Sabina Schiller, a New Global Legal Order, With or Without America: the Case for Accrediting Foreign Law Schools

• Citation: Vol. 26 No. 1
• Publication year: 2010
• topic: Business of Law

A NEW GLOBAL LEGAL ORDER, WITH OR WITHOUT AMERICA: THE CASE FOR ACCREDITING FOREIGN LAW SCHOOLS

[Franklin Delano] Roosevelt was the one who had the vision to change our policy from isolationism to world leadership. That was a terrific revolution. Our country’s never been the same since.

—W. Averell Harriman1

INTRODUCTION

What David Wilkins has to say might scare the bejesus out of you.2 In a speech to the American Bar Association’s (“ABA’s”) House of Delegates at the 2010 Annual Meeting, the Harvard law professor, speaking animatedly in an appropriately enthusiastic suit, admits precisely as much immediately before divulging to the crowded room that the American legal profession is

currently undergoing substantial upheaval.3 The times are tumultuous, Wilkins

intones.4 Our current but uncertain existence could ultimately reveal itself as amounting to an epic paradigm shift; alternatively, the current turmoil may just be a temporary blip, and the world may soon return to business as usual.5 But something big is definitely happening—and it’s happening right now.

Dramatic intimations aside, few would deny Wilkins’s assertion that globalization is occurring at a rapid pace and cannot be contained.6 That our world is quickly shrinking is familiar to everyone, but the fact that America’s legal future is so inextricably intertwined with this rapid global integration is

less frequently discussed. In short, America is speedily falling from its self- anointed place high atop the world economy; the legal world no longer revolves around the United States.7 The increasing flow of people and ideas across borders has already greatly altered the legal profession (and will

1. W. Averell Harriman, in STUDS TERKEL, “THE GOOD WAR” 330 (1984).

2. David Wilkins, Dir., Program on the Legal Profession, Harvard Law School, Opening Address at the ABA Annual Meeting 2010: Globalization and Technology Having Dramatic Impact on the Legal Profession (Aug. 9, 2009), http://www.abanow.org/2010/08/globalization-and-technology-having-dramatic-impact-on- the-legal-profession.

3. Id.

4. Id.

5. Id.

6. See generally THOMAS L. FRIEDMAN, THE WORLD IS FLAT (2005).

7. Wilkins, supra note 2.

   continue to do so) as law firms, driven by market demands, grow progressively larger and more diversified, with offices worldwide.8

   
   

   The uncertainties inherent in this indeterminate new reality may appear quite intimidating, especially to American attorneys. An expectation of major change is always somewhat foreboding, particularly for an established profession that has customarily enjoyed global preeminence. As we grapple with the unknown, expand into foreign countries, and contemplate the integration of new, seemingly incomprehensible technologies, Wilkins argues

   that adjustments must be made.9 The likelihood that the United States will take

   a backseat in this future legal world might even scare the bejesus out of some people—but David Wilkins has not yet gotten to the scary part.

   
   

   Toward the end of his speech, in a casual aside that can most nearly be described as a throwaway remark, the professor nonchalantly mentions a lecture he recently gave in Shenzhen, China, at a school called Peking University.10 The Chinese law school, he explains, has a three-year program of legal education, where classes are taught entirely in English.11 And this school is going to seek ABA accreditation.12 These students could then take the bar exam in most states. Wilkins pauses. The crowd appears indifferent; the man behind him unceremoniously adjusts his tie.13 Perhaps dismayed, or in an attempt to revive the delegates’ waning attention, Wilkins quickly moves on to an apparently more invigorating topic: the potential of opening legal offices next to grocery store produce aisles in the United Kingdom.14

   
   

   In this manner, with an air of disinterest, some entirely ignore the impending new reality. Others endeavor to curb its inevitable impact, while the most perceptive, like Wilkins, more astutely realize that any effort to restrain globalization’s ultimate influence is an exercise in futility. As Kofi Annan, former Secretary-General of the United Nations, remarked: “[A]rguing against

   globalization is like arguing against the law of gravity.”15 Indeed, the world

   will never return to business as usual. The current climate of change is not

   
   

8. See generally Carole Silver, The Case of the Foreign Lawyer: Internationalizing the U.S. Legal Profession, 25 FORDHAM INT’L L.J. 1039 (2002).

9. Wilkins, supra note 2.

10. Id.

11. Id.

12. Id.

13. Id.

14. Id.

15. Barbara Crossette, Globalization Tops 3-Day U.N. Agenda for World Leaders, N.Y. TIMES, Sept. 3, 2000, at A1.

merely a blip—it is, as Wilkins offers, an epic paradigm shift. And the United States should, quite simply, get with the times. Facing the continuing integration of individual nations’ legal norms and our own nation’s impending tumble from the top, American attorneys who attempt to cling desperately to their prior position of global preeminence, ignoring reality, will ultimately fail.

Thus, the ABA should take the lead and extend accreditation to those foreign institutions capable of meeting current standards. Ultimately, as global borders grow increasingly porous, foreign attorneys will prove viable competition for American legal jobs; therefore, rather than denying this reality, the ABA should monitor it. Accrediting foreign institutions will provide the ABA a means of ensuring that superior education standards are met—and that qualified foreign attorneys practice in the United States and in American law firms abroad. This quality assurance that necessarily accompanies ABA accreditation will provide guidance to state supreme courts, which then can simply allow all graduates of accredited law schools to sit for their state bars. Extending ABA accreditation will simultaneously expand the American legal model: more schools will follow the American education system, spreading the rule of law.

Considering the inevitability of globalization and the corresponding benefits of accrediting foreign law schools, an additional advantage remains: the process will also be simple. Foreign institutions capable of meeting current standards will receive accreditation. ABA standards are stringent; few schools will meet them. However, some schools are capable. Through an assessment of Peking University School of Transnational Law, this Comment suggests that some schools, including the former, can meet current ABA standards—and should receive accreditation.

Part I of this Comment discusses increasing globalization and its impact on legal services and legal education, as well as the ABA’s historic role in standardizing American legal practice and ensuring that law schools maintain certain standards necessary to graduate capable attorneys. Part II.A addresses the significant advantages of accrediting qualified foreign law schools. Part

II.B provides a brief overview of the current ABA Standards and Rules (“Standards and Rules”), and Part II.C explains that foreign institutions could theoretically meet the current Standards (“Standards”), if the ABA simply clarified the existing preface. Part II.D demonstrates that Peking University School of Transnational Law is today capable of meeting all ABA Standards and should be accredited. Even so, Part II.E suggests that further refinement is

desirable: substantive revision of the Standards and Rules is unnecessary, but the ABA should compose an appendix that specifically invites foreign institutions to apply and guides those schools in the application process. Part

1. recognizes our foreign policy interests and recommends against accrediting schools in some countries, particularly those with oppressive regimes, and further suggests that the ABA cooperate closely with the executive branch to avoid potential foreign policy difficulties. Part II.G addresses concerns regarding a sudden influx of attorneys and potential outsourcing (as well as the combined effects on the American economy). This Part suggests such concerns are valid yet overblown, but also recommends that the ABA continue to provide regulations monitoring outsourcing—and issue accreditation to qualified schools to ensure that qualified attorneys practice within new American firms abroad and within the United States itself.

   
   

   1. BACKGROUND

      
      

      1. Globalization: The Trade in Legal Services and the Exchange in Legal Education

         
         

         The era of hermetically sealed16 nations is extinct. The ongoing technological revolution17 has resulted in simpler, cheaper international travel, instant global communication, and a constant exchange of ideas and commodities. Our world is determinedly growing smaller—and the law is not exempt from globalization’s reach. Legal services are now exchanged regularly at the international level.18 Even the most conservative estimates recognize a “significant” international trade in legal services, which can be more accurately described as massive in scale.19 Further, more American attorneys are venturing into foreign countries, and “[f]oreign nationals are applying for admission to practice in American jurisdictions in record numbers.”20 Accelerating globalization is generating a rapid cross-border trade in legal services and personnel, and this international interchange is also

         
         

         1. A.B.A. SEC. LEGAL EDUC. & ADMISSIONS TO THE BAR, REPORT OF THE SPECIAL COMMITTEE ON

            INTERNATIONAL ISSUES 6–8 (2009), available at http://www.abajournal.com/files/FINAL.pdf [hereinafter REPORT OF THE SPECIAL COMMITTEE ON INTERNATIONAL ISSUES].

         2. See FRIEDMAN, supra note 6.

         3. See Silver, supra note 8, at 1039.

         4. See REPORT OF THE SPECIAL COMMITTEE ON INTERNATIONAL ISSUES, supra note 16, at 6–8.

         5. J. Richard Hurt, Foreign-Trained Lawyers, American Graduate Legal Education and Bar Admissions: Should the LL.M. Satisfy the Educational Requirements To Practice Law?, B. EXAMINER, Nov. 2000, at 35, 35.

            occurring in legal education. This economic, cultural, and professional exchange is as undeniable as it is unstoppable: our world’s borders are growing increasingly porous, and inward-looking...