education must go beyond training “legal technicians”. The education should be much more holistic in turning out an end product which possesses not only academic prowess but a variety of professional, ethical and community values not ordinarily the subject matter of academic training. What is the best approach to inculcate such values into our students?
I’ve already discussed some contrasts in modeling “professionalism”. With respect to developing a sense of ethics, values and community spirit, some of my Chinese colleagues have pointed out that the much criticized mandatory political courses; Mao Thought, Deng Thought, etc. are precisely meant to inculcate these values and ethics. The purpose of these courses is to convey to the student a sense of civic responsibility, as well as the political and intellectual framework for their future role in society. Many of my Communist Party friends would completely agree with this approach. After all, the essentials taught in these courses express the prevailing organizing principles around which their government and their
11 Actually, the major Chinese law schools do not even consider their goal to be educating lawyers. The curriculum and pedagogy is so theoretically based that one can draw the conclusion that the law school’s goal is to train legal scholars, not practicing lawyers. While the need for more law professors is necessary (China now has over 600 law schools – 654 by some count), one should remember the old adage that “we teach in the way we have been taught”. Given that, Chinese law schools may have no shortage of graduates who are perhaps prepared to do research and teach law, but are incapable of educating a cadre of lawyers who can practice at an international level.
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society are based. Law school education is to make sure that its graduates understand the governing regime which fosters stability through the rule of law within the Chinese context.
However, there is disagreement with this position. There are those who feel that the subject matter of these courses smacks too much of indoctrination in a specific dogma as opposed to an exploration of civil societal values. I know that some of my American and European colleagues may also disagree with this approach. In their minds, law is not merely a tool of a dominant class to ensure stability; rather it is an overarching set of principles by which all should be subject. Law and the way we teach it is a fundamental reflection of who we are and how we perceive our place in this world.
I have raised just a few comparisons which I hope will stir some conversation at our conference. The subject matter and the questions raised by Dean Coper deserve thoughtful and robust discussion. I am looking forward to that in Canberra.
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Plenary II
Why Are We Here?
The Goals and Objectives of Law Schools Beyond Educating Students: Research, Capacity Building, Community Service
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On Law Schools and Leadership
Dr. Roberto Aponte Toro Dean, School of Law, University of Puerto Rico Puerto Rico
Academic leadership in the field of law can be exercised from multiple angles and perspectives. One perspective is legal education itself.1 How, when, and where does one learns the skills that our society deems necessary to become what we call a lawyer? Let us begin at the end and work our way backwards: Are those skills learned at a school dedicated to the teaching of those very same skills? Or are they learned at the office of a practicing attorney? Is learning achieved at each curricular stage of the academic process or at the end of the academic experience?2 Is it attained by way of observing the work of others or by way of supervised exercise, whether it be inside or outside a law school setting?
That has been in large measure the main concern of the American academic community in recent decades. Such inquiry aims to close the gap between the academic model of training lawyers and their actual practice once they leave law school. The most pressing question is: How much, if anything, does law school education contribute to the professional practice of lawyers? The answer usually is that it contributes little; most of the most important qualities of what it means to be a good lawyer are acquired outside of law school; they are acquired by observing other lawyers in the courtrooms and in the offices where they work.
This answer leads many academic leaders to look for ways of justifying their leadership, in an attempt to give meaning to the law school experience so that it become indispensable. The underlying tension currently seems to manifest itself in the question of whether law schools should be less onerous for students,3 despite the fact that the field of knowledge is expanding, by instituting two-year programs instead of the traditional three-year one and taking full advantage of technology, or whether, on the contrary, we should add years to our programs, in order to address that expanding field of knowledge, or whether, ultimately, we should accept the model of life-long learning
Four years from now, on 2013, the School of Law of the University of Puerto Rico will turn 100 years-old.4 Yet, lawyers have been a part of Puerto Rican society since at least the year 1740. There is historical evidence of at least three lawyers in Puerto Rico at that time.5 The historical record also shows that such a shortage of lawyers led to concern over the lack of access to the justice system.6 In the following centuries, there were several attempts to create a center for legal education in the Island. All of them were short-lived.
1 See John O. Sonsteng et al., A Legal Education Renaissance: A Practical Approach for the Twenty-First Century, 34 WM. MITCHELL L. REV. 303, 363-434 (2007-2008). 2 Id. at 378-379 n.404. 3 Id. at 358-364. 4 Carmelo Delgado Cintrón, Las escuelas de derecho de Puerto Rico 1790-1916, 41 REV. JUR. UPR 7, 8 (1972). 5 Id. at 9. 6 Id.
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During those years, Puerto Ricans traveled to either Cuba or Spain, principally Barcelona, to study law.7 Then, in 1913, our law school came into existence. It built upon a successful program that developed two years earlier within the Ateneo Puertorriqueño.8 Its fundamental goal was to prepare lawyers for service within the Island’s new government bureaucracy and business sector.
During those first years of what was then called the College of Law, special importance was given to the production of lawyers for the local and federal government apparatuses, and the Island’s business and mercantile concerns. It is noteworthy that, very early on and in contrast to most American university, the course on International Law became mandatory for students, a policy that subsists to this day.9 That first half of 20th century saw the so- called “transculturization” of our legal system, with American and Puerto Rican justices sitting alongside in the local Supreme Court.10
Our first acting dean was José Benedicto Géigel. He was succeeded in 1916 by Dean Martínez Álvarez, the first to use the title. During Martínez Álvarez’ long tenure, improvements were made to our physical infrastructure.11 The text books used at that time were a combination of new American books and old Puerto Rican sources. Our curriculum reflected the needs of a transactional agrarian society, particularly concerned with the issue of land ownership.
In the late 1940’s, attorney Manuel Rodríguez Ramos was appointed Dean of this law school.12 As a student, Rodríguez Ramos had been a driving force behind the creation of our law journal. And, as Dean, he instituted our legal aid clinic, modeled on programs he had observed in the U.S. Both initiatives, the law review and the legal aid clinic, are, today, enormous sources of pride for our School. Rodríguez understood that our School’s goal was to prepare lawyers for the public sector. The need for lawyers was high at the time: It was said that the government of our welfare state needed 300 lawyers.13
Today, all our students are required to provide legal aid in various areas of the law, and our legal aid clinic ranks high by the standards of American Bar Association.14 Rodríguez Ramos oversaw the design of what in 1960 would become our new and current building. During his tenure, the number of mandatory courses became fewer, thus starting the trend towards curricular flexibility, a trend that lived on.15 Rodríguez Ramos also brought diversity to our School by hiring foreign faculty members. One of those young foreign professors was David
7 Id. at 17. 8 Id. at 31. 9 For many decades we were the only law school under American jurisdiction, where International Law was part of the mandatory curriculum. As part of the last curricular reform, it was transferred from the third year to the first year. 10 For an overview of that period, see JOSÉ TRÍAS MONGE, EL CHOQUE DE DOS CULTURAS JURÍDICAS EN PUERTO RICO: EL CASO DE LA RESPONSABILIDAD CIVIL EXTRACONTRACTUAL (1991). 11 Delgado Cintrón, supra note 4, at 45. 12 Hans Perl Matanzo, La Escuela de Derecho de la Universidad de Puerto Rico: Un Legado de Manuel Rodríguez Ramos, 73 REV. JUR. UPR 1095 (2004). 13 Id. at 1115-1116 n.72. 14 Our School’s legal aid clinic is among the top 10 in the U.S. in terms of breadth of service. 15 Perl Matanzo, supra note 12, at 1117.
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Helfeld, who later succeeded Rodríguez Ramos as Dean of our School. Dean Helfeld helped to further diversify the School. He came from a civil rights background, having been expelled from Yale Law for his sharp criticism of J. Edgar Hoover.16 Helfeld strengthened our School both by hiring a higher number of full-time professors and by encouraging our School’s involvement in the social debates of the 1960’s, some of which ended in bloodshed.
Towards the end of Helfeld’s tenure as Dean in the 1970’s, a Curricular Committee, composed by Helfeld, Raúl Serrano Geyls and Jaime Fuster, issued a report that illustrates the strong sociological slant of our School at the time.17 The goal was to bring our students closer to the Social Sciences and the Humanities. The report also evinces an indifference towards the influence of other schools, such as the Business School.18
Between the 1970’s and 1980’s, our law school went through several transformations and was the stage of serious conflicts. In the early 1980’s and under the leadership of current President of the University of Puerto Rico, attorney Antonio García Padilla, a movement towards internationalization and even globalization was initiated. Cooperation accords and exchange programs with foreign institutions were initiated.19 We traveled to Spain, and established a joint degree program with the University of Barcelona. We then looked to Latin America, particularly Chile, and later to Canada. By exploring the world, we were ultimately exploring ourselves, looking to better understand the philosophical underpinnings of our mixed legal system.
García Padilla’s highly productive tenure as Dean lasted 14 years. His successor was Dean Efrén Rivera Ramos. He brought to the fore the issue of access to the justice system, stressed public and community service, and promoted a higher presence of international faculty members. His efforts received deserved national attention. In 2006, he was awarded the Deborah L. Rhode Award granted by the Section on Pro Bono and Public Service of the American Association of Law Schools for outstanding contributions to the cause of equal justice from a position in legal education.20 Last year, ANDA, a student organization focused on environmental issues founded under Dean Rivera Ramos’ tenure, received the ABA Law Student Division’s Judy M. Weightman Memorial Public Interest Award for its efforts to serve the public interest as it worked to inform and educate the community regarding environmental issues.21
Towards the end of Dean Rivera Ramos’ tenure, there were talks about how to strengthen our offering in the economic arena. The last great achievement of Dean Rivera Ramos, in collaboration with Professor Ana Matanzo, was the success of our Pro Bono program, a project that has been of great benefit to the community-at-large.
16 See Thomas I. Emerson & David M. Helfeld, Loyalty Among Government Employees, 58 YALE L .J. 1 (1948); Thomas I. Emerson & David M. Helfeld, Reply by the Authors, 58 YALE L. J. 412 (1948-1949). 17 Informe sobre el nuevo Currículo de la Escuela de Derecho, 38 Rev. Jur. U.P.R. 7 (1969). 18 Id. 19 Antonio García Padilla, Perspectivas sobre la internacionalización de la educación jurídica, 70 Rev. Jur. U.P.R. 895 (2001). 20 Circular 0506-50, December 2, 2005. 21 Circular of the Dean 0708-13, August 13, 2007.
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However, our curriculum has not reflected the Island’s economic master plan. In this sense, I believe, we have started a process of awakening in Puerto Rico. We realized that our academic curriculum was out of touch with our economic reality.22 This is something that had gone on for a long time and had only gotten worst as the economy transformed itself. Fortunately, the level of disconnectedness was never complete. We’ve always had authors trying to figure out how new economic concepts, such as condominium or leasing, fit into our old Civil Law tradition.23
But, as I said, the gap was evident. At the beginning of the 20th century, agriculture was Puerto Rico’s main industry. Yet we never had a course on Law and Agriculture. More recently, construction has been one of our major industries. Yet we didn’t have a course or seminar on Construction Law. By the same token, for more than three decades, Puerto Rico was a hub for pharmaceutical companies.24 Yet we didn’t have any course on patents or food and drug regulations. Even though a big part of medical patents were assigned, albeit for tax reasons, to Puerto Rico during that period, there are now only 12 patent lawyers in Puerto Rico, many of them currently associated with our School. The same goes for biotechnology. This year, for the first time, our course offering includes two courses on Biotech Law. Next year, we incorporate a course on nanotechnology, and another the laws that regulate shopping malls. For over three years, we’ve had a successful cyberlaw program, including a legal aid clinic.25
We are also working towards a wider curriculum around technology and licensing. We want to address the impact of technology not only on the law, but also on areas such as communication, scientific innovation, and energy policy. We are working hard at it. We intend to create a Center for Intellectual Property and a multidisciplinary Center for Law and Natural Disasters.26 Ultimately, it’s all about putting science and the tools of economic development to good use, that is, for the good of our peoples.
In only 40 years, our discourse has changed dramatically. As a law school within the American jurisdiction, we have been moving in the same direction as our counterparts to the North. For instance, we have addressed problems such as the lack of access to justice and legal education aming the poor, and the general lack of interest in public service, all of them issues brought to the fore during the 1960s and 1970s. Then came internationalization and globalization, and we started to train lawyers both sensitive to other cultures and competitive in a global marketplace.
Today’s discourse feels very far from that of the 1960’s. The 1960’s made us aware of the fact that law is a social construct. With that notion in mind we went on to face the logic and language of globalization, never losing sight of the traditions of the old culture. Now, at the
22 Although the economy always had a presence in the curriculum, there was little integration beyond what is usually covered under the topics of law and development, or law and poverty. 23 Professor Michel Godreau, a member of our Faculty, has delved into practical aspects of Civil law and Property. He is the author of treatises on Condominium Law and on Leasing. 24 See Andrés Ramírez Marcano, Más allá de la Sección 936: El futuro económico de Puerto Rico para el año 2000, 32 Rev. Juridica U. Inter. P.R. 207 (1997). 25 Last year, our cyberlaw clinic won our first domain dispute on WIPO. 26 See Proposal for the Funding of the Natural Disasters Law and Policy Center at the University of Puerto Rico, Río Piedras Campus, March 31, 2009.
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end of this first decade of the 21st century and skeptical of globalization’s alleged effectiveness, we are called to look within ourselves and work for those that our societies left behind. Having recognized that law is a social construct, I propose that we acknowledge that science and technology also are social constructs, and that both of them, working together, can help us bring about better living standards for Puerto Rico, a country that can visualize itself as either a global island or a global city of the future.27
I don’t consider myself an academic leader. I am but the “humble emperor” that suddenly realizes that we were exposing our collective nakedness. Today’s competitive world needs lawyers that can help us move forward in the fields I just mentioned. We need students that can be critical of those fields of knowledge, not students that will have blind faith in them. Training such students is the role of a University, the perfect place from which to observe, measure, value, and design the rules of the new economy, a place from where lawyers can help nourish and protect the world.
27 Roberto Aponte Toro, On the Evolution of the School of Law: Where Are We Headed in the Next Decade, conference offered on the First Symposium between American University and the University of Puerto Rico School of Law.
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184 "Purposes and Objectives of Law Schools- Beyond Educating Students (Research, Capacity Building, Community Service and Outreach)"
Noor Aziah Haji Mohd Awal Universiti Kebangsaan Malaysia
Introduction
In Malaysia, law school was established mainly for the purpose of producing law graduates to fill the job vacancies in the area of law. Malaysia became independent in 1957 and prior to this date all lawyers, judges and law teachers were trained in England or Australia. There was a huge gap between the majority Malay Muslims community and the Chinese and Indian communities in relation to professional training particularly in the area of law. Legal education still is look upon as a very important professional course. At least 3 of Malaysian Prime Minister were lawyers trained in England. Most of the Malay Sultans are also trained as lawyers in England. The present Sultan of Perak was a former Lord President of Malaysia.
Public and Private Law Schools in Malaysia
The first law school established was the University of Malaya in Singapore in 1961. It’s a public law school, i.e. its Later when Singapore left the Federation and became an independent nation and Federation of Malaya became ‘Malaysia’ in 1963, University of Malaya was moved from Singapore to Kuala Lumpur in 1972. The Faculty of Law of the University of Malaya is the oldest and the foremost law school in the country. It offers both undergraduate programmes leading to the Bachelor of Laws (LL.B.) (Honours) and Bachelor of Jurisprudence (B.Jur) degrees, and postgraduate programmes leading to the Master of Laws (LLM), Master of Comparative Law (MCL), Master of Criminal Justice (MCJ), Doctor of Philosophy (Ph.D.) and Doctor of Laws (LL.D.) degrees. The Bachelor of Jurisprudence (External) programme is another programme offered by the Faculty. To date, the Faculty has produced more than 3,000 graduates, who are spread throughout the country and beyond its shores, contributing not only to their profession but also to every facet of society. Among its alumni are the current Attorney-General, several High Court judges, and senior partners in major law firms, academics and senior corporate persons. Apart from its degree programmes, the Faculty also provides through its Legal Education Extension Programme (LEEP), a series of short courses on specific areas of the law to meet the needs of both legal professionals and other interested individuals. The Faculty also has an active series of public lectures including the prestigious Sultan Azlan Shah Law Lecture, the Tun Abdul Razak Memorial Lecture and the Tun Mohamed Suffian Memorial Lecture. The Faculty publishes two journals, namely, the Journal of Malaysian and Comparative Law and the Survey of Malaysian Law.
The Ahmad Ibrahim Kulliyyah (Faculty) of Laws is part of the International Islamic University Malaysia (IIUM), which was founded in 1983 by the Government of Malaysia and co- sponsored initially by the Organization of Islamic Conference (OIC) and several Muslim countries. The University uses English as the medium of instruction and draws students from more than 90 countries around the world. Among IIUM’s objectives is the goal to become a leading international centre of educational excellence which revitalizes the intellectual dynamism of Islam and the Muslim Ummah. Named after the renowned Singapore-born legal scholar, the Ahmad Ibrahim Kulliyah of Laws plays an integral role in promoting the study of Islamic Law while emphasizing the comparative aspects of the major legal systems in the world.
Faculty of Law UKM was established on 1st February 1984 with the intake of 36 students; all being enrolled to the Law Matriculation programme. In 1986/87 session, the faculty started its undergraduate academic year when all those 36 students were admitted to Year 1 of the LL.B (Hons) programme. In 1989, the faculty received the official recognition from the Qualifying Board established under the Legal Profession Act 1976. The first batch of students graduated in 1990. Since then, intakes of students to the faculty have kept on increasing each year, and in 2005/2006 session, the number of intake reached 120 students.
In 1996, the Faculty obtained the approval from the Ministry of Education to initiate its Master of Law and PhD programmes. The first batch of postgraduate students was admitted in first semester of the 1997/98 academic session.
The Faculty of Law has taken the initiative to offer executive programme with the corporation of the Centre for Educational Advancement. These efforts came into effect with the inception of the Masters Executive Programme in Intellectual Property in the second semester of the 2004/2005 session and the Masters Executive Programme in Business Law in the 2006/2007 session.
For University Technology MARA (UiTM) it’s Faculty of Administration and Law (formerly known as the School of Administration and Law) was founded in 1968. It began as a center offering British external programmes, namely the LL.B (London-External) and the Chartered Institute of Secretaries (now Institute of Chartered Secretaries and Administrators). The only internal programme offered then was the Diploma in public Administration and Local Government.
In 1978 the LL.B (London-External) programme was discontinued and replaced by the current LL.B programme. The LL.B programme is a three-year academic degree course based on the structure of British Universities undergraduate law programmes. Unlike most of the British programmes however, the LL.B programme at the faculty is conducted on a semester system. The LL.B programme, however, has been replaced with the Bachelor of Legal Studies (Hons), which was introduced in 2002. In 1982 the Faculty introduced a one-year LL.B (Hons) programme whereby graduates of the L.LB programme could advance their studies. The LL.B (Hons) programme is a stimulatory programmes designed to provide professional training for students in preparation for their career in the legal practice as Advocates and Solicitors.
The delivery of the curriculum for this course adopts the method and strategy of simulated or experiential learning. The unique experience it provides to students in their legal training has led this programme to be widely recognized and accepted among the Malaysian legal fraternity. In 1995, the Faculty introduced the degree of Bachelor in Corporate Administration (Hons) (to train young and bright Bumiputras to hold office as Company Secretaries) and Bachelor of Administrative Science (Hons) in December 2002. In the pipeline are some new courses, namely, Bachelor of Law and Management (Hons) and Bachelor of Shariah and Law. As of 14 January 2004, the Faculty of Administration and Law have been restructured to constitute two faculties namely the Faculty of Law and the Faculty of Administrative Science and Policy Studies.
The Faculty of Law enjoys strong affiliations with the legal fraternity, namely, the Malaysian Bar, the Attorney Generals Chambers and the Judicial and Legal Service. It takes pride in continuously developing pioneer options in its degree programmes, both at the academic and professional levels. The Faculty currently comprises some 69 academic staff. It has about 1144 students reading for the Pre-Law, BLS (Hons), LL.B and LLB (Hons) and Postgraduate programmes (PhD. and LL.M Programmes)
Apart from the four main public universities (government funded) three other faculties of law were established at University Utara Malaysia (UUM), Islamic Science University of Malaysia (USIM) and University Darul Naim (UDM). UUM first badge of students graduated in 2008 but USIM and UDM’s students are still in the third years. All of these universities run a four years programme and almost alike with the other four main ones.
There are many private universities and colleges that run the LLB program either as external or twinning programme. The most popular LLB external is the LLB external of the University of London. In fact many of these privates institution now hosted a number of foreign students who find it very expensive to stay in England to do the LLB. These programmes are recognized by Malaysian Government where it’s being accredited by the Malaysian Quality Agency (MQA). These private institutions have to abide by certain requirements and conditions before it can receive its accreditation. They also have to apply for reaccreditation every 5 years.
Purpose of Law Schools – Producing Lawyers or beyond?
Law school in Malaysia started merely because there were no law school locally and there was an urgent need to train lawyers. Demand was too great compared to supply. Being a lawyer was very lucrative job because they were too few to run around. University of Malaya being the oldest university in Malaysia has recently been announced as number 31 in the Top 100 Top University in Asia and UKM came number 51. University Malaya, University Kebangsaan Malaysia, University Science Malaysia and University Putra Malaysia are the Research Universities. As such they are involved in many researches and had won gold medals abroad and locally in various research exhibitions and competition. Since UKM became a research university, the Faculty of Law has developed itself beyond educating law and training lawyers. The law Faculty members have been involved in various researches both locally an internationally. Their researches are also multi-disciplinary and cross cultural. These have helped the faculty to improve their curriculum and the number of foreign students.
The area of researches are:
Areas of Research (1984 - 1994)
Constitutional and Administrative Law Malaysian Legal System Public International Law Child Law Equity and Trust Law of Evidence Law of Contract Criminal Law
Areas of Research (1995 - 2004)
Law of Labour and Industry Islamic Law Law of Company, Security, Insolvency and Corporate Finance Information Technology Law Commercial Law Media Law Maritime Law Space Law Consumer Law Medico-Legal Administrative Law
Apart from researches, faculty members have been invited from time to time to head committees at government and non-governmental organizations in Malaysia. They have contributed in the development of laws, law making processes and pressure group activities. Many have been invited to speak on currents issues on local television or radio and in news papers. All these have vast contributions to nation building. Law schools should move on beyond educating students to nation building.
The Role of Law Schools and Law School Leadership in a Changing World
Sustaining Law School Research and Service
Dean Mary Anne Bobinski University of British Columbia Faculty of Law Canada
I approach the topic of this plenary session – the purposes and objectives of law schools beyond educating students – with a certain degree of unease. My discomfort comes from the little-discussed gap between the goals of most North American law schools and the expectations of the primary sources of funding for those law schools: state/provincial governments (in the case of public institutions) and students (for public and private institutions).1 This gap threatens to undermine some of the great achievements of law schools in North America – to stifle the ability of law school faculty members to contribute to the promotion of justice and the advancement of law through scholarship and service. In this brief paper I will consider: (1) the goals of law schools as measured by the job duties of faculty members; (2) the gap between those goals and the expectations of important stakeholders; and (3) whether and how the goals can be justified and sustained in the decades ahead.
The typical tenure track/tenured member of the professoriate at a North American law school has three job duties: teaching, research/scholarship and service. At many schools the faculty member’s duties are described according to a 40:40:20 ratio, where teaching and research each constitute 40% and service 20% of the faculty member’s responsibilities. There are of course variations in the way that these duties are conceptualized and carried out among the more than 200 law schools in North America. Yet this model – in which teaching occupies less than half a faculty member’s responsibilities -- certainly dominates the law schools typically considered to be “good.” The proportion of a faculty member’s job devoted to teaching actually is often reduced still further at schools considered to be “elite.” Faculty members at these elite schools typically teach fewer courses per year than faculty members at the merely “good” schools. Moreover, research appears to be the greater of the two equals in the tenure decision at many schools, particularly for those striving or considered to be elite.2
What does this say about the goals of North American law schools? At a minimum, this conceptualization of faculty member responsibilities implies that the production and dissemination of knowledge are viewed as goals at least equal with the goal of educating the next generation of lawyers. Service – typically defined broadly as including everything from faculty governance to service to academic organizations or to the profession -- is an
1 A recent symposium issue of the Journal of Contemporary Legal Issues contains several articles touching on this topic. See, Richard A. Matasar, Defining Our Responsibilities: Being an Academic Fiduciary, 17 J. Contemp. Legal Issues 67 (2008); Edward Rubin, Should Law Schools Support Faculty Research?, 17 J. Contemp. Legal Issues 139 (2008); Steven R. Smith, Gresham’s Law in Legal Education, 17 J. Contemp. Legal Issues 171 (2008). 2 For a critical take on this dynamic, see Matasar, supra note 1, passim.
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important but typically lesser obligation. The traditional allocation of duties for law school faculty members in Canada and the U.S. means that for each dollar of salary only 40 cents is devoted to teaching. Sixty cents of each governmental and student tuition dollar spent on faculty salaries is used to “cross-subsidize” research and service.3
Are these goals well-accepted by important stakeholders such as the groups funding law schools in North America? There is reason to be concerned about whether students and governments understand the multiple roles of faculty members. Even where understood, it is not clear that these important stakeholders appreciate the contribution law school faculty members make to the legal system and broader society.
Students typically express more interest in faculty members’ teaching effectiveness and in a law school’s ability to deliver a sufficiently broad and deep curriculum than in the research prowess of faculty. Students who serve as faculty research assistants benefit directly, financially and educationally, from faculty research. Yet the total number of students who benefit in this way is small as a percentage of the total number of students enrolled. For many students, faculty research – if thought of at all – is something esoteric which takes faculty member’s time and attention away from student needs.4
Similarly, it could be argued that provincial/state governments place little value on research and service in law schools. North American government funders typically focus on the number of students enrolled in programs, sometimes directly tying governmental funding to enrollment targets in various programs. To the extent that governments allocate funds specifically to support faculty research, the focus often appears to be on scientific or medical research, particularly research perceived to have direct public benefit, either though advances in medicine or the potential for commercialization. Thus there is little governmental funding for legal scholarship in the United States, particularly compared to the federal funding available for scientific and medical research.5 The situation in Canada is better, given the existence of the Social Science Humanities Research Council (SSHRC).6 Yet
3 For a detailed discussion of cross-subsidies, see Rubin, supra note 1, at 140-53. In some simply mathematical sense, eliminating faculty research would double the amount of time that faculty members could devote to teaching. See, e.g., id. at 142-43. This time could be used in different ways – to “intensify” the effort faculty members devote to their current teaching load, to increase the total number of course offered to students, or to make some other investment in teaching. 4 The view that much of the focus of faculty research reflects selfish interests rather than the needs of students is described in Matasar, supra note 1, at 72. This brief paper will not consider whether and how faculty research productivity may actually improve a law school’s reputation and, eventually, add to the prestige and value of the school’s degree in a way that benefits students. Dean Richard A. Matasar has been quite skeptical about the likely success of law school efforts to help students by working to improve a law school’s rankings in this manner. Matasar, supra note 1. But see Rubin, supra note 1, at 149 (“research output is closely connected to the law school’s prestige”). 5 The federal government funded more than $29 billion worth of research and colleges and universities in 2007. See U.S. Census Bureau, Table 770. Performance Sector of Research and Development (R&D) Expenditures: 2000 to 2007, available at http://www.census.gov/compendia/statab/tables/09s0770.pdf. 6 Social Sciences and Humanities Research Council of Canada, available at http://www.sshrc.ca/site/home- accueil-eng.aspx.
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SSHRC is the most poorly funded and often critiqued research granting entity, the poor and sometimes beleaguered sibling to the better funded science and health granting agencies.7
The governmental focus on education over research for law is mirrored in the accreditation schemes in the United States and Canada. Law school accreditation or admission rules in different jurisdictions often focus on education rather than research. The accreditation standards for law schools developed by the American Bar Association in the U.S. refer to faculty research and scholarship, but without the level of detail devoted to other components of the standards.8 Section 401 provides, for example, that faculty “shall possess a high degree of competence, as demonstrated by its education, experience in teaching or practice, teaching effectiveness, and scholarly research and writing.”9 There are no detailed “interpretations” or guidelines regarding this standard, which suggests that the standard has been little used in practice. Dean Steven R. Smith has argued that even this weak support for the research and service missions of law school faculty members is subject to challenge.10 If the ABA standards are modified to remove even these small hints of support for research and service then law schools in the U.S. could face market pressures to reduce faculty research and service over time.11
The current U.S. accreditation approach at least is consistent with the expectation that law school faculty members should engage in research and service in addition to their scholarly duties. Canada currently is grappling with whether and how to continue a system in which graduates of designated schools are considered eligible to apply for admission to the bar. A task force established by the Federation of Law Societies in Canada released a consultation paper and an interim report proposing a process through which law schools would be asked to certify that students had obtained “competencies” in certain selected topics.12 The current Canadian proposal does not include any institutional requirements beyond, perhaps, the number of credit hours required for graduation. The end result is a substantial risk that Canada will adopt a system of accreditation that in effect approves the graduates of any institution that certifies that it provides students with education in the designated competencies.
7 See, e.g., Elizabeth Church, Scholarships for business studies draw outrage, Globe and Mail [Canada], February 20, 2009, available at http://www.theglobeandmail.com/servlet/story/RTGAM.20090220.wscholarships20_GTA/BNStory/National/h ome. 8 Smith, supra note 1, at 202 (noting standards 401, 402, and 404). See also American Bar Association, Section of Legal Education and Admissions to the Bar, 2008-2009 Standards for Approval of Law Schools, available at http://www.abanet.org/legaled/standards/standards.html [hereinafter ABA Standards]. 9 ABA Standards, supra note 7, at §401. 10 Smith, supra note 1, at 202-209. 11 Id. 12 Federation of Law Societies of Canada, Task Force on the Canadian Common Law Degree, Consultation Paper (September 2008), available at http://www.flsc.ca/en/whatsnew/whatsnew.asp#national; Federation of Law Societies of Canada, Task Force on the Canadian Common Law Degree, Interim Report (March 2009) (report on file with author).
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It thus appears that the Canadian Federation will not establish any institutional requirements governing the quality of faculty or confirming the importance of an “academic” law school – that is, one whose faculty members engage in teaching, research and service. Dean Smith’s long term concern about the role of research in U.S. law schools may soon become a pressing reality for Canadian law schools if “teaching only” law schools are introduced in Canada. These law schools could easily compete for students by charging slightly lower tuition and still generate significant profits if, for example, faculty members are hired locally rather than on the national or international market, if teaching loads are doubled, and if the new law schools are unencumbered by the need to establish and maintain a comprehensive law library. Governments and students arguably might not choose to continue the current allocation of funds to academic law schools without additional information about how faculty scholarship and service benefit students, the profession, and the broader society.
So far these concerns are hypothetical. Government and student funds support a system in which an average faculty member spends most of his or her time on non-teaching activities. What explains the fact that these stakeholders continue to support and often to prefer law schools – particularly elite schools -- that devote a significant portion of their energy to research and service?13 Does this represent a form of acknowledgement that research-intensive law schools offer important benefits to students and the broader society? Perhaps so. Yet it is significant and slightly troubling that academic law schools in the United States and Canada have not developed and communicated a robust explanation of their important role in society. Why and how should the focus on research and service be sustained in the years ahead? The remainder of this paper focuses on an outline of justifications that I believe North American law schools should be prepared to explore and to better document if the vital contributions of law school faculty members to research and service are to be maintained.
1. The Interests of Students: Exploring the Relationship between Research and Teaching
It is common for research universities and individual faculty members to proclaim that research improves teaching and vice versa. Yet as noted in a recent article by Professor Benjamin Barton, there is either no correlation or only a slight positive correlation between research productivity and teaching effectiveness when teaching effectiveness is measured by student teaching evaluations.14 On one level, the lack of correlation is not particularly
13 This paper acknowledges but does not analyze the possibility that students benefit from the elite character of certain law schools rather than from the impact of research and service conducted at those institutions. See supra note 4. 14 Benjamin Barton, Is There a Correlation Between Law Professor Publication Counts, Law Review Citation Counts, and Teaching Evaluations? An Empirical Study, 5 J of Empirical Legal Studies 619 (2008). As Professor Barton notes, the “good news” for proponents of faculty research is that there was no negative correlation— that is, research-productive faculty members were not viewed as any less effective than their colleagues. Id.
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surprising given that teaching evaluations are not a direct measure of the substantive value of a course. Student teaching evaluations instead provide important information about the teacher’s effectiveness in conveying the subject matter, which might not be directly implicated by substantive expertise and research proficiency.
On another level, Professor Barton’s article should inspire faculty members to be less complacent about the link between research and teaching. Law faculty members should evaluate their own course content and teaching methodology to ensure that students are receiving tangible benefits from the faculty member’s involvement in research. On a “macro” level of the law school curriculum, Dean Edward Rubin has suggested a significant reform of legal education to offer students the benefits of a research-intensive experience in the third year of law school.15 Researchers interested in the relationship between research and teaching still have much work to do. New research projects might focus more directly on the relationship, if any, between faculty member research and the level of student knowledge, comprehension and ability to apply course materials in creative and innovative settings, for example.
2. The Role of Legal Research in Promoting Justice
The second challenge for law schools in North America is to engage in a more rigorous analysis of the benefits of legal scholarship. Legal scholarship takes many forms, of course. Legal scholars can develop new theoretical or conceptual approaches that are intended to be descriptive, predictive, normative, or some combination of each. “Traditional” legal scholarship often focuses on the development of the law in a particular substantive area through case analysis. Scholars may also be involved in the creation of casebooks and treatises focused on particular areas of law. An increasing number of scholars use interdisciplinary approaches such as law and economics or empirical approaches to studying, for example, the impact of law on behavior. Legal scholarship is disseminated in a variety of ways, such as through student-edited law reviews, peer- reviewed publications, SSRN downloads, books, law reform reports and draft legislation.
Critics of legal scholarship routinely point to the relatively small number of law review articles cited in judicial decisions as an indication that legal scholarship has little impact.16 Practitioners often characterize legal scholarship as “irrelevant.” This attitude can be conveyed to students, reinforcing student concerns that faculty research detracts from their preparation to enter the profession. Legal scholars need to address these concerns directly.
15 Rubin, supra note 1, at 164-68. 16 There are a number of studies of the sources cited in court opinions; law reviews and legal treatises typically have relatively low rates of citation. See, e.g., William H. Manz, Citations in Supreme Court Opinions and Briefs: A Comparative Study, 94 Law Libr. J. 267 (2002); and Mary Anne Bobinski, Comment, Citation Sources and the New York Court of Appeals , 34 Buff. L. Rev. 965 (1985).
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Legal scholarship has made a host of contributions in the development of common law ad legislation as well as in the broader social understanding of the role of the law in promoting human rights, economic development, and equality. Yet the wide range of foci and forms creates challenges for researchers interested in studying the impact of legal scholarship on the development of law and society.
One approach would address more explicitly the critique that academic scholarship is often different in focus and methodology from legal research in practice. Legal research in practice is directly driven by the needs of clients or at least informed by the interests of those clients. It is not at all clear that law schools could provide a public benefit from engaging in precisely the same research projects and methodologies that are already produced in the private market. Law schools arguably serve a valuable social role in permitting a broader range of research from different perspectives. Legal scholars could study the range and type of scholarship to demonstrate the way in which academic scholarship contributes to the development of theory, law, and social dialogue rather than focusing solely on the citations of legal scholarship in court decisions. Individual faculty members should consider whether and how their work has an impact on relevant audiences ranging from other scholars to policy makers and should be prepared to engage with students, members of the profession, and the public generally about the value of legal scholarship.
3. Service and Public Benefit
A smaller but still significant portion of a faculty member’s work duties involve “service.” There are several different types of service. Faculty governance within the law school or university is necessary from a managerial standpoint and clearly adds to the managerial strength and integrity of the law school and broader university. Faculty members are involved in service to the profession through, for example, leading continuing legal education classes, organizing conferences open to the profession, and serving on bar or other professional group committees or Task Forces. Finally, faculty members further the public interest by working with governmental or non-governmental organizations and law reform groups. A host of law school faculty members in both Canada and the United States have contributed to the development of law through these important law reform activities.
Faculty members also serve the public by participating in media inquiries about legal issue of public importance. Faculty service arguably directly benefits the public and indirectly benefits students by confirming the faculty as a source of knowledge about important legal issues.
Faculty service thus takes many forms and directly touches on the public interest. Having said this, there appears to be little if any research documenting the impact of faculty service in these areas. Faculty members and law schools should be prepared to address this lack of documentation.
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This brief paper has focused on a potential gap between the goals of most North American law schools and the expectations of state/provincial governments and students. This gap threatens to continuation of the North American system of allocating law faculty to teaching, research and service rather than focusing on teaching alone. This paper suggested that legal scholars interested in preserving and enhancing the current model of legal education should focus energy on demonstrating with greater particularity to these stakeholder groups the benefits of their work
191 The Role of Law Schools and Law School Leadership in a Changing World
192 The Role of Law Schools and Law School Leadership in a Changing World
The ‘Know Your Rights! Project Putting Community Service and Outreach in the Heart of the Law School and in the Heart of its Graduates
Fatou Kiné CAMARA, PhD Associate Law Professor Faculté des Sciences Juridiques et Politiques, Université Cheikh Anta Diop de Dakar Senegal
Know Your Rights! (KYR) is a collaborative project initiated in 2006 by the African Commission for Human and Peoples’ Rights, the West African Research Association and Center (WARA/WARC), and Brandeis University1. It seeks to disseminate information about human and peoples’ rights through the medium of African languages, with a focus on lingua francas and cross-border languages. The KYR target audience is the large sector of the African population that has not had sufficient access to formal schooling in order to learn about the various human rights charters and protocols created by the African Union through its official languages (English, French, Portuguese, and Arabic). This audience includes women, rural dwellers, and various marginalized groups.
The establishment of the Know Your Rights project was inspired by commissioners of the African Commission on Human and Peoples’ Rights (ACHPR), They pointed out that African populations that are illiterate in the official (and foreign) languages of their governments do not have access to the content of documents that describe their guaranteed rights. The project began with a two-day workshop, June 26 - 27, 2007, entitled “Know Your Rights,” which was organized in Dakar (SENEGAL) by the African Commission of Human and Peoples' Rights (ACHPR), the West African Research Center (WARC), and Brandeis University of Boston (USA). Linguists, adult literacy specialists, jurists and media outlets that operate exclusively in Senegalese languages were part of the team of experts brought together for the workshop. The workshop’s purpose was to discuss the best models for translating and adapting human rights materials for dissemination to local populations. Salamata SAWADOGO, then President of the African Commission of Human and Peoples' Rights (ACHPR), explained that: “The Know Your Rights project’s aim is to inform our African populations of the legal instruments securing their rights and the subsequent need to develop a culture of human rights in our countries.” Pr. Ousmane SENE, Director of WARC further stated that : “The project is based on the need for human rights to be translated into local languages in order to become relevant to the everyday lives of the public; enabling African populations to take ownership of human rights in the national languages they know best.”
As the only law professor present at that first meeting, it seemed at once to me that the Law Faculty of Cheikh Anta Diop University and its students ought to be involved in that project, because ultimately teaching about the law is our business. However, because Senegal has only one official language, French, law is taught in only that language, which is a language
1 Documents pertaining to the development of the project are available on the ALMA (African Language Materials Archive) website : http://alma.matrix.msu.edu/know-your-rights
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that is not understood by the majority of the population. Students who are taught law in French lack the necessary training to later efficiently share their knowledge with their non- French- speaking compatriots. The need to educate African populations about human rights in their own languages will be addressed in the first part of the paper. The second part will describe the procedure that was followed to make the law school part of the KYR project. Finally the paper will explore the expected results of the KYR project.
I. Rationale of the KYR Project: Addressing the Need to Publicize International Human Rights Instruments and to Educate African Populations about Human Rights in their Own Languages
The African Union’s legal instruments,2 which constitute the central documents that the KYR project aims to publicize, are currently available in English, French, Portuguese, and Arabic, the officials languages of the African Union. None of those languages is understood by the majority of the Senegalese people, least of all, women. According to reliable data, only 10% of the Senegalese population understands French3. A Canadian survey found that only 1% to 2% of Senegalese women understand French4. According to that same survey, French is the maternal language of no more than 0,2% of the population, whereas more than 80% of the population understands Wolof, the national lingua franca. Nonetheless, French is the only official language in Senegal, and consequently all legal material, all legal codes, and all court decisions are written and published in French. Ninety percent of the general population, and up to 99% of the female population, are thus barred from knowing the law of their own nation.
In terms of translation/adaptation of human rights texts for the purposes of informing, training and sensitizing of populations, a lot of work has already been done in national languages5,. However the results of these efforts are little known to the greater public. The main problem remains the dissemination, at the grassroots level, of the documents that have already been translated. There seems to be a lack of political will for standardizing and disseminating the contents of these documents. There is hence a need for civil society and for the law schools to fill that void.
II. Procedure: Organizing Community Dialogues with Law students under the Supervision of a Law Professor In 2008, with limited funding available from WARA and Brandeis University, a KYR team organized a series of “community dialogues” for the discussion of human rights issues and the “harvesting” of human rights terminology in national languages.
2 The primary goal of Know Your Rights! Is to make available in African languages the content of the five legal instruments of the African Commission 1. The African Charter on Human and Peoples’ Rights 2. The African Charter on the Rights and Welfare of the Child 3. The Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights 4. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 5. The OAU Convention Governing the Specific Aspects of Refugee Rights in Africa 3 Délégation Générale à la langue Française et aux Langues de France, Références 2006, p. 3. 4 http://www.tlfq.ulaval.ca/axl/afrique/senegal.htm (last visit, July 6, 2008), p. 5. 5 The Constitution of Senegal refers to local African languages as “national languages” (langues nationales).
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This community dialogue work began in Wolof in April and May 2008 in the region of Dakar, led by law professor Fatou Kiné Camara of Cheikh Anta Diop University (UCAD), in collaboration with linguistics professor Mamadou Cissé of UCAD, radio journalists Henri- Pierre Koubaka (West African Democracy Radio) and Oumy Cantome Sarr (Manoore FM, “The Voice of Women”), and the Regroupement des Etudiants du Troisième Cycle (RETC), an association of Masters and doctoral UCAD law students. KYR meetings have, to date, focused on various articles of the Protocol on the Rights of Women in Africa.
The Law School students served as the meetings’ leaders. They encouraged participants to discuss and debate various aspects of a human rights issue, with the double objective of 1) informing participants about the rights their governments have pledged to protect, and 2) hearing the local language terms they use to talk about them. In some cases, participants were also led to discuss the very notion of 'rights' as well as the relevance of particular rights guaranteed them in these legal instruments. This entailed going beyond informing people of the rights guaranteed them by their governments to actually engaging them in defining these rights.
Each dialogue was recorded so that the discussions could be subjected to later analysis. Terminology from community dialogues that can be useful in the formal translation of the legal instruments of the Commission will eventually be compiled into a database. These first dialogues also served as the basis of radio programs, which broadcasted portions of the community meetings.
The dialogues were purposefully prepared and led by law students with the following objectives: 1. To break down the language barrier in disseminating information about the content of the human rights’ conventions ratified by the State of Senegal. 2. To collect the local language terms the audience uses to talk about the issues relevant to the African Union’s Charters and Protocols. For that purpose, each dialogue is documented and then analyzed for relevant terminology as well as for information that can be used in the future design of dissemination materials. 3. To show law students – who are Senegal’s future lawyers, judges, legal experts – how to find the words and the ways to explain the black letter law that they have been taught in French to a non-French-speaking audience.
The law students worked under the supervision of a law professor and a linguistics professor to: - Prepare for the community dialogue with a clear understanding of the article of the AU convention that was to be discussed. - Lead the community dialogues. - Record the discussions and take notes. - Establish a draft lexicon of all the relevant Wolof terminology that emerged during the meeting.
The following challenges were encountered before and during the community dialogues by the law students and their supervisors:
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Expressing the legal content of the article being discussed in meaningful local language. Getting the audience to actually discuss rights that conflict with their religious beliefs (e.g., abortion is equal to infanticide) or local practices (polygamy, female genital mutilation) and thus need particular elaboration. Finding in local practices the equivalent of rights that participants find unfamiliar or confusing. Examples: - To express contraception and spacing of children in terms of rights is confusing, because traditionally it is solely a health issue under the name of “nef”, a Wolof word for “close pregnancies”, which was something to be avoided at all costs. - “Parity” (“Parité” the word used in the French version of article 9 of the AU Protocol) was also a confusing term. It was rejected when the audience perceived that it meant gender equality, but accepted it when it was translated into “equal number of men and women” in representative assemblies. At the same time some participants recalled the way that traditionally women’s opinions were taken into account in the decision making processes
III. Expected results: Bringing Law in African languages into the Law School’s Curriculum and Enhancing Law Students’ Involvement in Community Service The offer of optional courses on human rights and international human rights conventions in local languages in the law school curriculum is one of the expected results of the KYR project. Improving law students’ involvement in community service is the other positive result one can expect.
3. 1. Enriching the Law School’s curriculum The KYR project is an innovative project in the field of formal justice education and, at university level, an optional class of Law in National Languages is now being envisaged. Law in African Languages will thus become part of the law School curriculum. This specifically addresses the issue of the language of law: law students are not taught in the languages understood and spoken by the vast majority of the citizens of the country in which they will serve as lawyers, legal consultants and judges. This situation only exacerbates the problems in communication between lawyers, the justice system and ordinary citizens. The students of the Law in National Languages class will, moreover, have to actively participate in a mandatory number of community dialogues in urban as well as rural areas, thus building their interest and competence in community service.
3.2. Enhancing Law Students’ Involvement in Community Service Article 2 of the statutes of the RETC (Association of masters and doctoral law students of Cheikh Anta Diop University) states the purpose of the Association as follows: “The association is apolitical and secular.. Its purpose is to: - promote and develop research at the postgraduate level. - contribute to the academic production and the blossoming of talents at the University. - disseminate university research within the community. - Encourage authorities to improve conditions for research at the postgraduate level. - organize academic events.
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- supervise students.
By playing a central role in the community dialogues, the RETC fulfils its mission to disseminate the results of university research and to organize academic events. KYR Community dialogues do have a scientific purpose since one of their aims is to collect legal vocabulary in Senegalese national languages. At a later stage, once a course of Law in national languages is set up at the Cheikh Anta Diop law faculty, law graduates of the RETC will have the necessary experience as pioneers in this field to help supervise the students who will be taking this course. Moreover the law faculty authorities as well as the state’s authorities will be able to draw from the RETC experience to widen that experience to other universities, other faculties and other government institutions (i.e. the justice department, the administration, the courts of justice)
One documentary film has also been made as part of the KYR project. The filmmaker was Mariama Khan, a graduate of Brandeis University program in sustainable international development and a citizen of The Gambia ( a neighboring country to Senegal, that has many of the same language groups). The film, titled Sutura: What judges need to know about rape and justice in Senegal, is largely based on a community dialogue on the topic of rape. The dialogue was conducted in Wolof by the postgraduates law students of the RETC under the supervision of a women’s rights association, L'Association des Juristes Sénégalaises (Association of Senegalese women Jurists). This film won an award at the 2008 United Nations World Population Fund Agency's Panafrican Film Festival of films about Gender Violence. Since its release, Sutura has been shown to various audiences of men and women from different backgrounds and associations6, and the general consensus is that producing this documentary in Wolof made it particularly effective in informing viewers about Senegalese and international law on rape and allowing the voices of rape victims to be heard. Mariama Khan has filmed a recent KYR dialogue on divorce and human rights led by the RETC in partnership with AJS and the Konrad Adenauer Foundation. She is currently looking for funds to finish her film and the KYR team is also looking for funds to organize more community dialogues.
6 Here is the web link to the Brandeis write up of the gender justice conference that talks about Sutura: http://www.brandeis.edu/ethics/news/2008/2008.Dec.8.html
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198 The Role of Law Schools and Law School Leadership in a Changing World
Creating a Culture of Professional Responsibility and Community Service: A Leadership Role for Law Schools1
Bruce P. Elman Dean and Professor of Law University of Windsor Canada
INTRODUCTION
In 1927, then Professor, and later Supreme Court Justice, Felix Frankfurter wrote a letter to one Mr. Rosenwald: “In the last analysis, the law is what the lawyers are. And the law and the lawyers are what the law schools make them.”2 This statement represented a serious challenge to the legal academy of the time and, if anything, remains an equally grave challenge to our law schools in the 21st century. Clearly, Frankfurter envisioned a strong leadership role for law schools in ensuring that the profession was committed to ethical practice.
The discussion of law school leadership tends to focus on law school curricula, especially in the area of professional responsibility. Most often, the profession argues for a mandatory course in professional responsibility as a requirement for all students in all law schools.3 The underlying rationale for this argument is that such a course will, somehow, immunize all soon-to-be graduated lawyers against unethical conduct, sharp practice, and incivility just as newborns are immunized against polio, small pox, and diphtheria. Although I suspect that this is simply wishful thinking, we do not actually know whether or not the thesis is correct because we, in Canada and Ontario, have not engaged in properly designed studies to test its validity.
In fact, over the thirty plus years of my academic career, I believe that we have been wilfully neglectful of, if not deliberately hostile to, this area of scholarship. We, in the academy, have not been sufficiently supportive those individuals who have tried to carve out a specialty in research on the legal profession and legal ethics. Nor has the profession provided serious support or the necessary incentives for scholarly work on the profession and professional responsibility. This is in sharp contrast to law schools in the United States where, perhaps as a result of the Watergate scandal, there has been an explosion of such scholarship. There are, however, very encouraging signs in the increasing number of
1 The original version of this paper was presented at the Chief Justice of Ontario’s Advisory Committee on Professionalism, Eighth Colloquium on the Legal Profession: The Challenge of Leadership, London, Ontario, May 2007. A more expansive version of this paper is forthcoming in the Windsor Review of Legal and Social Issues. I would like to thank my research assistants, Danielle Asaad ’09 and Carla Hanneman ’10, for their assistance. Any errors are my own. 2 Letter from Felix Frankfurter, Professor, Harvard Law School, to Mr. Rosenwald (May 13, 1927) as quoted in H.T. Edwards, "The Growing Disjunction between Legal Education and the Legal Profession” (1992), 91 Michigan Law Review 34. 3 See, for example, the recent discussion papers and reports of the Federation of Law Societies of Canada and the Law Society of Upper Canada:
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Canadian academics beginning to devote at least some part of their research program to the legal profession and professional responsibility.
However, I do not want to focus on either curriculum reform or research and scholarship. I want to examine something less tangible -- setting a culture of professional responsibility in law schools. (It should be noted that I view a commitment to community service as being included in the term “professional responsibility”.) My point is simple: we can have as many courses, even mandatory ones, on ethics as the timetable and student interest permits, and we can foster research and scholarship in the law schools -- but this will all be for nought if we do not operate our institutions and individually conduct ourselves in a manner that clearly indicates to our students that we take professional responsibility and community service seriously.
SETTING THE EXPECTATIONS
Let me begin at the beginning. It always comes as a shock to me, but students (and their parents) actually read our promotional materials. It is important to set the tone on professionalism and community service at this pre-enrolment stage. A mission statement, which declares clearly that a commitment to professional responsibility is a core value of the institution, would, I believe, have an impact on prospective students.
It is always prudent, on these kinds of issues, to examine the state of one’s own house. Our Statement of Objectives at the University of Windsor Faculty of Law begins with the statement:
The Faculty of Law at the University of Windsor strives to serve society as a centre for the humanistic education of persons in law, for legal research, and for the provision of services which enhance the quality of life and access to justice...4
What follows is a lengthy series of goals which particularize this Statement of Objectives. One of the stated objectives, perhaps not positioned as prominently as it might be, speaks to the importance of professional responsibility and ethics. It reads as follows:
6. To create an academic and social environment conducive to learning and to the personal development of students, particularly women and those who are socially and economically disadvantaged, differently abled, late vocational, and from Aboriginal and various ethnic backgrounds, and in particular: a. To provide opportunities for the development of social consciousness and self-awareness by students, and to examine and develop ethical and social values in relation to personal and professional responsibility, and in particular, to instil in the students a sense of social responsibility in the practice of law and the need for the examination of social structures with a view to contributing to such
4 University of Windsor, Faculty of Law, Calendar 2006 – 2008 at 4.
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changes as may ensure social justice… [Emphasis Added]
One can glean from the objective stated above that we view issues of ethical lawyering as being intimately entwined with the pursuit of social justice or, as we state it, “access to justice”. Access to justice has been a guiding principle of the Law School since 1978. Fostering a commitment to access to justice, I would argue, also constitutes the promotion of ethical and responsible lawyering. Our Statement of Objectives includes a number of principles which touch upon our commitment to access to justice:
1. To study the nature and social function of legal institutions and to provide a general overview of the legal system in the larger social, economic and political context of society; … 3. To encourage and support, scholarly endeavour in access to justice …, to question fairness and the equality of opportunity to obtain legal services and to enjoy rights and freedoms, and to inquire into the nature and quality of the law and legal institutions; … 4. To enhance access to justice through a broad and progressive admissions policy which will focus upon the personal attributes of the individual applicant, which will permit the realization of the vocation of persons to serve the community; through educational programs which extend legal services and provide information about the law and the justice system to those for whom that would not otherwise be available, and through the inculcation of a desire to reform the law to better serve the community and to aid the oppressed and disadvantaged; 6c. To encourage students to contribute meaningfully to society and to participate creatively in the process of legal development and social change...5
Usually, the Dean meets the incoming class of law students on the first day. This provides a further opportunity to articulate the law school’s commitment to ethical lawyering and professional responsibility. I am sure every dean has a paragraph similar to the following in his or her opening day address:
We, on this Faculty, take ethical matters very seriously. In my opinion, the vast majority of lawyers are, contrary to urban mythology, absolutely scrupulous in their ethical conduct. This is also what we expect from you both as students and later as practicing lawyers: that you conduct yourselves in an absolutely scrupulous manner, both professionally and personally. I cannot emphasize this enough. This faculty views your three years here at this Law School as part of your ongoing obligation to refrain from unethical and unprofessional conduct and to uphold the highest ideals of the legal profession. [Emphasis Added]6
We are trying to convey a very clear message here: “You are now in law school and the professional and ethical obligations of members of the legal profession are, to the extent
5 Ibid. at 5. 6 See for example, Elman, “Address to the First Year Class 2006” at
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that it is possible, applicable to you. We expect you to behave ethically now as a student, and in the future when you are a practicing member of the profession.” At the same time, we want the students to understand that, as law students and lawyers, they not only have a duty to refrain from misconduct but also have a responsibility to engage in public and community service. This is emphasized at a number of points during Orientation but it begins with the Dean’s address:
The legal profession is a helping profession and a caring profession. I believe strongly that it is a privilege to be a member of the legal profession. About six years ago, the Canadian Lawyer Magazine ran an article loosely entitled “Ten Lawyers Who Make a Difference. In the end, the magazine actually highlighted 11 lawyers including a husband and wife team. To the credit of this Law School, of the 11 lawyers featured in the article, four were graduates of Windsor Law. The article lauded these individuals for being caring and helpful individuals, both in their professional as well as their volunteer lives. The truth is that Canadian Lawyer could have found 100 lawyers who meet these criteria; indeed in my opinion, they could have probably found 1000's. I personally know countless numbers of lawyers who serve on boards and executives of community organizations of all sorts in numbers out of all proportion to our numbers in society. They serve in lay leadership roles in churches and synagogues, hospitals and nursing homes, symphony orchestras and opera societies, theatre companies, libraries and art galleries, police commissions, sports teams, both amateur and professional, and a host of foundations and other charitable undertakings. I have always been profoundly proud to be a member of the legal profession.7
It goes without saying that there has to be “follow through” on these ideals. Once again, there are two sides to realizing on the rhetoric: first, the discipline process and, second, opportunities for public and community service. Every university has a code of student conduct or a discipline code to deal with academic offences, such as plagiarism and cheating, and non-academic offences, such as destruction of property, harassment, and so forth. In many instances, law schools have their own Discipline Policy. The purpose of having a separate policy is clear - it is designed to give effect to the professional elements of the law program and emphasize to the student that they are going to be held to standards similar to that of members of the legal profession, even while they are preparing educationally for a career in law.8
7 Supra note 9. 8 My colleague, David Tanovich, has forcefully argued in favour of a Code of Professional Responsibility for Law Students. See “Learning to Act Like a Lawyer: A Model Code of Professional Responsibility for Law Students”, Chief Justice of Ontario’s Advisory Committee on Professionalism: Eleventh Colloquium on the Legal Profession: Serving Communities, Windsor, October 2008.
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In summation, we believe that law schools have a primary leadership role in transmitting to students (i.e. our future lawyers) the view that they are now members of the legal profession and it is incumbent upon them to act with honesty and integrity, to refrain from misconduct, and to deal with others with respect and civility. We set the tone for this understanding of legal education through our promotional materials and our website, as well as through the application of our codes of discipline and in our communications with students, both individually and collectively, when necessary.
COMMUNITY AND PUBLIC SERVICE
As I indicated earlier, there is a further way in which law schools can lead and that is by encouraging in their students a culture of community and public service. This is often referred to as pro bono service, that is, service that is pro bono publico - for the public good. A great deal has been written about the obligation of lawyers and law students to engage in pro bono service. In the profession, the rationale for imposing pro bono obligations are essentially twofold: (1) there is a value to our society in ensuring that the unmet need for legal services is met; and (2) there is a benefit to the providers of the legal services, both individually and collectively, to engage in such “charitable” works.9 There are other benefits, for the lawyer and the law firm, that come from pro bono service including enhanced individual and firm reputation, morale, and job performance, as well as higher levels of retention and recruitment. And for the legal profession in general, there is a more positive public image.10 The vast majority of lawyers agree that pro bono service is desirable; they disagree more profoundly on whether pro bono service should be mandatory.11
The same rationales that support pro bono programs for the profession - servicing unmet need and engaging in charitable works - underpin public service programs in law schools. Similarly, the benefits for individual lawyers, law firms, and the legal profession are mirrored in the law school setting. Pro bono programs enhance reputation; assist in recruitment and retention of students, faculty, and staff; improve law school morale and student and faculty performance; and, generally, provide the law school and the university with a more positive image. There are other personal and professional, occupational, and educational development benefits as well. Public service programs help to bridge the gap between theory and practice, improve lawyering skills, provide networking opportunities with the bar, bench, and community, furnish mentoring and job shadowing opportunities, and so forth.12 A further benefit of public service programs in law schools is known as the “trickle up” effect. Simply put, law students who engage in public service in law school are more likely to undertake pro bono service once they are admitted to the profession. Rhode describes the “trickle up” affect: “By enlisting students early in their legal careers, these initiatives attempt to inspire an enduring commitment to public service. The hope is that, over time, a greater sense of moral obligation will "trickle up" to practitioners.”13 This
9 Deborah L. Rhode, Access to Justice (Oxford University Press: 2004) at 146. 10 Ibid. at 147. 11 This is a topic for another day. Professor Rhode, ibid.., discusses this matter at 148 - 153. In Ontario, we have opted for non-mandatory encouragement. See Rule 3.01 of the Rules of Professional Conduct and the accompanying Commentary. 12 For a fuller discussion of these points, see Rhode, ibid., at 156 - 160. 13 Deborah L. Rhode, "Cultures of Commitment: Pro Bono for Lawyers and Law Students” (1999), 67 Fordham
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motivated the American Bar Association to amend its standards of law school accreditation. Rule 302(b)(2) now provides: “A law school shall offer substantial opportunities for: student participation in pro bono activities.”14 These revised ABA standards also encourage schools to address the “obligations of faculty to the public, including participation in pro bono activities.”15 There is a continuing debate, however, over the usefulness of pro bono programs, both for the recipients of the services and the law students providing the services, and how to improve the service delivery and the educational opportunities. There is an even greater debate over whether law students should be required to engage in public service in order to graduate. Once again, these debates are for another day.
There is one simple fact: the vast majority of students come to law school because they want to help people and they demand the opportunities to do so. Consequently, over the past decade law schools have developed greater opportunities for public and community service. Each law school in Ontario operates at least one clinical program - the so called Student Legal Aid Service Society (SLASS) clinic - and a great many students provide legal services for the indigent by volunteering at these clinics.16 Some schools operate more than one clinic or service.17 Students also have the opportunity to engage in special interest working groups, internships, externships, and other programs that are engaged in social justice work. Some of these are domestic and others international in focus. Pro Bono Students Canada, which (I believe) has a “chapter” in each Canadian law school, matches community groups with students, who are willing and interested in assisting the groups, and then teams the students with lawyers, who agree to supervise the students’ work. This program has excellent potential to allow students opportunities to engage in public and community service.18 Finally, there are students who, individually or in an organized and supported group, simply take the initiative to do “good.” There are countless ways in which these students assist the community.19 It should be noted that even though I have drawn
Law Review 2415 at 2416. 14 See Recodification of Accreditation Standards, Standard 302 (1996). 15 Ibid. Standard 404(a) (5). 16 Our SLASS clinic, Community Legal Aid, offers services to students and qualified members of the public in the areas of provincial offences, minor criminal matters, and small claims litigation. 17 At Windsor, we operate two other community clinics. Legal Assistance Windsor deals with residential tenancy issues, benefits problems, and victims of crime cases. Legal Assistance Windsor, staffed by lawyers and law students and social workers and social work students, also engages in extensive community development work, supplying a tremendous benefit to the community but also providing students with exposure to the importance of community involvement and a commitment to pro bono work. The University of Windsor Mediation Services provides free, community based mediation services to members of the Windsor- Essex community. Students mediate conflicts from residential tenancies to small business to neighbourhood disputes. Mediation Services also provides conflict resolution training to a wide variety of student and community groups. Mediation Services partners with local not-for-profit organizations to provide site-specific conflict resolution services, including on-the-spot intakes and mediations at local agencies serving low-income clients. Once again, there is a benefit to the Community and the students through the activities of Mediations Services. 18 At the time this article was originally written, the Windsor student volunteers of Pro Bono Students Canada were assisting Alive!Canada, Citizens Advocacy, Hospice Windsor-Essex County, Community Living Essex County, Actor’s theatre of Windsor, MF-CFS Canada, and the Nishina-We-Aski Legal Clinic in Thunder Bay. 19 For example, at the time this article was originally written, students groups at Windsor had been involved in assisting numerous community organizations: Women and the Law Association produced “The Vagina Monologues” which benefited Hiatus House. They also supported the White Ribbon Campaign and assist Windsor Women Working with Immigrant Women. The Black Law Students Association organized a "Win a Date with a Law Student" event to benefit the Child Hope Foundation of Canada. External Outreach
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my examples from Windsor Law School programs and initiatives, every law school dean in Ontario and Canada can cite similar examples of his or her own. The bottom line is that Canadian law schools and their staffs and students are donating countless volunteer hours to their communities and, thereby, providing those communities with an inestimable social capital and public good. The law schools, the universities, and the legal profession ought to be very proud of the work done in this area. Nonetheless, there are still not enough opportunities to satisfy the demand. This is an important challenge for us in the law schools but it provides an opportunity for the members of the profession to support access to justice work by students.
CONCLUSION
Although Ontario’s law schools cannot guarantee a legal profession which places ethical lawyering at the heart of professional practice, they have an important leadership role to play in instilling a sense of ethical lawyering in their students who, ultimately, will become their graduates and the members of the practicing bar. Professor Frankfurter’s statement that “the law and the lawyers are what the law schools make them” has a continuing validity in our own time. Law schools, led by their deans, have a responsibility to establish an environment where high value is placed upon ethical conduct in the educational enterprise. As I noted earlier, academic lawyers must be as committed to ethical practice as are members of the practicing bar. This means declaring that the institution is committed to ethical lawyering; speaking openly and often about ethical issues; dealing with students, both in the conduct of classes, in the use of library resources, as well as outside of class, in a respectful and civil manner; treating staff and colleagues with respect and dignity; insisting upon ethical treatment of clients in law school clinics; producing scholarship which combines the best of theory, policy, and practice; committing oneself and one’s institution to the principle of access to justice; and working on behalf of the public interest.
Committee of the Students’ Law Society organized a Charity Fashion Show to assist Easter Seals and also supports Benson Public School. The Social Committee of the Students’ Law Society supported the Journalists for Human Rights Law Fellowship through their St. Patrick’s Day party. The Windsor Italian Law Association (WILA) donated all proceeds from a soccer tournament to the Italian Canadian Handicapble Association (ICHA). The Court Jesters’ Talent Show benefited the Canadian Cancer Society. Ambulance Chasers benefited Family Respite Services of Windsor Essex.
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The third strand of the law school’s mission: capacity building, community service and outreach
Simon Evans, Deputy Dean Melbourne Law School Australia
Introduction The idea that law schools in Australia have responsibilities other than teaching and research is not new. Nor is it particularly controversial. Here, third strand activities are commonly identified as ‘community service’ or more recently as ‘community engagement’. The Council of Australian Law Deans’ Draft Standards (adopted in principle in 2008) require law schools to define their mission to ‘encompass[] teaching, research and community engagement’; the mission must also ‘encompass[] a commitment to the rule of law, and the promotion of the highest standards of ethical conduct and professional responsibility’, potentially a commitment that influences more than the law school’s teaching and research mission. The Standards do not define ‘community engagement’, however, or set any standards for it.1 This leaves individual Law Schools a welcome flexibility in defining their own community engagement mission. This paper sketches some of the influences that might shape these missions and some of the challenges in implementing them.
Why engage the community? A number of factors might influence the recognition of community engagement as part of the mission of the law school. They include: • Institutional imperatives • Ethical imperatives • Practical imperatives
Institutional imperatives Law schools are often (and, in Australia today, are all) embedded in larger universities and subject to the imperatives of the institution as a whole. At the University of Melbourne, ‘community engagement’ is a clear institutional imperative, albeit under a different name. The University conceptualises third strand activities as ‘knowledge transfer’ which is ‘an equal priorit[y] for the University’ with research and teaching. Knowledge transfer, research and teaching together form a ‘triple helix’: ‘a tightly-wrapped spiral of distinct but related activities that together define the institution’s character’. Knowledge transfer is now defined as
‘the two-way flow and uptake of ideas between the University of Melbourne and the broader community. It … : 1. Creates intellectual capital in ways that mutually benefit the University and its external partners. 2. Is linked to the University’s teaching and research activities.
1 The Standards generally avoid setting outcome or achievement measures and focus on inputs.
3. Responds to global, social, economic, environmental and cultural issues.’ This definition is capable of accommodating the wide range of community engagement activities in which Australian law schools commonly engage: for example, running clinics and internship programmes; contributing to public discourse through public lectures, op-eds and blogging; advising governments and non-profit organisations on legal policy; contributing to the formation of legal policy through submissions and advice. The definition does place greater emphasis, however, on the two-way flow of ideas and mutually beneficial intellectual capital than academics might perceive if they still conceptualise their third strand activities as ‘community service’ rather than as ‘community engagement’.2
Ethical imperatives The ethical imperatives to engage in third strand activities are not always distinct from the institutional imperatives. The university can (sometimes at least) be motivated by ethical imperatives that resonate with the law school’s own ethical imperatives. In Melbourne’s case, the University’s ethical vision for knowledge transfer derives from its status as a ‘public spirited institution’:
‘To be effective, knowledge transfer activities should both shape and shadow the University’s research and teaching priorities, and be informed by active social and economic engagement. As a public-spirited university, Melbourne will serve local and international communities best by selective engagement, where it has distinctive contributions to make, and when the benefits are compelling.’
It would be particularly interesting (but beyond the scope of this short paper) to unpick two sets of distinctions: first, the distinction between the ethical imperatives that support the community service model of third strand activities and those that support the community engagement model; and secondly, the distinction between the ethical imperatives that support law school third strand activities and those that support the pro bono obligation on the legal profession. (The academic and professional obligations are plainly not coterminous. In a tradition that emphasizes the dual functions of legal education as academic and professional preparation, legal academics and practicing lawyers have overlapping but different functions in the legal system and overlapping but different expertise.)
Practical imperatives Whatever the ethical imperatives are, they are not always distinct from practical imperatives. A public-spirited institution may be public-spirited because such a stance enhances its public standing and therefore the likelihood of ongoing public funding; or because students (who must be attracted and retained) have ethical or practical reasons for wanting to engage in third strand activities. The legal academic blogger contributes not only to public intellectual discourse but potentially also to their own academic profile and reputation and that of their school.
How to engage the community?
2 The actual language of ‘knowledge transfer’ rather undermines the commitment to two-way exchange. The decision on how best to engage the community is also influenced by institutional, ethical and practical imperatives. In Australia, funding for research projects that involve external end-user partners (Australian Research Council Linkage Grants) provides an incentive for engagement with the end-user community (including government, private and non-profit sector partners). Student demand, the availability of physical infrastructure, existing staff expertise and ethical judgements about priorities may all influence the decision whether to run a student legal clinic or instead to support student internships. The institutional, ethical and practical imperatives lead to challenges in prioritising, individualising and assessing a law school’s community engagement.
Prioritising At Melbourne, a University taxonomy lists (without prioritising) eight purposes of knowledge transfer activities:
1. To foster partnerships to advance research 2. To foster partnerships that enhance teaching and learning 3. To enhance students’ readiness for professional life 4. To raise aspirations for tertiary study 5. To produce cultural engagements 6. To develop the standing and practices of the profession 7. To develop better policy and governance 8. To commercialise our intellectual capital 9. To attract additional funding, e.g., Sponsorships, donation & benefaction … 10. To foster intellectual discourse and knowledge dissemination 11. To meet our responsibility for the greater public good 12. To improve our reputation and public standing
To put it charitably, the purposes reflect a complex and overlapping mix of ethical and practical imperatives. The taxonomy does little to assist in reconciling those imperatives. Of course, a law school could eschew planning and prioritizing and accept whatever orderly (or disorderly) pattern of engagement emerged. However, as the CALD Standards recognise, there is value in identifying a community engagement mission – if only to ensure that resources are deployed most effectively.
Individualising Missions are generally defined at the institutional level but realised by the coordinated activities of individuals. Requiring a community engagement mission implicitly brings third strand activities into the domain of activities that are managed and measured. However, individual participation in community engagement is unlikely to be sustained by institutional diktat or by crude attempts to embed community engagement in performance expectations for staff. Rather, the law school collegium should have the opportunity (through its committees and consultation processes) to help shape its own engagement mission and priorities, with the assistance of a leadership that can communicate the institutional and practical imperatives.
Community service is a familiar strand in law school tenure and promotion criteria, usually requiring a threshold standard be met to support an application premised on excellence in research and/or teaching. More recently, some universities have moved to holistic assessment of applications, requiring applicants to apportion their claim between four strands (research, teaching, institutional service and community engagements).3 This provides a one context for individualising an institutional commitment to community engagement. However, whatever the power of self-interest, it provides a collateral (and often remote) motivation for community engagement. It does not arise out of and speak to community engagement activities themselves. Again, the individual members of the collegiums must be involved with law school leadership in shaping the institutional mission and how it is individualised.
Measuring The managerialist urge to value only what can be measured (and to measure what one wants to value) extends to community engagement. For some kinds of community engagement, metrics are not hard to find: dollar value of research partnerships; numbers of cultural performances held; dollar value of commercial exploitation of research. Metrics can be conceived for some of the kinds of community engagement that law schools engage in: numbers of op-eds published; numbers of parliamentary submissions; numbers of students in internships with public-spirited organisations; numbers of clients assisted by a legal clinic. But these metrics are largely incommensurable between categories. They provide a rough mechanism for comparison with other institutions but are insensitive to different institutional priorities. They provide a mechanism for longitudinal tracking but likely lead to expectations of growth in volume rather than in the more elusive quality or impact. In truth, they are as problematic as the journal ranking, citation and impact measures that plague research in the sciences and that law schools have had only limited success in fighting off. If we are to measure third strand activities, particularly of the kind that law schools are apt to engage in, there is no escape from the challenge of developing feasible and robust qualitative measures.
3 Maximum weightings for service and community engagement ensure that the primary commitment to research and teaching is not undermined. The Role of Law Schools and Law School Leadership in a Changing World
Purposes and Objectives of Law Schools Beyond Educating Students (Research, Capacity Building, Community Service and Outreach)
Christine Haight Farley Professor and Associate Dean for Faculty and Academic Affairs American University Washington College of Law United States
Beyond their primary goal of educating students,1 the purposes and objectives of law schools include the following:
· Promoting and disseminating faculty research and scholarship;
· Promoting a vibrant intellectual culture through academic programs;
· Breaking down barriers and building relationships, internally and externally, at home and abroad; and
· Making public service and pro bono activities a prominent part of law students’ and lawyers’ lives.
This is not meant to be an exhaustive list. Rather it is meant to emphasize the major purposes of a law school in the twenty-first century. Ideally, law schools will have the opportunity to articulate and reflect on these purposes and objectives in their mission statements, as well as in their annual goal statements. Below I set out more fully what these objectives include.
1) Promoting and Disseminating Faculty Research and Scholarship
Law school faculties should generate new knowledge beneficial to society and provide the intellectual and ethical leadership to shape emerging world views. Faculty should forge new scholarly paths and influence the field of law through their research and professional contributions. Related to its core mission of educating students, law school faculties should epitomize the scholar-teacher ideal by blending scholarship, teaching and service into an inspiring whole.
In addition to developing students into professionals, law schools have an obligation to develop and mentor their junior faculty, including exposing them to the values of the institution. Law schools should strive to provide additional opportunities to junior faculty participate in legal and interdisciplinary communities relevant to their research.
1I have not included important objectives in this essay that closely relate to educating students such as developing thoughtful, responsible professionals.
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Law schools should facilitate the external funding of faculty research through grants, but should also provide the support necessary for faculty to receive the exposure and external recognition that their scholarship deserves.
In the United States, as in many other jurisdictions, law schools provide the main vehicles for scholarly publication through student edited law journals. Today, these school-sponsored legal journals account for approximately 400 of the law related journals that publish scholarly articles in the United States. My own law school supports twelve legal publications.
2) Promoting a Vibrant Intellectual Culture Through Academic Programs
One of the fundamental purposes of a law school is to engage in the great ideas and issues of our time. Through its research, centers and institutes a law school should participate in national and international dialogues on important issues. Conferences, symposia and colloquia are not just opportunities to advance faculty scholarship, but are opportunities to harness the intellectual leadership and dedication of law faculty to address the key issues of our time.
At my own school, we have a tradition of offering numerous diverse conferences and lectures during academic year that engage the community, the nation and the world. To give you a sense our commitment to this endeavor I will report that last year our conferences gathered together more than 8,000 lawyers, students, judges, scholars and other professionals from around the nation and the world to attend our approximately 100 conferences. These events involved almost 900 speakers who, together with attendees, represented over 600 national and international organizations, 120 law firms, 130 U.S. and international law schools and universities, and 20 embassies. The programs addressed an array of topics including financial regulation, the prohibition of torture, commercial arbitration, human rights, international trade, intellectual property, the environment, health care reform, military justice, Indian law, asylum and refugee law, access to medicine, antitrust law, disability law and genocide, among others. Many events were webcast and covered by the media, with related materials widely distributed, thereby expanding even further the outreach and access to important information. A number of events are cosponsored with national and international institutions and organizations.
3) Breaking down Barriers and Building Relationships, Internally and Externally, at Home and Abroad
One aspect of breaking down barriers, of course, is addressing the barrier to entry into the profession. Inclusiveness and diversity should be the hallmark of a law school. Law schools should reflect and value diversity as an essential educational tool. The academic and organizational strength of a law school is enhanced by its inclusiveness and respect for the unique identity of individuals reflected in their cultural traditions, beliefs and viewpoints. Law schools should embrace diversity in its broadest sense, including diversity of race, ethnicity, gender, sexual orientation, age, religion, nationality, disability, socioeconomic standing, and intellectual viewpoint.
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Another barrier is the one that often exists between the ivory tower and the rest of the world. Law schools should strive to bring the world to the law school and the law school to the world. Academic life and research excellence can be enriched in profound ways by worldwide connections. National and international programs, partnerships and relationships enable law schools to have national influence and global reach.
For instance, at my law school, we have a program that promotes constitutional literacy by sending third year law students into disadvantaged public high schools in Washington, D.C. to teach students about the Constitution through cases that involve students’ rights.
Engaging alumni and the bar and bench in the life of the law school is an important objective as well. Many schools including my own have introduced a jurist in residence program that allows a sitting judge to become fully integrated into the life of the law school for a couple of weeks during the semester.
Law schools provide opportunities and benefits to the entire university, should they be in that setting, and to other academic institutions around the globe. Law schools should participate in interdisciplinary inquiry transcending traditional boundaries among academic disciplines and between the law school and other schools within the university. Law schools can benefit from outreaches, engagements and partnerships with institutions on all continents.
4) Making Public Service and Pro Bono Activities a Prominent Part of Law Students’ and Lawyers’ Lives
Law schools should actively encourage a commitment to public service and social justice. Many law students enroll in law school because they are drawn to public service. A law degree can be a powerful tool for change, and students should be reminded of this fact. Law schools, like other academic institutions, serve as incubators of ideas, but they can also provide a space to turn ideas into action and action into service. Law schools offer innumerable opportunities for students and faculty to connect their study and research to contemporary issues of public affairs writ large. Law schools should act on their values through political and social engagement. Law schools can provide public service opportunities for students, faculty and staff to participate in. Moreover, law schools can act as a model for others in their steadfast sense of ethics and a vigorous commitment to social responsibility.
Law schools typically carry out these responsibilities through in-house legal clinics, pro-bono summer scholarships, loan forgiveness for graduates who are employed in public interest work, pro bono pledge programs as well as other academic programs on topics related to public interest law.
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210 The Role of Law Schools and Law School Leadership in a Changing World
Please refer to Page 111 for Dean Alejandro Gomez and Professor Mónica Pinto’s paper entitled “A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires)
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The Role of Law Schools in Research Development: The Asian Experience
Professor Kamal Halili Hassan Universiti Kebangsaan Malaysia (UKM) Malaysia
The Role of Law Schools
The principal role of law schools over the world has always been on imparting legal knowledge to their students. Imparting knowledge and making students understand the basic theory of law has always been the paramount goal and basic undertaking in the academic curriculum. This traditional goal and mission however need to be re-looked at as schools in other disciplines have extended their roles towards research and development. For example in science, health and engineering disciplines, research and development have taken centre stage in their academic activities. I strongly opine that in order for a law school to develop its standing nationally and internationally, it needs to promote and activate its research activities. This is because research activities culminate in sound publication of articles in reputable journals and will consequently raise the standing of the academician and his or her law schools. Nowadays, academicians of other disciplines have been actively publishing their articles in international journals, for example those that are linked to SCOPUS and ISI, which have pre-determined impact factors. Asian law schools in particular are not moving towards that as we are seem to be contented to publish articles in national or internal journals. Although I am commencing this article with a somber note, nevertheless it needs be mentioned here that research activities have already been carried out by certain institutions in Asia. Law schools for example have quietly undertaken it. However, research that have been carried out by law schools seems to be kept in the schools’ own libraries or shelves and have not been disseminated to others unless they were published in journals or other forms of publications.
Legal Research by Asian Organizations
A good collection of research work has been found in a data base created by an organization in Japan. Research of Asian legal system is important as law has great effect on the society and trade. The proceedings of the Roundtable Meeting Law, Development and Socio- Economic Changes in Asia II organized by the Institute of Developing Economies, Japan External Trade Organization (IDE-JETRO) in Japan (2002) had concluded that “the evolution of the market-oriented economy and the increase in cross-border transactions have brought an urgent need for research and comparisons of judicial systems and the role of law in the development of Asian countries”. To that end, there was research carried out by various academicians of Asian countries on various topics mainly on the legal systems of Asian countries. A data base was created that contained various input on legal issues of Asian countries and this can be found in its “Asian Law Series” section. It is indeed a commendable effort undertaken by IDE-JETRO and it has contributed immensely to the enrichment of legal literature on Asian law. However this effort was not initiated by law schools, conversely by a
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trade organization. There could be other data bases which I have not been able to find them.
A similar effort is currently attempted by ASLI, an organization consisted of law schools in Asia based in Singapore. (However, law schools outside Asia are allowed to join as associate members). Although its main activity has been the organizing of law conferences, ASLI has already embarked on projects that have research value. For example, a good journal titled “Asian Journal of Comparative Law” has been published which contained sound articles on various topics of Asian law. Its first volume was published in 2006. In the same vein, ASLI has created a fellow program based in the National University of Singapore (NUS). Full time academic staff of its member institutions is entitled to apply for an ASLI Visiting Fellowship at NUS. In its advertisement calling for application, it is stated that: “the duration of the Fellowship is one month and while at NUS, the Fellows are expected to conduct research on legal issues of interest to their respective countries and to Asia in general. The Fellow's research work is expected to be at a reasonably advanced stage by the time of the Fellowship in order to fully benefit from the time spent at NUS. Each Fellow is also expected to present a seminar during the visit and contribute a written work to the Working Paper Series”. It is hoped that a research tradition and eventually a meaningful output will be created from this program.
Research Funding
One of the compelling issues that has been raised pertaining to legal research is funding. Although the amount of funding required for legal research is comparatively small, yet the availability of such funding is necessary for the collection of better data and analysis. Undoubtedly, there have been instances where good and sound articles produced without the support of research funding, but in most cases reputable writing arisen from some forms of funding. Funding is required to cover expenses such as to conduct interviews, to liaise with experts, travelling, presenting papers (that can later be produced as good articles) at conferences and other miscellaneous. There are several sources of funding made available by governments, universities, industries or international bodies. International bodies such as Sumitomo from Japan have been supporting researchers from the South East Asian countries to conduct research and several researchers have been given grant albeit in a small sum. So too is the Nippon Foundation Fellowships for Asian Public Intellectuals (API Fellowships) which was launched in 2000 and located at the Institute of International and Malaysian Studies (IKMAS), Universiti Kebangsaan Malaysia. IKMAS is one of the institutions in five Asian countries - Indonesia, Japan, Malaysia, the Philippines and Thailand. The API Fellowships program will enable public intellectuals in Asia to pursue intellectual, cultural and professional projects in other Asian country or countries under/along one of the predetermined themes. Themes for the Fellowships are: Changing Identities and their Social, Historical and Cultural Contexts; Reflection on the Human Condition and the Search for Social Justice; and Globalization, Structures, Processes, and Alternatives. The themes are
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couched in broad terms, thus they encourage all researchers from the social science disciplines including law to apply for the grant. The Fellows will be required to propose and carry out research projects in a participating country or countries other than their native country and/or country of residence. So far Indonesian researchers have carried out research relating to law utilizing this grant. Since the research grants of these two institutions are open to all social science researchers they are indeed competitive to obtain. It is proposed that a special research grant especially for law preferably organized by ASLI at NUS be created and rigorously activated.
Research Collaboration
A good research can be carried out and achieved by way of collaboration between faculties and centers. Research collaboration will give rise to a better medium for exchange of knowledge and experience. Undoubtedly, one faculty or centre may be good in one particular area of law and thus it could share the knowledge and resources with its research partner. Particularly, a research based on comparative method will certainly require expertise from more than one institution especially if the research involves comparison between different countries’ legal system. Even a study that focuses on a regional basis for example ASEAN would require sharing of knowledge and resources from ASEAN countries. It is very unlikely that Malaysian researchers would be well verse in for example Vietnamese law and vice versa. It is proposed that more research on comparative law of a particular area be carried out by law schools through out Asia which by nature have different and distinct legal systems. To that end, law schools in Asia may enter into research collaborations, by signing MOU, between them.
Research and Law Curriculum
A law curriculum in a law school actually reflects the vision and mission of its University and to a certain extent the country legal system and profession. For example in Malaysia, its law schools’ curriculum mostly contains courses that are both theoretical and applied. Courses range from Malaysian law, Common law and Islamic law. Does research have a place in the law schools’ curriculum? At the undergraduate level, law schools in Malaysia for example do not offer a course on research or better known as Project Paper which was at one time offered by University Malaya and Universiti Kebangsaan Malaysia. However, at the postgraduate level, most law schools through out Asia offer a Master program by thesis and a Phd by full thesis. Undoubtedly, a good collection of research work has been collated at various law schools in Asia from postgraduate students’ thesis and dissertations on various topics of law. However, it is unknown that how many research works from these thesis and dissertation has culminated into articles published in good journals or even books. I believe some Phd thesis has seen the light of the day in the form of books.
Unlike in the Sciences, the relationship between research students and their supervisors in law study at the postgraduate level seems not to be on a basis of a research work initiated
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or led by his or her supervisor. In other words, the supervisor acts as a mere supervisor and not directly linked or involved with the students’ work or project. It is very uncommon for a law student and his or her supervisor co-write and co-presents a paper at conferences or even co-author an article for publication in journals. It is also uncommon that a Master or Phd work by a law student is funded under a grant obtained by his or her supervisor.
Conclusion
The role of law schools needs to be expanded to include rigorous research activities and developments at both the undergraduate and postgraduate levels. Although such activities have been carried out in a relatively small scale by law schools, it is proposed that more effort should be doubled up especially in the areas which are considered as knowledge frontier. Legal tradition should not be maintained just for the sake of it. Law schools should be the leader in research development for the benefit of the Government and society at large.
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Academic Legal Research and Academic Research Capacity Enhancement
Dr Terry Hutchinson∗ Senior Lecturer, Faculty of Law, Queensland University of Technology Australia
1. Introduction One of the main objectives of law schools beyond educating students is to produce viable legal research. The comments in this paper are basically confined to the Australian context, and to examine this topic effectively, it is necessary to briefly review the current tertiary research agenda in Australia. This paper argues that there is a need for recognition and support for an expanded legal research framework along with additional research training for legal academics. There also needs to be more effective methods of measuring and recognising quality in legal research. This method needs to be one that can engender respect in an interdisciplinary context.
2. The Australian Legal Research Context In 2005, the Australian Commonwealth Department of Education, Science and Training released the issues paper Research Quality Framework: Assessing the quality and impact of 1 research in Australia (RQF). The paper raised two main points - how the quality and impact of research should be recognized and measured, and who should assess the quality and 2 impact of research in Australia. The change of government that occurred in the Australian federal election in November 2007 put an end to this project. The Innovation, Industry, Science and Research Minister Kim Carr announced a new system – the Excellence for 3 Research in Australia (ERA) scheme.
Subsequently the tertiary education sector has witnessed the release of the Bradley 4 Report, and in December 2008, the House of Representatives Standing Committee on Industry, Science and Innovation tabled its report on the Inquiry into research training and 5 research workforce issues in Australian Universities: Building Australia's Research Capacity. Recommendations from this Report included increased funding for research and training. Recommendation 11 for example states ‘The Committee recommends that the Australian Government increase the funding pool for Australian Research Council and National Health and Medical Research Council grants to enable a minimum success rate for applicants of 40
∗ BA, LLB (UQ), DipLib (UNSW), MLP (QUT), PhD (Griffith); Senior Lecturer, Faculty of Law, Queensland University of Technology. 1 Department of Education Science and Training, Research Quality Framework: Assessing the quality and impact of research in Australia (2005) 2 Ibid. 3 Andrew Brennan and Jeff Malpas, ‘Researchers drowning in sea of paper’ The Australian (Sydney), 16 April 2008, 25. 4 Department of Education, Employment and Workplace Relations, Review of Australian Higher Education
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per cent’, and Recommendation 2 states ‘The Committee recommends that the Australian Government increase funding for research and development by raising incrementally the Gross Expenditure on Research and Development as a percentage of Gross Domestic Product over a ten year period until it equals the Organisation for Economic Cooperation 6 and Development average’. In addition, Dr Terry Cutler chaired a Review of the National 7 Innovation System. In April 2009, Universities Australia released a study backing the Bradley Report recommendations.8 The Government is still considering the recommendations of these various reports. In relation to the Cutler Review and the Bradley Review of Higher Education, the Government has stated that it ‘intends to take a holistic approach and will consider the recommendations of these reviews together and provide co- 9 ordinate responses where appropriate’. And of course a complete response to both of these reviews will have to be made in the budget context. Much has changed in the period since the 2007 election!
The underlying purpose of processes such as the ERA is ‘to develop the basis for an improved assessment of the quality and impact of publicly funded research and an effective 10 process to achieve this’. If legal researchers cannot establish quality and impact factors as successfully as those from other disciplines, then any scarce public funds made available as a result of these various government reports, are less likely to be directed towards their 11 projects. Without such funding, academic legal research will not flourish. Responses to an Australasian Law Teachers Association (ALTA) survey of its 1000 legal academic members in 2007 demonstrated that 58.4% of the 221 respondents were very concerned with the then RQF and were looking for ALTA to undertake a policy role in regard to these 12 developments. Funding of research and the effects of the ERA for the discipline of law are worrying issues for Australian legal academics.
3. Need for an Expanded Legal Research Framework and Research Methodologies Training
These developments, the impetus towards competitive research grants and an environment directed towards ensuring research quality, along with a renewed interest in research training, have prompted a number of questions which directly affect law faculty funding, legal scholarship and legal research training including: - What is the nature and meaning of ‘legal research’? 13 - What is ‘different’ about how lawyers research?
6
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The Council of Australian Law Deans (CALD) in their Submission in Response to the Research Quality Framework Issues Paper tried to address some of the basic definitional issues raised 14 in the earlier research reports such as the Pearce Report, and still considered fundamental to the main arguments. They stipulated that:
‘The breadth of the idea of fundamental legal research illustrates the point about overlapping categories. Legal research today may be thought to be considerably broader than the tripartite classification of the Pearce Report, as it embraces empirical research (resonating with the social sciences), historical research (resonating with the humanities), comparative research (permeating all categories), research into the institutions and processes of the law, and interdisciplinary research (especially, though by no means exclusively, research into law and society). The Pearce Report did not really capture these extended elements of legal research, yet in some ways they are not so much new categories as new or newly-emphasised perspectives or methodologies. They highlight law as an intellectual endeavour rather than as a professional pursuit, though the latter is undoubtedly enriched by 15 the former.’
Thus the accepted methodology used by lawyer researchers in Australia has been doctrinal research. There is a growing movement to expand this methodological base. This is not a purely Australian phenomenon. Shanahan’s 2006 survey of Canadian academics demonstrates that interdisciplinary research in that country has increased in the past 20 16 years, but legal academics are struggling with undertaking empirical methodologies. The issue is also being addressed in the United Kingdom for example through the Nuffield 17 Inquiry. The growing empirical law movement in the United States is progressing 18 interdisciplinary study of the legal system. This issue needs to be addressed within legal education in order to enhance the research skills of academics in Australian law schools. A survey of postgraduate students who were enrolled in a designated research unit over the period 1993-2008 at Queensland University of Technology Faculty of Law have indicated that apart from an update in electronic research skills, they 19 require further training in social science and other empirical research methodologies. This is a gap in our academic research training that given the government push to external competitive grants and funding based to some extent on quality measures needs to be addressed.
14 Dennis Pearce, Enid Campbell and Don Harding (‘Pearce Committee’), Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (1987) 307–8. 15 Council of Australian Law Deans, Research Quality Framework (RQF): Responses to the Issue Paper (2005), 5. 16 T. Shanahan ‘Legal Scholarship in Ontario's English-Speaking Common Law Schools’ (2006) 21 (2) Canadian Journal of Law and Society 25 at 36. 17 H. Genn, M. Partington & S. Wheeler, Law in the Real World: Improving our Understanding of How Law Works: The Nuffield Inquiry on Empirical Legal Research, November 2006, 39
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4. More Effective Measurements of Quantity and Quality of Legal Research
The Excellence in Research for Australia (ERA) initiative is still in its development phase, though Law is in one of the two Clusters being examined as part of a pilot project in 2009. The ERA is evaluating research according to a four-digit FoR code within each institution. The staff census date for the pilot is 31 March 2008 and the research outputs evaluated are those from the six years 1 January 2002-31 December 2007. The outcomes of the process will ultimately affect personal rewards, law school and institutional reputation and 20 funding. What are the risk factors for Australian legal academics in this process? Australian legal research is not covered within any of the established published citation indexes. The Australian Research Council has provided an infrastructure grant to AustLII in order for them to develop ‘an automated citator for Australian law journal articles’ but this will take time to 21 develop and is by and large limited to Australian sources. The journals in which peer reviewed articles are published is important to the rating process. The ERA has adopted a journal ranking for law based around the US Washington and Lee list. This gives prominence to US rather than the Australian research sources where most Australian legal academics publish. What about the citation of legal academic work in caselaw? Will the AustLII Australian Legal Scholarship Library also cover this? In addition, legal academics publish books and for the most part this output is not highly credited within the quality process, especially if the books are tagged as texts or subsequent editions. In addition, the ERA 22 makes HDR student loads and completions a measure of research activity and intensity. Australian law schools have traditionally not had a strong HDR tradition though this is changing. So there are many challenges for law schools in the current process.
5. In Conclusion One of the main objectives of law schools beyond educating students is to produce viable legal research outcomes. This is happening. But much needs to be done to ‘sell’ the doctrinal research methodology, the ‘bread and butter’ legal research methodology, to the rest of the academic community. We need to ensure that there are excellent and pertinent quality and quantity measures which truly reflect the importance of the work that is being undertaken. In doing so, academic lawyers have to drop any remaining insularity and ensure that their members are to some extent skilled in non-doctrinal methodologies.
20 C.Arup, ‘Research Assessment and Legal Scholarship’ (2008) 18 (1&2) Legal Education Review at 50. 21 http://www.austlii.edu.au/austlii/research/2008/lief/ 22 Arup, Ibid 48.
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The goals and objectives of Law Schools beyond educating students: Research, Capacity Building and Community Service.
Gerhard Lubbe Stellenbosch University South Africa
Law Schools generally are aligned to the mission statements of the universities of which they form part. This also holds for the Faculty of Law at Stellenbosch which is thereby required to serve the entire South African society in the field of law through research, teaching and community interaction activities. From this point of departure the Faculty has committed itself not only to produce lawyers of the highest quality for the legal profession and broader society but also to responsibilities going beyond this primary educational function. These are
• to develop the highest quality of jurisprudence through legal research and to shift the boundaries of knowledge; • to help promote access to the law in interaction with the community and to help build a better society; • to instill the ideal of justice in the students and to equip them with the highest ethical values; • to defend and help promote a democratic value system and the constitutional state; • to apply capacity and expertise for development in Africa (particularly in the regional context); • to act actively in the promotion of the diversity of people and ideas in so far as composition and activities are concerned; and
From a historical perspective there is certainly a moral imperative for South African law schools to address the societal implications of legal doctrine and the legal system to ensure that research is socially relevant and that teaching inculcates a sense of social responsibility in students. It is arguable that the imperative goes beyond a merely moral responsibility. The so-called postamble to the Interim Constitution of 1993 stated that it “provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex” (cf Holomisa v Khumalo 2002 3 SA 38 (T) at 55). This image expresses a continued belief in the capacity of law and the legal system to achieve a fundamental transformation of society, albeit in the opposite direction to that adopted under Apartheid and in order to redress its inequitable consequences. To this end the Bill of Rights of the final Constitution of 1996 entrenches a set of fundamental rights - both the traditional rights of the individual as well as so-called socio-economic rights - not merely as a corrective to abuses of state power, but also to serve as a template for the transformation of society. The agendas of South African Law Schools regarding research and community service initiatives, it is submitted, cannot but be informed by this overriding constitutional injunction.
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Although the functions of research and utilizing the faculty’s knowledge base to play a constructive role in community affairs are regarded as independent and indeed self-evident responsibilities of any university faculty, it is important to recognize and strive to realize the interrelatedness of these functions. Research not infrequently plays an important role in judicial decision-making and law reform, but is also intimately related to the quality of teaching in so far as students are in fact entitled to exposure to cutting edge theoretical insights. From this perspective the divide between teaching and research is artificial and one that ought not to be overstated. Service to the community also, can of course only proceed from a faculty’s strengths in the areas of research and teaching. The ideal, therefore, is of an integration of the faculties activities regarding the three core processes of any university (teaching, research and community interaction).
An example of such an integrative endeavour is provided by a collaborative project on Combating Poverty, Homelessness and Socio-Economic Vulnerability under the Constitutional Dispensation launched by the Stellenbosch Law Faculty in 2009 with funding from several sources, including a substantial grant from the university itself as part of an overall institutional strategic Plan. The project will bring together the research efforts of several members of the Law Faculty and the community outreach efforts of the Legal Aid Clinic to energize and accelerate the Law Faculty’s work in this important area of the law.
The project takes as its premise that the legal system and processes inherent in it are important for the transformation of South African society and overcoming the legacy of pathological social circumstances such as poverty and inequality, inherited from Apartheid, as well as to consolidate and deepen the democratic order. Dire poverty and inequality and systemic deprivation as a result also of the HIV/AIDS pandemic have the result that a significant part of the South African population are still denied full participation in the economic order and suffer an impairment of human dignity.
To the extent that traditional legal institutions and doctrines entrench inequality, the existing legal order remains a stumbling block in the way of the realization of transformational goals of the constitution to be addressed research and law reform. At the same time, the legal system also holds the promise of serving as an important instrument of transformation and redress. Of central importance in this regard is the Bill of Fundamental Rights entrenched in the Constitution of 1996. Apart from rights to equality and human dignity, property and land, the Constitution also recognizes a range of socio-economic rights (access to housing, health care, food and water, social security and education) as well as a right to administrative justice. These rights are justiciable and the extent to which their enforcement by the courts can, as a result of the so-called horizontal application of many fundamental rights, serve to further the transformational aims of the constitution also by correcting traditional doctrines of the common law, raise fundamental questions and challenges for legal research in a number of areas. The Fundamental rights and the developing jurisprudence in this regard also provide a normative framework for the governance of the country having an impact on socio-economic policy, legislation at local, provincial and national levels. Members of the Law Faculty will be enabled to intensify their research on topics impacting upon poverty and inequality. Research initiatives will examine various facets of the question: how can the 1996 Constitution, with its justiciable Bill of Rights, be used to roll back historical trends of social and economic marginalization? The
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research will extend not only into questions of constitutional interpretation, but also into implications for law-making and policy-making across a broad spectrum of notions relating to property, land use and the problem of poverty, land reform, security of tenure and housing, the development of socio-economic rights as legal concepts, the notion of administrative justice as a controlling mechanism for the delivery of social services and the evaluation and refinement of affirmative action, black economic empowerment measures as instruments of redress, constitutional interpretation and the deepening and consolidation of democratic values.
The project has a strong training focus. It will enable the Law Faculty to recruit and fund a substantial number of new full-time postgraduate students to write masters and doctoral theses within the broad area of law and poverty. Plans are in place to provide intensive training and advisory support to such students, both to assist them in succeeding in their academic programmes and to equip them to become catalysts for social transformation as they enter the work force. The interdepartmental nature of the research project and integration of efforts are expected to impact on the number and quality of outputs, heightened activity workshops and contacts. Thematic workshops, conferences, and lectures throughout the year will help to integrate individual participants’ research efforts into a collaborative whole that is greater than the sum of its parts.
An innovative aspect of the project is the integration into it of the Legal Aid Clinic, the Faculty’s primary instrument for community service. The project will augment the Clinic’s efforts to reduce marginalization by ensuring access to legal services for disadvantaged communities. Apart from a direct contribution to the combating of problems of poverty and socio-economic marginalization through work on land evictions – an important issue in the farming community – debt counseling, access to social pension and grants and family violence, it is also envisaged that the Clinic will serve as a laboratory for empiric research regarding the issue of land reform in particular. The Clinic is also well-placed to identify and litigate potential test cases relating to constitutional rights, which can in turn help to set rights-enhancing precedents for the benefit of other similarly marginalized communities. In so doing, it could serve as a vehicle to enhance the contributions already being made by some faculty members to high level constitutional litigation in the area of socio-economic rights. The Clinic also has as a primary responsibility the inculcation of clinical skills in undergraduate students. By means of a sharper focus on thematic issues of broader social relevance, and an extension of the number of students acting as consultants in the clinic, the delivery of students with a heightened sense of social responsibility and a commitment to public interest lawyering will be enhanced.
Apart from reservations regarding the predilection for the instrumental use of law and the legal system to engineer or structure societal relations, an integrative approach poses the challenge to a law school not to neglect strengths in areas not as directly related to the socio-economic reformist agenda as others in so far as staffing, research funding and provision for post-graduate students are concerned. It is also important not to deprive students of choice and to bind them into a paradigm of lawyering that may be as restrictive as that of the traditionally obtaining model of a high level commercial practitioner. An integrative model of the kind postulated here ought also not to curtail roleplaying by individual faculty members in relation to service to governmental or other institutions, law
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reform bodies and as contributors to debates on issues of public importance. Although a tradition of academic activism prevalent during the struggle against Apartheid has to some extent diminished, the need for legal academics to remain active as public intellectuals remains undiminished. The adoption of partisan positions by members of faculty can be problematic from an institutional point of view, the integrity of an institution can in the main be safeguarded by a rule of thumb that faculty members should speak out in their personal capacities and by restricting collective institutional interventions to issues of truly national significance or channeling such initiatives to national bodies, for example the Association of Law Deans or the Law Teachers Society.
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The Clinical Education Revolution: The Link between the Academic World and Legal Practice
Prof. Arie Reich∗ and Adv. Roni Rothler∗∗ Bar-Ilan University Israel
The academic world is sometimes perceived as elitist and isolated from society; an ivory tower the inhabitants of which pursue theoretical research and studies that are irrelevant to real and practical life. Over the last few years, however, there are developments which actually point to the opposite trend, to a growing closeness between the academic world and wider society and to the academic community’s ability to engage in research while concurrently developing both staff members’ and students’ social involvement.
This trend is particularly reflected in the growth of legal aid centers – clinics – which operate within university law schools. The clinics manifest a commitment to making law and justice accessible to the general public and to ensuring that even those persons and bodies unable to afford legal advice will be able to participate in the legal discourse which has such a wide- ranging and profound impact on modern life.
The clinics provide free legal aid to weak sectors of society, to persons who have been segregated by society because of certain attributes or a particular history, and to bodies wishing to promote issues of public importance. The aid is provided by law students and by clinical staff – attorneys who are employed by the universities – as well as by junior and senior academic faculty members. Guiding the clinics is the desire to harness the law faculties’ wealth of knowledge and human resources in order to solve social problems while concurrently advancing academic research by close examination of real cases.
Bar-Ilan University is the pioneer of clinical education in Israel. It's first clinic, The Civil Legal Aid Clinic was established in 1984, over 25 years ago, by Prof. Aharon Namdar, and it has provided aid to the needy in poor neighbourhoods and development towns throughout Israel. Over the years the Faculty has established six additional clinics to meet the great demand for their services:1
• Environmental Practice & Policy Clinic • Clinic of Legal Aid for Women in Family Matters • Clinic of Human Rights for Persons with Disabilities • Clinic for Mediation and Dispute Resolution • Criminal Legal Aid Clinic • Jewish Law Clinic (a unique clinic which began operating this year)
∗ Dean of the Law Faculty, Bar-Ilan University ∗ ∗Former Director of the Clinical Legal Education Program, Law Faculty, Bar-Ilan University
1 For more information on the Bar Ilan Legal Clinics, see: http://www.law.biu.ac.il/English/klinikotE.shtml
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Similar clinics operate in most of the universities and law colleges in Israel; however, the Law Faculty in Bar-Ilan University is unique (in Israel and perhaps even in the world) in that it requires all its students to participate in one of the clinics during their third year law studies, thereby making clinical education a necessary and integral part of their legal education.
In a country in which legal services are extremely expensive, and the legal system is more accessible to some sectors of society than to others, it is very important to establish centers and bodies which will bridge, even if only to a small extent, the gaps that have developed between the different strata of society. Nonetheless, this is not the only goal of the university clinics. A concomitant goal is to teach students who will become the future generation of Israeli jurists how to perform all aspects of the practical work of attorneys, including communication with the client, conducting interviews, examining the legal case, legal writing, legal research, as well as representing the client before governmental authorities and making legal arguments in court. All this is carried out in ‘greenhouse conditions’ supplied by the Faculty – close support by an attorney and advice from various experts in a variety of areas. In addition, while engaging in this work, the student sees the troubles affecting Israeli society at first hand and acquires personal experience of methods of resolving them. The objective is that the knowledge gained in this way will assist both the student and society after the former leaves the shelter of the university.
In this way, the clinics produce more experienced law clerks and ultimately attorneys possessing a broad world view, practical knowledge of the attorney-client relationship and a genuine understanding of professional and ethical concepts such as the duty of confidentiality, prohibition on conflicts of interests and duty of trust towards the client. No less important is that the clinics send jurists possessing social sensitivity to the marketplace. We have no doubt that the ability to learn and absorb substantive aspects of legal issues as well as the attorney-client relationship is immeasurably greater when it stems from real and direct experience, from questioning possibilities, arriving at conclusions and acting in accordance with them. Likewise, ethical values of professional commitment become more deeply entrenched when during the course of their studies the students contend with practical professional and ethical dilemmas for the benefit of real clients with real complexities. The practical experience gained through engaging in the attorney-client relationship and the professional responsibility accompanying this experience provide tools and insights which cannot be acquired by classroom study, irrespective of its quality. The Bar-Ilan clinics also deal with legislative initiatives and practical studies which are able to provide a platform for such initiatives, and they have achieved a number of impressive successes in recent years regarding legislative reform in certain important social and environmental areas. Naturally, this activity has attracted significant media coverage which adds to the prestige and reputation of the Faculty.
Clinical development in Israel draws many of its ideas from similar activities in the United States. This development has also taken place in the most prestigious law schools, such as Harvard and Yale, which see no contradiction between the aspiration for academic and theoretical excellence and massive investment in clinical education. Thus, for example, in Harvard, there are no less than 29 different legal clinics operating under the supervision of about 70 staff members and professional instructors. In order to complete course
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commitments in Harvard, a student is required to invest at least 40 hours of pro-bono legal work for the benefit of the community and many students choose to fulfill this requirement within the framework of the various clinics. In the United States law students are allowed to represent their clients before all the courts, and at all instances, albeit under certain conditions and under close supervision. The emphasis on practical study in the United States, where students are not required to work as law clerks prior to sitting for bar exams (as is mandatory in Israel), is extremely high.
The American Bar Association (ABA) has made a significant contribution towards entrenching practical studies in the law schools, in part by establishing rules and conditions for approving law faculties (2008-2009 Standards for Approval of Law Schools, Chapter 3: Programs of Legal Education). Thus, for example, Rule 301(a), which defines objectives, requires a law school to maintain an educational program that prepares its students for admission to the bar and prepares them for effective and responsible participation in the legal profession. Rule 302(a), which deals with the curriculum, provides that the faculties must provide substantial instruction of professional skills, and Rule 302(b)(1) provides that law schools must offer "substantial opportunities for live-client or other real-life practice experiences, appropriately supervised and designed to encourage reflection by students on their experiences and on the values and responsibilities of the legal profession, and the development of one's ability to assess his or her performance and level of competence." Rule 302(b)(2) requires the law schools to offer substantial opportunities for student participation in pro bono activities.
These standards were influenced by the conclusions and recommendations made by a special task force, established in 1989 by the American Bar Association Section on Legal Education and Admission to the Bar. Its mandate was to examine to what extent law schools were preparing their students to practice law (The ABA Task Force on Law Schools and The Profession: Narrowing The Gap, Statement Of Fundamental Lawyering Skills And Professional Values). This team, led by Robert MacCrate, President of the ABA in 1987-1988, presented its report and conclusion in 1992.
The report stated that skills training and imbuing the students with professional values had to be one of the primary missions of the law faculties, and it made specific recommendations for improving legal education. These recommendations included an emphasis on skills training and values and the provision of opportunities for students to perform professional tasks and receive feedback. The report guidelines are used to define practical-clinical teaching in American law schools today.
The Clinical Legal Education Association (CLEA) also considered these issues and in 2007, following a project which aspired to find and define the best means of educating and preparing attorneys, prepared a position paper concerning legal educational measures under the heading Best Practices for Legal Education.
Similar conclusions were reached by the Carnegie Foundation for the Advancement of Teaching. Their 2007 report stated that learning through experience is essential for achieving the paramount educational goals – preparing the students to think, act and conduct themselves in a professional manner. Even though the report did not mandate
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representation of clients, it recognized the fact that many of the humane and enriching aspects of the law and legal world may be found in the real-life contact with the clients and their needs. This is because when an actual client stands in front of the student, the opportunities for cognitive and practical professional development are almost limitless. The opportunity to achieve all these may be found in the clinics.
The experience which we have accumulated in Bar-Ilan University in almost three decades of clinical education is extremely positive. The students come willingly to the clinics and fulfill their commitments with great dedication. Many of them in fact do more than is strictly required of them because they are drawn into the activities, enjoy them and have a sense of the importance of the goals to which they aspire. We have not found that making clinical education compulsory has in any way impaired the students’ level of commitment to their work. Nonetheless, it should be noted that the many clinics operated by the Faculty impose a heavy financial burden on the Faculty’s budget in view of the need to employ teaching and practice teams (instructors and attorneys) as well as other employees, to operate the clinics. Accordingly, a law school which establishes clinics must ensure that it possesses sources of funding, whether from its own resources or from donations from benefactors who appreciate the important contribution of legal clinics to our society.
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The Goals and Objectives of Law Schools Beyond Educating Students: Research, Capacity Building, Community Service
Babaly Sall U.F.R Sciences Juridiques et Politiques Senegal
INTRODUCTION
Universite Gaston Berger de Saint Louis in Saint Louis, Senegal, was founded in 1990. It consists of four colleges: Literature and Social Sciences, Applied Mathematics and Computers, Economics and Management, and Law and Politics. Gaston Berger’s College of Law and Politics was specifically created to reform and modernize the teaching of law, and in particular to incorporate resource management, the political and social environment of the law, and the inter-dependent roles of public and private institutions.
Gaston Berger’s College of Law and Politics emphasizes teaching, training and research in the areas of decentralization, local public finance, improvement of local program administration and government-citizen relations--especially in relation to local participation and local decision making. The College of Law and Politics focuses on analysis and support of the democratic transition in Africa. Training and research concentrate on political systems, political parties, elections and voting behavior. A Local Authorities Section was created to support the decentralization movement taking place in Senegal. Teaching and research addresses decentralization, local public finance, improvement of local program administration and citizen/government relations. The Business Law Section works with the College of Economics and Management to analyze the viability of the individual company in the business system. Matters covered also include banking regulation, contract enforcement and transparency in the financial markets. Importantly, Gaston Berger requires that its students, before graduating, be proficient in English and acquire extensive computer skills.
Aside shared experiences with partners as Senegalese Ministry of Justice in hosting a Judiciary Centre for Orientation and Assistance, and several NGO’s and Local community’s collaboration, Gaston Berger’s College of Law and Politics developed an important University-to-University Partnership with the John W. McCormack Institute of Public Affairs University of Massachusetts, Boston (UMB). We will share with you.
On June 2003, Gaston Berger’s College of Law and Politics developed a University- to-University Partnership with the John W. McCormack Institute of Public Affairs University of Massachusetts, Boston (UMB) which sought to strengthen, Gaston Berger internally and in its evolving community role through faculty and staff exchange and training, comparative Research (particularly of political systems and political behavior), distance learning, creation of, and access to, internet-based data bases and research libraries, and training in support of local governmental institutions and local economic development.
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The partners have developed working strategies to improve both the community’s perceptions of the university and the university’s ability to work with that community as an employment and economic development engine.
These strategies have culminated in EDDI funding for a multi-function community resource centre established adjacent to the Gaston Berger campus.
This experience was extended to Egerton University Faculty of Arts and Social Sciences, Njoro, Kenya, but didn’t succeed with University of Nouakchott, Mauritania.
STATEMENT OF NEED, OBJECTIVES, AND BENEFITS OF THE PROJECT
To achieve these goals, the John W. McCormack Institute of Public Affairs of the University of Massachusetts Boston, were joined in a highly successful USAID-supported Partnership in Higher Education.
The success of that earlier Partnership has led directly to EDDI funding for a new multi-function community resource centre (CRC) adjacent to the Gaston Berger campus that was designated to serve the entire Saint Louis area. That CRC included classroom space for civic education, nutrition, women’s and children’s health, agriculture and other instruction; a women’s centre ensuring a private, secure, supportive environment; a small business resource centre to include phone, fax, and email services, internet access, and library/data base resources; and a workshop/warehouse capacity for micro business incubation.
The University-to-University Partnership was proposed in order to improve the quality of, and access to, higher education; to enhance technological capacities and availability at Gaston Berger’s College of Law and Politics; and to foster greater campus awareness and community outreach in the areas of civic education, women’s rights, economic development, and citizen participation in government.
As noted, the approach was to pattern the partnership where possible upon the successful approach utilized by The McCormack Institute consortium partners, University of Massachusetts Boston.
The University of Massachusetts, Boston is an urban campus, proud of its linkages with its surrounding community, with local and state government, with the private sector and with regional economic development collaborations. As early as a decade ago TIME magazine selected “” as one of “a cadre of fast-climbing colleges challenging the old-line elites,” noting its leadership in taking “the land-grant concept of service, research and teaching, and bringing it to the urban area...to be a force in the community.” In particular TIME singled out the campus’ McCormack Institute for its work with local government to develop programs in housing, juvenile justice, and public finance. (TIME, April 28, 1986, pg.56-7).
The mission of the McCormack Institute, named for the former Speaker of the United States House of Representatives, is public service through public policy research, educational programs, outreach and publications. The Institute also serves as home to the
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Master of Science in Public Affairs graduate program and publishes the New England Journal of Public Policy.
Since its founding in 1983, the McCormack Institute has grown into the largest public policy research center on its campus, and now consists of four separate but complementary units: the Centers for State and Local Politics; Social Policy; Women in Politics and Public Policy; and Democracy and Development. The Institute also boasts a public opinion polling capacity. Its “McCormack Poll,” has become well known for its accuracy and insight, and decisively beat the national polls in its predictions of the 2000 New Hampshire presidential primary results.
The Centre for Democracy and Development (CDD) is the newest of the Institute’s component centres, but it has already successfully concluded a notable array of international partnership, educational exchange and training programs. These include a 1995-1996 U.S. Information Agency (USIA) sponsored program for local government officials from Namibia; a 1996 USIA program that brought municipal and provincial legislators from the Peoples Republic of China to Boston; a 1998 USIA funded program on “Decentralization and Local Democracy: Citizen Empowerment in Cameroon, Mali, and Senegal”; a follow-on program for Mali and Senegal in 1999, a 1998 USIA program which brought twenty jurists from the Peoples Republic of China to the U.S., led by a member of the Supreme Peoples Court, and a 2000 program of judicial exchange for Slovenia, Slovakia, Czech Republic, Hungary, and Romania.
Most important for the Partnership, were McCormack’s US AID funded Partnership in Higher Education with Universite Gaston Berger de Saint Louis in northern Senegal, and the subsequent EDDI funded multi-function Community Resource Centre, the two institutions created adjacent to the Gaston Berger campus.
Another project was the Partnership in Technology and Development, The John W. McCormack Institute of Public Affairs University of Massachusetts Boston and Egerton University Faculty of Arts and Social Sciences, Njoro, Kenya. A Partnership to strengthen technology and information resources at Egerton, promote local economic development initiatives in the Njoro area; improve Egerton's capacity to work with out-of-school and at- risk youth; and build a Social Sciences Computer Lab and a Cyber Café/Business. And what ensued was an expansion of the partnership between the two institutions in the form of a Regional Community Resources Centre based on the Senegal model.
CONTRIBUTIONS TO HOST COUNTRY’S ABILITY TO RESPOND TO THEIR OWN ECONOMIC AND SOCIAL NEEDS
This initial university-to-university partnership, which evolved, as the African partner’s capacities grow, into a local university-to-community Partnership. When realized, will represent a newly conceived, direct role for Gaston Berger’s College of Law and Politics in the social and economic development of its region and nation.
This broadening of the University’s role — from traditional, classroom-based, teaching into an economic and social development engine for the community — should
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directly contribute to the most central EDDI goals: The new “community outreach” staff will give a crash “immersion” course in public service, university-to-community outreach, and university-stimulated economic development.
In order to promote greater understanding between the partners, and to encourage greater efforts in civic education and promotion of citizenship, a series of background lectures and seminars was provided covering the history of local government in the US and the challenges faced by public officials in the delivery of local services; ensuring community access to decision-making; the nature and evolution of local authority and responsibility as power has shifted from state to locality; and the proper balance between national control and local authority. Were examined the different ways in which decentralization and local democracy have taken root in both advanced industrialized and developing nations. We discussed citizen participation through interest group politics, lobbying, local referenda and individual activism. We analyzed corruption, as well as fragmentation along ethnic lines. Sites visited to community development corporations and local level economic development projects were arranged. We discussed fiscal decentralization and citizen participation in the formulation of fair, viable tax policy.
Curriculum discussions were focussed on both public and private administration and management, including particular attention to information systems management and health care management. UMB has particular strengths in sociology, criminal justice, community development, social work, gerontology and the role of women in Public Policy. Workshops were designed to show the Gaston Berger partners how a practical, applied approach to these areas can both strengthen their on-campus offerings and have a significant impact in their surrounding communities.
While continuing to address curriculum development and other internal strengthening at the University of Gaston Berger, the project shifted the focus more to the external role that a University can play in the social and economic development of its surrounding community.
CONTINUITY It was the clear intent of the institutions involved that this Partnership becomes an on-going, growing, affiliation. It was also clear, however, that predicting the outcome, or even the future direction, of an alliance between institutions separated by vast geographical and cultural distances, however well intentioned the participants, is an uncertain art. We did believe that the proven ability of two consortium members – UMB and University Gaston Berger — to develop their own earlier partnership and leverage it into a community outreach and development effort incorporated in an EDDI-funded Community Resource Center is undeniable evidence of the new proposed partnership’s potential.
Similarly the proven ability of the American partners to engage productively in their own local communities and then to bring those communities’ resources to the African environment is further evidence that pledges of continuity are not empty or naïve.
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Purposes and Objectives of Law Schools Beyond Educating Students (Research, Capacity Building, Community Service and Outreach)
Professor Dr. Dres. h.c. Karsten Schmidt President of Bucerius Law School Germany
I. Introduction
I have been asked to speak about the objectives of law schools that go beyond the mere education of students. However, these topics can hardly be addressed without taking into account the particular academic tradition in my country. Thus, I will first of all try to briefly explain the concept of legal education in Germany. In my short remarks, I will focus on the traditional legal education which aims at qualifying a law student for all positions in the legal profession, i.e., for the positions of judges, lawyers, public prosecutors, etc. I will not, however, address law-related degrees which do not lead to such a „full” qualification.
1. The Present Situation Legal education in Germany is governed both by federal law and state law. Nobody is allowed to practice law as a judge, lawyer or public prosecutor without having passed two state exams. The first state exam aims at testing the academic performance of the students. This first state exam is regarded as an equivalent to a master degree. It takes place after at least three and a half years of studies at a university. However, students from state universities obtain this degree, on the average, only after nearly five years.
The second state exam takes place after a traineeship period of two years. During this period, the trainees have to pass several different stages working in different functions and areas of law as articled clerks at courts, law firms or institutions of the public administration. The average trainee passes the second degree at an age of 27 or 28 years. The aim of this state exam-based legal education is to equip the trainees with all skills necessary for their future career in any legal profession. In other words: The second state exam is designed to provide a general or ‘all-round’ legal education and to enable the trainees to start their career immediately as a lawyer or a judge. The law faculties, however, are not involved in this non-academic part of legal education.
2. The Current Reform Debate The above mentioned concept of legal education has a significant impact on the activities of law schools that go beyond the education of students. The same is true with regard to recent and forthcoming changes and challenges in the German system of legal education. The general discussion about higher education in Germany is dominated by the so-called Bologna debate which is initiated and driven by the European Union. The crucial question is: Will the state exam-based system one day be replaced by bachelor and master programs? Or will the state exam-based system simply be supplemented by specialized bachelor and master programs which do not qualify for positions in the legal profession?
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The predominant opinion among German scholars, practitioners and politicians is as follows: Only a small minority favours the full replacement of the state exam system by bachelor and master programs. At the present, only six of the more than 40 law faculties in Germany are awarding a bachelor degree in combination with the state exam-focused law studies. My home faculty, Bucerius Law School in Hamburg, is one of these institutions. However, the bachelor degree is still of minor importance in legal education in Germany.
On the basis of these introductory remarks, I will now try to answer the questions put by the IALS Conference organisation.
II. Research
Everybody knows that research is an indispensable component of academic performance. However, there are some peculiarities regarding law schools in Germany.
1. The first peculiarity is that lecturing in Germany is strongly linked to research. It is worth mentioning that there is, perhaps with the exception of foreign language lecturers, hardly any academic career without significant individual research activities in Germany. Anybody pursuing an academic career must show a strong individual research performance before he can be selected to give lectures and eventually achieve the status of tenured law professor. Thus, assistant professors need to produce, during a period of about five to six years of post-doctoral research, a piece of work that forms a significant contribution to the academic debate. This “second book”, a major thesis called ‘Habilitation’, has to be approved by the faculty. Without this, it is hardly possible to advance in legal education in Germany.
2. A second notable fact is that it is very unusual for professors to pursue an academic career at their academic alma mater, i.e., at the university where they spent their years of post-doctoral research. The general rule is that vacant chairs will be filled after competitive ‘beauty contests’ between external applicants. An academic career made purely ‘in-house’ would be regarded as suspicious.
3. Thirdly, one might highlight that a law professor in Germany carries out his research as the head of a chair. That means that he or she is permanently supported by doctoral and post-doctoral researchers and a secretary office of his own. At the same time, professors have to supervise their assistant’s own research activities.
4. Fourthly, the research work and the academic opinions of German academics have a direct impact on legislation and jurisdiction. This impact is largely due to the so-called commentaries. In the terminology of the legal profession in Germany, commentaries are books of reference – oftentimes consisting of several volumes – which comment on the interpretation of existing statutes and case law, thereby systematically preparing future legislation and court decisions. Also, academics try to interfere directly with legislative and judicial decisions through critical essays in law journals. As a result, court decisions in Germany are in most cases reflections of academic opinions which have formed the basis for the discussion and which have pointed out possible solutions of open legal questions.
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Sometimes, legislation is even based on an initiative from academic circles and working groups. This may best be illustrated by the fact that the official notes to, e.g., reform bills which are prepared by the departments of the Federal Ministries that use to cite academic opinions. Furthermore, the Committee on Legal Affairs of the German parliament (Rechtsausschuss des Deutschen Bundestags) uses to invite professors as legal experts in order to discuss their opinions and suggestions before law reforms take place. The recent reform bill pertaining to the limited liability corporation, e.g., can be regarded as a result of a vast academic discussion.
III. Capacity Building
The importance of capacity building is more and more subject to general attention in universities and influences a faculty’s policy as well as its academic organisation.
1. Students
With regard to students, a special emphasis is increasingly put upon a so-called ‘studium generale’ which enhances the general education of students as mature citizens. Bucerius Law School in particular strives to equip students with skills that go beyond legal education, namely
• social competence, • cultural activities, and • soft skills.
2. Executive Education
In addition, executive education, i.e. the further vocation and training of practitioners, gains more and more importance in the life of law schools. In Germany, there has long been a significant market for executive education. In the past, however, universities did not offer courses on executive education themselves. Instead, the demand was met – very successfully – by private businesses which on their part often hire university professors as lecturers. This fact illustrates the dominant role of scholars in legal practice and particularly in executive education in Germany. On the other hand it shows that the law faculties neglected the opportunities of their in-house know how.
This has begun to change: Increasingly, universities discover executive education as a source of funding and begin to establish programs under their own brand. Again, Bucerius Law School serves as a good example. Our program ‘Bucerius Education’ includes, inter alia:
• a Leadership Program for future partners of law firms, furnishing them with leadership and management skills, • tailor-made in-house programs for corporate clients and law firms with courses in the fields of law, business and key qualifications (recently, for example, for Deutsche Bahn), as well as • courses on the basis of ongoing collaborations with the professional organizations of lawyers, accountants and tax advisors.
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3. Consulting
An aspect of capacity building that may be unique to Bucerius Law School as Germany’s first private law school may be the unit ‘Bucerius Consulting’, which offers consulting services in the areas of education and research organized by private institutions. It combines the know- how of the ZEIT-foundation Ebelin and Gerd Bucerius, the Bucerius Law School, the Bucerius Education GmbH and selected national and international networks.
IV. Community Service and Outreach
German scholars are very successful in their outreach to policy makers and legal practitioners. In contrast, law schools’ efforts in day by day community service seem rather unimpressive. 1. Law Schools and policy making
German policy making relies to a large extent on the competence of scholars and research institutions. So, the presence of academic expertise in politics is taken for granted in the German society. However, it is more than unusual for individual law schools to market their engagements in the sense of promoting their proper brand in this field. Usually, research driven achievements in legal policy are attributed to individual scholars or groups of scholars. But their home faculties only enjoy a pale reflection of this fame as a poor benefit from these activities.
2. Law Schools and legal practitioners
There is a close contact with practitioners through conferences. It needs to be stressed that it is rather common for lawyers and even for judges to participate in conferences hosted by law professors. This interaction may also serve as a reflection on the general importance of academic research in the law of today. But even this outreach activity is largely focused on the reputation of individual scholars rather than deans and faculties.
3. Law Schools and community service
On a comparative basis, one has to state that community service offered to individual citizens by law schools – for example through pro bono legal advice – seems underdeveloped in Germany. This is at least partly due to the fact that only fully qualified lawyers are allowed to give legal advice. Legal advice offered by students would be unlawful in Germany. However, it is more than likely that there will be a significant change in the next years as Germany will benefit from the developments in other European countries.
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Please refer to Page 153 for Professor Jakub Stelina’s paper entitled “The Role of Law Schools and Law Leadership in a Changing World-Polish Experience”
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238 The Role of Law Schools and Law School Leadership in a Changing World
The Goals and Objectives of Law Schools Beyond Educating Students: Research, Capacity Building, Community Service
Professor and Dean Tan, Cheng-Han Faculty of Law, National University of Singapore Singapore
Research
Universities are more than teaching institutions; they are institutions of learning that have as a core mission the advancement of human knowledge and understanding. In this regard, research is an important component of what universities do and by extension is an important aspect of the goals and objectives of law schools.
Within law there are different research approaches that can be broadly categorized into 3 groups. The first is doctrinal research where the objective is to facilitate a greater understanding of law from an ‘internal’ perspective. Within the common law much doctrinal research will analyze cases; how these cases relate to general principles; internal consistency within specific areas of law; and so on.
The second attempts to better understand law through the prism of ‘external’ perspectives. Law is not an autonomous discipline but is a reflection of a society’s values and priorities. Accordingly, law is influenced by economic, social, historical and political factors. An ‘external’ understanding of law provides the context within which the ‘internal’ rules may be better understood.
The third seeks to understand law not from a narrow jurisdictional basis but draws insights from approaches found elsewhere. Learning from other jurisdictions can enhance understanding of our own system and challenge assumptions that we take for granted.1
These broad genres of research are not mutually exclusive and a publication may incorporate all 3 approaches. It is fair to say though that most research tends to be of the doctrinal sort; there is a growing body of work that incorporates insights from other disciplines particularly in North America; and there is an emerging interest in comparative studies.
For law schools, doctrinal or ‘black letter’ research is of most relevance to members of the legal profession who need to understand how to use legal rules in their practice. This is one of the objectives of legal research. In developing countries that do not as yet have sophisticated legal systems, doctrinal research serves a particularly important function. Yet it must be conceded that such a perspective alone will not optimize the development of sophisticated lawyers who can deal with complex legal issues. Many academics, without
1 Some of these ideas have been examined more fully by this author in “Challenges to Legal Education in a Changing Landscape” (2003) 7 Singapore Journal of International and Comparative Law 545 and “Change and Yet Continuity – What Next After 50 Years of Legal Education in Singapore” [2007] Singapore Journal of Legal Studies 201 – 215.
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attempting to overtly incorporate insights from other disciplines, will in their research make reference to ‘policy’ as a means to contextualize legal rules so as to achieve greater understanding of the rationale and limitations of such rules. It may be necessary to go further and one way of surmounting disciplinary limitations is to work collaboratively with academics in other disciplines particularly those in other areas of humanities and social sciences. A better understanding of the intersection between law and other areas of human understanding will allow legal research to become a more powerful tool in shaping and improving understanding of our legal systems and aid in the process of law reform.
In addition, to the extent that globalization is a significant force that the legal profession must contend with (as this author believes), legal research will not sufficiently allow us to understand the complexities of legal rules and their application without comparative perspectives being incorporated. A more globalized world may also imply that over time ‘best practices’ will emerge that many societies will gravitate towards (at least broadly) and legal research must be alive to perspectives beyond those of our own jurisdictions.
Broadly stated, a more holistic approach to legal research has powerful potential to re-shape our current understanding and lead over time to significant evolution or even transformation of our legal systems. Law reform is an often implicit but important by- product of legal research and indeed many academics are at the forefront of law reform.
Capacity Building
As is implied in the previous comments on research, law schools do not exist for their own sakes – they are ultimately institutions in service to their communities (which increasingly go beyond the country they ‘reside’ in). Just as research exists ultimately to advance knowledge and understanding and through that better judicial outcomes, law reform, etc, law schools can and should use their expertise more directly through capacity building initiatives, often in collaboration with donors and NGOs.
There is widespread understanding amongst policy makers, government, and legal institutions of the importance of building knowledge and skills within their organizations. This can take many forms. At its most basic policy makers who are contemplating amendments to existing laws may wish to have a better understanding of how such reforms have been implemented in other jurisdictions. Sometimes, the focus may be more practical such as issues relating to enforcement. Or the focus may be entirely on education if a particular jurisdiction has limited expertise in an area but sees the growing importance of this area to its economy. An example may be in the area of intellectual property which, as a country develops, may assume greater importance as its companies begin to move up the value chain. And let us not also forget that law schools can and should play a role in continuing education within their jurisdictions.
Law schools, with their expertise, are natural institutions to assist in such capacity building. In addition, law schools bring additional strengths such as perceived greater objectivity and non-partisanship compared to private entities that may be perceived as having a more overt agenda to push.
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For law academics, engaging in capacity building can potentially be very liberating and exciting. A lifetime spent thinking of ideas and how laws and the legal system can be improved can find expression through engagement with the community whether within one’s jurisdiction or beyond. And let us not forget that through the sharing of our ideas we will also learn in turn.
Clinical Programmes
Many law schools are engaged in clinical programmes that broadly serve to allow disadvantaged segments of society to have greater understanding and access to their legal rights. In such clinical programmes, law schools do not generally seek to compete with the private sector but play a role amongst persons who may not have ready access to private lawyers or even state funded legal aid (or who at least need to be informed of what their rights are and where they can go to for assistance). Law schools generally seek to complement existing avenues of access to justice.
Clinical programmes can also serve as a powerful educational tool by contextualizing the study of law with real issues thereby facilitating a deeper understanding of the role and importance of law within society, as well as specific laws that students will have to grapple with to solve problems. It is suggested that it is this educational element, rather than the skills element, that should underpin clinical programmes in law schools.
The Law School as a Moral Force
There are other roles beyond the function of educating students that law schools can no doubt play, e.g. media commentary. However, within the confines of this brief paper these 3 are highlighted. The underlying notion of these roles and that of education is of the law school as a positive moral force that plays a role (with others) to work towards an ever more just and equitable society. Just as education of students does not exist in its own right but to develop socially conscious and competent lawyers who will help the legal system to function in an orderly and fair way, the other roles of law schools reflect a desire to have a positive influence on society.
It is suggested that no great law school can be a passive institution because the work of a law school does not take place in a vacuum. One does not teach just for the sake of teaching nor should one write for the sake of writing. The acts of teaching and research in themselves, when performed by one called to the academic life, are positive acts in themselves. They seek to mould students or open up new possibilities of understanding.
Yet law schools and law academics must also know their limits. We must always be alive to the possibility that we may be wrong. This author for one thinks it a strength of an academic that there be some self-doubt rather than complete assurance as the latter severely limits the ability to develop and adapt. The perception of objectivity and non- partisanship is also an important comparative advantage that law schools have and law schools should therefore be slow to cede such an advantage by taking institutional views on contentious issues. This is not to say that a position may be so heinous that a law school
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ought not to take a clear stand, e.g. apartheid, but in general it is far better for the institution to remain neutral even if individual faculty take clear positions.
This implies that there are matters that are best left to individual academics to pursue and the role of the law school is to be generally supportive of such activities but not more. At other times, it may be appropriate for the law school to lend its support to an activity that fulfils a clear social good, e.g. environmental protection and the protection of intellectual property rights.
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Building on “women’s law” across jurisdictions in Eastern and Southern Africa to advance research and advocacy skills among post graduate law students.
Amy S Tsanga♣ University of Zimbabwe Zimbabwe
Introduction In this paper, I examine the practical experiences of the Southern & Eastern African Regional Centre for Women’s Law (SEARCWL) at the University of Zimbabwe, as an example of a law school department that is engaged with women’s law and human rights as a tool for building capacity in research and advocacy skills among its students. Being regional in nature, not just in terms of student body but in teaching staff as well, it is indeed one example on the ground that we can learn from in terms of how such collaborative initiatives can help develop law school curriculum at both the post graduate and under graduate level. As will be illustrated, because the research that comes out from the post graduate dissertations has been done by students who have worked as professionals in a specific field, it can be used to effectively illustrate law in action in undergraduate courses.
The SEARCWL initiative: An Overview SEARCWL – is a University based initiative that offers a post graduate Masters in Women’s Law to law professionals from Eastern and Southern African countries, who want to interrogate more fully the manner in which law impacts on women differently as compared to men and the consequences that arise there from. It is also open to non law graduates albeit in limited numbers, if their work involves issues of women and the law. The Masters has its roots in a post graduate diploma that was started in 1991 through funding from the Royal Norwegian embassy. It became a full fledged Masters programme in 2003. The student body has over the years included judges, magistrates, prosecutors, social scientists and NGO activists. Because students on the programme come with a rich array of practical experience in various fields, they are more meaningfully able to contribute to the aim of interrogating the gendered nature of law with the aim of using these insights to find ways of ensuring that law addresses women’s lived experiences.
The Master’s Programme is implemented within a framework of cooperation and partnering with Universities from Eastern and Southern Africa who take on the responsibility of teaching courses for which they have special interest and expertise. Partnering Universities include Makerere in Uganda, Nairobi in Kenya, Chancellor College in Malawi, University of Cape Town in South Africa and the University of Zimbabwe itself as the key player.1 What
♣ Senior Lecturer in Law and Deputy Director of the Southern & Eastern African Regional Centre for Women’s Law (SEARCWL) - University of Zimbabwe
1 Course lecturers include Professor Julie Stewart University of Zimbabwe, Dr Amy Tsanga University of Zimbabwe, Professor Lillian Tibatemwa, Deputy Vice Chancellor Makerere University, Kampala Uganda, Professor Sylvia Tamale also from Makerere University; Ms Elize Delport, Human Rights Centre, University of Pretoria; Professor Chuma Himonga University of Cape Town; Dr Ngeyi Kanyongolo, Chancellor College, University of Malawi; Ms Pauline Nyamweya, Faculty of Law, University of Nairobi; Professor Patricia Kameri- Mbote, Faculty of Law, University of Nairobi; Mr Victor Nkiwane, Faculty of Law, University of Kwazulu Natal.
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enables the Centre to have such a diversity of players is the fact that the Masters programme continues to have funding for scholarships and staff through the Royal Norwegian Embassy. The courses taught in this regional collaborative initiative include as compulsory courses; • Theories and perspectives in women’s law and • Research Methods and Methodologies
The optional courses include: • Women, law reform and social justice strategies; • Women, commerce and the law; • Women, human rights and the constitutional arena; • Women and access to resources; • Gender sexuality and the law; • Women, labour and social security; • Men, gender masculinities and the law • Family law and human rights.
Within each of these courses is an opportunity to adopt innovative teaching approaches that help to develop student capacities in diverse areas such as law reform, community legal education, research, and advocacy.2 For instance in my optional course, Women Law Reform and Social Justice Strategies, I have gotten students to run practical sessions with trainee teachers on issues such as sexual harassment. I have gotten them to produce legal awareness materials including videos. Students have also conducted a training session with trainee magistrates at the judicial college on how to unearth gender bias in specific cases.
Marrying the practical and the theoretical: Building Capacity in Research Since a core component of the programme is to build student capacity to do research and to change the lives of women through their professional engagement, the programme places emphasis on exposing students to this aspect in a very practical way. This is done by getting them to engage in a one week mini research project on a specific theme touching on women’s issues in small groups. We choose a small town or city for the purposes of the research. The exercise is also part of preparing them for doing more detailed research on a topic of their choice in the field of women’s law in their own countries. For example, for this year for the small groups’ research, we chose the theme of “service delivery’ aimed at assessing both law and policy in terms of how different players respond to women’s needs in the delivery of their services. The students chose six topics under this overall theme of service delivery which they wanted to explore. These included the following:
1. The impact of education policy on enrolment and retention of a girl child in education institutions in Mutare City, Zimbabwe
Professor Anne Hellum, Institute of Women’s Law, University of Oslo, Professor Anne Griffiths University of Edinburgh and Dr Oliver Phillips.
2 SEARCWL is currently working on producing textbook on innovations in methodologies and pedagogies that have developed and are being developed through the Masters in Women’s Law at SEARCWL. The book is entitled Breaking the Mould: Innovative Regional Approaches to Teaching, Researching and Analysis of Women’s Interactions with and Experiences of the Law.
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2. Women and girls access to basic medical care through the health institutions in Mutare 3. Gender sensitivity to women and their right to legal representation in maintenance cases. 4. Access to housing and affordable basic foodstuffs in the Mutare urban area. 5. Researching and analyzing the position of women on remand and the situation of their children whether held with them on remand or left in the community 6. Women’s (female) access to and participation in recreation in Mutare city
Under the guidance of their supervisors, they are able to come up with assumptions relating to their topic, formulate underlying research questions, design methodological approaches for the field work, carry out the field work, analyse the data, make recommendations and highlight how they think that particular field can influence law or policy.
Perhaps more importantly is how students are able to carry these processes through in their more detailed dissertations. Students often choose to do topics that are a direct offshoot of the work experience and professional background that they bring to the table when they decide to do the programme. Part of the aim is that students should be able to advocate for change in that sphere when they finish the programme.
For example, the following topics have one thing common in that they have been researched by students who are, or were at least at the time, working in the police force.
Achiume, Paul C. Domestic violence in Zambia: in bed with a killer: police responses to domestic violence.
Kyokunzire, Betty Is criminalization of commercial sex work in Uganda an answer? A case study of commercial sex workers in Kampala.
Nyirenda, Abson Domestic violence in Zambia: the prosecution of cases involving women suffering domestic violence in Ndola and Kitwe districts of Zambia.
Kyomukama, Samuel Sexual harassment at the workplace: A case study of the Uganda Police.
Muyongo, Paul M. The Endangered girl child: evaluating of the reporting procedures and environment of defilement cases in the Zambia police service.
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Musonda, Lloyd The Role of the Police in Dealing with Victims of Sexual Assault with specific emphasis on Rape and Defilement cases in Lusaka Province in Zambia: A critical analysis of Strengths, Constraints and Challenges.
As most of them are from either Zambia or Uganda, this has meant that we have collected quite an impressive body of knowledge on how the police force in these countries work or is able to respond to issues affecting women and the law. Because the common link with other countries is that they too, face challenges in police responses and handling of rape cases, sexual harassment or domestic violence for that matter, others are also able to learn how those challenges can be best addressed. They begin to reflect much more critically about the role of the police in their own settings. It therefore does not matter that much that we all come from different legal jurisdictions as the problems faced are more often the same.
In our last intake we had a female judge from Malawi (the Madonna case judge) who researched on the topic : ’Who is fooling who?: Women and the (non) management of menstruation in police and court cells in Malawi.’ When she completed this research, she was able to use it to persuade authorities to make immediate changes that were more sensitive to the needs of female detainees.
When lawyers involved with the courts choose to explore topics that have a direct bearing on their professional roles, this can only further advance our cross national understanding of similar topics within our own jurisdictions. The following are a few examples of topics researched by prosecutors and magistrates on the programme.
Kabasa, Evangelista In search of relief for the rape victim: Making the criminal justice system work for her. [Zimbabwe.]
Kamowa, Chimwemwe Patricia Informed thumb sucking: The challenges, problems faced by the Magistrate Courts in distribution of matrimonial property on the dissolution of matrilineal customary marriages in Blantyre, Malawi.
Ondieki, Alice Osebe Critical analysis of the efficacy of the Sexual Offences Act No.3 of 2006 in protecting the rights of rape victims in Kenya: a case study of the conduct of rape trials in Nairobi, Kibera and Makadara Law Courts.
Nyoni, Innocentia An Analysis of battered women who kill: is there a case for advocating for the battered women syndrome under the defence of provocation in Zimbabwe?
There are many examples that I can give of how students from different countries but with the same professional grounding do indeed help in our understanding of law from a very practical perspective. The offshoots and benefits to law schools are potentially enormous as
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the information can be used in the undergraduate curriculum on specific issues. If, for example, in the study of criminal law, one is discussing marital rape and there is a dissertation on this topic that has examined the lived realities of women, then students are better able to make the connection between what the law says, how it operates in the courts and the lived realities of women.
Conclusion There is no doubt that law schools should and ought to strengthen whatever initiatives they have that build research skills and advocacy skills among our students. The challenge I see however from our experience is that of information dissemination and ensuring that we share some of these very rich experiences with a wider audience so as to better influence policy and advocacy. We clearly have some very good research that is not reaching out as widely as possible. Although we have the dissertations on line, (www.uz.ac/law/women) connectivity to the University of Zimbabwe’s website can be erratic. At a more global level, unfortunately initiatives coming out of Africa often suffer marginalization as unworthy experiences especially in western settings, unless they contribute to the quest for exotica. Yet such an approach can and often does mean that we miss out on sharing interesting information from a South and North perspective.
Perhaps more importantly in terms of influencing policy and advocacy, is that once the students leave, we are not necessarily in a position to follow up on the usage of these skills in research, advocacy or community education. Some do keep us informed of how they have used their skills. What we do know is that some have been able to attract very good jobs internationally and regionally as a result of having these skills and we can only hope that they sue them to better the world for many others.
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248 The Role of Law Schools and Law School Leadership in a Changing World
Promoting the Rule of Law and Legal Education around the globe
Drs. Michiel van de Kasteelen Head of the International Office Faculty of Law Economics and Governance of Utrecht University The Netherlands
Introduction Not long ago I delivered a project-proposal to the Ministry of Foreign Affairs of The Netherlands in the framework of their Matra-programme1. The proposal aims at strengthening the Law School of Tirana University, especially in developing its relationship with the surrounding Albanian society: the legal professions and institutions and companies, employing lawyers; the civil society, organisations promoting the Rule of Law in Albania; as well as society in general through street law programmes and legal clinics.
In the taxi to The Hague (the delivery of the proposal was a last-minute event as usual) I had the time to think back to september 1993. Albania was still in relative chaos. The country was just trying to cope with the dramatic changes after the collapse of the Hoxha- dictatorship. In those years of complete isolation the Rule of Law, legal professions and legal education were non existent; everything had to be build up from zero. That september a group of young Albanian students came into the Utrecht Law School building to start their studies in The Netherlands. Their studies were funded by a Dutch Foundation, cooperating with the Open Society Intsitute2 in Tirana.
That group of students has moved back to Albania in the course of time or is working in the interests of Albania from positions outside Albania. One of them serves a major Law Firm in their business with South East Europe, one of the works for Vodafone Albania; one of them serves the organisation Terre des Hommes, and one is working for the Albanian Constitutional Court; one of them is writing a dissertation on European Law in London; one is a member of Parliament and one is the current Foreign Minister in the Albanian Government. Sometimes it is not easy to see and understand what it actually means for a country, an institution, an individual, what one is doing when one tries to bring about change. But sometimes, when examples like these come to mind, it is not difficult at all.
The Mission of Universities In the Magna Charta Universitatum3, signed in Bologna by the Rectors of European Universities in 1988, it is stated that the universities’ task of spreading knowledge among the younger generations implies that, in todays’s world, they must also serve society as a whole.
1 Matra stands for ‘Maatschappelijke Transformatie’ (Transformation in Society). It is a programme of the Dutch Foreign Ministry for the development and strengthening of civil society in the accession-countries to the European Union, see www.minbuza.nl. 2 Open Society Institute is part of the Soros Foundations Network, and aims to build vibrant and tolerant democracies, whose governments are accountable to their citizens, see www.soros.org. 3 The Magna Charta Universitatum is a statement signed in Bologna on September 18th, 1988 by the Rectors of European Universities, gathered to celebrate the 9th centenary of the oldest University in Europe.
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And in the Bologna Declaration of 1999 the Ministers of Education of 29 European countries stated: A Europe of Knowledge is now widely recognised as an irrepla-ceable factor for social and human growth and as an indispensable component to consolidate and enrich the European citizenship, capable of giving its citizens the ne-cessary competencies to face the challenges of the new millenium, together with an awareness of shared values and belonging to a common social and cultural space.1
The Mission Statement of my own University (Utrecht)2, states five objectives, which – I imagine – are not that different from those of other universities: • Educate young people; • Train new generations of researchers; • Produce academics who have both specialist knowledge and professional skills; • Conduct groundbreaking research; • Address social issues and work towards solving them.
It is not uncommon for universities to recognize their role in society, nor is it uncommon for society to recognize that universities have a role to play in that respect. Sometimes it is problematic to put that role into practice, since universities are financed (and staffed) according to their two other (primary) roles: education and research. It is, however, my strong belief that 1) it is through education and research that the role is implemented, and 2) working on change in society at home and abroad has vice versa a direct impact on (the enhancement of) one’s own edcuation and research. The contradiction between education and research on the one hand (as the so-called ‘core-business’ of universities) and their role in society, is a false one. Education and research are the tools, and they are the beneficiaries of the universities’ social responsibility.
The role of Law Schools in society An active participation in the solution of different issues and problems in society can very well be an aspect in all university disciplines. It has, however, a special place within the context of the Law School, since Law is a discipline with a clear normative connotation. Law is by definition not a value-free subject-area. Not in the sense – of course – that one solution to a specific legal problem is the ‘right’ solution and the other one is the ‘wrong’ solution, but in the sense that ‘Law as a discipline’ requires a common understanding of the fundamental values that uphold the Rule of Law in a given society, and in international society for that matter. Definitions of the rule of law fall into two categories: (1) those that emphasize the ends that the rule of law is intended to serve within society (such as upholding law and order, or providing predictable and efficient judgments), and (2) those that highlight the institutional attributes believed necessary to actuate the rule of law (such as comprehensive laws, well- functioning courts, and trained law enforcement agencies). For practical and historical reasons, legal scholars and philosophers have favored the first type of definition. Practitioners of rule-of-law development programs tend to use the second type of
1 The Bologna Declaration was signed on June 19th 1999 by 29 European Ministers of Education, following the Sorbonne-declaration, signed a year earlier by the the Education-ministers of France, Italy, Germany and the United Kingdom 2 See Utrecht University website: www.uu.nl.
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definition1. This second way of defining the Rule of Law dates back – amongst others – to John Locke, who included in his definition of ‘legitimate governments’ that they are bound to govern according to standing laws and by indifferent and upright judges who are to decide controversies by those laws2 Translated to the current time one aspect of this way of defining the Rule of Law is the existence of a Judiciary schooled in legal reasoning, knowledgeable about the law, reasonably efficient, and independent of poltical manipulation or corruption.3
It is there that Law Schools have to play their role in society. They should be engaged in creating this “class of lawyers” around the globe, who by their knowledge, skills and professional integrity are capable of contributing to notions as justice, non-violence, human rights and human development.
The Utrecht-practice In the Utrecht School of Law an experience of many years has been established in participating in, as well as in initiating and coordinating these types of international activities. First of all – naturally – the Law School is open for students, PhD-candidates and scholars from all over the world: those coming from exchange-partners, and those coming on scholarships. Not only accepts the School candidates who have already obtained a scholarship, but it also actively seeks scholarships through its Utrecht Law Stipend Foundation, which has been successful in receiving funds from law-firms and companies, as well as private foundations, such as Oxfam-Novib. In this respect the Utrecht School of Law has started a promising cooperation with five Indonesian partners, through which students, PhD-candidates and staff studies and works in Utrecht on the basis of funding of the Indonesian Ministry for Research. Secondly the Law School is actively engaged in activities related to Central and Eatsern Europe and the former Soviet Union. In the 90-ies through the EU Tempus Programme a lot of work has been done in countries which have now acceded the EU, like Poland, the Czech Republic, Hungary and Slovakia. In Kazakhstan the Law School has participated in a Tempus- project aimed at creating a Centre for European Law at the Kazakh Humanities and Law University in Almaty. The activities in Albania have already been mentioned. Finally the Dutch Ministry of Foreign Affairs subsidized the training of Prosecutors in Human Rights Law in Bulgaria, and of Candidate Judges at the Justice Academy in Ankara, Turkey. Through a project of the Public Interest Law Institute (PILI)4, called ‘Promoting sustainable Reform of Legal Education’ the Law School has been working with colleagues in the Ukrain, Georgia, Moldova, Armenia and Kirgistan. In the framework of the development cooperation policy of the Dutch government the Utrecht School of Law is carrying out two projects and participates in a third, all aiming at
1 Rachel Kleinfeld Belton, ‘Competing definitions of the Rule of Law; implications for practitioners’ Carnegie Papers, Rule of Law series, nr. 55, January 2005, p. 3. 2 John Locke, Treatise II, p. 131, quoted in Rachel Kleinfeld Belton ‘Competing definitions of the Rule of Law; implications for practitioners’ Carnegie Papers, Rule of Law series, nr. 55, January 2005, p.16 3 Rachel Kleinfeld Belton, ‘Competing definitions of the Rule of Law; implications for practitioners’ Carnegie Papers, Rule of Law series, nr. 55, January 2005, p.16 4 PILI, the Public Interest Law Institute, is an international NGO that advances Human Rights around the world by stimulating public interest advocacy and developing the institutions necessary to sustain it, see www.pili.org.
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upgrading the curriculum, the human resources and in some case the material conditions at partner Law Schools in Guatemala (CUNOC in Quetzalte-nango), in Rwanda (the National University of Rwanda in Butare, and the Free University of Kigali) and in Ethiopia (the Law Schools in Bahir Dar and Jimma). The Netherlands Embasy in Kigali (Rwanda) supported the establishment of a Human Rights Information and Documentation Centre for the Great Lakes District (Rwanda, Burundi and the Congo). With private funding Human Rights education has been implemented for the South Sudanese Civil Society (in Nairobi) and for those in the North in Khartoum. Finally the Law School is engaged in two major European Projects. One is funded by the EU Alfa-programme within the framework of a large consortium with five European partners and seven partners from different Latin American countries with a focus again on Human Rights Law. The other one is funded by the EU Asia Link Programme and aims at upgrading Human Rights and Good Governance Education at the partner Law Schools of Ulaan Baator, Mongolia, and the University of Indonesia in Jakarta.
The role of the International Association of Law Schools The International Association of Law Schools (IALS) has – in my opinion – three possible roles to play in this respect.
First of all it can serve as a platform of debate between law schools and legal scholars from many different legal systems, from diverse social and cultural backgrounds, from behind political lines of division, from countries with different levels of economic development and material conditions, and from different traditions in teaching and research. A debate on the fundamental questions around (the promotion of) the Rule of Law, on what we have in common, on the values, knowledge and professional skills which are necessary in a lawyer working in an international environment, and on the teaching methodologies to bring about those values, knowledge and skills.
Secondly the IALS is the natural meeting place for law schools amongst each other and between law schools and other players in the field. In that respect the ‘universal’ character of the organisation is essential. Law schools can be in contact, not only in meetings but also in between meetings through the internet and through the services of the organisation offered. Through these contacts arrangements and agreements can be reached on bilateral and multilateral forms of cooperation and exchange. In particular it can serve as a clearinghouse for international projects in finding partner-faculties as well as individuals to participate in those projects.
Thirdly the IALS could build up a database of organisations and funds related to the promotion of the Rule of Law ranging from programmes of intergovernmental organisations (the United Nations system, the European Union and the Council of Europe, other regional organisations) to specific non-governmental organisations and foundations (such as the Carnegie Foundation, the Ford Foundation, the Open Society Foundation etc.). And it could open up channels to those organisations by representing its membership.
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Juan Enrique Vargas Dean of Law Diego Portales University Chile
In Chile, the teaching of law and the role of law schools are under fire these days. Recent bar admission figures released by the judiciary have sparked heated debate about a legal market glut and the quality of new graduates.
Clearly, such a debate involves entirely separate issues. If world indicators are anything to go by, Chile is far from labouring under an oversupply of lawyers. Chile has 13.3 practitioners per 100,000 population, far fewer than Argentina (35.3), Brazil (28.1), Canada (22.4), or even New York State (20.4), to name a few countries with contrasting conditions. Just how many lawyers is the right number is not a question that legal research has answered. What we do know is that countries with a degree of development matching ours do have many more legal practitioners. Furthermore, claims of rampant unemployment among new graduates are plain off the mark. The legal profession and justice system have grown remarkably in recent years, providing the public with unprecedented access to legal services and creating many new job opportunities for lawyers. All of this is possible precisely because Chile has more lawyers. Fully 92 percent of graduates are practicing law two years after leaving school, a figure that grows to 96 percent by year four. Law is the sixth best-paid profession, with income averaging US$18,500 in year one and US$36,500 in year five. Clearly, Chilean legal practitioners are in no risk of facing impecuniousness.
That said, not all law graduates are created equal. Well-regarded, reputable law schools coexist with others of more questionable standing. Needless to say, the difference does not lie in the private or public status of a particular institution. Since clients are in no position to evaluate a lawyer’s proficiency but stand to suffer the consequences if counsel is less than competent, the question of training quality is most certainly one that has to be carefully looked at. The way Chilean universities provide such assurances is through certification by the National Accreditation Commission, which evaluates consistency between goods promised and goods delivered. For law schools, however, accreditation remains optional and only nine of 42, including ours, are certified. To move forward in this regard, the logical policy course would be making accreditation mandatory or at least providing compelling reason for schools to submit to the process. Alternatively, and based on standard practice elsewhere, some are suggesting that law graduates pass a test, similar to those required of medical school graduates. The issue with this idea is that it might tend to standardize legal education, discouraging innovation at a time of mounting unhappiness with conventional legal training. Chances are that such a test would end up rewarding less than thoughtful students who excel at committing legal codes and textbook definitions to memory.
Contextual considerations aside, our Faculty is fully cognizant of its role in a field undergoing a sea change. Vastly expanded demand for legal services in recent years, and the transformations this development has brought about, are plain to see. However slowly, consolidation of a rule-of-law democracy has brought forth a slew of transformations, notably criminal justice system reform and its system of adversarial oral hearings. The
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reform, spearheaded by this Faculty, subsequently led to other changes in specific areas. This, in turn, translated into new institutions and strong justice system growth. Demand for lawyers is up because of the resulting new positions and because the justice system is more receptive to issues, cases, and claimants that did not formerly enjoy access to the formal dispute settlement system. The exponential rise in litigiousness attests to this: new case filings have increased by a third within the past two years alone.
Yet, judicial reform is not the sole cause of the new scenario. The market itself has expanded significantly. Most importantly, public policy has turned what used to be -at best- mere concessions from the authorities into enforceable, justiciable rights. This is the case in such areas as social security, health, and soon in education.
Such an all-embracing process of change requires our Faculty to cast a critical eye on its teaching values. As early as 2000, our concern for quality prompted radical changes in our curriculum and teaching goals. We evolved from dispensing knowledge through lectures to a new emphasis on acquisition of the skills and abilities required by the legal profession. We moved from a set annual programme to a more flexible, semester-based curriculum allowing students to select at least part of their course load based on their own interests. The pursuit of higher quality standards also translated into a sustained emphasis on research and an associated increase in full-time faculty.
While these transformations have successfully helped the Faculty adapt to a changing profession, they are not enough. As a result, today we are taking on the challenge of moving substantially forward in additional areas.
This Faculty has left a deep mark on Chilean judicial policymaking and implementation. We have spearheaded innovations that have led to substantial changes in legal institutions -in the field of criminal justice, as noted, but also in youth, labour, and family law. To keep moving forward, we are working to co-ordinate and systematise the full range of our efforts. Our recently established Centre for the Modernisation of Justice is expected to play a key role in monitoring and evaluating judicial reforms underway, implementing new changes, and tackling pending challenges, such as civil and judicial governance reform.
Our Human Rights Centre, a well-known voice for awareness and fulfilment of fundamental rights throughout Chile and the region, is also undergoing change. For example, efforts are underway to further leverage the impact of the rights compliance review contained in the Centre’s annual Chile Human Rights Report.
We also remain committed to improving linkages with the larger society around us. We are building up our Environmental Law and Policy Programme and are working on a new Constitutional Issues Programme with a particular focus on constitutional justice. We strive to be responsive to the needs of the legal profession and to focus our work on areas known to be of special practitioner interest. Future efforts by the Fueyo Foundation, an institution fostering development of Chilean private law, will be pointing in that direction. Plans for this year include a Litigation Programme designed to transfer the criminal justice strategies and techniques adapted at this Faculty -which later became the way to teach the
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subject at law schools throughout the country- to other areas of the justice system, including those awaiting reform. We are confident that these efforts will help transform traditional approaches to procedural law in areas as sensitive as civil and commercial law.
Yet, these considerable efforts could be meaningless unless they strongly impact our teaching scholarship. As such, we are working on two-way linkages. In addition to actively involving students in research and outreach, we ensure that our researchers and their deliverables play a key role in defining both graduate and undergraduate offerings.
This year, Faculty members will be partaking in a thorough stocktaking process ultimately designed to enrich our curriculum. For a start, next year we are launching a Master of Laws Programme designed to offer our best graduates a chance to acquire further expertise in relevant areas of the law by just adding another semester to their course of studies.
Such are the leading challenges currently facing our Faculty.
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256 The Role of Law Schools and Law School Leadership in a Changing World
The Goals and Objectives of Law Schools Beyond Educating Students: An empirical study, based on qualitative data
Fernando Villarreal-Gonda* Academic Dean Facultad Libre de Derecho de Monterrey Mexico
Factual context. A recent dissertation submitted to Stanford Law School confirms that, in 2003, the law degree was the degree program with the highest enrollment in Mexico -11 out of 100 students opted to study law-. In 2007, 930 institutions of higher education were offering the law degree in Mexico. In that year, law school enrollment was 240,000.1 2
Legal context. Since 1980,3 the Mexican Constitution mandates that universities shall carry out the purposes of educating, doing research and promoting culture.4
Preliminary Literature Review. There is a vast literature on such constitutional goals. However, there is a great distance between Mexican law as it is enacted and its application,5 so any legal analysis of the constitutional text would be vacuous without any reference to reality. Furthermore, documentary research on the issue may easily lead to mere official truths. In any case, it is hard to find any pertinent data on the mission of law schools in specific.6
Field Research. Thus, I discarded any attempt to perform documentary research on this issue. In contrast, I preferred to conduct a qualitative research study, based on 15 semi- structured interviews, in order to determine the perceptions, fresh views and opinions of people playing different roles and responsibilities at a law school.
Interviewees. The sample included deans and former deans, full-time, part-time and adjunct professors of law, non-law professors, law librarians, law students, law school alumni and
* Academic Dean, Facultad Libre de Derecho de Monterrey, Mexico. Licenciado en Derecho, Universidad de Monterrey, 1985. LL.M., Harvard Law School, 1990. DEA Droit International Privé et Droit du Commerce International, Université de Paris I, 1991. Maestría en Docencia Jurídica, Facultad Libre de Derecho de Monterrey, 2007. Board member of the IALS. 1 Pérez Hurtado, Luis Fernando, The Next Generation of Lawyers: A Study of Mexico’s System of Legal Education and Its Law Students. Stanford Dissertation, May 2008. pp. 1, 11, 28. Cf www.educacionjuridica.org 2 In those circumstances, an International Conference on the role of law schools becomes extremely relevant. 3 Constitutional Amendment Act, published on June 9, 1980. 4 Supreme Court of Justice, Political Constitution of the United Mexican States. Mexico, SCJN, 2005. http://www.scjn.gob.mx/PortalSCJN/RecJur/Legislacion/ConstitucionPolitica/ConstitucionPolitica.htm For another translation, see: Pérez Vázquez, Carlos, The Political Constitution of the United Mexican States. Mexico, UNAM, 2005. http://www.juridicas.unam.mx/infjur/leg/constmex/pdf/consting.pdf 5 Villarreal Gonda, Fernando, The Three Most Important Features of My Country’s Legal System that Others Should Understand: Mexico. In: Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World. International Association of Law Schools Conference, Soochow University, Kenneth Wang School of Law, October 17-19, 2007. 6 “Despite its importance, there are only a few studies of legal education and very little is known about the subject. Most of the works on this topic present anecdotal accounts or personal points of view about the current characteristics of, or suggested improvements for, legal education in a particular university or group of universities” Pérez Hurtado, ob. cit., pp. 3, 7.
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common citizens. All individuals possess higher education degrees, most of them in law, and others in library science, economics, education, literature, marketing and sociology. Most respondents studied in private higher education institutions and some in public universities. Most are men and slightly less than half women.
Interviews. I prepared an interview guide comprising 5 questions. Most interviews were conducted in person and some by phone. First, I explained the purpose of the interview. Then, to establish a rapport and to introduce the theme, each interviewee was invited to accept the premise that the primary goal of a law school is to educate its students.
Question 1. My first question was “Do you think that the role of the law school comprises something else than educating its students?” When posing the question, I intended not only to examine their opinion, but also to observe their behavior -the way in which the answer was given-. Almost all interviewees gave clear, direct answers as opposed to a small minority who expressed some dubitation (e.g. “Educate … in a broad sense?”, “Educate in Law exclusively?”). Again, the vast majority of the interviewees answered a clear “yes, the law school mission comprises something else”.
Question 2. Answers given to question 1 led me to ask, “Can you mention some of these goals that go beyond educating students?” Again, I intended to examine not only the answer, but also the way in which it was given –the behavior of the respondents-. Again, the vast majority of the interviewees gave straight answers. However, it was very surprising that almost all those answers were much more closely related to the law schools’ primary role of educating students.
All answers were in fact broadening learning objectives: • Some of them highlighted the human component, declaring that law schools should teach students to be good human beings, ought to expand the students’ horizons in all domains of human endeavor and must bring out students’ maximum potential; • Others underlined the intellectual skills –associated with good lawyering-, saying that law schools should teach thinking skills -including critical and creative thinking- and advance knowledge through research; • A third group stressed personal and professional attributes, expressing that law schools should develop in their students a sound set of values and, in particular, must inspire the search for justice; • Then, others pointed out social attitudes, stating that law schools should provide enhanced networking opportunities, promote respect and encourage tolerance; and • Finally, others emphasized knowledge, telling that law schools should provide a broad legal culture, as well as a better understanding of the institutional, political and social context in which the law operates.
In brief, when asked about the goals of law schools that go beyond educating students, respondents sharply accused that providing a substantial body of knowledge of law –the “black letter” law- was insufficient. But, instead of listing secondary goals –as I was honestly expecting-, the vast majority of the interviewees pointed out elements that only add to the fundamental purpose of the law school.
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Question 2b. Due to the aforementioned responses I had to persist and ask: “But still is there something else?” One third of the interviewees, after a careful consideration, bluntly said that the intention of a law school was only to educate its students. Some of them tried to justify their answers (e.g. “To educate the future lawyers and to inspire them in the search of justice is already a tremendous task!” or “To teach the law students to be good human beings is enough!”)
On the contrary, two thirds of the respondents, after deep reflection, began listing other roles of law schools –i.e. from 1 to 6 objectives-, but it is important to underline that in all cases answers were awfully doubtful.
In essence, those opinions converged on the responsibility of higher education institutions to serve the community. Nonetheless, they seemed to give relative importance to one or more of the following roles: • To advance knowledge through legal research; • To facilitate access to justice for poor communities; • To build public opinion regarding legal issues and even be a discordant voice in social dialogue; • To disseminate knowledge to the community on legal matters; • To be involved in the law-making process; and • To provide continuing legal education.
Further, opinions were divergent as to who should be the main beneficiary of those functions. For example, some may think that legal research is a major contributor to legal scholarship and to advancement of legal knowledge (i.e. “research seeks to enhance jurisprudence”), while others emphasize that it is a key ingredient for faculty improvement (i.e. “the research aim is to enrich the faculty experience”), and still others think that doing legal research is a key element of learning (i.e. “students should take part in scholarly inquiry”).
Finally, a minority said that the law school could pursue those objectives alone on in combination with other institutions, including other private sector organizations.
Question 3. A third question was asked to those individuals who mentioned more than one secondary role (one third of the interviewees had said that law schools play only a fundamental role, and a few only mentioned one secondary role): “In your opinion, is there a hierarchy among those secondary goals that you mentioned?” Answers could be divided into two groups. On the one hand, I found those who think that secondary goals of law schools may not be superior or subordinated to others. This group basically thinks that the significance of secondary roles frequently changes in the context (e.g. “If I find that the general public is reluctant to read legal dissemination works, I would rather organize legal dissemination seminars”). On the other hand, I found those who think that some secondary goals are clearly more important than other secondary roles. However, those interviewees placed emphasis on totally different goals (e.g. “to disseminate knowledge to the community on legal matters”; “to be involved in the law-making process”; and “to facilitate access to justice for poor communities”).
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Question 4. A fourth question was asked to those individuals who mentioned secondary goals (remember that one third of the respondents had said that law schools play only a primary role): “In your opinion, is there a hierarchy between the primary role and any secondary goals?” Voices converged to point out that educating students is far more important than any secondary goal.
Question 5. Finally a fifth question was asked to those individuals who mentioned that law schools play secondary roles: “In your opinion, how do these secondary roles relate to the primary role of educating?” Voices converged to stress the mutual influence between them (e.g. “The primary role and all secondary missions are mutually corresponding: the community defines the law school; the law school defines the community”) (e.g. “There is a very close link. Such secondary roles are only functional in connection with a law school -for example: a legal research center run by a law firm is not prosperous-. In its turn, education is not education at all if it is disconnected from such secondary roles –students must contribute to the secondary functions-.”).
Preliminary Findings. Respondents showed clear logical coherence and evident order of arrangement when they talked about educating law students –they were able to point out specific legal knowledge, lawyering skills and human, professional or social attributes to be learned by students-. However, when they were challenged to face other roles of the law school, they showed dubitation and lack of confidence: secondary roles, their beneficiaries, their relative importance and their hierarchy are not free from obscurity in the minds of key people who play important roles at law schools. Naturally, if the “point de départ” is ambiguous, implementation may be impossible. This may be a reason why “less than 20% of the institutions of higher education that offer the bachelor’s degree in law (Licenciado en Derecho) are involved in research or in academic extension activities”.7
7 Pérez Hurtado, ob. cit., p. 28.
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Plenary III
How do We Actually Achieve our Goals?
Strategies and Techniques to Realise our Ambitions
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262 The Role of Law Schools and Law School Leadership in a Changing World
Reflections on Teaching Access to Justice in Law School
Reem Bahdi Faculty of Law University of Windsor Canada
“First we kill all the lawyers” William Shakespeare, Henry VI
Introduction: Lawyers’ Role in Society Shakespeare’s well known statement, “first we kill all the lawyers” highlights the role that lawyers play in protecting the rule of law. Eliminating lawyers opens the path to dictatorship because lawyers serve as a bulwark to arbitrary power and reinforce the importance of justice and human rights. This image of lawyers as protection against arbitrariness and injustice has been brought into high relief since September 11 as Canadian and American governments have, to varying degrees and in varying ways, justified torture as a legitimate counter-terrorism strategy.1 Against this context, some members of the legal profession have shown remarkable dedication and perseverance in offering their time and talents to hold their governments accountable to fundamental human rights norms, including those that prohibit torture.2
Yet, Shakespeare’s dictum is not entirely accurate. As is all too clear, lawyers can be enlisted by unscrupulous or negligent officials in processes which denigrate the rule of law and warp fundamental values such as human dignity and equality. Lawyers in Canada, a country which professes fidelity to the rule of law, have demonstrated a willingness to participate in breaches of fundamental human rights norms, including the prohibition on torture.3 The same is true in the United States. In both systems lawyers have justified state participation in torture. Despite the clear prohibitions on torture in both national and international law, lawyers have harnessed the knowledge and skills developed in law school to finesse definitions and redefine norms for the explicit purpose of enabling or obscuring official complicity in torture.4
1 The complicity of Canadian officials with torturing states is document in two Commissions of Inquiry. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar – Analysis and Recommendations, (2006) and The Internal Inquiry Into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, (2008), online: http://www.iacobucciinquiry.ca
2 In Canada, these lawyers include dedicated individuals such as Barbara Jackman, Paul Copeland, Barbara, Alex Neve and Jasminka Kalajdzic.
3 Paul Copeland has chronicled some of the ways in which Canadian lawyers have been complicit in torture. He notes, for example, that lawyers like Ward Elcock, former head of the Canadian Security Intelligence Service, have justified participation with torturing states before the Arar Inquiry while related officials have done the same before Canadian courts in security certificate cases. Similarly, justice lawyers have over claimed national security confidentiality in the Maher Arar case. For example, national security confidentiality was claimed over a memo containing the following: “On October 10, 2002, Mr. Hooper (a senior, now retired CSIS officer) stated in a memorandum: “I think the U.S. would like to get Arar to Jordan where they can have their way with him.” The Federal Court did not agree. Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar (2007 FC 766) available on-line at http://decisions.fct-cf.gc.ca/en/2007/2007fc766/2007fc766.html. Paul Copeland, Speaking Notes for Department of Justice Conference (cited with permission and on file with author). 4Lawyers arguing on behalf of the Attorney General of Canada have contended that the Convention Against Torture does not apply to Canadian officials operating abroad. Submissions of the Attorney General of Canada on the Canadian Charter of Rights and Freedoms To
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These competing roles that lawyers have taken in the national security landscape are not simply reflective of the adversarial stance that lawyers generally find themselves in. Rather, they reflect a larger debate about the proper role of lawyers in society.5 Some contend that lawyers can and should only be enablers; they simply canvass the range of legal possibilities for their clients without regard for underlying morality or the impact of their analysis. Morality is not integral to the lawyer’s job. Others consider the lawyer-as-enabler paradigm symptomatic of a larger crisis within the legal profession, a profession which has come to exist largely to perpetuate profit or court influence without regard for the larger good.6 They note that the professionalism crisis has roots in law schools. In response, some advocate for various instruments to enhance professionalism within law faculty, including the adoption of a code of conduct for students.7
Critics might charge that codes of conduct, while benign on their face, can undermine individuality and free expression because they risk perpetuating and institutionalizing majoritarianism within law schools. The concern is that a code of conduct can become one more means for ensnaring unpopular views and opinions on campuses. Ultimately, such snuffing out of dissent undermines the very morality and courage to move against the tide that codes of conduct ostensibly aim to protect. Such criticism has less to do with codes of conduct themselves and more to do with the manner in which they are implemented.
The Internal Inquiry Into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, (January 25, 2008), online: http://www.iacobucciinquiry.ca/pdfs/documents/2008-01-25-Submissions-re-Charter.pdf. (Iacobucci Inquiry). For a brief overview and critique, see Reem Bahdi “Commentary: Justice Department Justifies Contracting out of Torture” Lawyer’s Weekly, February 01 2008 available on-line at: http://www.uwindsor.ca/units/law/newschannel/archives/facW08.nsf/inToc/0A970675C3CA3C7A8525747A0044D61B?OpenDocument
In the American context, the now infamous story of a series of memos from several lawyers advising the Bush administration, including Deputy Assistant Attorney General John Yoo and White House Counsel Alberto Gonzales has been documented in a series of excellent books including Philippe Sands Torture Team: Rumsfeld's Memo and the Betrayal of American Values (Palgrave Macmillan, 2008). These memos, inter alia, sought to redefine the meaning of torture and arguing that the Geneva Conventions did not apply to Guantanimo Bay detainees. The memos were released on April 16, 2009 by the Department of Justice and are now available at http://www.aclu.org/safefree/general/olc_memos.html
5 The debate is canvassed and addressed by my colleague at the University of Windsor, David Tanovich. See for example, Law's Ambition and the Reconstruction of Role Morality in Canada Dalhousie Law Journal, 2005 . Professor Tanovich argues that there is a disconnect between the role lawyers want to pursue (i.e. a facilitator of justice) and the role that they perceive the profession demands they play (i.e. a hired gun). He argues in the paper that over the last 15 years, Canadian lawyers have been engaged in a process of role morality reconstruction. Under this reconstructed institutional role, lawyers are problem-solvers whose mandate is to seek justice not only for their client but also for the broader legal, social and political system within which they operate. He holds that an ethic of client-centered zealous advocacy has slowly begun to be replaced with a justice-seeking ethic that seeks to give effect to law's ambition. The paper is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=764606
6 See for example Philip Slayton, Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession (Penguin). Slayton is a former dean of law at the University of Western Ontario. In an interview with McLean’s Magazine, Slayton was asked the following question and gave the following response: “You taught law for 13 years, both at McGill and the University of Western Ontario, where you were the dean of law. Is there something about legal training that nudges lawyers toward amorality? Yes, I think so. Law students are taught and lawyers subsequently believe that it is not their job to pass judgment on their clients as people, or to pass judgment on what their clients want to do. Lawyers are enablers. They are there to try to do what their client wants, and are in many cases paid handsomely for it. The whole question of the values behind the rules of the legal system is not on the whole of great interest to law schools or the legal profession. And there’s an additional point: lawyers are taught to manipulate the rules in favour of their clients. If you’re a manipulator of rules, then you can’t respect the rules as such or believe that they incorporate important values. The full interview is available at http://lesstewart.wordpress.com/2009/01/14/lawyers-are-rats-a-top-legal-scholar-exposes-the- corruption-of-his-professio/
7 David Tanovich, “Learning to Act Like A Lawyer: A Model Professional Code of Conduct for Law Students” forthcoming Windsor Yearbook of Access to Justice – Special Issue in Honour of Rose Voyvodic (2009). See also Steven K. Berenson , “What Should Law School Student Conduct Codes Do?” May 5, 2004 available on-line at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=529442
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The challenge for law schools is how to support law students to think about the role of lawyers in society, build dedication to justice and the rule of law broadly understood, encourage risks and standing outside of the mainstream, while at the same time nurturing the adversarial skills needed to practice law and serve the client’s interests.
The University of Windsor’s Access to Justice Course The University of Windsor’s Faculty of Law has sought to address the challenge of educating socially conscious lawyers by introducing a course entitled Access to Justice. I co-teach the course, which is, in many respects, still very much a work in progress. The course is mandatory for all first year law students. To the best of my knowledge, Windsor is the only law faculty in Canada which requires students to take a course focused on justice and access to justice as pre-requisite to obtaining a law degree. Access to Justice represents an institutional theme of our faculty.8 We place great emphasis on the course. This is reflected in the teaching resources that are dedicated to it and in the credits that are attached to it. The course is taught by a core team of 5 instructors along with a host of guest speakers.9 It is assigned 6 credit hours, more than traditional first year courses such as criminal law for example.
As we enter into the course’s 6th year, this paper offers preliminary reflections on the course’s content, objectives, methodology, challenges and results.
Course Content The following description of the course is taken largely from our course guide. The guide is handed out to students at the beginning of the year. We begin by defining key questions and asking students to keep these questions in mind throughout the year: What does the ideal of ‘access to justice’ mean? What are the implications of a commitment to that ideal regarding the law in contemporary Canada? We note that these questions animate access to justice both in terms of this course and as an institutional theme of the University of Windsor’s Faculty of Law.
We advise students that we will explore various issues using the ideal of access to justice as our principal reference point and guide. At the same time, we discuss the relationship between the ideal of access to justice and other ideals of central importance in law, particularly the rule of law and equality. We critically analyze the substance and process of law in the modern Canadian administrative state. We begin by plainly set out for students that law can be and has been an instrument of oppression.10 We also pay attention to the extent to which the legal profession has both promoted and hindered access to justice in various legal contexts. Our ultimate objective is to provide a foundation for understanding and applying the ideal of access to justice in specific contexts.11
8 See Welcoming Remarks of Dean Bruce Elman to the Class of 2011 available at http://www.uwindsor.ca/units/law/LawTop.nsf/SubCategoryFlyOut/C7FC02FE59D72786852574BB0056A1E3 9 The instructors for 2008-2009 include Bill Bogart, Laverne Jacobs, Jasminka Kalajdzic, Amanda Burgess and myself.
10 See for example C. Backhouse, “What is Access to Justice?” in J. Bass, W. Bogart, and F. Zemans (eds.) Access to Justice for a New Century – The Way Forward (Toronto: Law Society of Upper Canada/Irwin Press, 2005).
11 We introduce students to a particular access to justice framework set out in R. Macdonald, “Access to Justice in 2003 – Scope, Scale, Ambitions” (Foundation Paper prepared for Law Society of Upper Canada, International Symposium on Access to Justice, May 2003).
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The course is divided into three main parts.
Part I “Foundations” addresses: critical analysis; “what is access to justice?”; the rule of law; and, the impact of law in achieving justice. Part I invites basic discussion of access to justice and its ramifications. The following are some “foundational” points that are discussed:
a) Critical thinking and analytical skills are important for all courses; clearly for this one. This course invites questions regarding the law itself: how it supports the achieving of justice; how it contributes to injustice. In responding to those questions, capacity for critical thinking and analytical skills need to be supported and enhanced.
b) “What is access to justice” is a fundamental question that needs to be asked right at the beginning of the course. It implicates several issues, including the differences between formal and substantive equality, a distinction that is crucial to Canadian jurisprudence.12 It is a question that we revisit many times throughout the course. At the outset we provide a framework for responding to that question “What is access to justice” while recognizing that there is no commonly accepted answer.
c) We also discuss some basic attributes of what constitutes “good law”. In that regard we discuss the “rule of law” and its relationship to “good law” and “access to justice”.13
d) We examine the impact that law has on underlying social, economic, and political issues as part of a basic understanding of “access to justice”. “Access to justice” issues arise not only with regard to law itself, but also with regard to law`s actual effects. A law “on the books” may seem just but the consequences that it produces may be quite unjust. At the same time gauging the effectiveness of law and employing the right legal tools (litigation, criminal sanctions, tax law and so forth) to achieve justice is often a complex task.14
Part II “Courts and Access to Justice” considers the process and methodology of judicial decision-making from the perspective of access to justice. Courts have long played an important role in the legal organization and regulation of Canadian society. In such first year courses as Criminal and Property Law you study the work of courts in resolving disputes of a particular kind or subject matter. We take a step back and seek to understand and assess the general decision-making process of courts and the methodology of judicial reasoning. In so doing, we seek to identify the ways in which that process and methodology can advance or hinder realization of access to justice.
To begin, we explore the variety of perspectives that judges can use in grappling with legal questions and see how different perspectives can lead to different results.15 We also
12For an excellent analysis of equality jurisprudence in Canada, see Diana Majury, “Equality Kapped: Media Unleashed” forthcoming, Windsor Yearbook of Access to Justice – Special Issue in Honour of Rose Voyvodic (2009).
13 Three leading Canadian cases that discuss the rule of law are: Reference re: Secession of Quebec [1998, SCC]; British Columbia v. Imperial Tobacco Canada Ltd., [2005, SCC]; and Charkaoui v. Canada [2007, SCC]
14See generally W.A. Bogart, Consequences: The Impact of Law and its Complexity (Toronto: University of Toronto Press, 2002).
15Students tend to enjoy reading L. Fuller’s classic, “The Case of the Speluncean Explorers” which we supplement with Coombs, M. and Greene, D., “Speluncean Explorers- Contemporary Proceedings.”
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examine the rules and techniques of judicial interpretation.16 We then move on to an examination of the various factors that influence people`s willingness and ability to assert or defend their legal rights. An important factor, upon which we focus, is the high cost of litigation.17 We identify the implications of these costs for access to justice and consider recent judicial and other responses.18 We also introduce class action proceedings.19
Next, we seek to shed light on the common instinct, at least among lawyers, to use litigation as a means of social reform. In particular, we consider the extent to which courts can competently and effectively undertake or review social policy. This leads us into a case study of social reform.20 We focus on the role of courts in relation to a particular group of people who, due to their social inequality, are vulnerable to being denied their rights and explore the extent to which they have been successful in using the courts to assert their rights. We also examine the question of litigation and social change in relation to Metis and Aboriginal rights claims.21
These discussions all help set the stage for considering the advantages and disadvantages of alternative methods of dispute resolution, such as mediation. To that end, we introduce students to the general principles of Alternative Dispute Resolution (ADR).22
Parts I and II are covered in the Fall semester.
In the Winter semester we move on to Part III “Legislatures, Administrative Bodies and Access to Justice”. Courts are but one institution of the Canadian legal system. Legislatures and administrative bodies play an equally important, if not more important, role in the legal organization and regulation of Canadian society. Legislatures are a fundamentally important source of law because they provide us with statutes or legislation. Administrative bodies, including government departments and arms-length regulatory agencies, are
16 For a brief introduction, see A. Hutchinson & P. Marshall, “Making Moves: Legal Reasoning” in The Law School Book: Succeeding at Law School, 2nd ed. (Toronto: Irwin Law, 2000), pp. 73-85
17 Morrison, Ian and Janet Mosher, “Barriers to Access to Justice for Disadvantaged Groups” Ontario Law Reform Commission, Rethinking Civil Justice: Research Studies for the Civil Justice Review (Toronto: Ontario Law Reform Commission, 1996), Vol. 2 and M. Trebilcock, Report of the Legal Aid Review 2008.
18Three important Canadian cases concerning costs and cost rules are: Polewsky v. Home Hardware Stores Ltd., [2003] O.J. No. 2908; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), [2007] 1 S.C.R. 38, 2007 SCC 2; British Columbia (Attorney General) v. Christie, 2007 SCC 21.
19For an introduction to class actions in Canada, see Kalajdzic, J., Bogart, W.A. and Matthews, Ian, “Class Actions in Canada: Country Report Prepared for The Globalization of Class Actions Conference”, Oxford University, December 2007, published in Annals of the American Academy of Political and Social Sciences in Jan. 2009
20 This year, we focused on the debate over same-sex marriage in Canada. Some of the resources we examined include: Miriam Smith. 2005. "Social Movements and Judicial Empowerment: Courts, Public Policy, and Lesbian and Gay Organizing in Canada." Politics & Society 33: 2; Miriam Smith. 2005. "The Politics of Same-Sex Marriage in Canada and the United States." PS: Political Science and Politics 38:02; Reference Re: Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 S.C.C. 79, par. 40-60; Halpern et al v. Attorney General of Canada et al [2003] 225 D.L.R. (4th) 529 (C.A.) (Ont. C.A.); Lynn D. Wardle. 2006. “The ‘End’ of Marriage.” Family Court Review, 44:1.
21 See for example Jean Teillet, “The Role of the Natural Resources Regulatory Regime in Aboriginal Rights Disputes in Ontario” for The Ipperwash Inquiry, March 31, 2005.
22My colleague Julie Macfarlane is the leading Canadian academic in this area. The key works we assign to students include Dr. Macfarlane’s “The Mediation Alternative” in Rethinking Disputes: The Mediation Alternative, (Toronto: Emond Montgomery, 1997) and excerpts from her acclaimed book, The New Lawyer (UBC Press, 2007) along with “Transforming Relationships Through Participatory Justice” (2003) Law Commission of Canada.
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creatures of statute. They can be significant sources of law, but they also take on most of the burden of implementing laws, promoting and monitoring legal compliance, and resolving legal disputes. An understanding of the decision-making processes and methodologies of legislatures and administrative bodies is therefore fundamentally important for any lawyer. That understanding provides a foundation for the many upper year courses that focus on specific areas of law and on these institutions, for example, labour relations and securities laws
The modern administrative state represents a defining characteristic of contemporary Canadian society. The modern administrative state includes a variety of legal institutions that create, implement and adjudicate law, ostensibly in pursuit of ideals such as equality, social justice and the common good. Over time, the Canadian administrative state has put in place an impressive array of institutions and programs (such as medicare, social assistance, public education) that have contributed to realizing those ideals. At the same time, however, sexism, racism, poverty and many other forms of discrimination and disadvantage persist in Canada: the ideals of equality, social justice and the common good remain only partially realized. Law, legal institutions and the legal profession have not only engaged and ameliorated inequality and social injustice but have also constructed and maintained them.
We begin the second semester with an overview of the administrative state and with an introduction to the concept of “tools” or “tool choices” in the context of discussing the shift towards “new governance” and the administrative state.23 Simply put, “tools” are the means chosen by government to achieve legislative objectives. Governments have different means available at their disposal to produce a particular social goal. The ability to understand what tools are available to policy and decision-makers and how to assess their impact, particularly from an access to justice perspective, is perhaps one of the most important skills aspiring lawyers can develop while in law school. Most law in Canada takes place within administrative agencies; yet, law curricula, especially in first year, tends to focus on courts and litigation. By putting an emphasis on administrative tools, we hope that our students will not only understand the tool options available in a given context but will also become proficient in assessing the access to justice consequences of adopting one tool choice over another.
We ultimately focus on a number of tools. Before we do that, however, we examine a particular area of administrative regulation in detail. Our objective in part is to allow students their first opportunity in law school to read and think about a statutory scheme in its totality. Given that this is an access to justice course, we decided to focus on the statutory schemes that govern the administration of human rights. The statutory regime used to promote human rights and regulate discrimination under the Ontario Human Rights Code underwent a radical shift in 2008. In the second term, we examine the constitutive elements of this change in governance and its consequences for access to justice. A panel of distinguished guests who represent the main pillars of the new regime set the tone for this exploration. Overall, in the second term, we discuss the Ontario Human Rights Code, R.S.O. 1990, c. H.19, international human rights law and the Accessibility for Ontarians with
23 W. A. Bogart, “The Tools of the Administrative State and the Regulatory Mix” in C. Flood & L. Sossin (eds.), Administrative Law in Context (Toronto: Emond Montgomery, 2008) .
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Disabilities Act, 2005, S.O. 2005, c. 11. In so doing, we are interested in providing an introduction to each of these regimes as discrete systems, but we also want students to think about how they compare to one another and to what extent they complement each other.24
As the term progresses, we hope that students come to realize that Canadian administrative agencies are unique: they each have their own statute, regulation and culture which define how they function. Agency uniqueness is most clearly defined by the types of tools available to those who work within its framework. Consequently, towards the end of the term, we move into an examination of some different tools: discretion, ADR, self-regulation and privatization. We present various case studies with regard to these tools to allow students to think about how the tool choices highlighted in a particular context impact upon access to justice. In terms of ADR we pursue some of the basic ideas regarding ADR that we discussed in the fall term and study their application in the administrative state in its search for more accessible and satisfactory methods of dispute resolution.
We also look at discretion as a tool of the administrative state25 and specifically examine the role of discretion in the context of national security or anti-terrorism. After discussing the different types of discretion that arise in the administrative context, we consider the pros and cons of using discretion as a tool choice to advance the national security agenda in light of access to justice. We have been fortunate to have two individuals who are intimately familiar with national security investigations – Abdullah Almalki and Shirley Heafey – join us for this module. Mr. Almalki was imprisoned and tortured in Syria. Canadian officials were implicated in his ordeal.26 Mr. Almalki was eventually released and is back in Canada where he hopes for accountability and redress. Shirley Heafey is a lawyer who formerly directed the body which overseas the work of the RCMP.
In the self-regulation context, we look at the regulation of the legal profession as our case study.27 We examine several aspects of self-regulation of the legal profession, including standards for admission, quality assurance, promotion of equity, delivery of legal services by non-lawyers and the obligation of lawyers to promote justice.28 In the privatization context, we examine the various forms of privatization and the implications of these forms by looking at a specific case-study, the deregulation of university tuition fees.29 Finally, we examine the many issues of accountability and transparency in the exercise of power in the
24 See for example Gerald Heckman, “The Role of International Human Rights Norms in Administrative Law” Chapter 12 in Colleen M. Flood and Lorne Sossin eds., Administrative Law in Context , (Toronto: Emond Montgomery, 2008).
25 See generally Mullan et al., “Use & Misuse of Discretion”, Administrative Law: Cases, Text and Materials, 5th Edition (Toronto: Emond- Mongomery, 2003), c.12, 947-95 and Justice Beverly McLachlin, “Rules and Discretion in the Governance of Canada” (1992) 56 Saskatchewan Law Review 167 along with Chapter 1, Keith Hawkins, The Uses of Discretion (Oxford, 1995).
26 Internal Inquiry Into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, online at http://www.iacobucciinquiry.ca 27 See Margot Priest, “The Privatization of Regulation: Five Models of Self-Regulation” (1997-1998) 29 Ottawa Law Review and Law Society of Upper Canada, Implementing the Law Society’s Competence Mandate: Report and Recommendations, Professional Development and Competence Committee, March 22, 2001.
28 See for example Rose Voyvodic, “Reimaging Legal Ethics After Touchstones for Change” in Elizabeth A. Sheehy, Calling for Change: Women, Law and the Legal Profession (Ottawa: University of Ottawa Press, 2006).
29 W.A. Bogart, Good Government, Good Citizens?: Courts, Politics, and Markets in a Changing Canada (Vancouver: University of British Columbia Press, 2005), Chapter 7 “The Youngest Citizens in and Education as a Public Good?”
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administrative state and the various means invoked to address such issues. We examine one such means in some detail: the Ombudsman.30
We acknowledge that the course will remain unfinished in several ways. We can only introduce concepts that will be address in various courses throughout law school. We do not purport to give the “answer” to many of the issues that will be raised throughout the year. We introduce a set of social facts that implicate access to justice. We encourage students to ask the right questions about law’s role in promoting access to justice in Canadian society. We take it as a given that Canadian society values access to justice and its constituent concepts such as equality and the rule of law. We do that in part because our courts and legislatures have repeatedly stressed this point. Access to justice is also the express theme of this Law Faculty and this course was created to reflect and reinforce this institutional theme.
Course Objectives Our course objectives are varied. We provide students with explicit examples of how we expect to meet our objectives through the course but indicate that these are only examples and that the students themselves are to think about how the issues, readings and structure chosen advance the objectives. The course objectives identified in our course guide are:
1. To provide an institutional forum for discussing the meaning of access to justice and considering its implications. 2. To enable students to understand the variety of institutions and processes of law and the variety of roles which lawyers perform in those institutions and processes. To this end, we invite speakers from across the legal profession to address the class. 3. To introduce students to the rules, principles and institutions that define and regulate the professional, ethical and public interest obligations of lawyers so that they can situate the law and the legal profession within the development and maintenance of the broader social order. 4. To enable students to analyze the relationship between, on the one hand, legal reasoning, concepts, institutions, education and practice and, on the other hand, the circumstances and sources of social injustice and inequality (such as sexism, racism, and poverty). 5. To expose students to a range of perspectives from which the appropriateness of legal doctrine, theory, institutions, and practice can be analyzed. 6. To better equip students, through a diversity of evaluative components, to develop their ability to work cooperatively in a group as well as develop analytical skills and critical thinking skills.
30 Linda Reif, The Ombudsman, Good Governance and the International Human Rights System (Boston: Martinus Nijhoff Publishers, 2004), Chapter 1 “Introduction” & Chapter 3 “The Ombudsman: Domestic Accountability and Good Governance”
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Methodology The Access to Justice course is team taught by 3 full-time faculty members and 2 adjunct professors. We meet once a week in “large group” which includes the entire first year class and is delivered in lecture format. We also meet once a week in “small group” which consists of approximately 23 students. Small group is facilitated by one of the five course instructors but most of the time is spent on student group presentations and student-driven discussions. We want to instill the notion that access to justice is everyone’s responsibility from the beginning of one’s legal career.
We make a conscious effort to invite leaders from the Canadian legal profession to lecture in the course. This lends credibility to the access to justice theme and allows students to see first hand how different members of the profession must engage justice in their work. We have been fortunate enough to have several highly respected judges such as Alan Lutfy, Chief Justice of the Federal Court, and Stephen Goudge, Ontario Court of Appeal judge and Commissioner in an Inquiry about the failings of the pediatric forensics system within Ontario, aboriginal lawyer Jean Teillet (whose commitment to the course is so great that she has willingly travelled for almost 12 hours to present a 70 minute lecture year after year), Andre Marin, the ombudsman for Ontario, Derry Miller, the Treasurer of head of the Law Society of Upper Canada, and Shirley Heafey, as noted above, who is a highly respected lawyer and former Chair of the Commission for Public Complaints against the Royal Canadian Mounted Police.
We have, as also noted above, also been fortunate to have Mr. Abdullah Almalki speak to the class. A Commission of Inquiry determined that Canadian officials played a role in his detention and torture in Syria. Mr. Almalki has not yet received redress not have Canadian officials been held accountable for the roles they played in his detention and torture. Mr. Almalki offers a human face to the law and law’s impact and his participation serves as poignant reminder that “legal interpretation takes place in the field of pain and death.”
We do not focus the course on “black letter law” though we do bring cases in to illustrate and reinforce the specific teaching objectives of a given week. We do this in part because we want to encourage students to actively think about law in a way that goes beyond doctrinal silos. We want them to think about social context in grappling with law and to approach their legal education, and eventually their practice, with critical self-reflection. That is, we want them to simultaneously learn about law and legal institutions while at the same time critically thinking about norms and institutions through an access to justice lens.
Challenges Access to Justice generally receives lower evaluation grades from students. This is likely attributable to several factors, including the possibility that the course disrupts the belief systems of those who are required to take it. In short, it makes them uncomfortable by presenting them with new ideas that speak to and perhaps challenge deeply held and possibility unexamined convictions. At the very least the course stands in contrast to traditional law school courses and probably also flies in the face of the expectations of a
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good number of students whose vision of law school is shaped by the more traditional legal curricula.31
We do address topics that some may consider “controversial” or outside the mainstream – harassment within the legal profession, gender equality, same-sex rights, anti-terrorism. Perhaps driven by liberal Canadian social and political traditions, we generally indicate to our students that we are not interested in replicating our own personal values on these matters (though we do have them) but we do expect students to know the prevailing law and to abide by it. One of our goals is to help students understand that there are different ways of seeing and understanding. We are not propagating moral relativism through this message. Rather, we want students to understand that both facts and law may not be as clear as first appears, that we all carry unexamined assumptions that guide our interpretation of things. These assumptions need to be unearthed and examined as part of the process of good decision-making.
As we address questions of justice and equality, we inevitably enter into difficult pedagogical terrain. Much has been written about the dilemmas raised by education aimed at anti-oppression and social change.32 One of the issues that comes up within the general question of what is the best pedagogical approach is what stance instructors should take in relation to their subject-matter and how much they should insist on the value of their own particular human rights perspective. Some would contend that our approach may be too “soft” and that the best pedagogical approach is to insist on what we believe to be right and wrong to help delineate the range of discussion, even if this means alienating students who we are trying to engage. Otherwise, we risk creating the impression that access to justice is “in the eye of the beholder” or that it is an option which one can legitimately accept or reject. Others insist that true change only comes from engaging those who would otherwise not listen and that it is important to create an open environment where, subject only the need for mutual respect, no subject should be too sensitive for discussion and no question or opinion that should not be engaged. I have, I must confess, not found the ideal theory for my own teaching practice which tends to straddle these two positions.
Our other challenge is how to evaluate student learning in this area. To date, we have not strayed far from relatively traditional evaluation methods. We require students to make presentations in groups and to write short critical essays; however, the majority of the mark in the course comes from a traditional sit down exam. One can critique this approach for several reasons. I will only canvass two. First, despite our insistence on collaboration and the need to move away from competition, students feel the pressure of getting good grades so that they can secure a position and they generally believe that they can get a better grade on their own than in cooperation with a group where the group is given a single mark. Second, it might be that experiential learning would be a more effective way of getting
31For an overview and critique of the traditional approach to law school curricular, see Roy Stuckey et al., Best Practices For Legal Education: A Vision and A Road Map (Clinical Legal Education Association, 2007).
32 The most engaging and comprehensive book I have read about adult pedagogy is Stephen Brookfield, The Power of Critical Theory for Adult Learning and Teaching (Open University Press, 2008). Brookfield draws on the main texts of critical theory and argues that adult learning must focus on challenging hegemony and unmasking power.
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students engaged and enthusiastic about access to justice.33 To date, we have not experimented in earnest with experiential learning.
Results Although students evaluate the course at the end of the year, we have not conducted an evaluation of the course’s long-term impact upon our graduates.
Despite the occasional resistance from students and frustrations along the way, teaching the course has confirmed its importance. The most important thing we do through this course is not impart knowledge or enhance skills – though we do hope to do just that. The most important objective of the Access to Justice course, as I see it, is to introduce students to critical self-reflection as an integral part of their engagement with law and legal practice. This self-reflection arises as a by-product of the course. Self-reflection is important because: it encourages thinking about one’s role in society rather than focusing on a single piece of legal analysis; it creates the possibility of assessing one’s practice, at all levels, through an access to justice lens; it insists that one be alive to the power dynamics in a given situation; and, it encourages thinking about social context and law’s role in perpetuating or, alternatively, ameliorating power differentials as the case may be. Although we have not yet conducted a formal evaluation of the course and its impact, my hope is that self- reflection will become an important part of practice for students who graduate through our institution.
Every year, we hear from students who tell us that the course has opened their eyes to the way in which law impacts upon people’s lives. This realization has made them more attentive to their potential influence as both lawyer and citizen in building a society that is built on justice and the rule of law. This year, a group of students wrote a poem for Abdullah Almalki. Mr. Almalki was deeply touched as was our entire teaching team. By presenting their observations in the form of a poem, the students demonstrated their comfort with moving beyond the traditional black letter law approach to their legal studies. They also demonstrated, by adopting the role of poets, their willingness to be visionaries and voices in the wilderness, because poets in our society tend to be both. And, by adopting an unconventional mode to critique state action in the name of fundamental human rights, they showed their ability to act out of conviction and courage. This is what we hoped for.
I close by reproducing the student tribute to Mr. Almalki, access to justice and the rule of law.
33 The experiential learning literature relating to law schools is vast. Cognitive learning, as opposed to experiential learning, tends to ignore the affect in learning and focuses on abstract analysis over concrete engagement. Cognitive theories of learning, as opposed to experiential learning theories, also tend to place less value on subjective experiences as the basis of learning.
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Poem for Access to Justice34
I am not the man I use to be Living in the land of the “Glorious and Free” Taken from my life without a single hug or kiss goodbye Left with no justice, only questions why?
Moved around the world from nation to nation Told that it was my own country that made the accusation I speak to a guard and tell him that there must be a mistake But he looks at me and says “what is being done is for your country’s sake”
I am questioned and told to confess They leave me broken, there is no redress Put in a cage as men watch my life drift away Should I just tell them what they want me to say?
The interrogator turns around and begins to walk out the door But before he leaves he asks, “can you help identify more?” I return home with the pain of what I saw Whatever happened to the Rule of Law?
34 Access to Justice small group of Amanda Burgess, 2009 Discretion and National Security Presentation Team.
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Achieving Our Goals: How Should We Teach Our Students?
Professor Stephen Bottomley Associate Dean and Head of School ANU College of Law, Australian National University Australia
Law teachers in the 21st century face many demands and expectations. These are the topic of discussion in earlier sessions of this Conference. Whatever conclusion one comes to about our role and purpose, there is then a further question: how should we teach our students? Or, to reframe the question in a less one-directional way, what learning environment should we create for our students?
There is a rich and vast body of literature to which one might look to supply an answer to this question, and so I must begin with three confessions, or warnings. The first is that I am not going to refer to that literature, at least not directly or in any academically approved way. This paper is a set of reflections based on my experiences across 30 years as a law teacher, although I acknowledge that those experiences have been influenced by that rich and vast literature. But these days I am not just a teacher, and this leads me to my second warning. This paper is also prompted by my experience (currently just short of four years in duration) as an administrator of teaching allocations and teaching loads in this Law School. This pragmatic perspective – the need to ensure, every semester, that in a climate of limited resources the teaching gets done – has conditioned the way in which I answer the question posed above. My third warning is that this paper is written from an Australian perspective and, more specifically, from my experience at the ANU College of Law.
The answer to the question posed above involves consideration of two issues: changes in student culture and what it means to be a law student, and consideration of the actual methods we use to teach law.
A shifting student culture Many of my colleagues who have been teachers of law for more than a few years have noticed a change in the way in which our students engage with their role as ‘law student’. I can summarise this with a hypothetical: if I were to randomly select one of our students and ask them to describe what they do, I suspect that the answer would not necessarily be ‘I am a law student’ or even ‘I am a university student’. The answer, I suspect, would more likely be ‘Well, I working three days a week in job doing X, and I’m studying law, and I am a member of the Y community group and … etc’. In short, being a law, or a university student, no longer supplies the key identifier for many of our students. Studying law is just one of many things that they do. We are just one of a number of things that demand their attention.
At the ANU College of Law we have been grappling with this phenomenon as we seek to impart in our students a culture of civic responsibility, of using the law to achieve socially beneficial outcomes. These goals demand that students be engaged
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with their law studies, yet our daily observation is of declining patterns of class attendance and demands for more accessible, instantaneous access to course content. At the same time, our students quite properly demand a high quality and cutting-edge legal education.
In 2008 the ANU College of Law conducted an on-line survey of our students so that we could inform ourselves about how they perceive their law studies and how those studies figure in their lives. The results showed that 67% of the 300 respondents were engaged in either part-time or casual work, with 6% holding full-time jobs. Only 16% said that they did not work at all. The average work load was 16 hours a week. Over 70% said that they worked to supplement their income, rather than simply to gain work experience. At the same time, most students said that their law studies were a very high priority in their lives. Over 75% said that their decision to study law was motivated by an interest in the subject (rather than family pressure, or simply achieving the requisite entry score).
In short, our students are highly motivated but pressured. They see their law studies as important, but majority of students today, study is just one of the things that they do. They juggle work, family, study (often in combined degrees),1 and other commitments. The idea of the ‘full-time’ student who has no other major commitments in their weekly life other than being a student is a thing of the past. As educators our challenge is to determine the extent to which we must adjust to this reality, and the extent to which we are entitled to demand or, at least, expect that our students will carve out some space in their busy lives for their law studies. Critically, we must think carefully about the methods we use to engage our students in their legal education.
How should we teach our students? I’ve been prompted to think about this question by my Dean – Professor Michael Coper. He and I have been engaged in an ongoing, friendly (and often amusing) debate about the role and value of ‘the lecture’ in modern legal pedagogy. By ‘lecture’ I mean a large group of students being taught by a single teacher. Although the method of teaching can be very interactive, I use it here to describe the class where the teacher doing most of the talking. I can summarize our positions quite easily: Dean Coper thinks that we should abandon lectures (at least those that involve the teacher doing most of the talking),2 whereas I think that lectures, of all types, can be useful. I use this debate here as a convenient way of addressing the question about how we should teach.
I want to defend lectures, or to be precise, to defend good lecture practice. I do this by looking at what the opponents of lectures want to put in place instead of lectures. Then I say something about lectures themselves.
1 Approximately 85% of undergraduate law students at the ANU are enrolled in combined degrees (eg Arts/Law or Commerce/Law). The combined degree requires 5 years of full-time study. 2 To be fair, I think that Dean Coper acknowledges the value of truly interactive, large-group classes. I suspect that he would not classify this as a ‘lecture’.
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The attack on lectures usually has two steps. The first step is to caricature the lecture, typically by drawing upon the very worst of our own lecture experiences. Lectures, I am told, encourage passive learning; they are boring; they are the antithesis of good pedagogical practice. All of this is true – some of the time. But it is not true all of the time, and it is certainly not intrinsically true. Lectures are not in and of themselves bad. We have all sat through some atrocious lectures. Some of us (I include myself here) have occasionally delivered lectures that, let’s face it, were rather dull and uninspiring. But does this mean that we should abandon lectures? Certainly not. Does it mean that we have to work to bring out what is good in lectures? It certainly does. And does it mean that lectures have a place in any good pedagogical system? Without any doubt.
Having identified the evil, the second step in the anti-lecture argument is to identify the remedy. Lately I have heard of two main ways in which we can be saved from the horrors of the lecture. One option is to embrace small group interactive teaching; the other is to use on-line education.
A pragmatic response to the small group teaching argument Small group teaching has the virtues of more immediate and direct contact between teacher and student. The small group context fosters greater opportunities for engagement, discussion, debate, and the dynamic exploration of ideas. It permits students to test and develop their understanding. It promotes active learning. All of this is true – some of the time. But it is not true all of the time, and it certainly is not intrinsically true. Small groups are not in and of themselves good. We have all sat through atrocious tutorials and seminars. Some of us (I include myself here) have occasionally run some small-group sessions that, let’s face it, were rather dull and uninspiring. Does this mean that we should abandon small group teaching? Certainly not, but neither does it force us to conclude that small group teaching is the answer to my question.
Small group teaching can be great, but in one important context it cannot substitute for the lecture. That context is the course (usually an undergraduate course) with a large enrolment. Take my Corporations Law course as an example. A typical enrolment is 250 to 290 students. A typical teaching team is two or three full-time academics and three or four part-time casual tutors. The full-time teachers will usually be involved in teaching other courses at the same time. Let’s assume that to be really effective a small group should have no more than 15 students in it. That means I would need to have between 16 to 19 small groups running each week for our 13 week teaching semester. And let’s assume (I admit that this might be a contestable assumption) that we want to keep the class contact hours at the standard rate of 4 hours per week, and that the maximum duration of a small group session is 2 hours (and that is probably contestable too). So, that is 32 to 34 small groups running each week.
You can see where this argument is heading: the problem for the ‘small groups instead of lectures’ argument is that it just isn’t feasible with current resources – human resources, physical resources and time resources. There simply are not
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enough teachers, rooms or timetable slots to permit it, certainly not if we are going to apply the same approach to each and every large undergraduate course. Of necessity small group teaching must occur alongside large group sessions (ie lectures).
A brief response to the on-line teaching argument The argument here is that we can do away with lectures – and even small groups – by using the flexibility of internet technology and computer software. We can substitute or augment face-to-face interaction with screen-to-screen interaction.
I am struck by the similarity between this argument and the campaign to abolish company general meetings. General meetings, we are told, are anachronistic, expensive, under-attended and inefficient. They should be replaced with virtual meetings held in cyberspace, where shareholders can log in, ask questions and vote. Curiously, not many Australian companies have actually taken this step. Why? A survey of 217 Australian companies that I conducted found that company directors actually place value on having a face-to-face meeting with their shareholders.3 As one director put it, it is important that the shareholders and directors see each other eyeball to eyeball. This is backed up by research that suggests that human beings are hard-wired, through evolutionary processes, to be social beings. We seek human contact. General meetings are one, albeit imperfect, example of this.
So too with the role of lectures in menu of teaching options. Of course this does not lead me to conclude that lectures are the only way to go, nor that on-line education is to be ignored. But it does suggest that the ‘on-line instead of lectures’ argument has limitations which must be recognised.
What’s good about lectures? Thus far, this has been a weak defence of lectures, so I now to turn to consider some stronger arguments. Again, it is important to emphasise that I am not advocating lectures as the only form of teaching. Lectures must be combined with other forms of teaching: small group and/or on-line. Nor do I suggest that lectures are always needed. In courses with smaller enrolments, for example, small group teaching will obviously be feasible. So, my argument is directed to the large course teaching experience.
Think of a large room in which there are many people sitting and facing someone at the front of the room who is communicating something to them. This description fits the standard idea of a lecture; it also fits a theatrical performance or a solo musical performance. The similarity is not immaterial: lectures can be, and ought to be, a form of entertainment. A lecture can, and should, make students realise that the subject matter of the lecture is interesting and intriguing. A lecture is where students are given a framework for their further learning on a given topic. It should give them the confidence to tackle often difficult material in their own time.
3 Stephen Bottomley, The Role of Shareholders’ Meetings in Improving Corporate Governance ANU Centre for Commercial Law Research Report, (September 2003)
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Lectures can impart skills. The cynic might suggest that these skills are limited to staying awake or feigning interest, but a serious answer points to two key skills: listening, and distilling information that is presented orally.4 These are obviously important skills for lawyers in practice. A good lawyer must be able to listen to their client, to lawyers for the opposing client, to colleagues, to judges. They must be able to distil the information that is important and separate it from the rest. Of course the need for these skills is not limited to lawyers. It extends to all professional conduct – indeed to most walks of adult life. These two skills suggest a third skill that lectures can facilitate. While the skills of listening and distilling are important, so too is the skill of putting one’s message clearly, and of ensuring that the listener ‘gets the message’. A good lecture will do this, and students in a good lecture can learn from this. That is how I learned my lecturing skills: I recalled my own experiences as a student, and I watched my peers. As someone trying to listen and distil the lecturers’ message I could readily identify what worked and what didn’t work, and then try to put the good bits into my own lecturing practice.
Finally, lectures have the advantages of consistency and efficiency. I hesitated as I wrote that last sentence because, even as a Head of School, I am suspicious about using efficiency as a yardstick for measuring what we do. To explain what I mean, I’ll again use my own experience in teaching corporate law. There are some things that, as a teacher, I need to be assured – as far as is possible - that the students have ‘got right’. This sounds very un-post-modern, but there are some principles and ideas in corporate law that really do not have the space for contested meanings or relative degrees of interpretation. A lecture is one good way of getting a consistent explanation about these things across to a large number of students at the one time. Equally, there are some ideas that do – and should - give rise to debate (eg what is the purpose of a corporation: to make profit, or to be a good social citizen?). On some of these debates, I have my own ideas which I think are important enough that students should hear them (and be able to interact with me about them). Again, a lecture is a good way in which I can do this. I certainly can’t get around to every tutorial or seminar group to do this, and I can’t be sure that the tutors will convey my ideas in the way that I would like.
There are excellent lecturers in our midst. They are entertaining and erudite. They excite attention in the subject matter of the lecture. They recognise that a lecture is not primarily about giving information,5 and it is not simply the live rendition of written material. They encourage students to learn by giving them the confidence that they can learn. All this takes effort and commitment. Lecturing can be rewarding, for the lecturer and for the students.
Conclusion I have left myself a quarter of a page to draw these threads together. The purpose of this brief discussion about lectures has been to highlight some key tensions in contemporary legal education in my law school. Whatever our aspirations as legal educators, we are confronted by resource constraints, but this is nothing new. What
4 James Goding, ‘Do Lecture Us, There’s No Substitute’ The Australian, 29 November 2006 5 Goding, note 4 above.
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is new is a shift in the way in which our students engage with us and the education process. The changing world that is the focal point of this Conference is happening right at our doorsteps. We must be flexible in our response to this. A ‘one size fits all’ approach will not help. And we must be realistic in our expectations. Dogmatism (eg ‘lectures are bad’) will not assist us.
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Please refer to Page 95 for Professor Louis F. Del Duca’s paper entitled “Educating Our Students for What? The Goals and Objectives of Law Schools in Their Primary Role of Educating Students (Commentary on Plenary I) – How Do We Actually Achieve Our Goals and Objectives? (Comments on
Plenary III)”
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282 The Role of Law Schools and Law School Leadership in a Changing World
The Role of Government, Government Policy and Italian Law Faculties (1999-2009)
Maria Gigliola di Renzo Villata Full professor of the Law Faculty. University of Milan Italy
Since 1999, a general university reform, which was introduced by government policy, deeply modified the previous system. Before, and since the first half of the past century, there was a Long-Cycle Law Degree course lasting 4 years. During these four years students had to pass 21/26 exams in different branches of law: private law, constitutional law, economics, roman legal history, medieval and modern legal history, criminal law, procedure law (civil lawsuit and criminal proceedings), international law, civil law (particularly contracts and wills), administrative law, and many, but not too many, optional courses such as comparative law. Little space was dedicated to law practice: students’ education was aimed above all at furnishing a theoretical training not necessarily professional. Professional education was reserved to post graduate courses and professional practising in a lawyer’s or notary’s office. The students were not stimulated to learn foreign languages because generally they were not taught in Law Faculties and also exams passed in foreign languages were not recognized: this is the main reason why law graduates from the old system don’t know foreign languages from their university studies.
But after 1999, Italian Universities changed gradually their features: the general reform that concerned all Faculties (except for medicine) introduced different degrees. Undergraduate studies consist in “Corsi di Laurea-CL” (1st degree courses) aimed at guaranteeing undergraduate students an adequate command of general scientific methods and contents, as well as certain specific professional skills.
General requirement for the access to University is the Italian high school diploma (“Diploma di Superamento dell'Esame di Stato conclusivo dei corsi di Istruzione Secondaria Superiore”), awarded on passing the relevant state exams, after completion of 13 years of global schooling; also foreign comparable qualifications may be accepted. First degree courses last 3 years. The degree (“Laurea”) is awarded to undergraduates who have earned 180 credits. Classes of Degree Courses: educational contents of individual degree courses are autonomously determined by universities. Individual institutions, however, when establishing a CL (or a CLS, as we’ll see below) must adopt certain general requirements set forth at national level in relation to groups (“classi”) of similar degree courses; however, such national requirements may not bind more than the 2/3 of each curriculum.
Degree courses having the same educational objectives and the same fundamental types of teaching-learning activities are organised in groups called "classi di appartenenza" (classes of degree courses): the government policy regulates them meticulously and in a compulsory way.
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University Educational Credits measure now the workload of single courses: degree courses are indeed subdivided in credits (“crediti formativi universitari”). A “university credit” corresponds to 25 hours of work per student, time for personal study included. The average annual workload of a full time student is conventionally fixed at 60 credits.
After obtaining the first degree, students could be admitted to the second cycle (“Corso di Laurea Specialistica” - CLS), or to a master of first level.
CLS are aimed at providing graduate students with an advanced level of education for the exercise of a highly qualified activity in specific areas. Access to CLS is by the Italian first degree (“L”) or a foreign comparable degree; length of the whole curriculum is 2 years. The final degree, (“Laurea Specialistica”, 2nd degree) is awarded to graduate students who have earned a global amount of 300 credits, including those of the 1st degree that have been recognised for access to the CLS (max. 180); furthermore, the drawing up and public discussion of an original dissertation is compulsory. A limited number of CLS regulated by specific EU directives (CLS in dentistry, human medicine, veterinary medicine, pharmacy, architecture) share the following different features: access is by the Italian high school diploma or a foreign comparable qualification; admission is always subject to entrance exams; length is 5 years (human medicine takes 6 years).
CLS are devised to provide the knowledge and abilities needed for the practice of highly qualifying professions; they may be set forth exclusively pursuant to specific Italian laws or EU directives. Access is by a 1st degree or a foreign comparable degree; admission may be subject to the passing of a competitive examination; course length varies between 2 and 3 years. The final degree, called “Diploma di Specializzazione di 1° livello” (1st level specialisation degree-DS1) is conferred to graduates who have globally earned 300-360 credits, including those of the 1st degree that have been recognised for access to the CS1.
CMU1 consists in advanced scientific courses or further higher education studies, open to the holders of an L or a foreign comparable degree; admission may be subject to additional conditions. Minimum curriculum length is 1 year. The degree as “Master Universitario di 1° livello” (1st level university master-MU1) is awarded to graduates who have earned 60 credits at least.
A further level is given by the “Corsi di Laurea di 2° livello” (2nd level degree-CS2), devised to provide postgraduate students with knowledge and abilities requested in the practice of highly qualifying professions; they may be established exclusively pursuant to specific Italian laws or EU directives. Access is by an LS (2nd degree) or by a foreign comparable degree; admission is subject to the passing of a competitive examination; curriculum length is normally 1 year, except for all CS2 of the health sector, which may take up to max. 5 years.
CMU2 consists in advanced scientific courses or higher continuing education studies, open to the holders of an LS or a foreign comparable degree; admission may be subject to additional conditions. Minimum curriculum length is 1 year. The degree (Master Universitario di 2° livello-MU2) is awarded to postgraduates who have earned min. 60 credits.
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I have tried to provide a general, and possibly complete, reference: these general features have been in place since Academic year 2001-2002 and concern almost all Italian Law Faculties: the period of law education was so divided; almost all universities offer first and second degree, but only a handful offer CMU2 (master courses). Each of the two degrees require the passing of a foreign language exam, whereby the second one may require that such exam treats specifically the “legal side” of a foreign language, that was undoubtedly a progress and the results of this innovation are now satisfying. From year to year law students improve their English language knowledge and now, after the reform of 2005, they study also in a compulsory way Legal English (the English language is not mandatory, because all European Community languages are allowed, but 80% of the students choose English, and now, Legal English). I’m responsible of foreign languages program in my Faculty and I verified a remarkable progress in knowledge: I hope in better and better progress in next years.
As a third degree was activated for law graduates – i.e. the graduate specialisation school for legal professions, introduced in the State University of Milan in 2001, thanks to the association of other two nearby universities: admission is always subject to entrance exams: law graduates are enrolled after an examination that consists in passing a multiple choice test of 50 items.
In the largest Italian Universities, quite the greatest part of law students, after obtaining the first degree, enrol in the second degree, the only one that entitles to begin practising in a lawyer’s or a notary’s office (2 years) and, thereafter, to the competitive examination for notaries, magistrates and public officials or to State Qualifying Examination for lawyers.
Now, after November 25th, 2005
On November 25th, 2005, after the testing period of the foregoing system, the government issued a new decree that re-introduced the “Long-Cycle” Law Degree: the majority of law professors disagreed on the reform that divided the training course and introduced bureaucratic complications without adding value, but there were also others who preferred to have a better view of the results of the new experience, but at last the best thing to do was to change and return to the past or, to say better, to a past in progress.
Since academic year 2006/2007 almost all Italian Law Faculties have activated a Long-Cycle Law Degree course, associated with long-cycle law degree class LMG/01.
The course lasts for a total of five years, and consists of a foundation year followed by a four-year course.
In order to obtain a long-cycle law degree, students must earn 300 university credits.
Credits measure the total volume of work which students need to perform in order to gain the knowledge and skills characterising the course of study, and are equivalent to 25 hours’ classroom work and individual study. Each academic year therefore involves
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approximately 1500 hours of work. Different numbers of credits may be awarded for different subjects.
The aim of the Long-Cycle Law Degree Course is to give students a thorough grounding in formal and substantial law, combined with the ability to understand the relevant economic implications and give to economic contents a legal form, so that they are capable of working competently in industry, private practice or the public sector in Italy or abroad. For this purpose, graduates must:
• obtain in-depth knowledge of the basic national and European legal culture, using case-study techniques and methods, in relation to subjects which help to understand and evaluate the principles and institutions of positive law, in all main branches especially in code branches; • acquire historical knowledge which enables them to evaluate positive law institutions from the perspective of their historical development, not only restricted to Italian legal history but widened at least to legal European history to mould into young jurists a European legal mindset; • be fully able to produce legal documents (legislative, contractual or procedural) which are clear, relevant, effective in relation to the context of use, and well argued, possibly with the use of information technology; • develop excellent interpretation, case study analysis, legal classification (classifying facts by types of offence), comprehension, representation, evaluation and awareness skills enabling them to deal with legal interpretation and application problems; • learn the basic methods required to update their skills.
These aims have been gradually achieved also by new teaching methodology: mere theory had to yield to practice view; in many courses case law is the main address to follow, seminars and exercises are frequent and many students participate; written examination are more and more frequent, in order to accustom students to write in legal language, not only to speak in legal language (beforehand, almost all exams were oral); mock trials are more frequent (although a long time ago in my Faculty there were some).
Students taking the Single Long-Cycle Law Degree Course can currently choose from four different specialist subjects: Private law; Criminal law; Public Law; International law; Commercial Law, or they can present a personal plan in which students choose three courses among all optional courses or semi-optional courses.
Italian Law Faculties now generally offer 1st level degree (“Laurea”) courses in Legal Science (“Scienze Giuridiche”) and Sciences for Legal Services (“Scienze dei Servizi Legali”), as well as the traditional Single-Cycle Law degree (now of five years), which can lead to a legal or judicial career. All the courses do not deal only with internal law, but illustrate the growing interest in international and global point of view: for example: before 1980 the chair was Italian legal history, now is medieval and modern history, there is not any geographic limit and our look is extended at least to European legal history but if possible to global legal history. The program of my chair now is 1. The system of ius commune: from the "legal renaissance" to the age of crisis. 2. Legal humanism. 3. The procedures of the major
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European courts. 4. Continental schools of natural law. 5. The age of legal enlightenment. 6. The emergence of the code concept. 7. Codification of law in France from the Revolution to the Napoleonic era. 8. Codification of law in the Habsburg area. 9. The age of codes in Italy: from legislative unification to the age of decodification. As a full professor of Italian legal history since 1980, I saw my chair changed into medieval and modern law by government decree but already before the reform I taught a European legal history.
Since the last years of XX Century, Law Faculties offer a wide range of courses and deal with many areas of research, but students’ choice is extremely limited: the same choice of the four subjects (or less or more, according Faculties’ different plans) is reduced to three exams of about thirty. Particular attention is dedicated by all Italian Law Faculties to international relations, with teaching staff and the most outstanding students constantly collaborating in projects with prestigious foreign universities, such as (to name some that concern my Faculty in Milan) Berkeley, Stanford, Carlos III de Madrid, Universidad del País Vasco, Coimbra, Lund, Antwerp, São Paulo, La Plata, Externado de Colombia, Tel Aviv and Haifa and now also China, where is under development a summer school for foreign students, and about twenty our students a year follow courses dedicated especially to international law.
Graduates may work and be employed not only as lawyers and magistrates, but also in other in positions of great responsibility in various social, socio-economic and political fields, in institutions, the public sector, private companies or trade unions, in the field of information technology law or comparative, international and EU law (European lawyers), or in international organisations, where lawyers’ analysis, evaluation and decision-making skills are invaluable even outside the strict confines of their profession.
The Long-Cycle Law Degree entitles graduates to take the State Qualifying Examination for lawyers and the competitive examination for notaries and magistrates and public officials.
If we look at the curriculum studies in Law of some main Italian universities (Milan, Rome, Naples, Turin) we find all features I tried to describe.
Finally, I do not appreciate the excessive rigidity of the plan that does not permit single Faculties to employ all their energies to blaze new trails and offer students greater opportunities of knowledge: the legal value of the degrees is an advantage for many students but does not allow competition on the offering side, although the public is aware of the better law Faculties and appreciates the endeavour to improve legal education.
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Constituting the New Global Law School: Concrete Measurement of Legal Ethics and Justice Education [work in progress-not for citation]
Adrian Evans Monash Law School Australia
The Global Law School Commitment to Ethics and Justice Education Not many law schools see themselves as having a tangible responsibility to deliver justice education. In the past, some have done so, for example Antioch Law School in the United States, but that model withered with the relentless and apparently successful march of global capitalism over the last thirty years.
Today, some schools may identify mechanisms such as legal ethics courses, clinics and pro bono schemes as a part of their formal charter or mission statement. They may even put a lot of money into them, but how many actually see these techniques as a part of a fundamental objective to deliver a radical justice education, as their primary reason for being? Almost none, I suggest.
Deans of course are inevitably and relentlessly obliged to consider and advance final student grade averages, graduate destinations and alumni endowments, not to mention prepare their students to operate in a highly competitive and unforgiving legal practice environment.
But recent global events must now give us all pause to wonder if these legitimate but everyday concerns require some radical repositioning. The risks of debt-based trading were not truly accepted after the Enron collapse and general financial deregulation expanded, rather than contracted, contributing to the misery of the last 2 years.
So far, only bankers and investment advisors have suffered the fall from grace cause by their mishandling and fraud of investment vehicles, but it will not be long before lawyers are also asked why they signed off on the contracts and schemes behind these devices; and why they continue to facilitate tax havens and aid depletion of national economic income streams, especially in a rapidly heating climate (no pun intended) that is progressively and globally made more violent by overpopulation and uneven wealth distribution. The usual response that lawyers are no more than their clients’ agents will seem more hollow as time goes by.
In these Terminator scenarios, it is actually remarkable that lawyers and law graduates have escaped the political criticism that is due, but it is unlikely that they will continue to do so. As some lawyers are exposed as participants in recent global financial chaos, all lawyers and their supporting institutions will inevitably be asked to explain. Lawyers’ sense of morality is on the critical list and academic legal opinion agrees. Will your law school be ready for that political reality?
The profession as a whole of course will face even harsher criticism for its contribution to the past 30 years (even if countless lawyers have and still do strive for justice). But along
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with politicians, they will also pressure law schools for more rounded graduates who are not just black-letter fiends, but also have the emotional resources, knowledge and courage to say ‘no’ to tax evasion, to bad development schemers and occasionally even, to greed in itself.
And how might you start to do that? …by self-assessing your school’s attitudes to justice education. In the interests of encouraging all law schools to consider if their mission ought to expand to convincingly include education in the justice paradigm of law, or, if they already aspire to it, to reassess whether that paradigm is in fact being achieved, the question arises: according to what criteria might such a self-assessment proceed? This presentation suggests criteria to allow that process of introspection to occur in one indicator of justice education: legal ethics.
Legal Ethics and Justice Education In the United States, Anthony Kronman, the well-known former dean of Yale law school, asserted in 1999 that '[A] new and aggressive culture of commercial values, which claims for itself a moral as well as a material superiority, is spreading through the profession as a whole.'1, but there are also real signs that the earlier, almost slavish focus on 'zealous advocacy' and 'neutral partisanship' - as the basis of professional legal ethics in the United States - ought now be moderated by the view that '...ethical lawyering involves not the suspension of moral judgment but rather the exercise of it....'.2
Law students at least are aware that all is not well. They see that morality, altruism and even justice are in reality ignored in lawyers’ ethical education and that this is occurring because ethical principles are never sufficiently examined and promoted by law schools themselves. They ‘pick up’ on the social and political cynicism and are increasingly doing their time in tertiary and pre-admission education with a mixture of weary determination and ‘what choice is there?’ commentary.3
And Robert Gordon is one of those who, at least in the US context, make no bones about the real priorities of role morality: ‘…lawyers at the apex of their profession have hardly renounced their claims to elite incomes, elite status, or elite influence in legal policy making. Lawyers remain perfectly happy to deploy that influence to advance their own interests, and their clients’ and to maneuver around the controls of democratically elected law if it gets in their way. All they have renounced are the social responsibilities traditionally attached to the power and opportunity conferred by elite status. The sense of paralysed helplessness descends upon them only when they are asked to consider other interests besides their clients’ and their own.’4
1A Kronman, ‘Professionalism’, 2 Journal of the Institute for the Study of Legal Ethics 89-99 at 90 (1999). See also Deborah Rhode, In the Interests of Justice: Reforming the Legal Profession OUP New York, 2000, section on The Priority of Profit, pp 31-38 2 S Dolovich, ‘Ethical Lawyering and the Possibility of Integrity’, 70 Fordham Law Review 1629-1685 at 1629. 3 Michael Asimow, et al, ’Perceptions of Lawyers-A Transnational Study of Student Views of Law and Lawyers’, 12(3) International Journal of the Legal Profession 407- 436, p 427 (November 2005) 4 Roobert Gordon, ‘Portrait of a Profession in Paralysis’, Book Review of Deborah L Rhode’s In the Interests of Justice: Reforming the Legal Profession 54 Stan. L. Rev. 1427, p 1445. See also Robert W Gordon, ‘A New Role
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Sharon Dolovich goes a bit further and calls not just for passive resistance to inequality but active subversion of injustice, referring to David Luban’s endorsement of the ‘“betrayal by the lawyer of a client’s projects, if the lawyer persists in the conviction that they are immoral or unjust”.’5 Dolovich also calls for ‘institutional support’ in the cultivation of integrity, which in turn requires ‘a broad-based collective commitment to meaningful institutional change’.6 Might this ‘institutional support’ include some concrete methods for self-assessment of commitment to ethics? So the question becomes, how can the law and by extension, a law school, take seriously any claims to be interested in affirming and teaching justice and producing graduates who value, when necessary, justice before rules, if neither seeks to be accountable for those priorities?
There is currently no vehicle to help lawyers and law schools to reflect on its commitment to ethics and no international recipes which could allow for comparison between law schools.7 While the presence or absence of legal ethics courses in a law school are tangible indicators of the commitment of the law school to normative legal education, this objective, without some self-assessment process, is increasingly insufficient.
An Instrument to Measure Legal Ethics Education It is one thing to discuss the theoretical purposes and difficulties in assessing justice education and another to consider how law schools that are attracted to these ideals might achieve self-assessment in practice. The table below provides one possibility.
My approach is to provide an instrumental mechanism for ‘scoring’ several sub-criteria according to a numerical value in the ‘Totals’ column of the table. While it would be possible to prescribe a minimum score in order to help an institution decide if it is sufficiently adequate as a legal ethics educator, initially it is probably better to undertake the self- assessment without regard to suggested minimums. If deans could be persuaded to publish the results, so much for the better. In due course, a threshold score might be thought feasible, but the suggestions in this table are untried and are altogether too tentative in nature to allow a credible attempt at setting a minimum score for a law school.
Specific Criteria A number of key criteria are proposed in order for law schools to self-assess the adequacy of their teaching of legal ethics. These particular criteria have been chosen because their presence in a law school is most likely to lead to reflective graduates, capable of the complex ethical judgments that dominate professional practice:
for Lawyers? The Corporate Counsellor After Enron’, in Susan D Carle, Lawyers’ Ethics and the Pursuit of Social Justice: A Critical Reader, New York University Press, New York, 2005, 371-384. 5 Sharon Dolovich, 'Ethical Lawyering and the Possibility of Integrity' (2002) 70 Fordham Law Review 29. [emphasis added] 6 ibid 7 The recently formed International Association of Law Schools sees itself as promoting ‘diverse approaches to solving legal problems’, without yet stating what those approaches ought to be. See http://www.ialsnet.org/files/IALS-Ebrochure.pdf, accessed at 14 October 2008.
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• There is general agreement within legal education that best practice in legal ethics education involves the insertion (integration) of legal ethics content and concepts into other courses within the overall law school curricula. This approach is also often referred to as pervasive or incremental legal ethics education.8 • Further, an ethics module is a course which defines ‘ethical behaviour’ as considered behaviour; that which takes account of competing ethical principles and intentionally chooses a position and a course of action that is held bona fide by its author. Critically, such a module would not primarily define ethical behaviour in terms of behaviour that falls on one side of a line rather than the other, eg compliance with professional conduct rules.9 Two consequences follow from this understanding of ethical behaviour. o first, that students in an ethics course are encouraged in some way to explore and if possible understand their own values’ structures and secondly, o that the ethics course will provide a lawyers’ typology of some description (eg, lawyers are either zealous advocates or ‘responsible’ to the courts),10 to help them understand their likely behaviours.
Developing students’ self-understanding of values and ethical typologies is therefore included because of their importance to their ethical resilience in subsequent practice environments. The table contains suggested criteria to allow a law school to self-assess the presence or absence of these ‘markers’ (and other self-explanatory measures of the relative importance of legal ethics curricula) in their institution. The right-hand column and concluding row for ‘totals’ allows a law school to construct an overall numerical measure of their own institution’s adequacy and to allow a chronological picture of their performance over several self-assessment periods.
Proposed Self-Assessment Criteria re Adequacy of Teaching of Legal Ethics
Suggested Criteria Proposed numerical measures of ethics Totals courses
All students will encounter legal 0 (no) 1 (yes) ethics education in some sense within the academic phase of legal education? There are stand-alone courses on 0 1 legal ethics topics? Relative importance of professional 0 = conduct 1 = theories of 2 = conduct rules in relation to the rules moral balance
8 See generally, Deborah Rhode, ‘Ethics by the Pervasive Method’ (1992) 42 Journal of Legal Education 31; .Mary Anne Noone and Judith Dickson, ‘Teaching Towards a New Professionalism: Challenging Law Students to Become Ethical Lawyers’ (2002) 4 Legal Ethics 127-145; J. J. Shestack, 'Taking Professionalism Seriously' (1998) 84 ABA Journal, 70. 9 Note that for Kronman, ‘The good lawyer… is the lawyer who possesses the full complement of emotional and perceptual and intellectual powers that are needed for good judgment, the lawyer’s most important and valuable trait.’ See Kronman A, The Lost Lawyer, Harvard University Press, 1993-, 93. 10 See for example that contained in, Christine Parker and Adrian Evans, Inside Lawyers’ Ethics, Cambridge University Press, Melbourne, 2007, Chs 1 and 2.
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underlying principles of moral dominate the responsibility betwee responsibility in the stand-alone course and/ or ethical n the ethics curriculum type dominate two Stand alone ethics courses are 0 1 taught by a full member of academic staff Stand-alone legal ethics courses 0 1 propose at least one method of classifying ‘lawyer types’ as an aid to student understanding of legal ethics pedagogy Stand-alone legal ethics courses 0 1 encourage law students to understand their own values as relevant to the type of lawyer they aspire to Legal ethics courses are assessable 0 1 Clinical-Ethics Interface: students 0 (no) 1 (some but not 2 (yes) explore ethics and social all elements are responsibility debates in clinical present) live-client placements under the auspices of law school staff Ratio of number of ethics’ courses Insert to the number of compulsory ratio substantive courses in the [eg,0.27 academic phase [eg, if there are 3 ] ethics courses and 11 compulsory courses, ratio is 3:11 or 0.27] Relative presence of integrated Insert legal ethics education: the ratio of ratio the number of substantive law courses which include ethics modules to the total number of compulsory substantive law courses Relative importance of ethics Insert courses in the academic phase: the the ratio ratio of teaching staff to students of one in ethics units is no less than in to the substantive (black-letter) law units other Total for Legal Ethics and Social Responsibility Education
Conclusion In the interests of encouraging all deans and all law schools to consider if their mission ought to expand to include education in the justice paradigm of law, or, if they already aspire to it, to reassess whether that paradigm is in fact being achieved, it is high time to
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develop a set of recipes or instruments that might allow such self-assessment to proceed. The truly global law school is one that will elevate justice education to a front rank objective, not as something merely alongside other more conventional objectives - but over and above them.
The best case that can be made for implementing an instrument such as that above is their tangible contribution to a moral rearmament of law graduates and future lawyers, recognising that there is no longer a lot of patience in the wider community, locally and internationally, for lawyers and lawyer-dominated businesses which persist with positivist denial of justice objectives and an individual preoccupation with ‘last-century’ monetary gain.
Whether such instruments are seen as naïve, or as opportunities to deepen and strengthen (as all quality assurance processes are intended), or perhaps even as radical devices designed to transform legal education, depends on individual law schools and their deans. A commitment to a normative and not a positivist orientation may turn out to be a distinguishing characteristic, but if future law schools are to be ‘justice artificers’ as opposed to technical colleges; if they are to be better known for their integrity rather than their success in increasing lawyers’ incomes and if the global realities of over-population, environmental stress and the politics of terror are all to be tackled by law rather than military budgets, then legal educators and especially deans will need to increase the moral awareness and resilience of their graduates. The tools they choose to improve their educational mission cannot fail to play a vital role in that task.
***
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Please refer to Page 111 for Dean Alejandro Gomez and Professor Mónica Pinto’s paper entitled “A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires)
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How Do We Actually Achieve Our Goals?: Strategies and Techniques to Realise our Ambitions
Rosalind Mason1 Queensland University of Technology Australia
Introduction The School of Law at Queensland University of Technology (QUT), Brisbane, teaches a Bachelor of Laws as a ‘stand alone’ undergraduate degree; as part of nine undergraduate double degree courses; and as a ‘stand alone’ graduate entry program.
In 2007-2008, the Law School undertook a review of the undergraduate law curriculum. A starting point for the review was to identify the intrinsic nature of our Bachelor of Laws. It was agreed that the key defining characteristic of the course is its ‘real-world’ applied nature which seeks to meet the needs of the profession, government, business and industry. The focus of the course on graduate capabilities and skills development, and its innovative teaching and learning approaches were all considered important characteristics of our degree.
As a result of the review, revisions are being made to the degree during 2009-2010 and are designed to build on existing curriculum and pedagogical strengths, with a greater focus on the student experience; and to both consolidate and make more explicit the degree’s ‘real- world’ nature. This is to be achieved through clarification of the relevance of the course as a whole and of its individual component subjects to potential career destinations; and through augmenting opportunities for work-integrated learning.
In terms of our goals and objectives in educating law students, the following issues highlighted for Plenary Session I resonate with some of the discussions underpinning our Bachelor of Laws: producing technically competent and ethical lawyers; preparation for a broad range of careers in the public and private sectors in addition to professional practice; and internationalisation of the curriculum. Additional themes have been the importance of embedding indigenous perspectives and a scaffolded approach to teaching legal research.
As far as the Law School’s objectives beyond that of educating students are concerned, the following aspects of Plenary Session II are particularly relevant to the QUT context: increasing research that advances legal knowledge (including in a multi-disciplinary context); ‘outreach’ or community engagement through faculty members who serve on professional committees, law reform bodies, other government or community bodies; and who present and publish their research in order to educate the legal profession as well as others.
How are we achieving our goals? The broad goals referred to in Plenary Session I and II reflect the importance that QUT, as a university, places not only on teaching and learning but also on research and community engagement. Its overall vision is in:
1 Professor and Head of School, School of Law, Queensland University of Technology, Brisbane, Australia; Chair, Australasian Law Teachers Association. Aspects of this document draw upon School documentation.
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• Teaching: to provide outstanding learning environments and programs that lead to excellent outcomes for graduates, enabling them to work in and guide a world characterised by increasing change; • Research: to undertake high-impact research and development in selected areas, at the highest international standards, reinforcing its applied emphasis and securing significant commercial and practical outcomes; and • Community Engagement: to strengthen and extend strategic partnerships with professional and broader communities to reflect both the university’s academic ambitions and its civic responsibility.2
This necessarily places competing demands on the Law School – its people, systems and other resources. Following is a brief description of some strategies and techniques being adopted to realise the University’s and Law School’s ambitions – not only in educating students but also more broadly.
A key component to this realisation is that all Law School staff are actively involved in the curriculum review with a number specifically appointed as leaders of various aspects – in order to broaden engagement and to bring a range of experiences and expertise to bear. Structures and systems have also been put in place to support academics to achieve the multi-faceted goals of educating students and engaging in research and with the community.
Educational Goals and the Curriculum Educational goals are encapsulated not only in curriculum design but also in teaching delivery, including assessment. While a threshold issue in the design of the undergraduate law degree have been the academic requirements of the jurisdiction’s admitting authorities, it has been recognised that a university law degree also provides a vehicle for a ‘broad liberal education’.3 Thus our new ‘stand alone’ degree structure provides for contextual law subjects, such as ‘Law, Society and Justice’; as well as complementary non-law subjects, for example taught by our companion School of Justice. Discussions are also being held with Faculties that offer the ‘other’ degree in double degree courses to identify potential non-law subjects and recommended elective law subjects that will enrich a student’s multi- disciplinary experience through studying issues that intersect the two disciplines being studied.
Themes underpinning curriculum design that affect both core and elective subjects in the new degree are the embedding of ethics and international and indigenous content and perspectives. This is being led by faculty members who have been appointed as project leaders to work over an extended period with their colleagues, identifying and often leading staff development and meeting with subject coordinators to discus how the relevant
2 http://www.qut.edu.au/about/university/vision.jsp 3 A liberal education is about ‘allowing to unfold characteristics of reason and independence which lie naturally within the individual’: Ron Barnett 1990. For some years, Australian law schools have accepted that their dual mission was to provide (or contribute to, in the case of combined degrees) a broad liberal education, as well as to provide a basic grounding for those entering the profession. (See D Pearce et al Australian law schools: A discipline assessment for the Commonwealth Tertiary Education Commission AGPS Canberra 1987.)
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perspective is being or may be incorporated across the degree. An organising construct for this aspect of the curriculum design is the mapping of how the graduate capabilities are taught, practised and assessed across the degree. An ongoing dimension from an earlier curriculum review is the teaching and assessing of skills across the degree.
The new structure permits students to undertake a greater number of electives – and greater guidance is being given to students in their choice by grouping electives together in career and research streams. The career streams reflect a range of graduate destinations, in legal practice as well as the public and private sectors. The research streams reflect areas of research strength and expertise, for example in human rights, broadly defined; property and environmental law; and commercial and consumer law.
A comprehensive, whole-of-degree approach is also being applied to teaching delivery and assessment – initially through a small group(s) of staff working on the issues, with educational designer advice and associated policy re-development and a review of resourcing infrastructure (including the academic workload allocation guidelines).
However educational goals are not only achieved through the curriculum and delivery design and what academics do, but also through co-curricular and extra-curricular activities. Examples of the ‘co-curriculum’, loosely defined as university-led activities that support the curriculum goals, are the mooting program; library workshops and a peer mentor scheme.
Extra-curricular activities that enrich the students’ experience are provided by QUOTALS, the QUT law students association.4 This association is actively engaged with the School in giving students a wide variety of opportunities for career mentoring and growth, in publishing career guides for students and in disseminating important information around the school. Its members run competitions in mooting, client interviewing and negotiation and sponsor well-attended social functions.
Broader Goals and the Law School A key aspect to achieving the Law School’s objectives beyond that of educating students is the profile of the faculty members. Academics are normally appointed to teaching and research positions and so are expected not only to teach but also to engage in research. This encompasses publishing academic articles and scholarly texts; presenting at academic and professional conference; and undertaking externally funded research projects.
Community engagement is also expected of faculty members. This may be through service to the university community (e.g. leadership and committee roles) as well as to the broader community. The latter includes service on professional committees, law reform bodies, other government or community bodies (such as tribunals; community legal services).
In order for the School to achieve these goals, it is critical to appoint a sufficient number and variety of staff who can contribute to the broad range of activities in which the School is engaged. The subject teams comprise not only tenured and contract ‘career academics’ but
4 http://www.quotals.com The QUT Association of Law and Justice Students is a member of the Australian Law Students Association. Members of the Commonwealth Legal Education Association are also exploring the potential for a Commonwealth Law Students Association.
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also sessional teaching staff, many of whom have legal practice and public sector legal experience. Guest lecturers may also be brought in to assist with specialised or current issues, as well as external co-investigators to work on research projects. The guidelines for allocating staff workloads are being reviewed, in essence to consider the extent to which they support the School’s objectives. Finally where student:staff ratios are higher than preferred, alternative approaches to improving, for example, staff availability for teaching innovations; research or community engagement, are being considered - such as careful planning of the range and frequency of subject offerings at both undergraduate and postgraduate level.
In all three areas of teaching, research and community engagement, Deputy-Vice- Chancellors and Assistant Deans have been appointed and resourced to lead these portfolios. Within the Faculty for example, the Assistant Dean (Research) leads a Research Centre that provides structures that allow more collaboration and support for high quality research and encourage linking of research interest groups within an expanded Faculty research profile.
Conclusion This is but a brief survey of some of the QUT Law School’s strategies and techniques to realising our ambitions and achieving our goals in educating our students and in broader contributions by faculty members to research and community engagement. While Law Schools and their leaders may be operating in a changing world, some things are unchanging – notably, the importance of our staff in achieving our aspirational goals as lawyers and educators.
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Legal Education in Jordan for the 21st century
Professor Mohamed Y. Olwan Faculty of Law, Jordan University Jordan
1) Introduction It is an honour to be a participant in the IALS Conference on “The Role of Law Schools and Law Schools Leadership in a Changing World” at the Australian National University, Canberra from 25 – 27 May 2009. The question that I am asked to answer is “How does Law Schools Actually Achieve Its Goals and Objectives?” As a former dean and professor of law, I will first share my experience while working in a number of Jordanian law schools, then give some suggestions on how to improve legal education in Jordan to meet the challenges of the 21st century.
2) Jordanian Law Schools Law faculties are a new phenomenon in Jordan. The first law faculty was established in 1979. Before that Jordanian students graduated from law faculties in Arab capitals such as Cairo, Damascus and Baghdad. Today, there are (12) law faculties in Jordan, (4) at public universities and (8) at private ones. While public law faculties suffer from the financial and bureaucratic problems of public universities in general, private law faculties belong to profit- tailored institutions which may pay less regard to academic quality than they do to profit.
As with most other disciplines, the admission of students at law faculties is based on their results in the High School certificate. Objective as it may be, the said criterion does not necessarily preclude unqualified students from entering law faculties. Upon admission to the university, candidates do not sit for any special admission test.
Faculty members are required to have a PhD degree. However 20% of the faculty members, as a maximum, may be LL.M holders. In numerous cases, these degrees are accorded by sub-standard universities whether in the region or abroad. The salary of law professors is not adequate, and those who practice law in addition to their academic careers are not able to dedicate sufficient time for their teaching careers.
The education system in general in the Arab world including Jordan does not further the development of student’s analytical skills, problem solving skills, critical thinking and innovation. Legal education is no exception. The need for reforming education within the region as a means to attain sustainable development is well acknowledged by the stakeholders in legal education as well as in the legal profession at large.
3) Issues to Consider Having given an outline of the Jordanian law schools, it is now important to look at some possible reforms.
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A) Incorporating new innovative courses There is a need to introduce new innovative courses in the law school curriculum and in certain situation drop old courses that are no longer important or useful for the 21st century. Among the new courses that need to be included in Jordanian law schools, for example, are courses on economic law theory and mass media law. There is also a need to have specialisation degrees for example Master degrees in technology and the law.
B) Innovative Teaching Not only is it important to teach students the basic legal courses such as contracts, criminal and commercial laws, but to think innovatively of the legal issues that are being taught. We first need to recruit professors who are creative and innovative in the first place. We must aim to recruit the brightest professors in law schools, especially those who graduated from top universities or who demonstrate considerable pedagogical skill and training. It is important not only to look at the degrees, but also the communication skills of the professor who is seeking employment.
C) Tough measures against Plagiarism (anti-Plagiarism) This is an important matter that needs to be given special attention in law schools. Plagiarism is unfortunately a spreading practice in Jordanian law schools. Strict measures need to be taken against students who are committing plagiarism by their universities and university administrations. Each law professor must be knowledgeable in using the technology that allows the discovery of plagiarism at an early stage in order to take appropriate academic measures against any infraction.
It is also important to understand the basic principles of copyright by professors and students so they know which acts are allowed and which are not under the law. Appropriate copyright polices should also be put in place.
D) Use of Technologies in law schools and beyond Modern law schools use technology in classrooms and beyond all the time. They have websites that are highly informative and frequently updated. Most of Jordanian law schools do not have websites or they are not adequately updated. Students are not familiar with using the internet and databases to conduct legal research. There is a need to subscribe to important databases such as Lexis-Nexis and Westlaw. This is not only important for students, but also for professors as it would allow them to update their information and follow the developments taking place in their subjects.
Each professor should have his own webpage and all his assignments and reading materials should be posted on it. Students should be given the opportunity to discuss the reading materials through special discussion groups and use the internet frequently.
E) Adopting Practical approach to academic teaching The methods that are followed by professors in many law schools are not creative and many of them still follow the lecturing method of teaching rather then following the Socratic methods which provide students with the opportunity to develop analytical and critical legal skills. Curriculum should be regularly scrutinized and reviewed in order to provide students
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with appropriate practical experience that will help them when they begin their professional careers. This could be achieved by arranging visits of prominent lawyers coming to law schools to teach and provide law students with invaluable practical experiences that they could not acquire in class. There is also a need for Jordanian law schools to introduce internships for law students with either courts, law firms or interactional organisations. This would help them to connect with lawyers and apply the knowledge that they have gained beyond class rooms.
F) “Openness” in legal education There are different contexts in which the idea of “openness” could be applied in law schools. Higher legal education should be open not only to legal students but also to students coming from different disciplines provided that they are qualified to enter law schools. This would bring different perspectives into the classrooms and enhance legal research.
There is a need to be open to other legal systems and try to be benefit from them as much as possible for enhancing a particular legal system. Law schools in Jordan should introduce new courses in the history of law and contemporary legal systems such as common law and Germanic law. A comparative approach to the study of the law should be introduced also in law schools and professor should be familiar with this approach and its legal significance to the understanding and improvement of the law.
G) Clinical Legal Education The concept of legal clinics is still not recognized in many law schools in Jordan and Arab countries. It refers to students seeing and working on the legal matters of `live clients’ in the context of a legal practice. There is an urgent need to introduce legal clinics in Jordanian law schools that would help students to understand better their subjects. Legal clinics might help the community and citizens to solve their problems in dealing with different issues as tenancy, employment, refugee and family law. Clinical students will have an invaluable understanding of the broader human rights framework in which the law operates and to think critically of the role that the law should play in addressing injustices.
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Please refer to Page 157 for Professor Wasis Susetio’s paper entitled “Building a New Paradigm in Law Education in Terms of Upholding the Rule of Law in
Indonesia through Clinical Study”
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Plenary IV
What is the Role of the Dean Internally?
Leadership Issues Within our Law Schools
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What Is The Role of The Dean Internally?
Chioma Kanu Agomo, Professor And Immediate Past Dean, Faculty Of Law, University Of Lagos Nigeria
Brief Background
The Faculty of Law of the University of Lagos, Lagos, Nigeria was established in 1962 as one of the foundation teaching and academic units of the University. The position of the Dean is a privileged one in many respects. It is also a very challenging one. This paper focuses on the on the role of the dean internally. How is the Dean appointed? What are his/her responsibilities towards students, academic colleagues and other staff, the University and other bodies, whose voice and input cannot be ignored in the internal running of the Faculty?
Appointment
The Dean is elected by fellow academic colleague from lecturer II to Professor, in accordance with the prescribed laws governing the University.
I was elected the first female Dean of the Faculty in 2004 and reelected for a second and final term in 2006. I therefore served as Dean for four years (2004-2008). This is the maximum term a Dean can serve in the University.
Only Full Professors are eligible for election as Dean. Most elections are a straight contest between two professors. I was elected unopposed for the first term. The second term was contested.
Leadership Roles
The Dean is the chief executive of the Faculty, and leads and manages the academic, administrative and financial affairs of the Faculty in accordance relevant regulations governing the conduct of affairs in the University. The Dean is answerable to the Vice Chancellor and the Senate and University Council. The Deputy Vice Chancellor (Academic and Research) and Deputy Vice Chancellor (Management Services) may stand in for the Vice Chancellor. The Dean presides over the Faculty Board of Studies and other statutory meetings, such as the Committee of Dean and Heads of Departments, and Appointments and Promotions Committee. There are other ad hoc committees chaired by the Dean as the need arises but in most cases, a professor or other senior academic staff is appointed as Dean’s representative. The Dean operates largely through the Committee system to accomplish many important tasks such as curriculum development, seminar and occasional lecture series, research and publications, Linkages and partnerships, staff and student welfare, examination and lecture timetables etc. It is there expected of a Dean to have excellent communication and persuasive interpersonal skills to carry the Faculty along at all times. Dispute prevention and management skills are also important. A Faculty can only be as dynamic as the Dean.
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I) Leadership Role: Students
The Dean has primary responsibility of providing the right academic learning environment for students. The vision of the University is to be a top class institution for the pursuit of excellence in learning and research, as well as in character and service to humanity. The Dean must show unwavering commitment towards a progressive realisation of the vision and mission of the of the University and the Faculty. He/She should ensure that course content, quality and teaching methodologies are adequate and current, with the aim of providing a sound and broad based legal education, which should translate into broad based lawyers who can fit in anywhere nationally and internationally. The training of lawyers is not complete until the one year professional training is successfully completed at the Nigerian Law School, under the Council of Legal Education. The Dean is a member of the Council and has the responsibility to ensure that students meet the ethical as well the academic requirements require for admission into the Law School.
The Dean is therefore required to be well acquainted with all matters relating to student discipline and code of conduct. Regular contacts with students collectively and individually are needed. Students appreciate a Dean who demonstrates empathy and openness. This in no way compromises firmness.
In dealing with students and staff, the Dean often works through Heads of Departments as the general coordinator. The Faculty has four departments each headed by a full professor. The Dean needs a lot of tact in dealings with Heads of departments especially where they are senior professors. The Dean must therefore be a good human relations manager.
II) Leadership: colleagues
As stated earlier, the Dean provides academic leadership in teaching and research. In conjunction with heads of departments, the Dean oversees the welfare of academic and administrative colleagues; represents the Faculty in university committees on matters relating to promotions, appointments, leaves, termination, and discipline of colleagues. The great challenge here is that peculiar needs of law faculties for example in terms of basic and terminal qualifications for appointments and promotions may sometimes be subsumed in the larger policy direction of an external body charged with oversight functions over the universities. This is one of the areas where networking and partnerships with other Faculties within and outside the country is required to ensure basic minimum and common standards.
Financial Responsibility
The Dean is the chief accounting officer of the Faculty. This involves the preparation of the annual budget for the Faculty. Implementation of the approved budget is also the responsibility of the Dean. Financial autonomy is severely restricted and availability of funds for effective administration is a severe constraint. The Dean is expected to be a good fund raiser within the laid down guidelines.
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Relationship with University
The Dean serves on numerous committees of the University. The Dean also oversees postgraduate programmes of the Faculty and chairs the postgraduate Committee of the Faculty.
Relationship with External bodies
As indicated above, the Dean is member of Council of Legal Education, body charged with responsibility for the professional training of lawyers in Nigeria; and also a member of the Governing Council of the Nigerian Institute of Advanced Legal Studies. The Dean with the cooperation of the Faculty and the Director of Academic Planning in the Vice Chancellor’s office, prepares the Faculty for academic and professional accreditation as and when due, usually every three to five years.
Status
The Deanship position is an honourable, and respected one. The challenges are however enormous. But, rather than being one to be avoided at all cost, it is one that people aspire to. The exposure and the door it opens into more or less the highest echelon of university administration and decision making cannot be equated with the stress that goes with it. It is in my opinion and invaluable experience.
Governance
It is not easy to combine academic, administrative and managerial responsibilities effectively and simultaneously. From my personal experience, teaching often has to rescheduled or cancelled because of pressing administrative responsibilities, unscheduled meetings both within and outside the university.
Conclusion
Although the Faculty of Law, university of Lagos, is relatively young compared to other Faculties in more developed countries, I believe that we all share similar aspirations as well as challenges. Each Faculty needs a Dean who understand its peculiar needs, a Dean who understands the vision and mission of the Faculty and the umbrella university, a Dean who is a servant leader with unquestionable integrity, and excellence in character. Our Faculties suffer from financial constraints though in different degrees. We all need a good measure of autonomy to be creative and proactive. At the end of the day, the aim of every Dean, in my opinion, is to take the Faculty to the next level of development with unmistakable international recognition. No man or woman is an island. We need to partner with each other to achieve our individual and common goals.
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What Is The Role of The Dean Internally?
Associate Professor Joash Amupitan* University of Jos, Nigeria
INTRODUCTION
This abstract discusses the Internal Role of the Dean of a Law Faculty from Nigeria perspective. Most of the materials relied upon are based on the statute, regulations and practices of the University of Jos, Nigeria.
The University of Jos was established in 1975 by an Act of the Federal Government. The enabling legislation is the University of Jos Act. The Faculty started in 1976 as a department under the Faculty of Social Sciences. In order to meet the increasing demand for places to read Law sweeping the country at the time, the Department was transformed into a full- fledged Faculty of Law in 1980.
The Faculty started with two departments, namely, the Department of Public and Private Law and the Department of Property and Commercial law. In 2004, two additional Departments were created consistent with the objectives and goals of the Faculty for year 2005. The two Departments are International Law and Jurisprudence while the department of Public and Private Law was splitted into two. The four Departments are: Public Law, Private Law, Commercial Law and International and Jurisprudence.
The Faculty is headed by the Dean and there are four Heads of Department that assist the Dean in the day to day administration of the Faculty. There is also a deputy Dean and a Faculty Officer
FUNCTIONS OF THE DEAN
The functions of the Dean of the Faculty includes the following-
(i) Day to day running of the faculty: Generally speaking, the Dean of the Faculty is the academic and administrative head of the Faculty. This is apparent from section 8(4) of the University of Jos Statute No. 11 which provides-
The Dean of a faculty shall exercise general superintendence over the academic and administrative affairs of the faculty…
From this provision, it is clear that the Dean is saddled with the day to day running of the affairs of the faculty. He is to attend to every correspondence and carry out every directive from the Vice-Chancellor who is the Chief Executive and Academic Officer of the University. He also ensures that every decision of the University Senate is carried out in the faculty. In administering the faculty, he responds to every correspondence from within and outside the University. He
1 Contained as the Third Schedule to the Principal legislation.
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ensures that all staff and students matters requiring the attention of the Senate of the University are brought up for its consideration.
a. Leader of the faculty: The Dean chairs the Faculty board and every other meeting of the faculty including every committee of the Faculty Board of which he is a member. He also chairs the Faculty Administrative Committee consisting of the Dean, the Deputy Dean, the four Heads of Departments with the faculty officer in attendance. The faculty board consists of all the academic staff of the faculty with the faculty officer in attendance as the secretary of the meeting. The Dean also chairs all other faculty’s meeting such as: Appraisal Committee which consists of the Heads of Department and all professors; Curriculum Committee; Admission Committee; ICT Committee; Post Graduate Committee. (ii) Academic leadership: The Dean provides academic leadership in the faculty. In most cases, he is the most senior academic in the faculty and a mentor to most of the faculty staff. Apart from administrative responsibility mentioned earlier, he teaches some courses at undergraduate and post graduate level and also involved in research. He presides over every M.phil/Ph.D seminar presentation. He also leads the faculty board of examiner and ensures that student’s results are prepared in line with the University’s regulation. He presents the students examination result to the Senate of the University. In consultations with the Heads of Departments and Professors in the faculty, he nominates external examiners for the approval of Senate. He also leads the faculty for accreditation by the regulatory agency and ensures that all facilities required for accreditation are put in place. The Dean is also a member of university Senate and he makes useful contributions to the Senate apart from defending faculty’s matters at Senate meetings. He ensures that the faculty curriculums are reviewed from time to time in line with the regulation of the University. (iii) Responsibility to the Vice-Chancellor: In accordance with Rule 15(ii)(a) of the University of Jos Regulations, the Dean is responsible to the Vice-Chancellor on all matters relating to the appointment, promotion and discipline of academic and senior technical staff after due consultation with the Heads of Departments. (iv) Responsibility for promotion of staff: The Dean presents his staff that are due for promotion on yearly basis to the University’s Appraisal Complex Committee. This was after the departmental and faculty’s Appraisal committee have recommended the staff for promotion. The Dean makes necessary recommendations on staff appraisal Form either for promotion or for annual increment. (v) Responsibility for appointment of staff: The Dean advises the Vice-Chancellor on staff recruitment. He ensures that competent staff are recruited based on the need of the faculty. He, along with the relevant Head of department, is a member of the Interview Panel. In exceptional cases, he can make recommendations for the appointment of a staff on a temporary position pending a formal interview. (vi) Responsibility for discipline: The Dean is responsible for the discipline of staff in consultation with the Head of department concerned. He ensures that all
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disciplinary cases are referred to the Vice-Chancellor and also to the Council/Senate Disciplinary Committee. (vii) Responsibility during Convocation: The Dean is a member of Convocation. It is his duty to present to convocation for the conferment of degrees persons who have qualified for the LL.B (Hons) degree of the faculty after a successful examination. He also ensures that the names of successful candidates are sent to the Nigerian Law School for admission into the school so as to qualify them to practice law in Nigeria. Successful candidates’ names below the age of thirty years are also forwarded by the Dean to National Youth Service Corp for a compulsory national service. (viii) Collates faculty’s budget: He collates, co-ordinates and present the budgetary proposal of the faculty to the University Management. This he does in consultation with the Heads of Departments. (ix) He advises the Vice-Chancellor on Academic Matters: The Committee of Deans is saddled with the responsibility of advising the Vice-Chancellor on academic matters. The Dean of Law is a member of that Committee. He is also a member of all Senate Committee bothering on academic matters. These include- Senate Business Committee, Senate Curriculum Committee, Senate Affiliation Committee, the Library Board.
With all these responsibilities, the Dean helps to achieve the goal of the faculty. For instance the vision of the faculty is to nurture an ivy faculty of the highest standard which is rated as the best in Nigeria and among the three best in West Africa. This goal has been achieved as the faculty is one of the few Universities in Nigeria with full accreditation from regulatory agencies.
The Deanship is an honourable, sought after and respected position in the University. This is because in line with the University’s regulations only very senior academics are eligible to vie for the position. The years of experience are put to bear and he commands the respect of all faculty members. Where there is more than one professor, the faculty board elects the Dean. In order to avoid a distraction from research pursuit, the tenure of a Dean is two years subject to a renewal for another term of two years.
The Dean’s responsibilities are enormous and there are other external pressures that could affect the performance of the Dean. For instance pressure over admissions and other responsibilities outside the University such as membership of Governing Council of other institutions. The situation is compounded where there are no trusted and competent deputies to assist the Dean. The pressure from families is perhaps peculiar to most African countries.
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Please refer to Page 79 for Dean Alan Button’s paper entitled “Nurturing Law Student Vision”
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What have we learned from each other? What can we learn from each other?
Dr. Lafi Daradkeh Assistant Dean of Yarmouk Univesity, Faculty of Law Jordan
Abstract: This article address political question doctrine that may play core role in the process of teaching law by the schools of law and helping in building up ties of connection between schools of law. Internal rules of law in any state often impose explicit constraints on the schools of law with regard to the types of teaching methods and with regard to law- school of thought that should be taught. These restrictions may serve to entrench fundamental principles or may simply reflect historical compromises. Law-teaching that violates such restrictions may be ruled unauthorized. The case for policy review must be supported by a philosophical outlook that views teaching law rights as antecedent to the positive law. It will continue by mentioning four different legal philosophies: civil law, common law, Islamic law, and communist law. each of which considers law-teaching rights as antecedent to positive law in the sense that the morality or justice of the positive law can be ascertained by reference to law- studding rights. While the four perspectives are by no means exhaustive, they may be taken as representative models of those viewpoints which, to a great extent, shape the contours of contemporary political debate regarding issues of teaching law.
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Introduction: The exiting legal systems of the world are civil law, common law, Islamic law, and communist law. Each of this system considered as a school of legal thought which can be taught by the schools of law. As to the Civil law system is considered as the oldest one and the most influential of the other legal systems. Its root goes back to the Roman law, which was the issue of a brilliant civilization extending from the Mediterranean to the North Sea and from Byzantium to Britannia.1 The common law system was born in England and the main feature of it is that it is largely case law or more precisely, a judge-made law. The bulk of common law and equity has not been the work of parliament, but is developed through the time.2 The communist legal system adopted in some countries of the world, exactly former Soviet Union and Eastern Europe, this system is based mainly on the communist ideology which affected the structure and the organization of the communist system.3 Finally, Islamic legal system is group of rules have particular expression to the religious faith and aspiration of the Muslims. the whole of the law is derived from religious and ethical considerations. It uses standards id religious and moral rules to measure each institution, transaction, or obligation, such as the prohibition of the interest, the prohibition of uncertainty, the concern fro the equality of two parties, etc.4 The question of this paper is not to study these law systems, but to study the policy of faculties of law in having interest in teaching this legal system. The schools of law have different approach to these legal systems, some of which adopt free teaching system, others adopt castle teaching system, and others adopt mixture teaching system.
1.Free Teaching System: In this model of schools of law, studding law like life and liberty is a natural right. By doing so, they hoped to free law-teaching from the prerogative of the governing ideology of the state. Schools of law in adopting such ideology in teaching Law do not make distinction between these legal systems in term of teaching them. The students of law, according to this model of teaching law, should learn and understand all legal system that are in the world with the purposes of extended their knowledge in terms of legal school of thoughts that govern the world and as part of the national policy in terms of freedom of learning. However, it does not meaning that the schools of law should have these legal systems in their curriculum. The point is to remove any political and legal barriers that may block their way to know about others legal system.
2. Castle Teaching System: This model of teaching law is based on some political and social dimensions that prohibit other ideology to have affects on the people of the state concern. In order governing regime to continue in power exert all efforts to make their governing ideology as the best in the world and to be considered as a sacred right which can not be changed or modified by other thoughts. In the light of this viewpoint, law students who will draw the legal policy of the state in the future have to believe in this policy and to apply it by only learning their
1 Zaad Aqayleh. Terminology of law,2004. p11. 2 Ibid P17. 3 Ibid P41. 4 Ibid P 46.
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ideology and rejects others ideologies. The role of law schools in such states is to foster the principles of their states and to graduate priests rather than lawmen.
3. Mixture Teaching System: Some states adopt different legal systems to make their domestic laws. Mainly they adopt civil law system and common law system or Islamic law system. Therefore, as they teach their local law, they actually indirectly teach these legal systems.
4. What have we learned from each other? As one of the law school leadership and law tutor, the extent we have learned from each other depends on the policy we adopt in our law school in teaching law. The decision- makers in law schools are responsible on having network connections among law schools either by means of students or professors exchange program or by means of joint projects. I can judge that many law schools have different relationships with other law schools; some other law schools still to do more in this issue, and others have to think about the merits of having such connections. For example, Yarmouk university faculty of law has been trying its best to have as large connection relationships as possible with different law schools from different countries. Again, it is the decision of the schools of law to strengthen the ties between them in order to communicate the ideas we have and to improve our teaching systems and goals, then we will be able to have core effect in the changing world. However, there are many challenges to reach such aim, mainly finding financial sources, changing education rules that may prevent such approach. And finally, invitations from law school to their leadership to adopt open and transparent policies to run the faculty.
5.What can we learn from each other? This is an important and critical question to ask and the answer should be frankly and comprehensive. Therefore, the principles we would like to study in this regard is mainly concern the background of knowledge, should we believe in our law background and refuse and foreign idea or what? The example I would like to display here is the law and its practice in international arena. In international disputes before international court or arbitral tribunal, the people who involve in such tribunal as judges or arbitrators should be carefully chosen. The point is to have neutral tribunal that seeks justice in applying whatever legal system rules. Therefore, judge or arbitrators with civil law background is judging by applying for example common law rules or other legal system rules. Neutrality is the main concern; therefore avoiding partiality is the main principle in making network of connection between the schools of law. The second point is to have a forum form which we can launch our interactive relationship and such forum must be trustworthy by all members.
6. Conclusion: All legal system shall be treated equally and the door shall be open for movements of legal school of thoughts between the schools of law. To reach such aim, many steps need to be taken by for example the IALS and other organizations. Finally, I would like to conclude my paper let us avoid ask this question how could legal system of private ownership arise from the original legal system of joint ownership? Otherwise there will be no answer.
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Following this description, do we need to consider which law-teaching structures would conform to the principles of national preservation and equal protection as understood by each of above mentioned perspectives. Finally, we should argue that is the choice among the various law-teaching structures is inherently political?
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What Is The Role of The Dean Internally?
Dean Baldomero C. Estenzo University of Cebu College of Law Philippines
“In time of drastic change, it is the learners who inherit the future. The learned find themselves equipped to live in a world that no longer exist.”
The aforequoted timeless statement attributed to American social writer and philosopher, Eric Hoffer, sums up the major challenge faced by law school deans all over the world.
In a highly charged and rapidly changing period that we live in, law deans are expected to re-invent themselves, scan the horizon for trends and directions, be catalysts for change, lead by example and produce lawyers who are prepared to deal with complex issues of the century. What is crucial is to set the tone for instilling not just a quench for learning and quest for excellence on the part of the students but in involving them in programs and activities that prepare and train them to be society’s leaders in the era of “consequences” and a certainly uncertain future.
Background: Legal Education in the Philippines
The Commission on Higher Education formulates the principles and policies governing Legal Education in the Philippines, in addition to the bar examination requirements of the Supreme Court of the Philippines.
The objectives of Legal Education in the Philippines are as follows: (a) To prepare students for the practice of law (b) To produce especially committed members of the legal profession of competence and integrity with an awareness of the needs of deprived and oppressed sectors (c) To train persons for national leadership, and (d) To contribute toward the promotion and advancement of justice and the improvement of its administration, the legal system and legal institutions in the light of historical and contemporary development in the country and in other countries of the world.
In essence, Legal Education in the Philippines emphasizes a law program which molds the law students not only to strive for excellence but to actively promote the administration of justice and law reforms, as may be needed; produce competent and ethical lawyers, with a heart for the marginalized sectors; and enmesh them in an environment that serves as training ground for leadership roles in the community.
Role of the Dean in achieving the goals of the State and the law school
The Dean is the face of the Bar at the College (or School) of Law. His integrity, core values, positive attitude and leadership skills spell the difference in creating a generation of
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“learners” or the “learned” and in achieving the vision, mission and goals of the State and the institution.
The Dean’s challenging role is made easier by a team of faculty members who are not only skilled and updated in their respective areas of specialization but are participatory in the affairs of the College, open-minded, adaptive to changing circumstances, and are “learners” and “doers,” as well. They are his partners in inspiring the students to be empowered agents of change in their respective spheres of influence, not tomorrow, but in their present journey to become full-pledged members of the Bar.
In integrating community services as part of the Law Curriculum, the students benefit not only from the application of their knowledge gained in law school. Hopefully, seeds of compassion and appreciation of the importance of the Rule of Law will be embedded as part of their life values and in performing their role as stewards of the law and as leaders of society.
This is particularly important in a developing country like the Philippines where the Rule of Law unfortunately has to take a back seat, at times. The system of patronage politics still dominate, and are allowed to continue to dominate by cultural nuances, poverty and lack of education by a large part of the population.
Only an empowered citizenry, ably steered by determined and committed lawyers in promoting the Rule of Law, can affect the necessary changes in the existing political landscape. Such is the peculiar significance of law schools in molding the core values of those aspiring to be lawyers, in a relatively young Republic, such as the Philippines.
Governance of a Law School
Leadership by example cannot be over emphasized. To achieve the goals of a quality and life-changing Legal Education program, the four elements of good governance that citizens unceasingly demand from Government – participatory, transparent, accountable and predictable – are as indispensable in the governance of law schools. The Dean ensures that these factors are hallmarks of his administration.
The stakeholders in a law school include the faculty and the students, school officials, staff, librarian, parents/spouse of the law students, alumni, corporate funders, non-government and people’s organizations and of course, the public sector members. For efficient and effective governance, the stakeholders are encouraged to participate in crafting, adopting, implementing, monitoring and evaluating the various programs and activities of the law school. There is sustainability of programs and activities if they are part of the endeavor, from the initial phase up to the end of the life of the Program.
Some of the law schools programs that involve the students and faculty members as key players are the Legal Aid Program, curriculum development, web site, voters’ education and the recent off-site voters’ registration Project.
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While UC College of Law is only seven years old, its Legal Aid Program is one of the two accredited by the Supreme Court among six Cebu-based law schools. It is in the forefront of pursuing environmental cases in Cebu, Philippines.
The Supreme Court also accredited the law school as a service provider for the Mandatory Continuing Legal Aid Program for Lawyers. It has hosted three complete and one short MCLE Courses since 2006 on subject matters such as sustainable development, climate change, environmental law, electronic law and evidence, among others. The students and the faculty work together in the implementation of the aforesaid continuing Programs.
The UC Law Curriculum is a product of the engagement between the faculty members and the students. It is a work-in-progress geared towards enhancing the capability of the students to meet and answer the demands of the 21st century, with courses such as International Business Practice, Environmental Law, Information Technology, Alternative Dispute Resolution and Intellectual Property. There is a plan to improve the curriculum further by integrating sustainability and global social responsibility in the courses of the law curriculum, as the institution’s response to the global financial crunch and climate crisis.
The law school’s web site (http://www.uclaw.org/) is student-operated, in close collaboration with the law school.
A recent project of the law school’s Local Government and Election Law course involved five barangays,1 UC, other universities and schools and the Commission on Elections. (COMELEC) The off-site Voters’ Registration Project which allowed the citizens to register for the 2010 national and local elections in the comfortable atmosphere of the school campus, not in the cramped office of the local COMELEC. The choice of such an activity emanated from the law students, endorsed by the law professor and supported by the law school Dean and the university management. The citizens and law students went home satisfied with the event’s success. The COMELEC officer was very happy with the result and is willing to do more collaboration with the different universities. The event was highlighted by media, which triggered an avalanche of replication requests from the public. See this link: http://www.sunstar.com.ph/cebu/uc-law-students-register-340-voters
The Dean as Leader/Manager
Knowing is not enough; we must apply. Being willing is not enough; we must do. - Leonardo da Vinci
The Dean plays a key role in engaging the institution, which he represents, in a partnership with the other key players of society to help improve the administration of justice and strengthen the Rule of Law. Under his stewardship, forums, roundtable and other activities that positively impact policies and decisions of stakeholders are given focus.
1 smallest political unit in the country
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The Dean, like any head of academic institutions, similarly with his counterparts in the private and public sectors, is not exempt from external pressures. The intensity may be more in the Philippines because of the personality-oriented culture that prevails.
How the Dean wards off such pressures depends on many factors, the most important of which is the consistent support coming from the management of the university and the stakeholders. Adopting the principles of transparency, accountability, predictability (following the law and policies) and the participation of stakeholders, will go a long way in keeping the office of the Dean away from the clutches of politicians, parents, donors and vested interests.
Status
In a country where passing the Bar is considered a rare privilege that brings honor not only to the person but to his or her family and law school, being considered for Deanship is already an honor by itself.
The position carries with it prestige, respect and tremendous responsibility. It is thus important that the occupant possesses the integrity, competence and inspiring leadership skills which law students can imbibe, when they go out on their own in the practice of Law.
Conclusion
With globalization, the Law Deans must also widen his sphere of knowledge and horizons. Thus, the University of Cebu College of Law Dean’s eager participation in this IALS Conference on the Role of Law Schools and Law School Leadership in a Changing World. Hopefully, the lessons learned in this important conference will be transmitted to our learners who will be the leaders in the future.
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'Leading a regional and rural Australian law school'
Professor Bee Chen Goh Head, School of Law and Justice, Southern Cross University Australia
Introduction
‘The tyranny of distance’. This description is rather apt when it comes to an institution like Southern Cross University that has multi-campuses spanning across a footprint immediately south of the border of Queensland deep into the mid-coast of New South Wales in Australia.1 Added to this challenge is the delivery of programs via distance education when students are virtually everywhere, onshore and offshore. I shall choose, therefore, to focus on one point alone: digital education as a means of flexible delivery and the challenge it poses to the role of deaning internally in effecting change in the educational environment of the Law School.
Digital Education
The use of digital technology has assumed increasing prominence in recent times. In the case of a regional and rural law school, its use is one of necessity. It is ridiculous to think of a student travelling two-and-a-half hours each way for a one-hour lecture or even a two-hour seminar. It is also practically impossible to expect each and every one of such regional and rural students to re-locate to where the law school is. Furthermore, Southern Cross University is located in the most underprivileged geographical region of the socio-economic groups of Australia. Finding technological means in teaching delivery as an added measure to the traditional classroom delivery is, therefore, essential.
However, in a sense, the tables have turned. It is submitted that what has begun as a ‘necessity’ will, in the future, be one of ‘choice’, as we move towards our increasingly Digital Age. The young generations of today are a product of a consumerist culture that hungers for the next best thing in technology. Very soon, our school-leavers will know no better than just using technology in learning. To the children of the digital generation, digital education and distance education has become a natural convergence in tertiary education delivery. In a very short time, the landscape has shifted. The cohorts are blurred and blended. Teaching effectively in a virtual environment fulfils the needs of both internal and external students. At this juncture, I shall turn to the concept of ‘Converged or Blended Teaching Delivery’ in the discipline of law.
Converged or Blended Teaching Delivery
The notion of a converged or blended teaching delivery2 seeks to create an educational environment, ideally, where no distinction is made between internal and external students,
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particularly in an instance where the institution is a distance education provider, like Southern Cross University is. It may be interesting to use the School of Law and Justice, Southern Cross University, as a case study.
We commenced external delivery of our LLB degree course several years ago. At that time, extensive study guides were produced (which continue to be produced) with hard copies provided free of charge to external students, and internal students given access to print at their own costs. Both cohorts were given electronic access via Blackboard. In 2006, lecture podcasts were piloted in a few units and very well-received by the external students. The internal students liked the idea, too, as the podcasts gave them an opportunity to go over what they might have missed at real-time. It also gave the opportunity to those internal students who missed classes to be able to catch up. Following such a successful trial, the School implemented podcasts across the board in 2007. Each of the lecturers was given an mp3 to record her or his classes for uploading onto Blackboard.
At about this time, a Business colleague engaged in a Canadian software called ‘Elluminate’3 which was, in 2007, implemented by the University as a companion teaching tool on Blackboard. Some Law academics have started to experiment with Elluminate.
Last year, ‘Second Life’4 was introduced to the School, although no one as yet has engaged in it as a teaching and learning tool. However, I am aware of a seeming interest amongst colleagues.
As we can see, technology will keep churning out newer and newer ways of doing things. The challenge is to keep up! Training the trainers becomes a fait accompli. It is also easy to lose sight of what we do, in the midst of fancy gadgets. The challenge is also not to forget that technology is here to supplement teaching, not to supplant it. In the end, pedagogy and technology need to be bedfellows.
As we can see, the ideas contained in converged or blended delivery are varied, and subject always to constant improvement. The decanal challenge, first and foremost, is to convince the Law academics to embrace technology at the psychological level. I say at the psychological level because I have found that managing change, and managing it effectively, has almost always been initially experienced at the psychological level before the technical or material levels. It is no surprise that whenever changes are mooted, we face staff resistance. Introducing the idea of flexible delivery via the concept of converged or blended teaching is no mean feat as it requires a paradigm shift in ways of thinking and doing. What more with the challenge of handling technology!
I must say, with some comfort, and certainly with staff willingness and co-operation, the School is making headway in this direction.5 I think it is also the right direction, given what I have stated at the outset, i.e. digital education which, for our institution, is a matter of necessity will, very soon, be a matter of choice for the digital generation of learners. To conclude, leading change in a rural and regional law school in Australia has been a challenging and enriching decanal experience. I expect it to be no different elsewhere.
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1 Southern Cross University has campuses in the State of New South Wales in Lismore, Tweed Gold Coast and Coffs Harbour. A new campus is currently under construction on the Gold Coast in the State of Queensland, and it is expected to be operational in 2010. Law programs are offered at both Lismore and Tweed Gold Coast, with the LLB expected to be offered at the new Gold Coast campus in 2010. 2 See, for instance, D. Randy Garrison and Norman D. Vaughan, Blended Learning in Higher Education: framework, principles, and guidelines, John Wiley & Sons, 2007. 3 The website is www.elluminate.com 4 The website is www.secondlife.com 5 Last year, the School was awarded a Vice-Chancellor’s Teaching and Learning Fellowship to research ‘Blended Teaching Delivery in Law’. Four Law units have been selected as part of the pilot in this research project.
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330 The Role of Law Schools and Law School Leadership in a Changing World
Please refer to Page 111 for Dean Alejandro Gomez and Professor Mónica Pinto’s paper entitled “A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires)
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332 The Role of Law Schools and Law School Leadership in a Changing World
The Internal Role of the Dean of the Law Faculty at Freie Universität Berlin
Prof. Dr. Helmut Grothe Dean of the Law Department, Freie Universität Berlin Germany
1. The administrative framework To provide you with a better understanding of my explanations regarding the role of the Dean of the law faculty at Freie Universität Berlin, let me first briefly give you some general information on the administration of our university. Since Freie Universität Berlin is a public body, the legal framework for the workings of the university is defined by a state law, the Berliner Hochschulgesetz (Berlin University Act). This act also spells out the duties and re- sponsibilities of the Deans of the various university departments. Underlying the Berlin Uni- versity Act is the principle of autonomy of the sciences and, therefore, the concept of self- government of the university and its departments. What does that mean in practice? Due to the principle of scientific autonomy, the President of the university and its four Vice Presi- dents are elected by the Academic Senate, which in turn is elected by the members of the various status groups of the university (professors, academic staff, non-academic staff and students alike). The university’s chancellor is appointed by the Berlin government on the basis of a proposal issued by the university’s President.
The notion of self-government is also present at the faculty level and is reflected by the two managing institutions of the law department: the Dean and the faculty council. The author- ity to reach the fundamental decisions regarding the law department lies with the faculty council. The faculty council is for instance empowered to decree ordinances, distribute the funds allocated to the faculty and to issue proposals to the Berlin minister of education for the appointment of new professors. The faculty council is entitled to assign the handling of issues of minor importance to the Dean. The council is composed of seven professors, two members of the academic staff, two members of the non-academic staff and two students, all of whom are elected by the respective status groups.
The faculty council is furthermore empowered to elect the Dean of the law department. There is a standing agreement amongst the professorial members of our faculty – which hold the absolute majority in the faculty council – to elect the Dean rotationally on the basis of the length of service at the faculty. The position of Dean is therefore not a professional one; rather, the Dean is primus inter pares, i.e. the first among equals. The Dean’s term of office is four semesters (or two years, if you will) and the Dean may theoretically seek re- election, which does not happen in practice. There are some minor incentives to serve as a Dean: Whilst in office, the Dean is exempted from roughly half of the teaching load. This means that the teaching obligations are reduced from nine hours per semester to five hours per semester. The function is also rewarded with a minimal pay raise.
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2. The Dean’s Responsibilities I turn now to the Dean’s responsibilities and will first address the official functions of the office as stipulated by the Berlin University Act and the Basic Ordinance of Freie Universität Berlin, followed by some remarks on the Dean’s unofficial functions.
a) Official Functions of the Office of the Dean The primary function of the Dean is to lead and represent the faculty and manage its opera- tions. The Dean chairs the meetings of the faculty council as well as the so-called ‘Professor- ium’, i.e. regular meetings by all the professors of the faculty. The Dean also communicates and protects the faculty’s cause in dealings with the head of the university. Regarding the Dean’s responsibility to manage the operations of the faculty, our university is currently in the midst of a testing phase. During this testing phase, most of the Dean’s responsibilities are shouldered by the Office of the Dean. The Office of the Dean at the law faculty is composed of four members: the Dean, the Vice Dean, the Dean for Student Affairs and the administration manager. Their co-operation is subject to what is called ‘Kollegial- prinzip’ in German: The members of the Office of the Dean are on an equal footing, they reach their decisions by a simple majority and they are held to represent the majority deci- sion with one voice to the ‘outside world’.
The Office of the Dean is responsible for the strategic alignment of the faculty. Some strate- gic parameters may be set by the Office of the Dean out of its own competence, such as the advancement of international scientific co-operation and student exchange with law de- partments of other universities. Whilst many other decisions fall within the formal compe- tence of the faculty council, the Office of the Dean possesses a strong influence upon the strategy chosen, since any proposition of major importance is usually prepared by the Office of the Dean. This includes the draft of the yearly budget as well as drafts for study and ex- amination regulations and so forth.
Another significant power lies in the authority to conduct negotations with new professors and to conclude target agreements with the existing professors of the law department. In this context, it is important to note that each professor conducts negotiations both with the Office of the Dean and with the First Vice President of the university. The Office of the Dean is entitled to assign financial resources for material purchases and human resources (in full- time equivalents) to the various chairs. The income of the professors of the department, in contrast, is determined in individual negotations with the head of the university, i.e. with the First Vice President (who is responsible for human resource issues). The First Vice Presi- dent may also grant additional human and financial resources to individual chairs. The Office of the Dean has no say whatsoever on how the financial and human resources assigned to the various chairs are disposed of, it may only attempt to influence decisions by way of the said target agreements. The academic freedom of professors further prevents any interfer- ence by the Dean on the scientific courses taken by the professors of the faculty. The Office of the Dean is furthermore responsible for the ongoing administrative and human resource issues at the faculty. This includes anything from the assignment and refurbish- ment of rooms to graduation ceremonies and the assignment of temporary lectureships. Principally, the Dean’s Office is also entitled to issue instructions to the law department
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staff. However, this authority is limited to personnel which is not directly assigned to spe- cific professors and is consequently quite limited. It solely extends to specific non-academic staff such as the administrative staff, the maintenance staff and the library personnel, but does not relate to academic staff or secretaries.
Finally, the Office of the Dean is entitled to act in matters of urgency: If a decision cannot be postponed until the next meeting of the faculty council, the Dean’s Office may take the in- dispensible remedial action, notwithstanding the power of the faculty council to adopt their own measures. b) The Dean’s unofficial functions I shall finish my explanations with a small remark on the unofficial functions that are fulfilled by a Dean:
The law does not spell out the Dean’s obligation to act as a mediator. Nonetheless, that might be one of his or her most important tasks within the faculty. In a department which brings together many intelligent, diverse, eloquent and self-assured individuals, conflicts are inevitably brought to the attention of the person who is the first amongst his or her peers. The Dean is held to pour oil on troubled water and provide solutations acceptable to the stakeholders involved when feelings run high either amongst the staff or between students and the staff. In the same vein, the Dean is a messenger and interpreter in the communica- tion tension field between the head of the university and the members of the faculty. I am sure that all of you can relate or have experienced this last, unofficial challenge of the role as a Dean, and I am very interested to hear how the official functions of the Dean in your universities differs from the position at Freie Universität Berlin.
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Being a Law School Dean in These Challenging Economic Times
H. Reese Hansen Howard W. Hunter Professor of Law J. Reuben Clark Law School, Brigham Young University United States
Current world-wide economic troubles are presently affecting U.S. law schools in important ways. Legal education at most law schools in the U. S. for the past many years has been characterized by an economic model which has proven unsustainable over time. Major elements of the model at many law schools were that: 1) There is an ever growing demand for legal education. 2) Students are willing to pay higher and higher tuition because the earning capacity of law graduates made the investment required to attend law school not imprudent. Lawyer jobs were relatively plentiful and attorney salaries were relatively high and were increasing at rates exceeding general cost of living increases. 3) Students’ borrowing substantial amounts money to cover much of the expense of attending law school did not significantly increase the total cost of a legal education because loans were readily available at bargain interest rates and could be repaid over many years following graduation from law school. 4) Demands on law schools from the profession and from accrediting bodies to increase the amount of skills training offered could be met by reducing faculty teaching loads, hiring more faculty, and by increasing tuition or using donated money to cover the costs. 5) Demands on law schools from their universities and from accrediting agencies to increase the amount of published academic scholarship could be met by reducing faculty teaching loads, hiring more faculty, and by increasing tuition or using donated money to cover the costs. 6) Private donors and foundations will continue to be generous in their support of law schools. 7) Law school and university endowments can be invested aggressively because the potential rewards for such investments exceeded perceived risks.
The current economic recession in the U.S. has caused many, if not most or all, law schools to consider these stark new realities: 1) The demand for legal education may not, in fact, continue to increase over the longer term. 2) Students may not always be willing to pay higher and higher tuition because law graduate earnings are not increasing and law jobs for graduates are not as plentiful as in the past. 3) Students’ willingness to incur large student loans to go to law school may decrease because their future earning capacity as lawyers has become doubtful because practicing lawyers are being laid off. 4) All curricular offerings and teaching methods must undergo more rigorous evaluation because teaching budgets are either frozen or are being reduced. 6) Support for travel, research assistants, and leaves must undergo more rigorous evaluation because budget funds are diminishing and endowment principle and earnings are reduced. 7) Investment strategies require reevaluation in face of newly perceived market risks.
THIS IS A PARTICULARLY DIFFICULT TIME TO BE A LAW SCHOOL DEAN
The challenge for the law school dean, of course, is to move the institution forward in the face of these new realities. No doubt, there will be some interested parties who,
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while willing to acknowledge, generally, that economic realities will require a tightening of belts, will insist that their particular areas of interest should be at least maintained, if not enhanced. It is unlikely that all interested parties will willingly subordinate their special interests in favor of the general welfare of the institution.
Applications for Admission to Law Schools
Applications for admission to law schools in the U.S. are, generally, counter-cyclical to economic conditions. It has been the pattern that applications for admission to law school have increased in times of economic downturn. That pattern seems to be continuing, at least so far, for admission to the entering class of 2009. Because it appears that economic recovery from the present downturn may take longer than recoveries in past recessions, it is hard to know whether the pattern of increased applications will continue over the longer term. Complicating the analysis on what the future demand for legal education is going to be is the fact that there are many press reports of lawyers being laid off from even the largest law firms in the country. These reports are likely to have some impact on students willingness to undertake three years of post-college training in order to qualify for a position in a shrinking profession. Offsetting considerations, however, include the reality that college graduates are currently facing a poor employment market generally. Rather than take a disappointing employment situation (or no employment at all), many college graduates may believe, as college graduates have believed in the past, that law school is still the best available option, and that employment prospects will surely get better by the time they graduate from law school.
New Lawyer Salaries
Further evidence is that starting salaries for law graduates will not be increasing, and that, indeed, there may be some decrease in starting salaries for law graduates. Basic principals of economics would hold that if the number of law graduates does not decrease, but the number of job opportunities decreases, that salaries for graduates seeking to enter the profession will come down. At least for the immediate future, the number of law graduates in the U.S. will not be decreasing because of the students already in law schools and the number of applicants for admission to the 2009 entering class. While the future may prove that basic principals of supply and demand do not apply to the legal employment market, it would be surprising if at least some potential law students choose to pursue other options.
Law Student Borrowing and Debt Load
Many in legal education have warned for many years that the debt burden of law graduates would exceed the ability of law graduates to repay their student loans. This fact, they warned, would require, at a minimum, that the rate of tuition increases for law schools would have to be reduced, and that, perhaps tuition levels might have to come down. There is some evidence that those warnings are now actually becoming a reality among a substantial portion of law graduates as there are increasing reports of law graduates being unable to repay their student loans. It seems very likely that tuition increases will have to moderate, if not cease, for the foreseeable future.
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FINANCIAL STRUCTURE OF U.S. LAW SCHOOLS
All U.S. law schools, both public and private, depend on tuition revenue to cover a substantial part of the cost of operations. Besides tuition revenue, almost all law schools depend, at least in part, on annual donations to the law school from alumni and other individuals who are willing to provide financial support to the law school for operations. Almost all private, and many public, law schools also have accumulated funds in endowments which are invested and which produce income which can be used by the law school for operations or can be reinvested in the endowment. The size of these endowments varies substantially among the schools. Some law schools, particularly elite law schools, have very large endowments which earn substantial income which can be used for operations and programs. Other law schools have smaller endowments, with many law schools having very small endowments. In addition to tuition revenue, annual donations, and endowment earnings, public law schools also receive government appropriations to help finance operations.
Private U.S. law schools with no, or very small, endowments depend on tuition revenue to pay all, or nearly all, of the cost of operating their law schools. Tuition rates at these schools are already generally quite high. Because of this fact, the problem of funding these schools will become more difficult as competition for students increases if the U.S. applicant pool shrinks. Furthermore, if students become less willing to borrow to finance their legal educations it may be difficult for tuition dependent schools to raise tuition sufficiently to pay increasing operating costs.
Most law schools are currently experiencing a reduction in annual donations and in donations to endowments. Additionally, endowment earnings are experiencing substantially lower returns. These reductions to the income stream add to the financial stresses of law schools.
For state schools income from state appropriations are already reduced in many states, and will likely be further reduced in the future as tax revenues of the state governments are declining in the present recession.
DEALING WITH THE CHALLENGES
Law schools are certainly going to have to face up to these changes in historic patterns. The law dean is going to have to orchestrate the balancing of the new economic realities. The challenges of attracting students, maintaining a rich curriculum with an appropriate mix of skills and doctrinal courses, providing a faculty of sufficient size, supporting appropriate faculty scholarship, and providing necessary support services within law schools will require particularly imaginative and energetic leadership in the present environment. But these economic times also present a unique opportunity for deans and law faculties to assess their personal and institutional priorities. Especially because resources are shrinking, elimination of non-essential programs and courses and ineffective practices will be critical to the survival of law schools. In the process of this vitally important
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assessment, there are some basic principles that ought to be forefront in the considerations moving forward. I suggest those principles include at least the following:
1. Preparation of students to enter the legal profession through a rigorous academic environment with strong teaching and a rich curriculum. We are, before all else, charged with the duty to prepare lawyers to enter the legal profession as effective advocates and counselors and who understand the legal system and how to discover and apply the law.
2. Preservation of academic freedom, diversity of thought, and publication of influential scholarship. This principle is at the very heart of what it means to be a law school. It is essential to the welfare and progress of our communities.
3. Assuring that legal education is available to students of diverse backgrounds, races, gender, religions, and beliefs without discrimination in admissions. And that appropriate financial and other support is available assure all students a reasonable opportunity for success.
4. Support for the rule of law, justice, and public service. Law schools are, perhaps, the principal place for these essential principles to be taught, nurtured, and passed to the new generation of lawyers and citizens.
These principles, while certainly not new, are at the core of what an excellent legal education is. Good law schools must be vigilant to see that these principles are protected, even in the face of challenging economic and political times. The challenges facing U.S. law schools are large, indeed. But they provide an opportunity to rediscover the essentials of what we are about and an opportunity for recommitment to our great mission.
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The Dean as Drudge?
James C. Hathaway Dean and William Hearn Professor of Law Melbourne Law School Australia
Whenever I am asked how I am “enjoying” my new life as law school dean, I inevitably pause before replying – perhaps too candidly – that “I’m holding up,” “still alive,” or words to that effect. In truth, as I expect is the case for many, the first 6-9 months on the job were actually a blur. I was on an unending roller coaster ride, being sent from one meeting to the next, expected to make what seemed to me to be important and often difficult decisions with next-to-no time for reflection, constantly contending with multiple e- mail in-boxes that never seemed to empty, and struggling desperately to remember at least the names of the hundreds of people who were part of my new professional world.
With the benefit of about a year and a half on the job, I have at last found the time to ask myself some of the questions posited by the IALS as themes under the fourth rubric of the conference program. In particular, is the dean – at least of major law school – really more chief executive officer than scholarly leader? And if so, does it really make sense to recruit deans from among the ranks of academic authorities and respected teachers? Might it not be better, for example, to seek a dean from among lawyers with experience as a firm’s managing partner, as a senior public servant, or who have otherwise demonstrated acumen in management of a legal (or perhaps even an educational) enterprise – whether or not that person himself or herself is a serious scholar or accomplished teacher? So long as the dean is sensitive to these concerns and smart enough to recruit an executive team of deputy and associate deans deeply immersed in the research and learning enterprises, does it really make sense to seek out a dean who is a serious intellectual leader in law?
I realize that law deans are, on occasion, recruited from the types of background I have posited as alternatives to the dean-as-scholar model. But it remains that the dominant model is for the Dean of Law to be recognized by his or her colleagues, by students, by the judiciary, and by the profession as an intellectual leader, as a person with theoretical gravitas, as someone deeply immersed in, and able to influence, the world of ideas. Is this really an appropriate level of expectation?
My own decision to relinquish much of my own research and teaching in order to take up the deanship at Melbourne was heavily influenced by the university’s decision to abandon the Australian tradition of law as part of a dual-degree undergraduate education, and to become this country’s first all-graduate law school. The curricular reform upon which this shift was predicated was appealing, drawing on the best of international and domestic models, taking real advantage of the intellectual opportunities afforded by the Law School’s dozen outstanding research centers and institutes, and unstintingly supported by university leadership determined to reinvent tired models of university education. If ever there were an opportunity for a dean-as-scholar to play an effective role in reconceiving the academic enterprise, it seemed to me that this must be it.
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Yet the truth is that even at a school as deeply immersed in ideas and as committed to conceptual creativity as Melbourne, my own role as dean is necessarily on the margins of the real intellectual enterprise. I spend most of my days contending with the bureaucratic rituals of a major university in which law school interests and autonomy are routinely challenged; attempting somehow to find new resources to support my colleagues’ and students’ aspirations; ensuring that human resources, media, recruitment, student services and a dozen other bureaucratic operations function well; and of course, working with key external constituencies to ensure continued support for the law school. I am, to be blunt, a chief executive officer. In this context, does it really matter that I love research, crave the opportunity to write and to speak about ideas, and enjoy immensely the possibility of direct engagement in the classroom with bright and often insightful students?
The usual answer is that my intellectual predilections predispose me to manage the law school in a way that is sensitive to the core purposes of the enterprise. I accept that this is true. But without meaning to be self-effacing, I have come increasingly to question whether it is a reasonable assumption that even a talented scholar and teacher can be assumed to be capable of mastering the business of running a modern law school. As much as I do believe that my colleagues and students appreciate me for my commitment to ideas and creative teaching, their core concerns are, to be frank, more basic. Will there be enough money to do all the good things they aspire to take on? Will their professional lives be free of unnecessary interference and bureaucratic intrusion? In short, how will the law school ensure their own professional influence and happiness?
As I gain confidence and experience, I feel increasingly able to meet at least many of these expectations. But the learning curve has been steep, and my own skill set challenged by the transition to the life of a dean. More fundamentally, it seems clear to me that however much I learn on the job, my 25 years of scholarly life (even with the stints of serious administrative service and research center leadership I brought to this job) will simply never be equal to the business expertise of persons outside the dean-as-scholar category. If this is right, could not the requisite level of sensitivity to intellectual life be ensured by delimiting the scope of decanal authority on the substance of the academic enterprise, and by entrusting significant authority to an executive committee comprised of scholars serving as deputy and associate deans? And if these safeguards were in place, might not the critical managerial, financial, and organizational talents required of a modern law dean be more dependably ensured by looking outside of legal academe?
There is a part of me that very much wants this provisional analysis to be proved wrong. There is a nostalgia that surrounds the dean-as-scholar paradigm that I find attractive, no doubt bolstered by my own deep admiration for the scholarly deans who mentored me at critical points in my own career. But if the central mission of the law school dean is today focused on securing financing, on organizational management, and on communications and marketing, it may simply be that the roles once ascribed to the dean- as-scholar need now to be taken up by the second layer of law school academic administrators.
The option of continuing to embrace the dean-as-scholar paradigm, but ensuring that the dean is surrounded and supported by persons possessed of relevant business
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expertise is of course worth considering. But I am concerned that the institutional structures within which modern law deans operate generally both require personal accountability for decisions predicated on the analysis of such surrounding experts and operate with a speed that too often affords little opportunity for meaningful interaction with those possessed of greater business acumen, even assuming the requisite trust to adopt their analysis. In such circumstances, the model of a well-supported dean-as-scholar may not prove an entirely satisfactory answer to the challenges of running a law school.
The question I pose is therefore whether even well-intentioned, administratively attuned, and prepared-to-play-a-supporting-role scholars are best positioned to serve as a modern law deans. Or has the nature of the law school enterprise evolved to a point where our continued attachment to the scholar-as-dean paradigm is in truth largely anachronistic, even if romantically appealing?
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344
What Is The Role Of The Dean Internally?
Professor Mike McConville Dean, Faculty of Law The ChineseUniversity of Hong Kong Hong Kong, China
I should preface this short paper by emphasizing that my remarks arise out of the particular context of the Faculty of Law of The Chinese University of Hong Kong (‘the Faculty’) though they hopefully also have wider resonance. Whilst I have consciously sought to avoid the management-speak mantras that are often trotted out in describing decanal functions, in thinking about this conference I have found it difficult to provide recipes for others and I am convinced that a good part of the story of a Dean is intuitive. What follows, therefore, is located around my current position rather than drawing upon my previous incarnations in this capacity.
The Faculty is a new enterprise, having been founded in 2005 (as the School of Law). Whilst it lacked a tradition, alumni, a place in the market and other benefits that age brings, it importantly was not encumbered by the baggage of history, inertia, internal turf wars or staff who were captive to practices simply by reason of their lineage. There was, accordingly, space for innovation and creativity.
But it was not a completely blank paper. The Faculty’s origins can be traced to the perceived failings of its predecessors. Following trenchant criticism from the Chief Justice in 1998 over the products of law schools in Hong Kong, a major official inquiry laid down a set of recommendations for the teaching of law which placed boundaries not only upon then- existing Providers but all future Providers of legal education and training in Hong Kong.
Legal education was found to be dominated by a black-letter approach to law in a passive learning environment. Law graduates were said to lack an expanded view of the world having, at all stages in higher education, been stuffed, like Peking ducks, with black-letter law. Along with the lack of critical awareness among students came a lack of diversity in the profession caused by a dependence upon a school-level intake in the universities.
Among the reform recommendations were: (i) moving the three-year LLB to a four year programme; (ii) requiring that one-quarter of the curriculum be devoted to non-law subjects; (iii) diversifying the law intake to create opportunities for graduates from other disciplines to start a legal career; and reversing the emphasis upon law against skills in the one-year compulsory practical training stage (the Postgraduate Certificate in Laws or PCLL) and moving that stage out of the universities and into an independent Provider (the proposal to divest the universities of the PCLL has not been adopted to date).
A further background feature of Hong Kong is that the legal profession has in effect a golden share in legal education. Apart from an extensive menu of subjects (recently substantially increased) which must be successfully completed as a condition of entry to the PCLL, the subjects studied in the PCLL and the assessment methods utilised (for example, the proportion of closed book examinations) are subject to the approval of the profession which
also has, and exercises, the right to inspect teaching materials, attend actual classes as it sees fit and be involved in the admissions and assessment processes.
Another governmental response to the reform proposals was the creation of the new law school at the Chinese University of Hong Kong. No doubt this was meant to introduce a greater element of competition and the potential benefits that that might bring on the grounds that competition drives standards and increases diversity. Given that government funding of higher education is always limited and given that it would have been politically difficult to provide additional funding at the expense of the existing Providers, it was no surprise that official financial support for the new Faculty was at a level that required that it be largely self-financed. The Faculty, accordingly, had the challenge of making its own way in a world which had been dominated for many years by two Providers and in a market-place that was largely unknown and at best uncertain.
The new Faculty was, accordingly, both a child of the post-reform era and to some extent a prisoner of it.
The Faculty began life in 2005 as the School of Law headed by a Director, later Dean. The status of the Director/Dean also derives from that context: the direct responsibility was to establish a law school of international standing rather than to ride shot-gun over an already existing institution.
Given the context, it was important to take steps to ensure: that the Faculty rapidly established itself in the legal market-place; that it created for itself a distinct identity with which potential applicants could identify; that it promoted cultural diversity whilst maintaining the broader university commitment to bilingualism; and that it became an internally cohesive unit. Some of the ways in which these ambitions were sought to be furthered included:
• The Faculty was offered a distinct organising philosophy congruent with the educational enterprise and intended to inspire and liberate staff, give the Faculty an orientation that would differentiate it from its local competitors, enable it to eventually compete at a global level by increasing the chances that it would attract energetic and imaginative scholars and students who would share if not a common vision at least a shared commitment to the overall ambition
• This was so far as possible to be made evident in the construction of all programmes and individual courses within programmes
• There was to be a conscious move away from black-letter law, a move that was to be as far as possible by persuading the legal profession (as well as staff and students) of its benefits. In its ideal form, the approach would be ‘the context of law’ rather than ‘law in context’ so that the starting point is always the social problems that ordinary people face rather than the law
• As pioneered at Warwick1, one of the ways in which new issues are raised, and the scope of legal education expanded, is to take self-evidently important problems facing individuals in their daily lives that can be generalised into problems facing society as a whole, and to ask what is the relationship of, not only law, but also lawyers and the legal system to them. Adding social problems at the outset means that the law ‘of’ is replaced by an expanded perspective: the consumer and the law, for example, rather than the law of the consumer or the sale of goods; the environment and the law; the family and the law; employment and the law.
• One feature of this approach is that its ultimate reference point is to factual situations in the sense that its major criterion of relevance and importance is the experience of people in their everyday lives. The social problems to which it refers are common basic problems facing individuals on a continuing basis. Housing, employment, shopping, social security, the environment as well as what lies behind them, the organisation of businesses and commerce and of government. All else is instrumental. Housing law does not start with a statute on housing. It starts with the need for housing and how that is to be satisfied.
• This approach fundamentally expands the study of law not only by setting up links with the problems with which the law was designed to deal, but also with other things which were also relevant to the problems. It expands the study of law to include the study of non-law, the alternatives to law whose use may be more effective or more appropriate than the use of law, or may be an essential condition of the success of the use of law or which may be needed in addition to or alongside of law.
• In putting social problems first it raises questions about the role of law instead of simply taking it for granted and opens up discussion of the different roles of law and lawyers in relation to different kinds of problem. It cuts across the traditional boundaries between different forms of law, civil, criminal and administrative, and different areas of law, tort and contract, and adds problems like accessibility, jurisdiction, cost, effectiveness to the study of law and procedure. It also made clear that the study of law is meant to concern itself with matters of obvious importance. It is not simply a mental exercise or discipline to be studied merely to qualify to be a lawyer or simply to monitor and respond to the accidents and
1 This passage has been taken verbatim (with few changes) from various writings of Professor Geoffrey Wilson, Founding Father of Warwick School of Law, who pioneered the law in context approach. He would approve of the change to ‘the context of law’ which better captures his central idea.
incidents of litigation.
• As part of this strategy to place law within its social context, all students are required to complete a course The Individual, The Community and The Law. In this course, students explore the role of lawyers in society in terms of the historical development and orientation of the professions, lawyers understanding of and commitment to codes of conduct and ethical practice, and the relationship between the professional lawyer and the needs of the community. Students examine the role of lawyers in a practical sense in relation to the needs of different groups in society with a view to developing in students a lifelong commitment to public interest law and helping them deliver practical benefits to the wider community. Teaching is both classroom and community based. Classroom teaching will establish the framework for the course: the empirical supporting work will be student-led against a background of theoretically- informed and practically-based learning. There is an emphasis upon developing projects in conjunction with and for the benefit of the Hong Kong Community. Students are encouraged to select an issue of social importance, explore that issue in depth, look at the role, if any, that the law has played in the creation or resolution of the social problem and examine a possible reform agenda (which may or may not require legal intervention). Students are expected to be creative in devising the research agenda, prosecuting the research programme itself and in developing innovative work arrangements. Students may choose to work alone or in groups: if the latter, the work of each individual contributor must be carefully differentiated for assessment purposes. Field work is encouraged and expected. Students will be introduced to and will be expected to become familiar with research techniques and research protocols. Various media (questionnaires, interviews, video etc) may be utilized as part of the Portfolio to be submitted at the conclusion of the project. All empirical work must be undertaken with technical proficiency and a reflective perspective.
• Typically, students choose general social issues or problems such as the environment, drug abuse, access to legal advice, domestic violence, the protection of the harbour, poverty, abuse of children, protection of animals, protection of the elderly, facilities for the disabled. Alternatively, selected groups in the community known to confront special problems may be the subject of inquiry: for example, immigrants from mainland, foreign domestic workers, prisoners, unrepresented litigants, job-related stress among police officers, rights of suspects/arrestees, problems of ethnic minorities.
• The Faculty was invited to adopt a style of governance that was transparent and inclusive within an ethical context and a high-trust environment; an ambition that was considered to be essential in a societal context that was low-trust, heavily bureaucratic and hierarchical
• As illustrative of the approach taken, in addition to the usual informal interactions and working groups, the original core academic planning met as a body formally twice a week in the year before the first intake of students in order to plan the curriculum, establish the committee structure, the policies and strategies in respect of all aspects of the functioning of the law school. In over eighty such meetings, agreement was reached by consensus on all matters and a vote was never taken. Matters on which there was lack of agreement were held over for further discussion until a better solution was found and common way forward reached. In these discussions, the force of ideas and argument, rather than the standing or experience of staff members, took precedence and prevailed.
• Individual staff were encouraged to assume major responsibilities in both administration and teaching based upon their abilities and enthusiasm rather than upon whether they were more- or less- established teachers
• To give one example, the Faculty decided to put a great deal of its energies and resources into one major conference rather than to dissipate its efforts across a multitude of workshops, seminars, colloquia and the like in order to showcase the Faculty and to make a significant intervention into the legal culture of Hong Kong. It chose to do this by holding a joint conference with the Centre for Public Law, Cambridge University on Effective Judicial Review: A Cornerstone of Good Governance ( December 2008) to which the leading scholars, judges and practitioners of the common law world were invited and attended. The outcome was an extraordinary conference replete with first class papers which are to be published by Oxford University Press. Whilst the whole Faculty contributed to this effort, the principal actors from the Faculty who gave intellectual coherence to the conference together with Professor Chris Forsyth and Dr Mark Elliott from Cambridge were an associate(Professor Anne Scully-Hill) and two assistant professors (Professors Swati Jhaveri and Michael Ramsden)
• In place of teaching and rote-learning, the Faculty was invited to establish an interactive student-centred learning environment throughout the curricula within an outcome based framework and a diverse assessment regime and, so far as the PCLL was concerned, convert the law-based approach into a learning by doing environment which was skills-based and in which day to day activities more closely replicate the working world of the practising lawyer • Most of the Faculty’s courses are delivered through our intra-net by Moodle. Students are expected to come to class prepared and to be in a position to engage with the teachers and other students; assessment regimes are designed to be developmentalwithin an outcome-based teaching environment.
• The Faculty was encouraged to adopt in respect of both staff and students innovative recruitment strategies which reflected the overriding philosophy of the
Faculty with the ambition of bringing the law school into the community and the community into the law school
• One illustration is ‘Orientation Day’, a day when students from secondary school visit each university provider to audit departments prior to prioritising their university and discipline choices. Every university approached this by having an Open Day on which staff and students handed out leaflets and staffed information booths. The Faculty had no existing students to assist and it did not want its efforts to be indistinguishable from those of others. Accordingly, we mounted a full mock murder trial with academic and administrative staff as the main actors, invited the Press to a full dress rehearsal beforehand and streamed the trial on our website once it was over. Thousands flocked to see our production and interest was excited across Hong Kong. • We also made great efforts to visit secondary schools to tell students about our existence and then we set up a electronic competition which teams from schools could enter. The competition was based upon knowledge of law (discoverable from clues that we sent to them through a dedicated web site) and knowledge of our campus on which the electronic board game was based. Again, this quickly raised awareness among schools and contributed to the very high standard of applications we have received from our founding year.
• Given a background of extreme scepticism to the establishment of a new law school, efforts were made across all the board to engage the legal profession in all the activities of the Faculty and, where appropriate, implicate them in the design of key courses and programmes
• The one year training programme (the PCLL) was designed de novo in close consultation with the legal profession so that it reflected as closely as possible current legal practice. Uniquely in Hong Kong, the Faculty introduced two elective practitioner courses delivered in Chinese and, in the light of the increasing use of Chinese in the courts, is considering introducing a course on advocacy in Chinese.
I hope that this has given an insight into some of the approaches that we have taken. It goes without saying that a law school can succeed only if it is a genuine team effort. Teams are not naturally occurring phenomena and they are always, for a Dean, work in progress. When faced with problems, teams, and members within them, are likely to have answers that escape the Dean. Of course a Dean must win the respect and trust of colleagues through the usual ways and means: personal and institutional integrity; creating a transparent and ethical work environment; assisting in the development of all staff; engaging in smart delegation; helping staff to achieve a shared vision; making sure that each staff member is valued and knows that they are valued; and recognising the boundaries of their own knowledge and abilities.
As of today, our School has made the fastest transition to Faculty status in our university’s history and is now far and away the largest provider of legal education in Hong Kong. With
over 900 graduate students, the Faculty is predominantly self-funded and can largely determine its own destiny. A Dean needs to recognise that any success is attributable to the joint efforts of academic and administrative staff and the students who form the bedrock of the enterprise. Luck is also of help! The Role of Law Schools and Law School Leadership in a Changing World
352 The Role of Law Schools and Law School Leadership in a Changing World
What is the role of the Dean internally?
Professor Angelo Pantazis Head: School of Law, University of the Witwatersrand South Africa
It is best if I first describe the leadership structure in the Law School of which I am Head, at the University of the Witwatersrand, Johannesburg (‘Wits as we all call it in South Africa).
Until 2001, the current School of Law at Wits was the Law Faculty, one of nine faculties. In 2001, the various faculties were amalgamated to create five, one of which is the Faculty of Commerce, Law and Management. The former Law Faculty became one of the five Schools in this Faculty, the other four being the School of Economic and Business Sciences, the School of Accountancy, the Graduate School of Business Administration and the Graduate School of Public and Development Management. The Law Faculty was forced into this arrangement against the overwhelming objection to its ‘downgrading’ by the academic members of the Faculty. The given reasons for the restructuring were the valued synergies of cross-disciplinary work that would follow and the benefits of devolving power to the new super-Faculties. Neither of these advantages accrued to the new School of Law. The other Schools in its Faculty are not research-intensive and their disciplines do not have the centuries-old tradition of academic values, so that the School of Law is an anomaly in its Faculty for being so strongly academic, as opposed to professional or commercial. In fact, its academic standing is undervalued and even resented in the Faculty. Nor did the second projected advantage of the restructuring materialize for the new School of Law: rather than experiencing an increase in its powers, many of these powers were assumed upwards into the Faculty.
In 2001 the Dean of the Law Faculty became the Head of the School of Law. (For external purposes, the Head is still known as the Dean.) The Head reports to the Dean of the Faculty of Commerce, Law and Management. The Head runs the School together with the Management Committee of the School (Mancom). Mancom is constituted according to the standing orders approved by the Faculty, and consists of the Head, and the chairpersons of the major Committees and the key portfolio holders in the School (all academics), as well as two elected academic staff and the Administrative Manager of the School. Literally everything in the School is the ultimate responsibility of the Head. Mancom is as strong as the Head and its other members want it to be. Practically, the ideal division of leadership between the Head and Mancom is that the Head is responsible for day-to-day leadership and for initiating a vision for the School, and Mancom makes big-policy decisions. The actual running of the School is divided between the Head; the Administrative Manager, who is not an academic, who holds a permanent position, and reports to the Head; and the various chairpersons of Committees and key portfolio holders. The major Committees and portfolios include the Curriculum Development Committee, the Teaching and Learning Committee, the Timetable and Workloads Committee, the International Exchanges Committee, the Law Library Committee, the Postgraduate Studies Committee, and the Research Advisor. The stronger the occupier of these chairs or portfolio, the stronger the running of the School. The chairpersons and portfolio holders are chosen by the Head. The
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problem with appointing strong people to these positions is the relative shortage of good, willing administrators, the aversion by many senior staff to taking their leadership responsibilities seriously, and the pressure to appoint younger, less mature staff, because administration is a requirement of promotion. (Since April this year, there is a Deputy Head in place.)
Against this long background, a few points can be made about the Role of the Dean Internally:
1. Although externally the Law Dean is respected as a position of achievement and influence, internally the Headship is a job almost no academic wants. We become academics because we enjoy the rewards of teaching and the stimulation of research, as well as the relatively relaxed working conditions. Being Head of the Wits Law School does not allow me any time for teaching and research, and I have stopped trying to make vain space for these activities. The volume of administrative work is so huge. I worry, though, about what sort of an academic career I will return to at the end of my term of office. When the Heads of Schools were created in the restructuring at Wits in 2001, the talk was that Heads would be on a new career path, that of management, within the University. There is a possible danger that managerial jobs will attract those who are unsuccessful as academics and who do not understand the academic enterprise well.
2. I want to emphasize the sheer volume of administrative work that my position involves. Not only do I not have time for teaching and research, I don’t have sufficient time to be a leader. In the last decade the bureaucracy of a university has ballooned so much that it is truly run not by academics, who are second-class citizens, but by the administrators. Although academics do the core business of the university, their work is subjected to the superior demands of the administrators. I regard it as perhaps my major task to protect academics and their work, from untoward interference by the administration. This is at the cost of my own leadership: I have to be more an administrator than a leader. I often laugh at the correspondence I receive imposing yet another task on the Head of School and wander at what mythical creature is in mind for all this work.
3. For me the challenge is to rise about the demands of day-to-day administration, and never to lose sight of the bigger plan for improvement of the School. I am repeatedly astonished, though, at how unprepared and unskilled I am for this, true, leadership. When I took on the Headship, I thought that it would be a version of my academic career, but in fact I switched to a quite a different job. I whittled down my term of office from the normal five-year period to a three-year period (because of my concern about not doing research during my Headship) and I now see that three years is too short a time to learn the job and become effective, and even five years seems too brief. One needs time to learn from one’s mistakes and time to achieve over. One of the lessons of leadership for me has been the importance of choosing a very few important goals, articulating these clearly to all, and persuading the right people of their importance. I believe in the value of professional development programmes, but ones initiated by the university and tailored to the university’s
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goals and practical constraints. I am flustered by people who see how the Law School should improve but can’t see the impossible constraints imposed by the University. The battle which I have to win is for my university to believe in the importance of an excellent Law School. In part it is to convince the university that law is important, in a context where government emphasis and spending is on the sciences (as though the revolution in South Africa in 1994 were scientific!). Part of the battle is to convince the university to plough more of the Law School’s earnings back into the School, and not to take for granted a good, cheap School, for the School can go down (while still earning easy money) while other Law Schools go up.
4. On the subject of best governance, it is obvious to me that a Head or Dean cannot achieve anything substantial without strong, active support: whether it is from university management, from the senior academics in the School, or from a democratic cross-section of the School. Law Schools are too big for one person to be a strong leader by herself. If university management is going to be one’s source of strength and support, one first has to have management which thinks its Law School is a good one and should be supported to become better. It was the practice in the Wits Law School until about a decade ago that the full professors governed the School through a hands-on Governing Committee. Correctly accused though it was of being undemocratic and often partisan, there was at least committed strong leadership. I am ambivalent about the current Management Committee in my School: it is more democratic, but it is as powerful as the Head of School, its chairperson, wants it to be. It consists of many relatively junior members of staff who often have less maturity and experience than is desired, plus they take care with what they say for fear of this affecting their promotion. Nor is it entirely fair to impose management responsibility on early-career academics. The pity is that senior academics are less committed to the Law School than their previous counterparts were: even the hard workers draw the line at which they will stop being dedicated. These are more selfish times. And the bureaucracy of the University is so demanding, inefficient and foolish, that academics have to learn to protect their academic work from intrusion.
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356 The Role of Law Schools and Law School Leadership in a Changing World
The Leadership Role of the Dean internally
Prof. dr hab. Jaroslaw Warylewski The Dean of the Faculty of Law and Administration University of Gdansk Poland
It is not easy to answer in the simple way to the question: “What is the role of the dean internally?” because it’s very complicated issue and we need to look at this problem in many ways. So first of all we should understand what the term “dean” means.
Well, everyone can find on Wikipedia such definition of this term, as: “In academic administration, a dean is a person with significant authority over a specific academic unit, or over a specific area of concern, or both. The term comes from the Latin decanus, a leader of "ten," taken from the medieval monasteries (particularly those following the Cluniac Reforms) which were often extremely large, with hundreds of monks (the size of a small college campus). The monks were organized into groups of ten for administrative purposes, along the lines of military platoons, headed by a senior monk, the decanus. The term was later used to denote the head of a community of priests, as the chapter of a cathedral, or a section of a diocese (a "deanery"). When the universities grew out of the cathedral and monastery schools, the title of dean was used for officials with various administrative duties”.
In fact the role of the academic dean is still a difficult one to describe. So is the academic dean a manager, a leader or maybe rather he has a respected but only an honorable position at the university and with no power or active role at all? Probably the true is somewhere between these two positions and the status of a deanship depends on historical and cultural factors of different universities. Actually there are many models of deans who work in many various sectors of a higher education system and after all there are different kinds of higher education institutions in which deans can work. For example an university faculty of law may have several deans at different areas who are working in various capacities. Moreover the higher education system is still changing and according to these changes the role and functions of the dean have also changed over time. Then again a technology still expands and that also affects on the role of the dean because his or her knowledge and skills have to intensify and increase. Well I think we can say honestly that there is no something as a standarized dean status.
However there are so many positions, functions or ranks of the deans in higher education systems but most people see them as the leaders of many types of university faculties or other education institutions.
And that is the way I see the dean - as a leader, a leader in higher education of every university’s faculty. The dean has to take an active role in the life of his or her faculty, has to lead, direct, manage and govern. His role is also to administrate and supervise the faculty in
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many various areas. There are many challenges to face for the dean especially because of the ever-changing face of higher education all the time.
For me personally the role of the dean is challenging and multifaceted. The truth is that a dean has to have the required skills, abilities and knowledge to perform fairly in that demanding engagement. Naturally I think also that the dean has to perform service for the university or collage community and as well for the entire nation. The dean should in some way fulfill a moral role in the community, has to act both as a leader and also as a steward. The dean’s role is also to maintain human values in an atmosphere of inceasing scholarship and the dean is also very important for the students because the dean is a person they can go to in times of problem and troubles but also in times of prosper. The dean should be not only an empiricist but also a humanist.
I suppose that not only faculty and scientific matters are largest dean’s responsibilities but students as well. However nowadays we can say that a faculty demands the biggest part of each dean’s energies and is their principal concern.
At present the dean has to cope with many functions, such as: • fundraising • budgeting • education program oversight and supervise • curriculum planning and development • personnel management • work factors management • faculty governance • solving internally conflicts • development of partnerships among internal and external constituents • external public relations • promoting the faculty externally
Now we see with how many problems the dean has to cope, so that’s why I thinik he has to be a leader – because a leader needs to be an active person who likes to overcome challenges and problems.
In the XXI century a dean’s roles and responsibilities are multitudinous. For example the budgetary matters are very improtant for whole faculty and the dean should to be an expert in this area because bad and unguarded financial policy can be very dangerous for the entire university.
For me the leading role of the dean means that he has to have a knowledge of the mission – of the goal, the objective which he wants to achieve and also the knowledge of the mission and history of the institution where he is a leader. So the dean should be a person who is in some way like a driver of a bus – he has to know where he and the passengers want to go, what is their destination. The dean has to know the direction and has to lead whole the academic community in that direction.
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The dean needs to be also almost an expert in information and educational technologies and has good administrative preparation. The dean should always think ahead to the future while deal with the present issues.
It means that deans have to be multiskilled and have knowledge in different fields. But we need to perceive that it doesn’t mean the deans know always the right answers to all the questions and problems they are asked. It is just impossible not only for them but neither for anyone.
So in my opinion the dean of a faculty or other educational institution should always assume a leadership position and of course we should understand that the dean as a leader does not mean a dictator or an autocrat. Every university faculty in Poland has a democratic structure and it is not possible to create some authoritarian rules there. That is why the leadership role of the dean means always democratic leadership. It is important to remember this especially in the countries where in the past were dictatorial governments.
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360 The Role of Law Schools and Law School Leadership in a Changing World
Plenary V
What is the Role of the Dean Externally?
Leadership Issues in Connecting with our External Communities
361 The Role of Law Schools and Law School Leadership in a Changing World
362 The Role of Law Schools and Law School Leadership in a Changing World
Reflections on Law Deans and Leadership
Emeritus Professor David Barker AM University of Technology Australia
INTRODUCTION
The theme of this conference relating to the role of the Law Dean coupled with the idea of leadership within the international context of law schools affords an opportunity to reflect on what law schools and the educational community expect from those who head up their academic legal institutions. In my role as Editor of the Legal Education Digest, it might be coincidental that the latest edition,1 contains some articles which provide pertinent comments on the role of law deans. In one of these Sonsteng, Ward, Bruce and Petersen in a paper entitled: A Legal Education Renaissance2, when calling for such a renaissance, place the responsibility for the ability and enthusiasm of law school faculty to initiate and implement significant change3 firmly on the law dean. They state : The primary responsibility for leadership lies with the deans, just as it did in Langdell’s time. The role of the law school dean has become more complex, but it is through the deans’s strong leadership and the collaborative support of other actors within the system that change can occur.4
THE ROLE OF THE LAW DEAN
The difficulty for the legal educator is that in some ways the role of the law dean is mostly seen in conventional terms and even then there is difficulty in defining his or her role. One of the few organizations to attempt to seek an answer to this question is the Association of American Law Schools,who in November 1993 published a Report of the AALS Special Committee on the State of the Law School Deanship which was replicated as the AALS Law Deanship Manual. 5 The opening chapter of the text reflects on the dilemma faced by someone entering into the role of Dean. It states: The law school deanship is so complex because of a nearly unique combination of several characteristics….distinctive nature from institution to institution and even differs within the same institution from time to tiime6 It goes on to add another : … factor in the complexity of law deaning is that the law dean, unlike most other academic deans, is both chief executive officer and chief academic officer of all functions of a largely self-contained academic unit.7 Although it has to be recognised that the Manual was originally published in 1993 and that the roles of deans in all disciplines have changed there is still a unique quality about the role of the dean of a law school.
1 (2009) 17 (1) Legal Education Digest. 2 Sonsteng, Ward, Bruce & Petersen (2008) 89 Legal Studies Research Paper Series, William College of Law. 3 Ibid. 4 Ibid. 5 Victor Streib (ed), AALS Law Deanship Manual (1993.) 6 Ibid. 7 Ibid.
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Another facet of the role, is the dean as an effective leader. Geoff Scott,, the author of Change Matters8, quotes P. Senge on this topic: At its heart, the traditional view of leadership is based on assumptions of people’s powerlessness, their lack of personal vision and inability to master forces of change, deficits which can be remedied only by a few great leaders…The new view of leadership in learning organisations centres on subtler and more important tasks. In a learning organisation leaders are designers, stewards and teachers.9. Scott himself encapsulates his concept of the effective leader under the title Stance: When people are set the task of identifying what distinguishes really effective leaders of change and successful practitioners in education from their less capable counterparts, they almost always start by talking about their stance. That is, they usually start by discussing the affective or emotional side of the top performers they have encountered. They discuss how these individuals position themselves in relation life at work and to the people who populate it10
THE LAW DEAN’S ROLE IN THE GLOBILISATION OF LEGAL EDUCATION
Another article featured in the current edition of the Legal Education Digest by S Chesterman reviews the transformation of legal education across jurisdictions.11 He describes this as the: …enmeshing of diverse economise embraced by the loose term ‘globilsation’12. In his view the various influences:….have seen legal education one might term ‘international’, ‘transnational’, and now ‘move away from a purely local approach and through three broad paradigms, which global’ approaches to legal education.13 It is a fact that, as Chesterman points out, the law deans play a major part in responding on behalf of their law schools to these seismic changes which have taken place in modern legal education. The writer of this article reviewed the effects of global challenges to his own law school – the Law Faculty, University of Technology, Sydney (UTS) in a paper presented to a Symposium on Continuing Progress in Internationalizing Legal Education – 21st Century Global Challenges conducted at the AALS 2002 Conference held in New Orleans. 14 In this paper I described how at that time the Faculty was responding to the pressure to provide Postgraduate Studies with an International Aspect. The UTS Law Faculty offered a graduate program for civil lawyers who wished to gain an understanding of the research skills, methodologies, general concepts, and the doctrines of the common law, particularly those which were applicable to international and transnational business transactions. By undertaking a subject entitled Advanced Comparative Law for Civil Lawyers, students with civil legal qualifications were able to transfer to the Faculty’s LLM program. The Law Faculty also conducted a twelve week intensive training program in Intellectual Property Rights to groups of between 25 to 45 professionals from Indonesia as part of an Indonesia/Australia Specialized Training Project. In addition the Faculty also provided a Master of Laws/Master of Legal Studies (Chinese International) program taught in Mandarin and which was
8 Geoff Scott, Change Matters(1999). 9 P. Senge The Fifth Discipline (1990). 10 Scott, above n.8, 153. 11 S. Chesterman (2008) Journal of Legal Studies. 12 Ibid. 13 Ibid. 14 David Barker, ‘Beyond Australia and the Pacific Rim: Challenges for the Internationalization of Australian Legal Education (2002) 21(1) Penn State International Law Review 75 – 87.
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available to international and Australian students. This was expanded into an off-shore program taught in collaboration with the Beijing Management College of Politics and Law and the Shanghai Justice Bureau. Apart from these major programs the Faculty was also involved in a major International Chinese Short Course Program in Sydney with the provision of an additional 10 short courses varying from International Trade Law for the International Business Management Institute to a Water Resources Corruption Prevention Course. These were all taught in Mandarin. This was followed by the Faculty extending its provision of short courses by teaching a Vietnamese Prosecutors Delegation in their native language and under the auspices of the United Nations. It leaves little to the imagination as to how the provision of these international programs placed a strain on the resources of a faculty which was also obligated to provide a full undergraduate/postgraduate legal studies program. The faculty also incorporated a legal practice major as an integral part of its undergraduate program. The provision of the international programs also involved both the law dean and the executive management of the law faculty in negotiating and providing the academic curriculum and financial terms with the overseas institutions and students.
THE RECOGNITION OF OUTSTANDING LAW DEANS AS INTERNATIONAL LEADERS
In forums such as this Conference conducted by the International Association of Law Schools is possible to reflect on those current academics who are regarded as the luminaries of the International Academic Legal Community. I do this with the knowledge that academic lawyers rarely, if ever, pay tribute to those who have paved the way for raising the profile of law in the international sphere. I hasten to say that I have chosen those of whom I have personal experience and who represent those legal jurisdictions with which I have had the greatest connection. I would also add that in my view these academics characterise a far wider group who have given leadership to legal education both in their particular region and internationally. In Australia the most highly regarded law academic would most probably be the Rt Honourable Sir Zelman Cowen PC AK who was the Dean of the Faculty of Law, the University of Melbourne 1951-66. Whilst having a most distinguished career both in public life and as a law academic, Sir Zelman’s most notable role was as Governor-General of the Commonwealth of Australia 1977-82. In contrast one of the outstanding of many law academics in the United States of America would be Professor John E Sexton, Dean Emeritus and President of New York University. Professor Sexton served as Dean of the NYU Law School during the period 1988-02 and raising its profile to become one of the paramount law schools in North America. He is a person who led by example in his role as Dean, continuing as a vigorous teacher, whilst at the same time raising an enormous amount of funds for the benefit of his law school. He also served as the President of the Association of American Law Schools in 1997. Within the United Kingdom a law academic who has had a major influence over a continuing period of time would be Emeritus Professor William (Bill) Twining. Professor Twining is a former Dean of the Law Faculty, University College, University of London and Quain Professor of Jurisprudence from 1983-96. Apart from having been President of the former Society of Public Teachers of Law, and a Fellow of the British Academy, he has also had a major influence on the development of law in the Commonwealth, particularly as a previous Chairperson of the Commonwealth Legal Education Association. He taught law,
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notably jurisprudence, at the University of Khartoum from 1958-1961 and at the Faculty of law, Dar es Salaam, the University of East Africa (1961-1965). He is a prolific legal author, some of his most highly regarded books being Karl Llewellyn and the Realist Movement15, Blackstone’s Tower: The English Law School (Hamlyn Lectures) 16and Law in Context: Enlarging a Discipline.17 Professor Twining is another academic who, despite his ongoing high profile association with research and administration, has still maintained an active involvement in teaching.
CONCLUSION
In the event this short review has tried from a very personal view point to put into context the role and influence of the law dean both nationally and internationally. In summing up it is appropriate to give the last word to the Law Deanship Manual which states under the heading of Nature of the Law Deanship: Law school deaning varies with different personalities, at different institutions, under different circumstances, and at different times.18
15 William Twining, Karl Llewellyn and the Realist Movement (1973). 16 William Twining, Blakestone’s Tower: the English Law School (Hamlyn Lectures) (1994). 17 William Twining, Law in Context: Enlarging a Discipline (1997). 18Streib, above n5, 3.
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Please refer to Page 111 for Dean Alejandro Gomez and Professor Mónica Pinto’s paper entitled “A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires)
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The Art of Balancing: The External Role of the Law School Dean
Dr. Shashikala Gurpur, Principal, Symbiosis Law School and Dean, Faculty of Law, Symbiosis International University India
True education menas a healthy exchange of knowledge and ideas – Dr Richard Ferrin, Educationist1
A Law School mirrors the aspirations of time and generation like any educational center. Even though it primarily serves the needs of the bench, bar and the students, the law school is an important community conduit at a higher level. Its stakeholders also include the state, the community organizations, parents, alumni, students and the teachers. As the leader of the law school, the dean continually absorbs and balances the aspirations of these stake holders, for the level of stakeholder satisfaction indicates the level of quality of an institution. Such roles of the law school and therefore, of deans as the law school leaders are drastically changing, as the core theme of this conference rightly points out, in a changing scenario of the world. While transcending boundaries of territory, time and discipline, legal education has experienced a sea change. It has snowballed into being a dynamic process, picking up influences from other cultures, disciplines, players and politics. The dean plays a key role in moderating such influences which otherwise may ‘sweep one off one’s feet’. Thus, it symbolizes the scholar’s role of the legendary goose in Indian wisdom, who separates the milk from water. In other words, the quintessential wisdom of envisioning long term role for the legal education should be segregated by the Dean from the fluff of short term goals. Standing on the threshold of internationalization of education in general and legal education in particular, one is gripped by the ‘common law’ for the law schools and therefore, for law school deans. The conventional art of balancing the internal and external roles from the static to dynamic phase along with the oscillation between visionary leadership and status quo go on.
Footprints of Law Deans in India
For very long time, the definition of Deans’ role in law schools or law colleges affiliated to traditional Indian universities did not specifically provide for any ‘external’ role. The role envisaged was limited to regulating the work of the department or the law school and protecting and streamlining the academic standards including the teaching, learning and assessment processes. The Dean was a manager donning the mantle of a glorified examiner or case worker solving problems thrown up by a misfit colleague or an aggrieved examinee or a controversial media report. The Dean was usually senior by experience and hence age, either the head of a department or the principal of a law college and was normally elected. Occasionally the Vice Chancellor could nominate the senior teacher as the Dean, irrespective of the status as the head of the institution or department. The role ascribed to the Dean did not ask for any specific competency in human resource management or in academics or research or of being a visionary. It was presumed that their seniority and the
1 ‘Instruction is not education’, Interview, Indian Express, 14-4-2009, p.7
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votes that they garnered testified to the necessary competencies. One of the lady deans shared that she was seldom consulted, except the token presence in the meetings. She made the best use of her sedentary tenure to publish by making use of the rich library easily accessible thanks to her position. She was a faint flame of innovative ideas. The visionary deans, wherever available, have contributed to path-breaking departures in curricula and methodology in the past.
With the emergence of the national law schools by late 1980s, the directors were at a time vice chancellors, deans and the signatories of the respective law schools. Most of the directors had a strong past in the traditional university set up. Nevertheless, some of them were real leaders in terms of their adaptability, vision and strategy. Combining and balancing the often competing and conflicting profiles of academic and business leadership of the law school was very successfully mastered by at least a few of them. Yet, the important criteria of delegation, coordination and communication within the law school limits and externalizing the law school happen in very few cases.
Ruminations of an unusual track This author has dabbled in two different shades of law schools within the Indian context: one, for five years in a privately run, temple-based law college affiliated to a traditional university. It had a very personalized approach where the head of the institute acted as the spokes person. Any leadership role on the part of the junior faculty was encouraged but the credit was not shared. As the recent entrant, the author had engaged in training mooters, teaching, and guest lecturing with a strong involvement in community legal service. The community based law reform project on rural agricultural worker women, under the aegis of the national law school had earned the national award. Although the temple-based service motto was encouraging, the very strength was the limitation, where individual excellence was constantly hammered into the submissive shape. Migrating into the national law school was exhilarating. The law school was the first of its kind where the leader was brilliant, liberal, dynamic and very modern. The leader had profound experience and vision. All dimensions of managerial and leadership abilities were clearly visible. The externalizing aspect in international collaboration and community involvement were very well visualized and encouraged. However, the limitation was glaring in matters of transferring and proliferating the vision in team members, lack of internal audit mechanisms (which was more to do with the policy than the person) and one person doing the most. The move to Ireland with a job in the National University, showed how a foreigner could alter one’s own and others’ ways of thinking as a colleague. It enlightened on people skills and people management in terms of stability and personal development. It laid very clear rules for team work, academic growth and excellence. The involvement in research, policy, community work and the professional bodies was found to be uniform across the faculty. The ‘space’ was respected and protected. Any kind of interference was unheard of. Every faculty was assigned the task based on the strength and career goal. There was silent competitiveness and open encouragement. Engagement with ideas was predominant than mind games and rumor-mongering. Moving back to India, with the dream of an international research project which did not take off due to political reasons, the author had to settle for a consultant’s role in a media institute advising and researching on policy and publications. Side by side, community legal
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work was taken up. During this period, the deep reflection on incongruous and incompatible possibilities in leadership and management had enriched what was to follow. A chance meeting with an industrial tycoon in a global meeting paved the way for the author in heading the legal and administrative division of a conglomerate with 4000 workers of 38 nationalities in the Middle East. The role was a lesson in multicultural and scientific context of leadership with clear indicators for performance. Quality was constantly repeated as a mantra. Those two years served as the magical screen with images of the past discontent and failure, being explained with alternative possibilities. A practical, viable, ethical and efficient model of leadership role in one’s area of interest and strength was consolidated in those anonymous moments of making, strengthened by the sessions in Toastmasters International. The return to India in 2007, was greeted with the right role at the right time as the Dean in Symbiosis Law School in Pune.
The Symbiosis advantage is distinct and unique with internationalization as the focus decades before it was center-staged. The founder chancellor Dr S. B. Mujumdar has transfused his rich and distinct role as the dean into the veins of this organization with encouragement, selective corrective intervention and space2. The law school is under the seventh year of its breaking past from the traditional mould of Pune University. In the new context, the Dean’s external and internal roles are inseparable and complementary as one feeds the other. If reputation, resource and excellence, the three strong pillars of Symbiosis were to be the criteria, the enrichment of these three internally automatically demands these externally. However, the job profile provided in tune with the University Grants Commission Act, does not mention the component of external role, if any.
Perspective on the external role As the mosaic of experience and context reveals, the important factor for success in Dean’s role is acquisition and up gradation of requisite competencies. What are these competencies? Are competencies of teaching and research enough? The interaction with colleagues outside India and unusual success of certain Deans in India, have confirmed the author’s faith in multiple competencies contained within and stretching beyond teaching and research. These include, the people skills, team skills, communication and most of all, operationalising the strategic vision, in other words, how one acts on the idea of how one wants to see one’s department or school. Combining strengths from the unique positioning of the institute, other departments, stakeholder perception and need of the time assessed from the global and national vision document could be the important pointers in the direction. The subtle and the unsaid competency is the nose for politics, ability to combine personal goals with the team goals, harmonizing short-term and long-term goals, institutionalizing quality and review, managing people, practically applying the economics if self-funded and constantly deconstructing oneself as the agency of power. It is about finding the right balance, from being swept away by power and about keeping the scholarly commitment, rather the commitment to truth and ethics going.
Generally, all these tips for balancing also apply to the external roles. Among these roles, internationalization has been the buzz word. However, in identifying the international
2 For more details, S.B Mujumdar, 2007: Symbiosis: The Biography of an Idea, Mac Millan, India
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partnership or collaboration, the Dean requires to gather and study the best practice, to see the strengths and possibilities of all partners. Today, internationalization is adored for its wealth of revenue and cross fertilization of ideas. However, this requires careful consideration in terms of activities in the range of exchanges, program partnering, scholarships, and joint activities leading to a win-win situation for all engaged in the collaboration. The dean initiates, motivates, leads and also reflects at every step. The second important external role is in the community service. The community service provides a benevolent role to the law school. It not only enriches the clinical side but also redefines the law school in identifying the need for law reform, in dispelling the elite character of the law and reaches the legal remedy to the needy whose legal needs are unmet due to socio-economic or political reasons. In a globalizing context, the community service provides mutual learning avenues when it is combined with the first aspect of international collaboration. Symbiosis Law School has successfully piloted this idea in its recent initiative with the City University of New York Law School, USA3. It has added to its social agenda in utilizing law as the window to community development and inspired local legal fraternity to learn from the CUNY experience. The third aspect is strengthening ties with the alumni. The author has seen the solid contribution of alumni in other Symbiosis institutes and in Law Schools in China. Symbiosis has not tapped the alumni for fund, none the less, alumni have strengthened student placement, acted as mentors, participated in curriculum review and design, employability training and have promoted the law school outside. The fourth avenue of external role is the Advisory committee of the law school, which has drawn members from all the tiers of stakeholders including parents and NGOs, besides the state, the community and students. One parent is the prominent sitting judge of the High Court, whose timely advice has gone into the curriculum redesigning and ethical emphasis in all courses. Another member is the director of Commonwealth NGO on Human Rights, whose inputs have opened new vistas for the foundation course and research agenda. Representatives from various law firms have indicated the requisite skill sets, have brought research projects and have enriched the training as mentors, have collaborated in moots and have added to the learning process in curriculum review and redesign. Amidst these, the balancing act demands relentless efforts for survival, in the form of brand- building by strengthening corporate relations and public relations. Symbiosis Law School is enriched by the strategic approach of its specialists in these fields in sister institutes as the networking provides agenda-setting ideas and interdisciplinary guidance as and when required. The relationship with the state and central governments has provided the opportunity for consultations for law reform and conscientising the bureaucrats.4
The Balancing Act Standing in the new era when the management concepts require reinventing, it is important to develop holistic performance measures and share the work of setting direction by spotting, retaining and managing talents. In this context, the law Dean should lead the way to humanize the volatile world into a just world, by balancing the strategic leadership with
3 See www.google.com for media references and Shashikala Gurpur, 2008, Envisioning facelift: Legal Education for Human development, UGC Publication, India (forthcoming) 4 The author was invited to the consultation of the National Womens’ Commission, Foreign Service Institute, Police training proposal for the Ministry of Home Affairs and International ADR group.
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operational leadership5. It is about balancing the internal pedagogicl and academic rigor with external boundary-crossing in order to develop, understand, convey and spread the vision with the help of training and feedback. It is only the visionary element which sets the leadership apart from the status quo manager.
5 Gary Hamel, 2009, Moon Shots for Management, Harvard Business Review South Asia, Feb., pp.79-86
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374 The Role of Law Schools and Law School Leadership in a Changing World
The Dean as An Integral Member of The Legal Profession
Lawrence K. Hellman Dean and Professor of Law Oklahoma City University United States
The central mission of law schools is to prepare students for the profession of law.1 However, law schools have important goals and objectives that extend beyond that. Among these are research, capacity building, community service, and outreach. In pursuing these non-teaching objectives, law schools contribute to improvements in law and legal institutions. To be optimally effective in these areas, a law school should be perceived — and perceive itself— as an integral part of the legal profession.2 If a law school is to be perceived as an integral part of the legal profession, its dean must conduct himself or herself as an integral member of the legal profession.
Legal academics communicate with one another through their published scholarship, academic conferences, faculty meetings, and hallway conversation. There are many examples of how their scholarship has influenced the development of law and legal institutions. Today, the body of legal scholarship is more accessible than it has ever been. It is readily available to be considered and used by practitioners, legislative bodies, policy makers, and courts. And yet, to some members of the legal community, it may seem that legal academics are speaking only to one another, with little interest in effecting improvements in substantive and procedural law and little concern for the professional lives of legal practitioners.3 In my experience, this is not the case.
Law professors are highly talented intellectuals who aspire to promote law reform through their scholarship and teaching. They want to contribute to improvements in public policy and the performance of the legal profession. They want their work to have an impact in the real world. It would be a loss for society to allow barriers to stand between their thoughtful work and the members of the legal profession, for it is practitioners and policy makers who are in positions to implement the reforms that legal academics advocate. The dean can serve as a bridge between the legal academy and the legal profession, fostering dialog and mutual respect between these two sectors of the legal profession and thereby improving the effectiveness of both the practicing bar and the dean's law school. In my interactions with bar leaders and rank and file lawyers, I have discovered a level of interest and deference that can be leveraged to make the law school
1 WILLIAM M. SULLIVAN, ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (John Wiley & Sons, 2007). 2 Lawrence K. Hellman, Conceptualizing a Law School as an Integral Part of the Legal Profession, 36 U. TOLEDO L.REV. 73 (2004). 3 See, e.g., Harry Edwards, The Growing Disjunction between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992).
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more relevant to the practicing bar and judiciary. There appears to be a thirst within the profession to be engaged with legal scholars, or at least conversant with their work. By conducting oneself as an active member of the legal profession, the dean will find many opportunities to create greater awareness of the law school's faculty and programs, which can enhance their influence.
The dean might serve on committees of the bar and attend important bar association functions, creating contacts and visibility that foster interest in the law school and opportunities to call attention to the research and initiatives it supports. Simply by putting himself or herself in these environments, the dean rebuts the inference that the law school wishes to stand apart from the legal profession and is uninterested in the accomplishments and problems of its members. In these settings, the dean may discover educational or employment opportunities for students, research opportunities for faculty, and fundraising opportunities for the law school. The more visible the law school is in such forums, the greater its stature and influence will be.
The dean should also become a fixture at important professional and social events in the life of the bar and the judiciary. Annual meetings, judicial conferences, swearing-in ceremonies, retirement receptions, and meetings of various bar groups provide occasions for the dean to demonstrate the school's interest in the work of the legal profession and the desire to be engaged with it.
Through the dean's presence at professional functions, the dean will be turned to for advice and counsel on issues considered critical to the profession. By being attuned to issues confronting the profession, the dean can bring information to faculty that may encourage them to conduct research and organize academic conferences that will address those issues, be they substantive or professional.
If the dean has become a presence at bar functions, members of the profession and the judiciary will be more likely to reciprocate the dean's outreach to the profession by attending programs presented by the law school. Similarly, the dean's invitation to bar leaders and jurists to attend law school activities such as orientations and commencements will be well-received and, when accepted, lead to a familiarity with the law school that will enhance its credibility. The law school will be seen as an institution with energy, insight, and the capacity to contribute to both the legal profession and the legal system. Its programs that are intended to encourage reform will be better attended and, thus, more likely to result in the implementation of the advocated reforms.
The dean's personal relationships with judges and leaders of sub-groups within the bar will generate opportunities to invite courts to hear arguments and professional entities to hold meetings at the law school. This will be beneficial to the school's students, and it will also provide an opportunity to bolster the school's reputation among opinion leaders in the profession. These opportunities will be
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even greater if the dean finds projects in which the law school can join with a professional organization on subjects of mutual interest. The familiarity created by all of these interactions may lead to appointments and consulting positions for faculty members, providing them with platforms to implement their ideas for improving law and the legal system.
Through the dean's activities as an integral member of the legal profession, the dean's law school will find occasions to exert leadership within the profession. The school will be taken more seriously, enjoy greater respect, and project more influence than would otherwise be the case. To be sure, the dean has many important and difficult internal responsibilities. But as the “face” of the law school, only the dean can have the presence and cultivate the relationships that will bring these benefits to the institution.
The dean is both the internal leader and the external spokesperson for the law school. As an integral member of the legal profession, the dean can maximize the external influence of the intellectual capital collected in the law school. At the same time, this orientation as a key player in the legal profession will enable the dean to prevent the law school from becoming irrelevant to the profession and society it exists to serve.
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The Role of Law Schools and Law School Leadership in A Changing World On Being an “Outside Dean”
Dean Elizabeth Rindskopf Parker University of the Pacific, McGeorge School of Law United States
Introduction.
Within U.S. legal education, selecting law school leaders—deans and others—from outside the law school and even academia overall is a growing trend, just at a time when law schools are also finding that their deans must be more active in the external world beyond the law school. These related developments are the focus of this paper. Both trends may be more common in the U.S. than elsewhere, but as the world grows smaller, approaches to legal education borrow from each other. The U.S. experience may be relevant to law school deans from all countries as we face the future together.
To begin, what is an “outside dean?” The definition is capable of different interpretations and is a good starting point for this discussion.
A dean is an “outsider” if he or she comes from outside the law school faculty, whether from elsewhere in the university or the world of legal academia. More significantly, an “outside dean” may come from outside the academic world altogether. This was my situation upon joining the University of the Pacific McGeorge School of Law in 2002 as its eighth and first woman dean. My unusual background as a lawyer, without tenured law school teaching, prompted deep discussion by my future faculty about the merits of an “outside dean.” The University found the idea novel and delayed its decision for a year, to allow for a second year-long search. They were unsure that my background equipped me for this important University leadership role.[1]
The University was not alone in its puzzlement. Others in the legal academic world raised similar questions.[2] Why hire an outsider and not select a dean from the Faculty itself? How can an outsider lead a faculty effectively without having served as a tenured member of any law school faculty? And how will such an outside background impact the external world, both within and without legal academia, which increasingly all law schools must consider for fund raising and reputational purposes?
I shared these concerns.[3] While interviewing I asked why the faculty would consider a dean without experience in California, where my school is located, or in
[1 My eventual selection followed a day-long interview by the University president, whose academic background as a psychologist proved useful in reaching the conclusion that I would be a good “fit.”
[2] One member of the Law School’s ABA accreditation team commented at our first meeting, “We wondered how this would work—given your background.” They later reported, with apparent surprise, that the dean was “beloved” and they concluded that an outside dean had been a success in moving the Law School from a fourth tier ranking into the top 100 of American law schools in a two year period. [3] Initially, I too did not see the position as a “fit,” but the law school’s search firm persuaded me to visit.
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academia. Their answers inspire my thoughts today on any dean’s role in the external world. Our subsequent experience together suggests that the best choice for such external responsibilities can sometimes be a dean who is an “outsider,” in the broadest sense.
My faculty interviewers explained that they needed a dean to be the law school’s ambassador, promoting its programs and strengths to a wider world and raising its profile among legal educators, alumni, judges, members of the bar, government officials and local leaders. This view resulted from work on a strategic plan which had caused them to think deeply about the law school and its future. The faculty was concerned at the law school’s lack of reputation, the decline in student applicants, disinterest among alumni and problems graduates faced in finding employment. They saw these problems as interrelated and, as a private school, they knew that such problems were fundamental. Without serious attention, the law school could not thrive and might not even survive.
The faculty’s response to the problems identified was courageous and bold.[4] They saw that the dean’s job might require skills and experience different than those possessed by a faculty of superb teachers and scholars. They had the confidence to consider a candidate whose background, perspective and skills differed from theirs. They knew intellectually that the outside world was important to the law school’s future and they thought that someone from the outside world would be better able to take advantage of what it offered. Even so, no one had the experience to understand exactly why an outside dean might, in fact, be the very best choice to reach out to the external world.
Over the last seven years, a relationship has developed between dean and faculty which shows why an outside dean may have an advantage in reaching out to the external world. First, an outside dean can bring new ideas, contacts and experience into the more protected world of legal academia. These serve as catalysts to activate faculty energies and talents. Second, an outside dean can reach out, introducing the law school and its faculty to the external world, building the engagement and recognition needed for reputation building and fund raising. This “two way” bridge between the academic world and the “real” world can have a powerful impact as different backgrounds interact; this positive power is evident in many respects, but the following may be the most significant.
1. Leadership, management, administration and governance; 2. Constituent Relations: Alumni, Donors, and Others. 3. “Extra-academic” responsibilities (fundraising, law reform and other civil activities); and 4. Reputation enhancement and fund raising.
[4] Other faculties have confronted this dilemma and considered similar action. The prospect of selecting an outsider to fill so significant a leadership position, capable of profoundly impacting law school and faculty, is, however, often quite daunting. Many faculties intend to “do something different,” but in the end are frightened into proceeding cautiously, selecting a dean from existing faculty. Such selections may be successful, but risk choosing the least offensive faculty member rather than a leader with energy and vision.
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Leadership, Management, Administration and Governance.
All organizations need the related skills of leadership, management, and administration. In contrast, unique local concerns--institutional culture and specific rules-- determine academic governance. Both areas raise differing concerns for a dean. On the one hand, the academic world does not always differentiate between leadership, management, and administration and confusion may occur when a new dean’s skills are considered. Should the law school seek a leader, a manager or administrator? What impact will this have on the dean’s growing external role? On the other hand, how will a dean manage unique institutional matters of culture and governance?
To begin, the difference between leadership, management, and administration can be visualized as a pyramid, organized in declining importance to the organization from top to bottom: leadership at the top, management in the middle, and administration at the bottom. Leadership requires vision, the ability to inspire others and to think strategically. This is the dean’s ideal role, particularly if external engagement is the goal. Management implements vision and is the place where those directly responsible for the academic and business functioning of the law school fit. Administration, at the pyramid’s base, supports more routine day-to-day functioning of the law school and its programs.
For external success, the dean, as leader of the law school and its community, must forge a vision which both internal and external audiences will embrace. Under any circumstances, traditional academic independence makes creating a shared vision challenging. It is even more so when both the faculty and external constituencies must join in supporting a common vision for the law school.
Effective listening is the first step in creating such a shared vision, which must be built on the diverse strengths and interests of the law school, its faculty and external community. This vision can then be used to influence, persuade, and inspire faculty and others to move in specific directions which will re-enforce and eventually reward different individual goals and objectives. New directions can be inspired, but not ordered and so in a law school, there is a need to “lead indirectly,” encouraging collaboration and responsibility through shared ownership of the ideas, values and goals which will guide the law school. The ultimate goal is to create a vision or narrative which is authentic, when judged against the combined strengths of the law school and faculty, but which will also be meaningful to the outside world, in order to obtain their commitment and the financial support needed for success. The dean must build a bridge of understanding, interpreting the law school’s vision so that both those inside and outside embrace it equally. Adjusting a law school leadership, management, and administration’s inside view to address the needs of the external world is a delicate matter of political persuasion and negotiation. The dean must lead collaboratively across multiple internal and external constituencies, so that the interests and goals of each are included. Understanding the varying interests and needs of both internal and external constituencies will be critical.
In this work, an outside dean is likely to have three advantages: first, an understanding of the external world; second, if an experienced leader, understanding the
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collaborative leadership skills needed, and third, greater tolerance for the intense schedule required of successful deans.
An outside dean’s background, should bring involvement and knowledge with the external world and awareness of how the law school is perceived and appreciated. Contacts with external leaders is a related valuable asset which the outside dean will bring. Outside deans are also likely to have greater management experience than their inside dean counterparts. Collaborative leadership is widely seen as the most effective approach to organizational leadership, certainly for one composed of professionals. Outside deans are likely to understand this, if they have been successful leaders in other contexts. In contrast, law school faculty are less likely to have been exposed to leadership opportunities and concepts. Their experience may be limited to committee assignments, teaching and writing, with none of the intense personal interaction, broad range of issues and incessant time demands that characterize a dean’s responsibilities. They may fail to appreciate the importance of a collaborative approach altogether; others may find the patience required challenging and become dictatorial. Still, leadership skills can be learned and excellent training does exist. There is no guarantee that an outside dean will always be an accomplished leader while an inside dean will not.
The third advantage which outside deans, as a group, are likely to enjoy is a greater likelihood that they are experienced, or at least can tolerate, the highly transactional daily duties and large number of social and political interactions, which deans confront and which will only grow as their external role increases. Under such circumstances, the deep engagement with scholarly writing and teaching which most academics find so rewarding may become impossible to accommodate. This may prove frustrating to the inside dean, but most outside deans will have experienced the fast-paced, less reflective style of decision making of the outside world. Here again, they will be more prepared for the role of the modern dean.
Where an outside dean is at a disadvantage is in not knowing a law school’s institutional culture, knowledge which will be essential before a dean can begin introducing bold leadership and governance initiatives. Like all human institutions, law schools are sensitive and dynamic organisms. Learning the ways of faculty and university, to avoid crossing important jurisdictional lines of responsibility and governance among dean, faculty and university is delicate, but necessary. In contrast, inside deans who have grown up in the law school’s culture, will know its traditions and rules, written or not, as if second nature. This will allow them to avoid many of the pitfalls to which an outside dean may be prone. No matter whether a dean is selected from the inside or the outside, however, the demands on the modern dean will simply increase as external obligations are added. “Deaning” will continue to be a challenge, whether for inside or outside candidates, as length of service statistics reveal.[5]
[5] Statistics about length of service by American law school deans do not indicate a difference between inside and outside deans. Many deans depart in the first two years of service, evidently finding the job not what they expected, but after this initial period, length of service for men averages between 4-5 years and for women 6.2 years. There is no dispute, however, that “deaning” is a difficult job. See Frank T. Read, The Unique Role of the American Law School Dean: Academic Leader or Embattled Juggler?, 31 U. TOL. L. REV. 715, 716 (2000) and
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Constituent Relations: Alumni, Donors, and Others.
Both the inside and outside dean face another important challenge in learning to know the large number of important constituencies critical to the successful operation of the law school. Here being an extravert, with a politician’s memory for faces, names and personal histories, is invaluable. Public speaking ability and stamina help too.
In all of the social interaction that will occur, the goal should be to engage a wider variety of diverse constituencies, to represent the law school’s interests successfully, and to build pride, confidence and trust in the direction in which the law school is moving. This the dean will do by learning about the law school, its faculty and alums, as well as its current activities and initiatives and historic traditions, and then weaving them into a convincing story of meaningful excellence. After all, increasingly in all U.S. law school, whether public or private, the need to have financial and other forms of support will be critical to a law school’s success, but this can only happen slowly, after confidence and trust in the dean and the law school’s leadership has been established. Alumni are key to attracting, supporting, and finally placing students in positions worthy of their preparation and investment. The financial support provided by alums, and others, means that the dean must learn about them and enjoy the process of getting to know them and to celebrate their accomplishments. Saying thank you repeatedly, both when it is appropriate and even more, when it is not, are also key skills, likely more familiar to the outside dean than to the faculty member who has not been widely exposed to dealing with the public.
In the U.S. context, there is one constituency that is of particular importance: the judiciary. Because so much of the legal system depends on them and yet they are precluded from defending themselves out of the need to preserve their independence and impartiality, law schools and their deans have a special role to defend and advocate for judges. This translates into significant time obligations to participate in judicial commissions and court processes.
Extra academic responsibilities--fundraising, law reform, other external activities.
A dean’s principal job in the U.S. legal academy is raising funds for new projects, buildings and faculty. It is therefore important to recognize just how much time a dean will spend on fund raising related activities. Almost 60% of a dean’s time is estimated as dedicated to fundraising, but this will include a wide range of activities designed to maintain contact with alumni and others of significance to the law school. Other activities of significance to the community at large should also be considered, particularly those which are designed to improve legal education and the legal system. After all, law enjoys a special role in our society and its importance is what gives our graduates special recognition and value. A law school dean should take advantage of opportunities to contribute to the betterment of the legal system, while avoiding activities that are partisan or destructive of a fair and open process. Carefully chosen, supporting some such activities will build confidence in the law school itself and serve to raise its reputation.
Laura M. Padilla, A Gendered Update on Women Law Deans: Who, Where, Why, and Why Not?, 13:3 Journal of Gender, Social Policy & The Law, 443, 460 (2007).
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In my own case, early in my deanship I realized that my law school and many others suffered from the inclusiveness needed to insure that all citizens, no matter their race, ethnicity or background, had ownership of the legal system and the ability to participate in it and expect fair results. Because this required graduating lawyers from diverse backgrounds, too few of whom were adequately prepared, the opportunity presented itself to reach out to younger students of non-traditional backgrounds and to support their interest in attending law school as well. Here our law school demonstrated its own institutional leadership, as well, hopefully, of the leadership of its law students.
Reputation enhancement.
Ours is a competitive world and lacking objective means of assessing the quality of educational institutions, students, faculty, and the public have resorted to measures of quality based on arbitrarily created measures, such as those published annually by US News and World Report. Much time has been expended in strategizing how to gain the recognition needed to achieve the votes required to increase reputation in these rankings. Some law schools deluge their counterparts with costly promotional materials. Others seek to use faculty scholarship to foster reputation; to design programs that will bring attention to themselves; or to enable improving their performance by attention to measurable objective measures such as incoming qualifications of students, the rate of bar passage or employment at graduation. None of this is wrong in itself, but most of these initiatives dilute a law school’s attention for the more important parts of its mission: fine education, meaningful scholarship and service initiatives which will benefit legal education and the legal profession as a whole. In the end it is likely that it is the quality of preparation and ability that a law school’s graduates reflect which will be as significant to raising reputation as any other single activity. Beyond that, outreach in helping others to solve the common problems of legal education and the profession over all may offer the best overall name recognition strategy. Here again, the outside dean may have the advantage of understanding how the public perceives lawyers, the legal profession and our legal system. Addressing problems in that perception through a combination of teaching, scholarship and service is likely to have the most lasting positive impact on the law school, its reputation and its future.
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External Roles of Deans of Color1
LeRoy Pernell2 Florida A&M University United States
*Community Positioning and Voicing for Deans of Color
The external role of a dean, particularly within “minority” communities, has distinct political and social dimensions that often go beyond the traditional academic leadership role. We are often looked upon to be community leaders regarding a range of issues and we can be often perceived as a resource for generating political, economic and social change separate from the academy. This role as champion for the community in many ways is a continuation of a relationship that may exist prior to our administrative post, and indeed may pre-date our ensconcement into academe. The deans of Howard University College of Law have a long tradition of community activism through their roles as dean and are illustrative of this point. Professor J.Clay Smith, Jr., himself a former dean at Howard, tells us in his excellent work Emancipation: The Making of the Black Lawyer 1844-19443, how the early deans of Howard promoted social and political change on behalf of African American communities outside of the university setting.
John Mercer Langston, the first dean of Howard Law School, traveled about the country, particularly in the south during the late 1800's, to promote not only Howard law school but the concept of the Black lawyer as an integral part of the protection of newly won rights for the Black community4. Dean Richard Theodore Greener, (1878-1880) is noted for his role, while dean, as “a spokesman for Negroes when he advocated migration of the freemen to western states such as Kansas to settle fertile land and escape oppression”5.
Dean Charles Hamilton Houston perhaps states most clearly the role that Deans of Color have in light of the special significance of legal training for African Americans, and all people of color. Speaking of the historically Black law school as preparing students to make a “full contribution to the social system, Houston states: [the course of law study means] a difference in emphasis with more concentration on the subjects having direct application to the economics, political and social problems of the Negro.6
* Note that Randall Kennedy denies the unique voice of the third world viewpoint. Address 1 This paper is an extract of an article by the author originally appearing at Deans of Color Speak Out: Unique Voice in a Unique Role@, 20 Boston College Third World Law Journal 43 (2000) 2Dean and Professor, Florida A&M University College of Law; J.D. The Ohio State University College of Law, 1974; B.A. Franklin & Marshall College, 1971.
3University of Pennsylvania 1993 4 Id at p.42-43 5R. Logan and M. Winston, Dictionary of American Negro Biography 267 (1982), quoted by Smith, Supra, note 5, at 46 6McNeil, Charles Hamilton Houston 3 BLACK L.J. 123,124 (1975), quoted by Smith, Supra, Note 5, at 50
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For those of us who serve as deans at other than historically Black institutions, the need and desire to serve as community advocate is no less compelling. The relationship of dean to community, for Deans of Color, is similar in many respects to that of political office holders who face a constituency that reasonably expects both that their concerns are your concerns and that you will “make them proud” with your demonstrated response to the call.
I cannot say that this role is always an easy one to fulfill. Indeed, I suspect that a significant percentage of those of us at predominately white institutions, who have been positioned between two worlds, opt to hear more clearly the call of “be a team player” issued by institutions that in fact are often reluctant to bring you off the bench in key games.
On the other hand, the Dean of Color, particularly at white institutions has the unique and important opportunity to view the applicability of law school resources to community needs from an experiential perspective that employs those unarticulated realizations of need and appropriateness that can only come from having lived the community’s life.
Opportunities to Speak Out and Leadership on Diversity in Legal Education - The National Debate
What our institutions do and say is closely watched by a nation that is wavering in its commitment to political and social justice. Our responsibility and opportunity, as deans to provide clear, strong leadership may make a real difference both within and outside of legal education.
This is particularly true when one pays attention to the swiftness and, indeed, glee, with which some universities across the country are embracing the conservative agenda and analysis of legal counsel and attorney generals7. The need and opportunity to speak out as a counter to a lack of institutional commitment, disguised as legal caution, is particularly strong for Deans of Color.8 While courage has no color, Deans of Color can speak with an
7Witness the turn-around of the Texas Attorney General following the Hopwood decision. Janet Elliott, “Rights Leaders Fume As AG Embraces Federalism and Snubs Affirmative Action” 12 TEXAS LAWYER (May 6, 1996), See Also, Department of Education spoke-person Norma V. Cantu, Ken Myers, “ALAS Seminar Counsels Caution When Offering Race-based Aid”, NATIONAL LAW JOURNAL, A16, January 23, 1995 8Although such a role is certainly not the exclusive domain of Deans of Color. The courageous and forthright stand of Barbara Aldave, former dean of St. Mary’s University School of Law is a testament both to her commitment and the necessity of deans becoming agents of opposition to negative legal norms. Faced with hostile and fear based reactions to the Hopwood decision within Texas, Dean Aldave nonetheless confronted attempts at retrenchment with renewed efforts to assure access and strong statements in defense of Affirmative Action. Barbara Aldave, Hopwood Conference, February 12-13, 1998:Remarks of Dr. Barbara Aldave, Keynote Speaker,(July 13, 1999)
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experiential authority on issues within the academy from a vantage point seldom heard. Certainly the need for such authoritative voices is particularly great in the face of legal scholarship that has fueled a national debate on the very existence of people of color within the legal profession.9
Within the context of legal education Deans of Color have special stories to tell. The importance of storytelling, and its significance as a tool for scholars from other than the Anglo-European frame of reference, has been noted and discussed in some detail within the Critical Race Theory movement.10 The unique voice that the Dean of Color can add, however, has not received the same type of exposure or documentation. The lack of numbers and the lack of extended tenure of Deans of Color has been a formidable but not insurmountable barrier. The need for leadership from Deans of Color, within legal education is no where more evident than in the history of organizational efforts such as the American Law Deans Association. Formed in 1994 the ALDA was designed to provide deans with an opportunity to discuss issues affecting legal education and to formulate policy recommendation on those issues.11 Yet a review of ALDA history would suggest that until very recently no Dean of Color had ever served in an officer or board of director capacity within the organization. It is a point of no small significance that during the organization’s existence, a major area of criticism has been the perceived negative position of the ALDA on affirmative action, although such a position has been denied by the organization’s president.12 The importance of this point is not whether the ALDA has taken a position or no position regarding affirmative action but rather that Deans of Color have not been in leadership roles within this unique organization and thus unable to lead the formulation of a dialogue inclusive of a non-majority perspective.
Deans of Color of course share the sam external roles of as non-deans of color. Fund raising, alumni, professional influencers, and attention to the socio-political landscape are among the growing responsibilities of deans in a multi-disciplined, global community. Neither time nor space allows adequate justice to be paid to these areas. However the future of legal education may well depend on recognition that legal education is no longer the province of the space within four walls. It is the dean who will be the avatar of such recognition.
9.Lino A. Graglia, Podberesky,Hopwood, and Adarand: Implications for the Future of Race-Based Programs 16 N.Ill. Univ. L. Rev. 287 (1996) 10See, Richard Delgado, Legal Storytelling: Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411 (1989), Thomas Ross, The Richmond Narratives, 68 TEX. L. REV. 389 (1989) 11Letter of ALDA President Scott H. Bice, to ABA deans dated September 15, 1997. 12Letter of ALDA President Ronald A. Cass to Dean Wirtz, dated December 3, 1997, and provided to all ABA deans
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388 The Role of Law Schools and Law School Leadership in a Changing World
Synergies Between the Dean’s Internal and External Roles: The Example of Fundraising
Susan Westerberg Prager Executive Director, Association of American Law Schools Professor of Law & Dean, Emeritus, UCLA School of Law
In difficult economic times, there may be greater and greater interest in pursuing efforts to gather new resources for law schools and law departments, even in cultures where the idea of support from donations by private individuals or what some call philanthropy has not previously been present. In this short paper, I want to make two observations that are related to one another: (1) fundraising efforts have far broader utility than the money given to the law school, and (2) law school leaders who are not substantively engaged with the teaching, research, service and other missions of the school are unlikely to be effective at fundraising.
My core premise is that a Dean cannot be effective at fundraising without a deep understanding of the strengths, weaknesses and opportunities of the school. To be good at this external role, the Dean must truly be immersed in both what the school is today and what it could become in the future. The Dean must be able to convey excitement about the direction of the school, using concrete examples of faculty and student accomplishment. The Dean must be able to illuminate how the help of alumni and friends of the school will make a difference. For example, will a gift enable students to grow and learn, or support the work of individual faculty members, including new initiatives that faculty would like to pursue, or enable the school to design and implement new programs. The Dean must be able to convey that through a wide array and evolving community of external supporters the law school has the potential to become ever‐stronger. If the school is successful at growing its mission or improving its quality, the law school will not only continue to cast a favorable light on those who have graduated, but its graduates across the generations will share in the rising reputation of the school. Even more important, the Dean will also be able to highlight the pride and sense of accomplishment that graduates and friends of the school share with one another when they have joined together to help the law school achieve a goal or a collection of initiatives that it could not have reached without them. The Dean will become a storyteller who makes concrete for alumni what their help has meant to a particular former professor, or to a group trying to start a new program, or to a student who needed additional financial help in order to pursue a legal education.
There are also positive aspects of a Dean’s efforts to draw resources to the law school beyond the specific help that a gift to the school will provide. During the many conversations that a Dean has with individual graduates and friends of the law school, the Dean will learn a great deal about the problems that lawyers face in today’s world and about their perceptions of how their legal education helped them. The Dean will also learn their views about the ways legal education can improve. When a Dean puts these conversations together in his or her mind, there may be unexpected benefits to the Dean’s ability to contribute to internal conversations about what is being taught, and to think about the larger issues involved in curricular reform, which is often a very difficult and stressful internal issue. Particularly in those law schools that have pursued an academic model of legal education, a part of the Dean’s role is to be able to
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translate to the faculty the realities that private practicing lawyers face in a variety of different roles from government to private practice.
Another benefit of creating a program of fundraising is its potential positive impact on planning. The need to build an array of fundraising objectives is of independent value because it invites creativity and aids long term planning. It is important for Deans to recognize that it may be far easier to ask the faculty to generate and discuss ideas that could be incorporated in the Dean’s efforts to raise additional money for the law school, than it is to ask them to engage in an effort to craft a “plan” for the future of the school, which can often generate worry, resistance and stress in the faculty. Yet often the conversations designed to generate “ideas for fundraising” can encourage quite expansive ideas, probably because the frame of raising money conveys additive actions, rather than a zero sum game. Furthermore, these more open ended conversations will often produce important ideas that can become elements of longer term planning for the school. In addition, if the Dean is also actively listening for new ideas, the climate becomes one where the Dean can more easily test some ideas of his or her own, obtaining valuable commentary from faculty, staff and even students and adapting the ideas accordingly.
Ultimately, a Dean’s success in garnering new resources for the law school depends both on his or her ability to engage internally, and to insure that the law school is able to respond to the growth and change in the society, as well as to new ideas about how people learn. Put another way, donors are far less likely to respond positively to a request to help the school “maintain” what is, than they are to decide to join in an effort to add to the school’s strengths.1
There are two areas of ferment in legal education at this time in the United States. The first of these stems from the phenomenon often referred to as internationalization or globalization. Although we each might describe the issues somewhat differently, it is likely that each of us attending this IALS Conference centering on leadership are all considering the implications for legal education of the greater interconnectedness of the world and the growing internationalization of the legal profession. These developments are of world wide interest, and many law schools and their leaders have been considering what steps they should be taking to prepare their students for cross cultural practice or to help them work across international legal borders.
The second development is a growing interest in curricular reform in United States law schools. This interest has been stimulated both by 40 years of experimentation with clinical education and by a thoughtful report published in 2007 by the Carnegie Foundation for the Advancement of Teaching.2 The Carnegie Report has stimulated a focus on the potential for curriculum reforms that would better integrate the teaching of legal analysis, with the other important skills that lawyers need,3 and an attention to developing in our students the ethics and values
1Robert Stein, then Dean of the University of Minnesota Law School, identified this aspect of fundraising for me in his teaching of the American Bar Association Deans’ Workshop in the 1980’s. I’ve always been grateful to him for this insight. 2EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW, William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, Lee S. Shulman, the Carnegie Foundation for the Advancement of Teaching (2007) (commonly referred to as The Carnegie Report). 3 These skills are often described as including such things as: The ability to gather and assess facts, the ability to conduct research efficiently, the writing skills required for the type of practice involved, the combination of legal
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that will serve both members of the profession and the broader society. The two examples below are offered to help illuminate how the Dean’s external and internal roles intersect one another.
Example #1 Dean “J” of “Sunshine Law School” has been Dean for 4 years now. He has been sitting down in individual conversations with graduates of his school and with some of the public officials in “Crossroads” the growing city in which “Sunshine” is located. The Dean’s purpose is to learn about the interests of each person he speaks with to see if he can bring them closer to the law school and interest them in helping Sunshine. In many of the conversations, the Dean is hearing a growing concern about global warming. He has also learned that the city leadership has aspirations for further growth and is especially interested in becoming more of a center of international activity, especially international trade. Dean J decides to first bring together the faculty whose teaching interests relate to the issue of global warming. One is a mid‐career person, hired about 15 years ago to develop what was then a new course in International Environmental Law, another is a senior scholar whose work focuses on international organizations, a third is a new member of the faculty who is interested in the regulatory powers of government, and the fourth is a business law teacher who has been showing signs of interest in growing his knowledge to include international trade. The Dean asks the group to ruminate with him about what Sunshine Law School might do to address the enormous issue of global warming in a meaningful way. For purposes of the discussion he tells them, “In this discussion we won’t focus on the costs of our ideas, we’ll just try to develop some good ideas.” (The Dean has also included in the group Professor A who is enormously respected by her faculty colleagues, and who is talented at helping develop and implement ideas.)
Over two meetings the group comes up with a broad range of ideas. One of them is to use the problem of global warming as a theme that would be developed in the first year curriculum and beyond in substantive subjects that lend themselves to elements of the problem. Another is to facilitate placements for Sunshine law students, for a semester or for the summer in institutions around the world, in countries that have either evidenced a serious interest in the subject and have made steps toward controlling emissions, or ones that have been for some time or have more recently become major sources of the problem. One suggestion is to develop an ongoing relationship with universities in other countries with common interests, including a flow of faculty and students who would focus a portion of their time in the country they visit working on a specific idea that would improve a particular source of the problem. Another recommendation is that major attention be focused on behavior within the United States, because the U.S. has been such a large contributor to global warming. It is also suggested that each of the efforts would include scientists and those interested in government responses. The working group convened by the Dean decides to have an informal lunch session with all members of the faculty who would like to attend to talk about the problem and what Sunshine might do. At this well attended meeting many full and part time faculty express their interest in participating. The Dean then decides to contact each of the graduates who have expressed concern about global warming, telling them about the exciting conversations that are going on
and interpersonal skills that enable interaction with a client in ways that will be productive, including ensuring that you are able to provide the client with information and an assessment of their particular situation, together with the options to pursue, so that the client can make informed choices about how to proceed. The skill to conduct negotiations or other methods to resolve essential issues for the client are seen as central lawyering skills as well.
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in the faculty, and seeking their advice about how the Dean might secure funds to begin to work on the ideas that have been generated. After these conversations he invites three of the graduates to the law school to have lunch with some of the working group members to participate in further developing some of the ideas. One of these alums then volunteers to try to raise money from others in the community to support the school’s efforts. Another privately encourages the Dean to apply for a multi‐year grant from a local Foundation. The Dean reports these developments to the full faculty, drawing on those who have been participating in the discussion. [Remember that one of the early meetings included an invitation for any faculty member to participate.] The faculty is generally supportive of continuing these efforts. Dean J also visits separately with four graduates who were not included in the working group discussion to ask for a major gift to support a new program in “Economic Vitality through Sustainability” drawing on all of the internal conversations which have been taking place. Two say that they are not interested in making a sizeable gift at this time, but one sends a small check the next week to support the Dean’s efforts; the other two say they will think seriously about the possibility. A year later, one of these graduates makes the largest gift she has ever made to the law school, and tells the Dean that she has made provisions for a further gift at a later time. She also gives the Dean the names of five people in the community who have not previously had contact with the law school whom she believes the Dean might be able to draw into helping Sunshine Law School because of the track record the faculty now has of addressing real world problems. She tells the Dean that one of them, Mr. C, is especially interested in ensuring that “Crossroads” becomes a vibrant center of international activity. The Dean then starts thinking about a new internal working group to help him consider the intersections of the city’s interests with those of this potential donor; he asks his assistant to schedule an appointment with Mr. C so that he can begin to learn firsthand. The next day a longtime faculty member who has not been engaged in service to the school apart from his teaching and research comes to the Dean’s office to say that he is so impressed with what the faculty has done with the global warming issue, he wants to encourage the Dean to hold a “retreat” meeting of the faculty to develop further ideas the law school should be pursuing. He volunteers to serve on any working group where the Dean believes he would be helpful.
Example # 2 Dean R is the new Dean of “Traditional Law School.” After six months in office, she realizes that the school is not one where the faculty would support comprehensive changes in the program. She fears that without curricular experimentation, which is increasingly the hallmark of many of the country’s law schools, “Traditional” will be seen as less and less desirable by prospective students. In her view change must begin to occur. The Dean decides to talk with 20 graduates to see if they will come forward with gifts that will encourage volunteers from the first year faculty to experiment with some of the ideas presented in the Carnegie Report. Five of the graduates she visits were instrumental in encouraging her to accept this Deanship and she feels comfortable talking candidly with them about the situation at “Traditional”. Four of them each make a nice gift, and two of the other graduates make a gift as well.4 Those who were involved in the search for the new dean recommend that they condition their gifts as follows: The Dean will convey to the faculty that graduates have come forward to invite six members of the faculty to engage in a three year curricular experiment in their own introductory courses. No more than six will be chosen to participate; each will receive a temporary supplement to salary, potentially
4 A rule of thumb for fundraising in U.S. universities is that out of every four people personally asked to make a gift, one will do so.
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renewable after evaluation of their experimental work, for each of the three years. [Criteria are established for written proposals. There is also an evaluation plan. It is made clear that the donors are not trying to control program content, but are seeking pedagogical experimentation.] The Dean asks two members of the clinical faculty to act as a resource for the six faculty engaged in the experiment, and begins the project with a retreat of the eight people, facilitated by a faculty member at another law school that has engaged in considerable efforts to bring about curricular change, but where the road has not been easy. The clinicians will be provided their choice of a lighter teaching load or additional compensation, again funded with gifts from graduates who are interesting in helping encourage curricular innovation. The Dean wants to seek further gifts to sustain this project and expand it to a larger number of faculty if it is successful. After year one, one participant, professor B comes to the Dean and recommends that she try to expand the project as soon as possible. He tells her that he has found his experimentation to be highly effective with the students and he would like to explore revising his second year course in collaboration with the clinician who has helped him rethink major parts of his traditional first year course. Dean R expresses her appreciation to Professor B for his important efforts and his encouragement of her efforts. She also asks if he would be willing to do a presentation to the donors to thank them and to let them know of the success that he feels he is having with their help. She also asks him if he has any feedback from the other faculty participants as yet. As soon as Professor B leaves her office, Dean R calls each of the six donors to once again convey to them her appreciation on behalf of “Traditional Law School” and to let them know that the project is already beginning to show signs of success. She emphasizes that through their generosity they have made a major contribution to their law school’s future.
Conclusion While not all efforts at raising money for our educational programs are successful, success is directly related to the right blend of care and thoughtfulness and an artful balance of patience and persistence.5 The seeds you sow may not mature until your successor continues to care for the plants you have established. As you think about your own schools, take comfort in the fact that no one else has the vantage point that you do and that vantage point will enable you to develop the vision that you will need to work toward an ever‐stronger future for your law school.
5 Most of us learn fundraising on the job; I certainly did. Nonetheless there were people who taught me, encouraged me, and collaborated with me. Always first in my thanks is my predecessor as Dean of the UCLA School of Law, William D. Warren without whom I would never have become Dean. Bill is always the wisest of advisors. Chancellor Charles E. Young could not have been more supportive. To work under such a visionary leader was a great gift to me and to the law school. Assistant Dean Joan Tyndall and I worked so closely together for so many years and with so many alumni and friends of the law school, that Joan and I both feel that the law school’s success in drawing outside support over the 15 years we worked together was very much a collaboration with one another and the many wonderful people who helped the school. Jim Osterholt and Mike Eicher, successive Vice Chancellors at UCLA, were important teachers, colleagues and friends. John Sexton, then Dean at NYU, was a great and expressive example of enthusiasm and success at fundraising. Vice President Carrie Pelzel and Jamshed Bharucha (now Provost at Tufts) with whom I was privileged to work at Dartmouth College were both truly extraordinary. Carrie’s words: “Just remember Susan, you don’t raise big money without a big vision,” still ring in my ears.
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Plenary VI
What have We Learned from Each Other? What Can We Learn from Each Other?
The Elusive Quest for Universals in a World of Difference
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Universals in Law School Education
Jay Conison Valparaiso University School of Law United States
The primary aim of our conference, “The Role of Law Schools and Law School Leadership in a Changing World,” is for deans, professors, and others interested in legal education to exchange ideas and learn from each other. Those of us here form a diverse group of law schools and legal systems, and of deans and educators from them. Through the conference, we hope to find out, in a synoptic way, what we do as schools and as educators, why we do what we do, and what (for a panoply of reasons) we might be doing instead. We wish to learn, not just out of a thirst for knowledge, but to improve our respective programs.
There is a further aim of the conference. By sharing ideas and information about what we do now and what we think we should do in the future, we seek to identify universals. Every law school educates persons to become lawyers. Presumably, every law school should continue to do so. These are two universals. But can we say more? The conference organizers charge us with thinking about whether there are universally shared practices or purposes among law schools worldwide and whether there are fundamental norms we all endorse or goals to which we all aspire.
Universals and Social Phenomena in General In the following pages, I will say a few words about universals in law school and legal education. Now, when examining universals relating to social phenomena (such as legal education), it aids discussion to distinguish three kinds of universals; we might refer to them as functional universals, contingent universals, and aspirational universals. What are these and how do they differ?
Consider coffee cups as a case study. A functional universal about coffee cups is that coffee cups are roughly bowl shaped—this is part of what it is for something to be a coffee cup, because it is integral to the function of holding liquids for drinking. If an item isn’t roughly bowl shaped, it is hard to see how it could be considered a coffee cup. Contingent universals, by contrast, are less tightly connected to function and less fundamental to what something is. For example, if there were a law that every coffee cup had to be blue, it would be a contingent universal about coffee cups that they are blue. But unlike as with bowl shapedness, this characteristic could be otherwise—coffee cups could be red (under a different legal regime) and still be coffee cups. Finally, as concerns aspirational universals, an example relating to coffee cups might be (assuming everyone came to agree about it) that coffee cups should be made of ecologically friendly material. Ecological friendliness is not currently a universal. Yet, social and environmental pressures might in time make it friendliness might even become a contingent universal.
The distinction between these three types of universal is not razor sharp. Still, it is serviceable enough to help with analysis. In the following, I will focus on functional universals about law schools and legal education. I will do this even though the
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conference organizers appear to be asking us to focus on contingent and aspirational universals. I focus on functional universals because doing so will, in the end, respond to the conference organizers’ questions by setting the stage for an examination (though not pursued in this paper) of the range of potential contingent and aspirational universals regarding law schools and legal education. In addition, doing so will suggest that differences may well be just as important as universals.
Universals in the Law School—Some Basic Observations It is easy to see that there are functional universals about law schools and legal education. If there were not any, we would not be able to say that the University of Cairo Law School is a law school, but the Yale University School of Management is not. Functional universals are essential for categorization. When we give reasons why one institution is, and another is not, a law school, these reasons are what lead us to a description of the relevant functional universals.
There are functional universals regarding law schools because the category “law school,” is a functional category. If we categorize an enterprise as a law school, as opposed to something else, we do so because the enterprise fulfills a certain function, or because it matters for a particular purpose whether the enterprise is a law school. We have already provided a first approximation of such an analysis. We noted in passing that to say that an enterprise is a law school is necessarily to say that it educates and trains people to be lawyers. Granted, so much is obvious; yet, to point it out is still useful because it starts the process of unpacking functional universals. In particular, it points up the fact that to understand what a law school is or must be, we first need to understand what a lawyer is.
If we held an international conference on lawyers, and through it sought universals, we would note the tripartite division among universals and start our inquiry just as we have done here. For “lawyer,” too, is a functional category. It matters whether someone is a lawyer because whether a person is a lawyer is significant for what the person does and is competent to do. A lawyer, speaking functionally, is a person who is skilled in knowledge and application of law. And so a law school, speaking functionally, is an enterprise that educates and trains people to be skilled in the knowledge and application of law.
Again, we have a statement that looks quite obvious, but again it helps push forward the functional analysis. For we have now advanced to the point where we see that understanding the nature of a law school is tied to understanding what law is. Law schools are what they are because they produce persons with certain knowledge and competences relating to law.
Now, once we start asking questions about what law is, the waters get very deep. Yet, we do not have to plunge into them very far. Our interest here is not jurisprudential but practical. For present purposes, it suffices to say that law is a (or, perhaps, the) fundamental form of social ordering. It is a structure or process that appears to exist—necessarily to exist—in anything we would want to call an ordered society. It is central to the existence, maintenance, and progress of social order.
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Hence, we sketch one answer to the question about universals in legal education. A law school is an educational enterprise whose function is to prepare people skilled in the knowledge and application of a fundamental form of social ordering. Different societies have different fundamental forms of social orderings—different types of legal systems. Hence, law schools will inevitably differ from society to society. At the very least, they will attend to the specific characteristics of the given society’s legal system. Still, there is a fundamental commonality, in that all law schools are designed to serve the end of preparing people who are skilled in that fundamental form of social ordering, whatever particular form it takes.
Universals in University Education—Basic Observations We could go in a variety of directions from here. We could, for example, explore the nature or natures of social ordering as a way to try and provide more detail.1 Yet, there are many views on the nature of law as social ordering, and it is doubtful that such a line of inquiry, though interesting and important, would tell us a great deal more about the functional universal or reveal contingent universals. So I wish to pursue a different path. Another— oblique—way, to gain more insight is to examine functional universals in university education and then look at the relationship between them and the functional universals in law school and legal education.
The question we asked about universals in law schools and law school education can equally well be asked about universals in universities and (undergraduate) university education. Are there universals in university education, irrespective of place, irrespective of institution, and irrespective of academic focus? Is there a basic functionality to universities? Does it make a difference for any important purpose whether an institution is or is not a university?
On the one hand, it is obviously more difficult to take a functional approach here. Universities have been with us for centuries and over those centuries they have evolved and differentiated to a substantial degree. The many thousands of universities have adapted to different social structures, different social needs, different countries and political units, different legislation, different funding mechanisms, and a host of other environmental factors. One important evolutionary path has been a movement away from the religious foundation for universities, which originally provided a strong unity of purpose and function. A second evolutionary path has been movement away from a strong focus on a liberal arts approach to education (originally rooted specifically in classical studies) and instead toward a system marked by programmatic diversity; increasing emphasis on professional, if not practical concerns; and increasing attention to current, as opposed to less time‐dependent, subjects of study. It seems hard to tease out universals regarding universities amidst the specialized programs of study, the specialized universities, and the de‐emphasis of the common curriculum. What common functions or differentiating principles remain after the centuries of evolution? Must any universal here be aspirational?
1 See, e.g., Henry H. Hart, Jr., and Albert M. Sacks, The Legal Process (1994), which implicitly builds a theory of legal education on the basis of a view of law as a particular kind of social ordering.
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Yet, it must be possible to talk about the function of a university and to identify universals in university education. For example, we can distinguish the University of Melbourne from Hamburger University. We know that the former is a university and that the latter (a legitimate and successful educational institution of some kind) is not, despite the fact that both use the term “university” in their name. What are the differences that lead to easily make this distinction? Identifying them should point us toward functional universals.2
One answer starts with the fact—or at least the credible claim—that what universities do as a core function, and what makes them distinctively universities—is to teach reasoned argument. Other terms can be used for this competence—disciplined discourse, for example. But whatever the characterization, the fact remains that universities fundamentally teach (or try to teach) students to integrate reasoned argument as a central characteristic of their mind and work. They seek to teach students to engage in reasoned argument sub silentio, as students try to master particular subjects themselves, and teach them to engage in reasoned argument with others as they learn in a social setting. Universities also seek to help students integrate reasoned argument into their outlook and their practice, by helping them recognize and evaluate good and bad argument in public and private discourse around them.
This is not all universities do, of course, but it is something very important and very central to their function; and an enterprise that declined to develop these competences would face skepticism over any claim to be a university. But there is an additional, important point to make here. For the core function of developing competences with regard to reasoned argument is not an abstract competence, disengaged from the world. It is true that some writers have made a case that universities should be places of isolation from the world, enabling young people to engage in uninterrupted self development (including development of these abilities regarding argument).3 Yet, the fact is that universities have always had worldly purposes. They have always prepared individuals to function in society and to make a difference in society. And universities could not possibly have survived and flourished, indeed gained such influence, if they did not have important social purposes.
The significance of reasoned argument is that teaching it is central to preparing individuals for a life of contribution to ordered society. For ordered society advances through communication and argument. One thoughtful articulation of this view has been offered by the Archbishop of Canterbury, Rowan Williams, in an address at Oxford University.4 Williams urged that the historical function of a university is to train people in the difference between good and bad argument, not as an abstract exercise, but for the practical purpose
2 Or, to approach the issue in another way, a growing phenomenon in universities is the addition of schools of hospitality management. These schools and programs have a clear career focus, and the career‐training component of these schools could be taught in specialized trade institutes. Why, then, are these schools parts of universities? What does being part of a university add to their function and to their educational purpose? 3 See, e.g., Michael Oakeshott, The Voice of Liberal Learning (Indianapolis: Liberty Fund 2001). 4 Oxford University Commemoration Day Sermon (20 June 2004), available at http://www.archbishopofcanterbury.org/1205.
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of developing people who can contribute to developing an ordered society. He noted the decline of this function in the face of its continuing importance to democratic society:
[A] true education is one which permits people to exercise their human nature without the constraints of delusion and manipulation—and therefore one that sets people free for the labor of constructing a reasonable society. . . . The reasonable society is not one in which some abstract ideal of rationality is imposed as a straitjacket on the organic life of communities; it is simply one in which we know how to talk with each other, how to negotiate, to challenge, to argue coherently about what is good for human beings as such.
. . . In a democratic age, [equipping people to take authority] is not the authority of a royal counselor or imperial proconsul; it is the authority of the literate and educated person to contribute to public reason.
Thus, notwithstanding the immense diversity of universities and university educational programs, we can say that preparing individuals for a life of contribution to ordered society, at least in part through cultivating the ability to engage in reasoned argument, is a core function of a university—it is a critical aspect of what makes something a university as opposed to something else. It is a (if not the) factor that makes the University of Melbourne a university but Hamburger University not.
Law School Education and University Education—A Relationship Now if this view of universities and university education is correct, it follows that there is a great deal of similarity between the function of a law school and the function of a university.5 Both, as at least one core function, seek to prepare people to contribute to ordered society. A law school is more specifically concerned with a particular, fundamental form of social ordering that we call “law”; the university education as a whole has broader concern with ordered society and the multiple ways of ordering society. And (although we did not emphasize this in our discussion of universals in law school and legal education) both are centrally concerned with reasoned argument as a competence to be instilled and developed so that graduates can effectively contribute to society’s ordering and its advance. Is there anything more that we can say about the relationship in function and commonality of universal between law school education and university education?
We might be tempted to describe the relationship as that between the general (university as a whole) and the special (the law school). This, after all, is a fair characterization of the relationship between the study of history at an advanced or focused level and a general university or undergraduate education. Advanced or specialized education in history takes one subject that can be used as an organizing principle for the core undergraduate education; it takes a subject that can, indeed, be used to inculcate competences relating to
5 Williams notes that:
When the University of Oxford began, its short‐term survival depended heavily on the need for trained canon lawyers, and a significant phase of expansion in the fourteenth and fifteenth centuries had to do with aremarkable renaissance in the study of civil law.
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reasoned argument. It then proceeds with the education, emphasizing the substantive body of knowledge, with diminished attention to developing broad‐based competence in argument and to the broad‐based function of preparing individuals to be contributors to social ordering. In the advanced or specialized study of history, we highlight other functions of universities—the research function and the function of transmitting knowledge.
But this sort of relationship does not fully describe the connections between university education and law school education. Law is, of course, a field one can study at advanced levels and law school education has an important component of studying legal subjects at advanced levels. But the relationship of general and specific captures only a part—and, arguably only a secondary part—of the relationship.
One reason is that law school education continues to be an education focused on instilling a broad ability to contribute to social order and ordered society. Law school takes this core function of university education and elevates it in importance.
It elevates it because of yet another reason for doubting the view that law school is best understood as specific education, namely that law school by design remains a center for a general education: true specialization comes only with further study or practice.6 In part, law school necessarily remains a general education, because of the enormous range of fields or endeavors that law‐trained individuals can and do pursue. But it also remains general because of the ultimately structural character of law school’s educational concern— teaching process is so important because of the inevitable changes in law and society. Finally, law school continues to be, in large measure, an education in argument. So much of legal education is an education in how to argue and how to recognize and respond to good and bad arguments. In the United States, much of the first‐year of studies specifically aims to develop a comprehensive analytical and argumentative methodology in students; while the methodology is intended to be used primarily in connection with questions of legal analysis, it is applicable to an enormous range of social and political issues and contexts. So for these three reasons, law school education is more a continuation or refinement of basic university education than a movement away from it into a specific substantive discipline.
Law school education, thus, even as an advanced form of education, retains the broad focus on preparing individuals to be equipped to contribute to ordered society, whereas other advanced forms of education generally leave this purpose behind. Law school education also continues to emphasize development of the fundamental skill of reasoned argument and assessment of argument. Unlike as with, say, medical education, it retains the generality and plasticity of instruction, deferring specialization (as does undergraduate education) until a later time and later educational or social context.
Some Consequences If this way of thinking about law school and legal education, and the universals underlying them, is correct, then two consequences follow for our discussion at the conference.
6 Jay Conison, “Law School Education and Liberal CLE,” 40 Val. U.L. Rev. 325 (2006).
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First, we cannot detach the quest for universals in law schools and in law school education from the quest for universals in universities and university education. Both law schools and universities, as a central function, seek to prepare individuals for participation (and where possible leadership) in the development of ordered society and in the development of social ordering. Both, also, have a fundamental concern with developing competence in reasoned argument. Far more than any other form of advanced or specialized education, law school education is a continuation of pervasive and foundational concerns of university education. One might characterize it as advanced liberal arts education.
Second, the question about universals in law schools and legal education is important, but more important is the question of the potential for future evolution and diversity. Universities and university education have evolved and adapted to changing social, economic, and political factors. Universities have evolved so as to combine the fundamental concern with developing persons able to contribute to ordered society, with other educational and social purposes and functions. Law schools are still relatively recent innovations, and so far have had much less time to evolve and diversify. As consequence, the historical function—the functional universal—has remained strong. But if the history of the evolution of the university provides a lesson, evolution in law schools is inevitable and a question with which we should engage is how to take advantage of this potential and manage the course of progress in legal education.
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Please refer to Page 111 for Dean Alejandro Gomez and Professor Mónica Pinto’s paper entitled “A comment on Argentina’s University of Buenos Aires Law School (Facultad de Derecho de la Universidad de Buenos Aires)
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Universals in Law School Education Molly Townes O’Brien The ANU College of Law Australian National University Australia
As a late registrant to the conference, I had the advantage of being able to read 20 or 30 working papers posted on the meeting web site before beginning to draft my short submission. The situation seemed to place me at a good vantage point for attempting to work out some themes for the last session of the conference: universals in legal education. Identifying universals is a project that requires focus on things that are so ubiquitous they generally do not seem worth mentioning. A television news reporter does not begin each report saying, “I’m standing on two feet and speaking to you out of my mouth.” That goes without saying. Instead, the news reporter will focus on something that has just happened that is unusual, different, not at all universal. The strange is interesting. The “different” may bring danger, change or novelty; the “different” requires our conscious attention. The universal engenders a yawn. The very pervasiveness of universals renders them invisible rather than obvious. Universals may fall so far from our focus that they become like the music played in the grocery store: Many people do not even hear it, but it induces them to stay longer in the store and buy more. When we go through the store without thinking about the music, we are unaware of its influence, but we are nevertheless subject to it. When we focus on the differences between our legal systems and systems of legal education, we may be blind to the background themes that tie us together. When we focus on universals, we become conscious of their music. Once aware, we may be able to understand and, to some extent, control the harmonies and rhythms that drive us. Having read an impressive collection of eloquent essays addressing the purposes of legal education from every continent around the world, my short list of apparent “universals” in legal education includes (in no particular order) the following: Law schools (1) educate human beings; (2) teach law (among other things); (3) train young people or legal novices to take up positions of relative power and privilege in society; (4) operate in a less-than-perfect legal order and aspire to improve it. 1. Law schools educate human beings. In spite of the advent (in some places) of animal law and animal rights, the only animals in law school are human animals. No chimpanzees, cows or dogs receive legal education. This is so obvious that none of the writers bothered to mention it. Indeed, the fact that law schools educate human beings hardly seems worth mentioning. But, on reflection, this fact implicates a set of “human universals”,1 qualities that are common to all human social groups. The list of human universals that has been identified by anthropologists is long and suggests that there is a great deal that binds us together as “humanity” in spite of our diverse cultures, particular histories, and variation in
1 Donald E. Brown, Human Universals (1991).
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phenotypes.2 Our diversity, while it appears to be broad and deep, is a thin skin over our identity as people. This realization changes our perspective on a wide variety of issues, from the theoretical to the pedagogical and practical.3 As we begin to examine ourselves and our systems in light of our common humanity, we see many common themes. Issues that at first glance appear to be restricted in time and place, turn out to be particular examples of larger phenomena. For example, ethnocentrism – our tendency to identify ourselves as members of groups and to see our groups as different-from and better-than others – is a universal human trait.4 Human groups have historically given their own tribes names that mean “the people” or the “human beings”.5 In-group favouritism and out-group antagonism may have helped our ancestors protect limited resources and increase the survival rate of their own groups and families.6 Moreover, the tendency to dehumanize and discriminate against the out-group is not a phenomenon consigned to ancient history.7 Examples of dehumanization of the out- group abound in the present in all cultures, across all races and continents. Not so long ago the Unites States Supreme Court, in a case involving the citizenship of a man in Missouri, wrote: They [black men] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.8 Notice that the inferiority of a specific group of people was considered “fixed and universal.” When the broad spectrum of human experience is considered, however, it
2 An updated list of Brown’s “human universals” appears in Steven Pinker, The Blank Slate (2002) 435-439. The list includes a wide variety of developmental and psychological phenomena (such as childhood fear of strangers, abstract thinking, use of language) social phenomena (cooperation, mediation of conflict) and other aspects of culture (art, melody, use of personal names). It also includes a number of concepts that might be thought of as “legal” concepts, including “fairness” or “equity” and “sanctions for crimes against the collectivity”. 3 With regard to pedagogy, a recent movement in legal education toward “humanizing legal education” is noteworthy. This group of some 400 legal educators in the US advocates using human nature as a guide to the law school curriculum. See Lawrence S Krieger, 'Human Nature as a New Guiding Philosophy for Legal Education and the Profession' (2008) 47 Washburn Law Journal 247 4 See Pinker, supra note 2 at 436. The list includes collective identity, in-group distinguished from out- group(s), and bias in favour of the in-group. 5 See, e.g., Phil Constantin, ‘Tribal Name Meanings’ http://www.americanindian.net/names.html accessed 6 May 2009. 6 Peter J. Wilson, The Domestication of the Human Species (1988). 7 Roger Brown, Social Psychology (Second Edition ed, 1986);Shelley E. Taylor, Letitia Anne Peplau and David O. Sears, Social Psychology (12th ed, 2006). 8 Dred Scott v. Sanford (1856) 60 U.S. 393, 407.
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becomes immediately apparent that it is the belief that some group is inferior that has been a universal feature of human societies. The specific group changes – it may be Dalits, Indigenous Australians, Romani peoples, Uygur, or African Americans – but the dehumanization and discrimination remain. Does this mean that, as humans, we are fated to repeat the stereotyping, dehumanization, enslavement, and discriminatory practices of the past ad infinitum? I do not think so. In spite of our human tendency toward ethnocentrism, a major trend in contemporary law and legal education pushes us to redefine our human group to include all people. The law, which may function as a tool to reinforce group identity and formalise boundaries around social groups, is highly sensitive to practical pressure and the need to support peaceful social interaction. Just as the Roman jus gentium developed to facilitate ancient interactions among groups, contemporary law develops in response to travel, technology and the pressure of problems that affect the very existence of humanity on a fragile planet. As we find ourselves now crowded onto an increasingly small planet, the diminishing value of in-group loyalty and out-group antagonism is apparent and the law gains value as a tool for developing ways to diffuse intergroup conflict and forge inclusive group identities. Building a concept of “common humanity” might be seen as the core task of the internationalist legal agenda. Law schools now educate women, members of minority ethnic groups, and some students from other countries. A universal of today’s legal education is that its education is for “humans” and its educators are participants in the law’s project to expand the definition of that group. 2. Law schools teach law (among other things). Without exception, the law schools represented at the conference today teach the law of the country where they are situated. They must teach the parochial rules of the legal systems where they operate because their graduates must be qualified to function within the legal context of their own countries. Although many law graduates will not practise law at all (in China, for example, the number who will enter law practice may be as low as 20%)9, every law school acknowledges a responsibility to educate their students in the law of their home country. While there is universal agreement that the local law must be taught, the substance of this education cannot be universal. Unlike the laws of physics or the rules of mathematics, which operate exactly the same way from Australia to Iceland, the domestic law of each country is the idiosyncratic product of a particular history, of politics and culture. Law is a jurisdictional endeavour. Its rules are applicable within the society that created the rules. The law embodies many of the law-making group’s most important values and generally operates to their advantage. Its forms, processes and institutions are shaped by the values and experiences of the law-making group. The diversity of legal systems and legal rules we find represented at this conference is a result of multiple human social groups simultaneously creating rules to govern the interactions of their own members. In this sense, domestic law is like language: It develops in related families, but distant groups may see very little overlap in their vocabularies.
9Francis SL Wang, ‘Goals and Objectives of Law Schools: A Brief Discussion of Universals and Differences China and the United States’ http://www.ialsnet.org/meetings/role/papers/WangFrancisSL(China).pdf accessed 7 May 2009.
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Without exception, however, law schools also recognise that they operate in a globalising society where international norms and connections are increasingly important. Just as the boundaries of who we consider to be human are expanding, the boundaries of our legal systems are expanding. Legal interactions now take place in a global context. Although, as Dr. Himonga of South Africa points out, “globalization does not minimize the importance of the local,”10 it does require law schools to prepare their students for an interconnected legal world. The structure, institutions and understandings necessary to build these interconnections are not the exclusive domain of politics or governments. To the contrary, the insights and ideas that will form the intellectual basis for future development of international legal activity will find their basis in today’s legal education. Moreover, just as communication among distant tribes introduces new words into a language, communication among international legal educators will yield new insights for domestic legal education and domestic law reform. 3. Law schools train young people or legal novices to take up positions of relative power and privilege in society. No law school is dedicated to educating the elderly. While we do have some older students, our stock and trade is in inducting neophytes into a specialized field of knowledge. We lecture, mentor, guide, shape, provide resources to, and attempt to open, fill or challenge the minds of the next generation of lawyers, judges, law makers, leaders and legal theorists. Collectively, our students will hold positions of power and influence that will be disproportionate to their numbers. They will shape the future of the law. Law teaching is universally about the future. Further, it is about the future of a field that universally has practical and moral consequence. While its principles or rules can be studied in the abstract, law is not a purely philosophical endeavour. Law may be used to liberate or enslave. Whether its rules are obeyed or disobeyed, whether its judgments are enforced or ignored, the impact of the law – or absence of law – will be felt by real people. As legal educators, what we do has consequences. Charles Hamilton Houston, a legal educator who taught and inspired the generation of lawyers who led the American Civil Rights movement, said famously, “A lawyer’s either a social engineer or he’s a parasite on society.”11 As the educators of future lawyers, we are social engineers, whether we want to be or not. Whatever we teach – even if it is only the status quo – we will have shaped the justice systems and the societies of the future. 4. Law schools operate in a less-than-perfect legal order and aspire to improve it. None of the conference participants submitted a paper that claims that the legal system of his or her country is perfect. Far from it. The papers reflect a universal acknowledgement of the need to constantly review, reflect on and improve the law and legal institutions. We know that the law can oppress, harass, delay, and mete out unjust decisions. Instead of being a problem solver, the law can be part of the problem. Nevertheless, legal educators generally view law as a force for good, for order, justice and fairness. We teach it for its potential to smooth interactions, to solve problems, resolve disputes, to be a force for equity and peace. How can legal education operate to shape the law and legal institutions in ways that will improve society rather than perpetuate or exacerbate social problems? What can law
10 Chuma C. Himonga, ‘The Goals and Objectives of Law Schools in their Primary Role of Educating Students’ http://www.ialsnet.org/meetings/role/papers/HimongaChuma(South%20Africa).pdf, accessed 7 May 2009. 11 Genna Rae McNiel, Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights (1983) 84.
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teachers do? Perhaps part of the answer to that question may be found in our engagement with that question and with each other. As we lift our gaze from our jurisdictional feet to view the expanse of the legal landscape with legal educators from around the world, we may gain new perspectives on old issues and new reasons to interrogate the correctness of our local legal order and educational approaches. In the fictional story of Oliver Twist, Mr. Bumble, the overseer of the parish workhouse, is told that he is considered to be guilty of a theft committed by his wife: “[I]ndeed, [you] are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.” “If the law supposes that,” said Mr Bumble, squeezing his hat emphatically in both hands, “the law is a ass -- a idiot. If that's the eye of the law, the law's a bachelor; and the worst I wish the law is that his eye may be opened by experience – by experience.”12 Mr. Bumble’s view is that the law will not understand his predicament until the law has a wife. The law does not know what he knows. Its rules make no sense to him. His perception that the law is “a idiot” rings true. He reminds us that in order to operate humanely, law must be constantly held up to the mirror of human experience and tested against the yardstick of our common humanity. Law requires “the balancing of justice and order in the light of experience.”13 Even the best legal system reflects the limited knowledge, experience and interests of its progenitors. That is why it is important for legal educators to exchange ideas, to travel, to find out how things are done in other parts of the world, to understand and share insights from around the globe. Thinking globally will not relieve us of the responsibility to take individual and local histories, politics and circumstances into account. It will, however, change our perspective and shed new light on our collective experience. Conclusion At first blush, “universals in legal education” appeared to me to be an oxymoron. Law schools teach law, after all. And law is a quintessentially particular and parochial subject. When I graduated from law school in 1986, for example, I did so without having undertaken a single course in international law and without having considered a legal opinion from another country on any issue. My legal education extended as far as the borders of my home nation. On reflection, however, it appears that the quest for universals in legal education is nothing less than a quest for a universal human morality. As we expand our definition of who is human, as we reach past our parochial borders, we seek to learn justice from the vast experience of other cultures. The quest for universals is itself an acknowledgement of our connectedness and relatedness. The idea that our law schools may share common goals and aspirations is an acknowledgment of our common humanity and common destiny. That acknowledgement is a major insight in a field that has traditionally focused on the local and the parochial.
12 Charles Dickens, Oliver Twist (1861) 277. 13 Harold J. Berman, Toward an Integrative Jurisprudence: Politics, Morality, History, (1988) 76 California Law Review 779, 788.
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