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Monday, October 29, 2012

Internships, the third year, and the German model

I recently commented on one feature of Geman legal education (4-hour-long lectures with no assigned reading) that most Americans, I think, would find a dubious model.  I'll now flag another feature that not only strikes me as good practice but says something about the arguable flaws of U.S. lawyer training, and maybe law school's third year and overall cost, about which there is now a cottage industry of criticism.

After completing the undergraduate law program (at low or no tuition), aspiring German lawyers take the first of two state exams.  Then, they embark on a year or two legal internships, for which they receive a modest government-funded salary.  After that, they take the second exam to become licensed attorneys.  (Other nations, e.g., Italy, use similar systems, though not always with state-funded pay).  Pre-Langdell, U.S. lawyers were commonly trained in law office apprenticeships.  But modern U.S. legal education has no formal apprenticeship component, though we recognize experience is necessary. Our de facto model model has been (especially for elite schools feeding elite firms) that firms provide the practical training in a lawyer's first year or two of practice.  But they do so to fully licensed lawyers, who are paid starting-lawyer, not trainee-intern, salaries.  Some state bars have added very modest gestures in this direction; in the distant past when I joined the Georgia bar, we had a post-bar-exam requirement to take intro-to-lawyering CLEs and observe some court proceedings.  And law schools have added more training in law school clinics, for which students pay rather than get paid.  

Firms complain about paying new lawyers whom they must still train.  And perhaps students ought to complain about paying tuition for on the job training in law school clinics.  I'm not entirely sure; it depends in part on whether law school clinic instruction adds sufficient value over what one gets from an internship experience otherwise. I'm confident it can, but I won't venture a view on whether it's enough to merit current tuition rates.

Our key difference from the German and other systems, it seems to me, is the point at which we license attorneys: basically, after classroom training but before apprenticeship training.  If law school graduation and a bar exam entitled one only to legal apprentice-intern status, it might help solve the collective action problem firms face in wanting to pay first-year associates less because they're really trainees.  (Granted, they've managed cut first-year salaries in recent years anyway, but not to clerk-level pay.)  

But the collective action and path-dependence problems of any shift are formidable.  

Law schools are deeply invested in three-year programs (rightly or not), backed by AALS and ABA accreditation control, and states control bar admission standards.  I'm not up on all the extended critiques of U.S. law schools. But our reform of third year curricula away from the Langdell-inspired model strikes me as a second-best response constrained by the barriers to moving to something more like the German internship/licensing model (and with limited prospects for doing much about tuition rates and student debt). On the tuition point, the German and other European models are almost too distant from our own political economy to be viable comparisons: the U.S. in the last generation has steadily reduced public subsidies for  higher education as part of its broader privatization and shrinking of much of the public sector (military/security/prison sectors aside).

 

Posted by Darryl Brown on October 29, 2012 at 05:28 AM | Permalink

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"Then, they embark on a year or two legal internships, for which they receive a modest government-funded salary."

A few remarks on the Referendariat:

- details differ state by state

- salary is about 800-1000 EUR /month (no taxes) plus free health care.
In my state, usually you are required to be "on the job" 2 days a week (during the remainder you go to class, do homework on files you are handed or study for the exam). If you work for a lawyer / law firm, they will pay you extra if you go to the office another day or two per week (if you earn too much, your base salary gets cut ...).

- on the job training is accompagnied by theoretical training in the classroom; usually the first week of each stage (see below) is classroom only and during the stages you got maybe 4-6h / week additional classes. Theoretical training focuses on procedural law and legal writing (how to draft a judgement), but also includes some substantive law classes on topics that don't get treated in law school, eg traffic offenses or some obscure areas of administrative law like immigration law.

- a Referendariat is structured e.g. like this:
-- 5 months: civil law court (local court or district court; you often sit on the bench with the judges, discuss the cases with the judges during deliberations, but you don't get a vote [good arguments can have a serious impact, though] and usually you don't get to ask questions to witnesses),
-- 4 months: criminal law; usually the office of the attorney general (you get to plead minor cases like assault or theft in court on your own), sometimes a criminal law court
-- 4 months with a lawyer / law firm (I)
-- 3 months in the public administration
-- 4 months with a lawyer / law firm (II)
-- written part of the exam (2 weeks)
-- 3 months "free choice" - often spent abroad, e.g. at an embassy
-- oral part of the exam (5 h)

Once you pass that exam, you are qualified to become a judge, a public prosecutor, a higher civil servant or an attorney (so it's not just a "bar exam").


P.S. Considering that US law students already paid 4 years of college and 3 years of law school tuition, they just need to get serious pay once they start their 60h jobs ...

Posted by: Positroll | Oct 29, 2012 9:39:18 AM

The German model is super. I have experienced it first hand. It is among the best features of German legal education.

The smartest thing that I did while doing a doctorate in German law was to participate in the nine months of practical court training that Professor Brown and Positroll describe. I attended all of the formal classes, but was not assigned to a judge as German participants are. The class had about thirty students. One judge taught both classroom portions. My judge was fantastic: Judge Günter Schmitz. He wrote a text book that we used. He later was promoted to the Constitutional Court of Bavaria. He is retired now.

A little known fact is that the German judiciary has a corps of accomplished law teachers. Since I attended the program for law students, I have also attended five week-long programs for new and experienced judges. Teachers at one were Harriet Weber and Armin Weber, both senior judges. They contributed valuable practical insights to my new book, Failures of American Civil Justice in International Perspective.

The continuance and focus of the German internship program is debated. It teaches students how to find law and facts and how to apply law to facts, i.e., the “judgment” technique. It trains all students to be judges. In recent years as fewer participants have become judges, criticism of that approach has increased. Nevertheless, the program remains largely the same as it has been for over a century. It practically assures that German lawyers are of high quality. It promotes an objective view of law application.

PS One correction to Professor Brown’s excellent reports: large lecture classes with students who have not read the material are common. However, I have never heard of such a class lasting four hours. The classes that I took when I studied in Germany were fifty to ninety minutes.

Posted by: James Maxeiner | Oct 29, 2012 11:23:20 AM

PPS: The German model is two years of practical training AFTER several years of law school. I believe that the minimum law school period is still 3 1/2 years and that five years is more typical.

Posted by: James Maxeiner | Oct 29, 2012 11:33:15 AM

"It teaches students how to find law and facts and how to apply law to facts, i.e., the “judgment” technique. It trains all students to be judges. In recent years as fewer participants have become judges, criticism of that approach has increased. ... It promotes an objective view of law application."
I personally rather like that aspect, since I think it lets lawyers act more fairly towards the other party. They are more likely than their US counterpart to tell their own clients that they are in the wrong and should better forget about the whole thing. Of course, over time, German attorneys too become more partisan in their job, but the different starting point makes a difference imO. The fact that legal fees are mostly fixed by law (and the loser pays rule) help, too ...


"Nevertheless, the program remains largely the same as it has been for over a century."
There have been some changes taking into account the rising importance of the "lawyerly" aspect. For instance, when I did my Referendariat, I only had to spend 3 months with an attorney but the elective stage at the end was 6 months (which I chose to spend with a big law firm doing international arbitration; I could have also spend part of my administrative stage with an attorney doing administrative law; so it was always possible for students to concentrate on their career as an attorney early on). Nowadways in my state you HAVE to spend a minimum 8 months in a law firm / with an attorney.
Also, the theoretical training now includes more stuff practically relevant for attorneys, like insurance law, labor law (hiring paralegals and secretaries) etc ...


"However, I have never heard of such a class lasting four hours. The classes that I took when I studied in Germany were fifty to ninety minutes."
Well, if the deans office is not up to its job or constraint by lack of rooms (competing for the shared big auditoriums with other faculties on campus, e.g. the business school) you might get 2 ninety minute classes on the same topic scheduled back to back - which makes it basically a 4h class with a big break in the middle. But that's a very unfortunate exception ... The other possible explanation is that the prof giving it is a VIP and only in town mondays and tuesdays (e.g. because he spends the remainder of his time as a judge at a court of appeals or travelling to conferences around the world etc), so all his classes must be crammed into this slot ... Again, that's the exception and not the rule ...


To clarify another point: In the traditional German law school system, teaching and testing mostly don't go hand in hand. The important exams ("examinations for beginners"-y2, "examinations for advanced students"-y3, and the Staatsexamen in the end -y4) are based on objective requirements of what the average law student needs to know, starting and ending with the application of the CODE(s) (which the students have at hand in all exams) but also testing critical thinking + arguing.
This core knowledge is not left up to the lawschools, but rather defined by law (the federal law on judges that gives the baseline qualification for judges and state laws filling out the details - cf. e.g. § 8 of this regulation http://www.olg-karlsruhe.de/servlet/PB/show/1262949/JAPrO2002mit%C4nderungsVO23032011%20-%20zweispaltig%20-%20formatiert%2004-2011%20.pdf ) and covered in all relevant casebooks, too. Well, not casebooks, since its not about cases but about the black letter law as given by the codes ...

Of course German students are expected to read up on the stuff covered in class afterwards and are encouraged to prepare the class, too. But that is left to their own discretion (e.g. if the prof is only covering his specific topic of interest and not the stuff relevant for the exams, they might decide to skip parts of that class and just read the books instead) - they won't be put on the spot as in US class. BTW, they normally WILL be asked mean questions on the topic in the Arbeitsgemeinschaft ...

Posted by: Positroll | Oct 29, 2012 1:15:01 PM

Thanks to Positroll and James for bringing much more information to this than I possess. Small response to James: 4-hour-lectures occur here at Univ. of Muenster (WWU); I can't speak to anywhere else. Tiny quibble with Positroll: maybe German state exams are more rigorous than U.S. bar exams, but I'd say are "just bar exams" in the sense that passage of the bar exam here likewise qualifies one to be a judge, lawyer or prosecutor of any sort. (Save for our frightening lower courts where judges need not even be lawyers!)

Posted by: Darryl Brown | Oct 29, 2012 1:22:52 PM

It's good to see more people inside the academy become interested in reform. However, there are two simple facts that must be addressed before any "curriculum reform" or other window dressing is added. These two facts are: (1) we currently graduate about twice as many lawyers as there are law jobs, and (2) we saddle these grads with, on average, around $125,000 in debt.

Posted by: Dean | Oct 29, 2012 8:48:26 PM

I think German law system (in schools) is pretty tough too tough probably comparable to US ones.

Posted by: James | Dec 14, 2012 1:01:29 PM

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