Thursday, December 1, 2016

U.S. LLM Programs Probably Benefit International Students (Part 2): Students who return home (Michael Simkovic)

In part 1 of this 2 part post, I noted that U.S. LLM programs may provide substantial financial benefits to students who remain in the United States, even if they do not necessarily pass a U.S. bar exam.  But what about the LLM graduates who return to their countries of origin?

While good data is hard to come by, it is easy to imagine how studying U.S. law might benefit lawyers working outside of the United States and hard to imagine how international programs could continue to attract applicants if returning lawyers did not speak favorably of their studies abroad. Indeed, some countries explicitly encourage students to study abroad and return home. U.S. higher educational institutions often have far better resources than those available in international students’ countries of origin.

Many efforts to “harmonize” and “modernize” corporate, commercial, and regulatory law have historically been efforts to adopt a more U.S.-like approach. For example, the Uniform Commercial Code is greatly admired and appreciated by international bankers and lawyers who have grappled with other countries’ fragmented and inconsistent approaches to secured credit. The U.S. Bankruptcy code is thought to be more conducive to entrepreneurship and consumer finance than the approach in many foreign jurisdictions. Many securities are issued under U.S. law. Many international transactions explicitly choose New York law. U.S. anti-trust law can extend to companies based outside of the United States. U.S. tax law helps drive many international transactions.

Derek Muller recently noted evidence suggesting lower first-time bar passage rates for international students taking the bar exam compared to graduates of ABA approved 3-year JD programs. Although his headline is provocative, Muller is careful to avoid overstating the significance of this finding. Lower bar passage rates are expected, considering that for many LLMs, English is a second language, while for most ABA-approved-JD graduates, English is a first language. On the bar exam, LLMs compete without accommodation on a timed exam with a large essay component with students who either speak English as a first language or have had many more years to immerse themselves in the English language. It can take years for immigrants to become roughly substitutable for U.S.-born workers.

But as noted in my previous post, from a consumer protection perspective, the relevant comparison is not U.S.-born-citizens versus immigrants or foreigners. It’s immigrants or foreigners with more U.S. education versus immigrants or foreigners with less U.S. education.

1-year degrees appear to provide benefits. It seems likely that a 3-year degree would provide international students even more benefits than a 1-year degree. But a 3-year degree would also cost more and take more time to complete, and might be unappealing to those planning to return home.

The U.S. has a history of using English-literacy tests to exclude immigrants from Southern and Eastern Europe while permitting immigration from Northern Europe. Today, historians generally view these policies as discriminatory. It would be unfortunate if the ABA were to take a parallel approach today to deny access to U.S. legal education to lawyers from non-common-law countries on ill-considered consumer protection grounds. Many of those international students intend to return home rather than practice law in the United States. Some of those international students may face even lower odds of passing the bar exam in their countries of origin than in the United States, language barriers notwithstanding.

If educational programs that benefit foreign students genuinely cost those students more than the lifetime benefits the programs provide, then regulatory intervention may be in order. Even then, regulators would need to be mindful of the non-pecuniary benefits of study abroad and the wealth and sophistication of typical LLM students—generally, highly educated foreign elites from prosperous families. It seems unlikely that these sophisticates with a world of options would be easily fooled in a competitive global higher education market. Indeed, the Financial Times notes that, in the international legal education market, the New York Bar Exam “is seen as one of the toughest law exams in the world.”

Nevertheless, the FT reports that “We are seeing really savvy, internationally-minded students, for some of whom English is their second or third language, who want to take the [New York] bar exam” . . . “The globalisation of legal services and the number of European transatlantic mergers means if you want to work for a big commercial firm you have to compete in the global jobs market.”

Considering the labor economics literature on the benefits of education, concerns about fraud seem overblown. Any reputable scholar advancing such unorthodox views will be careful to first provide rigorous econometric evidence that can withstand peer review by professional labor economists.

http://leiterlawschool.typepad.com/leiter/2016/12/us-llm-programs-probably-benefit-international-students-part-2-students-who-return-home-michael-simk.html

Guest Blogger: Michael Simkovic, Legal Profession, Of Academic Interest | Permalink