Following on from my previous report on Mr Akira Kawamura’s talk in Sydney about the significant transformations impacting on the legal profession in Japan, East Asia and world-wide, let us briefly consider also some inter-related changes to legal education in our region. ANJeL Judges-in-Residence Program Convenor Stacey Steele is co-editing, with Kathryn Taylor, “Legal Education in East Asia: Globalisation, Change and Contexts” (forthcoming in December from Routledge: ISBN 978-0-415-49433-5) to commemorate the late Professor Mal Smith, who did so much for ANJeL, Australia-Japan relations, and legal education particularly in the Asia-Pacific region. ANJeL Co-director Kent Anderson and Competitions Program Convenor Trevor Ryan have contributed a very useful chapter on “Gatekeepers: A Comparative Critique of Admission to the Legal Profession and Japan’s New Law Schools”, which they and Stacey have kindly shared with me in manuscript form.
Hopefully without stealing too much of their thunder, I would like to extend it to locate especially Australian legal education. Below are my opening remarks for a co-authored National Report on Topic I.D “The Role of Practice in Legal Education” for the 18th International Congress of Comparative Law, held four-yearly in different venues – this time from 25 July 2010 in Washington DC. Through the Sydney Centre for International Law, Professor Cheryl Saunders, Justice James Douglas and I have arranged for many other National Reporters on diverse topics selected for the Congress. We can also expect there many National Reports from Japan, although it remains to be seen whether anyone has volunteered one for the same Legal Education topic. There remains considerable uncertainty about Japan’s new postgraduate “Law School” programs and their relationship to the National Legal Examination system, as I explained in a paper first presented a conference organised by Stacey in Melbourne where the “gatekeeper” framework was first unveiled.
Overall, but focusing especially on Japan, Kent Anderson and Trevor Ryan show how legal education and entry to the legal profession can usefully be analysed by comparing who acts as “gatekeeper” to the profession. One possible gatekeeper is the legal profession itself. Traditionally, in England, this comprises solicitors and barristers, who administer qualification examinations. This system has also been influential in former British colonies like Australia (Antons, 2001).
However, an alternative gatekeeper is the university system. Countries like Australia (and New Zealand) have moved mainly to this model since around the 1960s, by basically requiring all lawyers to have passed an LLB or similar (undergraduate or initial) law degree. (NSW is unusual in retaining an alternative, perhaps reflecting the strength of the profession vis-à-vis universities in that state. The Legal Profession Admission Board allows students instead to study for its exams, mostly in evening classes, preparing students for the Diploma in Law – treated as equivalent to an LLB for qualifying as a lawyer in NSW. This program is nominally affiliated with the University of Sydney, but instructors and course content are quite separate from its Law School: compare www.usyd.edu.au/lec/ with www.law.usyd.edu.au.) It is true that throughout Australia there are now-short programs for Practical Legal Training (PLT) necessary in addition to an LLB for admission as lawyers, and these administered eg in NSW primarily by the “College of Law”, but some law schools sometimes administer those too (eg the University of Technology in Sydney).
Nonetheless, Australia also has affinities with a model centred on a third possible gatekeeper: the market (for law graduates). The US epitomizes this model because basically anyone can pass even the hardest state bar examination – but if only after multiple attempts or with poor results, that person will not be able to compete in the market and get a good job as a lawyer (especially if also a graduate from a less well-regarded law school or with poor university grades). Australia is similar because the proliferation of law schools particularly since the late 1980s allows basically everyone to get some form of LLB, and basically everyone can pass the short PLT programs if they can afford them. But if someone’s university grades are underwhelming, s/he will find it very difficult to actually practice as lawyers.
Australia also shows some influence from a model centred on a fourth gatekeeper: the state. This arises because the government funds universities, especially through limited numbers of Commonwealth Supported Places (CSP) for many students undertaking LLB degrees – whereby students pay lower fees to the law schools, and the government pays them a subsidy per student. Yet, as explained below, Australia has witnessed not only the emergence of a few private law schools since the late 1980s. There is also a growing tendency for public law schools to seek full-fee-paying LLB students (as well as international students, and LLM or other similar postgraduate students, who are always full-fee-paying – note however that an LLM or such qualification does not allow admission to the legal profession). Still, this situation remains very different from (more “civil law tradition”) countries like Germany or Japan (Abe & Nottage 2008), where the state – with more or less consultation with the legal profession – sets a national legal examination. (Usually the latter also opens up careers in the judiciary or procuracy, not just as lawyers, and often therefore it is accompanied by some post-exam training at state rather than private expense.)
Australia’s legacy of the legal profession itself as a gatekeeper is reflected not only in the NSW LPAB exams alternative to the LLB, but also more generally in the profession’s broad control over what must be taught in the LLB (the “Priestley 11”, named after a committee chaired by a then-Judge, described further below). Combined with a (possibly accelerating) shift towards the market as major gatekeeper to the profession, this generates strong pressures to make legal education “practice-oriented” even in universities. However, their law schools are increasingly integrated in wider academic communities, nationally and internationally, and the government also has interests in law students graduating with a broader perspective (as well as incentivising law schools in other ways by offering funding for research, not necessarily linked to teaching). The net effect since the 1970s, at least until recently, has been for law school education to become less practice-oriented and more interdisciplinary and theoretical – although less so, for example, compared to the top US law schools (see eg Coper 2007-8 and Nottage 2008, both containing further references). Whether this balance is optimal or sustainable is difficult to assess, but hopefully we can explore this in broader comparative and theoretical perspective in Washington DC in August 2010.
• Abe, Masaki and Nottage, Luke (2006), ‘Japanese Law’ in ENCYCLOPEDIA OF COMPARATIVE LAW (J. Smit, ed, Edward Elgar, Cheltenham), updated at http://www.asianlii.org/jp/other/JPLRes/2008/1.html
• Anderson, Kent & Ryan, Trevor (2009), ‘Gatekeepers: A Comparative Critique of Admission to the Legal Profession and Japan’s New Law Schools’, in LEGAL EDUCATION IN EAST ASIA (S. Steele & K. Taylor, eds, Routledge, London, forthcoming)
• Antons, Christoph (2001), ‘Legal Education in Australia’ 22 Kansai U. Rev. L. & Pol. 71 [Scanned PDF may be available from Luke Nottage on request]
• Coper, Michael (2007-8), ‘Law Reform and Legal Education: Uniting Separate Worlds’ 39 U. Toledo L. Rev. 233
• Nottage, Luke R (2008), International Arbitration and Commercial Law Education for an International World, in THE RECEPTION AND TRANSMISSION OF CIVIL PROCEDURAL LAW IN THE GLOBAL SOCIETY (M. Deguchi & M. Storme, eds, Maklu, Antwerp/Apeldoorn, 2008), also CDAMS Discussion Paper No. 04/30E; Sydney Law School Research Paper No. 07/84 at SSRN: http://ssrn.com/abstract=838030
• Sydney Law Review special issue 26(4), at http://www.law.usyd.edu.au/slr/docs_pdfs/editions/slr_v26_n4.pdf