Emeritus Professor at the Law Faculty in Bond University, Professor Mary Hiscock has written extensively on international trade law, as well as the “internationalisation” of legal education.
In this interview with Bar & Bench’s Anuj Agrawal, Prof. Hiscock talks about the importance of a law degree, why her students nicknamed her “Bloody Mary”, and much more.
Anuj Agrawal: You have written extensively on the “internationalisation” of legal education.
Professor Mary Hiscock: My own personal view is that, to some extent, internationalisation has always been a part of university education. I can remember my first days as a student in Melbourne Law School in 1957, and the then Dean telling us, “You are now entering a global world of lawyers.”
He quite clearly, right from the beginning, tried to stop us from thinking in very small terms.
Anuj Agrawal: How do you think internationalisation is taking place now?
Professor Mary Hiscock: I think a number of factors have really forced people to confront it. There were soft factors like the WTO in the mid 1990’s which introduced a global legal order for trade. For the first time, a lot of people felt that the fortresses they built around their own legal systems had begun to break down. So that was a huge factor.
The second one was the global financial crisis and the factual realisation that however much you think you have controlled your own system, you are subject to external factors that are just too great.
And in all the rescue efforts that followed, trying to deal with the effect of WTO decisions, trying to do with global finance – there was a realisation that we needed a level of legal expertise to not only understand specific systems but also the whole global system.
This simply wasn’t there. So therefore there is a clear need that has to be met. That is a matter of fact. The big argument is how you do it.
Anuj Agrawal: You have said that “glocalisation” is not the way forward.
Professor Mary Hiscock: It is an interesting term, [one that] was picked up by my classmate at the University of Chicago, Carole Silver an awfully long time ago. She picked up that Japanese marketing term. Her survey of American law firms operating overseas showed that the characteristics firms looked for in lawyers they would send to the overseas office were exactly the same that they would send to the domestic offices.
What they would prefer to do is shape their working environment rather than shape their workers – that is a pretty treacherous path. So therefore, one begins to say,
“Okay how do we give that extra dimension and depth to our law graduates so that not only can they work in a familiar environment but also put them in an unfamiliar environment and have them deal with it.”
I think there is acceptance that you would never expect them to do the whole job, but that they would have to work in conjunction with the local talent. But working effectively in conjunction means that they would have to have a very high level of appreciation of the structures, of the cultural background, of how the place works.
Working effectively in conjunction means that they would have to have a very high level of appreciation of the structures, of the cultural background, of how the place works.
And you don’t get that if you go and stay there for three days. At the end of the day, I have the clear view that the best way we could prepare our graduates is to have a period of immersing them in another environment. This is why I have always believed that it is good to have people study overseas, not because they are going to actually learn anything but because if they can survive it they will become different people.
Anuj Agrawal: Coming to your career as a teacher, your students used to call you “Bloody Mary”.
Professor Mary Hiscock: How did I get that nickname? Well maybe because I am quite tough. I make it very clear to students that I expect them to behave professionally which includes not being late for class. My view is that if I can be there on time, they can be too.
So if somebody comes late for class, I will make them extremely uncomfortable. Not because it is rude to me but because it disrupts the class. And if you are working on something really complicated, you don’t want someone coming in, waving to somebody etc – let them try doing that to a judge and see what happens.
So if somebody comes late for class, I will make them extremely uncomfortable. Not because it is rude to me but because it disrupts the class.
Mobile phones? Switch them off. If they cant be separated from their mobile phones, the should do another course. It does not bother me that they don’t want to do my course, I am not going to go home and cry. (laughs)
They begin to get the message.
Now the extreme stuff, you know the “Let’s check our e-mail” and “Lets watch a movie” – that extraordinary mentality which thinks that you have satisfied your obligation by turning up but you don’t have to listen – my technique to deal with that is to simply invade people’s space.
Students get very unhappy if you don’t stay in your “play pen” down at the front. So if you start walking around, this induces a state of extreme nervousness.
I put it to my colleagues that we should do what is done at Yale, and Harvard and Chicago – that is to not allow internet access in classrooms. If you want to bring your laptop, you can use it to make notes but not check your e-mail.
They thought I was being really over the top, but I think they might come around to that.
Anuj Agrawal: What do you think is an effective way to assess law students?
Professor Mary Hiscock: I think examinations are good for certain kinds of students and certain kinds of subjects. I have for the last 10-15 years, always had a pattern where there would be weekly tutorials and they would be no more than ten people in the tutorial.
These students would get marks on the basis of their performance every week. So if they don’t come, or if don’t say anything they don’t get any marks. If they come and get involved, then they begin to get marks because that is how you learn. And once everyone has made a fool of themselves, they are all relaxed and you can get on with it.
Student sometimes come to me and say they get very nervous.
So typically what I will do is tell them that in the next tutorial I will ask them this question. [They] go home and prepare the answer. At the next tutorial, I ask the question very casually, the student comes out with the answer and everyone thinks “Wow!” And that solves the problem.
There are ways to around these things.
For example in international contracts, the marks depend partly on their interactions in the seminar class. I put a limit on the number of students for that reason. They then have to negotiate and draft a contract.
I give them a basic set of facts that is never enough. So then they have to go away and do the relevant research that is relevant to the kind of services or goods that they are buying or selling. Then they have to negotiate new heads of agreement together in groups of two. And they always come from different language groups and legal systems.
They then have to go away and draft what they have agreed and write a commentary on the entire thing. You know, “I really didn’t want to have this clause but I just couldn’t get them to do anything different.”
At the end of of it I am fully satisfied that I can judge their level of competence. In fact, I think I can do this long before they come out with their final answer. And these are going to be students who probably have had 5-6 years of university studies, and sometimes with practical experience as well.
Anuj Agrawal: You also said that there are few who can be as arrogant as law students.
Professor Mary Hiscock: Well, I have a level of behaviour that I expect. You don’t meet that standard, and you will find life very unpleasant.
I have a level of behaviour that I expect. You don’t meet that standard, and you will find life very unpleasant.
I was walking around in the corridors and I heard two students really being quite rude to our receptionist. I didn’t teach them and I don’t think they knew who I was. I didn’t care. So I told them, when they were finished, they should come to see me in my office.
And the receptionist smiled because she knew what was going to happen.
Anyway, they came up and I told them,
“Look you go into a lawyer’s office and behave like that you are not going to last. The secretaries and the administrative staff will make your life absolute hell. But if you are nice to them, and get on their right side they will save you from so many mistakes that you won’t believe it. Why don’t you start now. Why don’t you go downstairs and apologise to the receptionist and come back and tell me you have done it.”
They looked like stunned fish. Anyway, they went to down and apologised to the receptionist. My father had a saying that if you want deterrence you hang two dead crows on the fence. All you need is for them to spread this kind of story around. It is very effective (laughs)
Anuj Agrawal: Legal education as a product – your thoughts?
Professor Mary Hiscock: I think that is already a fact. I think students see it that way because they pay for it. I find it difficult to accept intellectually and, to some extent, morally as well.
But I think it reflects the current thinking of the university administrators, the realty of financing your studies, and the fact that students see it as one more thing that they pay for.
I think it reflects the current thinking of the university administrators, the realty of financing your studies, and the fact that students see it as one more thing that they pay for.
Anuj Agrawal: Do you think a legal education should just provide a job?
Professor Mary Hiscock: No no no! I think legal education should shape the way a person knows, understands and will practice the profession. Even if, as 50% of our graduates do in six years, they are not in the practice law. But I think it should leave a stamp on them.
To me, being a lawyer is not just a job it is a profession, it is a service. And [law graduates] are part of the legal system, part of the constitution of the state and they have to understand that.
But when it comes to the actual educational process, I sometimes think they come to class like they go to collect their dry cleaning. You know, just as part of the day’s run. And because the fees are very high, and they will be paying it off for a long time, that suits them.
Anuj Agrawal: In Australia, there is a lot of emphasis on research when it comes to tenure and promotions.
Professor Mary Hiscock: There are some areas, like the hard sciences, where research is absolutely intrinsic to everything that is done. But I think in law, there has to be room for people who are primarily researchers. Very often they don’t have good people skills, very often they are absolutely hopeless teachers.
And there should be room for people who aren’t really comfortable with a demanding research role. Sometimes they don’t have the ability, or the mindset for it but they love teaching.
There should be room for people who aren’t really comfortable with a demanding research role. Sometimes they don’t have the ability, or the mindset for it but they love teaching.
But now what tends to happen is that universities are funded on the basis of their research results. And research is being, in a sense, cross subsidised by the fees that students pay for teaching.
In Australia, [government] universities cannot control the fees they charge so they tend to sacrifice teaching to get the money for research. If you look at promotions they will always say, “Oh you can do on the teaching track.”
But even if you go on the teaching track, there will be research requirements that are quite high. It does not take a young academic long to figure out that which is the yellow brick road. (laughs)
There is this sort of intrinsic undervaluing of teaching. Because there is so much law, you could teach it without doing any research at all. But what they forget is that research seeps into your way of teaching.
I have now been responsible, in one way or another, for twenty books in my professional life. So I think I have got the stripes as a researcher. But I also think, somewhat immodestly, that I am not a bad teacher. And I can now choose to teach only those subjects where I hold an interest.
But, for a lot of my life, that was not true.
Anuj Agrawal: How do you think Indian law schools can develop?
Professor Mary Hiscock: I think there are a lot of formidable role models for Indian law students – that is tremendously important. They need to see a person and think, “I want to be like that.” or “How did you get to be like that?”
India has inherited the common law attitude that you study law so you can become a lawyer. Whereas in a great many places in the world, you study law so that you can be anything. Unless we get to that point, a large number of unemployed graduates is not really going to help.
I don’t know any Indian law schools intimately but I spent eight years often judging the finals of the WTO international moot, and there were some amazingly good Indian law students. They could hold their own against anyone on the international stage. And they were so young!
So there is no doubt that there is this whole spectrum of quality, the top quality is probably the best it could be. But there is probably a lot that could be improved considerably. But that has to come from the inside. People have to want it to be better, because that process can get very uncomfortable.
You know I hate this whole “We will get a review committee” and you have all these moguls who come in and say you have to do this and this this.
That is useless.
You need to have people who are doing this from the inside, who want to improve from within. Very often it is case of simply not having seen how others have improved. I have colleagues who have never worked at other law schools – I think that is terrible.
Anuj Agrawal: Final question, any advice for those who are thinking about studying law?
Professor Mary Hiscock: I think it is not a good idea to have a 5-year plan, I think they need to be flexible. When they see the chance, they need to take it. You need to have an appetite for risk or danger. You know, if something comes up and you think you would really like to do it, you should go for it.
I went to an alumni function a few years ago, and met some of my former students. They were all young women, all married, and all had children. They had all worked in very big law firms and done very well for themselves. But then they said that [working in law firms] was incompatible with the kind of life they wanted to live.
So what they had done was set up their own little syndicate for outsourcing. Law firms would send them a particular problem or a client. This particular girl who ran the operations would decide who would do it. They would get a response in a very quick time, for an agreed fee. And the women could decide how much or how little hey wanted to do.
But she said it came to her because her old firm just called her one day and said, “Look we are absolutely desperate. Could you do this for us?” She agreed.
She spoke to her friends about it and they decided to take it on. And I think law allows you to do that. You have got to be prepared to take that risk.
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