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The Association of Transnational Law Schools' Agora: An Experiment in Graduate Legal Pedagogy

Published online by Cambridge University Press:  06 March 2019

Phillip G. Bevans  and
John S. McKay

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The Association of Transnational Law Schools [ATLAS] is a consortium of seven law schools from four continents that launched an annual academic summer program, called the Agora, for doctoral students this past July 2008. As the name of the consortium would suggest, the program focused on transnational law. The Agora is one of several multi-school initiatives aimed at furthering the study of the globalizing legal environment. The Agora both reflects and furthers a trend in legal scholarship, and as a consequence legal education, toward a focus on a set of interrelated concerns, which include globalization, international governance, transnational law, comparative legal studies, legal transplantation and the apparent conceptual challenges that these pose. In important respects these new conceptual challenges have a long pedigree in questions about the scope of legal pedagogy and theory. The pedagogical controversy is rooted in questions about the purpose of legal education, namely, whether it is trade training and should focus on practical legal skills, or whether it should be conceived of as broader than this. Intimately connected to this pedagogical controversy is a legal-theoretical controversy about the scope of legal theory (and thus the nature of law and its investigation). Does the word “law” designate the organizational instruments of state power, or should we think of “law” as referring to a more diverse set of social-organizational systems that may have greater or less affinity and connection with state law?

Type
Section 3: ‘Inside-Out?’ Towards a Transnational Legal Education?
Information
German Law Journal , Volume 10 , Issue 6-7: Following the Call of the Wild: The Promises and Perils of Transnationalizing Legal Education , July 2009 , pp. 929 - 958
Copyright
Copyright © 2009 by German Law Journal GbR 

References

1 “Transnational law” is a coinage generally attributed to Phillip Jessup. Jessup delivered the prestigious annual Storrs lectures at Yale Law School in 1955. The lectures were published the following year as a short monograph: Phillip Jessup, Transnational Law, (1956). Jessup's idea, and the general idea of the ATLAS program, is that the focus on an interlocked system of domestic/municipal law and international law no longer provides an adequate conceptual description of the realities of the legal apparatus that functions within and across borders and functions in ways both more complicated and unanticipated by such a description. On the fiftieth anniversary of their publication, Peer Zumbansen revisited Jessup's Storrs lectures in: Peer Zumbansen, Transnational Law, in The Elgar Encyclopedia of Comparative Law, (Jan Smits, ed., 2006); also available at http://ssrn.com/abstract=1105576.Google Scholar

2 The Association's Memorandum of Understanding [MOU] sets out the focus of the program “around the general themes of ‘transnational law and governance’ and ‘comparative law and globalization’ (MOU, at 1). The MOU is an internal document to the participating institutions and was ‘opened for signature’ on October 16, 2007. While the focus on transnationalization is at the core of the ATLAS and the Agora, both in its name and description, the program is conceived as having room for participants who are not wholly focused on issues of transnationalization, but who may benefit from participating in the program. Member schools are responsible for selecting participants from their own cohort of doctoral students to participate in the program. The selection criteria for participating students are academic excellence and research potential (MOU, at 2). A focus on legal transnationalization, while a desideratum for selection, is not requisite. The consortium is said to be “dedicated to the intellectual formation of highly talented doctoral students and fostering reflection and research on issues broadly related, but not limited, to comparative legal and regulatory responses to various forces of globalization, international governance challenges and the evolution of transnational law.” (ATLAS web site, http://www.atlasdoctorate.org, last consulted 10 March 2009).Google Scholar

3 See Metro Research Institute, Maastricht University, available at: http://www.unimaas.nl/default.asp?template=werkveld.htm&id=7L70CD04720O0M4KAOC7&taal=en.Google Scholar

4 The Center is a collaboration between ten law schools from around the world spearheaded by Georgetown University. It is a semestered program aimed at first-degree law students. Center for Transnational Legal Studies, Available at: http://ctls.georgetown.edu/info/index.html#Newctrtranslegal Another example demonstrating the interest in global law, though not at a law school, is Brown University's Advanced Research Institute in Law, Social Thought and Global Governance, a program for emerging scholars proposed to be held annually, starting in June 2009 available at: http://www.brown.edu/Administration/International_Affairs/initiative/index.html.Google Scholar

5 Among United States law schools alone, Cornell University Law School, Columbia Law School, New York University Law School, American University Washington College of Law, and no doubt others, offer dual degree programs with other law schools in North America, Europe, Asia, and Africa: see Simon Chesterman, The Globalisation of Legal Education, Singapore Journal of Legal Studies 58, 63–64 (2008).Google Scholar

6 Id., 62–65.Google Scholar

7 Said to be the first multijurisdictional gathering held to discuss transnational services was the 1998 Paris Forum on Transnational Practice for the Legal Profession. A report of this meeting occurs in the following: Laurel Terry, An Introduction to the Paris Forum on Transnational Practice for the Legal Profession. 18 Dickinson Journal of International Law, 1 (1999-2000). Other influential conferences include: The American Association of Law Schools (“AALS”) Symposium on Emerging Worldwide Strategies in Internationalizing Legal Education held at the AAL Annual Meeting on January 6, 2000 in Washington, D.C.; the AALS Conference of International Legal Educators held at NYU's campus at Villa La Pietra, (in Florence, Italy in 2000 (involving 50 invited legal educators from about 30 different countries) (the “2000 Conference”); the Global Legal Practice Symposium Issue, 22 Penn State International Law Review, No. 4 (2003-2004) based on the Global Forum on International Legal Ethics and Rick Management Legal Practice jointly sponsored by the Association of Professional Responsibility Lawyers and the University of Oxford, held in Florence, Italy in October 2002; the American Association of Law Schools Conference on Educating Lawyers for Transnational Challenges held in Hawaii, 26–29 May 2004 (the “2004 Conference”); and the Symposium on Educating Lawyers for Transnational Challenges held at the AALS Annual Meeting in San Francisco in 2005. This last conference was reported in 23 Penn State International Law Review, No. 4. (2004-2005). The 2000 Conference was believed to be the first worldwide conference held to discuss international cooperation in legal education. See John Sexton and Carl C. Monk, Papers from the La Pietra Conference of International Legal Educators, 51 Journal of Legal Education 313 (2001). This volume also contains conference proceedings.Google Scholar

8 From the 2000 Conference and the 2004 Conference and the AALS 2005 Annual Meeting evolved the meeting in Istanbul, Turkey, in May 2005 at which the International Association of Law Schools was established and then incorporated in October 2005. Craig Scott was a founding member and director, as well as Chair of the Nominating Committee. See also Carl Monk, What Kind of Machinery Can Be Set in Place on an International Basis so that the Process Can Continue in a Constructive Manner in Years Ahead? 23 Penn State International Law Review, No.4, 749 (2004-2005).Google Scholar

9 This raises some conspicuous questions for the program: Is it somehow part of an elite discourse that excludes those marginalized by globalization? Are we seeing not the globalization of legal education, but its global Americanization (Chesterman (note 5) at 65)? These are important questions, which we must, for now, leave aside.Google Scholar

10 Scott, Craig, Transnational Curriculum for Tomorrow's Lawyers – Is There a Curricular Core for the Transnational Lawyer?, (Paper presented at the AALS Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004) 157.Google Scholar

11 Interview with Craig Scott conducted on November 28, 2008. Craig Scott is Professor, Osgoode Hall Law School of York University (Associate Dean, Research and Graduate Studies, 2001–2004), Director of the Nathanson Centre on Transnational Human Rights, Crime and Security, Osgoode Hall Law School, and Academic Director, ATLAS, for 2006–2008. (Scott interview).Google Scholar

12 Id. Google Scholar

13 Id. Google Scholar

14 Scott, , supra note 10.Google Scholar

15 Scott interview, supra note 11.Google Scholar

16 Id. Google Scholar

17 Id. Google Scholar

18 The General Courses divided the cohort of Agora students into two (unevenly sized) groups (with more students in GC1). Students signed up to one or the other course but were free to attend as many sessions of the alternative general course as they desired. (Apart from the Dissertation Research Seminars, which divided the cohort into eight small groups, all other elements of the program were common to all students.) The MOU states that normally one general course will cater to “doctoral students most interested in international law, transnational law and governance, and globalization” while the other will cater to those “most interested in general jurisprudence or common challenges issues faced by domestic legal systems and comparative judicial, legislative and regulatory responses to such issues.” ATLAS organizers have described the general intention for this and future Agoras in slightly different terms. In our interview with Craig Scott he suggested the intention was to have one general course deal with issues of a more theoretical nature, and the other of a more practical nature. On the other hand, Professor Damien Chalmers, in our interview with him, suggested the intention was to have one general course deal with transnational issues and the other deal with non-transnational issues. (Interview with Damien Chalmers (LSE), 15 December 2008.)Google Scholar

19 ATLAS Lecture, Professor Peer Zumbansen (Osgoode), “Varieties of Globalization and Relationships to Law,” 7 July 2008. The readings for the lecture/discussion were: Saskia Sassen, Blind Spots: Towards a Feminist Analytics of Today's Global Economy, Presentation at the University of Wisconsin System Institute for Global Studies (27 September 1999); Joseph E. Stiglitz, Making Globalization Work 3–24 (2006); Teubner, Gunther, Global Bukowina: Legal Pluralism in the World Society, in Global Law Without a State 3 (Gunther Teubner ed., 1997).Google Scholar

20 ATLAS Lecture, Professor Robert Howse (NYU), “The End of the Globalization Debate,” (9 July 2008). Professor Howse in his lecture drew on a recent article of his: Robert Howse, The End of the Globalization Debate: A Review Essay, 121 Harvard Law Review 1528 (2008). Howse's lecture presented the thesis that the debate over globalization could no longer be framed in terms of pro-globalization and anti-globalization forces. Rather the debate has shifted to one where the stakes are global values and agendas—pertaining to environmental sustainability, human rights, labor standards, and so on—that cannot be advanced by retreating to the nationstate for shelter. The issues being prosecuted are simply beyond the capacity of any country, however powerful, to address by acting alone. Besides, nation-states have themselves been radically transformed by globalization, so it is unclear whether a retreat to the nation-state would in fact be a retreat from globalization. In light of these shifts, Howse in his lecture said he “wanted to tease out for law and legal scholarship what it means to be beyond the globalization debate.” That, it seems was the overall aim of the Agora as well. In making this argument Howse drew on the work of Saskia Sassen (Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (2006)).Google Scholar

21 ATLAS Lecture, Professor Stepan Wood (Osgoode), “Political Economy of Transnational Governance” (9 July 2008).Google Scholar

22 See International Organization for Standardization, available at: www.iso.org.Google Scholar

23 ATLAS Lecture, Professors Robert Howse (NYU) and Craig Scott (Osgoode), “Competing Constitutionalist Claims in the International System” (10 July 2008).Google Scholar

24 ATLAS Lecture, Professor Ruth Buchanan (Osgoode), “Transnational/International Legal Pluralism” (14 July 2008).Google Scholar

25 ATLAS Lecture, Professor Michael Giudice (York), “Inter-Field Relationships in Public International Law” (18 July 2008).Google Scholar

26 ATLAS Lecture, Professor Michael Giudice (York), “Conceptualizing Transnational Law” (24 July 2008).Google Scholar

27 Session 8 included a reading that did a particularly good job of reviewing the terrain of the issue: Roger Cotterrell, Transnational Communities and the Concept of Law, 21 Ratio Juris 1 (March 2008). In this essay Cotterrell outlines “four realistically possible approaches to the conceptualization of law in legal pluralism (at 8)”. The four alternatives are (1) monistic – which searches for a “single criterion of law to be applied to the diversity of legal regimes (at 8)”, (2) agnostic, (3) statist (which are self-explanatory), and the final option is pluralism. Cotterrell writes: “A final approach would be to rethink the concept of law to free it from biases built into it by its almost universal modern association with nation-state law. Such a concept would not be one that purports to reduce the plurality of transnational regulation to a single, unified system (a surely pointless task at the present time). Nor would it treat state law as necessarily expressing the essential contemporary characteristics of law. Instead, it would adopt criteria of the legal that are sufficiently flexible to recognise many different forms of law in currently indeterminate but potentially developing relations with each other (at 8).”Google Scholar

28 ATLAS Lecture, Professor Craig Scott (Osgoode), “Receiving the External: Relationships of Foreign and International Law to ‘Domestic’ Law” (17 July 2008).Google Scholar

29 Amongst the theories considered were agency theory and “nexus of contracts” theory, (see, for example, M. Jensen and W. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs, and Ownership Structure, 3 Journal of Financial Economics 305 (1976); E.F. Fama and M. Jensen, Separation of Ownership and Control, 26 Journal of Law and Economics, No. 2, 301(1983)), stakeholder theory, (e.g., in Edward R. Freeman, Strategic Management: A Stakeholder Approach (1985), at 53; and Principles of Stakeholder Management, The Clarkson Centre for Business Ethics and Board Effectiveness, Rotman School of Management, University of Toronto, http://www.rotman.utoronto.ca/ccbe/details.aspx?ContentID=215 (last consulted 5 Jan 2009)), “enlightened” stakeholder theory, (see, for example, M. Jensen, Value Maximization, Stakeholder Theory and the Corporate Objective Function, 14 Journal of Applied Corporate Finance, No. 3, 8 (2001), and team production theory, (see, for example, Margaret M. Blair and Lynn A. Stout, A Team Production Theory of Corporate Law, 85 Virginia Law Review 247 (1999).Google Scholar

30 These related matters include contracts and markets and the extent to which the corporation straddles both (as developed, for example, in R.H. Coase, The Nature of the Firm, 16 Economica No.4, 386 (1937); and Hart, Oliver, Corporate Governance: Some Theory and Implications, 105 The Economic Journal, 690 (1995), transaction cost economics (see, for example, Oliver Williamson, Markets and Hierarchies (1975)); and Williamson, Oliver, Corporate Governance, 93 YALE LAW JOURNAL NO. 7, 1197 (1984)), value maximization (for example, see Jensen, (note 29)), separation of ownership and control (as prominently outlined by A.A. Berle and G.C. Means, The Modern Corporation and Private Property, (1932); and discussed, for example, in Fama and Jensen, (note 29); credit for this insight is often given to Adam Smith, The Wealth of Nations (1832)), conflicts of interest and appropriation of managerial “rents” (see, for example, references cited at note 29, among others), risk management (see one discussion of this in Michael Power, The Risk Management of Everything, (2004) at 7), corporate social disclosure and corporate social responsibility (an early discussion of which appears in Cynthia Williams, The Securities And Exchange Commission And Corporate Social Transparency, 112 Harvard Law Review 1199 (1999); see also Greenfield, Kent, New Principles for Corporate Law, 1 Hastings Business Law Journal 87 (2005)), and the divergence/convergence of corporate law and regulation, affected by path dependence and other factors (for example, see Rafael La Porta, Florenzio Lopez-de-Silanes, Andrei Shleifer, and Robert W. Vishny, Legal Determinants of External Finance, 52 Journal of Finance No. 3, 1131 (1997); and Rafael La Porta, Florenzio Lopez-de-Silanes, Andrei Shleifer, and Robert W. Vishny, Law and Finance, 106 Journal of Political Economy No. 6, 1113 (1998); and other studies by those authors), in jurisdictions embodying different “varieties of capitalism” (see, for example, Ronald Dore, William Lazonick, and Mary O'Sullivan, Varieties of Capitalism in the Twentieth Century, 15 Oxford Review of Economic Policy No. 4, 56, (1999).Google Scholar

31 This included a discussion of a challenging paper by Peer Zumbansen in which he argues that European corporate law and regulation can be understood as a manifestation of transnational legal pluralism. Peer Zumbansen, 'New Governance’ in European Corporate Law Regulation as Transnational Legal Pluralism, 15 European Law Journal No.2, 246 (2009).Google Scholar

32 Beck, Ulrich, Risk Society: Towards a New Modernity, (1992), originally published in German in 1986. See also Barbara Adam, Ulrich Beck, and Joost van Loon, The Risk Society and Beyond: Critical Issues for Social Theory (2000).Google Scholar

33 See Power, supra note 30.Google Scholar

34 See Zumbansen, , supra note 31.Google Scholar

35 At the same time, within developed countries, such as the European Union, harmonization of corporate law has become a key objective, partly against the background idea that economic integration would be conducive to constitutional cohesion. Nonetheless, at the present time corporate and commercial law in Europe is one of the least harmonized areas of European law, partially because of its embeddedness or path dependent nature.Google Scholar

36 See the “varieties of capitalism” literature, supra note 30.Google Scholar

37 ATLAS Lecture, Professor Mary Condon (osgoode) and Professor Marilyn Pilkington (osgoode) “Rethinking Enforcement and Litigation in Securities Regulation” (10 July 2008).Google Scholar

38 Condon, Mary, Rethinking Enforcement and Litigation in Ontario Securities Regulation, 32 Queens Law Journal No. 1, 1, 34 (2006). Professor Condon situated her paper in the context of discussions about the proper normative goals of sanctioning by securities regulators, from both a law and economics perspective on the one hand, and a sociological one, on the other. She concluded that there is insufficient evidence to conclude that administrative and criminal sanctions administered ex post facto are effective deterrents to breaches of securities law, and that greater attention must be devoted to reshaping organizational incentives to promote compliance with, rather than breaches of, securities law (at 261). In the short run, however, a mix of private and public enforcement of securities laws, that is, by means of litigation initiated by private parties and by public regulatory authorities, may be appropriate (at 263).Google Scholar

39 Peter Cory and Marilyn Pilkington, Critical Issues in Enforcement (2006), (Research Study), Canada Steps Up: Task Force To Modernize Securities Legislation In Canada 165 (September 2006). Professor Pilkington commented on weaknesses that are widely perceived to exist in the enforcement of securities laws in Canada, and, in particular, made recommendations to strengthen the investigation, prosecution and adjudication of securities matters, as well as the recovery by investors of compensation for losses incurred as a result of breach of securities law. This reflected the breadth of research into these matters by various other commissions and enquiries initiated by regulatory authorities and legislative bodies, as well as a significant consultation process which the Task Force undertook.Google Scholar

40 Jessup, , supra note 1.Google Scholar

41 ATLAS Lecture, Professor Aaron Dhir, (Osgoode) “Perspective on Corporate Social Responsibility, Corporate Law and Human Rights,” (14 July 2008). His lecture drew on his recent article Realigning The Corporate Building Blocks: Shareholder Proposals as a Vehicle For Achieving Corporate Social and Human Rights Accountability, 43 American Business Law Journal 365 (2006).Google Scholar

42 This was also the subject of an early seminal paper by Professor Cynthia Williams (Osgoode) that was included in the materials, see note 30.Google Scholar

43 ATLAS Lecture Professor David Doorey (Osgoode) “Global Supply Chains as Foci of Regulation and Activism – The Case of Corporate Transparency and the Advancement of Workers’ Rights”, (16 July 2008). His research indicated that companies disclosing the location of their factories prepare for the event of disclosure by investing in and significantly improving labour practices, monitoring and inspections: Who Made That?: Influencing Foreign Labour Practices Through Reflexive Disclosure Regulation 43 Osgoode Hall Law Journal. (Osgoode Hall L. J.) 354 (2005). Google Scholar

44 ATLAS Lecture, Professor Harry Arthurs (Osgoode), “The Construction of Legal Fields: (Why) Are Labour Law and Company Law Different Animals?”, (July 23, 2008). Professor Arthurs referenced two recent papers which he authored or co-authored: Harry W. Arthurs, Corporate Self-Regulation: Political Economy, State Regulation And Reflexive Labour Law (2008) in Regulating Labour In The Wake Of Globalisation: New Challenges, New Institutions (Brian Bercusson and Cynthia Estlund, eds., 2008); and Harry Arthurs and Claire Mumme, From Governance To Political Economy: Insights From A Study Of Relations Between Corporations And Workers, 45 Osgoode hall. L. J. 439 (2007).Google Scholar

45 ATLAS Lecture, Professor Allan Hutchison and Professor Cynthia Williams, “Corporate Governance and Democracy” (24 July 2008). The principal text referenced was Allan C. Hutchinson. Little Republics: From Corpocracy To Democracy (2005) in The Companies We Keep: Corporate Governance For A Democratic Society (Allan C. Hutchinson, ed., 1997).Google Scholar

46 The Equator Principles are a set of social and environmental standards created by private sector banks and modeled on standards used by the World Bank. The commitment of some 56 banks and other financial institutions financing infrastructure development requires borrowers to comply with environmental standards has had the result that approximately 85% of new projects of that nature are subject to those principles. www.equator-principles.com Google Scholar

47 ATLAS Lecture, Profesor Gus Van Harten (Osgoode), “The Transnationalization of Investment Law: Treaty Rights of Corporations and their Implications for Public Law and Public International Law” (22 July 2008). Professor Van Harten's lecture discussed a paper he recently jointly authored: Gus Van Harten and Martin Loughlin, Investment Treaty Arbitration As A Species Of Global Administrative Law, 17 European Journal Of International Law, NO. 1, 121 (2006).Google Scholar

48 ATLAS Methodology Workshop, Professor Doug Hay (Osgoode), “Engaging in Field Work: From Planning to Interpreting Results”.Google Scholar

49 Douglas Hay and Paul Craven, Introduction, in Masters, Servants And Magistrates In Britain And The Empire: 1652–1955 (Douglas Hay and Paul Craven, eds. 2004).Google Scholar

50 ATLAS Methodology Workshop, Professor Janet Mosher (Osgoode), “The Politics of Collaborative Research” (15 July 2008). Professor Mosher commented on various types of community-based participatory research (CBPR), and referenced, by way of example, the discussion by Meredith Minkler in Community-Based Research Partnerships: Challenges And Opportunities, 82 Journal Of Urban Health: Bulletin Of The New York Academy Of Medicine, NO. 2, Supplement 2 (2005).Google Scholar

51 Woman and Abuse Welfare Research Project, Walking on Eggshells: Abused Women's Experiences of Ontario's Welfare System (2004).Google Scholar

52 Id. at 11–12.Google Scholar

53 Among other things, they ask what are the lawful or otherwise appropriate limits of police or other governance powers in asserting control or dominance, such as by way of colonialism? Or, contrariwise, what are the limits of violence in resisting colonial or other oppression?Google Scholar

54 Pontecorvo, Gillo, (director), The Battle of Algiers, [Italian: La battaglia de Algerí] (1966), premiere at the Venice Film Festival of 1966, now available on DVD from the Criterion Collection.Google Scholar

55 Pontecorvo shoots on location in Algiers where the battles took place, and even uses some of the key figures of the war as actors playing themselves, reprising their roles for the camera. The film variously described as Italian neo-realist or French cinéma vérité is shot in black and white and presents itself, stylistically, as documentary, despite its staging. The frequently praised and studied film splits its point of view between the Algerian rebels and French colonialists.Google Scholar

56 Curtis, Oliver, (director), Gillo Pontecorvo: The Dictatorship of Truth (1992), Edward Said, narrator. This film is included in the Criterion Collection Box Set under the title “The Battle of Algiers.”Google Scholar

57 Robin, Marie-Monique, (director), Death Squadrons: The French School, Icarus Films, 2004.Google Scholar

58 Included the film series was an apparent outlier, One Dead Indian, Tim Southam (director), about the shooting death of a native Canadian (Indian) protester at Ipperwash, Ontario, Canada. The film is based on the book by Peter Edwards, One Dead Indian: The Premier, The Police, and the Ipperwash Crisis, (2003). The film tells the story of resistance to colonialism by native Canadian protesters that results in the tragic death of a protester, Dudley George, apparently at the orders of an impatient head of government. At the outbreak of WWII the government of Canada confiscated land to which natives held title, on an interim basis, to use as a military training camp. Fifty years later the land had been turned into a Provincial Park, but still not returned to its rightful owners. To assert their claim to recover their property natives blockaded the confiscated lands. Although the occupation was peaceful, a riot squad and heavily armed tactical unit dispatched by the Ontario Provincial Police entered the park at night. Apparently misinformed about the threats they faced, and perceiving some apparent violence from the protesters, the police opened fire on protesters whose weapons were later said to consist only of rocks and pieces of wood. In the course of these actions native protester Dudley George was killed. One key concern that arose concerning the incident was the extent to which the police actions were influenced by the head of the Ontario Government (Premier Michael Harris), and whether or not he ordered the police to take action without regard to consequences.Google Scholar

59 In a recent book, (The Way of the World: A Story of Truth and Hope in an Age of Extremism, (2008)), Ron Suskind lays bare this reductio or extensio argument in stark terms. He describes how Abdul Hamid al-Ghizzawi, an Afghani baker, ends up in the clutches of the US forces and detained in Guantanamo, where he languished in failing health and with inadequate care despite the near complete absence of any incriminating evidence. His capture took place in the early days of the US invasion of Afghanistan following a leafleting program encouraging Afghans to turn in “terrorists” or Taliban in exchange for benefits for their village communities. Al-Ghizzawi, like others, was detained and remained in detention despite what Suskind maintains to be the utter lack of evidence against him. The story of al-Ghizzawi is also available in audio format in a radio interview Suskind gives on the CBC program “As it Happens,” Dec 10, 2008 (part 2), audio available at: http://www.cbc.ca/mrl3/8752/asithappens/20081210-aih-2.wmv.Google Scholar

60 ATLAS IDE, Neil Brooks (Osgoode), Jinyan Li (Osgoode), Peer Zumbansen (Osgoode), “Exporting Law: The Challenges and Problems of ‘Legal Transplants'” (10 July 2008).Google Scholar

61 Hupper, Gail, The Rise of an Academic Doctorate in Law: Origins Through World War II, Boston College Law School Research Paper No. 128. Available at SSRN: http://ssrn.com/abstract=975257 at 7.Google Scholar

62 See, for instance, Moline, Brian, Early American Legal Education, 42 Washburn Law Journal, No. 4, 775 (2004). “Although it was a distinct improvement over the apprenticeship and independent law school models, the university law school, pioneered by Story [US Supreme Court Justice and early member of Harvard Law School faculty] and his predecessors, still maintained a basic trade school approach. Blackstone, Jefferson, and Kent had envisioned the study of law as part of a liberal education. But the early law schools maintained no connection between liberal and legal education. Harvard Law School did not require any preliminary education, not even the basic requirements for admission to college. Not until the 1870s did the law schools begin to establish liberal education requirements, and not until after World War II were any serious efforts undertaken to adopt a comprehensive legal education system, integrating theory and practice (at 50).” Citing, Albert J. Harno, Legal Education in the United States: A Report Prepared for the Survey of the Legal Profession, (1953[2004 reprint]).Google Scholar

63 For a recent discussion of the role of a “liberal education” as a necessary part of the formation of lawyers within law schools see the following interconnected articles: Wesley Pue, Legal Education's Mission, 42 The Law Teacher, No. 3, 270 (2008); (also at SSRN: http://ssrn.com/abstract=1282172); (Pue notes, “From the origins of “modern” legal education at Queen's College, Birmingham, in the mid nineteenth century, university legal education has sought to provide a practically useful, pragmatic, trade training, as part of a liberal education (at 7, cited to SSRN, italics in original).”; Roger Burridge and Julian Webb, The Values of Common Law Legal Education: Rethinking Rules, Responsibilities, Relationships and Roles in the Law School, 10 Legal Ethics, No. 1, 72 (2008); Cownie, Fiona, Alternative Values in Legal Education, 6 Legal Ethics No. 2, 159 (2003); Pue, W. Wesley, Educating the Total Jurist, 8 Legal Ethics No. 2, 208 (2005).Google Scholar

64 on this point see Pue, 2008, at 13, supra note 63.Google Scholar

65 As indicated in Anand, Sanjeev S., Canadian Graduate Legal Education: Past, Present and Future, 27 Dalhousie Law Journal 55 (2004).Google Scholar

66 Griswold, Erwin N., Graduate Study In Law, 28 Canadian Bar Review, 267, 272 (1950).Google Scholar

67 Banks McDowell Jr., and A.W. Mewett, What Are Teachers Made Of? A Critical Appraisal Of Graduate Study In The United States, 8 Journal Of Legal Education 79 (1955).Google Scholar

68 Id., at 82.Google Scholar

69 Id., at 85–86.Google Scholar

70 Hupper, , supra note 61 at 4.Google Scholar

71 Id., at 5.Google Scholar

72 Id., at 24–25.Google Scholar

73 Kalman, Laura, Legal Realism At Yale 1927–1960 (1986), at 3.Google Scholar

74 Hupper, , supra note 61, at 26.Google Scholar

75 Id., at 30.Google Scholar

76 Id., at 31.Google Scholar

77 Id., at 17.Google Scholar

78 Id., at 23.Google Scholar

79 Hupper, Gail, The Academic Doctorate in Law: A Vehicle for Legal Transplants?, Boston College Law School Legal Studies Research Paper No. 155. Available at SSRN: http://ssrn.com/abstract=1126358) at 24.Google Scholar

80 Id., at 32.Google Scholar

81 Id., at 35.Google Scholar

82 Hupper, Gail describes the development of post-professional graduate degrees in law in the US as a borrowing or transplant from Europe (Hupper, supra note 61). In this article she notes that there arises a “missionary” function in these schools of spreading their own conceptions of legal theory (at 9). In another article (Hupper (note 79)) Hupper attributes such zeal particularly to Roscoe Pound, Dean at Harvard Law, in his efforts to spread legal realism throughout American law schools (at 5). Of course, in turning out graduates who would go on to teach at other schools a graduate program could spread its theoretical perspective. There is, of course, a similar phenomenon in other disciplines. (Citation of Gail Hupper articles with permission of the author. Our thanks to her.)Google Scholar

83 Sullivan, Kathleen, Foreword: Interdisciplinarity, 100 Michigan Law Review, No. 6, 1217, (2002) at 1220.Google Scholar

84 Hart, Herbert, The Concept of Law (1961).Google Scholar

85 Localized customary law within internationally recognized states exists frequently and in different forms, e.g., tribal law, religious law or localized law in shantytowns. The classic account of the latter is Boaventura de Sousa Santos, Law of The Oppressed: The Construction And Reproduction Of Legality in Pasargada, 12 Law and Society Review 5 (1977). There are different forms of international regulation that are not part of state law. Lex Mercatoria in which counterparties in international commerce agree on private arbitrators is one example. This is discussed in Gunther Teubner, Global Bukowina, (note 19). The international organization for Standardization (ISO) (see note 22) represents another form of transnational regulation that is voluntarily entered into by private business actors, as discussed by Stepan Wood in his GC1 session entitled, “Political Economy of Transnational Governance” (note 21). And, finally, the extent to which international law deals exclusively with sovereign states as having legal personality is giving way to forms of international law that reach within the domains of sovereign states, as we see especially with respect to international criminal and human rights law, suggesting the possible rise of transnational constitutionalism – a recurrent theme in the Agora.Google Scholar

86 Llewellyn, Karl, and Hoebel, E Adamson, The Cheyenne Way: conflict and case law in primitive jurisprudence (1941).Google Scholar

87 As we have already noted, the positivist theoretical model of law serves domestic practitioners, and would be practitioners, well, as a heuristic through which to focus the mind on the forms of legal validity recognized by domestic courts.Google Scholar

88 As we noted above, the Agora is certainly not alone in advancing a model of transnational legal education. There are many programs at the professional and graduate levels that are concerned to move legal education beyond the confines of particular jurisdictions. Trans-jurisdictional education is, of course, nothing new. Legal education in federal states has always involved some element of trans- or poly-jurality. Colonialism has also frequently entailed the creation of new, though not wholly independent, jurisdictions, which has meant that legal education and practice has involved multiple jurisdictions. Contemporary transnational law programs tend to focus on more recent phenomena. The changing nature of the post-WWII international legal institutions towards the turn of the millennium are part of this (the growing importance of the WTO legally and institutionally, for instance, or the European Court of Human Rights). International law and legal institutions are increasingly not limited to inter-state relations, but penetrate into what was previously considered to be areas of state sovereignty. The rise of non-governmental law and regulation are also important in some conceptions of what the transnationalization of law is about.Google Scholar

89 Arthurs, Harry, Madly off in One Direction, 50 McGill Law Journal 707 (2005), at 712.Google Scholar

90 Id., at 713, summarizing MacDonald from, Roderick MacDonald, The National Law Programme at McGill: Origins, Establishment, Prospects, 13 Dalhousie Law Journal 211 (1990).Google Scholar

91 Id., at 714.Google Scholar

92 Id., at 716–717.Google Scholar

93 Kasirer, Nicholas, Bijuralism in Law's Empire and in Law's Cosmos, 52 Journal of Legal Education 29 (2002); cited in Arthurs at 717, supra note 89.Google Scholar

94 In a similar vein Raymond Friel notes of the concept of educating a transnational lawyer that, “The aim of a transnational legal education is not to create individuals who can practice law in a number of diverse jurisdictions. Although graduates of such a program may well wish to do so, such an ability should not be seen as an objective in itself, but merely as an incidental result. The aim of such a program should be to create lawyers who are comfortable and skilled in dealing with the differing legal systems and cultures that make up our global community.” Raymond J. Friel, Special Methods for Educating the Transnational Lawyer, 55 J. Legal Education, 507, 507–508, (2005).Google Scholar

95 Arthurs at 718, supra note 89.Google Scholar

96 Id., at 718–719.Google Scholar

97 See note 44.Google Scholar

98 Consultative Group on Research and Education in Law, Law and Learning (1983) [Arthurs Report], Harry Arthurs lead author.Google Scholar

99 Arthurs at 719, supra note 89.Google Scholar

100 MOU at 2, supra note 2.Google Scholar

101 Id., at 2.Google Scholar

102 The success of the initial installment came about only after many years of organizational efforts for which all those involved, too numerous to mention, should be congratulated.Google Scholar