Global Legal Education and Comparative Visa Regulations

• Author: Luca C. M. Melchionna
• Position: Director of LL.M. and Transnational Programs and Adjunct Professor of Law at St. John's University School of Law
• Pages: 06

Director of LL.M. and Transnational Programs and Adjunct Professor of Law at St. John's University School of Law; Visiting Scholar at the Italian Academy for Advanced Studies, Columbia University. I want to express my gratitude to David Freedberg, Paul Kirgis, and Krista McGowan for their insights, suggestions, and precious comments. As for any comparative study, I need to thank the people who helped me with different sections of this paper and in particular: Dr. Giovanni Favilli; Console Aggiunto of the Italian General Consulate of New York City; Mario Miceli and Massimo Tomassini of the Pessi Law Firm in Rome, Italy; Luis Denuble, Abogados with the law firm of Noetigar & Armando in Buenos Aires, Argentina. I also want to thank John D'Ambrosio, Lauren F. Silver, Valerie Schmidt (for Austria), Elena Lambridis (for Greece), Dawn Maruna, Gillian Taylor, Adriana Hijuelos, and Samikchya Baskota for their invaluable research and review efforts. Mistakes are mine alone. This Article was conceived for the first time in Fall 2006 after a survey conducted among several faculty chairs and directors of study abroad and international programs offered by U.S. law schools. I want to thank them all for their questions, insights and feedback. I also need to thank those who supported the views expressed in this Article. I also need to thank William P. Baresel for his superlative editing work.

During its final editing stage, I have distributed an earlier version of this paper to the French and Italian Consulates in New York City when both these countries, notwithstanding the effectiveness of the Visa Waiver Program ("VWP"), still required U.S. students (and other students nationals of non-VWP countries) to apply for a visa (with a fee) to enter their countries for a short-term study program (less than ninety days). In the midst of finalizing it, France adapted to the interpretation provided in this Article, changing its regulation. Italy triggered its Parliament to comply with this view, but the process is still pending. The only result obtained is that Italy annulled the fee associated with the still existing visa requirement.

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I Introduction

Unum necesse esse ius, cum unum sit imperium ¹

Legal education is not yet global, but it is highly probable that it will reach this status by the end of this century. By 2100, many law schools will be devoted to the training and preparation of global attorneys.

In the past, Roman Law was taught in rhetorical schools. Roman jurists were simply orators and rhetoricians, yet Roman law (and Canon law) influenced both the common law and civil law families. ² The first contemporary-style western law school was initiated by Pepo (or Pepone), Quidam Dominus Pepo cepit aucoritates sua legere in legibus, in Bologna in 1088. ³ According to historians, the revival of Roman law was due to the commercial and social expansion of Europe. ⁴ Afterwards, Lucerna Iuris Page 519 Irnerio founded the Bologna law school in about 1100 A.D. ⁵ A European student willing to become a juris consulti had to travel across Europe, become a student in an alma mater, and learn Latin. ⁶ The confluence of students of different nationalities in few universitates favored the development and establishment of a structured studium iuris. ⁷ Overtime, law schools lost this sense of cross-border training.

Many years after the first law school in Europe, Professor Langdell developed what would become the standard form of legal education at Harvard Law School in the 1870s. ⁸ This program did not have any international component. It wasn't until the 1960s and 1970s that the first waves of international education began to spring up in American education. ⁹Exchange programs in the United States precipitated the arrival of more educated and skilled students and professional workers, who came mainly from Europe. Expansion of international education has continued, and, at the beginning of the new millennium, law schools are ready to become global players.

This Article is divided into two parts. Part I will analyze some features of the globalization process of U.S. legal education. In order to become global, law schools willing to expand overseas need to deal with the regulations of foreign jurisdictions. Part II analyzes the visa and host country regulations of those countries most visited by U.S. students in 2006 and 2007. ¹⁰ In addition, special attention is devoted to the leading destinations for short-term study programs, demonstrating how visa regulation is able to affect the decisions of students whether to relocate and the success of universities planning study programs abroad. Lastly, this Article will assess how the most effective visa regulation-and the related job market-is able to determine whether a country will be able to attract new generations of researchers and how a country's visa regulation could affect the economy and the community at large. Page 520

II Global Legal Education

At the beginning of the new millennium, U.S. law schools are ready to expand globally and influence the way in which law is taught internationally. ¹¹ Approximately two centuries after their establishment, U.S. law schools are today facing the challenge of using the methodology of their legal education to educate international students overseas and export the main features of American law.

There is a close similarity between the first expansion of Roman law and post-Roman legal education across Europe around the beginning of the 10th Century, and the current spreading influence of U.S. legal education across the globe begun during the 20th Century. Yet, legal education today can benefit from the new technology which has shortened the distances for gathering and diffusing legal information. ¹²

Contemporary western law has been heavily influenced by Roman law, Canon law, feudal law, lex mercatoria, as well as several combinations of other customary and tribal traditions. ¹³ Civil and common law systems share the same Roman roots. ¹⁴ Indeed, U.S. law today certainly influences the transnational legal order. The establishment of any law school is evidence that the legal teaching and a pedagogic methodology of teaching the law has been established. ¹⁵ There is not only a corpus iuris-namely, an object to study, explore, research, learn, master and finally teach-but also a formation of a pedagogic methodology employed to spread this corpus.

Legal education evolved from the training of orators in Rome, to the training of social scientists in the current time. This training eventually evolved into the education of king's counselors and attorneys trained in philosophy and literature with the aim of eliminating apprenticeships and Page 521 creating a pseudo holy, self-governed entity that is isolated from lay society. ¹⁶All Roman citizens were jurists and the Forum was the place where jurists gave legal advice. No fee was involved, nor was there a need to create "a legal profession" separate from other professions because jurists dominated the Roman culture. ¹⁷ In general, all Romans were educated legislators, politicians, military strategists, writers, and policymakers. ¹⁸ The quality of Roman legislation left a legacy for Western legal cultures. Only Roman orators were able to reach the climax of the then dominant legal profession when they publicly accused or defended other famous Roman citizens. ¹⁹

In Middle Age Europe, jurists worked at the service of kings, emperors...