Thinking Critically About International and
Transnational Legal Education
It has become a matter of recurring lament and concern — and periodically, an object of satire and derision — that Americans lack basic knowledge, awareness, or interest concerning the world beyond their borders, whether in terms of history, public affairs, culture, language, or even basic geography. Politicians, corporate leaders, scholars, and other observers across a broad spectrum routinely warn of the potential dangers this global awareness deficit poses to the well-being and security of the United States. In an increasingly interdependent world — with a growing array of economic, political, social, and environmental problems that transcend national borders — individuals cannot meaningfully function as responsible democratic citizens without both greater global knowledge and the capacities and sensibilities necessary to engage that knowledge critically and with sophistication.
"But for Wuhan?": Do Law Schools Operating in
Authoritarian Regimes Have Human Rights Obligations
American law schools and universities are globalizing as never before. This academic form of globalization ranges from modest student and faculty exchanges with foreign counterparts to joint degree programs to full campuses abroad. International initiatives by U.S. academic institutions are numerous and only likely to grow. Yet what happens when a U.S. academy reaches out to do business with, or in, an authoritarian regime? The results to date are not encouraging. Scholarly interaction in theory promotes such mutual benefits as understanding, dialogue, and exposure to fresh ideas. Two recent, high-profile examples, however, suggest potential costs. Yale, joining with the National University of Singapore, has for the first time lent its name to a campus outside New Haven. Aside from working with a regime that poses significant human rights concerns, the Yale-NUS initiative has gone further to ban student political protests and organizations from its grounds. Along similar lines, a number of deans from self-proclaimed leading U.S. law schools recently held a "summit" meeting in China with their Chinese counterparts. They did so, however, in the midst of a most brutal crackdown on lawyers and law professors that included disappearances, detention, and torture. None of these leading deans indicated any awareness of the situation, commented on it, or took up subsequent NGO efforts to involve them in addressing the problem. These lapses suggest that U.S. law schools and universities can and should do better. International human rights law does not directly address this problem, but industry efforts at self-regulation do suggest ways forward. These include a need for institutions to (1) educate themselves about the human rights record of a host or partner regime; (2) consider alternative partners where feasible; (3) refrain from actions that contribute to human rights violations; (4) deliberately promote the rule of law and fundamental rights; and (5) constructively engage a government when it commits serious human rights abuses, especially as it affects those persecuted for exercising academic freedom or providing legal representation for unpopular causes. Whatever the precise solutions, academic leaders in the United States must at least begin by acknowledging that doing business with authoritarian regimes creates problems that can no longer be ignored.
Beyond Colonization–Globalization and the Establishment
of Programs of U.S. Legal Education Abroad
by Indigenous Institutions
This Article will look at globalization in the context of higher education and, in particular, higher legal education. The objective will be to think about the ways in which non-U.S.-based law schools are now offering American-style legal education to supply the U.S. legal market or produce U.S.-trained lawyers in the home-state market or for other legal markets outside the United States. Specifically, this Article will first discuss the history of higher education as a national project and more recent trends and efforts to globalize higher education. The conceptual framework is informed by cosmopolitan, imperial, or national aspirations. Starting from a definition of legal education globalization, this Article considers the history of legal education as a national and international project. It then examines recent efforts to globalize legal education as an exercise in American cosmopolitanism, internationalism, and nationalism. The Article will then critically assess arguments that, in light of certain characteristics of legal systems and legal education, globalization of legal education may implicate notions of cultural imperialism, in whatever form it takes. It then turns to an examination of one of the more interesting manifestations of globalization abroad — nationalist globalization in the form of developing American law schools outside the United States by non-U.S. educational entities — by concentrating on two examples, one from Spain and the other from China. Finally, after discussing the ways in which the globalization of American legal education may affect recipient cultures, this Article will take the reverse perspective and hypothesize on how the American legal education system may be affected by the same exportation.
A Flat Earth for Lawyers Without Borders?
Rethinking Current Approaches to the Globalization
of Legal Education
A powerful assemblage of forces seems to be ensuring that the transnational colonizes the hearts and ambitions of emerging cadres of law graduates. Over the last twenty-five years, the legal academy has been shifting alongside, and in reaction to, the movement of people, capital, and goods across borders and the legal regimes that enable and regulate such movement. Thus, the structure and curricula of law schools are being revised in navigating a dizzyingly polycentric world. Yet the current trajectory seems fraught with tensions. On the one hand, the accent is on diversity; on the other, the cumulative effect seems to engender convergence and empower standardization. On the one hand, the reforms have been aimed at revitalizing legal education; on the other, educational goals seem to be downsized to the needs of legal practice. On the one hand, the focus is on responding to social needs; on the other, there seems to be a heightened disconnect from the need of marginalized populations. This Article maps the current debate on globalizing legal education, highlights its stakes, and explores how we may change the terms of the debate. It urges that a core challenge and promise of globalized legal education is to foster critical experimentation and intellectual heterodoxy so that we are better able to problematize received professional conceits and productively disorient our conceptual frontiers. To address this challenge and realize this promise, we will be aided by further research on the relationship between the current trajectory of the globalization of legal education and the structures of global governance — research that studies the political economy of current trends and maps the legal consciousness that accompanies it in order to better understand the complex and multi-directional processes through which legal knowledge gets disseminated, translated, and transformed. If we take legal education as an already-globalized terrain, then the debate is not about whether to globalize but about the direction of globalization, i.e., the multiple contested visions of global legal architecture that are at stake. Thus, globalization should not be measured by the number of transnational law school partnerships or study-away sites, but by whether the globalization of legal education has better equipped us to productively unsettle received ideas while boldly imagining alternative institutional arrangements in shaping the zeitgeist in which we teach, research, and study.
Educating Global Lawyers
This Article considers the recent growth of global law firms. Global firms now employ thousands of lawyers, have multiple offices around the world, and generate billion-dollar profits. As a result, legal academics need to consider how to provide opportunities for students to reflect upon the realities of global legal practice. Using a discussion of the Central Asian Baku-Tbilisi-Ceyhan (BTC) pipeline case, the Article demonstrates the powerful role that global lawyers play in structuring complex legal transactions for multinational clients. It argues that, as the boundaries between clients' economic goals and their social and environmental responsibilities move closer, law students need to be prepared for the responsibilities and tensions this creates.
Found in the Translation: The Value of Teaching
Law as Culture
Although the study of law within its larger culture is emerging, recognition of law as culture is still generally nascent within legal studies and pre-professional programs. In fact, the greater recognition of law's social and political role may have impeded a consideration of law's role as culturally specific. Yet, as law practice becomes more globalized, such awareness is an increasingly necessary element of any practitioner's toolkit. This Article explores three examples of cross-cultural blunders to demonstrate the necessity of being sensitive to law in cultural context.
Finding the Pearls When the World Is Your Oyster:
Case and Project Selection in Clinic Design
Clinical legal education is distinguishable from the rest of the law school curriculum and the extracurricular activities available to law students because it places students directly into the role of a lawyer engaged in real-world practice. Clinical programs are often defined by the cases and projects — the pearls at the heart of the experiential learning experience — that comprise their dockets. Finding the right cases and projects that meet a range of goals remains a perennial challenge in clinic design. In the context of international human rights clinics, the world is your oyster, and that challenge is magnified. This Article identifies a set of core lawyering competencies — skills and values — essential to successful practice in a globalized world, and argues that those competencies should drive the pedagogical goals that serve as the criteria against which to assess the value of the clinical teaching pearls. Building on prior scholarship by international human rights clinical law faculty, and analyzing case studies from the Transnational Legal Clinic at the University of Pennsylvania Law School, this Article then examines the benefits and challenges for students engaged in a range of individual and project-based human rights representations. This Article concludes with the provocative and important question: How can we prevent the risk of harm to the often unfamiliar and fragile ecosystems into which we dive in search of our teaching pearls?
Law, Sexuality, and Transnational Perspectives
Law teachers can enrich students' experiences by incorporating transnational perspectives into their course materials and classroom discussions. This contribution to Drexel Law Review's Symposium — Building Global Professionalism: Emerging Trends in International and Transnational Legal Education — explores four ways that teachers can integrate transnational perspectives into classes on law and sexuality. First, teachers can situate U.S. law in the context of transnational norms. Second, by using foreign cultures as a foil, teachers can illuminate cultural constructs in the United States that influence the regulation of sexuality. Third, when discussing potential reform of U.S. law, classes can explore legal innovations developed in foreign jurisdictions. Fourth, classes can discuss transnational lawyering to prepare students who wish to pursue sexuality-related advocacy abroad.
A Global Approach to Legal Writing and Legal Research:
An Evolutionary Process
Thirty-some years ago, American law schools reserved the study of in-ternational law for upper-level students, keeping the first year of law school focused on the traditional doctrinal subjects of torts, contracts, property, civil procedure, criminal law, and, perhaps, criminal procedure and constitutional law. Similarly, legal writing and legal research, both fledgling fields, dealt primarily with instruction in customarily domestic strategies — American statutory and common law research, preparation of legal memoranda advising clients or senior attorneys about domestic law issues, and preparation of legal briefs set in real or fictional state and federal courts. A handful of law schools introduced international law concepts in legal research and legal writing courses, but generally, international law and related subjects were considered material for substantive, and not skills, courses.
Skip ahead to the present. Once following similar approaches to the first-year curriculum, law schools have begun to experiment — to offer electives to first-year students (often including international law courses), to add a greater variety of skills courses, and the like. The number of legal writing courses and legal research courses that offer assignments that deal with international law — either as applied by U.S. courts or courts abroad — has increased greatly. Moreover, legal writing and legal research professors have branched out internationally in many ways, including developing courses and programs for international students and guiding our colleagues abroad in developing their own legal research and writing programs.
This Article will focus on this evolution in legal skills teaching and its implications for the future, including the place of legal skills teaching in the broader area of globalizing legal education.