Thailand Law Journal 2010 Spring Issue 1 Volume 13

THE GLOBALISATION OF LEGAL EDUCATION
SIMON CHESTERMIAN

By Simon Chesterman^*

This article examines the evolution of legal education as it has moved through international, transna­tional, and now global paradigms. It explores these paradigms by reference to practice, pedagogy, and research. Internationalization saw the world as an archipelago of jurisdictions, with a small number of lawyers involved in mediating disputes between jurisdictions or determining which jurisdiction applied; transnationalisation saw the world as a patchwork, with greater need for familiarity across jurisdictions and hence a growth in exchanges and collaborations; globalization is now seeing the world as a web in more ways than one, with lawyers needing to be comfortable in multiple jurisdictions.

Introduction

[L]aw is a science, and ... all the available materials of that science are contained in printed books. ... We have also constantly inculcated the idea that the library is the proper workshop of professors and students alike; that it is to us all that the laboratories of the university are to the chemists and physicists, the museum of natural history to the zoologists, the botanical garden to the botanists.
Christopher Columbus Langdell,
Dean of Harvard Law School, 1887¹

Students trained under the Langdell system are like future horticulturalists confin­ing their studies to cut flowers, like architects who study pictures of buildings and nothing else. They resemble prospective dog breeders who never see anything but stuffed dogs. And it is beginning to be suspected that there is some correlation between that kind of stuffed-dog study and the over-production of stuffed shirts in the legal profession.
Jerome Frank,
Report to the Alumni Advisory Board of the University of Chicago Law School, 1932²

Legal education has always borne an ambiguous relationship to the practice of law. Is a law degree a technical qualification, like carpentry or medicine, or a serious field of intellectual inquiry, like philosophy? The uncertain answer to that question is evident in the fact that so many jurisdictions require a professional qualifica­tion administered by the local guild-a pupillage, or a bar examination-as well as a degree in order to practice. Only a few allow lawyers to practice with only a degree, such as some civil law countries (notably in Latin America), or with only a professional certification, such as a handful of U.S. states³ and, until recently, Japan.⁴

How one answers the question affects more than the careers of professional lawyers: it will have important implications for how one teaches in a law school. In Australia, for example, law is increasingly regarded as a kind of de facto Arts degree--only about half of all law graduates actually end up entering the private legal profession.⁵ Singapore, by contrast, until recently treated law more as a techni­cal qualification, with the government's Third Committee on the Supply of Lawyers capping the number of law students at the estimated number of lawyers required in the republic.⁶ As a result, Australia has more than six times as many law students per capita-28,000 compared to around 1,000 in Singapore,⁷ or one student for every 700 people in Australia as opposed to one for every 4,600 in Singapore-but has also embraced a more critical and theoretical approach to the study of law.

This article focuses not on how legal education is changing within any particular jurisdiction, but as a result of transformations across jurisdictions.⁸ In some ways this is hardly a novel phenomenon: law has previously been spread through the expansion of empire in the form of Roman law and the Napoleonic code.⁹ The difference now is that the engine of change is not top-down politics but bottom-up practice. The transformations identified here have been led, first, by the profession, as changes in the way law is practiced have necessitated a change in the way in which it is taught. Such influences are linked to developments in transportation and communication and the enmeshing of diverse economies embraced by the loose term "globalisation". A second influence has been the more mobile student population that law schools confront, with immigrants, expatriates, and exchange students making up ever larger proportions of our classes.¹⁰ Thirdly, there has also been an intellectual shift, as those of us studying the law realised that there was far more to be gained from comparative analysis and, more recently, that something interesting was happening that transcended traditional jurisdictional analysis.

These influences have seen legal education move away from a purely local approach and through three broad paradigms, which one might term "international", "transnational", and now "global" approaches to legal education.¹¹ The following sections will explore these paradigms in turn by considering what each has meant for practice, pedagogy, and research. A fifth section will consider two possible critiques of the move towards globalisation in legal education-that it is primarily a discourse of the rich, and that "globalisation" often means "Americanisation". The conclusion will sketch out some possible futures.

II. INTERNATIONALISATION

The law school--particularly the American law school as we understand it is in many ways a twentieth century invention. Though Harvard's Christopher Columbus Langdell famously invented the modem common law curriculum in the 1870s,¹² it was only in 1921 that the American Bar Association recommended that admission to practice be linked to completion of a degree programme.¹³ This was distinct from the English tradition, according to which lawyers were educated not in universities but in court¹⁴ A different approach had long existed in civil law jurisdictions where Roman law was taught. Interestingly, courses in Roman law were also offered at universities such as Oxford and Cambridge-though they had little practical application.

* Global Professor and Director of the NewYork University School of Law Singapore Programme; Associate Professor, National University of Singapore Faculty of Law. This is a revised and expanded version of a paper presented at the International Bar Association annual conference held in Singapore in October 2007. Many thanks to Richard J. Goldstone. Tan Cheng Han, and Stanley Yeo for their comments on an earlier version. I have also profited from discussing these issues with, among others, Benedict Kingsbury, Richard Stewart, and Joseph Weiler. Many thanks to Nicolas Lozada for invaluable research assistance.

1. Christopher Columbus Langdell, "The Harvard Law School" (1887) 3 L.Q.R. 123 at 124.

2. Jerome Frank, "Why Not a Clinical Lawyer-School?" (1932) 81 U. Pa. L. Rev. 907 at 912.

3. National Conference of Bar Examiners & the American Bar Association Section of Legal Education & Admission to the Bar, Comprehensive Guide to BarAdmission Requirements 2005 (2005) at 10-13, online: <httpJ/www.abanetorg/kgaled/publications/compguide2005/chart3.pdf>. Note that the requirement to attend law school in most other states is a comparatively recent phenomenon. In 1922, no state required a law degree as a condition of admission to practice and law school was seen by many as an unnecessary delay in a legal career. Alberto Bernabe-Riefkohl, "romp row's Law Schools: Globalization and Legal Education" (1995) 32 San Diego L. Rev. 137.
  
4. See generally Gerald Paul McAlinn, "Reforming the System of Legal Education: A Call for Bold Lead­ership and Self-governance" (2001) 2 Asian-Pac. L & Pol'y J. 15; Setsuo Miyazawa,'"rlte Politics of Judicial Reform in Japan: The Rule of Law at LastT' (2001) 2 Asian-Pac. L. & Pol'y J. 89; Yoshiharu Kawabata, "The Reform of Legal Education and Training in Japan: Problems and Prospects" (2002) 43 S. Tex. L. Rev. 419; Masnt o Kamiya, "Structural and Institutional Arrangements of Legal Education: Japan" (2006) 24 Wis. Int'l L.J. 153.

5. John Hatchard, ed., Directory of Commonwealth Law Schools, 199912000 (London: Cavendish Publish­ing, 1999), at 3; Mary Keyes & Richard Johnstone, "Changing Legal Education: Rhetoric, Reality, and Prospects for the Future" (2004) 26 Sydne% L. Rev. 537.

6. Such a practice is hardly unique to Singapore. See, e.g., Hikmahanto Juwana, "Legal Education Reform in Indonesia" (2006) 1(1) Asian J. Comp. L., A. 8.

7. See, e.g., Ministry of Education (Singapore), Establishment of the Singapore Management University School of Law (5 January 2007), online: Ministry of Education, Singapore <http://www.moe.gov.sg/ press/2007/pr20070l05.htm>.

8. It is beyond the scope of this article to consider in detail the various transformations in education within Europe, through programmes such as Era_cmus and the European Credit Transfer System (ECTS). For a discussion, see Norbert Reich. "Recent Trends in European Legal Educuu ,,i: The Place of the European Law Faculties Association" (2002) 21 Penn St. Int'l L. Rev. 21.

9. Tan Cheng Han, "Change and Yet Continuity-What Next After 50 Years of Legal Education in Singapore?" [20071 Sing. J.L.S. 201 at 220.

10. See, e.g., Lana M. Manitta, "Broken Barriers in Legal Education: How Immigration and Integration Have Shaped the Way We Learn the Law" (1998) 12 Geo. Immign L.J. 361; Carole Silver, "Internationalizing U.S. Legal Education: A Renort on the Education of Transnationat Lawyers" (2006) 14 Cardozo J. Int' l &Comp. L 143.

11. This schema broadly corresponds to that presented in William Alford, "The Globalization of the American Law School" (Address delivered at the American Society of International Law, Washington, DC, 29 March 2007).

12. Howard Schweber, "Langdell, We Hardly Knew Ye" (1999) 17(1) Law and History Review 145.

13. James P. White, "Rethinking the Program of Legal Education: A New Program for the New Millennium" (2000) 36 Tulsa L.J. 397 at 400.

14. Konrad Zweigert & Hein Kotz, Introduction to Comparative Law, 3rd ed. (Oxford: Oxford University Press, 1998).