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Thursday, October 25, 2012

Comparative notes on German legal education

I'm spending that fall with the law faculty at University of Muenster, Germany, and learning some basics of  German legal education in the process. I knew that German lawyers must take two state (i.e., bar) exams to be fully licensed, one after completing university, the second after a year or two rotating through low-paid internships with law firms, prosecutors, judges, etc.  What I didn't know was the basic structure of undergraduate legal education.  There are some smaller classes, and a sort of "workgroup" in which 20-30 students pratice 'solving' case files with written answers; it sounds something like written moot court or mock trial, I think.  But the core subjects are taught in lecture format, to classes of 200-400 students at a time (which, to be fair, the U.S. has for undergrads in some large universities).  Here's the kicker, from a U.S. perspective: lecture classes commonly last 2 or 4 hours, for which students do no assigned reading; the lecture (maybe with powerpoints or handouts) provides the content.  One prof I know have tried the American custom of assigning reading for each class (as did I, in teaching a short course here as a visitor), but students won't do it; the culture of no assigned reading is too established.

Another shocker to me: students get *no credit* some law school courses, which (consequently) have no exams.  For example, there are four semesters of criminal law.  The first two are for credit and have exams; the latter two aren't and don't.  Attendance, naturally, drops off in for no-credit courses, but a notable number attend nonetheless, because the course material is on the state exam.  (There is no university *degree* for law, by the way--no diploma to hang on the wall.  Nor for medicine, education, etc.; only for arts and sciences majors.  Professional majors just complete their university course work then take a the relevant state licensing exam.  There are law graduate degrees, however, which non-academic lawyers commonly earn.)

As we agonize over the efficacy of U.S. legal education and the value of the third year, there might be grounds for thinking our system doesn't look so bad in comparison.  Except for one crucial thing: our sky-high tuition and the consequently high student debt load.


Posted by Darryl Brown on October 25, 2012 at 10:35 AM | Permalink


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Serious answer:

Amerika is the title of a book by one of my favorite authors, Franz Kafka. Used in alternation with USSA, it makes allusion to the fact that we live in a fascist, socialist country--all this after having "won" WWII and the Cold War!

Posted by: Jimbino | Oct 26, 2012 6:51:53 PM

I've learned a good bit from some of these posts, especially about details of work in "Arbeitsgemeinschaften," which I translated, not especially well, as 'workgroups.' I didn't raise the issue of other features of the German model; I think the required period of legal internships is pretty clearly a superior model to our own. Apropos of Maxmeiner's first post in particular, I'll flag a comment by Brian Leiter on his blog that emphasizes some telling differences in German and American notions of law, lawyer's craft and education, notably on the German "focus on the science of law" and the differing beliefs about the value of graduate study in *law* per se. The gist, I think, is that the 'advantages' of a given system are in the eye of the beholder, or more precisely those who share the system's premises.
It's at: http://www.typepad.com/services/trackback/6a00d8341c659b53ef01675ea436df970b

Posted by: Darryl Brown | Oct 26, 2012 11:39:17 AM

Germans do not consider the Amerikan baccalaureate degree to be the equivalent of their university diploma, with the result that Amerikans need a master's degree in order to qualify for many positions in Germany.

Positroll claims that the top German law students can hold their own among Amerkans at the best schools. I think he has that backwards: in my law-school class of 135 at an Amerikan top-ranked law school, there were about 5 students who had any serious background in math and science, while every one of the students at the German gymnasium where I taught had 5 years each of advanced math and physics.

And Merkel is a PhD scientist, fluent in German, Russian, English and French. The only US presidents of the last 100 years with any STEM savvy were Hoover and Carter, and there's only Breyer on SCOTUS. Most embarrassing, however, though a "nation of immigrants," we haven't had a president fluent in a foreign language since Teddy Roosevelt, over 100 years ago! Is our ignorance of STEM and our lack of language skills a direct result of the fact that most of our leaders are trained in the law and legal education in Amerika is incompatible with science and math?

So we are a most powerful nation of immigrants, few of whom a broadly educated person would want to have a beer with, much less be governed by.

Posted by: Jimbino | Oct 26, 2012 11:08:03 AM

"there might be grounds for thinking our system doesn't look so bad in comparison"

As someone who studied law in Germany, France and at a highly ranked school in the US, I'd say that quality-wise, good German law students can easily hold their own in any comparison with top students in the above mentioned countries. Middle - of - the - pack students still get good-enough training. Bad students are washed out - but often too late in the process, imO.

A few more things to consider:

- the training German students get in their 2 "major" fields of study (Leistungskurse, ~6 h / week) during last two years of German Gymnasium (the high school type that leads to university studies) often is comparable, quality wise, with the first year or two of US college. E.g. my history prof got a Ph.D. in history and we used 6 different books, plus lots of additional (photocopied) material to work through.

- there is no college to go through in Germany - thus German law students don't just avoid law school tuition, but college tuition as well (and even get paid a bit during the 2 years of their traineeship). First and second year students usually have enough time on their hands to look outside the law as such. They can pursue basic studies in economics or politics etc if they want to. At many universities, some such coursework is required (I personally had to take 2 classes of macroeconomics and 3 classes in constitutional history, legal history and roman law, and added class in criminology + forensics on my own whim).

- German law is code based - and there aren't 50 different state laws to take into account (yes, European Union* etc, but ...). German lawyers are mostly trained to find out what the law is. What the law should be comes up only later in years 2 + 3: in roman law and comparative law classes, possible solutions are contrasted, once students have a grasp on their own system. For teaching a code based legal system, socratic methods are less helpfull than in the US model, at least for the basic understanding.

- OTOH, I did have great classes mostly based on socratic methods in year 3 preparing for the 1. state exam: going through the whole of private law (contracts, torts, family law etc), showing common threads and contrasting different solutions in specific areas. I think this is something US legal education misses out on - US profesors teaching contracts often don't cover torts and vice versa - but it's the interplay between these fields that often is the most interesting part. Since US students too often only get tested on each of the elements in piecemeal fashion, they are not forced to see the context - but the whole is larger than its elements ...

*I never understood why some people want to apply Bologna to law schools. Just doesn't make sense as long as the content taught (national law) still varies as widely as it does ...

Posted by: Positroll | Oct 26, 2012 9:22:04 AM

"and a sort of "workgroup" in which 20-30 students pratice 'solving' case files with written answers; it sounds something like written moot court or mock trial, I think. "
Not really. These tutorials (usually called "Arbeitsgemeinschaften") serve 3 functions at once:
- they help to repeat and clarify the stuff covered in the big lecture classes (in private law, criminal law and public law). While in the lecture classes, some questions are asked, in the tutorials, everybody can get in a question. Oh, and usually they get work assigned for the following week (that is they get a case and must sketch out an answer)
- the serve as legal writing classes
- their most important function is (esp in year 1) to make the students to "think like a (German) lawyer."
Read James Maxeiner's paper to see what I mean by that ...

Posted by: Positroll | Oct 26, 2012 7:47:15 AM


Right. What we need are some PhD scientists, like Maggie Thatcher and Angela Merkel, in top positions, even if we have to pass over all those incompetent men like Bush an Obama.

Posted by: Jimbino | Oct 25, 2012 5:06:52 PM

Yes Jimbino, those countries whose leaders have science degrees are much better off. There aren't many, but they are lea by all the surviving communist parties. The CCP has been run by engineers for decades. Liberal arts and humanistic education certainly didn't help build the 3 Gorges Dam!

Posted by: Comparativeanon | Oct 25, 2012 4:42:04 PM

In Amerika, learning anything like math and science could stand in your way. Here's a remark from one notable Harvard Law Review guy and Nobel Peace Prize laureate:

When Jay Leno asked the president about helping his daughters with math homework, he replied proudly, ”Well, the math stuff I was fine with up until about seventh grade,” explained Obama. “But Malia is now a freshman in high school and — I’m pretty lost.”

Posted by: Jimbino | Oct 25, 2012 3:47:35 PM

Legal education is one area where there is much to learn in both directions.

As Professor Brown points out, a big disadvantage of German legal education is the large size of first year classes. That it lacks Socratic dialogue is not, however, the worst thing imaginable. Interactive classes are a good thing, but some U.S. law schools make a fetish of eliminating lectures and sticking to old-fashioned Socratic dialogues.

Here are some of the advantages of German legal education:

• No tuition or now, at some schools, very low tuition;
• For those that pass the bar, two years of automatic compensated practical training;
• Students focus on a science of law, rather than on professional skills; they learn to deal with statutes in an age of statutes;
• Opportunities for serious advanced seminars, including at Max Planck and other research institutes;
• Doctoral studies and law professors with doctoral degrees. (Ever find it odd that U.S. law professors, if they have dissertation doctorates at all, have them in economics, history or philosophy but not law?)

German legal education is being pressured to change by the Bologna program and there have been a variety of changes. Still basically current, however, is Jürgen Ostertag, Legal Education in Germany and the United States, A Structural Comparison, 26 Vand. J. Transnat'l L. 301 (1993-1994)

For a review of U.S. legal education from a European perspective—surprisingly still current dispite its near century age, see The common law and the case method in American university law schools; a report to the Carnegie foundation for the advancement of teaching by Josef Redlich, reprinted in Maxeiner, Educating Lawyers Now and Then http://amzn.com/1600420338

James Maxeiner
J.D., LL.M., Dr. jur. (Munich) (= Ph.D. in law)

Posted by: James Maxeiner | Oct 25, 2012 3:15:57 PM

One important point Jimbino's comment reminds me of is that German high school students consistently, substantially outperform American students, especially in science and math. Germans clearly are doing many things right in their educational system.

Posted by: Darryl Brown | Oct 25, 2012 3:06:39 PM

No, there are other problems with our system as well.

You mention the two criminal-law classes in Germany have no exams and poorer attendance. I see that as a plus. Here in Amerika, you have to put up with dolts in your law classes, folks who haven't the slightest knowledge of STEM, for example, and who are filling a seat, not because they want to learn, but because there will be an exam they need to pass.

The seminars in law school were positively enjoyable, not least because they were small and all the students who took them were there because they wanted to learn. (Graglia: "There will be no bar question on Latin American Law.")

I taught physics and math at a German gymnasium. I was totally impressed that, though my particular gymnasium focused on language arts (requiring 100% fluency in German, French and English), every student had to have 5 years of math, through differential equations, and 5 years of physics. In Amerika, for shame, you practically can't serve on SCOTUS if you have a clue--god forbid, a diploma--in science or math.

I tried teaching Baby Physics to pre-laws and pre-meds at an Amerikan college. They were there only because they had to have some course in STEM, even if it were a baby class that involved no calculus, because a B in a course would keep them from getting the opportunity to study with all the other dolts at Harvard Law!

Posted by: Jimbino | Oct 25, 2012 11:42:56 AM

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