By Lauren K. Robel

It is an anxious time for U.S. legal education. We are in a period of intense scrutiny, both among ourselves and from our many constituencies. Our inquiry has many objects: educational costs; the nature of changes in the profession; whether a flux in the number of applicants signals the cycles of a receding recession or a “hundred year flood”;1 and the effects of domestic competition among law schools. U.S. legal academics are asking fundamental questions about what constitutes quality and value in a legal education and how access to legal education, and higher education generally, should be financed. Editorials in the nation’s paper of record assert that law schools are in existential crisis;2 books and blogs by noted legal academics question whether the elements we have traditionally associated with the quality of legal education, such as full-time faculty devoted to teaching and scholarship, or scholarship at all, are frills that we can ill afford in a changing legal market or indulgences that add to the cost of legal education in ways that are morally questionable from the perspective of students.3

Strikingly absent from this intense and public set of reflections — indeed, seeming to exist in a disconnected but parallel universe — is the global context in which higher education, including law schools, now operates and the global practice and context in which our students will develop their careers. As we engage with the important questions about how to improve legal education domestically, we should also take seriously the effects of proposed reforms on the international arena, particularly on the attractiveness of a U.S. legal education to students overseas. As we think carefully about the education we are providing to our domestic students, we should think just as deeply about the educational opportunities we are providing to our international students. Those students provide important opportunities for our country, and their participation in our educational programs, coupled with our collaboration with overseas institutions on research and practical experiences for our students, develops global competencies and ties important for the future of the profession. I have previously argued that in important ways, domestic legal practice is global practice.4 How would a broader and more global lens inform the contours of our current conversation about the future shape of U.S. legal education?

The United States has been a first-choice destination for international students interested in studying law.5 There have been at least four reasons for this distinction. First, U.S. law schools, like U.S. higher education more generally, have enjoyed an unmatched international reputation for quality.6. As compared to much of legal education available internationally, U.S. legal education is seen as more practical and as leading to strong problem-solving and reasoning skills. Second, the U.S. and U.K. legal systems have been critical to international economic activity, which coupled with English’s increasing role as a lingua franca, has enticed students to study in both countries. The increasing globalization of the profession, much of it led by the U.S. and U.K., has also played a role. Third, the economic vitality and increased political opening up of countries like China, combined with the historic under-capacity of systems of higher education in the old “developing” world, have given more students both the incentive to study abroad and the means to do so. Indeed, as the quality of overseas undergraduate experiences has increased in some of the world’s largest new economies, the number of students prepared to study law here has also increased. And fourth, the U.S. has historically been more amenable to opening its credentialing system to those from abroad than most countries, permitting students to consider obtaining U.S. bar membership, typically valued as a credential and a signal in the student’s home country, rather than as the gateway to U.S. practice.7 U.S. law schools have seen the benefits of this set of trends, with the number of international students studying law here and the U.S. programs serving them increasing dramatically.

We should not assume that this state of affairs will continue without careful thought on our part about how to ensure that we remain a compelling destination for study. We face numerous challenges in this arena. First, as the American Council on Education notes, “To an unprecedented extent, the world’s nations are coming to share the United States’ historical commitment to higher education and research. Educational quality can now be found around the world.”8 Other countries with rising economies are investing heavily in their systems of higher education, including their law schools. For instance, at a recent presentation, Gao Xiang, Dean at China University of Politics and Law, noted that in 1966, as a result of the Cultural Revolution, China had only two remaining law schools. By 2012, it had 637, with approximately 700,000 students studying law.9 One of those schools is explicitly designed to teach U.S. law to Chinese students in English, and many have designed and adopted a J.D.-similar degree.10 Indeed, many of the economically strongest countries, such as South Korea, have also developed J.D. degrees with the objective of providing domestic capacity for the kind of legal educational experience students have traditionally sought in the U.S. Second, other English-speaking countries, such as Australia and Canada, have developed formal or informal strategic plans for their domestic legal markets that set as explicit goals increasing the number of foreign students, particularly from emerging economic powers, who study in their countries.11 Third, the New York State Bar has changed its requirements in ways that both restrict the curriculum that foreign students can take and still be eligible to sit for the Bar, and that restrict the formats in which U.S. law schools can offer LL.M. degrees.12 These changes reduce the attractiveness of U.S. legal study as well as the range of programmatic experiments in which U.S. law schools can engage. Finally, U.S. law schools have sometimes been less than stellar in assuring the quality of the experience they provide to their foreign students, increasing their enrollment without increasing the support services infrastructure to make the experience optimal, or failing to have plans in place to assure that the students are integrated into the school’s educational programs. And while the cost of our law schools has not yet been a prohibitive barrier to students from the strongest world economies, it has been a barrier to students from other less wealthy countries with whom we should be engaging. Moreover, the cost of a U.S. education provides an opportunity for other countries interested in competing based on price.

The global engagement these students and international partners and colleagues make possible is important. It is important for our own students, who need to develop global practice networks and cross-cultural competencies. It is important for the domestic legal market, which needs the global legal talent and competencies we should be developing among all of our students. It is important for the development of knowledge about legal systems with which we are increasingly entwined and on which we are interdependent. And it is important for our long-term national interest, which requires that the lawyers, government officials, and business people who graduate from our schools from around the world come to know us, and us to know them.

Our creative and critical engagement with the world should include leadership on how to facilitate the multiple credentialing of students, both domestic and international; true partnerships with overseas institutions; and collaborations with each other to reduce the costs of finding suitable partners and expanding the range of those partnerships beyond the usual suspects.

This year, the Association has continued its exploration of the needs of our members in a globalized world. We have been exploring new relationships with legal education associations around the world with the goal of expanding the opportunities for our members to connect efficiently with overseas institutions seeking partnerships through our annual meeting. That meeting will also feature a full-day workshop assessing our progress in globalizing our programs.

As we work together to analyze the difficult and important questions that surround U.S. law schools, I believe we can agree on much. While we may offer different diagnoses and prescriptions, we share a love of legal education and a belief in its worthiness and importance. We agree that access to high-quality legal education for all qualified students regardless of their incomes is a critical aspiration for a democratic society founded on the rule of law. And I hope we can agree that legal education, and the future for which we prepare our students, will be better if we continue to attract, engage with, and welcome the world.

 

Endnotes

  1. Chelsea Phipps, Law Schools Bargain With Students To Fill Seats, Wall Street Journal Blog, July 30, 2012 (quoting William Henderson).
  2. Lincoln Caplan, An Existential Crisis for Law Schools, New York Times, July 15, 2012.
  3. Brian Tamanaha, Failing Law Schools (2012).
  4. Lauren Robel, Association of American Law Schools Presidential Address 2012, AALSNews, February 2012, No. 2012-1, 7-9.
  5. For instance, I noted in my last column that the LL.M. population, primarily international, grew by 65% in the decade from 1999-2009 (See id. at 7). The American Council on Education’s recent report, Strength through Global Leadership and Engagement: U.S. Higher Education in the 21st Century (ACE Center for Internationalization and Global Engagement, Nov. 2011) presents numerous metrics documenting U.S. higher education’s preeminence.
  6. See National Research Council, Research Universities and the Future of America 3 (2012) (documenting U.S. dominance in quality of its universities).
  7. Carole Silver, The Variable Value of U.S. Legal Education in the Global Legal Services Market, 24 Geo. J. Legal Ethics 1 (2011); Carole Silver, States Side Story: Career Paths of International LL.M. Students, 80 Fordham L. Rev. 2383 (2012).
  8. Program, American Council on Education, Strength through Global Leadership and Engagement: U.S. Higher Education in the 21st Century, Ctr. for Internationalization & Global Engagement, 14 (2011); see also id. at 12 (noting falling U.S. market share for international students).
  9. Presentation by Goa Xiang, Sino-Australian Law Deans Conference, July 1, 2012, Sydney, Australia.
  10. See Matthew S. Erie, Legal Education Reform in China Through U.S.-Inspired Transplants, 59 J. Leg. Ed. 60 (2009) (describing development of J.M. degree); Anne M. Burr, Law And Harmony: An In-Depth Look at China’s First American-Style Law School, 28 UCLA Pac.Basin L.J. 25 (2010) (article by faculty member at Peking University School of Transnational Law, describing the school’s creation).
  11. See, e.g., International Legal Services Advisory Council, Australian Legal Services: Strategic Global Engagement, at http://www.ilsac.gov.au/Publications/Documents/Australian-Legal-Services-Strategic-Global-Engagement.pdf.
  12. See Rules N.Y. Ct. App. for Admin. of Lawyers & Counselors at Law § 520.6(b)(3) (describing durational and substantive requirements for admission of foreign lawyers through U.S. LL.M.