Friday, July 01, 2011

Globalization Versus Legal Colonialism in the Internationalization of Legal Education: Thoughts on the Proposed Certification of U.S. LL.M. Programs


I have been considering the issue of globalization versus legal colonialism in the internationalization of legal education.   See, Larry Catá Backer, The Internationalization of Legal Education--Globalization or Americanization? The View From Spain, Law at the End of the Day, June 26, 2011. I have suggested that internationalization, as understood in the United States, has taken two substantially incompatible paths.  The first, internationalization of curriculum, mirrors that of other states.  This approach seeks to harmonize legal education across borders and focuses on expanding curricular offerings to embrace emerging law systems, as well as international, comparative and foreign law.  See, Backer, Larry Catá, Parallel Tracks? Internationalizing the American Law School Curriculum in Light of the Principles in the Carnegie Foundation's 'Educating Lawyers'. Comparative Perspectives on Law and Justice, in The Internalization of Law and Legal Education 49-112 (Jan Klabbers and Mortimer Sellers, Dordrecht, The Netherlands: Springer Science + Business Media B.V., 2008) (2 Ius Gentium: Comparative Perspectives on Law and Justice (Mortimer Sellers series ed.) ISBN 978-4020-9493-4; e-ISBN 978-1-4020-9494-1. 

(From Dr Paul Greatrix, Internationalisation’s mid-life crisis?, Registrarism, June 8, 2011 (Dr. Greatrix is  the Registrar at the University of Nottingham ("In a recent opinion piece in THE, I argued that genuine internationalisation, including building campuses overseas, was challenging but achievable and required a sincere long term commitment. Others have been asking some hard questions about the whole idea of internationalisation. So, has it lost its way? Is it the end of internationalisation? Or is it just having a mid-life crisis?"))


The other, globalization of national forms of legal education, would internationalize the national educational curriculum; this posits the conception of legal education (and the legal systems that serve as their object) as commodities competing for market share in global markets for law.  See, Larry Catá Backer, "Extraterritorial Accreditation and Global Law Schools on the U.S. Model:  Considering the American Bar Association's Development of a Model for Accrediting Non-U.S. Law Schools to Grant U.S. J.D.'s," Manuscript June 2011.

Among the efforts to regularize and bureaucratize the provision of post JD legal education (sometimes  targeted for foreign consumption), the American Bar Association has now sought to consider  creating rules for the provision of such degrees.  My research assistant, Bret Stancil (Penn State Law '13) produced this useful discussion of the proposed LLM certification rules.


(photo (c) Larry Catá Backer 2011)
__________________________________

Bret Stancil,  ABA Accreditation of Foreign Law Schools--Globalization v. Legal Colonialism:

It can be argued that the expansion of ABA accreditation to foreign law schools is inapposite to the globalization of law. That is, although exposing foreign students to the American legal system may be a desirable ingredient in the globalization of law, the Kane report’s suggestion that the curriculum be predominantly U.S. law taught in English[1] suggests that an expansion of accreditation to foreign law schools will resemble legal colonialism more than it will globalization of legal education.

Although the ABA reports suggest that an expansion of accreditation will serve to assist state supreme courts, and thus suggests the end goal of facilitating the inclusion of foreign lawyers in American practice, it is unlikely that all graduates of ABA accredited foreign law schools will end up practicing in the U.S.. That said, many of these graduates, now educated only in U.S. law, may seek to teach in their home jurisdiction, hold political office, etc. which may permit their predominantly American education to influence and effect the laws and policies of their home jurisdiction.[2]  In his article Legal ColonialismAmericanization of Legal Education in Israel, Haim Sandberg suggests that the application of American law, developed and founded in American culture, history, and values, may not comport with the history, tradition, values, and culture of the foreign jurisdiction. That is, graduates of ABA accredited foreign law schools, educated in a law other than that which is borne from and rooted in the history and culture of their nation, may negatively influence the legal landscape of their jurisdictions through attempts to apply American precedent to unique foreign issues and policy concerns.

Although it can be argued that this cultural exchange will eventually balance out as foreign graduates relocate to practice in the U.S., because the Kane Committee requires that the curriculum be predominantly U.S. law it is not unlikely that many of these foreign graduates will have little academic or professional exposure to the legal system of their home jurisdiction and thus little knowledge of foreign law to by which to reciprocally influence U.S. law. That is, because recent trends have led many nations to classify and recognize legal education as a post-graduate program[3], and in light of the relative cost of graduate education, it is unlikely that applicants to an ABA accredited foreign law school will have already completed post-graduate education in the law of their home jurisdiction. Thus, although it is likely that the influx of foreign attorneys will have some influence on the American legal profession, it is unlikely that this influence will have the same affect on the law itself as the export of American law to overseas schools will have on foreign legal systems.

However, on the other side of the coin, it can be argued that globalization is naturally going to favor those systems of law belonging to the nation states with the most power and control over the industry. That is, it can be argued that it is undesirable to seek to achieve globalization that is an equal blend of all systems of law for the sake of equality of representation. Rather, it can be argued that globalization should seek to maximize trade and stimulate the global economy and, as such, the markets and nations with the strongest influence on the global trade will necessarily be those that are most strongly represented in efforts of globalization. Following from that argument, because “global” law firms are predominantly extensions and branch campuses of American law firms[4] and America is a major (if not the most major) player in the international business world, it is not surprising that the American legal system would be central to efforts to globalize the legal profession. Thus, when speaking of globalization of law, the trends in legal education are going to mirror those of the industry. To put it simply, trends in globalization are going to follow the money—because that money is predominantly U.S. currency generated by the business of U.S. multinationals that is coordinated and developed with the assistance of U.S. law firms, it is no shock that globalization efforts may appear to favor American law.  As such, the real question is: “Where is the line between actual legal colonialism and globalization that merely appears to be colonialism due to the enormous size and influence of American law globally?”

            With this in mind, it would seem that the proposed LL.M. certification program appears to foster globalization much more than the proposed accreditation of foreign law schools. That is, because bar exam eligibility for graduates of certified LL.M. programs requires that the applicant be a graduate of a foreign law school and authorized to practice law in the foreign jurisdiction, with regard to multi-jurisdictional practice and credential recognition, the proposed certification of LL.M. programs would appear to promote globalization of the legal profession and harmonization of legal systems. However, although there are many positive aspects to the proposed certification of LL.M. programs, the structure of the proposed program may create substantial barriers to trade in services.

LL.M. CERTIFICATION:

Motivated in part by a 2007 resolution of the Conference of Chief Justices[5] urging “the American Bar Association Section on Legal Education and Admission to the Bar to consider developing and implementing a program to certify the quality of the legal education offered by universities in other common-law countries,” the Committee on International Legal Education was created to “draft a proposed Model Rule that would establish criteria for an LL.M. program designed to prepare the foreign lawyer for the practice of law in the United States.”[6] In March 2011, the Committee released its Proposed Model Rule on Admission of Foreign Educated Lawyers and is welcoming public comments through July 15, 2011, at which point an evaluation and amendment process will commence in preparation for presentment to the ABA House of Delegates in February, 2012.   

THE MODEL RULE:

If adopted by a state supreme court, the model rule would permit a lawyer educated at a foreign law school to take the bar examination if the foreign educated lawyer:

(1) Received his or her legal education and graduated from a foreign law school that:
(a) is government sanctioned or recognized, if educational institutions are state regulated within the country; or
(b) is recognized or approved by an evaluation body, if such agency exists within the country; or
(c) is chartered to award first degrees in law by the appropriate authority within the country;

                        (2) is authorized to practice law in a foreign jurisdiction; and

(3) has been awarded, by a law school fully approved by the Council, an LL.M. degree for the Practice of Law in the United States which has been certified by the Council as meeting the criteria established by the Council to qualify a foreign-educated lawyer to sit for the bar examination in a United States jurisdiction.

            Thus, in an effort to alleviate the time and expense placed on state supreme courts and bar examiners, the Model Rule would shift the inquiry from a determination of the sufficiency of an applicant’s foreign education to a determination of the applicant’s domestic education in preparing the applicant for U.S. practice. That is,
           
The proposed Model Rule, and not the Criteria, could be adopted by a State Supreme Court. The court would then rely on the law school to certify to the court that the applicant has completed an LL.M. degree for the Practice of Law in the United States and that the LL.M. degree program is certified by the Council of the Section as satisfying the Criteria. The Criteria are not a part of the Model Rule, just as the specific Standards for ABA accreditation of law schools are not a part of a state’s rule governing who is eligible to seek admission to a state bar.

            Moreover, this proposal shifts the burden of the determination to the law school and away from the state court or bar examiner. That is, the Proposed Rule would require the law school to certify not only that the applicant had completed a certified LL.M. program, but also that the applicant meets the Model Rule’s requirements regarding foreign education and licensure. The Committee notes that this burden would be best satisfied at the time of admission to the certified LL.M. program and could be accomplished through a credential assembly service such as LSAC.

            Thus, it is important to understand that the proposed Model rule Purports to assist state supreme courts and bar examiners in two respects: (1) by shifting the focus of the inquiry away from a determination of the sufficiency of an applicant’s foreign education as preparation for U.S. practice and, rather, onto the adequacy of preparation for U.S. practice obtained in a domestic LL.M. program; and (2) alleviating the logistical burden placed on state courts and bar examiners by requiring law schools to determine the status of the applicant’s foreign education and licensure.  

            It is of interest to note that the Committee acknowledges that states with existing criteria for the admission of foreign educated lawyers to the bar examination may wish to continue to rely on that criteria and that, “the primary goal is to provide a Model Rule for those state courts that have not adopted requirements governing the admission of foreign lawyers.” Indeed, as of 2010, 32 U.S. jurisdictions have criteria governing the admission of foreign educated attorneys and 25 jurisdictions do not permit the admission of foreign educated attorneys under any conditions[7]. Although it is noble to alleviate the burden imposed on state supreme courts and bar administrators in developing rules for the admission of foreign attorneys, the Committee seems to be operating under the assumption that this burden is the only factor contributing to a state’s decision not to admit foreign attorneys. That is, the Committee does not address the possibility that states that have not adopted requirements for the admission of foreign educated lawyers have any desire to do so. 

            Moreover, under the LL.M. certification program, states will not feel the same pressure to adopt the ABA’s proposal as they would in the event of an expansion of ABA accreditation. That is, because all states find eligible graduates from ABA accredited law schools, states wishing to avoid the admission of foreign attorneys educated at an accredited foreign law school would be forced to rewrite state rules governing the admission of attorneys from ABA accredited law schools. However, under the LL.M. certification proposed Rule, states do not have the same incentive to adopt the rule and permit admission of foreign applicants simply because the logistical cost of doing so has been passed onto law schools.

            Thus, without knowing what each individual state will do, it is impossible to gauge the effect this proposed Model Rule will have on the admission of foreign attorneys. That is, for states with liberal rules governing the admission of foreign attorneys currently in place, adoption of this rule may signal tighter restrictions. However, it is equally plausible that these states will resist the Model Rule, choosing instead to continue reliance on their own rules (which may be more liberal or stringent depending on the jurisdiction)[8]. On the opposite side of the spectrum, it is equally plausible that states that do not currently permit the admission of foreign attorneys may adopt the Model Rule, thus signaling a liberalization of rules governing the admission of foreign attorneys. Thus, although it is uncertain whether the proposed Model Rule will liberalize or tighten restrictions in the aggregate, it is likely that the Model Rule will shift the distribution of jurisdictions permitting admission of foreign attorneys. In any event, assuming enough jurisdictions adopt the Model Rule to make adjustments to LL.M. programs worth the expense, law schools may find the promise of increased interest in LL.M programs (and thus increased tuition dollars) a sufficient incentive to seek certification of their LL.M programs.

CERTIFICATION OF LL.M. PROGRAMS

In order for an LL.M. program to be certified by the Council, the program must meet the following requirements:

(1) The degree program is part of the educational program of a law school that is fully approved by the council;

(2) The degree program prepares students for the admission to the bar, and for effective and responsible participation in the United States legal profession;

(3) The curriculum includes a minimum of 18,200 minutes of instruction, typically through 26 hours of credit, of which a minimum of 12,000 minutes are in courses that address principles of domestic United States law, and which must include the following:
                       
(a) A minimum of 2080 minutes in United States Constitutional Law, including principles of separation of powers and federalism;

(b) A minimum of 2080 minutes in the civil procedure of state and federal courts in the United States;

(c) A minimum of 1400 minutes in the history, goals, structure, values, rules and responsibilities of the United States legal profession and its members;

(d) A minimum of 1400 minutes in legal analysis and reasoning, legal research, problem solving, and oral and written communication.

(e) The specific requirements in (a) – (d) may be waived by the law school if a student has previously received instruction in a substantially similar course, so long as the total minutes of instruction in United States law during the degree program is not reduced below 12,000 minutes as a result of that waiver. The specific requirement of 3(c) may not be waived unless a student has previously taken a course that satisfies this requirement at an ABA approved law school.

(f) Eighteen of twenty-six credits, or 12, 000 minutes, must be taught during the regular academic year, excluding inter-sessions and summer sessions;

(g) Eighteen of twenty-six credits, or a minimum of 12,000 minutes, must be taught by full time or emeritus faculty at the law school.

(4) An LL.M. for the Practice of Law in the United States may be completed in a full or part time program. If the program is part time, the LL.M. must be completed within 36 months. All courses must be taught in English and in the United States or its territories.

(5) A law school must publicly disclose on its website the first-time bar passage rates by state of its most recent class of graduates of an LL.M program specifically designed to comply with this rule and to prepare its students for the practice of law in the United States.

It is important to note that in addition to only being available to ABA accredited law schools, certification of a school’s LL.M. program requires that the program largely teach curriculum typical of the first year of the JD program. Indeed, the Committee notes that while many ABA approved law schools have LL.M. programs designed to meet many educational goals, certification is only available for, and this criteria is designed to measure, programs with the goal of preparing students for the practice of law with the United States.  

It was mentioned earlier that law schools seeking to increase the attractiveness of their LL.M. program, and thus increase revenue, would have the incentive to offer a certified LL.M. program to foreign students. However, despite these financial incentives, it can be argued that the requirement that the LL.M. program teach first year curriculum may have the actual effect of driving students away from the LL.M. program[9]. That is, many LL.M. students have no desire to practice law in the United States and, rather, seek an LL.M. degree in a particular specialty to take back to their home jurisdiction. With this in mind, many students may be put off by the notion of taking courses other than those of their chosen specialty. Although it is true that the law school could circumvent this problem via the development of two separate ‘tracks’ for LL.M. students to take depending on their desire to practice in the U.S. or not, this may be an adjustment a law school does not have the resources to carry out or may be a costly adjustment that demand does not justify.

Moreover, it is especially important to note that the LL.M. program must be completed in the U.S.. Although many will argue that this requirement seems to promote exposure to U.S. custom and culture before practice (alleviating the concerns of many who oppose foreign accreditation), the cost of relocation, foregone wages, and the cost of living in the U.S. may serve as a substantial barrier to students seeking to practice in the U.S.. Moreover, with many U.S. law schools already offering LL.M. programs abroad through branch campuses and partnerships with foreign universities, it is unclear why the Committee would require that the program be completed in the U.S. (especially in light of the fact that potential accreditation would permit earning a JD without ever setting foot in the U.S.).

Moreover, there are already concerns that the adoption of this rule will raise equal protection concerns from U.S. law students from unaccredited law schools who are not eligible to sit for the bar exam. That is, it is important to recall that the model rule will require that, in addition to completing the certified LL.M. program, the bar applicant be a graduate of a foreign law school and licensed to practice in a foreign jurisdiction—both requirements that will not be satisfied by a U.S. law student from an unaccredited law school. In Matter of Tocci, 600 N.E.2d 577 (1992), the Supreme Judicial Court of Massachusetts held that equal protection was not violated when, despite a rule requiring bar applicants to be graduates of an ABA accredited law school, alternate approval procedures were utilized for foreign-educated applicants but not for domestic graduates of unaccredited law schools. That is, the court held that, because the ABA does not accredit foreign law schools, it is rational to provide an alternate procedure for foreign-educated bar applicants and equal protection does not prohibit the difference in treatment. This is a particularly interesting case in light of the ABA’s current consideration of accrediting foreign law schools. That is, if the ABA decides to implement this rule and also begins accrediting foreign law schools, a court facing an equal protection challenge will have to modify or avoid using all together the rationale of Tocci.


Further Points to Explore:

            -Possible incentives states would have to adopt this rule
            -The effect of LL.M certification and ABA accreditation of foreign law schools
            -LL.M. certification in context of GATS & degree recognition


[1] Mary K. Kane, Report of Special Comm. on Foreign Law Schools Seeking Approval Under ABA Standards, 2009 A.B.A. Sec. of Legal Educ. and Admissions to the Bar (Kane Report). § II at 5, 6, 7. http://www.abajournal.com/files/kanereportinternational.pdf
[2] For an interesting perspective on the influence of American legal education in Israel, See, e.g., Haim Sandberg, Legal Colonialism—Americanization of Legal Education in Israel, Global Jurist: Vol. 10; Iss. 2; Art. 6 (2010).  
[3]The 1999 Bologna Declaration of the European Ministers of Education suggests, to put it simply, a restructuring of higher education by a uniform 3/5/8 year sequence of degrees (e.g., the “Bologna Process”), following suit with the classical American college and university education model. It therefore starts with a bachelor's degree, possible after three years of studies.” See, e.g., Norbert Reich, Recent Trends in European Legal Education: The Place of the European Law Faculties Association, 21 Penn St. Int’l L. Rev. 21 at 29 (2002).
[4] See, e.g., The Global 100 2010: The Worlds Highest Grossing Law Firms, American Lawyer, http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202472338838 (Accessed 7/1/11) (Seventy-nine of the worlds 100 highest grossing law firms are U.S. based firms)
[5] Conference of Chief Justices, Resolution 8 Regarding Accreditation of Legal Education in Common Law Countries by the ABA Section on Legal Education and Admission to the Bar (Feb. 2007), http://ccj.ncsc.dni.us/LegalEducationResolutions/resol8AccredLegalEduc CommonLawCountries.html
[6] American Bar Association Section of Legal Education and Admissions to the Bar, Proposed Model Rule on Admission of Foreign Educated Lawyers. http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/20110420_model_rule_and_criteria_foreign_lawyers.authcheckdam.pdf (accessed 7/1/11)
[7] National Conference of Bar Examiners and American Bar Association Section of Legal Education and Admissions to the Bar: Comprehensive Guide to Bar Admission Requirements, 2011, Chart 4. http://www.americanbar.org/content/dam/aba/migrated/legaled/publications/20110201_Comp_Guide.authcheckdam.pdf (accessed 7/1/11).
[8] Indeed, New York’s recently amended Section 520.6 of the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law restricts historically liberal rules governing the admission of foreign attorneys but remains less stringent than the ABA’s proposal. See, e.g., Notice to the Bar, Study of Law in Foreign Country; Required Legal Education, State of New York Court of Appeals, http://www.courts.state.ny.us/CTAPPS/news/nottobar/StudyofLawForeignCountry.pdf (accessed 7/1/11)
[9] "It sounds to me like students would be able to take the bar in other states, which is great for us...But I think the curriculum requirements would piss off a lot of our students who want to take more advanced courses like corporate finance.” Stephen Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law. Quoted in: Karen Sloan, ABA Proposes Big Changes for LL.M.s, Law.com (5/24/2011) http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202494952850 (accessed 7/1/11)

 (From Elie Mystal, What is the Value of an LLM Degree?, Above the Law, Sept.22, 2010).

1 comment:

José M. López Sierra said...

Should criminals be in charge of correcting the wrong they inflicted?

Puerto Ricans vote in elections every 4 years at an 80% level of participation. Puerto Rico has been a colony of the United States (US) government for the past 116 years. If the US government has the final say in what happens in Puerto Rico, what is the purpose of these elections? The purpose is to fool the world that Puerto Rico is a democracy.

The United Nations (UN) declared colonialism a crime against humanity in 1960. The UN has asked the US government 33 times to decolonize Puerto Rico immediately. The US government has refused. It says that Puerto Rico’s political relationship with the United States is none of the UN’s business. The US says that it is a domestic affair.

To appear that the US government wants to decolonize Puerto Rico, it promotes the use of plebiscites to determine what Puerto Ricans want. Doesn’t that sounds innocent and democratic? So what’s the problem?

To begin with, the international community already rendered its verdict and determined that colonialism is illegal. So to have a political status option in a plebiscite that favors maintaining Puerto Rico a colony of the United States is not permitted. To have a political status option of Puerto Rico becoming a state of the United States is also not permitted under international law. The problem goes back to the beginning of this article. In order to have free elections, the country must be free. So before these elections and plebiscite could be valid, Puerto Rico would have to first be an independent nation.

What people must realize is that Puerto Rico is a colony of the US because the US government wants it that way. That is why it has used terrorism to keep it that way. That is why it refuses to release the Puerto Rican political prisoner of 33 years Oscar López Rivera. That is also why it is ridiculous to believe that decolonization is a US internal matter in which the UN has no jurisdiction over. If we allow the US government to decolonize Puerto Rico, she will remain a colony of the United States forever!

José M López Sierra
www.TodosUnidosDescolonizarPR.blogspot.com