Notes Toward an Understanding of the U.S. Market in Foreign LL.M. Students: From the British Empire and the Inns of Court to the U.S. LL.M.

Mindie Lazarus-Black and Julie Globokar’s article on “Foreign Attorneys in U.S. LL.M. Programs: Who’s In, Who’s Out, and Who They Are” uses interviews, LL.M. student observations, and actual admissions committee documents from one Midwest and one East Coast law school to confirm the tremendous growth of those programs over the past two decades in the United States and indicate who makes the journey to the United States; how foreign LL.M. candidates pitch themselves to admissions committees; how those admissions committees evaluate candidates; and what candidates expect from LL.M. programs. The voices that come through are quite compelling. We now know more about this aspect of the “internationalization” of legal practice. The authors situate their research in the literature on audit cultures and issues of commensuration, explaining how these practices affect what individuals put into their applications and how admissions committees assess those applications. Those contributions make for interesting reading as well as strong scholarly findings. My contribution to this symposium, however, will take a somewhat different perspective, and will place the findings into a framework that differs substantially from, but is not necessarily inconsistent with, Lazarus-Black and Globokar’s.¹

Globalization, including educational exchange in law, must be situated within a long history of competition among nations for global hegemony. Law has long been an instrument and point of entry into this imperial competition. One way was for the “civilized nations” to use international law to legitimate their dominance, moderate the behavior of these nations among themselves, and give them a claim of legitimacy when attacking those nations outside the civilized order—including, at times, China and Turkey, for example.² The pressure on Japan and China to emulate European legal systems late in the nineteenth century came in part from an effort to gain access to the benefits of being “civilized.” Considerable educational exchange between Asia and the West, including exchange with Germany and the United States, was part of that process.³

The second way was a central component of empire itself. In the classic situation well exemplified by India,⁴ the colonial power, in this case Great Britain, sought to legitimate its rule at home and in India by building a legal system in India—thereby claiming to civilize the Indians by teaching them governance.⁵ As part of the process, they educated Indians—notably in law—who could also help rule according to British colonial law. The British self-consciously made sure that they educated Indian elites, particularly Brahmins and Parsis from Bombay, and some of the children of merchants also paid their own way to the Inns of Court via Oxford or Cambridge. The Indian elite was in this way co-opted into the colonial system and also came to identify with British values, including the value of the British common law. In a famous statement by Tomas Babington Macaulay, the goal was to create “a class who may be interpreters between us and the millions whom we govern; a class of persons, Indian in blood and colour, but English in taste, in opinions, in morals, and in intellect.”⁶

At the same time, these elites used their British education to reinforce their social status within India.⁷ Even though they identified with British values, they became the leaders of independence. Often they came to favor independence in part by experiencing second-class treatment in Britain while they were studying. The leadership of the Congress Party, including Jawaharlal Nehru, the first Prime Minister, came from this process, and of course, Mahatma Gandhi was a lawyer (although his route to Indian leadership was unique). Nehru and the Congress Party created a government that sought to preserve the values of British law.

Elements of this process of mutual co-optation within a global and national hierarchy can be found not just among the British colonies, but also the Dutch in Indonesia; the Spanish and Portuguese in Latin America...