Comparative Law Notes 4

LAW 6250
Professor Pedro A. Malavet

Class Notes Part Four

V. Foreign Legal Education

In reviewing this material, keep in mind, as I mentioned in class, that I choose legal education for an initial extended comparison because you are all very familiar with your own legal education. Therefore, you can identify the strengths and limitations of the general statements made about your own system. This will help you to understand that generalizations are often difficult and wrong, but they can be helpful, provided we are aware of their limitations. Additionally, remember that we looked at many different legal systems, general statements are more or less accurate when applied to specific systems.

I spend most of the time in our discussion purposely trying to get you to think about the disagreements that you might have with some general statements used in describing the U.S. system. In addition to finding it unbearably amusing, I do have a pedagogical purpose for this discussion: it really teaches you to understand the strengths and limitations of general descriptions of a particular system.

Critiques of U.S. Legal Education

Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992).

For a series of article agreeing and disagreeing with Judge Edwards, please see Symposium: Legal Education, 91 Mich. L. Rev. No. 8, pp. 1921-2301 (August 1993).

McCrate Report: An Educational Continuum Report of The Task Force on Law Schools and the Profession: Narrowing the Gap American Bar Association Section of Legal Education and Admissions to the Bar (July 1992). The report of named for Robert McCrate, who led the task-force that put it together. The primary thrust of the report was that legal education in the United States was too theoretical and insufficiently practical. It made many recommendations, such as to mandate practice externships and to increase skills training.

http://www.americanbar.org/groups/legal_education/publications/maccrate.shtml

A. Legal Education in the Civil Law World

In General
I choose legal education for an initial extended comparison because you are all very familiar with your own legal education.

Accordingly (1 of 3)
Identify the strengths and limitations of the general statements made about your own system.

Accordingly (2 of 3)
Understand that generalizations are often difficult and wrong, but they can be helpful, provided we are aware of their limitations.

Accordingly (3 of 3)
We look at many different legal systems, general statements are more or less accurate when applied to specific systems.

Law Schools in the United States
AALS has 164 members, and 23 fee-paid schools
200 ABA-accredited as of June 2008
•9 provisional

As of June 2004, there were
•82 public
•107 private
•www.abanet.org

Faculty
AALS, as of 2008: 10,673 Total Faculty
7,671 Tenure/Tenure Track professors of all ranks
30% of Tenured/Tenure Track are female, almost 60% of non-tenure track are female.
www.aals.org

There and Here: Admissions,
Europe
•Democracy
•Admission as of right
•“Huge” classes.
•Democratic?
or favors those with resources for individual reference and instruction.
•Huge attrition rate and high rate of law graduates who do not become lawyers.           

USA
•Meritocracy
•Competitive admission
•“Small” classes
•Low Attrition
•Percentage who become “lawyers”?

Who Makes the Rules?
Europe:
“none but the most trivial reforms seems to be possible without ministerial, and sometimes legislative, action at the highest levels.

USA?
Accrediting Groups (delegated by USDE)
Legislature
Board of Trustees
University
“Main Campus”

College of Law
•Faculty
•Students
•Administration

Legal Education There and Here: Philosophy and Goals,
Europe
•Liberal, general, undergraduate, “nonprofessional”
•But note that there is usually an official or unofficial bias in the emphasis.
•E.g., official preference for judges in Germany; unofficial for law teachers in France and Italy.

USA
•“Professional,”
Graduate, Practical and Theoretical, but skills emphasized.
•Legal Science vs. Advocacy.

There and Here: Faculty Organization/Obligations,
Europe
•Faculty organization:
Hierarchical, vertical
•Part-Time, low paid faculty
•Not at their offices           

USA
•Faculty organization: Collegial, horizontal
•Full-time highly paid faculty
•“Always” at their offices or classrooms

There and Here: Curriculum,
Europe
•Curriculum: Limited, i.e., small, and inflexible, but interdisciplinary.
•History, usually Roman, Canon and Medieval law, Legal Philosophy and Introduction to Law basic and common.

USA
•Expansive, liberal curriculum with few required courses????

Legal Education There and Here
Approach to Teaching/Testing,
Europe
•Lecturing is very dogmatic
•Substance-oriented
•Almost no expectations of students (in the classroom, on a daily basis)

USA
•Lectures are more participatory
•High expectations of students

There and Here: Costs
Europe
•Costs:
quite minimal, room and board often subsidized
•(France in 2005 was about 500 Euros per year)

USA
•Costs:
Like you don’t know!
•(Still, you do better here than in many other US schools.)
•US Average ‘08:
$28,442 public
•$34,298 private

There and Here: Students,
Europe
High Number
Attendance is “part-time”
Extracurricular?

USA
Low Number
Full-Time
Responsibilities on student in and out of class (large number of competitive extra-curricular activities)

There and Here: After Law School

Europe
•After law school:
•Professional education and/or Apprenticeship
•Governmentally-determined legal specialties           

USA
•After law school:
•Bar Exam and Practice
•No governmentally-mandated specialty (few exceptions).
•Practical limits? Malpractice           

Statistics

Number of Students: USA
In 2008-2009, according to ABANET.ORG:
Total Enrollment: 152,033 (Includes non-JD)
JD Enrollment: 142,922
Male: 75,954
Females: 66,968

Lawyers in the U.S.
ABA:
in 2005,
1,104,766

Bureau of Labor Statistics:
in 2006,
761,000

Table 8.1, CB-870: Total Number Law Students (in 000), by Country and Year
Table 8.2, CB-871: Percentage University Students in Law, by Country and Year
Table 8.3, CB-872: Percentage Women in Legal Education in Germany, by Position and Year

Current Issues in Legal Education in the EU and Latin America

The European Traditional Model
Nationalism and national diversity is decreasing
Meaning that differences between the many nations are decreasing.

The Changes
The “harmonization” or perhaps “homogenization” of European legal education
“Harmonization” reverses the age of Nationalism/Positivism
This reverses a trend started by the French Revolution of 1789, which itself ended the ius comune of Europe that prevailed until then. In 1789
•Latin was the common language
•International mobility was possible

Ius Comune Gives way to
A “monopolistic” model by national standards, and a
“protectionist” in the language of international trade
“National” preference is incompatible with internal regional law

Commonality within the Nationalistic Model
University undergraduate education
Lengthy course of studies (with students graduating in their late 20s or early 30s)
Tightly regulated by multiple layers of rules and institutions
Highly regulated specialties

European Legal Education: New Trends,
Europeanization
Competition
De-Sovietization

Europeanization,
Mutual recognition of credits among member-state universities
Free-movement of students and teachers
Effect on curriculum: effect on language choices and national laws

Free movement of students and legal professionals
author in 2002 states that it has not yet worked, in 2011 the situation is very different
Certainly, today, you have law practice that crosses national boundaries and students are getting sophisticated about going to the place with the lowest entry requirements, e.g., French and German students heading to Spain and Italy

Competition,
Both in the professions and in academia with LL.M. competition
U.S. firms have moved into those markets aggressively, but now largely by hiring local lawyers
Still some need for “national” professions, mostly related to public service or local politics

De-Sovietization,
Former soviet states are now joining the European Union (or aspire to) and even NATO
Legal bureaucracy is hard to replace
Newly-trained lawyers are in great demand
Consider the success of our Warsaw program!

Changing Legal Education: The Bologna Challenge
1999 Bologna Declaration of the European Ministers of Education suggests, to put it simply, a restructuring of higher education by a uniform 3/5/8 year [bachelor/masters/doctoral] sequence of degrees (e.g., the "Bologna Process"), following suit with the classical American college and university education model.
Goals: quality, transparency, competitiveness, faster graduation, lower drop-out rates

Bachelor/Master/Doctorate 3/5/8 Model,
A three year undergraduate study resulting in a bachelor’s degree
A one or two year(s) post-graduate programme leading to a master’s degree
A three year doctoral programme.

Open questions,
Access Controls: numerus clausus (limited number of admissions), entrance requirements, mid-term exams are not universal.
Financing Education: historically this has mostly been a public function.
•Increasing number of private, tuition-dependent schools
•ELFA prefers the public finance system
Flexibility and competition, a la USA (?)

Curricular Challenges,
European common law
•EU treaties, legal rules and the opinions of the European Court of Justice
•Harmonization and uniformization of national laws
•Human Rights conventions and opinions of the European Court of Human Rights
•Internationalization beyond Europe: Globalization
•Follow the “American Model” and teach regional laws last (?)

Criticism of Latin-American
Legal Education
Passivity of the student
The focus on selection, organization and presentation of material by the teacher
The absence of any practical quality to the education
Poor communication to the teacher of the level of student comprehension and retention;
The rote memorization and recitation of the material as the only means of student evaluation. Students in Colombia

Latin American Legal Education,
Substantial public and private components to legal education; private schools are mostly Catholic
Historically, only public schools were allowed, but many Catholic Universities were public schools, e.g. Chile
Now there are other private universities, but Catholic institutions dominate the field

Private Education Trends
Increasingly popular among the upper class
Especially if there is political turmoil at the public schools
Political Problems
Cycles of political repression would severely affect the university faculties and students, e.g. Argentina, Chile
Cycles of civil unrest, even civil wars, affect the system, e.g., Colombia, Peru, Venezuela

Graduation/Practice,
Must take compulsory curriculum
Must pass compulsory examinations
Large lecture classes
“Provincial” means “nationalistic”
Note also that in Latin America you may generally practice upon graduation after joining the local Colegio de Abogados (bar association), which is often a unitary bar (except in Chile).

Internationalization is a modern trend,
Human rights law
Environmental law

Economic Integration and Trade Law
International Criminal Law
Foreign law studies (mostly LL.M. from the U.S:) produces a new generation of law practitioners
Faculty and student exchanges are increasing

University of Buenos Aires,
After dictatorship in 1983
Appointed Dean who has authority to appoint others
Contrast this with other countries, like Costa Rica, where the Dean is elected.

Curriculum
The Common Basic Cycle (CBC): Introduction to State and Society, Introduction to Scientific Thought, Law, Economy, Political Science, and Sociology.
The Common Professional Cycle (CPC) consists of 14 courses that lead to a Bachelor of Law Degree.

University of Buenos Aires,
Professional Oriented Cycle (CPO) has three mandatory subjects for all orientations and 52 credits.  A first law degree is awarded at the end of this cycle, which also entitles the graduate to practice law after registration to the respective bar.
(Graduates can practice upon colegiación).
Note the small classes: seminar/workshop models

University of Buenos Aires:
Quality Control System,
Faculty: will allow our students to write an evaluation of teaching methods and contents, as well as of professors, at the end of each course;
Students: a system to maintain student status, namely a series of requirements that must be satisfied yearly in order to retain standing as a student.

Buenos Aires: Mission,
Our mission is to offer a legal education of the highest caliber, for a large population, on a free basis.  We meet this challenge with only one ideological engagement: to foster the National Constitution and the institution of Democracy.  In Latin America, this is a huge task.

Japanese Legal Education

Critiques of U.S. Legal Education that I referenced in class today:

Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992).

For a series of article agreeing and disagreeing with Judge Edwards, please see Symposium: Legal Education, 91 Mich. L. Rev. No. 8, pp. 1921-2301 (August 1993).

McCrate Report: An Educational Continuum Report of The Task Force on Law Schools and the Profession: Narrowing the Gap American Bar Association Section of Legal Education and Admissions to the Bar (July 1992). The report of named for Robert McCrate, who led the task-force that put it together. The primary thrust of the report was that legal education in the United States was too theoretical and insufficiently practical. It made many recommendations, such as to mandate practice externships and to increase skills training.

http://www.americanbar.org/groups/legal_education/publications/maccrate.shtml

Bar Passage in Japan
 TOOK IT / PASSED IT / %
1950: 2,755 / 269 / 9.8%
1960: 8,302 / 345 / 4.2%
1970: 20,160 / 507 / 2.5%
1980: 28,656 / 486 / 1.7%
1985: 23,855/ 486 / 2.0%
1990: 22,900 / 499 / 2.2%
1992: 23,435 / 630 / 2.7%
2002: 41,459 / 1,183 / 2.85%
Since 2006: above 27%

Too few legal professionals
Note that this includes private litigators, judges and prosecutors
The definition of “legal professional” or “lawyers” is based on the litigation monopoly, rather than on a general legal counselling model

Japanese LTRI
In Japan, completion of a two-year apprenticeship program in the Legal Training and Research Institute administered by the Supreme Court was a prerequisite to admission to legal advocacy practice as well as for appointment as either a career judge or procurator.
Admission was increased to about 1000 in the 90’s
Goal of 2006 reforms is to go to 3000

Japanese Legal Education
Distinguish legal education from legal training.
Legal education has been mostly undergraduate and ends upon completion of the university degree.
After law school, there was a specified and required training program, which focused on legal methods.

What happens to those who fail to enter the LTRI?
The Japanese legal monopoly for bengoshi is narrowly defined; it only excludes non-bengoshi from representing clients in Japanese courts (except small claims).
Most of the other law graduates work as legal counselors of some kind, generally  for private corporations

Effect of LTRI on undergraduate education
Not professional
Highly theoretical
Cram schools for the LTRI

Radical Changes starting in 2004 (implemented FY 2006)
Japan has begun a radical transformation of its legal education system, principally by chartering graduate law schools to supplement the number of graduates eligible to practice law.
Goals include:
•More lawyers generally, but especially for private litigants and in rural areas
•A more liberal approach to the delivery of legal services

The New System: Law Schools!
A type of graduate school after undergraduate law studies but prior to entering the LTRI,
Law School graduates will still have to apply to enter the LTRI
Classroom component of the LTRI shifted to law schools
Apprenticeship system of the LTRI will continue

Numbers
Japan:
•Population: 127 Million
•45,000 law students
United States
•Population: 310 Million
•155,000 law students
—(CIA World Factbook)

German Legal Education
(1) Certificate of Maturity from secondary school
(2) University Study (at least 7 semesters, usually 5-6 yrs.)
(3) First State Examination
(4) Preparatory Service (Referendar, 2 years)
(5) Second State Examination (Volljurist)
(6) Application for Judgeship or choice of professional specialty.

German Preparatory Service (Referendar) (2 years).
Stipend, like a civil servant
(a) Four Mandatory Stations
•civil court
•criminal court or public prosecutor’s office
•administrative agency
•attorney’s office
(b) One of Five Elective Stations
(c) Practical Courses

The Goals
Rule of Law
To increase the role of law in Japanese society,
Which requires more, better qualified legal professionals
LTRI will be reduced from 2 to 1.5 to 1 year

Define “Legal Professional”
As an educational goal
As a practice goal
Must you (should you) choose Lawyer, Judge, Prosecutor?
Adversarial ethic?

So, how do you create 100 new law schools?
Legal professional product?
“American” style education for a “German” style legal professional?
“Interactive” and “bi-directional” education for small groups
US 1870: Christopher Columbus Langdell takes over as Dean of the Harvard Law School; he introduced the case method to law teaching

Legal Scholarship
Are practical training and legal scholarship incompatible?

Does traditional scholarship disdain law practice?
“American” legal scholarship has become increasingly interdisciplinary, it has increasingly become social science scholarship.
Disjunction between scholarship and practice
Practical Challenges

Financing/Cost
•Public institutions: $8,000 per year
•Private institutions: $16-24,000 per year
Qualified professors:
•must they be practitioners?
•Publications and experience in their area
Qualified students: highly sought but limited number of seats and therefore competitive

Law School Regulation by Education Ministry
For example, it refused to authorize a criminal procedure professor to teach criminal law because it considers credentials in the one academic area not sufficient for the other.
It has also demanded that professors show recent publications in the field they intend to teach.  
One of the reasons that the Ministry reportedly did not approve the initial application of Osaka University was because one professor of criminal law had only four instead of the requisite five years of teaching experience.