Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholar and Professor of Law ; Professor of International Affairs, Pennsylvania State Universitylcb911@gmail.com

Beyond Colonization—Programs of U.S. Legal Education Abroad by Indigenous

Institutions

Introduction

• Article explores the efforts at and consequences of a nationalist model of internationalizing legal education.– the educational systems of a particular state

that is deemed desirable is exported to others and achieves through this exportation a multinational character

– national rather than international but with transnational effect; globalizing domestic law.

Object of Study—Nationalist Globalizaiton

• Part II provides a brief discussion of context—focusing on the nationalist globalization of legal education.

• Part III then examines the typology of efforts to globalize legal education, distinguishing between internationalist and nationalist models of education globalization.

• Part IV then examines nationalist globalization where foreign law schools seek to develop an American legal education model in their home territory.

• Part V then analyses these efforts to globalize legal education as an exercise in American cosmopolitanism, internationalism and nationalism

Issue

• Does the character of this nationalist globalization change when foreign institutions establish U.S. style law schools teaching aspects U.S. style law courses on U.S. law subjects outside the territorial borders of the United States by foreign institutions?

Focus on Nationalist Globalization

• An important element of internationalization– Premised on the idea of legal commodification and competition

among jurisdictions for adherents– It becomes powerful when naturalized within host states– Consequences

• For the host state:– Cultural imperialism– Fracture within polity

• For the home state – Loss of control over the development of law/

– Fracture between the polity and the host states

Globalization of Legal Education: Two Parallel Models:

• Internationalist Model:• Transnational and outward looking• International, comparative, foreign and transnational law

into curriculum as a part of basic legal training of law students.

• Nationalist Model:• Domestic and inward looking. • Market driven competition for influence among dominant

domestic legal orders.

Internationalist Model of Globalization:

• Blending legal studies from a variety of jurisdictions, creating a curriculum that starts as essentially transnational.

• Models of Implementation:• Integration• Aggregation• Segregation• Immersion• Multi-Disciplinary Department

• Complicated and expensive• May require faculty to change approach to teaching and

research.

Nationalist Model of Globalization:

• Aggressively outward looking in its quest to dominate markets for the provision of legal education.

• The extension of the influence of national law outside of the national territory or jurisdiction.

• Rather than expanding international curriculum within national law school, seeks to extend national law school internationally.

• Models of Implementation:• Expansion of Accreditation Activities• Joint Degree Programs• Jurisdictionally Specific Specialty Programs

Implementation of Nationalist Models of Globalization:

• Expansion of Accreditation Activities:• ABA consideration of accreditation for foreign law schools modeled on

U.S. standards. • Proposal rejected August 2012.

• Joint Degree Programs:• Peking University School of Transnational Law• Offers Chinese and U.S. law degrees. • American curriculum, both substantively and pedagogically, taught in

English and by U.S. faculty.

• Jurisdictionally Specific Specialty Programs:• University of Navarra Licentiate + Diploma in Anglo American Law

Program. • Elective courses focusing on American law, taught in English, by U.S.

faculty.

Critical Analysis of the Nationalist Model of Globalization:

• Nationalist model embraces form while subverting function of globalization.

• Universalizes the substantive and pedagogical approach of a single state.

• Seeks to project the reach of domestic law, and the education in the domestic law and legal culture of a particular state, on a global scale.

THE FEAR:Harmonization SubordinationGuidance Domination

The Nationalist Model and Cultural Imperialism:(displacement of local law)

Cultural Imperialism:

The sum of the processes by which a society is brought into the modern world system, and how its dominating stratum is attracted, pressured, forced, and sometimes bribed into shaping social institutions to correspond to, or even to promote the values and structures of the dominant center of the system.

Julia Galeota, Cultural Imperialism: An American Tradition, The Humanist, 2004 Humanist Essay Contest Winners

The Nationalist Model and Cultural Imperialism:

•Preference for theoretical and philosophical curriculum over doctrinal and practical curriculum.

•Declining utility of research to practitioners and increasing emphasis on the theoretical.

•Ideological difficulty in the application of American law to foreign facts. (i.e. rejecting separate but equal in Israel land administration).**

**The subjective and cultural rooting of a legal system is what makes the globalization of legal education particularly

challenging compared to, for example, the globalization of medical education.

Market Principles Suggest that Fears of Cultural Imperialism May be Overstated:

• Student & Institutional Choice Shaped by Market Demand:

• Value of curriculum to employers will influence the choice to offer a foreign curriculum at all and the content of the curriculum once implemented.

• I.e. Market demand may favor instruction in Delaware corporate law. The same might not be true for American tort law.

• Market principles will prevent the passive absorption

and acceptance of American legal theory in the absence of some substantive demand for the curriculum.

Nationalist Globalization and Multiple Law Systems Within States

• Fracture– Specialization within and between systems

• Polycentricity– Domestic law is one but not necessarily the only governance

regime affecting behavior. The function of the lawyer at one level of the social structure of the state is very different from that of the lawyer at the other.

The Empire Strikes Back: Effects of Nationalist Globalization on Exporting States When Host States Control Legal Educaiton

• Export of national models of legal education can affect the shape of national law in both the home and host states.

1. Imperfections in Nationalist Exportation

2. Challenges to Legitimacy of Globalized National Law

1. Resistance and Revival of Indigenous Law

1. Exportation as a Two-Way Street

Conclusion

• This essay explored the ways in which globalization of legal education, in particular, has begun to take two quite distinct forms. – Internationalizing– Globalizing

• US Law schools have engaged in both forms fo exporting legal education

• The use of U.S. law as the common foundation of global transactions globalizes national law and elevates it into a supra-national legal system. – But the price of this transformation of U.S. law into an international

domestic legal system.

Thank You!!!