Tuesday, August 24, 2010

The American Bar Association is Considering Accrediting Foreign Law Schools: Globalization, Harmonization, Communication, Satisfaction of Market Needs, Advancing Legal Knowledge, or Neo-Colonial Project?

Elites for some time have amused themselves by disparaging both the coherence and relevance of American law. Yet American law and legal education continues its march across the globe, triumphantly displacing indigenous forms of approaches to law and legal education in the most unlikely of places.     And now this triumphant march through the world has wended its way home.  Building on the heels of an earlier report, the 2009 Report of the Special Committee on International Issues (chaired by Justice Elizabeth Lacy), that highlighted the need for the appropriate assimilation of foreign lawyers into the American system, a special American Bar Association committee has suggested that the ABA accredit foreign law schools.  See  American Bar Association, Report of Special Committee on Foreign Law Schools Seeking Approval Under ABA Standards, July 19, 2010.
This Special Committee was appointed on June 10, 2010 and asked to report to the Council of the Section of Legal Education and Admissions to the Bar at its August 2010 meeting on the policy questions surrounding the question whether law schools located outside the United States or its territories, which have modeled their educational programs on the American model, should be allowed to seek accreditation under the governing Section Standards and Rules of Procedure for Approval of Law Schools. Id., at 1.
The Committee, composed of Mary Kay Kane (Chair), Elizabeth Lacy, Dennis Lynch, Randall Shepard, and David Tang, divided its Report into three parts.
The first discusses the policy implications and justifications for expanding the accreditation role of the ABA Section to encompass law schools located outside the United States or its territories. The second considers what special rules or concerns might need to be addressed should the Council determine to proceed to consider applications coming from such law schools. . . . Finally, the report concludes with a series of recommendations.  Id., at 1-2.
 The Committee made four recommendations.  First, the accreditation project should go forward.  Second, the actual accreditation standards should be reviewed and revised to avoid any barriers to this geographic expansion.  Third, a policy statement ought to be drafted to ensure the central place of American law, the English language, a faculty made up primarily of recipients of U.S. J.D.s, and an American pedagogy in these foreign accredited schools.  Lastly, the Committee recommended to trail run from a model school that might provide the acceptable template for this form of expansion.  Report, supra, at 8.

The Committee offered six justifications for this expansion and three and three creations against expansion.  Report, supra, at 3-7. The justifications included aiding state supreme courts in their bar admissions functions, controlling the route to and the acculturation required for bar admissions, avoiding the shortcut to bar preparation for foreigners offered through the lucrative markets for LL.M. degrees, deepening the influence of American law and American legal education as the gold standard for global legal education "to improve the training of lawyers globally and contribute to the modern economy and the international legal profession."  Id., at 4. In addition, the Committee advanced the notion that such programs of accreditation would aid in the process of global legal harmonization. "Expanding accreditation to schools outside U.S. borders that focus on U.S. law will allow these schools to be in a position potentially to develop cutting-edge curricula to address these trends and the Section thus will be in a position to be an active player in the dialogue about how to develop high quality legal training for the global economy." Id. Lastly, it would permit American law schools to become multinational operations by reducing barriers to the establishment of branch campuses abroad. 

The reasons cautioning against expansion included reducing barriers to entry of foreign lawyers into American legal markets, permitting foreign governments an indirect voice in accreditation through state controlled law schools, and failing in a rigorous enough acculturation process that might require visits to the United States itself.  Id., at 5.

The Report is both interesting and challenging.  From an economic perspective the thrust of the Report makes sense for thew United States.  It represents a recognition of the character of markets in legal education, and seeks to privilege the American participation by removing regulatory barriers to expansion of market share.   From a political perspective there is much to commend the Report from the perspective of American policy.  In an era when soft power is sometimes more effective than military intervention, dominating cultural markets and markets in legal ideology, methods and substantive law substantially leverages American power.  From an internal power dynamics perspective it also works to benefit the richest, most influential and powerful actors within legal academia.  Not every law school has the resources to open branches or establish the sort of ties that might lead to US accredited joint ventures with foreign law schools--and don't be surprised if many of these foreign ventures are not at least initially structured as joint ventures between U.S. law schools and foreign academic units.  The rules would tend to cement the privilege of the upper tier of American law school and deepen the divide between the haves and "have-nots" of a formally egalitarian but functionally class structured system of American legal education.  Lastly the emphasis on English also produces a strong soci-cultural effect by deepening the power of English as the global language.  Values are easier to transmit through a common language than in translation.  

Yet some of these powerful incentives to move forward with this enterprise from the American perspective might provide a caution to those on the receiving end of the transaction.  It is not too long a path from harmonization to subordination and from guidance to domination.  These efforts can be as intrusive in host states as the erection of military bases--and more effective because they are meant to be open and inviting rather than walled off and secured.  On the other hand, the process suggests partnership.  It is as likely that a great infusion of foreign voices into American programs will change the Americans as it will acculturate the foreigners.  American culture is particularly susceptible to foreign influence--but American tend to absorb foreign influences and naturalize them within its own culture rather than avoid them as threats, at least int he long run. Yet its effect on domestic markets for law and legal education within host states remains a topic that is sorely neglected in the Report-
The Council on Legal Education and Admissions to the Bar will consider the recommendations in December, and is seeking comment. Comments should be e-mailed by Oct. 15 to legaled@staff.abanet.org under the heading of "Foreign Law Schools." I would urge those interested, especially members of faculties from foreign (non-U.S. jurisdictions) to participate in the conversation this report has opened by responding to the ABA and broadening the discussion to those stakeholders not necessarily privy to the ABA's governance project. 

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