2 nd Annual Americas Law Deans Forum. Law School Leadership in the 21 st Century: Meeting the Global Challenge

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1 2 nd Annual Americas Law Deans Forum Law School Leadership in the 21 st Century: Meeting the Global Challenge Pontifica Universidad Católica de Chile Santiago, Chile June 27th and 28th,

2 Table of Contents Agenda 3 Participants (pictures & biographies) 6 Forum Outline Law Deans Survey 17 The Economics of a Legal Education: A Concern of Colleagues 20 ABA Report 24 Report of Special Committee on Foreign Law Schools Accreditation 32 African Law Deans Concept Note European Deans Forum Minutes Asia-Pacific Deans Forum Minutes 64 2

3 2 nd Annual Americas Law Deans Forum Law School Leadership in the 21 st Century: Meeting the Global Challenge Agenda 3

4 Wednesday 26 th June Agenda 2013 Americas Regional Deans Forum Law School Leadership in the 21st Century: Meeting the Global Challenge Pontifica Universidad Católica de Chile Santiago, Chile June 27th and 28th, 2013 Arrivals Delegates should take a taxi or public transportation from the airport to the hotel. Maximum cost is US$50 and it should be a minutes ride. 19:00 Welcome Reception Hotel Plaza San Francisco, Alameda 816, Santiago, Chile Thursday 27 th June 8:00 Breakfast at Hotel 8:45 Walk to University 9:00 9:15 Welcome Roberto Guerrero, Dean, Pontificia Universidad Católica de Chile Francis SL Wang, President, IALS 9:15 10:00 Session 1: Who are we? Who do we teach? For What? 10:00 11:00 Discussions 11:00-11:15 Break Moderator - Francis S.L. Wang, President, IALS 11:15 12:00 Session 2: Current Issues Facing Latin America 12:00 13:00 Lunch 13:00 14:00 Discussions Moderator Roberto Guerrero, Dean, Pontificia Universidad Católica 14:00-14:45 Session 3: Current Issues Facing the United States 14:45 15:00 Break 15:00-16:00 Discussions Moderator - Mary Kay Kane, Chancellor and Dean Emeritus, University of California, Hastings College of the Law Moderator Barbara Holden-Smith, Vice Dean, Cornell University Law School; General Secretary and Treasurer, IALS 16:00 16:30 Wrap-up Discussions 19:00 Dinner: Nolita a few blocks from the University 4

5 Friday 28 th June 8:00 Breakfast at Hotel 8:45 Walk to University 9:00 9:45 Session 4: Statement of Outcomes of a Legal Education 9:45-10:45 Discussions 10:45 11:00 Break 11:00 12:00 Session 5: Standards Project 12:00 13:00 Lunch 13:00 14:00 Discussions 14:00 14:15 Break 14:15 15:30 Wrap-up Discussions 19:00 Dinner: Bristol Restaurant at Hotel Plaza San Francisco Saturday 29 th June 10:00 Cultural guided tour (Optional) Close walking distance from Hotel and University Tour Guide: Cristobal Perez Barra, Pontifica Universidad Católica Chile Lastarria-Bellas Artes neighbourhood, Museo de Bellas Artes, the Parque Forestal, the Cerro Santa Lucía, the Teatro Municipal, and many nice restaurants and cafés. 5

6 2 nd Annual Americas Law Deans Forum Law School Leadership in the 21 st Century: Meeting the Global Challenge Participants 6

7 Participant Biographies Milton Estuardo Argueta Pinto Dean Universidad Francisco Marroquín Guatemala Milton Estuardo Argueta Pinto, Guatemalan, Dean of the Law School, Francisco Marroquín University Guatemala, Lawyer and Notary Public, Francisco Marroquín University Guatemala, Degree of specialization in Commercial Law, Salamanca University Spain, Master s Degree in Financial and Business Law, Pontificia Bolivariana University Colombia, Ph.D. in Law, Francisco Marroquín University Guatemala, Postgraduate studies at INCAE and at Escuela de Negocios, Francisco Marroquín, University Guatemala, Member of the Board of Trustees, Francisco Marroquín University Guatemala, Professor of Corporate Law and Negotiable Instruments courses in the Law School, Francisco Marroquín University Guatemala, Professional practice: Argueta & Alvarado Law Firm, Arbitrator at the Arbitration and Conciliation Center (CENAC by its Spanish initials) of Guatemala s Chamber of Commerce and of the Dispute Resolution Center of Guatemala s Chamber of Industry (CRECIG by its Spanish initials) Arbitrator for the state of Guatemala for the resolution of the free trade agreement, (TLC by its Spanish initials) conflicts, investments chapter, Member of the Friends of the Country Association (the first civil association of Guatemala, founded in 1,796) Silvia Gloria de Vivio Dean Universidad del Norte Colombia Silvia Margarita Gloria de Vivo is the Dean of the Division of Legal Sciences and Political Science at the University of the North (Barranquilla, Colombia) since Lawyer of the same institution, a Master's degree in Economic Law, specialist in Company Law and negotiation and conflict management. Under her management, the programs in this Division have had significant gains among which emphasizes the growth of the plant of professors and the academic and professional qualifications of the same, the quality of its students and graduates, and strengthen the areas of intellectual production on the part of the academics who are part of this Division. 7

8 Roberto Guerrero Dean Pontificia Universidad Católica Chile Roberto Guerrero V. graduated from Pontificia Universidad Católica de Chile School of Law in After a few years of private practice, he obtained a scholarship from the Inter-American Development Bank to study a master law degree (LL.M.) at New York University, where he graduated in After graduation, he practiced for a year in the New York offices of Simpson Thacher & Bartlett and then returned to Chile as an associate of Guerrero, Olivos, Novoa y Errázuriz, a leading Chilean law firm, becoming a partner in 2001, and as a part-time professor at Pontificia Universidad Católica de Chile School of Law, where he currently teaches corporate and business law. From 1997 to 2000, he was the director of the Master in Corporate Law. Between 2003 and 2010, he was the Vice-dean and in 2010 he was elected as Dean for a period of 4 years. Between 2008 and 2010, he was appointed as a member of the Board of the Council for Transparency (the Chilean Access for Information Authority). He is currently a member of the Board of the National Television Councul (a constitutional autonomous entity that supervises the television industry and assigns open television concessions). Roberto Guerrero has been recognized as a leading individual among Chilean lawyers in the fields of Banking & Finance and Corporate & M&A, by the U.K. guide Chambers in the years 2001 to He was also mentioned as a leading Chilean lawyer under 40 years old by the survey 20 under 40 of the U.K. publication Latin Lawyer in In January, 2012, he was designated by the prestigious American publication Best Lawyer as Lawyer of the Year in Chile in the fields of banking & Finance. Roberto Guerrero is a fellow of Eisenhower Fellowships Multi Nation Exchange Program (2007) and is a frequent speaker at international conferences. Barbara Holden-Smith General Secretary and Treasurer International Association of Law Schools Vice Dean Cornell University Law School United States Barbara Holden-Smith, recognized for her groundbreaking work in Supreme Court history and practice, currently teaches conflicts, federal courts, civil procedure, advanced civil procedure, and African Americans and the Supreme Court. After her graduation from the University of Chicago Law School, she spent a year in an Illinois law firm and then entered a clerkship with the Hon. Ann C. Williams of the U.S. District Court for the Northern District of Illinois. Professor Holden-Smith then joined the Washington, D.C. law firm of Arnold & Porter, where she worked for three years in litigation, antitrust, and food and drug law, before she joined the Cornell Law School Faculty in Her scholarship has addressed the legal response to lynching and the fugitive-slave cases. Her scholarly interests include global access to justice, and legal and political responses to historical injustices. 8

9 Mary Kay Kane Dean Emeritus University of California Hastings College of Law United States Mary Kay Kane is the Chancellor and Dean Emeritus and the John F. Digardi Distinguished Professor of Law Emeritus at the University of California, Hastings College of the Law, in San Francisco. She is a graduate of the University of Michigan, having earned both her B.A. and J.D. degrees from that institution. Dean Kane has written several articles and books in her major field, which is federal civil procedure and complex litigation. She also has been very active within the American Bar Association Section on Legal Education and Admissions to the Bar (ABA), where she served on the Council from ; the American Law Institute, where she currently serves on the governing Council; and the Association of American Law Schools (AALS), where she was the 2001 President. Dean Kane also served as the Chair of the Joint Working Group on Legal Education and Bar Admissions formed by the National Conference of Bar Examiners, the AALS, and the ABA, from , and as a member of the Standing Committee on Practice and procedure of the U.S. Judicial Conference from Robert H. Klonoff Dean Lewis and Clark Law School United States Bob Klonoff has served as the dean of the Lewis and Clark Law School since His legal experience includes clerking for Chief Judge John R. Brown of the United States Court of Appeals for the Fifth Circuit, working in the U.S. Department of Justice (as an Assistant United States Attorney and as an Assistant to the Solicitor General of the United States), and serving as a partner at the international law firm of Jones Day. He is the author or co-author of several books and numerous scholarly articles on class actions, appellate litigation, and trial advocacy, including the first casebook on class actions (originally published in 1998 and now in its third edition). As a private attorney, Dean Klonoff has handled more than 100 class actions. He has also served as an expert witness in numerous class actions, including the recent British Petroleum oil spill class settlement. He has argued eight cases before the United States Supreme Court, as well as numerous cases in other appellate courts throughout the country. He has taught law at Georgetown, the University of San Diego, and the University of Missouri-Kansas City. Dean Klonoff is a member of the American Law Institute and the American Bar Foundation, and a Fellow in the American Academy of Appellate Lawyers. He served as Associate Reporter for the American Law Institute s project, Principles of the Law of Aggregate Litigation. In September 2011, Chief Justice John G. Roberts, Jr., appointed Dean Kionoff to serve a three-year term as the academic member of the U.S. Judicial Conference Advisory Committee on Civil Rules. Dean Klonoff received his undergraduate degree from U.C. Berkeley and his J.D. degree from Yale Law School. 9

10 Luis Sergio Parraguez Ruiz Dean Universidad San Francsico de Quito Ecuador Estudios primarios y secundarios: Instituto Salesiano de Valdivia, Chile. Licenciado en Ciencias Jurídicas y Sociales por la Facultad de Ciencias Jurídicas y Sociales de la Universidad de Chile, julio de Abogado por la Exma. Corte Suprema de Justicia, Santiago de Chile, julio de Curso de Postgrado en Derecho Civil, Universidad de Salamanca, enero del Doctor por la Universidad de Salamanca (Derecho privado). Actividad académica: : Profesor ayudante de la cátedra de Instituciones de Derecho, del profesor Arturo Olavarría, en la Escuela de Ciencias Políticas y Administrativas de la U. de Chile a 1980: Profesor Investigador Principal del Instituto Superior de Ciencias Jurídicas de la U. Central del Ecuador a 1980 y 1995: Profesor Principal de Derecho Civil de la Universidad Central del Ecuador : Profesor Principal de Derecho Civil de la Pontificia Universidad Católica del Ecuador (PUCE) : Profesor de postgrado de las universidades Andina Simón Bolívar y Nacional de Loja a la fecha: Profesor titular de Derecho Civil de la Universidad San Francisco de Quito Decano de la Facultad de Jurisprudencia de la Universidad San Francisco de Quito. Ileana Porras Associate Dean University of Miami School of Law United States Ileana Porras, Associate Dean of Academic Affairs, at the University of Miami School of Law, holds a B.A. Honors from the University of Leeds in English Literature and Philosophy, an M. Phil. in Criminology from Cambridge University and a JD cum laude from Harvard Law School (1989). In she was awarded a Ford Fellowship in International Law at Harvard Law School, during which time she also served as Costa Rican Delegate to UNCED In she served as a Senior Fellow at Harvard Law School and taught international environmental law. 10

11 Juan Enrique Vargas Viancos Dean Universidad Diego Portales Chile Lawyer degree, University of Chile 1986, Magister in Management and Public Policies, University of Chile Law School Dean at the Diego Portales University (2008). Expert for the High Public Direction of the Civil Service in Chile Member of the Executive Committee of the National Center on Arbitrage in Chile. Awarded special recognition by the Universidad Tecnológica of Monterrey, México, due to academic performance and contribution to the Judicial Reform in the Americas (2008). Executive Director of the Justice Studies Center of the Americas, International Organization created by the OAS to promote the Judicial Reform in the Region ( ). Director of the Law Research Center, ( ), Professor of Criminal Procedure and Litigation, and Researcher (since 1997) at the Law School. of the Diego Portales University. Francis S.L. Wang President International Association of Law Schools Dean Emeritus Kenneth Wang School of Law China Francis SL Wang is the Executive Director of The Wang Family Foundation. He is one of the founding Governors and presently serves as the President of the International Association of Law Schools. He is one of founders and a member of the Advisory Council to the Human Rights Resource Center, a university based research institute headquartered in Jakarta, Indonesia with supporting centers at universities throughout the ASEAN countries. He is a member of the Superintendent s Advisory Board of the Napa Valley Unified School District, as well as a member on the Board of Advisors of the C.V. Starr East Asia Library at the University of California at Berkeley. He co-chairs the Chinese Jurisprudence Commission. Professor Wang is the Dean Emeritus and Professor of Law at the Kenneth Wang School of Law, Soochow University, Suzhou, China. He serves as the Honorary Chair of the Board of Regents of Soochow University. He is a Visiting Professor of Law and Distinguished Scholar in Residence at the University of Pacific McGeorge School of Law. He is the co-founder and the Senior Counsel of the War Crimes Studies Center at U.C. Berkeley. He is a Fellow of the Nigerian Institute of Advanced Legal Studies. 11

12 2 nd Annual Americas Law Deans Forum Law School Leadership in the 21 st Century: Meeting the Global Challenge Forum Outline 12

13 Forum Outline Law School Leadership in the 21 st Century Local Perspective International Perspective Issues brought on by globalization How has globalization affected our responses to the following questions? Who are we? Who do we teach? For What? What does it mean to have a legal education? Is there a commonality for all law students as to having a basic legal education? Knowledge Skills Values What are the core competencies which every law graduate should have? These are questions which need to be addressed before we set guidelines or standards Specific Issues raised and to be considered in study Faculty Tenure Retention Evaluating Scholarship Collaborative Research and Scholarship Students Selection Where do they go? And is the education preparing them? Student life issues on campus Institutional Relationship of law school or department with the University Internal governance External governance Professional Association Government Other institutions private accrediting bodies, etc. Alumni Employers Community at large Legal Education Community Locally Nationally Internationally The Elites and the rest of us Resources Preservation of the status quo 13

14 Statement of Outcomes of a Legal Education 1. Knowledge A law graduate should know and understand: i) the core areas of substantive and procedural law; ii) iii) how laws are created, implemented, and changed; and the contextual underpinnings of the operation of law (both domestically and globally). 2. Skills A law graduate should be proficient in: i) general academic skills, including critical analysis and reasoning; ii) iii) iv) reading and analyzing legal materials; planning, strategizing and complying with legal requirements; and effectively communicating within a legal context [orally and] in writing. 3. Values A law graduate should understand and act in accordance with: i) the professional ethics and values of the jurisdiction; and ii) the fundamental principles of justice and the rule of law. 14

15 Outline of Inputs of a Legal Education Legal Education Database Phase I Establish Statement of Outcomes of a Legal Education Define template for database of Legal Education Overall Country Information Number of Law Schools o Accredited o Unaccredited Public or Private Number of Students Number of Faculty o Full time / part time Degrees awarded Subject Areas for a Database of Legal Education by Jurisdiction Regulation, Accreditation and Oversight o Licensing of Attorneys Exam Apprenticeship Law Degree Requirements for: Holding oneself out to give legal advice for compensation Representing clients before o Court o Administrative Agencies o Accreditation Process Government Private Association Professional Association o Oversight Authority Relationship with University Relationship with Government Relationship with Professional Association Relationship with Accrediting Body or Bodies o Other Stakeholders Alumni Employers Legal Education Profession (Domestic and International) Community (Local, National and Global) Students o Selection policy and standards o Evaluations o Degree requirements o Student Life o Student Employment Faculty o Faculty qualifications 15

16 o Terms of Employment Compensation Duration Promotion criteria Teaching flexibility o Evaluation of Faculty Scholarship Teaching o Retention Curriculum o Instruction in Core Subjects o Instruction in Core Skills o Instruction in Ethics and core professional values o Teaching Methodologies Infrastructure o o Facilities physical and technological Teaching environment Access to research materials Administrative and support staff Phase II Data Collection Analysis of Data Defining Similarities Differences Different contrasts Undergraduate vs. Graduate Academic vs. Professional Developed vs. Developing Common vs. Civil Geographical differences Cultural differences Phase III Standards Development 16

17 2 nd Annual Americas Law Deans Forum Law School Leadership in the 21 st Century: Meeting the Global Challenge 2012 Law Deans Survey 17

18 GOALS DOCTRINAL ISSUES SKILLS TRAINING ETHICAL ISSUES PEDAG OGY 2012 Regional Law Deans Forum Survey Result Summary The IALS held its first round of Regional Law Deans Forums in 2012 from March through August. All member schools were categorized into four regions Americas, African, African, and European. Before the forums, a survey was taken of all the member law school Deans, 62 Deans responded. The aim of the survey was to gather information as to which topics the Deans found to be of importance to discuss amongst their colleagues. EDUCATION There were five categories presented, and sub-topics were rated according to how interested each person was. The following chart shows the sub-topics that garnered most of the Highly Interested votes. In addition to these, there were suggested topics such as Internationalizing legal learning and Multi-centered research output on legal research and its impact on legislative and administrative reforms. EDUCATION TOPICS Active Learning Methods Social Justice/Human Rights Advocacy (Oral and Written) Globalizing the Law School Curriculum Academic Breadth

19 Administrative In coherence with the previous sub-topic of a globalized curriculum, most of the respondents felt that there should be an administrative priority in establishing a global reach, alongside international accreditation. The topics shown on the chart were favored over topics such as student placement, and criteria and selectivity in admissions. Administrative Topics Establishing Global Reach International Accreditation Allocation of Resources Relations with Alumni Academic Freedom Student and Faculty Outcomes There was a general agreement in placing importance on wanting a more formative outcome for students rather than summative. As for faculty, respondents felt that putting out publications and having positive student and peer evaluations were of more importance than tenure. One respondent also suggested that there should be an avenue of accreditation of graduates in other jurisdictions. Student Outcomes Formative Summative Faculty Outcomes Publications Peer Evaluations Student Evaluations Tenure

20 2 nd Annual Americas Law Deans Forum Law School Leadership in the 21 st Century: Meeting the Global Challenge The Economics of a Legal Education: A Concern of Colleagues 20

21 THE ECONOMICS OF LEGAL EDUCATION: A CONCERN OF COLLEAGUES TO THE AMERICAN BAR ASSOCIATION TASK FORCE ON LEGAL EDUCATION MARCH 2013 The recent chorus of complaints about the crisis in legal education has brought new urgency to longstanding concerns. Law schools are operating in a difficult climate, characterized by rising costs, strained endowments, reduced governmental assistance, disaffected students, and declining applications. The undersigned Coalition of Concerned Colleagues seeks to draw attention to the problems confronting legal education, and to identify potential responses. Over the last three decades, the price of a legal education has increased approximately three times faster than the average household income. With the help of the federal student loan fund, some ninety percent of law students borrow to finance their legal education and the average law school debt now exceeds $100,000. Overall, law students in borrowed more than $4 billion to pay for their legal education. Unsurprisingly, debt burdens are unevenly spread and amplify racial and class disadvantages. The price of legal education has risen as the job market for lawyers has declined. More than two out of every five 2011 graduates did not obtain a full-time long-term job requiring a law degree; the median starting salary of the class, among the less than half of graduates for whom a salary was reported, was $60,000. The problematic economics are captured by this fundamental mismatch: a graduate who earns the median salary cannot afford to make the monthly loan payments on the average debt. Large numbers of current law students will be forced to enter Income Based Repayment (IBR), a new federal debt relief program that allows reduced monthly payments, but with significant costs for both debtors and taxpayers. These costs may cause Congress to rethink the provision of easy credit to law students. The price of legal education substantially affects access to the profession. The out-of-pocket cost of obtaining a law degree ranges from $150,000 to $200,000 or more for many law students. This erects a formidable economic barrier to becoming a lawyer and restricts the career choices of those who do enter the bar. Although the federal government and most law schools offer some loan repayment assistance to graduates who take public interest jobs, law school programs are often insufficiently funded and the federal programs do not provide full discharge until after 10 years of public interest employment. Nor do these programs address the fundamental problem of how a lack of jobs, public interest or otherwise, has now made law school a questionable investment. The federal government estimates that, at current graduation rates, the economy will create about one new legal job for every two law school graduates over the next decade. Most knowledgeable observers believe that the situation is unlikely to improve even if the economy fully rebounds. More employers are relying on paralegals, technology and contract attorneys to do work previously performed by recent graduates, and cash-strapped public sector agencies are facing pressure to curtail legal expenditures. Many law schools are themselves in an increasingly difficult financial position. After years of uninterrupted increases in enrollment and tuition, they now face a sharp decline in applicants. As it becomes harder for law schools to fill their classes, all but the wealthiest institutions will face pressure to cut expenses. Yet at the same time, preoccupation with the 21

22 annual ranking of schools by U.S. News and World Reports gives schools a perverse incentive to spend more in areas rewarded by the U.S. News formula. Two examples are expenditures per student and faculty- student ratios, which have risen dramatically in the decades since the rankings went into effect. Schools also have incentives to reduce tuition for students with high median GPA and LSAT scores, even though these applicants are unlikely to have the greatest financial need. This causes students from modest economic backgrounds paying full tuition to, in effect; subsidize the education of their more privileged peers. A school can do better in the rankings if it spends more in ways that could enhance its reputation. The combination of rising costs, declining applicants, and perverse incentives puts the financial survival of some schools in question. Legal education cannot continue on the current trajectory. As members of a profession committed to serving the public good, we must find ways to alter the economics of legal education. Possible changes include reducing the undergraduate education required for admission to three years; awarding the basic professional degree after two years, while leaving the third year as an elective or an internship; providing some training through apprenticeship; reducing expensive accreditation requirements to allow greater diversity among law schools; building on the burgeoning promises of internet-distance education; changing the economic relationship between law schools and universities; altering the influence of current ranking formulas; and modifying the federal student loan program. As legal educators, it is our responsibility to grapple with these issues before our institutions are reshaped in ways beyond our control. The Coalition of Concerned Colleagues: Anthony G. Amsterdam, New York University Rhoda A. Billings, Wake Forest University Paul Campos, University of Colorado Paul Caron, Pepperdine University Paul D. Carrington, Duke University David L. Chambers, University of Michigan Jesse H. Choper, University of California Jim Chen, Michigan State University Philip J. Closius, University of Baltimore Roger C. Cramton, Cornell University (AALS President 1985) Scott Cummings, University of California at Los Angeles Charles E. Daye, University of North Carolina Richard Delgado, Seattle University Walter E. Dellinger, Duke University Norman Dorsen, New York University Frank W. Elliott, Texas Wesleyan University Richard A. Epstein, New York University Samuel Estreicher, New York University Monroe H. Freedman, Hofstra University Lawrence M. Friedman, Stanford University Marc Galanter, University of Wisconsin Julius Getman, University of Texas Stephen Gillers, New York University Mary Ann Glendon, Harvard University Michelle Goodwin, University of Minnesota Robert W. Gordon, Stanford University Robert A. Gorman, University of Pennsylvania (AALS President 1990) Phoebe Haddon, University of Maryland Geoffrey C. Hazard, University of California, Hastings College of Law 22

23 William D. Henderson, Indiana University Helen Hershkoff, New York University Philip Heymann, Harvard University N. William Hines, University of Iowa (AALS President 2004) Mary Kay Kane, University of California Hastings College of Law (AALS President 2001) Herma Hill Kay, University of California (AALS President 1989) Orin Kerr, George Washington University Patricia A. King, Georgetown University Edmund W. Kitch, University of Virginia William A. Klein, University of California at Los Angeles George Lefcoe, University of Southern California Richard A. Matasar, New York University Deborah J. Merritt, The Ohio State University Arthur R. Miller, New York University James E. Moliterno, Washington & Lee University Thomas D. Morgan, George Washington University (AALS President 1991) Alan R. Morrison, George Washington University Robert Nagel, University of Colorado Burt Neuborne, New York University Gene R. Nichol, University of North Carolina Sallyanne Payton, University of Michigan Richard A. Posner, University of Chicago Todd Rakoff, Harvard University Nancy B. Rapoport, University of Nevada Deborah L. Rhode, Stanford University (AALS President 1998) Daniel B. Rodriguez, Northwestern University (AALS President-Elect 2013) Ronald D. Rotunda, University of Illinois Edward L. Rubin, Vanderbilt University Stephen A. Saltzburg, George Washington University William H. Simon, Columbia University Peter L. Strauss, Columbia University Susan P. Sturm, Columbia University Kent D. Syverud, Washington University Brian Z. Tamanaha, Washington University Michael E. Tigar, Duke University Gerald Torres, University of Texas (AALS President 2004) Robin L. West, Georgetown University Michael Wishnie, Yale University 23

24 2 nd Annual Americas Law Deans Forum Law School Leadership in the 21 st Century: Meeting the Global Challenge Report of Special Committee on Foreign Law Schools Seeking Approval under ABA Standards July 19, 2010 Committee Chair: Professor Mary Kay Kane 24

25 July 19, 2010 Report of Special Committee on Foreign Law Schools Seeking Approval under ABA Standards This Special Committee was appointed on June 10, 2010 and asked to report to the Council of the Section of Legal Education and Admissions to the Bar at its August 2010 meeting on the policy questions surrounding the question whether law schools located outside the United States or its territories, which have modeled their educational programs on the American model, should be allowed to seek accreditation under the governing Section Standards and Rules of Procedure for Approval of Law Schools. Notably, this inquiry follows the thorough July 15, 2009 Report of the Special Committee on International Issues, chaired by Justice Elizabeth Lacy. That report examined the impact of international issues on legal education and admissions to the bar, as well as the question of the various ways in which the Section should respond to those pressures, including the accreditation of non-u.s. law schools. 1 After a brief introduction, this report falls into three parts. The first discusses the policy implications and justifications for expanding the accreditation role of the ABA Section to encompass law schools located outside the United States or its territories. The second considers what special rules or concerns might need to be addressed should the Council determine to proceed to consider applications coming from such law schools. Because of the limited time frame in which this report was composed, no attempt is made to provide a detailed assessment of exactly how to address the possible concerns raised or to set out special rules that should be adopted. Instead, this latter section is designed to inform the Council of the kinds of matters that need further decisions or adjustments should it be determined to move forward on the question of accrediting non- U.S. territorially based law schools. Finally, the report concludes with a series of recommendations. Introduction As a result of the 2009 report the Council agreed to the appointment of a standing International Issues Committee, which currently is being chaired by Professor Dennis Lynch. That committee is examining issues related to the use of an LL.M. degree as a qualifying credential for foreign trained lawyers to be able to sit for a state bar examination in the United States and whether special bar-admissions consideration also is merited for graduates in common law countries that follow a graduate law school model similar to that used in the United States. Thus, this report omits examination of those issues. 25

26 There appears to be nothing in the current ABA Standards and Rules of Procedure that specifically addresses whether a law school seeking provisional approval must be located in the United States. Nonetheless, the Preface to the Standards notes that "The Council grants provisional and full ABA approval to law schools located in the United States, its territories, and possessions." (p. vi) And the Bylaws of the Section state: "The purposes of this Section as stated in its Mission Statement are... to provide a fair, effective, and efficient accrediting system for American law schools." This quoted language certainly accurately describes the historic role of the Section's accreditation function. The question is whether it should remain so limited in the future. The 2009 Report details how the increasing globalization of law practice has placed greater pressures on the state supreme courts and bar admissions administrators, as well as clients and foreign lawyers, to develop better information for making determinations as to the admission of foreign lawyers to the practice of law in this country. It notes that overwhelmingly the accreditation function of the Section informs the state supreme courts and bar administrators about the quality of the educational experience of an applicant so that expanding that function to include foreign educational experiences could be an important way to provide the type of information needed. Thus, it concludes: Probably the most compelling justification for why the scope of the Section's current accreditation efforts should be expanded is that in doing so the Section would be able to provide state supreme courts with a basis for deciding whether a person holding one of the degrees under these programs should be permitted to sit for their bar examinations and perhaps other conditions. (p. 25) It also notes that the increased pressures for foreign practice in the U.S. and for Americans to practice abroad will continue regardless of U.S. cooperation so that the Section should help to ensure the intellectual and educational fitness of bar applicants to the extent their educational backgrounds justify ABA accreditation. Finally, it concludes on this issue that any expansion of the ABA accreditation function to accommodate these globalization pressures should be limited to foreign law schools modeling their programs under and meeting fully the prevailing ABA standards and that no specialized, separate accreditation system should be established for foreign law schools generally. Rather, in exercising its existing accreditation function, "the Section should abandon any notion of territorial restrictions in accreditation." (p. 28) This committee's charge, therefore, is to examine more carefully that conclusion, including what its implications may be. 26

27 I. Policy Considerations A. Reasons supporting expansion of ABA accreditation to schools located outside the United States and its territories (1) As described in the 2009 Report, such an expansion would provide additional guidance for state supreme courts when lawyers trained outside the United States seek to be allowed to sit for a U.S. bar examination. Since that is a key function of the accreditation process generally, the expansion would be consistent with the historic role of the Section in aiding the state supreme courts in the bar admissions area. (2) If the Section does nothing to expand accreditation to schools located outside the U.S., pressures to find other routes to U.S. licensure will continue to increase and two negative things will occur. First, states will be forced to make decisions about what education is good enough to allow foreign-trained individuals to sit for the bar exam and some states undoubtedly will authorize lawyers to enter the U.S. legal profession with weaker and less reliable training than is provided in ABA approved law schools. Second, because these decisions will be made from state to state, there will not be just one standard for evaluating educational credentials, but many of them, and that will result in a lack of clarity and consistency. These effects are harmful to the profession and the public. They also will put more pressure on bar examiners to raise bar-passage requirements since the bar exam will be the primary means to ensure minimal quality and this will have adverse consequences for the graduates of many U.S. law schools as well. Thus, if the ABA Section is irrelevant in decision-making concerning the realities of the globalization of the legal profession, it will undermine its historic role as a leader on these matters. Yet inaction will have no impact on whether more schools located abroad will open, as they will simply find other routes for their graduates to enter the profession. (3) Statistics produced by the National Conference of Bar Examiners show that every year between 4,000 and 5,000 foreigntrained law graduates take a bar exam in the United States, mostly in New York and California. Although some of these foreign applicants complete a J.D. degree as an avenue of admission, most do not. Some of the non-j.d. graduates have additional education in the U.S. (typically a 20-hour LL.M. program), but some do not even have that educational exposure. Thus, most of these foreign applicants for bar admission do not have the benefit of a J.D. program meeting ABA Standards, and it can be argued that a J.D. degree from a foreign law school that teaches a U.S. law curriculum and meets ABA Standards is preferable to the current situation. (4) If we believe that the American legal education model is the "gold standard" for legal education world-wide and that well- 27

28 trained lawyers are critical to the global economy, then a willingness to expand accreditation to schools embracing the American model is an appropriate way to improve the training of lawyers globally and contribute to the modern economy and the international legal profession. (5) We are in a period in which different legal systems are converging as part of the expanding global economy. Expanding accreditation to schools outside U.S. borders that focus on U.S. law will allow these schools to be in a position potentially to develop cutting-edge curricula to address these trends and the Section thus will be in a position to be an active player in the dialogue about how to develop high quality legal training for the global economy. (6) Expanding accreditation would clarify that ABA approved U.S. law schools can open branch campuses to further the various international programs that they now conduct and therefore would provide another opportunity for U.S. law schools to compete internationally in the legal market place. Failing to make such a clarification raises questions. B. Reasons against expansion of ABA accreditation to schools located outside the United States and its territories (1) This development could result in enlarging practice opportunities for foreign lawyers in the United States because graduates of foreign ABA approved schools then would be eligible to sit for a bar exam without any reciprocity or parallel opportunities provided by other countries for U.S. lawyers. (2) If the foreign school is government-sponsored, political difficulties could arise if the Council failed to approve an application for accreditation and, depending on the issues presented, this could create problems or pressures both within the larger ABA and potentially with the Department of State. (3) Foreign students who never spend any time studying in the United States will not have the benefit of the acculturation process that naturally occurs when study is accomplished here and that provides context for understanding the development of U.S. law and professional ethics. II. Concerns and the Need for Special Rules As indicated earlier, if the accreditation function is to be expanded it is recommended that it only be done for the limited purpose of approving law schools that meet all the prevailing accreditation Standards. However, because the current Standards were premised on an understanding that the law schools being accredited were within the United States several matters that most would see as inherent in a law school program operating here 28

29 may need to be made explicit, rather than implicit, to avoid any confusion when the Standards are applied outside the U.S. The following discussion highlights what we have identified as basic assumptions about programs currently approved under the standards, and the need to clarify that these assumptions are correct. It also raises other practical concerns that need to be considered. (1) The Standards do not expressly note that U.S. law must be the dominant focus of the curriculum, although that clearly is the case currently in ABA approved schools. For a school outside the country, we need to clarify this assumption that U.S. law must be the primary core of the educational program to satisfy the obligation to prepare students who are able to practice in the U.S. Standard 302(a) (1), which requires substantial instruction in "the substantive law generally regarded as necessary to effective and responsible participation in the legal profession" should be read to mean "U.S. substantive law" and in the "U.S. legal profession". Similarly, Standard 302(a) (5), which requires substantial instruction in "the history, goals, structure, values, rules and responsibilities of the legal profession and its members" should be read to mean the "U.S. legal profession and its members". (2) The Standards dealing with faculty speak in terms of the need to have a well-qualified faculty. While many U.S. based law schools today have faculty members who are not primarily trained in U.S. law (as part of the internationalization of their curricula), or are not even trained in law itself, but in some other discipline, the core curriculum generally relies on faculty who have J.D. degrees. We need to make clear that the faculty at schools located abroad must be predominantly U.S. trained law faculty holding J.D. degrees from ABA-approved law schools to ensure that they are in the best position to offer quality instruction in U.S. law. (3) In order to ensure that the training abroad is comparable to that in the U.S. and that graduates of such programs are able to practice in the U.S., English language facility, both spoken and written, is critical. Thus, it is important to have the curriculum taught predominantly in English. We recognize that the ABA already accredits law schools in Puerto Rico that teach solely in Spanish. While we do not know the history surrounding that allowance, we would note that Puerto Rico is a U.S. territory and the basis of the law in the federal courts there is U.S. common and statutory law. Further, the capacity of the Section to accredit schools regardless of language is minimal, if not nonexistent, and we would treat the Puerto Rico schools as an historic anomaly--one that should not be repeated as we look to the future of training lawyers in U.S. law for a globalized practice. (4) In countries that have a very different social and governmental system, there is a concern about how we can ensure 29

30 that the students studying at the foreign law school have been introduced to the social and political context in which U.S. law evolves since it is unlikely their undergraduate training would have exposed them to our system. Although many foreign students now coming to the U.S., both for J.D. programs and for LL.M. programs, have the same lack of background, their study in the U.S. should help to eliminate that gap. But there may be a need to require some basic education in the American governmental system for foreign students that we simply assume most U.S. students obtain prior to entering law school. (5) If the accreditation function is expanded to schools outside U.S. borders, a suggestion has been raised that there should be a clear policy providing that the Section can refuse to review an application, as well as on what grounds. We see the issues that might invoke the possible exercise of such discretion as falling into two types. First, and easiest, would be when a school is located in a country that is on a U.S. "Banned List" (today, North Korea, Cuba, and Iran) so that travel to its location is not possible. Necessarily, those schools should be rejected out of hand (not that they are likely to apply). However, there are various standards that cover "softer issues" that reflect the U.S. cultural and legal values that may be inconsistent with at least the traditional values in some other countries. These include, for example, the standards on academic freedom, on faculty governance by the full-time faculty, and on nondiscrimination and diversity. It should be determined whether the Section should have the right to reject an applicant school when it has concerns that those values will not be honored. Additionally, the factors or procedures that should govern the exercise of that discretion need to be clarified. (6) A concern was raised as to whether the expansion of the accreditation function outside U.S. borders might have any implications for the Council's recognition by the U.S. Department of Education as the national accrediting body for U.S. law schools. Preliminary indications from our outside Counsel indicate the answer is no. (7) A concern was raised that if the issue of increased opportunities for entry of foreign trained lawyers into the U.S. legal profession is one on which different sections and individuals in the larger ABA are deeply divided, then proceeding with this expansion could create additional contentious issues for the Section within the ABA. In fact, however, leadership of the ABA in the last several years has been very globally-minded. (8) There is some question whether the expansion of the accreditation function outside U.S. borders will create a potentially undue burden on the Section's staff and volunteers to meet the additional workload. To the extent that greater efforts are required for these types of inspections and reviews, we believe that all those costs should be passed on to the applicant schools and inspection and accreditation fees adjusted 30

31 accordingly. Along similar lines, if it is agreed to go forward with this expansion of accreditation, it is naturally difficult to decide all the issues that may emerge until one has some experience. Thus, it may be appropriate, at least in the early years, for some special pre-screening of applicant schools before a site-inspection team is assembled and sent in order to avoid misunderstandings and the expense of time and money if the applicant school is far from being in compliance. III. Recommendations Based on the preceding discussion, the Committee makes four recommendations. (1) The Council should approve going forward to allow the possibility of accrediting law schools outside the United States borders that meet all of the prevailing Section Accreditation Standards for the policy reasons discussed in Part I. (2) The Council should request the Standards Review Committee in its ongoing comprehensive review to look at all the Standards to ensure that none of them unintentionally sets up barriers to this geographic expansion and to remove any such barriers that do not implicate the substantive standards ensuring a quality legal education. (3) The Council should consider drafting a policy statement to clarify the matters highlighted in Part II that deal with the underlying assumptions in the current standards, such as that the curriculum is primarily focused on U.S. law, the instruction is primarily in English, and the faculty are primarily J.D. graduates of ABA approved law schools. (4) If the Council agrees with the preceding recommendations, recognizing that it is very difficult to consider in a vacuum all the issues that may arise when the Section has not before entered this arena, the Council should consider whether it might be advisable to allow a site visit on a trial basis of a foreign applicant school that wants to see whether it can meet all the standards. Respectfully submitted, Mary Kay Kane, Chair Elizabeth Lacy Dennis Lynch Randall Shepard David Tang 31

32 2 nd Annual Americas Law Deans Forum Law School Leadership in the 21 st Century: Meeting the Global Challenge Report of Special Committee on Foreign Law Schools Accreditation May 15,

33 May 15, 2012 Executive Summary of The Special Committee on Foreign Law School Accreditation At its December 2010 meeting in San Diego, the Council authorized the Accreditation Project to go forward promptly with its consideration of the accreditation of law schools outside the U.S. and its territories. The Council specifically voted to engage key public and private stakeholders, i.e., the Conference of Chief Justices, state bar examiners, legal education representatives and representatives of the legal profession, in our consideration of this significant issue. During the past year, a Special Committee consisting of Dean John O Brien, Professor Joan Howland, Professor Martin Burke, former Chief Justice Ruth McGregor, Dean Steve Smith, Professor Peter Winograd, Jerry Hafter and Greg Murphy designed and conducted surveys to elicit the views of the stakeholder groups noted above regarding the pros and cons of expanding the Accreditation Project to include foreign law schools. A survey also was posted on the Section website to enable any interested person to comment. Survey responsibilities were as follows: Chief Justice McGregor - state chief justices; Professor Peter Winograd - bar leaders represented in the ABA House of Delegates and the National Conference of Bar Presidents, and the National Association of Bar Executives; Dean Steve Smith - law deans; Jerry Hafter and Greg Murphy - state bar examiners; and Professors Joan Howland and Martin Burke - public survey on the Section website. In a number of instances, survey deadlines were extended and reminders were sent to stakeholder groups to complete the surveys. The last survey responses were received in April The number of respondents to each survey varied widely as follows: 11 state chief justices; 50 law deans; 8 state boards of bar examiners; 93 bar leaders; and 645 respondents (over 90% law students) on the public survey posted on the Section website. As detailed in the reports summarizing the survey results from each stakeholder group, there was little support for the expansion of the Accreditation Project to include foreign law schools. Responses favoring expansion of the Accreditation Project were largely based on one or more of the following three rationales: expansion of the Accreditation Project to foreign law schools (a) is an appropriate response to the globalization of the law; (b) would promote the rule of law and strengthen law practice worldwide; and (c) would stimulate expanded intellectual exchange between U.S. and foreign law schools. In addition, a few respondents opined that, if the Council did not move forward in accrediting foreign law schools, some other entity might attempt to undertake that role. Responses opposing extension of the Accreditation Project were largely based on one or more of the following four rationales: (a) the difficulty of developing appropriate standards and processes, including means of monitoring compliance with academic freedom requirements; (b) the diversion of limited Section resources away from the Section s primary role of providing support for U.S. laws schools and addressing the critical issues currently confronting the Section; (c) the difficulty for foreign law schools to educate foreign law students effectively in the culture, ethics, and values of the American legal 33

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