Legal education in the era of globalization—what should we expect from law schools?

@LawAhead

Why is it so important for law schools to innovate at a systemic level, and what are the consequences of the current lack of willingness and/or capacity to do so?

By Javier de Cendra

Globalization has been accelerating exponentially in the last decades, involving massive movements of people, products, services and capital—even as global trade seems to be approaching a peak[1]–largely due to advances in transportation and communication technologies. With the great benefits of globalization come also some global risks, including:[2]

  1. Rising income and wealth disparity
  2. Rising of populisms and nationalisms
  3. Technological disruption
  4. Weakening of mechanisms of global cooperation among states.
  5. Global environmental risks.

Whilst these risks cannot reverse globalization, they can shape it in various ways. To address many of those risks, more robust institutions, systems and norms at a global level are necessary, even if there is not yet agreement around most of them.

It is against this backdrop that we can better understand the implications that globalization has for higher (legal) education.

Globalization promotes, of course, increased global competition. Increased student and faculty mobility facilitate the search for excellence, which in turn promotes the creation of leading global education hubs in those countries and regions most able to generate them. These hubs are best placed to attract the best and brightest students, faculty, and resources, generating, in turn, top graduates, research outputs, university spin-offs, and so on. At the same time, these shifts risk leaving many education institutions lagging behind—sometimes through no fault of their own, with attendant negative impacts for their stakeholders. If education was just a purely private good among others, this could be perhaps acceptable. However, in a global economy where increasing wealth accumulation comes with increasing inequality, and where higher education is a predicting factor of high levels of wealth, high-quality education across the board becomes a critical factor of global justice.

To be sure, legal education is not fully comparable to, let´s say, business education, for a number of reasons. Law schools are closely tied up with specific jurisdictions, so much so that in order to practice law in a specific jurisdiction it is often necessary— or at the very least convenient—to graduate, take a bar exam and undergo an internship within the confines of that jurisdiction. Hence, law schools are more insulated than other university schools from the forces of globalisation. Moreover, law schools in many jurisdictions are usually highly constrained by institutions such as bar councils, ministries of justice, ministries of education and High Courts, on what they can do regarding curriculum development, teaching methods, hiring, evaluation and promotion of faculty, and the structure and functioning of their governance institutions, rules and processes, to the extent that their capacity to react to external forces is oftentimes fairly limited.

But this relative isolation should not be a cause for relief for law schools, due to the second type of impact that globalization has on legal education.

Globalization generates by definition global communities that operate over and above national borders, generating opportunities and risks that call for institutions, norms and processes adopted and applicable at that level. This can only happen if those creating and applying them have a deep and right understanding of the global level.

However, the very insulation from globalising forces that many law schools experience often makes them resistant to undertake the changes that are needed to provide law students with the global, richly contextual and multidisciplinary mindset that is a precondition to successfully tackle global challenges. This insulation, however, does not always apply to the same extent to legal research conducted by law professors, since their scholarly activity is not subject to the same kind of restrictions that law schools face.[3] One consequence of this asymmetry is that oftentimes globally oriented research does not easily translate into the law curriculum.

Why is it so important for law schools to innovate at a systemic level, and what are the consequences of the current lack of willingness and/or capacity to do so?

 

Promoting innovation in legal education: why and how

The key reason why innovation is so important is that modern legal education models are fit to train legal professionals for the industrial revolution of the XIX century rather than for the technological revolution of the XXI century.[4] Legal education is, in its conception, rather outdated, and small improvements will not do. Consider for instance the approach taken by most law schools to teaching law at undergraduate programmes, which usually run for three to five years:  usually, one can find an overwhelming focus on teaching the law on the books and case law from higher courts, often using the magisterial or the Socratic methods, and evaluating learning through one final exam, sometimes combined with essays and class participation. Pause for a moment and ask how this approach, independently of the quality of the books, the faculty and the students, equips the latter to confront head on the challenges of a global, highly technological, rapidly changing, world of work. Indeed, the legal professions have been adapting for years to globalization and technology, and have done so faster than law schools.[5] As a result, the gap between what the professions demand and what law schools provide in terms of graduates has been widening. Law schools, and those responsible to regulate the law curriculum, thus realise that they need to quickly and wholeheartedly embrace technology in teaching, research and management. But oftentimes there is little clue as to how to make progress, and progress is piecemeal and peripheral to the true barriers to innovation.

The key reason why innovation is so important is that modern legal education models are fit to train legal professionals for the industrial revolution of the XIX century rather than for the technological revolution of the XXI century

To be sure, while this is an oversimplification of reality, and a good number of law schools are quickly making progress towards a new paradigm of teaching law[6], it points to the fact that the majority of schools are either busy improving quality within the boundaries of current paradigms and/or taking rather small steps towards meeting the real challenges—creating a legal clinic, increasing international exchanges, incorporating more courses on comparative law methodologies, etc. That means that the majority of law schools are still very far from where we should all be.

What are the consequences of not innovating at scale? One first-order consequence may be that graduates do not learn to conceptualise from the outset global legal orders and their challenges, and thus cannot think about possible legal solutions that are effective at that level. But second-order consequences are much more profound, including the graduation of students that face increasing difficulties to find qualified jobs, further undermining the credibility of the legal profession[7], law schools and legal systems.[8]

As a conclusion, the key risk facing law schools is not that they fail to produce “practice ready” law graduates, as practitioners often say, because the consequences of that remain within the boundaries of employers, which need to spend time and resources in training recent hires. The larger risk would consist in law schools seriously failing to deliver their core mission, with attendant impacts on the legal profession and legal systems as a whole in the context of a highly technological and highly globalized world.  All this is of course not new for law school management throughout the world, and there are several efforts to react, even though the majority are struggling to cope.[9]

An agenda for the way ahead

So far, I have argued in favour of a complete revamp of legal education, one that takes place globally. To be sure, that process is already well underway at many elite and highly innovative institutions, mainly in the USA[10] but also throughout the world.[11]  However, it is necessary to put this into perspective, because there are many thousands of law schools throughout the world, and the percentage of those that has already started the transformation is negligible.[12]

Developing a theory of change of legal education is important but obviously beyond the scope of this short article. That said, I would like to suggest some actions that are already been adopted by many law schools all over the world and others that are less often adopted, the combination of which can help schools to remain faithful to their mission.

Globalization means that law schools increasingly receive students from other parts of the world, including countries with very different cultures and (legal) traditions. To ensure they have a deeply enriching experience, it is important to make them feel at home by instilling a deep understanding and appreciation for other cultures and worldviews. While this diversity is a source of richness in itself, it can also be used productively to promote the study of different legal systems through the use of innovative, challenge and team-based methodologies. In this way, students will learn and teach each other their own (legal) traditions, thus fostering both a deeper knowledge of their own legal system as well as an appreciation for different ways of conceiving problems and possible solutions. Students will learn that normative approaches to law are essential to make sense of it while learning to be deeply respectful of other´s normative backgrounds. They will experience that they are all world citizens, sharing hopes and challenges. From a practical perspective, the promotion of student clubs and other student-led initiatives helps a lot in that quest as students feel the university is also theirs.

Law schools need to prepare their students to work in a world that is highly globalized and for that reason very exciting but also a VUCA world (characterized by vulnerability, uncertainty, complexity and ambiguity). To thrive in such world requires instilling in students a good understanding of several legal systems, of global law (that is the legal principles, norms, rules and institutions that emerge beyond national legal systems while permeating each and every one of them), and of other disciplines that shape the global legal order, including politics, economics, and the humanities, particularly philosophy and anthropology. As one of the key drivers of change in law and legal systems is technological disruption, it is unacceptable to not expose students to it throughout their legal studies.

But, is achieving all this even thinkable? I would argue it is. Moreover, it´s a grave obligation of law school leaders to ensure that their students have an experience that combines all of the above within their undergraduate studies. 4 or 5 years is enough to place strong foundations on which students will later build upon, what is more, law schools need to accept responsibility for constantly offering professionals the opportunities to adapt their knowledge and skills to the rapidly changing conditions of the professional world.

An entrepreneurial spirit is one of the most valuable gifts we can give to our students to thrive in a VUCA world.

Strategies for enacting large-scale change

The agenda posed above is not beyond any particular school. Rather, a few practical measures may kick-start the paradigm change needed:

  • Foster multicultural classrooms, within them many soft skills develop smoothly and seamlessly.
  • Foster active learning methodologies, where students take control of their own learning in groups and with the aid of the professor. Project-based learning is particularly apposite for this.
  • Promote high quality, multidisciplinary, scholarly research on global and comparative law.
  • Seek strong agreements with law schools from all over the world, not mainly or primarily on the basis of prestige and wealth but on the basis of a strategy that seeks to maximize student´s exposure to different legal systems and legal traditions.
  • Seek strategic agreements with other (non-law) schools, particularly political sciences, economics, philosophy and anthropology, and STEM. Chances are that law students can mix with students from the other schools in some basic courses so as to familiarise themselves with the key objects, assumptions and methods of those disciplines, hence developing the capacity to work productively and collectively on multidisciplinary projects.
  • Seek collaborations with, or create, legal clinics, venture labs, incubators and accelerators, where law students can work with entrepreneurs and even become entrepreneurs themselves. Since an entrepreneurial spirit is one of the most valuable gifts we can give to our students to thrive in a VUCA world.
  • Seek strategic collaborations with law firms, corporations and public bodies, as they will ensure that the curriculum remains relevant, students tuned to legal practice, and all actors sensitive to the needs of the others. In fast-changing, highly uncertain environments, collaboration among many actors within open innovation ecosystems is the best way to ensure that each and everyone remains relevant for the others and thus for the community.
  • Assume the challenge of becoming an active agent of change, collaborating with other stakeholders—other university schools, regulators, law firms, legal service providers, and corporations— to drive the modernization of legal education in connection with legal practice and legal systems.

This strategy is not meant only or even primarily for wealthy law schools, since most of these observations can be implemented at a relatively low cost. However, they do require a strong innovation and entrepreneurial spirit on the part of law school leaders, administrators and (at least some) faculty members. If it does not exist, it must be created. And for that to happen, a grand coalition needs to be formed that includes governments and regulators, law societies and bar associations, and law schools. And better if it happens at the global level.

 

Javier de Cendra IE Law SchoolJavier de Cendra is Dean of IE Law School and President of the Law Schools Global League. He is Honorary Senior Research fellow at University College London Faculty of Law and member of the international advisory board of CEID Colombia. As academic manager, his focus lies in helping develop the blend of knowledge and skills that professionals and students working within the field of law require to ensure that law and legal systems remain relevant for society. 

[1] Banning Garret, How Technology is Driving Us Toward Peak Globalization, Singularity Hub, 22 October 2017.
[2] World Economic Forum, The Global Risks Report 2018.
[3] William Twining, Montesquieu Lecture, 2009, Globalisation and Legal Scholarship.
[4] Gillian Hadfield, Rules for a Flat World, Oxford University Press, 2017.
[5] The amount of work around legaltech, carried out by bar associations, law societies, research groups and so forth is rather impressive. Hereby I provide just a few sources. American Bar Association; European Legaltech Association; Law Society of England and WalesCanadian Bar Association,
[6] See the Law School Innovation Index, available here.
[7] Richard Susskind, David Susskind, “the future of the legal professions”, Oxford University Press, 2017.
[8] Gillian Hadfied, op.cit. n.4 above.
[9] The literature exploring the crisis facing law schools is enormous, so I will limit myself to a few well-known exemplars: Brian Z. Tamanaha, Failing Law Schools, University of Chicago Press, 2012; Arthur Dyevre, Fixing Europe Law Schools, European Review of Private Law, 2017.
[10] Legaltech Innovation, Law School Index 
[11]  Law Schools Global League
[12] Arthur Dyevre, Fixing Europe Law Schools, European Review of Private Law, 2017, op.cit, n.9 above.