STEVE ROSENBAUM, John and Elizabeth Boalt Lecturer, teaches social justice and professional skills courses at Berkeley Law and is a Visiting Researcher Scholar at UC Berkeley’s Haas Institute for a Fair & Inclusive Society. He contributed to a chapter section on Cross-Border Teaching and Collaboration in Building on Best Practices and is currently the international leader of BABSEACLE’s Myanmar team, helping to strengthen externship preparation and street law courses under the auspices of the European Union and British Council.
I joined colleagues Kim Ambrose, Bill Fernholz, Catherine Klein, Dana Raigrodski and Leah Wortham a few years ago to share thoughts in print about principles and experience under the rubric of Cross-Border Teaching and Collaboration (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2558255). As a Visiting Senior Lecturer at the University of Washington, my focus then was on engagement with LLM students from Afghanistan and Indonesia. A handful of State Department and USAID grantees came to UW each year to obtain their masters and hone clinical skills, while working in situ with clinicians. The objective of this particular global clinical niche was to establish or improve upon clinical education activities in the home countries of these junior faculty members upon their return. My attention has since turned to the flip side of cross-border teaching, namely, building teaching capacity abroad.
I’ve always been a big tent advocate when it comes to defining clinical education—with room for externships (and internships), street law, mock trials, moot competitions, and even classroom simulations under the tarp. I’m painfully aware of the pecking order and schisms that have surfaced in the United States as we parse the terms “clinic” and “clinical” and position ourselves on various rungs of the academic ladders. As much as I’ve cautioned Egyptian faculty and students against viewing the legal clinic as simply a room with a sign on the door, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354525 I also urge US clinicians to recognize that building clinical capacity abroad may be as modest as mentoring a moot arbitration competition team, collaborating with community-based organizations to host legal awareness-raising events, and sending students to local NGOs and law offices to apprentice with practitioners, without having firmly in place all the best practices. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2710518. We must always be mindful of the mantra that clinics evolve organically, and there is more than one path to follow.
Myanmar (formerly Burma-formerly Myanmar-formerly Burma) presents its own set of unique challenges. I’ve been here for nearly a year as international leader on a NGO team (www.babseacle.org), funded by the EU and “implemented” by British Council, in the midst of marital dissolution proceedings between the Brussels Eurocracy and UK Parliament. Myanmar’s attorneys, law officers, judges and law teachers are slowly emerging from the isolated world they inhabited while the country pursued a post-independence “Burmese Way to Socialism” and then decades of military authoritarianism. The nation burst triumphantly into an era of transitional democracy almost a decade ago, championed by the charismatic daughter of a charismatic national liberation leader.
Since then, the juridical and educational elite have essentially been sorting through grains of white rice and fermented tea leaves, choosing which law and lawyering ingredients they want to retain from the British colonial past and which donor-advised post-Socialist and neo-Liberal legal practices they should graft onto the physically and intellectually decayed tertiary educational infrastructure. The march toward democratic reform proceeds under the watchful eye of military careerists and civilian bureaucrats. Meanwhile, decades old inter-ethnic armed conflict continues to internally displace thousands of Myanmar children and adults—and that doesn’t even count the more internationally publicized major human rights abuses committed against the Rohingya Muslim minority, and their exile to neighboring Bangladesh.
The eight principles that my US-based colleagues and I laid out to guide cross-border teaching contexts in our Building on Best Practices sub-chapter strike me as commonsensical today as at the time of our joint writing. These principles include: a good dose of cultural competency, humility, self-awareness, recognition of the ultimate utility abroad of a legal education and the sustainability of long-term collaboration. Nonetheless, there are some implementation impediments in Myanmar that are noteworthy. These cover the gamut, from heavy hierarchy and centralized bureaucracy, to unpredictability in scheduling, enrollment and teacher tenure, and from a dearth of pedagogical advances to lack of autonomy and a reluctance to outshine one’s colleagues.
On the surface, democratic lingo is very appealing: References to “Access to Justice” and “Rule of Law” are as plentiful as seasonal mangoes. Even “Human Rights” is discretely uttered in certain settings. (Earlier this week we celebrated the 70th anniversary of the United Nations’ adoption of the Universal Declaration of Human Rights). Also, parenthetically, the Myanmar Supreme Court justices and influential Attorney General’s Office cadre routinely attend briefings and workshops on LGBTQI rights and gender-based violence in a country where the colonial era penal code criminalizing “carnal intercourse against the order of nature” is still enforced and the Ministry of Social Welfare, Relief and Resettlement has taken over four years to draft an Anti-Violence Against Women Law).
For almost six years, BABSEACLE (formerly Bridges Across Borders SouthEast Asia Clinical Legal Education Initiative) has been branding “CLE”—which translates either as “Clinical Legal Education” or “Community Legal Education” or both, or neither—through workshops, conferences and other activities conducted with faculty at most of Myanmar’s 18 university law departments. Government investment in higher education is slowly rising, after a period of heavy reliance on “distance education.” This mode of instruction, introduced by the military regime in 1975, was meant to address university overcrowding and allow a degree to be earned for lower tuition. It had the added advantage of preempting campus protests. Law students, in particular, were key protagonists in the pro-Democracy movement, resulting in killings and long-term school closures. Students are issued outdated textbooks and attend two weeks of intensive classes per semester, followed by an examination. Unlike its American counterpart, there is no on-line component. Formal, institutionalized learning is based on absorption of theoretical knowledge, without a focus on development of legal professional skills or ethical training. Teaching is characterized by classroom call-and-response, a mélange of Little Red Schoolhouse and Buddhist chanting. And, plagiarism and rote memorization in exam-taking are as widespread as the chewing of betel nut. Critical thinking, problem-based learning and learning-by-doing are virtually non-existent at most law faculties. As well, faculty members have no history of collegiality, as they are subservient to the department head, known as the P1. They also have had little to no contact with the outside legal sector. Law teachers themselves have been removed from the realities of justice issues, and are unable to train future graduates with the skills needed to effectively address rule of law and access to justice issues. At the same time, social justice organizations and pro bono firms have had a dearth of trained law graduate personnel to assist their clients and inform target communities.
Offsetting these ingrained features of the educational system and creating a new culture requires more than a training-of-trainers, the hasty convening of stakeholder roundtables or the signing of a memorandum of understanding with the university rector. Donor agencies have their own recipes for reform, usually well-intentioned and sometimes well-informed. In the law and development world one speaks of support, partnerships and challenges when working with academic or practitioner peers. While striving to provide genuine support, the partnerships may resemble more often a Mandalay marionette performance, given the disparity in academic background, teaching style and language between the visiting clinician and his local counterpart.
Challenges can be akin to traversing the Irrawaddy River. For instance, we are accustomed to encountering countries with centrally devised curricula, national educational protocols and administrators who operate in top-down or truly autocratic fashion. But, after a university signs an agreement with a donor or NGO partner, should the P1 be able to control all communications, handpick the students or select the teachers who will be allowed—or assigned—to experiment with new pedagogy? Worse yet, should she be able to reverse course in the middle of the academic year? Frequent transfer from one campus to another is a fact of higher educational life in Myanmar. It ostensibly reallocates resources from popular to unpopular destinations, but seems guided more by favoritism or seniority, with no regard to one’s substantive expertise. Instructors are treated as fungible commodities, moving from one location to another mid-semester, with little notice, thereby severely reducing the corps of those already trained in a new methodology, disrupting bonding with fellow faculty or students and with no certainty that the transferees’ newly acquired skills and knowledge will be applied at the campus where they are relocated.
English is indeed the international idiom of scholarly and professional research and networking. But, why maintain the fiction that the instructional lingua franca of law school is English simply because extracts of old British Codes are sprinkled throughout textbooks which are otherwise devoid of much commentary or analysis? Although students usually have a better grasp of the language than their teachers, their books are filled with scribbled translations of whole passages. This extra layer of complexity only creates a barrier to mastering legal concepts. Finally, does the Ministry of Education actually need 45-day notice before a “foreigner” is permitted to venture onto university grounds? There seems to be no vetting of would-be agitators or a review of the visitors’ credentials. It is doubtful that the CV and agenda of each foreigner—a term as alienating as “alien” under US law—are even read by anyone. Under this pernicious permissions protocol, many a potential visit by an international clinician to a classroom or on-campus event can be thwarted if the paperwork is not timely submitted.
Notwithstanding the historic legacy and continuing obstacles, there are signs of hope. Students and faculty often embrace the new curriculum and interactive teaching with enthusiasm. A new generation is eager to engage with a world long closed-off, where individual initiative was either culturally frowned upon or politically perilous. This is also about building confidence—in oneself, one’s colleagues and students, and in the nation’s future. I find myself telling international colleagues who volunteer for on-campus short-term residencies that if they arrive with an open mind as to what constitutes clinical education, and a patience for change, they will undoubtedly add value to the enterprise and come away with new attitudes and friendships.
One of our BBP cross-cutting principles is: “Teachers are not endowed by citizenship with the authority to tell others ‘how to do it right.’ One can provide information on ‘how we do it in [fill-in-the-blank],’ but should not assume that is ‘the answer’ for how things should be done elsewhere.” Nonetheless, it’s hard to escape the conclusion that certain practices really are universal, and for a good reason. We can only hope that the “trust, respect, and mutual understanding” between teachers, which is another of our guiding principles in transnational collaboration, can eventually overcome the structural barriers that otherwise stand in the way of genuine transformation.
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Best Practices for Legal Education 