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Lost in Translation in the Law School Classroom: Assessing Required Coursework in LL.M. Programs for International Students*

Published online by Cambridge University Press:  28 February 2019

Extract

Many law schools have opened their doors to international students, inviting them to participate in the following types of programs: (1) LL.M. programs designed exclusively or primarily for international students, (2) LL.M. programs designed primarily for U.S.-trained lawyers and law students to which international students are admitted, (3) S.J.D. and J.S.D. degree programs to which international students are admitted, (4) J.D. programs to which international students are admitted, and (5) Intensive prelaw training programs for international students entering American law schools.

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Articles
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Copyright © 2007 by the International Association of Law Libraries 

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References

1 The references to international students in this article are intended to denote those students from other countries whose first or official language is not English, the “nonnative” speakers of English, those students for whom English is a Second Language (ESL); it should also be noted that “‘L2’ is another term for ESL learners.” Ramsfield, infra Note 12, at 158 & n. 1, 160 & n. 7. For a discussion of the difference between ESL students and EFL students, see infra Note 6. This article will use the words “international,” “foreign,” and “foreign-educated” as synonyms to refer to these students and programs, excluding for example, students educated in Great Britain, Canada, and Australia who speak English as a first language. Although the word, “foreign” may have negative connotations, it is the label most frequently invoked by law schools and is also used by the ABA to refer to these programs and students. See http://www.abanet.org/legaled/postjdprograms/postjdc.html#2foreign (listing “Post J.D. Programs by Category” and within this section listing “Programs for Foreign Lawyers or International Students”). But see Silver, infra Note 58, at 1043 & n. 10 (pointing out that if an international student obtains a law license in the U.S. after obtaining a U.S. law degree, the description “foreign lawyer is a misnomer”).Google Scholar

2 See infra Notes 52 – 54 and accompanying text.Google Scholar

3 See infra Notes 47 – 51, 55 and accompanying text.Google Scholar

4 The ABA documents 31 U.S. law schools offering the following doctoral degrees: Doctor of Jurisprudence, J.S.D., Doctor of Judicial Science, S.J.D., and Doctor of Comparative Law, D.C.L. http://abanet.org/legaled/postjdprograms/postjd-school.html. The designation “S.J.D.” will be used throughout this article to refer to all of these doctoral programs. For a discussion of the reasons that only a small fraction of students are admitted to these programs, see infra Note 43 and accompanying text.Google Scholar

5 A similarly small number of international students enter J.D. programs in the U.S., although the number of foreign educated students pursuing J.D. degrees in the U.S. is increasing. See Van Zandt, infra note 9, at 217 (estimating that international students account for approximately five percent of students enrolled in the J.D. or joint J.D.- M.B.A. Program at Northwestern University School of Law). A small number of U.S. law schools permit foreign lawyers “with a first degree in law and substantial post-first degree work experience” in another country to enroll in a “two-year J.D. program.” Id. at 218.Google Scholar

6 See_Brostoff, Sinsheimer, and Ford, infra Note 11, at 137 (describing a three-week summer program offered at the University of Pittsburgh). See also Christine Feak & Susan Reinhart, An ESP Program for Students of Law, in English for Specific Purposes 7-22 (Thomas Orr ed. 2002) (describing a six and one half week summer “program developed at the University of Michigan, … for nonnative speakers of English who have been accepted into a competitive U.S. law school, usually in the master of law (LLM) program). Of course, U.S. law schools also sponsor or participate in overseas programs designed for lawyers whose practice requires knowledge of English and for students entering European LL.M. Programs, which use English as a common language to teach courses. See generally Jacques deLisle, Lex Americana?: United States Legal Assistance, American Legal Models, and Legal Change in the Post-Communist World and Beyond, 20 U. Pa. J. Int'l Econ. L. 179, 206-07 (1999). When English is taught in a foreign country to students whose first language is not English and who were raised outside of the U.S., these students are often referred to as EFL students or students for who English is a foreign language). Ramsfield, infra Note 12, at 160 & n. 7. See also Sourcebook on Legal Writing Programs 203 (2d ed. Section of Legal Educ. & Admission to the Bar 2006) (explaining the reason for not including this group of students under the “ESL” label: EFL students “typically will not have the English language resources that are available to students who are studying in the United States or another English-speaking country”).Google Scholar

7 The information for this survey was last updated in July, 2007 and is available and on file with the author of this article. For further information about the manner in which the survey was conducted, see infra Note 152. A similar survey was conducted by another author in late 2003 in a similar manner: websites were consulted as the source of “the most accurate and recent information, based on the assumption that web sites are the most likely source of information for foreign law graduates contemplating application to U.S. law schools and the resulting incentive to keep web site program descriptions current.” Carole Silver, Internationalizing U.S. Legal Education: A Report on the Education of Transnational Lawyers, 14 Cardozo J. Int'l & Comp. L. 143, 145 & n. 2 (2006). Officials at schools with such programs were then contacted for more detailed program information. Id. at 157–158. The author found 102 LL.M. Programs open to international students at that time. Id. Twelve law schools have been added to the list of schools with programs for international lawyers in the intervening three years.Google Scholar

8 The ABA lists 196 accredited schools, including in its list the U.S. Army Judge Advocate General's School, which offers an officer's resident graduate course, a specialized program beyond the first degree in law. http://www.abanet.org/legaled/approvedlawschools/approved.html. This latter school was not included in the survey used for this article. As of June, 2007, the most recent date provided by the ABA for its data, eight of the 195 schools that form the basis of this article were provisionally accredited and two were on probation. Id.Google Scholar

9 Silver, supra Note 7, at 155 (describing these programs as “a significant source of revenue”). See also http://www.abanet.org/legaled/statistics/charts/enrollmentanddegreesawarded. As recently noted by the Dean of Northwestern University School of Law: The number of students with first degrees in law from foreign institutions increased dramatically in the late 1980s and early 1990s…. Many non-U.S. firms and businesses realize that in order to provide value for their clients, their young attorneys need a basic understanding of Anglo-American law, the strong analytic training provided by common law education, and exposure to the American business and legal culture that is at the heart of the emerging global conventions. Obtaining an LL.M. degree has become important and sometimes necessary for a young foreign lawyer to advance at his or her firm and practice. David E. Van Zandt, Globalization Strategies for Legal Education, 36 U. Tol. L. Rev. 213, 217 (2004). It should be noted, however, that the number of international students applying to U.S. law schools has declined. Id. (citing a 10–15% decrease in international student applications to general LL.M. programs in the U.S. in 2003–2004). This trend is not unique to law schools. See Stu Woo, Several Other Countries Outpace U.S. in Growth in International Students, Report Says, Chron. Higher Educ. Oct. 17, 2006 (citing a study utilizing “statistics from Unesco, the Institute of International Education, the National Science Board,” and other organizations); but see Elizabeth Quill, Graduate Schools Again Admit More International Students, but Total Still Lags From 2003, Chron. Higher Educ. Aug. 28, 2007 (citing Council of Graduate School survey finding an eight percent increase in 2007 in “admissions offers from American graduate schools” to foreign students and a nine percent increase in applications by foreign students); Burton Bollag, Foreign Enrollments at Graduate Schools Increase, Reversing a 3-Year Decline, Chron. Higher Educ. November 1, 2006 (citing a 1% increase in the fall, 2006 in total foreign enrollment in U.S. graduate schools following a three-year decline according to a survey conducted by the Council of Graduate Schools).Google Scholar

10 For a discussion of the evolution of these programs, see infra Notes 26 – 70 and accompanying text.Google Scholar

11 Silver, supra, Note 7, at 157–158. Some law schools also conduct telephone interviews with applicants to assess their English language proficiency; others look for applicants who have significant work experience “in an English-language environment.” Id. at 158. See also Teresa Brostoff, Ann Sinsheimer, & Megan Ford, Practice and Procedure: English for Lawyers: A Preparatory Course for International Lawyers, 7 Berkeley Women's L.J. 137, 137 & n. 4 (2001).Google Scholar

12 Jill J. Ramsfield, Is “Logic” Culturally Based? A Contrastive International Approach to the U.S. Law Classroom, 41 J. Legal Educ. 157, 185–189 (1997). For an explanation of the distinction between English as a second language (ESL) and English as a foreign language (EFL), see supra Note 6.Google Scholar

13 See_Brostoff, Sinsheimer, & Ford, supra, Note 11, at 140; MarkE. Wojcik& Diane Penneys Edelman, Overcoming Challenges in the Global Classroom: Teaching Legal Research and Writing to International Law Students and Law Graduates, 3 Leg. Writing 127, 129 (1997).Google Scholar

14 “Legal writing, particularly brief writing, is ‘reader-centered’ writing. The legal writer, especially the brief writer, seeks to educate and persuade the court.” Maria Perez Crist, The AE-Brief: Legal Writing for an Online World, 33 N.M.L. Rev. 49, 67–68 (2003). In educating the reader, the legal writer communicates “all steps” of the analytical process. Ramsfield, supra, Note 12, at 163.Google Scholar

15 See infra Notes 26 – 70 and accompanying text.Google Scholar

16 For a definition of ESL and other related terms, see supra Note 1. See also infra Notes 71 – 151 and accompanying text.Google Scholar

17 See infra Notes 138 – 148 and accompanying text. Some of this information has been collected by others and some student evaluation information was collected by this author. See infra Note 131 for a description of the student information collected by this author.Google Scholar

18 See infra Notes 152 – 186 and accompanying text.Google Scholar

19 See infra Notes 187 – 204 and accompanying text.Google Scholar

20 See infra Note 187 and accompanying text.Google Scholar

21 “For any writer, international or not, the initiation into the U.S. legal discourse community is complex and challenging. The initiation involves acquired responses to conventions created by U.S. scholars and lawyers, to new language, and to expected behaviors.” Ramsfield, supra Note 12, at 164, 175.Google Scholar

22 There are numerous articles in which legal writing courses and programs have been critically assessed as to whether they meet entering law students’ needs. See Grearson, infra Note 25, at 73–61 (discussing social construction and the process approach as two different theoretical approaches to teaching legal writing). See generally Kenneth D. Chestek, Reality Programming Meets LRW: The Moot Case Approach to Teaching, 38 Gonzaga L. Rev. 57 (2003); Christopher Rideout and Jill J. Ramsfield, Legal Writing: A Revised View, 69 Wash. L. Rev. 35, 48–61 (1994); Anne Enquist Critiquing and Evaluating Law Students’ Writing: Advice from Thirty-five Experts, 22 Seattle U.L. Rev. 1119, 1125–1127 (1999); Lisa Eichhorn, Writing in the Legal Academy: A Dangerous Supplement?, 40 Ariz. L. Rev. 105, 114 (1998). There are also many articles written about teaching writing beyond the legal writing classroom. See e.g., Andrea McArdle, Teaching Writing in Clinical, Lawyering, and Legal Writing Courses: Negotiating Professionalism and Personal Voice, 12 Clin. L. Rev. 501 (2006); Adam G. Todd, Exam Writing as Legal Writing: Teaching and Critiquing Law Examination Discourse, 76 Temp. L. Rev. 69 (2003); Kathleen Elliott Vinson, Improving Legal Writing: A Life-Long Learning Process and Continuing Professional Challenge, 21 Touro L. Rev. 507 (2005).Google Scholar

23 See Ramsfield supra Note 12, at 186:Google Scholar

International students bring to the U.S. law classroom analytical paradigms based largely on code-centered legal systems. Each country constructs its code differently; some write rules of construction into the laws themselves; others use implied or traditional rules of construction. Even those international students for whom the common law method is familiar may still experience odd interpretive clashes. South Africa's use of cases differs from Ghana's, which differs from ours [in the U.S.] (footnotes omitted).Google Scholar

24 Lisa Eichhorn, supra, Note 22, at 126 (1998) (arguing that legal writing texts “may, however unintentionally, downgrade the writing skills and the voices that students have developed before arriving in law school.”)Google Scholar

25 Jessie C. Grearson, Teaching the Transitions, 4 Leg. Writing 57, 57 (1998). Indeed, just as some law schools are now providing summer programs for foreign students who will be entering U.S. LL.M. programs, see supra Note 6, some law schools are offering summer programs to prepare non-traditional U.S. law students (minorities and first-generation Americans, among others). Jean Boylan, Crossing the Divide: Why Law Schools Should Offer Summer Programs for Non-traditional Students, 5 Scholar 21, 22–24 (2002).Google Scholar

26 Peggy Maisel, 30 Fordham Int'l L.J. 374, 406 (2007). See also Van Zandt, supra Note 9, at 215.Google Scholar

27 Linda R. Crane, Interdisciplinary Combined-Degree and Graduate Law Degree Programs: History and Trends, 33 J. Marshall L. Rev. 47, 53 (1999) (commenting that “it seems odd that the first degree one earns, the J.D., is a doctorate, while the next two are masters, and then finally a second doctorate—an oddity that developed over time by coincidence”). The U.S. system of legal education is also unique in that there is no existing undergraduate law degree operating as a prerequisite to the J.D. degree. Ronald M. Pipkin, Ethan Katsh, Undergraduate Legal Studies and Law School Gatekeepers, 28 J. Legal Educ. 103, 103 (1976) (quoting Law School Admission Council and Association of American Law School Prelaw Handbook as advising that “no particular prelaw curriculum is prescribed”). See also David C. Safel, Prelaw: A Political Approach to the Undergraduate Study of Law, 28 J. Legal Educ. 310, 310–311 (1976) (discussing undergraduate prelaw programs). The J.D. degree is thus the first degree in law and, as a result, some legal educators in this country refer to it as an undergraduate degree reserving the graduate degree label for the LL.M and S.J.D. degrees. Henry D. Gabriel, Graduate Legal Education: An Appraisal, 30 S. Tex. L.Rev. 129, 133–35 (1988).Google Scholar

28 James, E. Moliterno, In-House Live-Client Clinical Programs: Some Ethical Issues, 67 Fordham L. Rev. 2377, 2383 (1999). By 1860, this system, which “was an outgrowth of the Inns of Court,” was beginning to be eclipsed by the 21 law schools that had come into existence; in fact, by this time only a few states required any period of apprenticeship. William P. Quigley, Introduction to Clinical Teaching for the New Clinical Law Professor: A View from the First Floor, 28 Akron L. Rev. 463, 465 (1995). Pursuant to this system an apprentice was required to “‘read law’ in the office of a practicing lawyer.” Id. Some authors limit the description, apprentice, to refer to the English system of education existing at the time, preferring instead to refer to this system as it began operating in the U.S. colonies as a “system of legal clerkship,” focusing upon the contractual nature of the relationship existing between the lawyer and his student. Charles R. McKirdy, The Lawyer as Apprentice: Eighteenth Century Massachusetts, 28 J. Legal Educ. 124, 125, 126 (1976). The student learned “by copying documents, …. by listening to his fellow students, his teacher and other members of the bar…. by attending court…. [and] by reading the law books available to him.” Id. at 127. The majority of these apprentices or legal clerks were college graduates and by the late eighteenth century most county bar associations required completion of “a liberal arts education or its equivalent” and a period “of study with a recognized barrister before requesting the bar to recommend him to the inferior court as an attorney.” Id. at 125.Google Scholar

29 Gabriel, supra Note 27, at 131.Google Scholar

30 W. Burlette Carter, Reconstructing Langdell, 32 Ga. L. Rev. 1, 127 (1997). See also Crane, supra Note 27, at 53–54. In 1900, Harvard is credited as being the first University to require an undergraduate degree as a prerequisite to admission to law school because it viewed three years of legal education as comparable in intensity to the requirements for a Ph.D. in Philosophy or an M.D. (Doctor of Medicine) degree. Id. at 54.Google Scholar

31 Id. In many other countries, the law degree is a first degree, and is often the LL.B. degree. Lingyun Gao, Comment: What Makes a Lawyer in China? The Chinese Legal Education System after China's Entry into the WTO, 10 Willamette J. Int'l L. & Dispute Res. 197, 218–220 (2002). As a result, U.S. legal educators often assume that the majority of foreign-educated students entering LL.M. programs in the U.S. hold undergraduate degrees in law comparable to any undergraduate degree offered at U.S. universities and colleges. Mary C. Daly, Topic VI: Money-Laundering and Ethical Considerations for the Lawyer and Trust Officer in Dealing with the International Trust, 32 Vand. J. Transnat'l L. 1117, 1146–47 (1999). This assumption is not entirely accurate. If these students wish to practice law, they “must pursue professional training. In some countries, these students begin their professional training after completing their undergraduate degree. In other countries, they can enroll in a specialized series of training courses after two or more years of undergraduate education.” Id. Although the degree may be awarded as a first degree, it is often a program involving five or more years of study with grueling class schedules and lengthy oral examinations. Luz Estella Nagle, Insights into Legal Education: Maximizing Legal Education: The International Component, 29 Stetson L. Rev. 1091, 1095–1097 (2000). In some countries, the attrition rate is as high as 76%. Id. at 1098.Google Scholar

32 Jay W. Stein, The Juris Doctor, 15 J. Legal Educ. 315, 315 (1963). The information for the 1960–1961 study came from the publication, the American Bar Association Review of Legal Education (1961). Id. & n. 1.Google Scholar

33 Id. Law school data for 1961 indicates that 134-accredited schools awarded 8,903 LL.B. degrees and 532 J.D. degrees. This data generated by the ABA also reveals that the University of Chicago was the first law school to award the J.D. degree in 1903. Id. at 316.Google Scholar

34 Id. at 317–18. This survey was actually conducted in the spring of 1962 by Drake University, but contains data for 1960. Id. & n. 1.Google Scholar

36 Id. at 318.Google Scholar

37 A small number of law schools admit students who have completed only three years of college; these law schools offer the LL.B. degree as an alternative if these students “have not received a college degree before the conclusion of their law school course work.” Gabriel, supra Note 27, at 134 & n. 23. See also Crane, supra Note 27, at 54.Google Scholar

39 Henry D. Gabriel, supra, Note 27, at 131.Google Scholar

40 Id. In 1912, Harvard awarded its first graduate degree, an S.J.D. degree, to a law professor in Cincinnati; in 1923, Harvard began offering an LL.M. degree. Erwin N. Griswold, Graduate Study in Law, 28 Can. B. Rev. 172, 173, 174, 175–76 (1950); Frederick E. Snyder & Jerome A. Cohen, Harvard's Program in Law Teaching—A New Dimension in Graduate Legal Education, 31 J. Leg. Educ. 140, 141 (1981) (commenting that law schools offer these graduate programs “to help enhance the aspiring law teacher's capacity for legal scholarship and pedagogy or facilitate in other ways the transition to the academic life.”).Google Scholar

41 Crane, supra Note 27, at 56 & n. 62 (quoting Arthur E. Sutherland, The Law at Harvard: A History of Ideas and Men, 1817–1967, 233 (1967)). Since 1935, Harvard has described the S.J.D. candidate's thesis requirement in this manner. Id.Google Scholar

42 Gabriel, supra Note 27, at 132. The reasons for pursuing these advanced degrees have not changed. As recently as 1992, authors of a guide to graduate law programs cited “today's intensely competitive legal market” as the reason that the vast majority of graduate law degree candidates enter these programs. Directory of Graduate Law Degree Programs (eds. Richard L. Herman, et. al., 3d ed. 1992).Google Scholar

43 The LL.M. degree is favored for several reasons: most LL.M. programs require only one year of study and neither the LL.M. degree nor the S.J.D. degree, the latter of which requires one to three years in residence at a law school, are necessary prerequisites to an academic career. Crane, supra Note, 27, at 56; Silver, supra Note 7, at 146 & n. 8. In fact, even though the S.J.D. degree is a research degree requiring a doctoral-level dissertation, and is designed primarily for academicians, only a small percentage of faculty at U.S. law schools hold S.J.D. degrees. Sanjeev S. Anaand, Canadian Graduate Legal Education: Past, Present, and Future, 27 Dalhousie L.J. 55, 66 & n. 35 (2004). Another reason that the overall enrollment in S.J.D. degree programs is much lower than in LL.M. programs is the requirement at many schools that students first obtain an LL.M. degree from the law school as a condition of matriculation into the law school's S.J.D. program. Leon E. Trakman, The Need for Legal Training in International, Comparative and Foreign Law: Foreign Lawyers at American Law Schools, 27 J. Legal Educ. 509, 521 & n. 53 (1975). Finally, the opportunity to pursue an S.J.D. degree is much more limited with only 31 law schools offering doctoral level degrees. See supra Note 4. See also http://www.abanet.org/legaled/postjdprograms/postjd-school.html. See also, Silver, supra_Note 7, at 146 & n. 8.Google Scholar

44 Gabriel, supra Note 27, at 139. Practitioners generally enroll in LL.M. programs focused on specific areas of law, such as tax and patent law. Id. These LL.M. programs are dominated by practitioners from other countries. Id. at 149 (reporting ABA data from 2004, which reveals “that 96 U.S. law schools enrolled a total of 4469 foreign law graduates”).Google Scholar

45 Silver, infra Note 58, at 1048. Some LL.M. programs allow students to choose either a thesis track or a course track. Id. & n. 26. “The current trend in LL.M. programs not only avoids the thesis requirement, it also avoids the prescription of a set curriculum, in contrast to the core classes common to the first year of J.D. programs.” Id. at 1048. Silver argues the reason that a core curriculum is not a common feature of LL.M. programs is financial—it would require hiring additional faculty and might limit applicant interest. Id.Google Scholar

46 Crane, supra Note 27, at 61–62 & n. 100 (citing 52 areas of concentration available to LL.M. candidates at U.S. law schools). See also Silver, supra Note 7, at 160–61 (finding that there are 23 different subject areas that subject matter specific LL.M. degree programs for foreign lawyers focus on, including, for example, international and comparative law, energy law, dispute resolution, and real property).Google Scholar

47 Mitchell Franklin, On the Teaching of Advanced Foreign Civilians in American Law Schools, 2 J. Leg. Educ. 455, 455 (1950); Julia E. Hanigsberg, Swimming Lessons: An Orientation Course for Foreign Graduate Students, 44 J. Leg. Educ. 588, 590 (1994); Matthew A. Edwards, Teaching Foreign LL.M. Students About U.S. Legal Scholarship, 51 J. Leg. Educ. 520, 520 (arguing that the influx “of foreign-trained lawyers into our graduate law programs” imposes responsibilities for these students upon law schools).Google Scholar

48 Roger J. Goebel, Professional Qualification and Educational Requirements for Law Practice in a Foreign Country: Bridging the Cultural Gap, 63 Tulane L. Rev. 443, 461 (1989).Google Scholar

49 Id. During the late 1990's, law schools enrolled greater numbers of foreign students in part to respond to an overall decline in applications of U.S. students to J.D. programs. Silver, supra Note 7, at 150.Google Scholar

50 See Silver, supra Note 7, at 164, 172. See also Bollag, supra Note 9, at 113 (discussing recent declines in enrollment of foreign students in U.S. university programs, including both undergraduate and graduate study programs). One high-level official at a major higher education association commented on the reasons for declining enrollment:Google Scholar

A variety of factors combine to diminish the interest of foreign students in the United States, … Among the problems, … is the legal requirement for all visa applicants to be interviewed individually by a U.S. consular officer, restrictions on foreign students working in the U.S. after graduating from an American institution, and repeated cases of foreign scholars who are denied a visa or turned away when they arrive at a U.S. airport even with a visa.Google Scholar

Id.Google Scholar

51 See http://www.abanet.org/legaled/postjdprograms/postjd.html (“Overview of Post J.D. Programs”). The ABA estimates that “roughly half of all the individuals enrolled in LL.M. programs are graduates of foreign law schools.” Id. (“Programs for Foreign Lawyers”).Google Scholar

52 Id. (“Programs for Foreign Lawyers”). The MALS also designates a masters in American Legal Studies. Silver, supra Note 7, at 144 & n. 1.Google Scholar

53 Survey on file with this author. See also Silver, supra Note 7, at 147 (listing 102 law schools with LL.M. programs for international students). The twelve schools I have added to the list since Silver's 2003 study are: the University of Akron, Arizona State University, Chapman University, Catholic University, Duquesne University, Marquette University, Ohio Northern University, Ohio State University, the University of Oregon, Southern Illinois University, Southwestern University, and Thomas M. Cooley Law School.Google Scholar

54 See survey on file with the author of this article. In 2003, there were 66 programs exclusively for foreign students. Silver, supra Note 7, at 153. Apparently, the number of programs limited to international students has decreased slightly as the total number of graduate programs to which international students are admitted has grown.Google Scholar

56 The ABA accreditation process does not evaluate in any way whether a school's post-J.D. degree program ensures that students in the program gain the basic knowledge and skills necessary to prepare the student adequately for the practice of law…. The Standards for Approval of Law Schools prohibit an approved law school from establishing a post-J.D. program without first obtaining the acquiescence of the Council of the Section of Legal Education and Admissions to the Bar. However, the ABA reviews post-J.D. degree programs only to determine whether the offering of such post-J.D. program would have an adverse impact on the law school's ability to comply with the Standards that the ABA establishes for J.D. programs. (Emphasis added). http://www.abanet.org/legaled/standards/councilstatements.html (“Council Statements”).Google Scholar

57 The following six states permit foreign law graduates to take the bar exam if these students obtain an LL.M. or other graduate degree from an ABA-approved law school: California, Connecticut, New Hampshire, New York, North Carolina, and Virginia. Comprehensive Guide to Bar Admission Requirements 2007 (National Conference of Bar Examiners & ABA Section of Legal Education and Admissions to the Bar).Google Scholar

58 See generally Carole Silver, The Case of the Foreign Lawyer: Internationalizing the U.S. Legal Profession, 25 Fordham Int'l L.J. 1039 (2002). Another common feature of LL.M. programs is that they are often “built around foreign students taking a majority of their courses with J.D. students.” Silver supra Note 7, at 155.Google Scholar

59 Students enrolled in either the LL.M. in Comparative Law or the Master of Comparative Law (M.C.L.) at California Western University School of Law must satisfactorily complete a minimum of 16 and a maximum of 25 credit hours. http://www.cwsl.edu. At the other end of the spectrum is the University of Illinois College of Law International LL.M. Program with 32 required credit hours for graduation. http://www.law.uiuc.edu/academic/llm_courses.asp. Schools requiring 30 credit hours for graduation are numerous and include, for example: the University of Baltimore School of Law, http://www.law.ubalt.edu/academics/concentrations/llm.html; and Indiana University School of Law, http://www.law.indiana.edu/graduate/index.shtml. (for students enrolled in the thesis track).Google Scholar

60 Griswald, supra Note 40, at 176–177.Google Scholar

61 Id. The author also expresses concern with students from civil law countries. Id. at 177. Of course, other officials at law schools were likely more concerned about the experiences of the U.S. students pursuing graduate degrees in law. See e.g., Banks McDowell, Jr. & A.W. Mewett, What Are Teachers Made of?: A Critical Appraisal of Graduate Study in the United States, 8 J. Leg. Educ. 79 (1955).Google Scholar

62 See_Sourcebook on Legal Writing Programs, supra Note 6: “It is unrealistic to expect a student to acquire a level of fluency in academic and professional legal English within only a semester or two of study, when mastery typically takes several years.” Many ESL students enrolled in U.S. LL.M. programs have difficulty in speaking, listening to, and writing in English, “reading is in fact one of their weakest skills, given their lack of experience in reading U.S. legal cases and the demanding nature of such reading.” Feak & Reinhart, supra Note 6, at 10.Google Scholar

63 See supra Note 23 and infra Notes 97–98. See also Ramsfield, supra Note 12, at 157–158 (describing difficulties international students encounter in U.S. law school classrooms).Google Scholar

64 See infra Notes 67 – 69 and accompanying text.Google Scholar

65 Some of these programs provide an introduction to the U.S. legal system and include some additional topics such as legal English, research, writing, and civil procedure. See, e.g., University of California, Los Angeles School of law Program at http://www.law.ucla.edu/home/index/asp?page=802 (offering an orientation program beginning one week prior to the start of the fall semester); Case Western Reserve University School of Law Program at http:///www.law.case.edu/curriculum/llm/-content.asp?id=364 (offering a four-week Summer Language and Law Institute exclusively for foreign students); Duquesne University School of Law Program at http://www.law.duq.edu/Academics/AcaPgmLLM.html (offering Orientation to the American Legal System Program for one week prior to the beginning of the fall semester); Georgetown University School of Law Program at http://www.law.georgetown.edu/foundations/ (offering a month-long Foundations of American Law and Legal Education to foreign students); University of Pennsylvania Law School Program at http://www.law.upenn.edu/prospective/grad/summerprogram/ (offering mandatory four-credit course in Foundations of the U.S. Legal System and Legal Research); University of Pittsburgh School of Law Program at http://www.law.pitt.edu/academics/programs/docs/EFLBrochure.pdf (offering an elective summer English for Lawyers program); University of Southern California Gould School of Law Program at http://www.lawgip.usc.edu/sle/info.cfm (offering a Summer Law and English Program); Washington University School of Law Program at http://www.law.wustl.edu/llmall/suminstinfo07.pdf (offering a two-week Summer Institute in U.S. Law); Wayne State University School of Law Program at http://www.law.wayne.edu/docs/LLM%20Regulations%20Dec%202003.pdf (offering a one-week mandatory International Student Orientation focused on legal research, analysis and writing); University of Wisconsin School of Law Program at http://www.law.wisc.edu/grad/ (offering a Summer Program in U.S. Law and Legal Institutions).Google Scholar

66 See infra Notes 67–69.Google Scholar

67 These courses in the U.S. legal system range from one to four credit hours, with the majority of schools requiring a two-credit course. See, e.g., Loyola University School of Law, Chicago at http://www.luc.edu/law/academics/graduate/business_structure.html#international (one-credit course, Fundamentals of American Law); Duke University School of Law at http://www.law.duke.edu/internat/graduateDegrees.html (two-credit course, Distinctive Aspects of American Law); Case Western Reserve University School of Law at http://www.law.ubalt.edu/academics/concentrations/llm2.html (three-credit course, Introduction to U.S. Law);University of Denver Sturm College of Law at http://law.du.edu.maclaw/curriculum.cfm (four-credit course, Introduction to United States Law).Google Scholar

68 See infra Note 152 and accompanying text.Google Scholar

69 See infra Notes 71 – 151 and accompanying text.Google Scholar

70 Some of these schools make accommodations for ESL students enrolled in LL.M. programs by allowing them to take courses on a pass / fail basis, or to submit a paper in lieu of a final examination in a course. See, e.g., the University of Alabama School of Law. http://www.law.ua.edu/prospective/info.php?re=int-overview.Google Scholar

71 Melanie L. Schneider & Naomi K. Fujishima, When Practice Doesn't Make Perfect: The Case of a Graduate ESL Student, in Academic Writing in a Second Language: Essays on Research and Pedagogy 3, 4 (Diane Belcher & George Braine eds. 1995) (citing to research in the undergraduate and graduate classroom in this area conducted in the 1980's). Researchers in this field also use the label “cultural rhetorical preferences” to denote studies in contrastive rhetoric. Ramsfield, supra Note 12, at 169.Google Scholar

72 Philippa J. Benson & Peggy Heidish, The ESL Technical Expert: Writing Practices and Classroom Practices, in Academic Writing in a Second Language 313, 315 (1995). Anthropologists, psychologists, and researches in the field of education have also conducted empirical research in this area of “learning literacy and the effects of literacy on learners’ thinking as well as social behavior.” Ulla Connor, Contrastive Rhetoric: Cross-Cultural Aspects of Second–Language Writing 20 (Cambridge Univ. Press 1996).Google Scholar

73 Connor, supra Note 72, at 5 (ascribing the origins of the field of contrastive rhetoric to Robert Kaplan and describing it as “the first serious attempt by applied linguists in the United States to explain second language writing”). In 1966 Robert Kaplan did introduce the concept of contrastive rhetoric, but his conclusions were criticized for over-simplifying or generalizing patterns of cultural thought. Ramsfield, supra Note 12, at 160–161 & n. 13. In 1976, he modified his findings. Id. at 161 & n. 13 (citing Robert B. Kaplan, A Further Note on Contrastive Rhetoric, 24 Comm. Q. 2 (1976)). For a discussion of these interfering effects, see infra Note 74.Google Scholar

74 Connor, supra Note 72, at 5. Educators early on believed that the way to teach ESL students was to focus on grammar and usage and to correct for these types of errors. Ramsfield, supra Note, 12, at 159. Error correction analysis originally consisted of reviewing and analyzing paragraph structure and organization for problems and relating these problems to “the language background from which the student came.” Connor, supra_Note 72 at 15. For a discussion of the history of error correction, see, Mike Rose, The Language of Exclusion: Writing Instruction at the University, in Negotiating Academic Literacies: Teaching Across Languages and Cultures 9, 11–18 (Vivian Zamel & Ruth Spack eds. 1998). See also Dana R. Ferris, Response to Student Writing: Implications for Second Language Students 42 (2003). Such problems were ascribed to the negative, interfering effect a first language was thought to have on second-language acquisition. Id. at 12. Researchers have always recognized the interfering effects, known as “transfer,” a first language has on an individual's acquisition of a second language. Id. at 13. Theories regarding the role of transfer vary—in early studies, the first language was believed to interfere with acquisition of the second language. Id. Later studies suggested that transfer had a more complex effect on an individual's ability to learn a second language depending upon the learner's knowledge about the second language, the learner's strategies, the learning situation, and the combination of these factors. Id. Ramsfield, supra Note 12, at 159. During the 1960's when Kaplan conducted his research on contrastive rhetoric, researchers were beginning to compare the process of second-language acquisition with first-language acquisition. Connor, supra Note 72, at 12.Google Scholar

75 A computer search of all U.S. law reviews and journals revealed only two articles in which the field of contrastive rhetoric is either mentioned or discussed. Ramsfield, supra Note 12, at 159–164 (discussed in depth). See also Rideout & Ramsfield, supra Note 22, at 88 & n. 174 (mentioning contrastive rhetoric).Google Scholar

76 Hanigsberg, supra Note 47, at 597–98 & n. 28 (describing TOEFL as “notoriously unreliable”). TOEFL also measures “general English proficiency,” not U.S. legal English. Paul A. Deeringer, No Shirt, No Shoes, No English …No Dice? How Should We Test English Proficiency for Foreign-Trained Attorneys?, 18 Geo. J. Legal Ethics 691, 712 (2005). See also Ramsfield, supra Note 12, at 190 (asserting that “even excellent scores on so-called standard English tests may not guarantee good performance in law school”).Google Scholar

77 Melanie L. Schneider & Naomi K. Fujishima, supra, Note 71, at 9 (citing a study of “376 foreign graduate students” showing after one semester “TOEFL scores did not correlate highly with GPA”).Google Scholar

78 Alvino E. Fantini, Language: Its Cultural and Intercultural Dimensions, in New Ways in Teaching Culture 3, 5 (TESOL 1997).Google Scholar

80 Id. The origin of this famous statement is attributed to the anthropologist, Edward T. Hall. Id. See Edward T. Hall, The Silent Language (1973). Language “allows us to develop ‘human’ qualities, which in turn “allows culture development through interaction and communication with other individuals.” Fantini, supra Note 78, at 5.Google Scholar

81 Deeringer, supra Note 76, at 712. See also Ramsfield Note 12, at 164 (describing a student's initiation “into the U.S. legal discourse community” as “complex and challenging.”). For purposes of the classroom, [a]cademic culture consists of a shared experience and outlook with regard to the educational system, the subject or discipline, and the conventions associated with it. These conventions may, for example, take the form of the respective roles of student and lecturer/tutor/supervisor, etc. and their customary behavior; or conventions attached to academic writing, with its structuring and referencing system.Google Scholar

R.R. Jordan, English for Academic Purposes 98 (Cambridge Univ. Press 1997).Google Scholar

82 Connor, supra Note 72, at 29 (discussing the problems and the loss associated with strict translation of one language to another). Benson & Heidish, supra Note 72, at 313, 318 (1995) (discussing the process approach or a more holistic approach to thinking and writing in another language).Google Scholar

83 Connor, supra Note 72, at 28, 29. The Sapir-Whorf hypothesis, which is also known as the Whorfian hypothesis, originated with Edward Sapir in 1951; his student, Benjamin Whorf, developed the hypothesis that “native language influences and controls thought.” Id. at 28–29. Linguists and psychologists have leveled frequent criticism at this “strong” hypothesis. Id. Beginning in the 1990's, however, psychologists have resurrected a weaker version of the Sapir-Whorf hypothesis as one concerning “language performance rather than a linguistic hypothesis about language competence (the native speaker's conscious knowledge of language and its grammar).” Id.Google Scholar

84 References to the English language in this article are intended primarily as references to Anglo-American English. It should be noted, however, that linguistic research has revealed “numerous differences between spoken and written modes of American and British English” and “other ‘native’ Englishes (e.g., Canadian, Australian, and New Zealand English” as well as nonnative varieties of English norms.)” Connor, supra Note 72, at 16.Google Scholar

85 Milton J. Bennett, How Not to Be a Fluent Fool: Understanding the Cultural Dimension of Language, in New Ways in Teaching Culture 16, 19 (Alvino E. Fantini ed., TESOL 1997 (adapted from How Not to Be a Fluent Fool: Understanding the Cultural Dimension of Language, 27 The Language Teacher 9 (1993)). The Micronesian Islands of Truk (also known as the Truk Islands) are located in the western Pacific Ocean east of the Philippines and north of the equator. The American Heritage Dictionary of the English Language 1140, 1919 (3d ed. 1992). Hopi reservation land is located in northeast Arizona. Id. at 871.Google Scholar

86 Bennett, supra Note 85, at 19–20. The author cited another unique aspect of the Trukese language—a single word, “araw,” is used to indicate the color blue and green. Id. at 17. The author and teacher realized that in addition to teaching these students English, he “was also teaching them how to experience something (the difference between blue and green) that they did not experience using their own language.” Id.Google Scholar

87 Id. at 19.Google Scholar

88 Id. at 20 (concluding that the “actor-action-result pattern is very useful for conceptualizing mechanics, business, and much of science.”)Google Scholar

90 Ramsfield, supra Note 12, at 175–177. Ramsfield explains, In the U.S. legal discourse community, analytical paradigms are often implicitly, not explicitly defined. Further, all these paradigms assume certain cultural preferences and innate features of the discourse community. U.S. lawyers often prefer moving from general information to specific information, that is, from the legal principle or rule through analogical reasoning to a conclusion about how the rule applies to specific facts. This deductive approach, mixed with analogical thinking, dominates most memos and briefs. Id. at 175. See also Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook: Analysis, Research, and Writing 823–876 (4th ed. 2006). This legal writing textbook contains an entire section entitled “Legal Writing for English-as-a-Second-Language Students.” Id. It also contains a chart, “Contrasting Rhetorical Preferences,” which spans 12 pages and compares U.S. legal writing conventions with Chinese, Japanese, Korean, French, Spanish, Arabic, and Russian conventions. Other textbooks devoted entirely to ESL law students include Jill J. Ramsfield, Culture to Culture: A Guide to U.S. Legal Writing (2005); Nadia E. Nedzel, Legal Reasoning, Research, and Writing for International Graduate Students (2004); Mark E. Wojcik, Introduction to Legal English: An Introduction to Terminology, Reasoning, and Writing in Plain English (2d ed. 2001).Google Scholar

91 Bennett, supra Note 85, at 20.Google Scholar

93 Benson & Heidish, supra_Note 72, at 327.Google Scholar

94 Bennett, supra Note 85, at 18.Google Scholar

96 Different representations of objects and space are reflected in the different counting systems contained in different languages. Id. Again, American English contains a single way to count, e.g., “one, two, three, etc.” Id. In contrast, both the Japanese and Trukese language incorporate different systems of counting and both languages count people using “a set of words different from all others used for objects.” Id. Other differences exist:Google Scholar

In American English, things can be either here or there, with a colloquial attempt to place them further out over there. In the Trukese language, references to objects and people must be accompanied by a location marker that specifies their position relative to both the speaker and the listener. Again, we assume that Trukese people experience “richer” space than do Americans, whose language does not provide as many spatial boundary markers and for whom space is therefore more abstract.Google Scholar

Id.Google Scholar

97 Schneider & Fujishima, supra Note 71, at 4. The phrase, “technical expert,” is used in the literature in this field to denote “nonnative speakers of English who are adults in graduate-level programs, who have developed relatively high levels of expertise in specific content areas.” Benson & Heidish, supra Note 72, at 314.Google Scholar

98 Benson & Heidish, supra Note 72, at 325. For a general discussion of educational practices in different countries, see Understanding Your International Students: An Educational, Cultural, and Linguistic Guide (Jeffra Flaits, et. al., eds. 2003).Google Scholar

99 Schneider & Fujishima, supra, Note 71, at 15–16. Learning style for purposes of this article “is the particular approach by which a student tries to learn.” R.R. Jordan, supra Note 81, at 95. “Learning strategies” for language learners include “‘specific actions, behaviors, steps, or techniques … used by students to enhance their own learning’”; beginning in 1975, researchers in the field have studied “the learning strategies of good language learners.” Schneider & Fujishima, supra Note 71, at 14, 15. These language learning strategies include: memory strategies, cognitive strategies, compensation strategies, metacognitive strategies, affective strategies, and social strategies. Id. at 15.Google Scholar

100 R.R. Jordan, supra Note 81, at 95. Individual personality variables also influence learning style and, in turn, learning strategies. Id.Google Scholar

101 Benson & Heidish, supra Note 72, at 315–316 (commenting that although research is expanding in the areas of “linguistics, reading, and writing skills,” there are “widely divergent practices in experimental methodology that provide results that, by design, are at best difficult to compare and, at worst fundamentally flawed”).Google Scholar

102 Id. at 318. The process approach generally divides writing into steps: “(1) pre writing, with its planning, researching, analyzing, and organizing functions; (2) writing preliminary drafts of the legal document; and (3) editing, revising, and polishing the drafts.” Jo Anne Durako, et. al, From Product to Process: Evolution of a Legal Writing Program, 58 U. Pitt. L. Rev. 719, 723 (1997). For further discussion of the process approach to the writing classroom, see also infra Note 181.Google Scholar

103 Benson & Heidish, supra Note 72, at 317, 318. The authors caution that the idea of writing as a process must be consistently reinforced throughout writing courses. Id._at 318.Google Scholar

104 Benson & Heidish, supra Note 72, at 318–319.Google Scholar

105 Id. at 319.Google Scholar

106 See supra_Note 14 and accompanying text. We know that generally J.D. students with strong writing backgrounds perform well in a legal writing class. Susan R. Daley, Linking Technology to Pedagogy in an Online Writing Center, 10 Legal Writing 181, 182–183 (2004).Google Scholar

107 Ramsfield, supra Note 12, at 163.Google Scholar

109 Connor, supra Note 72, at 23; G. Hull, et. al., Remediation as a Social Construct: Perspectives from an Analysis of Classroom Discourse, 42(3) College Composition and Communication 299, 301 (1991).Google Scholar

110 Id. For example, one researcher described classroom behavior in typical Indonesian university English classes asGoogle Scholar

extremely informal. The students have considerable respect for their teachers, but university English classes are regarded as a ritual in which the participants have ritually prescribed roles. The teacher is ‘active, respected, ineffective', and the student is ‘passive, respectful, inattentive'. In other words, students spend a great deal of the time ignoring the teacher and talking to each other.Google Scholar

R.R. Jordan, supra_Note 81, at 99.Google Scholar

111 R.R. Jordan, supra Note 81, at 99 (citing “[t]he mismatching of expectations by students and academic staff” as a “recurring theme in research reports”).Google Scholar

112 Diane Belcher & George Braine, Introduction, in Academic Writing in a Second Language: Essays on Research and Pedagogy xx (Diane Belcher & George Braine eds., 1995). The authors note that although this graduate student views the change as “welcome,” others experience the process as a cultural conversion and a loss of self. Id._at xx-xxi.Google Scholar

113 Id. at xx. Although this student speaks of change through “redefining” himself, “becoming an insider in Anglophone academia does not require cultural conversion.” Id. at xx-xxi. Instead, students can experience “an enlargement of identity” rather than a change. Id. at xxi.Google Scholar

114 Id. The student, Zhang, enrolled in the graduate degree program at the Monterey Institute of International Studies in Monterey, California. Schneider & Fujishima, supra Note 71, at 5–6. Zhang was 30 years old, held a B.S. degree in agricultural economics from a university in Taiwan, and had studied English for the required six years for “two to four hours a week, in grades 7–12.” Id. at 6. In his studies in the U.S., however, Zhang did not meet the minimum grade requirements and was dismissed after one year. Id. A study of students from Hong Kong noted cultural differences in their attitudes toward the classroom and in particular, toward lectures. R.R. Jordan, supra Note 81, at 96. The authors concluded that these students, whose “education was firmly based on ‘those Chinese historical, cultural, and traditional philosophical patterns broadly referred to as 'Confucianism,”' exhibited the following attitudes: respected the authority of the lecturer, believed the lecturer should never be questioned, placed a positive attitude “on effacement and silence,” and also emphasized a “group orientation to learning.” Id. For these students, accustomed to collaboration and group problem-solving, independent study may be difficult. Id. at 100.Google Scholar

115 Min-zhan Lu, From Silence to Words: Writing as Struggle, in Negotiating Academic Literacies: Teaching and Learning Across Languages and Cultures, 71, 82 (Vivien Zamel & Ruth Spack eds. 1998).Google Scholar

116 Id. at 83.Google Scholar

117 For a definition of the phrase, “technical expert,” see supra Note 97. In contrast, the LL.M. students for whom English is a second language are unlike “[s]tudents in masters or doctoral programs in fields such as art, history, chemistry, mathematics, engineering, or medicine” who “often have been exposed to the vocabulary, norms, and expectations of the fields as undergraduates or through prerequisite courses.” Brostoff, Sinsheimer, & Ford, supra Note 11, at 140.Google Scholar

Ramsfield, supra Note 12, at 186 (footnotes omitted).Google Scholar

118 Brostoff, Sinsheimer, & Ford, supra Note 11, at 139 (describing an international LL.M. student who is a lawyer in another country as a “novice in terms of U.S. law”). See also supra Note 23.Google Scholar

119 For a description of the different LL.M. programs available to international students, see supra Notes 51–55 and accompanying text.Google Scholar

120 There is support in the legal literature for this perspective:Google Scholar

[T]here is a limit to what can be done for a foreign student who has a fundamentally different perception of the role and operation of law. Many foreign lawyers will inevitably be confused by their inability to clearly and systematically relate their newly acquired American legal experiences to their past legal training. There is much sense in the remark that the Continental lawyers’ “adjustment difficulties cannot be eliminated. They can only be reduced.”Google Scholar

Trakman, supra Note 43, at 528–29 (quoting Mirjan Damaska, A Continental Lawyer in an American Law School: Trials and Tribulations of Adjustment, 116 U. Pa. L. Rev. 1363, 1378 (1968)).Google Scholar

121 Mark Wojcik, Designing Writing and Research Courses for International Students, 14/2 Persps. 84, 84 (2006). In fact, English “language mastery at the level expected in U.S. law practice could easily take five or six years to achieve, and even then only with sustained and intensive instruction.” Id.Google Scholar

122 Belcher & Braine, supra Note 112, at xxii-xxiii.Google Scholar

123 Silver, supra_Note 7, at 156.Google Scholar

124 Silver, supra_Note 58, at 1077. The author consulted “approximately 300 foreign lawyer LL.M. graduates working in New York between 1999 and 2000, … hiring partners at a number of U.S.-based elite international firms,” and other sources. Id. at 1043, 1062, 1078.Google Scholar

125 Silver, supra Note 58, at 1041. The reason that so few of these students are hired by U.S. firms is likely twofold: (1) “the position of strength enjoyed by U.S. law firms in the international market for legal services,” and (2) the fact that “the business of many U.S. firms that participate in the international legal market continues to be dominated by domestic matters, where the benefit of a foreign legal approach is ambiguous.” Id. Another reason that these students are not hired by U.S. law firms is that most of them are ineligible to sit for a state bar exam. See supra Note 57.Google Scholar

126 The value of a U.S. LL.M. degree was explained by one author:Google Scholar

For many, the importance of U.S. clients in their home countries convinces them of the need to acquire a U.S. law experience and the skills that go along with it. Learning English, particularly legal English, is crucial, as is having some exposure to U.S. culture. Foreign lawyers from diverse countries—including Latin America, Europe, and Asia—report that at least half of the work in their home country is performed in English. Silver supra, Note 7, at 156. See also Ramsfield supra, Note 12, at 158 (predicting that international law practice will “dominate legal practice” in this century).Google Scholar

127 Silver, supra Note 7, at 156.Google Scholar

128 Thus, arguments against a legal writing course for these reasons miss the point. See, e.g.,_Peter B. Friedman, Symposium on Working Together: Developing Cooperation in International Legal Education: What are Legal Writing Professors Doing as International Legal Educators?, 20 Penn. St. Int'l L. Rev. 43, 45–46 (2001).Google Scholar

129 Benson & Heidish, supra Note, 72, at 327.Google Scholar

130 See supra Notes 101–104 and accompanying text.Google Scholar

131 Eichhorn, supra Note 22, at 112–113. One author, who is also the Dean of Pericles, the American Business and Legal Education Project in Moscow, interviewed more than 50 attorneys at 18 Western law firms in Moscow and a dozen other lawyers working for “international and foreign not-for-profit organizations.” Marian Dent, Designing an LL.M. Curriculum for Non-Western-Trained Lawyers, 13/2 Persp. 87, 88 (2005). She summarized their views on the need for legal writing education for the ESL LL.M. students:Google Scholar

Writing is a skill often ignored in LL.M. programs. The partners and associates I interviewed said that they would structure an LL.M. program with a greater emphasis on analytical writing skills. Those who had taken the trouble to look at applicant transcripts were chagrined that many LL.M. graduates had no writing courses on their transcripts, or had only an “Intro to American Law” course, in which the students had touched on writing and analysis in the context of writing for law school exams, rather than in the context of professional work. The interviewees commented favorable on the few LL.M. programs that contained strong writing components. Id. at 89. Evaluations completed at the conclusion of courses and programs by these international students often rank very high the courses providing an opportunity to practice legal writing and analysis and gain instructor feedback. Student evaluations are on file with the author and available from students who completed an intensive summer course in legal research and writing at the International Law Institute in Washington, D.C., some of whom entered LL.M. programs in the U.S. after completion of this summer course.Google Scholar

132 See Silver, supra Note 7, at 149–150. Some law schools admit as few as five international students to an LL.M. program in a given year. Id.Google Scholar

133 Id. (surveying LL.M. programs for international students and finding “the average number of students in the graduate programs at these thirty-five law schools [responding to the survey] for the 2003–04 academic year was approximately fifty-four students”). But see Peter B. Friedman, supra Note 128, at 45–46 (arguing that “the resources devoted to legal writing programs for J.D. students are by and large stretched far too thin for most schools, … to even consider offering anything resembling the standard first-year legal writing program to foreign lawyer LL.M. students”). The LL.M. program budget, however, should be separate from the J.D. budget and not all legal writing professors have experience with ESL students.Google Scholar

134 The ABA Sourcebook on Legal Writing Programs 173–174 (2d ed. 2006) recommends that “the number of writing students per fulltime professor in any semester should not exceed 35 to 45” and that the student faculty ratios in advanced writing courses may be optimally as low as 12–15. On average, in the 2006–2007 academic year a fulltime legal research and writing faculty member at a U.S. law school “taught an average of 44.36 entry-level students.” Association of Legal Writing Directors, Legal Writing Institute 2007 Survey Results vi, available at http://www.lwionline.org (hereinafter [Survey Results]).Google Scholar

135 It is true that many of these “attorneys-cum-students” have practiced law or have “worked in legal jobs for at least a year, sometimes many years before entering an international LL.M. program at a U.S. law school.” Elizabeth L. Inglehart, Teaching U.S. Legal Research Skills to International LL.M. Students: What and How, 15/3 Persps. 180, 180 (2007) (commenting in the context of the need for research training that their experience is different and they are in need of training).Google Scholar

136 Kathryn M. Stanchi & Jan M. Levine, Gender and Legal Writing: Law School's Dirty Little Secrets, 16 Berkeley Women's L.J. 1, 4–5 (2001) The authors point out that in U.S. law schools,Google Scholar

[t]he legal writing course, which requires intensive labor by teachers and an individual focus on each student, is taught by faculty accorded the lowest status in the institution. Almost all of them are severely underpaid, and many of them are discouraged from (or forbidden from) teaching at the school for very long. Id. But see infra Note 145 and accompanying text (discussing entering LL.M. student aversion to legal writing training).Google Scholar

137 Stanchi & Levine, supra Note 136, at 5–6 (arguing that law schools’ creation of this “second track” and its treatment of legal writing faculty, who are predominantly women, amounts to intentional gender discrimination). See also Eichhorn, supra Note 22, at 113 (citing Rideout & Ramsfield, supra Note 22, at 41–48 (arguing that while teaching methods in legal writing courses “have become more sophisticated, institutional investment today in terms of funding and administrative support for writing programs remains relatively low. Issues of status, salaries, and course credit still dog the legal writing field and put its practitioners on the defensive”). National survey results of legal writing programs and professionals for 2007 reveal that legal writing professionals continue to receive lower pay and less job security than do professors in traditional doctrinal areas. Survey Results, supra Note 134, at 51–60.Google Scholar

138 Dent, supra Note 131, at 88 (2005). “[M]ore than 50 partners and senior associates from 18 Western law firms … as well as about a dozen lawyers working on rule-of-law development for international and foreign nonprofit organizations” were surveyed. Id. The author conducted oral interviews and also requested that attorneys answer written survey questions. Id. & n.3. Managing partners at large law firms in Moscow were the subject of the survey, most of whom were not Russian, but were originally from the U.S. Id. In addition to surveying employers, surveying the students during and after the completion of a legal writing course will provide useful information. Mark E. Wojcik, Designing Writing and Research Courses for International Students, 14/2 Persps. 83, 85–86 (2006) (asserting that these “[s]tudents will have a good idea of their own needs, their own learning styles, and the effectiveness of our teaching; we should use that knowledge to benefit future students”).Google Scholar

139 Dent, supra Note 131, at 89. If research is taught, these attorneys “want computerized research emphasized.” Id. at 90.Google Scholar

140 Mat 89.Google Scholar

141 Id. at 90.Google Scholar

143 Id. These same attorneys expressed a desire that the LL.M. students be graded on par with J.D. students so that the prospective employers could evaluate the students’ “credentials against a standard they [the employers] know.” Id.Google Scholar

144 Brostoff, Sinsheimer, and Ford, supra Note 11, at 149–150. Student evaluations submitted by a colleague who teaches a summer Legal Writing and Research Workshop for international students who may be entering U.S. LL.M. programs reveal that the students prefer learning legal writing and are not all that interested in learning U.S. legal research skills. The evaluations are on file with the author and are available.Google Scholar

145 See supra Note 7 and infra Note 152 for a discussion of how the survey information for this article was compiled. In addition to consulting websites and sending written survey requests to law schools, individuals who teach legal writing and research to the ESL students enrolled in the LL.M. programs were interviewed. This statement was made by a one of the professors with a great deal of teaching experience in this field at several different law schools. This same professor asserted that generally the students without much practice experience place greater emphasis on the LL.M. as a credential. She found that experienced attorneys from other countries were more inclined to be focused on particular practice areas and substantive coursework rather than the credential or degree. See Silver, supra Note 7, at 159, 160, 164 (asserting that these students choose a particular LL.M. program based on U.S. News & World Report ranking, subject matter of the program, financial aid from the law school, and connection to the law school).Google Scholar

146 Silver, supra Note 7, at 156. The author interviewed graduates of U.S. LL.M. programs. Id. at 143.Google Scholar

147 Brostoff, Sinsheimer, & Ford, supra Note 11, at 150. Belcher and Braine, supra Note 112, at xiii (discussing the need of ESL instructors to understand the isolationist tendencies of ESL students and to view such a student broadly as “language learner” or as “specialist-in-training” and to communicate with other instructors about the student's progress so as to save a student from academic failure).Google Scholar

148 Silver, supra Note 58, at 1041.Google Scholar

150 Silver, supra Note 7, at 159–160.Google Scholar

151 See supra Notes 78 – 100, 109 – 121 and accompanying text.Google Scholar

152 Individuals who teach the legal writing and research components of the LL.M. program at each of these schools were sent a survey. Twenty-three of 47 (49%) responded. The written survey questions were modeled after the Association of Legal Writing Directors, Legal Writing Institute Annual Survey of legal writing programs. Seven respondents also sent syllabi and one individual also sent a detailed, 22-page document which included a syllabus and a detailed statement of “course objectives.”Google Scholar

153 The 2007 survey of legal writing programs for U.S. J.D. students was circulated to “all AALS Member law schools and AALS Non-Member Fee-Paying schools, and the University of Windsor in Ontario, Canada.” Survey Results, supra Note 134, at i. The response rate exceeded 92%. Id.Google Scholar

154 Id. It should be noted that unless someone responding to the written survey explained what portion of the legal writing course was devoted to writing and what portion was devoted to research, respondents were not specifically asked to make this distinction. Although more detail as to this breakdown would be helpful, the answers to the questions about research training provide some indication that significantly less time is devoted to legal research training in the legal writing course. In fact, a number of respondents indicated that legal research is a separate one-credit course.Google Scholar

155 The written survey information is available and on file with the author. See supra Notes 7 and 152 for an explanation of how the information was collected. Two of the three law schools requiring four-credit hours of legal writing instruction structured the course as consisting of three credits in the fall and one credit in the spring semester. Included in this list of three is a law school listing the course on its website as consisting of “3–4” credits, which was interpreted as meaning that the credit-hours varied from year to year. One of the law schools requiring only one credit-hour in legal writing instruction also requires that students with TOEFL scores below 580 enroll in an “English for Lawyers” course. At another school requiring one credit-hour of legal writing instruction, the students are also required to enroll in a three-credit course entitled “Fundamentals of U.S. Law,” with two credits described as a “classroom component” and one credit devoted to both legal writing and legal research.Google Scholar

156 The text most frequently used at these schools is Nadia Nedzel, Legal Reasoning, Research and Writing for International Graduate Students (2004) (ten—43 % of those responding—schools reporting use of this textbook). Several law schools reported using texts not frequently used in a J.D. legal writing course, including Toni Fine, American Legal Systems: A Resource and Reference Guide (1997); Morris L. Cohen & Kent C. Olson, Legal Research in a Nutshell (2007); and Charles F. Abernathy, Law in the United States (2006). It should be noted that some of the textbooks adopted for ESL legal writing purposes although traditionally used in teaching legal writing to J.D. students, incorporate topics that are useful in the ESL legal writing classroom. For example, some of the textbooks used at several law schools include sections devoted to client letters, demand letters, and exam writing. See, e.g., Richard K. Neumann, Jr. Legal Reasoning and Legal Writing: Structure, Strategy, and Style 279–298 (5th ed. 2005). This same text also includes a chapter devoted to client interviewing, id. at 79–83, in addition to the standard Appendix of sample documents and the information about English language usage, grammar, and punctuation. Id. at 451–536.Google Scholar

157 Twenty of the twenty-three law schools responding to the written survey request reported teaching both manual research and computer research training, including both Westlaw and LEXIS. Only three law schools (14%) reported teaching only computer research.Google Scholar

158 See supra Notes 125–130, 138–149 and accompanying text.Google Scholar

159 See supra Notes 12–14, 78–81, 90, 117–119 and accompanying text.Google Scholar

160 Secondary authority is an important part of the legal system. Jaime S. Dursht, Note, Judicial Plagiarism: It May Be Fair Use, But Is It Ethical?, 18 Cardozo L. Rev. 1253, 1290–1291 (discussing the U.S. Supreme Court's inclination to cite to secondary authority primarily in the form of law review articles).Google Scholar

161 See supra Notes 111–113 and accompanying text.Google Scholar

162 For a discussion of the interdependence of language and culture and the issues for ESL students, see supra Notes, 71–96, 101–104, 115–119, and accompanying text.Google Scholar

163 A total of 11 (48 % of all schools responding) other schools reported either providing access to a writing specialist within the law school who has expertise in ESL issues. Several schools reported that although students are advised to consult with the writing specialist, very few students take advantage of this opportunity. Of the 11 law schools providing a writing specialist for these ESL students, two law schools reported that the student must request individual help, and the ESL specialist is a part of the larger university and not within the law school or a part of the legal writing course.Google Scholar

164 See written survey available and on file with the author.Google Scholar

165 For example, one professor reportedGoogle Scholar

I have a master's degree in Linguistics, with a specialization and certification in teaching English as a Second and Foreign Language. I worked in the field for nearly ten years before going to law school, as instructor, course designer, and materials developer. I also worked extensively in curriculum development for ESP (English for Specific Purposes). In those years, the special purpose was business (I worked for Arthur Andersen most of this time). Here, the special purpose is obviously law. Survey response available and on file with the author.Google Scholar

Fourteen of the 23 schools responding to the written survey reported requiring at least one individual conference with the legal writing professor. The remaining law schools conducted voluntary individual conferences with these students, which one respondent described as “endless.”Google Scholar

166 Opportunities for individual conferences provide one of the three general types of feedback appropriate for ESL student writers: “peer evaluation, conferences (i.e. teacher-student interaction) and written comments (by the teacher).” R.R. Jordan, supra Note 81, at 168.Google Scholar

167 Only one law school actually reported that these ESL students were required to enroll in a legal writing class with first-year J.D. students and the reason given was that the school enrolls as few as two or three ESL LL.M. students annually. The other school required that these students enroll in the same course as is offered to U.S. J.D. students, but these students are placed in separate sections consisting only of ESL LL.M. students. In this situation, the LL.M. legal writing class size is often smaller than is the J.D. legal writing course.Google Scholar

168 Sixteen law schools reported integrated teaching of research with seven reporting separate training and even separate courses at some of the law schools.Google Scholar

169 See supra Notes 12–14, 78–81, 90, 117–119 and accompanying text.Google Scholar

170 Only two of the 23 law schools reported teaching solely the ALWD system of citation with an overwhelming majority, 16 teaching the Bluebook and five teaching both systems.Google Scholar

171 R.R. Jordan, supra Note 81, at 100. “[A]ccusations of plagiarism have been the strongest charge laid against Chinese writers.” Joel Bloch & Lan Chi, Comparison of the Use of Citations in Chinese and English Academic Discourse, in Academic Writing in a Second Language: Essays on Research and Pedagogy 231, 238 (Diane Belcher & George Braine eds. 1995). Researchers have explored the possible reasons for the problem in the U.S. for Chinese writers:Google Scholar

Underlying many of the assumptions about how Chinese writers use source texts is the assumption that the concept of plagiarism is understood differently in China than in the West, perhaps as a result of a different concept of what constitutes private property (e.g., Matalene, 1985). Therefore, plagiarism could be considered an expert strategy in Chinese writing, reflecting how composition has been traditionally taught in China. Matalene (1985) refers to the use of Confucian teachings in the civil service examinations as exemplifying places where rote memorization and plagiarism are considered acceptable. Thus it might appear that Chinese rhetoric does not place the same taboo on plagiarism that Western rhetoric does. (Citations in original).Google Scholar

Id. (citing C. Matalene, Contrastive Rhetoric: An American Writing Teacher in China, 47 College English 789–808 (1985)).Google Scholar

172 Deborah R. Gerhardt, Plagiarism in Cyberspace: Learning the Rules of Recycling Content with a View Towards Nurturing Academic Trust in an Electronic World, 12 Rich. J. L. & Tech. 10 (2006) (discussing the serious consequences of plagiarism).Google Scholar

173 Laura A. Heymann, The Birth of the Authornym: Authorship, Pseudonymity, and Trademark Law, 80 Notre Dame L. Rev. 1377, 1443 & n. 210 (2005) (describing plagiarism as “a particularly Western concept, given the more elevated status in other cultures for tradition and replication”).Google Scholar

174 Id. Of course, plagiarism is not unique to second-language writers and is sometimes “a compensatory strategy used both by novices just entering a field and experts well established in their disciplines” due to the pressure they experience “to conform to the linguistic standards of an academic community.” Id. Foreign students for whom English is a second language may plagiarize not as a result of failing to understand cultural expectations, but because they too experience this pressure to conform “when they are expected to produce high-quality research papers in a language they may have barely mastered.” Id.Google Scholar

175 Sixteen of twenty-three reported awarding grades with one law school awarding grades that are not included in the students’ overall grade point average and six law schools reporting that the legal writing course was administered on a pass / fail basis or some similar system. A professor at one of these latter five law schools explained: “The only grade recorded on the transcript is High Pass, Pass, or No Credit. ‘Shadow’ numerical grades and a GPA based on the same mean and curve as the rest of the class are given to the students via email for their information, or for optional use on applications elsewhere, etc.”Google Scholar

176 Two of these fifteen schools assigned either a set number of points to all students who made a good faith effort on their draft document or assigned “✓ +” or a “✓-” on the draft document. On law school reported that “[r]ewrites are required only where the first draft is of such poor quality that it demonstrates a failure to learn and apply concepts.”Google Scholar

177 With the exception of the single law school that placed these students in a legal writing course with U.S. J.D. students, the law schools offered the ESL legal writing students a greater focus on mechanics—grammar, punctuation and sentence structure—and more focus on spoken English. This was the case even when these students were required to enroll in a separate class in Legal English. Thirteen of the 23 law schools reported a greater focus on comparative law issues within this legal writing course in comparison to the J.D. legal writing course. Ten law schools also reported that the legal writing course for these ESL students involved more one-on-one work with the legal writing professor than did the J.D. legal writing course.Google Scholar

178 Twenty of 23 schools reported assigning the predictive or objective office memorandum or an abbreviated form of this document. One professor explained,Google Scholar

I focus on the legal memorandum because this is the type of document our students will be expected to prepare in their summer internships, they are very unlikely to be asked to assist with an appellate brief, drafting legislation, or drafting wills or similar documents. I focus on the writing and analytical skills they will need to succeed in their substantive classes (which are different for each student), and in their internships.Google Scholar

179 Other documents commonly assigned in the ESL legal writing classroom included client letters and trial memoranda (ten law schools). Five law schools reported assignments in drafting contract provisions or documents. Several schools assigned a mixture of abbreviated forms of all of these documents, some of which are not graded and some of which are graded assignments.Google Scholar

180 One professor described the unique features of the legal writing class for international LL.M. students as follows:Google Scholar

The workload is more difficult, and I expect the students to progress more rapidly. I also give a practice exam in class in the fourth week, based on cases we have read and discussed. This gives the students practice with a written legal analysis, while preparing them for issue-spotting, raising and disposing of all issues, etc., which most of their professors will require them to do on exams. This exam format is new to our students and they seem to benefit from this early exam experience. These exams are not graded. I mark them up extensively, and we discuss them in class and individually at their first conferences.Google Scholar

181 For a general definition of the process approach to writing, see supra Notes 102–104 and accompanying text. The process approach recognizes “that it is through the process of analyzing and writing that a student constructs meaning.” Ellie Margolis & Susan L. DeJarnatt, Moving Beyond Product to Process: Building a Better LRW Program, 46 Santa Clara L. Rev. 93, 98–99 (2005). The role of the legal writing professor in a process-based legal writing course is “to intervene in the writing process, giving substantial attention to individual students’ drafts through critiques and conferences on work in progress.” Id. at 99.Google Scholar

182 More than one-half of the schools could not estimate how course time is allocated due to individual professor discretion. For the remaining eleven schools, lecture and student question and answers comprise the bulk of class time with one law school reporting as much as 70% of class time devoted to the professor lecturing (with four reporting 50% of class time consisting of professor lecture).Google Scholar

183 For an example of an assignment based on a professor's lecture, see infra Note 184.Google Scholar

184 One professor offered an assignment related to the lecture, which is focused on teaching listening skills:Google Scholar

Another “teaching” activity in which I engage is to have pre-lecture reading assignments. This is for the particular benefit of those students whose listening skills are weak. I post pre-reading materials online every week, and then lecture based on these notes. “Based on” is the operative word, however. I do not just read them, which would defeat the linguistic purpose (listening skill improvement), to say nothing of putting them to sleep, like any other audience. I sometimes send out post-lecture notes. … This way, I am sure they have access to the information covered in class.Google Scholar

185 Not surprisingly, five law schools of ten responding to this question reported devoting 25% or more of class time to in-class writing exercises and in-class group exercises.Google Scholar

186 A total of seven law schools reported requiring that these students engage in an oral argument based upon either a pretrial motion (two law schools), a trial motion (two law schools), or an appellate brief (three law schools). Eleven law schools of the twenty-three responding required presentations, including a presentation sequence at one law school described as follows: “They choose between two role-play activities on the same facts and law as their interoffice memorandum: (1) Meeting with the client; and (2) Office meeting to discuss legal issues they identify from cases they research, read, and brief; and they also must engage in a negotiating activity.”Google Scholar

187 As a point of comparison, the 2007 national Survey Results of legal research and writing programs at U.S. law schools for J.D. students reveal the following: it is common at U.S. law schools to require a first-semester two-credit legal writing course, these law schools overwhelmingly integrate teaching research with teaching writing, assessment is in the form of grades included in the students’ GPA, and the Bluebook method of citation is taught more frequently than is the ALWD Citation Manual. Survey Results, supra Note 134, at 7, 8, 11, 16.Google Scholar

188 Marie A. Monahan, Towards a Theory of Assimilating Law Students into the Culture of the Legal Profession, 51 Cath. U. L. Rev. 215, 222 (2001).Google Scholar

191 Steven K. Berenson, Education Law: What Should Law School Student Conduct Codes Do?, 38 Akron L. Rev. 803, 820 (2005) (pointing out that “citation to authority in the legal education and practice context certainly provide applications of plagiarism principles that are likely to be completely unfamiliar to many new law students”).Google Scholar

192 Boylan, supra Note 25, at 23.Google Scholar

The presence of ESL students in a J.D. program is far from unusual; indeed, in many parts of the United States, it will be rare for a legal writing professor to have a class that does not include an ESL student. Where students have been in the United States for some time, the fact that a particular student speaks English as a second language may not even be known to the admissions office, which may look only at the student's undergraduate institution. Sourcebook on Legal Writing Programs, supra Note 6, at 202–203.Google Scholar

194 Id. See supra Note 147 and accompanying text. Law schools should also be attuned to other minority students who are not ESL students, but who also bring a different cultural context to the J.D. classroom in U.S. law schools. Report of the Oregon Supreme Court Task Force on Racial / Ethnic Issues in the Judicial System, 73 Or. L. Rev. 823, 922–923 (1994).Google Scholar

195 Boylan, supra Note 25, at 23.Google Scholar

196 Leslie G. Espinoza, Empowerment and Achievement in Minority Law Student Support Programs: Constructing Affirmative Action, 22 U. Mich. J.L. Reform, 281, 281 (1989).Google Scholar

197 Marcia Canavan, Using Literature to Teach Legal Writing, 23 Quinnipiac L. Rev. 1, 3–4 (2004).Google Scholar

198 In fact, this frustration may be increasing for both student and teacher. The following studies indicate that entering J.D. students may be less prepared than ever before in terms of both reading and writing skills: the 2003 National Commission Report on Writing, the 2004 National Endowment of the Arts Survey, and the 2004 National Assessment of Adult Literacy Survey. Cathaleen A. Roach, Is the Sky Falling? Ruminations on Incoming Law Student Preparedness (and Implications for the Profession) in the Wake of Recent National and Other_Reports, 11 Legal Writing 295, 295–296 (2005). Thus, the legal writing course is increasingly important for entering J.D. students, whose problems in using language become more like those faced by entering ESL students. Some scholars believe that entering law students think differently because their learning environment, technology (their culture) has influenced them in some negative ways and that they utilize “law-byte” reasoning and analysis. Molly Warner Lien, Technocentrism and the Soul of the Common Law Lawyer, 48 American U.L. Rev. 85, 87, 88 (1998) (“[i]nsensate use of computers, both in legal education and practice, is altering the way we think about and use the law”).Google Scholar

199 Canavan, supra Note 197, at 2.Google Scholar

200 For a discussion of the process approach, see supra Notes 102 and 181 and accompanying text. Social construction theory is premised on the assumption that we “write within and are influenced by the sometimes unarticulated rules of the discourse communities” we enter. Grearson, supra Note 25, at 68 Table 3. See generally Linda L. Berger, A Reflective Rhetorical Model: The Legal Writing Teacher as Reader and Writer, 6 Legal Writing 57, 80–81 (2000). This form of “[c]ontemporary rhetoric is an outgrowth of the concept from modern philosophy that reality is not ‘fixed,’ but rather is ‘constructed.'” Michael R. Smith, Rhetoric Theory and Legal Writing: An Annotated Bibliography, 3 J. ALWD 129, 138–139 (2006).Google Scholar

201 Classical rhetoric includes the works of “Aristotle (384 B.C.-322 B.C.); Cicero (106–43 B.C.); and Quintilian (35–95 A.D.)” Id. At 130. Classical rhetoric is used to teach modes of persuasion: logos (logic), pahos (emotion), and ethos (credibility). Id. At 131. Classical rhetoric is also used to teach analytical organization, dispositio. Id. At 133.Google Scholar

202 Judith B. Tracy, “I See and I Remember; I Do and Understand”: Teaching Fundamental Structure in Legal Writing Trough the Use of Samples, 21 Touro L. Rev. 297, 300–315 (describing a curriculum designed to reflect and teach how lawyers approach analysis).Google Scholar

203 Id. at 299 (offering sample documents as a method of teaching “students to identify and apply a structure to their legal writing and adapt it for future assignments”).Google Scholar

204 Susan M. Taylor, Students as Revisionaries: Or, Revision, Revision, Revision, 21 Touro L. Rev. 265, 281–287 (2005) (describing the benefits of peer review in a first-year legal writing class).Google Scholar

205 Id. at 283.Google Scholar

206 See supra Note ***.Google Scholar

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