Mills, Jon

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University of Florida Levin College of Law

Florida Journal of International Law Volume 17 Issue 1 Article 1 March 2005 Legal Education in the Americas: The Anchor for Hemispheric Justice Jon Mills Follow this and additional works at: https://scholarship.law.ufl.edu/fjil Recommended Citation Mills, Jon (2005) "Legal Education in the Americas: The Anchor for Hemispheric Justice," Florida Journal of International Law: Vol. 17: Iss. 1, Article 1. Available at: https://scholarship.law.ufl.edu/fjil/vol17/iss1/1 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Journal of International Law by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. Florida Journal of International LawVOLUME 17 MARCH 2005 NUMBER 1ARTICLESLEGAL EDUCATION IN THE AMERICAS: THE ANCHOR FORHEMISPHERIC JUSTICEJon Mills*I. INTRODUCTION ...................................... 1II. LEGAL EDUCATION ................................... 3III. LAW AND DEVELOPMENT OF THE 1960s ................... 4IV. JUDICIAL REFORM .................................... 5V. EDUCATION REFORM .................................. 6VI. CONCLUSION ........................................ 7I. INTRODUCTIONGlobalization requires a legal infrastructure. The challenge of educatinga cadre of lawyers for the twenty-first century is complicated by the myriadlegal traditions and systems. Our focus is the harmonization, functionalcompatibility, or at least mutual understanding, across the legal systems ofNorth and South America. The University of Florida's Levin College ofLaw sponsors an annual "Legal Issues in the Americas" Conference tofoster understanding among institutions and individuals in this hemisphere.We thank the members of the Florida Journal of International Law and* Dean Emeritus and Professor of Law, University of Florida Levin College of Law.Thanks to Alan Hawkins and to David Benjamin for their research and hard work.1Mills: Legal Education in the Americas: The Anchor for  Hemispheric JustPublished by UF Law Scholarship Repository, 2005FLORIDA JOURNAL OF INTERNATIONAL LAWtheir faculty advisor Professor Berta Hemandez-Truyol for publishing thepapers presented at that conference.Lawyers were called the "architects of order" in a study of legaleducation.1 The goal of legal education is to develop a system thatgraduates these architects of order who both understand the need for andcan foster the development of "order" in the hemisphere. Legal educationmust react to the changes in political, economic, and cultural perspectivesand realities.2 The effects of globalization in the twenty-first centuryinclude:1. More cross-border legal and contractual relationships;2. An increased number of transactions with multiple countries havingjurisdiction;3. A constant flow of assets across borders;4. The unification of international law and principles throughinternational organizations and treaties;35. The internationalization of human rights principles and laws;46. The existence of trade agreements that obligate multiple nations toagreed upon conduct, e.g. GATT, NAFTA, CAFTA, FTAA.5All of these effects involve legal issues among nations of this hemisphere.There is a growing trend towards synthesizing different legal systems tomeet the challenges of globalization.6 Globalization requires legalinfrastructure and lawyers capable of operating in the new environment.How are the legal education systems in this hemisphere handling this newenvironment?1. Alberto Bernabe-Riefkohl, Tomorrow's Law Schools: Globalization and LegalEducation, 32 SAN DIEGo L. REV. 137, 162 (1995).2. See id. at 137-39.3. See id. at 153 (discussing the harmonizing of laws amongst countries based not only ininternational treaties, but also on "common legal traditions and cultures").4. See Claudio Grossman, Building the World Community: Challenges to Legal Educationand the WCL Experience, 17 AM. U. INT'L L. REV. 815, 844-50 (2002) (describing the efforts ofsuch institutions as the International War Crimes Tribunal Research Office and the Human RightsTraining Program to internationalize human rights).5. See generally Bemabe-Riefkohl, supra note 1, at 148 (stating that the way aroundunwillingness of nation-states to reorganize is the creation of "economic alliances, or transnationaltrading blocs").6. Alfredo Fuentes-Hernandez, Globalization andLegal Education in Latin America: Issuesfor Law and Development in the 21st Century, 21 PENN ST. INT'L L. REV. 39, 50 (2002).[Vol. 172Florida Journal of International Law, Vol. 17, Iss. 1 [2005], Art. 1https://scholarship.law.ufl.edu/fjil/vol17/iss1/1LEGAL EDUCATION IN THE AMERICAS: THE ANCHOR FOR HEMISPHERIC JUSTICEII. LEGAL EDUCATIONIn the emerging complexities of globalization, the law must provideguidance and stability to cope with these difficult and rapidly changinglandscapes. To accomplish these goals, legal education in the hemispheremust equip young lawyers to understand this new world.7Despite common goals, there are still different teaching methods anddistinct legal systems to teach. The civil law system and the common lawsystem are, of course, distinct, both being taught in a unique manner.Through internal initiatives, there have been changes in civil systems inseveral countries, such as expanded oral participation in court proceedingsand the acknowledgment of the value of precedent. Both civil andcommon law systems also share areas of future development, such asalternative dispute resolution.8 Yet the legal education systems in Northand South America remain quite distinct.The traditional Latin American civil law education is a five-yearprogram without other higher study. Instruction is based largely on passivelecture without skills instruction or engagement in problem solvingtechniques. There is a shortage of full-time faculty in Latin American lawschools. Most professors work as lawyers.9 Full-time faculty members arethe exception, rather then the rule. In many places in Latin America,access to a legal education for those in lower income groups is limited.1In the United States, the approach to a common law legal education iscalled Langdellian, after the influential Harvard Dean of the 1800s. " Thismethod focuses on developing analytical abilities rather than concentratingon particular answers. 2 The Langdellian method has been criticized by theAmerican Bar Association for not adequately training students for the7. See Bemabe-Riefkohl, supra note 1, at 162 (explaining that law schools in theglobalization era should "provide students with a complete education[;]" one that develops practicalskills, yet still emphasizes research, criticism, and contributions to society).8. See Fuentes-Hernandez, supra note 6, at 45.9. See id. at 42. Lack of teachers is not the only problem facing Latin American education.If professors were full-time, they would be teaching in institutions with "poor physical facilities,limited and obsolete library resources, [and] outdated curricula ..." See id.10. See id. at 42-43. This inequity is a continuation of an overall trend in Latin America,where, "[o]n average, [students] ... remain in school fewer than nine years, much less than the U.S.average of 13.5 years. . . .See id. The need for "well-designed student aid mechanisms" isparamount, so low-income students do not have to work to continue their studies. See id. at 42.11. See Jean R. Stemlight, Symbiotic Legal Theory and Legal Practice: Advocating aCommon Sense Jurisprudence of Law and Practical Applications, 50 U. MIAMI L. REV. 707, 721(1996).12. See id. at 721-22.3Mills: Legal Education in the Americas: The Anchor for  Hemispheric JustPublished by UF Law Scholarship Repository, 2005FLORIDA JOURNAL OFINTERNATIONAL LAWpractice of law and for being weak in practical legal training and skills.1 3Another criticism of most U.S. law schools is that too little emphasis is puton international law.14Both the common law and the civil law systems of education face achallenge from the ever-shrinking world, which requires schools toprepare their students for a reality beyond their domestic laws.II. LAW AND DEVELOPMENT OF THE 1960SAn earlier method of dealing with the diversity of legal systems was aneffort by some to convert Latin American systems to a more Americansystem. 5 This technique was later criticized as "legal imperialism," aneffort to impose U.S. legal systems in Latin America.16 This effort failedto grasp the deep cultural and historical differences between the UnitedStates and Latin America.17Even the old colonial systems of North and South America weredifferent, as evidenced by the development of different legal cultures andsystems. North America was a colony of Great Britain until it broke itscolonial yoke, based on the idea that ability and morality would definestatus, not royal blood or inheritance. 8 Latin America, colonized largelyby Spain, developed highly centralized bureaucratic governments,intensely loyal to the crown. Postcolonial systems remained centralized,with most Latin American nations retaining "strong, intrusive executivebranches[,]" and weak legislative and judicial branches.1 9 Therefore, LatinAmerica's legal system was based on implementing the written ruleconsistent with the Roman Law tradition rather than the common law13. See id. at 722.14. See Bernabe-Rietkohl, supra note 1, at 154.15. See Francis S. Snyder, The Failure of "Law and Development, " 1982 WiS. L. REV. 373,373 (1982) (reviewing JAMEs A. GARDNER, LEGAL IMPERIALISM: AMERICAN LAWYERS ANDFOREIGN Am IN LATIN AMERICA (1980)).16. See id. at 374-76.17. See, e.g., id. at 386-91. Snyder both agrees and criticizes James A. Gardner's view thatAmerican "legal missionaries" failed in Latin America because they were "poorly informed aboutthe political, economic, and social conditions in the countries where they worked, and werefrequently ill-trained and ill-prepared to cope with cultural and social differences." Id. at 377, 387.18. See Stemlight, supra note 11, at 720-21.19. See John Linarelli, Anglo-American Jurisprudence and Latin America, 20 FORDHAMINT'L L.J. 50, 50-51 (1996).[Vol. 174Florida Journal of International Law, Vol. 17, Iss. 1 [2005], Art. 1https://scholarship.law.ufl.edu/fjil/vol17/iss1/1LEGAL EDUCATION IN THE AMERICAS: THE ANCHOR FOR HEMISPHERIC JUSTICEtradition.2" In this context, the attempts to impose new legal systems andmethods of teaching have floundered.2'IV. JUDICIAL REFORMHowever, some efforts at cross-border idea-sharing still continue. Forexample, judicial reform has been a catch phrase and a focal point forinternational law reform.22 This focus on judicial reform comes fromconcerns based on Latin American citizens' lack of faith in judicialsystems because of their apparent disregard for the rule of law or how itis implemented by their courts.23 The North American judicial system isalso imperfect. One clear example is the perceived gap between legaleducation and legal practice in the United States.24 This gap is evidentwhen courts in the United States are continually confronted withinternational issues and many judges lack the requisite experience ortraining to handle such issues. Basic legal education should include moreinternational components to prepare both lawyers and judges.25Efforts at judicial reform in the Americas have met with some successin places such as Chile and Costa Rica. However, substantial resistance tochange comes from those satisfied with the existing system, includingpolitical elites and judges.26 Cases still take an extremely long time to beresolved in Latin America.27 This dissuades many from entering the20. See id. at 61.21. See generally Snyder, supra note 15.22. See generally Linarelli, supra note 19, at 69-71 (explaining the problems with weakjudges and the need for a stronger judiciary in Latin America).23. See id. at 73. Although many Latin Americans have a "rule-oblivious mentality[,]"Linarelli points out they also, paradoxically, exhibit a certain "faith in the 'ideal of law .... ' Id.at 74.24. See Bemabe-Rietkohl, supra note 1 at 145-47. An ABA task force formed in the 1990sconcluded that many young lawyers lacked the "simpler skills" necessary to assume theresponsibilities of practicing law. See id. at 146. Bemabe-Riefkohl noted that Professor Harno alsoreported this deficiency in America's judicial system forty years earlier. See id.25. See id. at 154. Legal education must anticipate the importance of the growing "collectivelaw" created from globalization by "offer[ing] this general knowledge of the different lawtraditions" and "expan[ding] ... international law and comparative law courses ... " Id.26. See Maria Dakolias, A Strategy for Judicial Reform: The Experience in Latin America,36 VA. J. INT'L L. 167, 170 (1995) (stating "[blecause those who control the judiciary enjoy amonopoly on the justice system, they have no incentive to promote reform or act efficiently.")27. Id. at 170-71; see also Linarelli, supra note 19, at 73.5Mills: Legal Education in the Americas: The Anchor for  Hemispheric JustPublished by UF Law Scholarship Repository, 2005FLORIDA JOURNAL OF INTERNATIONAL LAWjudicial system to resolve problems.28 Further, some critical reforms suchas increased public appropriations to the judicial system, enhanced judicialsalaries, and training will take more time to have a significant impact.29Maybe the best way to fundamentally improve legal and judicial systemsacross the Americas is to focus on the basics, with an eye toward thefuture; that is, to focus on legal education.V. EDUCATION REFORMLegal education defines the next generation of lawyers' abilities,ethics, and understanding of transitional issues. There are calls forharmonization, increased exchange of students and faculty, andrecognition that, ultimately, law students and lawyers should share similarcultures and roles throughout this hemisphere.3 ° Some scholars areconcerned that Latin American legal systems have lagged behind socialreform movements and thus have lost relevance.31 These scholars advocatefundamental changes in point of view.32 In other words, they believe thatlawyers have a role in our societies as "architects of order.' 33What common goals should Latin America and the United Statesestablish to develop lawyers who are architects of order? An initial stepmay be simply offering or requiring more courses in comparative andinternational law.34 Another goal should be persuading law schools toteach substantive knowledge and practical skills that transcend borders,35such as foreign languages.36 An example is the creation of courses thatpromote cultural understanding of other legal systems and peoples.37Additionally, promoting values that emphasize public service is anecessary component to developing lawyers who respect their roles asarchitects of order.38 Clinics, which represent public service at the law28. See Dakolias, supra note 26, at 170-71 (explaining that cases often take up to twelveyears to resolve, which causes a backlog of the system and additional losses for those lucky enoughto have their cases heard in the first place).29. Id.30. See Fuentes-Hernandez, supra note 6, at 52-54.31. See Linarelli, supra note 19, at 54.32. See id. at 53-54 (quoting John Henry Merryman's "basic work on civil law tradition").33. See Bernabe-Riefkohl, supra note 1, at 162.34. See supra text accompanying note 22.35. See Bemabe-Riefkohl, supra note 1, at 154.36. Id. at 153.37. See id. at 154. This instruction, however, cannot simply begin at the graduate level, butinstead should be emphasized at lower education levels. See id. at 152-53.38. See id at 157-58.[Vol. 176Florida Journal of International Law, Vol. 17, Iss. 1 [2005], Art. 1https://scholarship.law.ufl.edu/fjil/vol17/iss1/1LEGAL EDUCATION IN THE AMERICAS: THE ANCHOR FOR HEMISPHERIC JUSTICEschool level, should establish international educational opportunities, toexpose students to a global practice and foster a global community.39Service towards clients and other lawyers is another aspect of publicservice that requires an across-the-border teaching of ethics andprofessionalism.' Finally, for lawyers across the hemisphere and globe toview their role as architects of order, legal education must create commonstandards for practice and professionalism."VI. CONCLUSIONPrevious efforts at hemispheric harmonization appeared as efforts tochange Latin American legal systems to look more like those in the UnitedStates. These efforts at "legal imperialism" failed. A long-term viewwould instead seek to harmonize our understandings, principles, andvalues. For that result, changes in legal education would be more lastingand profound. As a point of departure, we should use the fact thatpractically all nations in the hemisphere articulate virtually identical goalsfor their legal systems. We thereby establish common ground to educatelawyers for a system that operates honestly and transparently, provides dueprocess, justice, and equal treatment to our citizens, and provides stabilityand continuity to commercial activity.The European Union has established standards for membership thatrepresent a common legal system." The driving force in establishing legalsystem standards or transnational legal standards seems to be tradeagreements and commerce.43 In the Americas, the Free Trade Agreementof the Americas may be a driving force. Beyond the motivation ofcommerce and trade, the most stable method for achieving the generalprinciples of a hemispheric legal system is a common purpose in legaleducation that will prepare students for the twenty-first century practice.39. See id. at 158. Bemabe-Riefkohl points out that with globalization must come recognitionof legal education's responsibility to the community. See id.40. See Bernabe-Riefkohl, supra note 1, at 156.41. See id. at 162 (stating that the "ideals ofprofessionalism and justice" must be maintainedby legal educators, in the face of the new economic realities of globalization).42. See id. at 153-54 (discussing how some European Union legal educators have gone sofar as to suggest the "standardization of legal education throughout the continent").43. See, e.g., id. at 148. Globalization and expansion of foreign markets will subject manybusiness and contractual relationships to "more than one legal system." Id. at 149. -Therefore,attorneys will be the new legal "interpreters" of the globalization markets, forcing legal educationto adapt to "new forms of the practice of law." See id.7Mills: Legal Education in the Americas: The Anchor for  Hemispheric JustPublished by UF Law Scholarship Repository, 20058 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 17Ultimately, educational institutions outlast many political movementsand governments. The annual conference on "Legal Issues in theAmericas" will continue to provide a forum for discussion of mutual goalsand ideals for the rule of law. If multiple educational institutions in theAmericas can agree on elements of a common agenda, we can develop acadre of new lawyers who speak a common language of legal values in away that promotes lasting justice and democracy.8Florida Journal of International Law, Vol. 17, Iss. 1 [2005], Art. 1https://scholarship.law.ufl.edu/fjil/vol17/iss1/1

Legal Education in the Americas: The Anchor for  Hemispheric Justice

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Legal Education in the Americas: The Anchor for Hemispheric Justice

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