The U.S. LLM for Foreign Lawyers: Real Value or Overpriced, Low-Utility Legal Education?

Vol. 43 No. 2

By

Howard N. Fenton is professor of law and director of the Democratic Governance and Rule of Law LLM Program at Ohio Northern University College of Law. The eight-year-old ONU LLM program, designed for lawyers from transitional democracies, grew out of Professor Fenton’s work on governance and law reform in the former Soviet Union. He was the 2011 chair of the Section on Post-Graduate Legal Education of the Association of American Law Schools and is a member of the ABA International Law and Administrative Law sections.

U.S. law schools are competing fiercely for foreign lawyers to attend their graduate law programs, most of which lead to Master of Laws (LLM) degrees. Whether this is simply a desire to fill seats left vacant by the decline in enrollments in Juris Doctor (JD) degree programs or a genuine desire to provide lawyers from around the world with a U.S.-style legal education, well over half of all law schools approved by the American Bar Association now offer some kind of LLM program designed to attract foreign lawyers.

Most common among these programs are those designed to introduce foreign lawyers to the U.S. legal system and, not incidentally, prepare them to take a U.S. state bar exam. There are 53 schools listed on the ABA website under “U.S. Legal Studies Programs for Foreign Lawyers or International Students.” See http://www.americanbar.org/groups/legal_education/resources/llm-degrees_post_j_d_non_j_d/programs_by_category.html. These schools include 23 under the “U.S. Law/U.S. Legal System” heading, 13 under “American Law,” and 14 under “American Legal Studies.” There are also 31 international law programs, 25 comparative law LLM programs, 11 international business transactions and trade law programs, and a variety of specialty internationally focused programs such as LLM degrees in democratic governance and rule of law, human rights, global legal studies, international taxation, international development, and inter-American or Latin American studies. There are also 67 “general” LLM programs, many of which also attract foreign lawyers. Not accounting for duplication in the listings, this still represents well over 100 LLM programs designed primarily to attract foreign lawyers.

Over the years, U.S. law schools have continuously refined and redesigned graduate law programs to meet market demands. Aside from typical LLM programs, such as those listed on the ABA website, a few U.S. law schools today offer, among other innovations, joint-degree programs (e.g., LLM/MBA programs); programs offered jointly by U.S. law schools with foreign law schools leading to two LLM degrees or one from each law school; and offshore programs designed to attract foreign lawyers who would like to attend U.S. law school but can only do so either for short periods of time or in their home countries.

There is no question these LLM programs benefit U.S. law schools. With the large number of students supported by the governments of China and Saudi Arabia, for example, schools can charge undiscounted tuition rates. Financial aid for LLM programs generally tends to be limited, so LLM programs are viewed as profit centers for most law schools. There are other, less tangible benefits to U.S. law schools, including increased diversity, enhanced global perspective, and a certain amount of prestige.

However, whatever the benefits these international LLM students provide to U.S. law schools, the more interesting question is how these programs benefit foreign lawyers. Raising this question is not to doubt the quality of legal instruction any of the 100-plus law schools provide but, rather, the purpose and value of this instruction to the lawyers receiving the LLM degrees. U.S. law schools have come under attack in recent years for allegedly exploiting their JD students, charging them high tuition rates to give them a degree that has uncertain value in today’s depressed U.S. job market. Regardless of whether these attacks are fair, the parallel question about the value of LLM programs for foreign lawyers is no less relevant. This article will discuss some of the different objectives and outcomes of the various LLM programs and their implications for global perceptions of U.S. legal education.

While it is difficult to draw generalizations about LLM programs, the 53 “U.S. Legal Studies” programs identified in the ABA website usually provide one or two introductory courses (which may include a legal research and writing course) and then a selection of courses that are open to both JD and graduate law students, either chosen by the student or directed by an advisor. This makes these programs relatively inexpensive for the law school, as the course of study for the international students consists primarily of courses already offered to JD students.

Since these programs—which provide an overview of U.S. law and promise qualification for taking a bar exam in a U.S. state—are highly popular, there must be perceived value in becoming knowledgeable in U.S. law and a member of a U.S. state bar. Professor Carole Silver of Indiana University has written about the interests of foreign LLM students in staying and practicing in the United States and found that those from English-speaking, common-law countries have a disproportionate advantage, although, even then, their numbers are small. Presuming then that most students are not planning to stay in the United States (and are likely of limited eligibility under current immigration laws), the value to them of the education and bar membership becomes a question of its benefit to their practices back in their home countries. There is no doubt that foreign lawyers with knowledge of U.S. law can provide real value to U.S. law firms and American businesses abroad. Similarly, they offer value to the law firms and businesses in their country that interact regularly with American entities. But because jobs such as these are in short supply, a large portion of the foreign students earning these LLMs in the United States will be unable to put their dearly earned knowledge of the U.S. legal system to direct use in their careers.

The question of value, therefore, arises more pointedly in relation to the foreign lawyers’ practices in their own legal systems and work in the government and judicial sectors of their home countries, where the content of their courses of study has little relevancy. Many young lawyers describe the prestige of having a U.S. LLM and membership in a U.S. state bar as career-enhancing even for endeavors exclusively within their own legal culture. While this may be true, it is difficult to assess the value of the degree in this context, especially when measured against the cost of study at a U.S. law school. Indeed, in the ongoing debate over legal education in the United States, the value of a law degree—whether it lies in “prestige” or elswhere—for JD holders who end up in jobs that do not require the degree has been widely questioned.

Other categories of LLM programs that attract foreign lawyers offer instruction in areas that may be more applicable to their practice and experience back home. The largest of these is international law, followed closely by comparative law. These offer a totally different focus for the foreign lawyer, with the emphasis on either principles of international and transnational law or the study of comparative legal systems. The international and comparative programs are likely to be at larger law schools with the faculty to support the range of curricular offerings necessary to fill a one-year course of study. This again enables the school to include the international LLM students in JD courses already being offered. While there may be introductory courses offered to orient the international students to the U.S. legal education system, the programs have a global focus. The course of study is unlikely to qualify a foreign student to sit for a U.S. state bar exam, although it could be supplemented by purely U.S. law courses to qualify for some states.

International and comparative LLM programs in most cases do not translate directly into skill sets for foreign lawyers to apply in their practices or careers back home (any more than they provide a practical skill set for U.S. lawyers). The programs do provide a context for foreign legal practice, however, especially for lawyers from countries much more attuned to obligations under international law and the benefits of reference to other legal systems. The degrees include, of course, the perceived prestige of a U.S. law degree, even if they usually don’t provide access to a U.S. state bar membership.

Finally, there are those LLM programs that offer a specific course of instruction designed to provide skills that directly relate to an area of practice or career path that a foreign lawyer is pursuing. For example, 11 schools offer LLM degrees in international business transactions or international trade law. While these include an American perspective and may be attractive to U.S. lawyers seeking to enhance their credentials, they also provide courses that can be directly applied to a global business practice in a foreign country. These programs may have some of the characteristics of U.S. legal study degrees, but the universality of international trade terms and practices, as well as conventions such as the General Agreement on Tariffs and Trade and the U.N. Convention on Contracts for the International Sale of Goods, make them directly applicable to practice globally.

Other programs in this last category, such as human rights law, democratic governance and rule of law, international global food law, and international development, are more narrowly focused, with specialty courses designed to provide significant new knowledge and understanding in specialized fields. While these programs are open to holders of U.S. JDs, they attract foreign lawyers based on the relevancy of the program to issues the lawyers are confronting back home. The narrower the focus, the less likely the international lawyer is to be driven by the cachet of a U.S. credential and the more likely he or she will be drawn to the program’s specific content.

In some cases, these programs are subsidized through tuition discounting or outside funding to encourage lawyers without the support of a commercial law practice to participate. The course of instruction often includes a blend of international conventions and agreements, comparative materials, and U.S. and European laws. The programs lend themselves to highly specialized courses addressing such things as combatting corruption and human trafficking, nongovernmental organizations law, and implementation of rule of law programs.

Such focused programs are less common and, in some cases, far less lucrative for law schools. To the extent these programs are targeting students from the developing world, for example, the program itself is unlikely to generate a substantial revenue stream for the law school. And to the extent they require specialized content, they impose administrative burdens and expense beyond the cost already invested in offering the JD curriculum.

These programs are also less likely to qualify the foreign student to sit for a U.S. state bar exam. On the other hand, at least for some students, these specialized programs may provide far more useful and meaningful education for the career they’ll pursue back in their home country.

Of course, the impact of the U.S. LLM degree is broader than the specialized knowledge and understanding the programs impart. At a basic level, many countries recognize an LLM degree of any description, especially a U.S. or a European degree, as an essential credential for judicial appointment, a law faculty position, or advanced graduate study. For those thus qualified for such positions, the cost of the degree may be justified. Apart from the economic cost-benefit analysis, however, there are intangible contributions a U.S. LLM degree may make to a foreign lawyer. The cultural enrichment, the broadening of legal perspectives, and even the refining of English language skills, including legal language skills, all come with just about any LLM experience, over and above the résumé value of the U.S. degree.

Perhaps one of the unintended benefits of the LLM experience derives from the educational environment itself. The interactive engagement in the U.S. law school classroom is likely to be alien to the foreign lawyer and both intimidating and inspiring. The requirement to be prepared in class and able to discuss the readings with the professor and classmates opens a new approach to learning that frequently resonates through the teaching or training the LLM graduates provide back home. Experience with this American approach to legal pedagogy may have a greater impact than any substantive learning they may have acquired. It cannot be valued in purely economic terms, of course, and, on an individual basis, may or may not justify the time and expenditure invested in the American degree. Collectively, however, the American classroom experience may provide the strongest legacy of the proliferation of LLM programs for foreign lawyers.

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