Comparative Law

Professor Pedro A. Malavet

Class Notes Part Four

(Last Updated: September 14, 2007)

IV. 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.

A. Legal Education in the Civil Law World

Law Schools in the United States
AALS has 164 members, and 23 fee-paid schools
189 ABA-accredited (82 public, 107 private)
About 6,600 professors, and a total of 9,673 law teachers (including emeriti, instructors, deans, librarians, etc.)

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.

Legal Education There and Here, 1-11
Admissions (X)
Educational Philosophy (9)
Curriculum(X)
Faculty Organization and Obligations (X)
Approach to Teaching/Testing (12)
Costs (13)
After Law School (14)

There	Here
Democracy Admission as of right Huge classes. Democratic? Huge attrition rate		Meritocracy Competitive admission Small classes
Liberal, general education But note that there is usually an official or unofficial bias in the emphasis.		Practical and Theoretical, but skills enforced. Legal Science vs. Advocacy.
Curriculum: Limited, i.e., small, and inflexible, but inter-disciplinary.		Expansive, liberal curriculum with few required courses
Faculty organization: Hierarchical, vertical		Faculty organization: Collegial, horizontal
Part-Time, low paid faculty		Full-time highly paid faculty
Lecturing is very dogmatic Substance-oriented		Lectures are more participatory Skills-oriented
Almost no expectations of students		High expectations of students
Costs: quite minimal, often subsidized.		Costs: Like you don't know!
After law school: Professional education and/or Apprenticeship Governmentally-determined legal specialties		After law school: Bar Exam and Practice No governmentally-mandated specialty (few exceptions). Practical limits? Malpractice

There and Here:Admissions, 1-3
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”?

Legal Education There and HerePhilosophy and Goals, 4-5
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 HereApproach to Teaching/Testing
Europe
Lecturing is very dogmatic
Substance-oriented
Almost no expectations of students
USA
Lectures are more participatory
High expectations of students

There and Here: Costs
Europe
Costs: quite minimal, room and board often subsidized
(France $50.00 a year! $250 in Spain)
2005: France 500 Euros a year.
USA
Costs: Like you don’t know!
(Still, you do better here than in many other US schools.)
US Average:
$30,520 in 2006

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 2005, according to ABANET.ORG:
Total Enrollment: 148,273 (Includes non-JD)
JD Enrollment: 140, 298
Male: 73,685
Females: 66,613

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

Bureau of Labor Statistics:in 2004, 735,000

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, Latin America, Japan (note that Japan was not covered in 2007)

Legal Education: Current Trends
Europe, pp. 172-184
Latin America, pp. 184-193

The European Traditional Model
Nationalism and national diversity is decreasing, pp. 172-74
Meaning that differences between the many nations are decreasing.
The “harmonization” or perhaps “homogenization” of European legal education
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

Commonality within the Nationalistic Model, p. 173
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, pp. 174-175
Europeanization
Competition
De-Sovietization

Europeanization, pp. 175-76
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 legal professionals, 175-176
author in 2002 states that it has not yet worked, in 2006 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, pp. 176-77
Both in the professions and in academia
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, pp. 177-178
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
P. 178.

Bachelor/Master/Doctorate 3/5/8 Model, p. 179
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, pp. 181-182
Access Controls: numerus clausus (limited number of admissions), entrance requirements, mid-term exams are not universal. P. 181
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, pp. 182-184
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-AmericanLegal 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, 185-186
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
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, p. 186
Must take compulsory curriculum
Must pass compulsory examinations
Large lecture classes
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, p. 186-188
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, p. 189
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, 190
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

University of Buenos Aires: Quality Control System, p. 191
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, 192-193
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

Distinguish legal education from legal training.
Legal education is mostly undergraduate and ends upon completion of the university degree. Cb.-885.
After law school, there is a specified and required training program.

Japanese LTRI

In Japan, completion of a two-year apprenticeship program in the Legal Training and Research Institute administered by the Supreme Court is a prerequisite to admission to practice as well as for appointment as either a career judge or procurator.

Bar Passage in Japan

1949: 2,512 / 265 / 10.5%
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% (update)

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 practice as well as for appointment as either a career judge or procurator.
Admission was increased to about 1000 in the 90’s

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
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, pp. 46-47.
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

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.

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

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, p. 53

Legal Scholarship, pp. 54-56
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 practioners
Publications and experience in their area
Qualified students: highly sought but limited number of seats and therefore competitive

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