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Emory Law professors teach the rule of law abroad

Candace Gibson |

Emory Law puts a strong emphasis on experiential learning; in fact, opportunities to practice trial skills in real-time simulations and to participate in relevant clinics are among the reasons students choose to matriculate at Emory. Emory Law prepares its students to serve communities in the United States and beyond, and one important way Emory accomplishes this is with active faculty involvement in teaching the rule of law abroad.

One of the ways Emory Law is approaching its goal to extend the reach of legal education through global engagement is through its partnership with the Poland-US Conference on the Rule of Law. Dean James B. Hughes, along with Professors Robert B. Ahdieh and Robert A. Schapiro participated in the conference this summer to discuss the development, meaning, and definition of the rule of law; the rule of law and separation of powers; the role of the justice system in the rule of law; and the role of local governments in the rule of law. The Poland-US Conference on the Rule of Law was held to commemorate the 20th anniversary of the Center for American Law Studies, a joint program of the faculty of law and administration of the University of Warsaw, Emory University School of Law, and Georgia State University College of Law.

The Center for American Law Studies at the Faculty of Law and Administration of the University of Warsaw is a one-year program designed for law students and graduates with particular interest in the American legal system. The center started its operation in October 1998 as a joint program with the University of Florida. In 2016, Emory University School of Law and Georgia State University College of Law became partners in this highly respected program.

During the academic year, the center offers ten courses taught by US professors from partner law schools, such as: Introduction to American Law, Constitutional Law, US Trial, Torts, Contracts, Legal Writing, Business Organizations, Intellectual Property, Family Law, National Security, and others. The courses are specially designed and selected to give students the best understanding of the common law system, unique issues of the American legal system, and the rule of law.

Advocacy Across the World

Adjunct professor and interim director for the Kessler-Eidson Program for Trial Techniques (KEPTT) Mike Ginsberg, partner in the Pittsburgh office of Jones Day, has taught advocacy and trial skills in Europe, Asia, and Africa. He provides a layer of nuance about the meaning of teaching the rule of law. “To me, the rule of law means there is universal confidence in the results that arise from the advocacy of the court system,” he says. Teaching the rule of law abroad is about “building effective advocates on both sides.” Beyond protecting the litigants and criminals, Ginsberg points out that the rule of law also improves the quality of legal systems to allow for foreign investment in developing countries. Potential investors depend on established legal systems to handle any business disputes that may arise. 

The system is important, but so are the professionals that comprise it. “Some countries have rule of law, but lack professionals with trial skills,” Ginsberg continues. These professionals need help learning how to persuade — judge or jury, depending on the country — and how to present themselves in the courtroom. Laurie R. Blank, clinical professor of law and director of Emory’s International Humanitarian Law Clinic and Center for International and Comparative Law, points out that the big-picture concept of a government account- able to laws is understood “pretty universally, I think. That could play out in many ways.” Legal systems operate differently around the world. The common denominator is that the legal system is the governing process. That is, except in cases where legal systems have been trumped by war or some other crisis. This is where the law of armed conflict comes into play. “In the situation that poses the greatest danger to people, the law of armed conflict imposes rules,” Blank explains. The law of armed conflict is what keeps civilians safe in cities where wars rage, and ensures that prisoners of war are treated appropriately.

Teaching trials skills abroad requires an understanding of the country’s unique values. In Ginsberg’s experience, education is a joint venture with goals co-determined by embassies and aid development agencies. “Most US embassies have a resident legal advisor at the embassy whose job it is to work with police agencies and prosecutors on whatever the mission is. And there are lots of different missions,” Ginsberg says. Any agency providing funding for these programs will have specific goals, and it’s important to honor them. 

Teaching to a foreign audience is not as simple as selecting a case file, gathering judges and lawyers and running simulations. There is naturally some resistance to outsiders. “How do you go in as Americans and tell non-Americans how to try a case?” Ginsberg asks. “We’re telling them what skills it takes to improve their advocacy,” he says. By “advocacy,” Ginsberg means professionalism and efficiency. That means honing skills that already exist, rather than changing the system. “We build [professional] strength from the natural personality of the country,” he says. Ginsberg cites training in Kenya and Scotland as examples of this. “Kenyans are tremendous story- tellers. Kenya is a very tribal country with a rich oral tradition. The same is true in Scotland. Scots are great storytellers, but like Kenyans, can be rigid in court. So, we suggest they bring their storytelling tradition and emotion to the courtroom.”

It is also important to acknowledge that US educators work just as hard on home soil as they do abroad. In fact, NITA was created for the purpose of improving the rule of law in the United States. “When NITA was formed over 40 years ago, it was because the Supreme Court justices were concerned that advocacy wasn’t robust enough. There were some very, very good lawyers but not nearly enough of them,” Ginsberg says. What qualities does a very, very good lawyer need? He or she must be efficient and highly professional in presenting evidence, examining and cross-examining witnesses, and crafting opening and closing arguments. That’s as challenging to teach an American law students or lawyer as it is to teach one in Kenya or Russia. 

Of course, there are other inherent challenges to teaching abroad. The Western way is not the best way, the right way or the only way. The advocates in legal systems need to develop their own advocacy techniques and trial skills based on their experiences. Blank notes that a country’s history of rises and falls in rules of law can complicate matters. A legal system can crumble quickly by a change in power. “The simple fact that we do something in the US one way doesn’t mean it’s the right way to do it,” she says, “but we do have experience overcoming certain challenges.” The American legal system has been shaped from this experience and ensures that American people “have the ability to protect themselves, have freedom of expression and thought, and have the ability to get help from the government if they need it.” But are these values applicable to all legal systems? Ultimately, teaching the rule of law abroad is less about instilling Western methods and more about polishing the professionalism of individual lawyers that work in the local system.

Because not all legal systems look like the American system, it would be impractical — impossible, even — to impose a Western perspective to rule of law education. For example, in the American legal system, there is a jury for some criminal and civil cases. Accordingly, teaching advocacy to American law students involves helping them understand the principles of evidence law and how to speak to a jury. Their rhetorical skills must be honed to communicate plainly and clearly, to convey ideas without legalese. By contrast, in England and Scotland, juries are available only for criminal matters. Judge- led trials in the United Kingdom, Ginsberg explains, require lawyers to outline the case with the first witness. “Judges don’t like to hear opening statements. They want to dive in.” In Kenya, there are juries only for certain types of criminal cases. The Mexican system is moving more toward juries for criminal cases, but not for civil ones. And in Russia, there’s a tradition of using a jury for more serious criminal cases. “The presence of juries makes a huge difference,” Ginsberg states. Still, even without a jury to persuade, lawyers must learn to perfect their persuasive tactics to win over judges.

In addition to teaching lawyers, Ginsberg has also taught judges. “In Kenya, we teach magistrate judges so they under- stand what right we’re impressing upon the lawyers,” says Ginsberg. Blank corroborates this. It’s important that “judges, prosecutors, police, and others in the legal system are trained in how the law works, what it means to be in a rule of law society, and what it means for a government to be bound by legal rules and not familial ties or corruption,” she says. Governing bodies (police, security agencies, the military and paramilitary) should be bound by rules and follow processes. There is an order to this system: police must gather evidence appropriately, lawyers must represent clients without biases, and judges must hear cases and understand how to apply the law. “We take these things for granted [in the United States], and they’re essential,” Blank says 

An American legal education is predicated on the ordered system Blank describes, but there is value in exposure to legal systems that lack order — both for faculty and students. “Being involved in these kinds of discussions and trainings enhances our ability as faculty to teach and advise our students,” Blank says. “We’re talking with folks who see challenges up-close and in real-time. We want to bring difficult questions into the classroom and let students wrestle with competing answers that all have values to them.”