Boshkoff, Douglass G.

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The Foreign Law School Dilemma

Indiana University Bloomington Maurer School of Law

Maurer School of Law: Indiana UniversityDigital Repository @ Maurer LawArticles by Maurer Faculty Faculty Scholarship1977The Foreign Law School DilemmaDouglass G. BoshkoffIndiana University Maurer School of LawFollow this and additional works at: http://www.repository.law.indiana.edu/facpubPart of the Legal Education Commons, and the Legal Profession CommonsThis Article is brought to you for free and open access by the FacultyScholarship at Digital Repository @ Maurer Law. It has been accepted forinclusion in Articles by Maurer Faculty by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationBoshkoff, Douglass G., "The Foreign Law School Dilemma" (1977). Articles by Maurer Faculty. Paper 2130.http://www.repository.law.indiana.edu/facpub/2130SHOULD THE ACCREDITATION RESPOIISIBILITY OF THE SEC7THEFOREIGINLAW SCIOOLDILEMMA P.BY DOUGLASS G. BOSHIKOFF/Chairman, Bar Admissions CommitteeMost American jurisdictions have both pre-legal andlegal education requirements that must be satisfiedbefore the bar examination can be taken. Many juris-dictions require graduation from an ABA approvedlaw school, but the ABA does not accredit law schoolslocated outside the United States. Therefore, grad-uates of foreign law schools-increasing numbers ofwhom are seeking admission to American practice-often are not eligible, under applicable rules, to takean American bar examination. The problems thatarise from this situation were the subject of a confer-ence held last year by the National Conference of BarExaminers and the Section of Legal Education andAdmissions to the Bar.The conference did not purport to recommend onesolution to the problem. It did, however, produce fourgeneral areas of agreement.1. Initial training in a civil law jurisdiction does notprovide as good a background for practice in theUnited States as does training in the United States.Procedures for giving credit for foreign law studyshould take this difference into account.2. It makes no sense to place all the screeningburden on the bar examination. There is justificationfor some period of training in the United States. AJ.D. degree from an ABA approved American schoolis the best evidence of the adequacy of an applicant'slegal education, but this is probably not a practicalrequirement in all cases. Amendment of the ABA'sStandard 308 to permit credit to be given toward theJ.D. degree for up to two years of study outside theUnited States is a possibility.3. Special educational programs are worth inves-tigating, at least in some states. They are expensive, attimes controversial, and require a great deal of com-mitment on the part of all concerned parties. Never-theless, they have some potential for equippingforeign lawyers to sit for the bar exam.4. Lack of proficiency in English is a serious handi-cap for the foreign law graduate. Careful screening ofapplicants from foreign law schools for capability inthe English language is advised.There is more than enough work to keep inspectionteams occupied in the United States. To extend theaccreditation function outside the United Stateswould be a serious drain on the resources of everyoneinvolved. Furthermore, the cost-benefit ratio is not asfavorable as it is in the case of a domestic law school.Only a few graduates of a foreign law school may seekadmission in any given year in the United States,compared with the large number of graduates comingout of any domestic law school in the same period.Finally, political considerations cannot be ignored.There is no indication that any invitations to accreditwould be forthcoming from foreign law deans, even ifthe ABA decided to assume this responsibility.American jurisdictions now respond in three prin-cipal ways to the application of a foreign law schoolgraduate. First, it is possible for state admittingauthorities to insist upon a J.D. degree from an ABAapproved school.Under this alternative, persons who have receivedlegal training outside the United States may qualifyfor admission to an American bar examination aftertwo additional years of study in the United States.This approach insures that all applicants will havesome substantial uniformity of training in the legalskills and knowledge presumed to be essential for thepractice of law in the United States.This approach has its drawbacks. The limitation ofcredit to only one year may be unrealistic in the case ofwell-trained foreign graduates, especially when theycome to us from other common law jurisdictions. Italso is questionable whether a substantial number offoreign law students can gain access to an Americanbar examination. Law schools are under great admis-sions pressures from domestic applicants, and it isunlikely that American law schools will want todisplace American applicants very often.An alternative to the J.D. degree earned in twoyears is a graduate degree, the L.L.M. or M.C.L.Some jurisdictions now accept these degrees asmeeting the requirements of a degree from an ABAapproved school. Other jurisdictions do not evenrequire a degree, but accept a stated amount of hoursof study in an American law school. Lack of uni-formity of educational background distinguishes thisapproach from the one in which an American J.D.degree is required.Graduate law programs vary widely in the UnitedTI-lRTY-TWON BE EXTENDED TO SCIOOLS OUTSIDE THE UNITED STATES?States. Some may require course work; others, coursework plus a thesis. Graduate courses themselves varywidely and are tailored to the needs of each graduatestudent. There is no common core curriculum of thetype that characterizes the J.D. degree. Therefore, thedegree requirement does not perform the same screen-ing function and training as the requirement of a J.D.degree. It would, of course, be possible to meet thisobjection by recognizing only certain programs ofgraduate study, but there appears to be no inclinationon the part of state admitting authorities to draw dis-tinctions between various graduate programs.A third approach is to examine the academic cre-dentials of each applicant and try to decide whetherthe applicant has received the equivalent of an educa-tion at an ABA approved school. Some states are nowdoing this, although it is difficult to secure informa-tion on how extensive the procedure is. This probablyis the most unsatisfactory approach. Equivalency hasboth qualitative and quantitative aspects. It is neces-sary to ask whether the student has received as exten-sive and as good an education at a foreign law schoolas the applicant would have received at an ABAapproved school. Also, no matter how technicallysatisfactory the training in a foreign law school maybe. it will not focus on American problems.To the uninitiated, case-by-case determination ofequivalency seems to be an eminently fair way inwhich to proceed. And yet, the complexities of com-parison either produce very few findings of equivalen-cy, or lead to a collapse of standards.Several years ago, the New Jersey Supreme Courtapproved a program in which foreign trained attor-neys would be permitted to sit for the state bar exam-ination provided they were licensed, or educationallyqualified for licensing, to practice law in the countryof their training. The applicant also must have hadtraining that was substantially equivalent to trainingat an ABA approved law school.From the very beginning, the committee appointedto administer the program found it difficult to insistupon equivalency. It found there were very few placesin the world that had standards approaching ours-a minimum of three years of college work plus threeyears of law school. Initially, the committee decided toaccept a requirement of five years' total training. Italso determined that, since it had absolutely no basisupon which it could evaluate the quality of the grad-uate schools, it would not attempt to make judgmentsabout the quality of the school or training.It soon became apparent it was impossible to main-tain any but the most arbitrary standards. Studentswere presenting credits in areas not even studied inAmerican schools. But these credits were acceptedbecause to do otherwise would eliminate most foreignapplicants.The committee eventually admitted to the barexamination persons not fully qualified for admissionin the foreign jurisdiction when it appeared that lackof qualification did not bear on the quality of theeducation. The New Jersey program became essen-tially non-selective. The program considered a total of250 applicants; the committee approved 244 foradmission to the New Jersey bar examination. Thereported success rate for this group of examineesworks out to approximately 9 percent. Disappointingas it may be, the figure confirms the success of the barexamination as a screening device, and providesindirect support for the requirement of graduationfrom an ABA approved school.Florida, like New Jersey, attempted to respond to thelarge number of applications from persons-primarilyCuban refugees-receiving their training in a foreignlaw school. Unlike New Jersey, though, Floridaconditioned eligibility to sit for the bar examination oncompletion of a remedial study program in a Floridalaw school. Both the University of Florida and theUniversity of Miami offered such courses. The Miamiprogram essentially consisted of resident study throughthe week; the Florida program utilized weekends. Bothinvolved substantial periods of instruction. The Miamiprogram ran four nights a week for six semesters; theUniversity of Florida program ran for a full day onSaturdays over a period of seven quarters. The successrate for persons who had completed either one of theseprograms of remedial education was substantiallyhigher than the 9 percent rate found in New Jersey. Notsurprisingly, the bar examination success rate ofparticipants seemed to be positively influenced by theprograms' selective admissions procedure. &TH RTY-THREE

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The Foreign Law School Dilemma

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