Comparative Law

Professor Pedro A. Malavet

Class Notes Part Three

(Last Updated: January 22, 2002)

III. Foreign Legal Education

A. Legal Education in Europe

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.

In General

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

Accordingly

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, we look at many different legal systems, general statements are more or less accurate when applied to specific systems.

The Education of the Continental Lawyer

The Grammar of Law, Cb-841-843
The Panoramic View, Cb-843-844
Patterns of Legal Reasoning, Cb-844-845

The Jurist
The Practitioner

The Expectations of a Continental Lawyer, Cb-845

Expectations vs. Reality, Cb-845-847
Expectations vs. Reality, Cb-847
1. Disparities in the Discourse

Europe: From general/abstract to the specific
US: From specific to general

2. Logical consistency across many substantive fields vs. Cross-breeding arguments
3. Rigid Methods of Analysis vs. Great Flexibility of Argument
4. "Right" Answers vs. Winning Arguments

Legal Education There and Here

Admissions
Educational Philosophy
Curriculum
Faculty Organization and Obligations
Approach to Teaching/Testing
Costs
After Law School

Legal Education There and Here: Admissions: Cb-847-853

There

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.

Here

Meritocracy
Competitive admission
"Small" classes
Low Attrition
Percentage who become "lawyers"?

Legal Education There and Here: Educational Philosophy

There

Liberal, general education
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.

Here

Practical and Theoretical, but skills emphasized.
Legal Science vs. Advocacy.

Legal Education There and Here: Curriculum

There
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.
Here
Expansive, liberal curriculum with few required courses????

Legal Education There and HereFaculty Organization/Obligations

There
Faculty organization:Hierarchical, vertical
Part-Time, low paid faculty

Here
Faculty organization:Collegial, horizontal
Full-time highly paid faculty

Legal Education There and Here: Approach to Teaching/Testing

There
Lecturing is very dogmatic
Substance-oriented
Almost no expectations of students
Here
Lectures are more participatory
High expectations of students

Legal Education There and Here: Costs

There
Costs: quite minimal, room and board often subsidized
(France $50.00 a year! $250 in Spain)
Here
Costs: Like you don't know!
(Still, you do better here than in many other US schools.)

Legal Education There and Here: After Law School

There After law school:

Professional education and/or Apprenticeship
Governmentally-determined legal specialties

Here After law school:

Bar Exam and Practice
No governmentally-mandated specialty (few exceptions).
Practical limits? Malpractice

1. Introduction, France, 841-862

First-Year Courses:

Political Institutions and Constitutional Law
General Introduction to Civil Law, and Economics
History of Law and of Institutions(one-semester)
Electives:
International Relations;
Political Science: The Sociology of Politics;
The History of Political Doctrines: 19th and 20th Centuries; or
Sociology and Social Psychology.

Law Departments:

(1) Public Administration and Domestic public law;
(2) Development and International;
(3) European and comparative Studies;
(4) Political Science;
(5) Labor and Social studies.

2. Germany, Italy, Spain, 863-872

Legal Education There and Here

Admissions
Educational Philosophy
Curriculum
Faculty Organization and Obligations
Approach to Teaching/Testing
Costs
After Law School

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
(a) Four Mandatory Stations (civil court, criminal court or public posecutor's office, administrative agency, attorney's office).
(b) One of Five Elective Stations
(c) Practical Courses

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).

(a) Four Mandatory Stations

(b) One of Five Elective Stations

(c) Practical Courses

(5) Second State Examination (Volljurist)

(6) Application for Judgeship or choice of professional specialty.

Italy, Cb-867

Research
Training Law Teachers
General Legal Education
Apprenticeship
Examinations

Spain, Cb-869-70

Time to graduation
Cost of Education
Some Private Education
Increases in enrollment in the late 70's?

 

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

 

B. Legal Education in Latin America & East Asia, 872-892

B. Legal Education in Latin America & East Asia, 872-892

1. Colombian Legal Education
2. Brazilian Legal Education
3. Japanese Legal Education

Criticism:

 

• 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; and
• The rote memorization and recitation of the material as the only means of student evaluation.

Legal Education There and Here

Admissions
Educational Philosophy
Curriculum
Faculty Organization and Obligations
Approach to Teaching/Testing
Costs
After Law School

Colombian Legal Education, Cb. 873-874.

Mandatory Courses
Optional Courses (Electives)
Seminars
Consultorio Jurídico (Law Clinic)
No Bar examination
Diploma means access to law practice

Class status? Compare

Colombia, Cb. 873
"Highly competitive exams restrict admission to the inexpensive public schools. On the other hand, family money and status determine admission to private schools."

Brazil, Cb. 882
"Recent research shows that, paradoxically, candidates from higher socioeconomic strata are more successful in obtaining places in the public schools, which offer a free education of better quality, whereas those from lower strata are compelled to attend private law schools."

Students in Colombia/Brazil

Public and Private Institutions
Public Institutions Relatively Inexpensive
Overwhelmingly Private
But, Public Schools are Better (Cb. 882).
Formal and Informal Systems
Admission upon graduation with Bachelor's Degree

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%

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