Getting real about globalization and legal education: potential and perspectives for the U.S.

• Author: Silver, Carole
• Position: Symposium on Legal Education

TABLE OF CONTENTS INTRODUCTION I. DOES GLOBALIZATION MATTER FOR LEGAL EDUCATION? II. CHALLENGES TO EDUCATING FOR GLOBALIZATION III. THE LAW SCHOOL CONTEXT FOR INTERACTION IV. DESIGNING INTERACTION V. COMPETING TO BE GLOBAL CONCLUSION INTRODUCTION

Globalization's influence permeates the economy, the state, and civil society, and is felt no less in law than in other fields. (1) For future lawyers, this influence is as significant as technological competence. Just as e-mail, texting, Facebook, and tweets are part of the lexicon and skill-set for the current generation of law graduates, and have remarkably changed patterns of work over the last twenty-five years, (2) so will tomorrow's lawyers be required to understand how to work in a globally diverse environment--whether based on relationships with clients, business executives, jurors, regulators, or other lawyers--as well as in contexts shaped by globalization.

For quite some time, U.S. law schools have acknowledged globalization while attempting to control its impact. (3) Their approaches to addressing globalization have focused on creating additional courses and co-curricular activities such as journals and moot court opportunities on topics that deal with foreign, international, or transnational law. (4) While these additions certainly help raise consciousness and deepen an understanding of legal differences among jurisdictions, they are analogous to learning about the Internet from reading about it rather than from using it. Teaching about globalization, rather than experiencing its challenges directly, allows schools to control the influence exerted by global forces on their existing approaches and activities. At the same time, globalization has become another weapon in the competitive battles law schools undertake to buttress their reputations for purposes of attracting applicants, donors, faculty, and prospective employers of their graduates. (5)

Today's students must learn to work in a global environment (6) as well as learn about relevant law. (7) This is crucial for domestic students, (8) including those who may not anticipate a practice typically associated with global clients, as well as for international students whose presence in U.S. law schools itself is recognition of the importance of globally relevant professional capital and expertise. (9) As one in-house counsel explained, "You can always learn technical details and applicable law but being able to work successfully with people from different countries, different cultures, with different world views, requires a skill set that is more people oriented than substantive oriented." (10) This contemplates an alternative focus from that typical of legal education. While a traditional approach might focus on variation among legal systems and substantive law--important topics in themselves--learning to work in an environment that is defined by a plurality of professional and business cultures and languages, the roles lawyers assume in society, and the ambiguity surrounding these factors, involves multi-dimensional learning. (11) Put another way, intercultural competency can be understood as involving three elements: (12) cognitive, which "refers to possessing knowledge about cultural norms, values, behaviors, and issues"; affective, which "relates to the flexibility to adapt to new situations and open-mindedness to encounter new values"; and behavioral, which includes "resourcefulness, problem-solving skills, and culturally appropriate people skills." (13) These factors are reflected in the challenges posed by globalization to lawyers' responsibilities and roles.

Lawyers must be adept at developing working relationships with colleagues and clients; generally, the lawyer-to-lawyer relationship is eased by the shared commonality of legal education in the U.S., supported by the relatively standard approach and curriculum. This is missing in relationships with lawyers from other countries. (14) At the same time, relationships with clients--particularly those from other cultures and/or countries--require sensitivity to ambiguity resulting from language and cultural differences; awareness of power and role issues including who has expertise and what sort of expertise is required to solve problems; diversity in legal systems and the role of law; and, in some instances, awareness of avenues for avoiding the law's application. (15) These goals are not unique to legal education: the U.S. Department of Education, among others, has described quite similar goals for high school and college graduates. (16)

While distinctions among legal systems and in substantive law can be learned from reading and more traditional approaches to cognitive learning, in order to acquire the sensitivity necessary to function with expertise in a global environment, experiential learning activities may take precedence. "intercultural competence is the personal ability needed to communicate and work efficiently in intercultural every-day and business situations with members of different cultural groups or in a foreign cultural environment." (17) According to Darla Deardorff, Executive Director of the Association of International Education Administrators, "Nearly all definitions of intercultural competence include more than knowledge of other cultures, since knowledge alone is not enough to constitute intercultural competence. Intercultural competence also involves the development of one's skills and attitudes in successfully interacting with persons of diverse backgrounds." (18) Experience is important for developing sensitivity and awareness of differences, and experience in one jurisdiction that offers a deep understanding of these issues provides an important learning opportunity. At the same time, exposure to a single jurisdiction is not necessarily sufficient. (19) Instead, broad exposure to the variations characteristic of other jurisdictions, legal systems, and professional norms and roles is required.

How, then, can U.S. law schools facilitate this learning and offer a sufficiently international environment to provide opportunities for each student? While an overseas immersion experience is a popular option, it cannot reach all domestic law students because of cost concerns, if not for other reasons. But many U.S. law schools have a treasure trove of these lessons already available to them: their own students whose backgrounds and experiences are deeply rooted in another country and culture (20). Tuning into these experts will enable U.S. law schools to provide opportunities for all of their existing law students to learn to work in a global environment.

But it will take some reorientation for U.S. law schools to capitalize on these opportunities. Their challenge comes both from the substantive difficulty of choreographing meaningful interaction as well as from the need to reframe their message to domestic students about the importance of acquiring globally relevant skills. Thus far, schools generally have protected their JD students from the difficulties and complexities that result from a globally integrated student body by refusing to require meaningful interaction between JD students, who typically are domestic students, and international graduate students, who typically enroll in non-JD degree programs. (21) This approach has been pursued through no malice on the part of the law schools, and it is consistent with the accrediting regulations and the incentives framed by ranking considerations. But it risks leaving domestic students without the preparation they will need to compete effectively in an increasingly borderless profession, while these very law schools serve as training grounds for international law students who will become mighty competitors to U.S. domestic students in their future careers.

The Article proceeds as follows: Part I considers the significance of globalization for legal education, drawing on research exploring its influence on legal practice as well as on higher education. While law schools share a relationship to globalization with higher education generally, they may have a heightened responsibility as a result of the role of globalization in commerce and finance, among other factors, and the increasing role of internationally linked problems that lawyers may experience regardless of their practice area or setting. Acknowledging this importance, however, does not necessarily lead to effective preparation of students. Interaction between international and domestic students provides an opportunity to help students acquire intercultural skills. (22) Nevertheless, despite increasing numbers of international students studying in U.S. colleges, universities, and law schools, their presence does not necessarily transform these institutions into global learning environments. Part II considers possible settings and opportunities for learning to work in a global environment. For the vast majority of students whose learning must occur in their home country, the presence of international students on their campus offers the potential for creating a global learning environment. Meaningful interaction between international and domestic students does not follow automatically from presence, however. Research on intergroup contact theory provides a framework for considering the barriers to interaction in the context of higher education. In Part III, the focus is on the law school environment. Using data from the Law School Survey of Student Engagement, it is possible to explore the quality and quantity of interaction between students in JD programs--generally U.S. nationals--and international graduate students. Generally, the story is one of lost opportunity. In order to address this void, schools must design interaction rather than leave it to chance. As explored in Part IV, the conditions for meaningful interaction present particular challenges for law schools. At the same time, they offer...