1. INTRODUCTION
The papers in this symposium were prepared for a panel at the 2015 meeting of the Association of American Law Schools (AALS). It may initially seem odd that the focus of a session at a meeting of American law schools would include discussion of and by East Asian law-school representatives. In fact, however, the AALS—like other organizations—increasingly draws law faculty from schools outside of the USFootnote 1 and includes in its discussions issues related to the ways in which global forces reshape its identity, such as through the growing presence of international students in US law schools.Footnote 2 But this panel was not simply about the landscape of legal education in various countries, despite the value of such a topic. Rather, the rationale for bringing these authors together at the AALS meeting was to discuss opportunities for collaboration and innovation among law faculties in China, Japan, Korea, Taiwan, and the US.
In this comment, I focus on the theme of collaboration in the context of East Asian and US legal education. Research on collaboration tends to focus on ways to facilitate it, taking for granted that the concept of collaboration is well understood. But understanding the core notion helps guide consideration of circumstances in which it is most likely to be attainable, and this is the focus of Section 2 that follows. Section 3 explores opportunities for collaboration with regard to two challenges of legal education common to China, Japan, Korea, Taiwan, and the US: globalization and the struggle for control over the lawyer licensing process. This leads to thoughts about future research and experimentation, described in the conclusion of this comment.
2. A BRIEF INTRODUCTION TO COLLABORATION
Collaboration is such a commonly used term that one might ask whether there is any need to consider its meaning. The term “collaboration” is used in conjunction with many activities and contexts: there is collaborative learning,Footnote 3 collaborative care,Footnote 4 collaborative leadership,Footnote 5 collaborative software,Footnote 6 and collaborative cooking,Footnote 7 just to name a few. This list indicates that “collaboration” refers to the process of activity and work, and relates to the combination of multiple individuals or organizations. As a process, it might refer to the approach to the activity (such as in learning and leadership) or to its facilitation (such as in software).
Collaboration generally is understood to mean “work with another person or group in order to achieve or do something.”Footnote 8 But a slightly different definition presents an important contrast: collaboration is “the situation of two or more people working together to create or achieve the same thing.”Footnote 9 The first definition does not require the goal or product of the collaboration to be identical to all collaborating parties; the latter does. This distinction is a foundation of research on effective collaboration, which has identified myriad factors that support success. In Vineet Nayer’s work, the need for a shared purpose among collaborating partners is paramount: “Purpose is collaboration’s most unacknowledged determinant.”Footnote 10
Despite sharing a common purpose, collaborators often differ in particular characteristics that indicate variation in their strengths. In fact, these differences enable each party to capitalize on their partner’s assets. In this sense, it is crucial to identify and understand that difference among collaborating parties is itself an asset to the collaboration.
At the same time, however, a common core of understanding is important. As Keeley Wilson and Yves Doz write, collaborators need “a small degree of knowledge overlap between sites. ... This doesn’t mean replicating the other sites’ knowledge, but understanding enough of what they do to anticipate potential interdependencies and interfaces in the development process.”Footnote 11
Last, in addition to knowledge, research stresses the importance of learning to collaborate involving particular “behaviors and mindset ... needed to make collaboration really work.”Footnote 12 In this, we see recognition of the process nature of collaboration, rather than only the outcome.
With this backdrop, I turn to the opportunities and challenges for collaboration among law schools in East Asia and the US.
3. OPPORTUNITIES AND CHALLENGES FOR COLLABORATION
Each of the papers in this symposium is focused on national challenges and opportunities for legal education. In each instance, these are framed by a backdrop of the role of the legal profession in the national society; the ways in which legal education contributes to the production of lawyers, judges, and prosecutors; and the contest for power among these and other groups. An analysis of the role and power of legal education in a single nation is a complex matter and drawing comparisons requires consideration of the layers of history, politics, and internal struggle necessary for a nuanced understanding.Footnote 13 Here, the goal is more limited: the identification of points of overlap that provide a common goal for purposes of developing a plan of collaboration. I consider here two points that emerge from the papers.
3.1 Embracing Globalization
The first relates to globalization. The legal profession in each of the countries represented on our panel stress the importance of promoting experience and expertise related to the global environment in which lawyers must practise. This includes recognition that today’s law graduates will work in a world in which mobility of people, investment, and ideas reorients the permeability of national borders. Global forces shape expectations for the roles lawyers occupy in society, the work in which lawyers can expect to engage, and, perhaps closer to home for law schools, the interest of both domestic and foreign students in studying law in a particular country.Footnote 14 The promise of a legal career is no longer limited to the context of a single nation. Rather, to be influential in one nation, law graduates must become experts in the common language and culture of global commerce and investment, at a minimum. Law schools strive to help their students acquire mastery as they compete for the role of producing graduates who will occupy positions of power in the national context and beyond.
In their efforts to prepare students to function in an increasingly global environment, law schools typically focus on the need for substantive expertise. For example, Dean Ji writes of “the urgent need to acquire legal knowledge and expertise in managing overseas legal risks” in order to support the government’s “Walking Out of China” strategy that involves inbound and outbound foreign investment, cross-border transactions, and competitiveness.Footnote 15 Dean Liu and his colleagues similarly endorse the idea that law schools should do more to prepare students with regard to “specialized subjects such as WTO law, competition law, securities law, financial laws etc.”Footnote 16 —a view recently endorsed by US law Professor and Dean Gary Gildin.Footnote 17 But global forces also shape the skills required of lawyers, including those related to language and cultural fluency, as emphasized by Professor SatoFootnote 18 and Dean Oh,Footnote 19 as well as my own work.Footnote 20
By identifying a common goal of teaching students about the substantive topics most relevant to representing clients that participate in a global economy, as well as the professional skills necessary for putting substantive expertise to use, the symposium reveals a common goal that is ripe for collaboration. With regard to substantive topics, the goal can be described as the development of a curriculum to teach students about the law and norms governing financial transactions and disputes that involve parties from multiple jurisdictions, as well as the related structure of international law and trade. This substantive legal curriculum also must be part of a context that leads to opportunities for students from different jurisdictions to interact in their learning, thus allowing the schools to support students’ acquisition of language and cultural expertise through interaction with students learning the same topics in other jurisdictions. Together, the substantive and professional parts of the curriculum comprise an integrated whole that can prepare students for practice in a globally integrated environment.
One challenge common to all of the law schools and related to curricular innovation is the need for appreciation of the practical implications of law, including the ways in which legal issues arise and are addressed in practice. Dean Oh argues that “practice awareness should be maintained throughout the entire course of legal education.”Footnote 21 If curricular development included consideration of the context of legal issues and lawyers’ responses, particularly in each local setting, students would gain an appreciation of the role of law and lawyers in society, as well.
The development of such a curriculum requires collaboration at the faculty and law-school administration levels; teaching brings in the students, as well, of course. Initially, an organization such as AALS might serve as a platform for bringing together faculty and staff who would share an interest in the development of such a curriculum. But more investment in getting to know the various collaborators in their own home contexts will provide valuable lessons, from language expertise to political and cultural insight into the ways in which law schools and faculties approach their students and work as well as the role of law in society. Pamela Hinds argues for site visits in the context of supporting effective teamwork, as opposed to meetings that bring all participants to a new location (as is often the case, for example, when faculty meet at an AALS conference or students participate in an overseas summer-term programme). Hinds found that on-site visits brought advantages related to understanding the “social context” of those who were visited and also led to more comfort in social interaction among the two groups.Footnote 22 Teaching exchanges can support the development of expertise in teaching in a foreign language, for example.Footnote 23 Such exchanges and site visits also will further what Wilson and Doz describe as a “small degree of knowledge overlap between sites” to facilitate collaboration.Footnote 24 Faculty exchanges and visits ideally will comprise a central aspect of a collaborative plan for developing the global curriculum and related teaching materials so that substantive learning goes hand in hand with gaining cultural sensitivity.
Students, too, must be supported for purposes of studying away from home, regardless of the duration of their visit. In the US, at least, different degree programmes implicate distinct curricular goals; often, no particular curricular expectation is placed on visiting students who spend only a semester or less in the host law school. But the purpose of developing a global curriculum responds to perceived needs for all law students to gain exposure, regardless of their degree programme or the duration of their visit.
Nor are the lessons limited to substantive law. A Chinese LL.M. student earning her degree in a US law school described the importance of learning outside of the classroom.Footnote 25 Her focus was on how to talk to law firm lawyers and she was particularly intrigued by the notion of “small talk,” or what she called “short-time talking.” She explained that she
went to a lot of receptions, especially law firm receptions, even though they were not for LLMs. But I really want to stay [in the US following graduation], so I will try everything. I went to learn how to communicate with others in a short time. This is not a common skill in China. We don’t have short-time talking.Footnote 26
In order to learn how to engage in small talk, she practised with non-lawyers, including an Uber driver. Taxi and Uber drivers, she explained, often “make small talk. At first, when I just arrived, that was weird. Chinese people don’t talk to strangers. In the professional world, I felt strong about that.”Footnote 27 But she soon became aware that, at law firm receptions,
“[e]veryone was trying to attract the partner’s attention in a short time. I learned a lot about how to do it, by watching and practicing from very little things. You don’t need to wait for a partner to talk to you, you can start the conversation.”Footnote 28
This was a revelation! This example of learning that occurs far from the classroom is central to gaining insight about the professional roles of lawyers. While the lessons were not facilitated intentionally by the law school, her opportunities to participate in a law firm reception certainly related to her law school’s efforts, albeit intended for the benefit of JD students. Nevertheless, the example raises the possibility that the lessons learned by this LL.M. student might be designed by collaborating law schools so that international and visiting students would gain a comparative understanding of the local societal and professional norms, among other things. It also is possible that visitors would share knowledge of their home countries—highlighted by comparison newly discovered to host country norms—so that local students also have an opportunity to learn from the forces of globalization.Footnote 29
Relatedly, the importance and relationship of learning in law school to learning in practice are highly relevant to the global curriculum. Professor Oh addresses this issue with regard to curriculum focus and development on a national level.Footnote 30 Understanding the ways in which legal issues arise and are resolved in practice differ with regard to practice settings, substantive specialization, and national and local differences. Such differences make for fascinating, if challenging, work in weaving together a curriculum that helps students appreciate variation and commonalities. To accomplish this, law faculty likely will need to work with practitioners and clinicians, and the opportunity to bring them into contact with visiting and international students with regard to teaching a global curriculum offers promising prospects.
3.2 Gaining and Maintaining Power for Law Schools
A second possible focus for collaboration stems from a common challenge experienced by law schools in each of the jurisdictions involved in this symposium with regard to their role in the process that law graduates must navigate in order to qualify for the practice of law. Generally, the problem relates to relative power and control over the lawyer qualification process. Law schools vie for control with bar regulators and others who participate in the lawyer qualification process. The difficulty of qualifying, which may derive from regulators’ establishment of a low pass rate on the qualification examFootnote 31 or to their direct imposition of educational conditions that must be satisfied in order to qualify and therefore shape students’ law-school experiences,Footnote 32 for example, challenges the authority and significance of law schools.
This dilemma has long been associated with East Asian legal education where the emphasis has been on examination pass rates. This, indeed, was one focus of recent policy-reform efforts. Earlier, when the bar pass rate for Japan and Korea was under 3%,Footnote 33 it was common for law graduates to devote years to bar preparation and to repeated efforts to pass the examination.Footnote 34 For those who attended a university, the identity of that university was significant to their later careers,Footnote 35 but it also was possible to qualify through the exam process without any university study.Footnote 36 Consequently, it was the exam that served as the barrier; law study in university course work (at that time, law was an undergraduate course of study) was viewed by many as largely irrelevant.
Reforms involved increasing the bar pass rate by many-fold and shifting legal education to a graduate course of study. There is ongoing debate over the option of qualification apart from law school. The hope of reformers was that their changes would serve as a signal to law students that law school itself was worthy of investment. In particular, the hope was that, with a higher bar pass rate, students would feel liberated to study subjects not directly linked to the bar exam but nevertheless important to their future careers.
The new graduate-level regimes adopted in Korea and Japan were intended to establish a “new bar system that embraced people with more diverse backgrounds, like those with a license or knowledge in medicine, business, technology and foreign languages, to meet the needs of a society that was becoming more mature, diverse and complex.”Footnote 37 Dean Oh, commenting elsewhere on the controversy over whether to maintain the option of qualifying as a lawyer without attending a graduate-level law school, stated that “[l]aw schools allow us to foster legal minds through a comprehensive education process, instead of a one-time test.”Footnote 38 Debates continue over the effectiveness and direction of reforms, particularly in Japan.Footnote 39
In the US, there is similar concern that law schools retain control over the gateway for bar eligibility and lawyer qualification. The terms of debate are slightly different, however, with less focus on bar exam pass rateFootnote 40 (although reports of lower rates recently have garnered attentionFootnote 41 ) and more concern related to initiatives of state bar authorities that influence curricular aspects of legal education. Earlier, state bar authorities experimented with imposing particular substantive course requirements on students’ legal education as a condition for bar eligibility.Footnote 42 Today’s debates centre on bar regulators’ demand for law students to complete experiential and pro bono requirements in order to qualify for admission.
The response of the law schools to these initiatives by the bar to exert control are remarkably similar despite being divided by more than 30 years. The 1980s issue coalesced around the attempt by two states, Indiana and South Carolina, to impose certain substantive topical curricular requirements that students had to complete in order to qualify for their state bar examinations. These were criticized by law schools in the following terms:
Academic freedom and innovation will be adversely affected. ... A question is raised as to whether these requirements remove a major function of the law school: to experiment and by incremental change develop and improve legal education. ... Student course selection will be limited. ... Lawyers are mobile. Adoption of stringent course requirements ... will defeat the interests of uniformity and the creation of a “national bar.”Footnote 43
Recently, members of the AALS Deans Steering Committee responded to a current proposal by California bar authorities to require 15 hours of “experiential education” for bar eligibility. The Deans Committee argued that this proposal was unwise because it would
constrain experimentation in legal education and impair innovations currently underway and in development[;] ... limit the flexibility and self-determination of individual students in studying law, and in planning diverse careers[; and] introduce[e] complexity and uncertainty [related to] ensur[ing] nationally uniform, minimum accreditation requirements that enable law students to pursue careers across the nation.Footnote 44
The extent of overlap in the arguments responding to the 1980s initiative and California’s current proposal suggests that the contest is over control rather than over the details of any proposal by bar authorities.
Despite similarity in the interest of law schools in the US and East Asia in maintaining power and legitimacy with regard to the lawyer qualification process, however, this second issue does not have the commonality of purpose ideal for effective collaboration. This is because of the centrality of the context of legal education to the contest for control. These contexts differ in important ways in each jurisdiction, including with regard to the role of law schools and universities, the role of law and lawyers, and even in how society values examinations generally. These issues permeate the debates surrounding the contest for control over entry into the legal profession. Consequently, while law schools share the challenge of asserting and maintaining their control and legitimacy vis-à-vis bar authorities and others, the solution to this challenge is not universal. It must adapt to local variations. It is not possible, then, to frame the challenge to enable collaboration to “achieve the same thing.”Footnote 45
4. CONCLUSION
East Asian and US law schools share a number of important challenges, including the two discussed here: being relevant to globalization’s forces by developing a curriculum to educate students to navigate a global practice environment, and maintaining and asserting control with regard to licensing processes that serve as the gateway to entry to the profession. In theory, each of these would offer opportunities for collaboration among law schools, their faculties, and students. But local forces render collaboration unlikely with regard to law schools’ participation in local contests for control. These important local factors undermine the commonality of purpose or goal. At the same time, however, the development of a global curriculum is ripe for collaboration; in fact, the very nature of the goal transcends local borders. Comparison and interaction among national actors offer benefits unavailable in a purely national context.
This comment has only begun to outline issues related to the potential for collaboration among law schools based in East Asia and the US. Future research analyzing the groundwork for collaboration among law schools would be valuable. What is unique, if anything, about law schools and universities with regard to nurturing collaboration? How do organizational collaborative efforts get underway? How is trust developed between law schools? Do most law-school collaborative relationships derive from friendships among faculty, as suggested by anecdotes, or are there examples also of successful collaboration among schools that have taken purposeful steps to create relationships for purposes of organizational collaboration? Relatedly, what sorts of collaborative activities have been successfully completed among law schools? How have the schools addressed issues of financing the activities? And what can be learned from failures in collaboration among law schools? By focusing on the factors necessary for collaboration as well as on the end goals of such efforts, law schools may be more successful in advancing their own as well as their common interests.
