Saturday, January 20, 2007

Global Law in American Law Schools: Prospects and Difficulties of Incorporation.

Many law schools today face the challenge of incorporating a transborder (international, comparative, transnational and foreign law) element into their curriculum. Some schools, like those of a century ago, when faced with the realities of transborder practices arising from the creation of national markets and practices within the United States, reacted by digging more deeply into their traditional state oriented curricula. And, indeed, there are law schools within the United States, that remain substantially unchanged—focusing deliberately on a curriculum limited by the territorial boundaries of the state in which they are established. Most law schools, reluctantly or not, and more or less enthusiastically, had embraced a “national law practice” model by the last third of the twentieth century. Today law schools face the same curricular challenges that they faced a century ago. But instead of confronting the challenge of a “national” practice, they confront the realities of a multi jurisdictional practice (Harold Hongju Koh, Luncheon Address (May 17, 2006), in American Law Institute Remarks and Addresses 83rd Annual Meeting, Washington, D.C. pp. 65-89).

Today most law schools have some faculty, and some programs, that have as their focus one or another component of transborder or multi jurisdictional practice beyond national borders. How law schools confront the challenge posed by the realities of human activity, and legal systems that no longer respect the niceties of the political borders of nation-states, will determine the shape of legal education for the future. Law schools that fail to conform their educational mission to the realities of law and the practices of the great global legal actors—merchants, immigrants communities, non governmental organizations, economic entities, banks and other users of legal services—will find themselves playing a limited (though no doubt important) role in the future of the development of law and the production of law and lawyers for the global marketplace.

In a number of forward looking law schools, faculty have begun to examine this problem, with a view to developing a comprehensive analysis of matters related to the international or transborder “component” of their law schools. In some cases, that analysis is tied to the development of relationships with other related faculties of the universities in which the law school is resident. For example, many universities have established schools of international affairs, of international relations or foreign service, with curricular objectives that might run parallel to those being contemplated for the transborder focus of a law school. At Penn State, for example, the Penn State Board of Trustees at its January 19, 2007 meeting approved an affiliated School of International Affairs for implementation.

In addition, such analysis would usually also consider programs for foreign students, the addition of masters and SJD programs in international law and related disciplines for law students and others who qualify, other degree offerings, affiliations (both formal and informal, and both institutional and personal) with foreign institutions, and the institution of other programs abroad for our law students, foreign or "domestic," including certificate programs and summer and semester programs abroad.

I will suggest here a possible structure for analysis and a set of framework structures for incorporating the transborder element in law school curricular, research and service activities. The discussion that follows may provide a framework for the much more difficult task of honest self assessment and conscious embrace of objectives.

1. Structure for Analysis.

No consideration of the problem of integrating transborder practice issues into the operations of law schools can be adequately addressed without a reasonable framework for analysis. That analysis must focus on three things: (A) what are the realities of law making and practice, (B) how do those realities relate to the mission of a particular law school; and (C) what are the resources and resource constraints of that institution. On the basis of that analysis, it becomes easier to approach the assessment of the objective: the manner, if any, in which a particular law school will choose to embrace (and support) transborder elements in its teaching, research and service. The structure of analysis ought to work from “big picture” issues to the minutiae of implementation. Unworkable dreams, like the dreams of infants, are distractions worth avoiding.

A. Assessing the impact of transborder issues on Law School Stakeholders.

The assessment of the impact of transborder issues on law school stakeholders involves an assessment of the impact of a variety of factors. The stakeholders are not hard to identify: faculty, students, employers, administrators, institutional actors in the field of the production of legal culture (courts, government, norm makers).

The factors affecting assessment are far more difficult to apply. First, there is the issue of time. It is tempting to assume that the character, desires, and practices of stakeholders today ought to serve as the basis for assessment. One can then simply determine the form of that reality and conform analysis to it. But in a context in which such character, desire and practice is likely to change in the future, such an assessment guarantees obsolescence even before implementation. Does one plan for the current context or a future context? If one plans for a future context, with what degree of certainty can one assess the characteristics of that future on which such assessments are to be made?

Second, there is an issue of identity. This is, of course, related to the issue of time. Today’s student pool may not resemble tomorrow’s pool. A realistic assessment of the character and general potential of students is necessary before any analysis. Many schools tend to avoid this issue—falling back on more or less empty rhetoric, or using the opportunity to reaffirm notoriously hortatory goals. A law school that deliberately (or which out of necessity) recruits a student body whose interests remain focused on state, local or even national practice, may tend to misallocate resources to transborder practice and research issues.

Or it may not. The desires, objectives and values of law school stakeholders may not be consistent. Indeed, they might cut in irremediably inconsistent directions. Consider the law school whose students are focused on state and local practice issues, and who draw an employer base that reflects those preferences. They may be taught by a faculty whose predominant interests and strengths (including reputation with bench, bar and other academics) are national, rather than state and local. But this institution may operate in a broad academic context in which reputation among elite academic institutional players increasingly requires a transborder emphasis. And the institution’s administrators, with the support of university administration, may be committed to a course of action the object of which is to secure reputation among elite academic institutional players. Knowledge of stakeholders, in this context, provides little comfort. In formation—knowledge—does not necessarily suggest choices.

In this context it is important to be realistic and honest. Unstated premises are dangerous things. Context is critical; both current and future context must be assessed realistically. For example, if very few of a law school’s graduates will practice in the area of international human rights, for instance, talking about the pedagogical value of that aspect of transborder practice may be somewhat disingenuous, but less so if the faculty becomes committed to devoting resources to attract students (and employers and research focus) in that field. And it is also important to recognize that faculty preference and interest, as well as the “market” for students, drive the extent and manner in which transborder issues may be incorporated into a law school’s mission, at least at this point in the development of a consensus of its general utility within American legal academic culture. Once the importance of the professional interest of the faculty is understood, and its relationship to pedagogical need honestly stated, it is more likely that a faculty can intelligently and openly discuss how to facilitate the work of all faculty.

In addition, there is the issue of substance (or taxonomy). The traditional division of fields touching on transborder issues—international law, comparative law and foreign law—now may no longer realistically define the field. An assessment bounded by current or past understanding of the definition of the “fields” contained within the objective (incorporating transborder legal issues within the curriculum) may substantially miss the mark. At Penn State, for example, there is a division among the faculty with respect to the legitimacy of fields such as “transnational law;” and the notion of an emerging field of “global Law” has yet to be discussed.

Moreover, change itself is costly. Inertia is not merely a matter of economics. It also affects social structures, power relationships and communal norms within a law school. Old approaches are powerfully defended in part because of their legitimacy, their traditional value. But they are also defended because those members of institutions that had embraced them have derived a certain amount of power—financial, reputation, influential—within and outside the institution on the basis of that institutional structure, and the resultant allocation of things of value. Change threatens those relationships, and that power. People thus threatened will do what they must, using whatever language or devices available, to retain their position. Change this costly should not be lightly undertaken. But it should, for this reason alone, not be avoided. The proud saddle maker in 1930 could look with a certain amount of satisfaction at his ability to avoid losing status when she was able to successfully thwart plans to incorporate an automotive division within her firm. But she is the poorer for the experience, and her institution the more irrelevant for the choice. Still, to the extent the choice was made in light of knowledge of these consequences, it remains valid nonetheless.

This brings me to my last point—no discussion of the role of transborder issues in law school can proceed without some agreement about the definition of those terms and methods for measuring their impact. Transborder law is notorious for its ambiguity. That is both the strength and weakness of a powerful yet dynamic and immature area of law. Some sort of working definition, and methods for “finding” evidence of its impact among stakeholders is critical for assessing the value of expending resources on its integration into the programs of a law school.

B. Articulating the purpose of the transborder dimension as part of the mission of a law school.

No assessment of the necessity or form of incorporation of a transborder element in law school teaching and research can begin in the absence of an understanding of the mission of that law school. Law Schools, like most other institutions, are notoriously reticent about articulating mission in other than the most general terms. Mission statements are usually broad enough to accommodate virtually any form of legal education. This is not a criticism, but a reminder that the mission of law school is often apparent more from its practice than from its statements. The reality of mission, rather than its formal articulation, must be the basis for assessment. That, in turn, is a function of a variety of factors.

First, preferences. The long term preferences of stakeholders is a basic component of purpose. But, as the preceding discussion suggests, it is the most difficult component to fairly assess. Still, an assessment must be made, one that successfully mediates among the various perspectives and provides a means of modification as preferences and outlook change. Provision ought to be made for the production of information that facilitates such perspective shift. Fatal to any analysis of stakeholder preference is a failure to grasp its positive as well as its descriptive aspect. Law schools shape stakeholder preferences by modifying their behavior to change the character of their stakeholders. Increasing student diversity, or LSAT scores, can significantly affect stakeholder preference going forward. Changing the composition of faculty can do the same. Evolving employer tastes have the same effect, but so does changing the law school’s employer base. A Law School must accept its past, and live in its present, but has some power to shape its future by changing the inputs that produce the preferences (and character) of its stakeholders.

Second, abilities. The aptitude of faculty, over the long term, and their willingness to conform to changes in the values of the production of certain kinds of knowledge, will substantially affect the ability of a Law School to incorporate changes, including but not limited to the addition of the transborder element, to the curriculum and research. Faculty committed to a particular world view, even one that that is belied by the reality around them, to which they may remain oblivious, or for which they have constructed a ready and plausible rationalization, may be a faculty unready to adopt change, even necessary change, with any degree of success. In such cases, either the aggregate composition of faculty will have to change or the matter put off. Reeducation is possible, but costly in terms of time and resources. Such faculty might be forced to conform, but conformity will yield mediocre results. Realism in assessment on this score is essential, no matter what the surrounding reality may be. Not every law school can serve as an industry leader—a risky proposition in any case.

Third, consensus. An institution led unwillingly to follow any course of action acts at its own peril. Consensus building involves more than the accumulation of diktaten from ever loftier administrative heights. It is always useful to recall the experience King Canute’s with the tides (Canute sat at the seashore and unsuccessfully ordered back the tides to prove that kingly power has its limits; for us the lesson is as valuable for those who would command the tides as for those who would flatter a leader by suggesting such a power). While such actions have the appearance of forward movement, they produce no deep impression and no solid foundation on which to build lasting institutional cultural change. The hard work of consensus building, of building a desire to participate based on fair assessments of future realities, present capabilities, and resources, and the benefits of success (a success that must be fairly shared among institutional actors) is critical in any program of change. Where consensus goes missing, failure, however packaged and veiled, will surely follow.

But consensus building can be accomplished in a variety of ways. At New York University Law School, consensus about the value of the transborder element, and its centrality to legal education, is being pursued by starting with a sufficiently large core of faculty, and providing through their actions, support, and results, a basis for extending the reach of change more generally throughout the law school. The task is ongoing, but that is no proof of its failure. Alternatively, a broad consensus among all of the faculty might be required before proceeding. Alternatively, a faculty (and its administration) may choose to “make facts” by a deliberate program of faculty hiring that effectively changes the basis of consensus within that body. The choice will likely depend on faculty (or institutional) culture. It may also depend on administrative choices—a willingness to take risks and follow through may dictate the basis for moving forward to achieve a necessary minimum consensus. But a minimum consensus is necessary.

Fourth, resources. Change is not cost free. The allocation of resources directly impacts all faculty and law school programs. Resource allocation affects power relationships within a faculty. It affects morale. Morale affects the ability of law schools to produce happy (and contributing) faculty and perhaps even contribute to the length of decanal tenure. A law school without the ability or will to commit the necessary resources to effect successfully the introduction of the transnational element into its teaching and research culture, ought not to engage in the exercise. Resource allocation and availability may take many forms. A wise administrator leads by responding to the realities of her faculty and pointing to a value maximizing future. Others push, bully, or abdicate responsibility. The issue of resources is thus intimately tied to the issue of consensus.

Fifth, realistic expectations. One can see the future, and like Moses on Mount Nebo, be unable to lead one’s people to the promised land. The realities of the hierarchies of the legal academy, and the rigorously enforced behavioral expectations that flow from that hierarchy are not lightly bucked. Well resourced institutions at the top of the reputation pyramid can not only expend resources to more accurately divine the future, they can also expend resources to mold consensus and fund its attainment with a facility denied less well resources law schooled substantially further down the reputation ladder, and effectively denied law schools at the bottom of the reputation hierarchy. This reality, usually avoided by the leveling rhetoric of academic self assessments, is avoided at a law school’s peril. Dreams sometimes may not be realized. A realistic self assessment of the possibilities permitted a law school given its resources and place within the American academic reputation hierarchy is a necessary primary step in any consideration of moving to affect programs undertaken by reputation and resource leaders in the industry.

C. Inventory what exists and what is being planned.

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

An inventory must take into account a number of things:

1. Current course coverage.

2. Potential course coverage given faculty ability and preferences.

3. Current programs in place.

4. Potential programs that might be implemented.

5. Necessary course coverage to meet the objectives of adding the transborder dimension in legal education.

6. Necessary programs to meet the objectives of adding the transborder dimension in legal education.

7. Necessary faculty additions to meet coverage, research and other programmatic needs.

8. Necessary administrative support necessary to support the programs.

A number of these inventory items may present difficulties. It is, for example, not always easy to determine who among the faculty already has an interest or engages in teaching of material that meets the programmatic needs of a trasnborder regime. It is also not easy to determine minima for course and program requirements. One is shooting at a moving target. That reality affects the resources that would be realistically necessary to commit to the program. It may thus affect the form that any program of transborder legal issues may take., It is to that last point that I turn next.

2. Framework Structures for Incorporating the Transborder element in Law School curriculum, research and service.

There are three basic models for incorporating the transborder element into law school curricula: the integration, aggregation and segregation models of incorporating transborder pedagogy in curriculum and research.

A. Integration model. The first is the most comprehensive and “deep” form of integration, one that parallels the integration of “national” law in law school curricula, research and service at the start of the 20th century. This is an approach being attempted at the higher reputation levels of the legal academy. It is marked, at least in theory, by an attempt to refocus the educational and research hub of the law school from the national to the transnational to the greatest extent feasible. For example, Yale Law School, focusing on its current Dean, Harold Koh, “has made globalization a priority. Under his leadership. . . . The Law School’s longstanding international tradition occupies a central place in its intellectual life, and many legal issues are approached from a global perspective. The devotion of its faculty and students to its myriad international projects has made Yale a first-class global law school.” International Law. Yale appears to have accomplished this by larding its general offerings with a host of programs and centers each dealing with some aspect or other of law that crosses borders. See International Law Programs at Yale University. Yale law students are offered a large number of “international law” courses and are told that “many domestic law courses contain international components.” International Law, Courses. Yale law students may also apply for "Certificates of Concentration in the following areas: International Development Studies, International Security Studies, African Studies, European Studies, Latin American Studies, Modern Middle East Studies.” Id.

Georgetown University Law School offers a related model. It states a commitment “to preparing all of its students for a legal career in this increasingly globalized society. The array of course and seminar offerings at the Law Center dealing with transnational, international, and comparative law in many forms is the most comprehensive in the country. Numbering about 100 in the 2005-2006 academic year” (Georgetown Law School, International and Transnational Law Programs). This sort of program requires not only transborder law specialists, but critically, a willingness of other faculty “who have broadened the scope of their scholarship and teaching to encompass transnational, international and comparative aspects of their fields.” (id). The job of the law school is made easier by its ability to exploit its location, offering opportunities to expand curricular and research possibilities at smaller marginal cost than a similarly situated institution in a more remote location. The teaching focus of transborder issues is a one week program of classes offered ot first year law students after the end of their semester, which are meant to expose them to the transnational dimension of the domestic law to which they will be exposed. (See id.).

B. Aggregation Model. The second, and most popular, model of integration, is based on the “field of law” or aggregation model, by which transborder issues are segregated and privileged as one among equals of areas of study of law—like labor, corporate or tax law. Under this model, transborder law (however understood) is consolidated in a number of courses, the extent and number of which will vary with the tastes of a faculty, their resources, capacities and the perceived interests of their local markets. This method involves virtually no changes in the structure of a law school’s programs. It reduces the issue to one of resource allocation. A number of courses are identified. These courses are developed and faculty found to teach them. Perhaps additional programs, ad hoc or more institutionalized in nature, are established, and students are encouraged to take advantage of the “value added” of such programs in the same way they would be encouraged to take advantage of other institutional resources that might be good for them. This approach is informal, easily integrated with other similar programs and unprivileged. It suggests that transnational law neither presents systemic issues of education or approaches to law and legal practice, nor does it require a change in the way law is understood. It is an add on. It diverts resources but otherwise effects no fundamental change in the way the business of legal education is conducted.

C. Segregation Model. The third model is the segregation model. There are two basic approaches under this model. The usual approach is nicely illustrated by the University of Pittsburgh’s Center for International Legal Education (“CILE”) founded in the late 1990s (“Originally created to provide a home for international and comparative law programs at the School of Law and to administer Pitt’s LL.M. Program for Foreign Law Graduates, the Center has become a significant provider of legal education programs throughout the world. That process continues with the inauguration this year of the CILE Studies.” Id.). Under this approach, a law school creates an administrative device which serves as the institutional base from which all transborder programs can be developed, offered, assessed and participate in the education and research mission of the law school. This method is powerful. It avoids the issue of systemic integration and the training of faculty across disciplines. It retains more or less traditional disciplinary boundaries with the law school, and it provides an easy way to monitor resource allocation and the performance of the programs, now gathered together within a single subunit.

An emerging approach is to segregate all transborder legal studies—teaching and research—within associated or affiliated schools of international law or international affairs. There are synergies possible with this approach, putting together lawyers and academics from related fields working together in an increasingly unified and powerful academic discipline (global law(s)) with many sub disciplines (international law, international relations, comparative law, political theory, etc.). It provides efficiency and convenience, making transborder issues easy to place, maintain and resource. Thus, for example, it might be possible to move (through joint or affiliation appointments) all law school faculty with primary transborder research or teaching interests to an affiliated School of International Affairs. Courses offered by these faculty (along with those offered by the members of that School) would be cross listed as Law School courses, and all research and programmatic issues associated with the transborder element of law funneled through the School of International Affairs. An associate dean of international law programs at the law school could also serve as an associate dean of academic affairs at the School of International Affairs. This model has yet to be successfully implemented anywhere, but it has certain possibilities.

Lastly, though untried, it is worth mentioning the possibility of another model arising. This I might call the immersion model. This model suggests the disingenuousness of American academic retooling for the purposes of conveying the law of other places. It also places little value on the current form of delivering such education to American law students abroad--principally through summer and semester programs in which American students remain segregated for th emost part in foreign places, taught for the most part by American faculty and from American case books or American materials--in English. It is not clear, at the moment, to gauge the willingness of Amercan academics to put the bulk of their resources for transborder training in efforts that require a substantial investment in new faculty and new locations. However, it does suggest that a method of incorporating the transnational element might be on the basis of the creation of a network of relationships with other institutions worldwide, and moving students around such a network.

Whatever model is chosen, whatever choice is made, it is clear that at some level, the character of American legal education is changing. Those changes might be resisted at the local level and for good reason (or not so good reason) by individual institutions. But change is coming nonetheless.

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