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GLOBAL ALTERNATIVES IN FOR A GLOBAL LEGAL PROFESSION

Professor Stephen C. Hicks Suffolk University Boston, MA

The appropriate context for consideration of the future of U.S. legal education must include both the modern ideology of and legal education, i.e. the case method, and also some explanatory account of the historical stage through which our world is passing now, i.e. the technological revolution in information processing. In addition, globalization is presenting us with a transcendental horizon beyond that of a unity of sovereign states. There is a cross- fertilization of markets and producers, and a corresponding transnational service industry emerging of global communications, travel, and business. Law is the mechanism for the of this. We may begin with the observation that law firms are getting bigger, more specialized, and combining or associating with other firms, not just in the U.S. but all over the world as well. Consequently, practitioners in those firms may work at different times in different offices, in different countries on different projects, but the universal medium of communication among all of these has become the internet. Their work may be international business but the library for it all is in virtual space. This is true of U.S. firms, but it is also true of, for example, European law firms, Japanese corporations, and South American banks, not to mention the work forces of India and China. Hence, PROPOSITION ONE: Economically and culturally, legal practice is becoming global because of the rapid growth and integration of technology. The “what”, “how” and the “who” of legal practice is changing. International legal practice and, therefore, international legal education begins with this. History might or might not describe this technological change as a revolution, akin to the industrial revolution. But no one can deny the impact this has already had on the typical curriculum at the very least, nor on legal research, nor on the physical plant and material environment of legal education. However, one should not be too sanguine about this, in light of

1 the endurance of a traditional curriculum and methodology arguably designed for the nineteenth century. It is important to appreciate that though the end of globalization through technology may be the grand aims of democracy, free trade, and capitalism, its means is an army of , not soldiers, clerics, politicians or engineers. Hence, PROPOSITION TWO: The confluence of this economic and cultural globalization is important for law and legal education because unlike earlier revolutions of exploration, conquest, or exports, this one is conducted through the medium of law, not the force of arms, or a religious belief system or an ideology. When we think of the “law” in this way we tend to think abstractly of its ideals, but law is also a real phenomenon we experience. For our purposes, this means that legal education controls access to the profession as the gate through which all must pass to become lawyers. But it is also controlled by the profession which sets the standards and requirements of the . Therefore, legal education has always been constituted by certain interests, and it has always been constitutive of a certain outlook. This was as true of the medieval Inns of as it is of the universities today, and as true of apprenticeships in the past as it is of the case method of instruction today. The force of this is felt in the resistance to globalization, not only in the rest of the world, but here at home too. This pressure results in two effects. First, there is an inner resistance to change, by defending a certain self image, of the law school as provider of legal services through a local curriculum. Second, there is an outer lag between change and practice, by defending a certain self presentation of as and counselor through the protection of doctrine and tradition. These effects color the way we respond to challenges such as multi-jurisdictional practice and multi-professional associations. Obviously, they have a similar effect on the transnational practice of law and the preparedness of recent graduates for it. This suggests that there is a more substantial connection than we usually admit between practice and theory. Both the profession, i.e. “practice,” and the law schools, i.e. “theory,” assume law is a system of rules, norms and processes that can be taught and learned in a particular way best suited to a particular legal system. The McCrate Report exemplifies this in the U.S. today, and the case method is a short hand description of this concept of law and legal practice.

2 This leads to PROPOSITION THREE: Globalization defies this, because it brings to the fore different theories of law, of different legal traditions, embedded in different cultures, with different professional roles for the practitioners of law using different rules of law. These differences may be relative and not absolute, but nevertheless, no matter how international the transaction, a local lawyer on the ground remains a necessity. Therefore, the most appropriate conception to guide us towards a global education for a global profession is a multi-faceted one; not universally homogenous, not locally specific, and not international as separate from sovereign , but trans-national and cross-cultural, collaborative and associational. The experience of law practice reinforces this, for law firms are forming loose associations of member firms rather than giant monolithic firms of global proportions and singular focus. Similarly, negotiation not litigation is the dominant way of resolving disputes. Therefore, resistance to change and the lag of time for us to catch up with change lead to PROPOSITION FOUR: It is unlikely that we will see an international or global law school as such educating international lawyers for global legal practice, like the law schools of the Roman Empire or the medieval Church, so long as different jurisdictions have different , lawyers have to negotiate with each other, and so long as local and national associations protect local access to practice. Nevertheless, the medieval analogy is instructive concerning the vertical and horizontal dimensions of law. The reason is that global lawyers operate in between specific rules, local procedures and their relative cultural values, and the hegemonic or imperious imposition of language, resources and needs. Note, for example, that no matter how much or for what reason law is transplanted, the personal law of individuals remains the same. Similarly, as important as E.U. law is, as yet there is no European . A future global law of humankind is a long way off, exactly because the different agenda is trade not empire and the forces are corporate not militaristic. Globalization is making us rethink the way we educate lawyers, but not in the ordinary way of encouraging introductions to the or to in the U.S. curriculum. We need to go beyond this first step. Global lawyers will need to be grounded in a new ius gentium as well as their own local law. Therefore, PROPOSTION FIVE: there are perhaps three variations among viable alternatives that might take place in the short term to meet this need. First, we may see an intensification of semesters abroad, joint programs, joint degrees, or summer school programs

3 for students. This presupposes the development of relationships and co-operations between law schools in different countries. Moreover, this may reach out to, for example, Europeans as well, so that the content of traditional U.S. summer programs might be more open to others, as opposed to being an ordinary curriculum transplanted abroad, or such programs may be more specifically tailored to educate U.S. students, or C.L.E. participants and post-graduates, in actual local law and culture alongside local students. Second, we may see more fragmentation within law schools into departments, mirroring the spread of concentrations and specializations, so that global law and practice becomes something separate from the basic curriculum, like many areas of law are already, to prepare students for either study abroad, or a bar exam abroad, or practice abroad for a national, foreign or international entity, in the same way as we may now think we could prepare students for a diplomatic career or for a career in an international organization like the U.N., however accurate that may be. This means that law schools should be thinking of how to educate students to take a national multi-state exam, a local bar exam, and a foreign bar exam, and a foreign professional period of qualification. Third, another viable alterative might be the development of distance learning to provide students with exposure to substantive law and practice in foreign and U.S. law, by way of lectures from nationals, by interactive seminars, by joint presentations. This has some cost benefit advantages and some pedagogical disadvantages. One effect of these alternative forms of legal education might be the branding in the global educational marketplace of certain law schools as providers of educated practitioners in the same way as now we see that with regard to or , and especially, . In this way, not only repute, but also recruitment is driven by the identification of student interest and their perceptions of value offered by institutions. It will also be the case that while resources and status will be of great importance in global education, leading to for example, ground breaking collaborations, such as the joint J.D.-LL.M. degree between Harvard and Cambridge, the exploration and exploitation of the new dimensions of cyberspace and a global culture will evolve new forms of education. But the giants may not be the ones who flourish. Given our ethnocentric assumption that globalization is about western values of democracy and the market place, and that law is its medium, we may think the alternatives above are in and of themselves enough. They may

4 provide a blueprint for the internationalization of U.S. law schools. But, PROPOSITION SIX: they do not give enough weight to the resistance to globalization through the import of U.S. law and lawyers, or to the actual need for local . Nor do they incorporate the insight that global law challenges the traditional ideology of legal education in the U.S., built as it is around the case method. That the medium of law is the message means it is not purely neutral. The key, therefore, to these alternatives is to disabuse ourselves of the one way nature of them, that is, “it’s good for international students to come here, but if we go there, all we need is a little cultural exposure”. It is true that international students are coming to the U.S., but U.S. lawyers who are practicing globally are disadvantaged by the lack of encouragement of similar opportunities. It is not just the impediments to qualifying for a foreign bar, although admittedly nowhere is as hospitable as New York. It is the lack of programs that would mirror those such as the program at the University of Muenster, Germany. What is most important about something like this program is its internship component whereby language learning, cultural exposure and law study are combined in law practice in the U.S. after course work in English at Muenster. This means that its graduates are better prepared to learn how to practice global law in the U.S. as well as Germany, or anywhere German companies operate and German law is the choice of law, than U.S. graduates are to practice anywhere, except the U.S. Lastly, because globalization forces us to confront different legal systems head-on, it may also be that our thinking about law will have to change too, as well as our notions of training for practice. In other legal systems not only is legal work done by practitioners whom we do not think of as lawyers, such as notaries, but it is also not necessary to be admitted as an attorney to practice law if one is not going to be an advocate as such. Furthermore, legal education abroad is not only more theoretical and historical, it is often complemented with specific on the job post graduation training, sometimes in a variety of settings. The emphasis in a global legal training will be on skills as much as on doctrine. This leads to PROPOSITION SEVEN: the “legal” education that practicing global lawyers may most benefit from may well be more like the course work of a master’s degree in law and business, finance or tax, than the narrow course work focusing on passing a U.S. bar exam. In addition to centering around something like an internship, or a global clinic, the theoretical knowledge best suited to supplement the skills of tomorrow’s global lawyer will probably be not

5 only multi-jurisdictional and practical, but also multi-professional, or multi-dimensional involving governmental, agency, firm and corporate work. Therefore, in conclusion, PROPOSTION EIGHT: we need to think outside the box of our existing “international” curriculum to offer law students real exposure to “foreign” law practice through internship and externship programs, and clinical experiences, even if taught in English, but in situ, and in conjunction with existing programs of comparative law, substantive coursework and cross-cultural consciousness raising. Law students need to be exposed to the local law and practice where the deals are to be made and implemented. European students are used to this already. They study for a semester in another country, and they do an internship in another country, and before qualifying they may do yet another internship. A “global” legal education in the U.S. is going to mean actually going abroad. This will involve universities exploring new structures of education, even for-profit ones, U.S. law schools investing in new programs, graduate programs investing in alternative kinds of credentials, law firms investing in mentoring and sabbaticals for associates to work abroad, and bar associations investing in continuing legal education accreditation of new programs. To the extent this is occurring we should see it as a positive development. It should also make us think through the obstacles to its implementation, ranging from financial resources, to the state bar exam and restricted reciprocity. These realities bring to the fore the latent issues of cultural bias, ideological imperialism, economic determinism, and local myopia, attitudes with which we are imbued as deeply as any. Globalization of legal education is not synonymous with its Americanization. On the contrary, the value of the case method of problem solving and practical reasoning lies exactly in its being an introduction to the skills and practices of what lawyers do. But lawyers in other legal systems do not do what we do. Therefore, it has to be directed towards accommodating that. There may be “Big Macs” in other countries but they taste differently.

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