IOLE in the United States: The Relationship Between a Country’s Legal System and Its Legal Education
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As is true for all jurisdictions, law in the US has unique features that are structural aspects of the American legal profession that have existed for decades and are likely to remain in their current form for the foreseeable future. Some of these characters of the US legal system relate directly to legal education, and to recent developments that may change legal education significantly in the near future. The US is a federal jurisdiction that unusual in the number of separate sovereign state jurisdictions within it. Compared to Canada, for example, which has 10 provinces and 3 non-self-governing territories, the United States has 50 states with their own independent and sovereign legal systems (and the District of Columbia, which although part of the federal system, maintains its own judiciary and bar). Each state controls the entry into the legal profession in that state, and thereby has ultimate control over legal education in the state, at least to the extent that legal education is aimed at preparing graduates to practice law locally. Legal education in the US is further complicated by the fact that several states, such as California and New York, have substantial indirect control over legal education nationally because of their large legal markets and the desire of graduates from other states to practice there. A second complicating factor is the nature and structure of the profession and especially of the judicial and prosecutorial branches. The American legal profession is radically unified. Unlike some civil law jurisdictions such as Japan, there are very few boundaries, formal or informal, institutional or social, among the different branches of the American legal profession. Qualified jurists shift relatively easily from the private bar, to the judiciary, to government service including as federal and local prosecutors, and to academia. Almost all fulltime permanent professors are qualified to practice and many do, and many fulltime judges and attorneys teach regularly as adjunct professors. The permeability of the different legal roles is related to another structural characteristic that is perhaps the most distinctive aspect of American law when compared to many civilian regimes. All branches, especially judges and prosecutors, are deeply enmeshed in partisan politics and the process of moving from one to another is usually political. While an argument can be made that all democratic legal systems are inevitably political in the sense that political controversies can become legal and arrive before a court, in the US the jurists in these dramas are not only playing broadly political roles, but they are also them- selves politicians in that they have been chosen for the role by a politicised, if not always directly partisan, process. In a majority of states, judges are subject to some form of direct popular control by the same electorate that selects other government officials. In many states they are selected in partisan elections running as either Republicans or Democrats closely and formally linked to the state party machinery. In other states, the elections are non-partisan; in still others the state governor appoints them subject to confirmation by a separate professional or legislative institution. In some states, lower court judges need not even be members of the profession. The approximately 900 federal judges, on the other hand, are appointed by the President, typically upon the recommendation of the nominee’s home state’s members of Congress, and confirmed by the Senate. The appointment process has become highly politicised over the last few decades, and one of the inevitable issues in the quadrennial presidential elections is the future composition of the federal judiciary. Those selected are generally of high professional quality and the process does not have the directly partisan nature of state judicial elections, but it is nonetheless safe to say that an acceptable political ideology is an indispensable requirement for selection as a federal judge. State and local chief prosecutors are similarly chosen through a political process at the state level, with state Attorneys General often popularly elected and local District Attorneys invariably so and usually on openly partisan lines. The deeply political nature of both of these branches of the legal profession is the more specific expression of a more pervasive third distinctive factor of American law: the deep involvement of the legal profession in American politics and government. In 1840 Alexis de Tocqueville said, ‘[t]here is hardly a political question in the United States which does not sooner or later turn into a judicial one’. Nothing has changed. Of course law is embedded in politics in virtually all democratic countries. Even in Japan, where the conventional wisdom about the Supreme Court in particular and the legal system in general is that they are overly passive and politically irrelevant, the courts have not only shaped fundamental social norms but have also been the loci for political battles. In the US, however, it is not simply that the legal system is brought into political issues; politics is a lawyers’ game. Almost half of the US Congress consists of lawyers and a 60 of the 100 US Senators are lawyers. The numbers in state legislatures have declined in recent decades but remain comparatively very high. When one also considers the prevalence of legally trained staff in federal and state legislatures and American bureaucracies more generally, it is safe to say that America is governed far more by lawyers than by any other professionally defined group. The fact that a non-trivial number of their students will have realistic political ambitions and, looking at the same phenomenon from the opposite perspective, that American law schools are educating the future political and bureaucratic leaders of society, is reflected in American legal education. While the debates now surrounding the reform of legal education, including the need to prepare lawyers for an international practice, are aimed at the very different issues of cost and professional training, these debates take place against the background of an institutional culture that is conscious that it is forming not only a professional and technical cadre but also the core of both state and the federal governments and the politicians that direct them. Another distinctive feature to keep in mind is the size and diversity of American legal education. To put it simply, there are a lot of law schools and law students, literally more than can be readily counted. To begin with the most prominent and prestigious, there are 203 law schools with approximately 140,000 students accredited nationally by the American Bar Association, whose graduates are generally able to take any state bar. Then there are scores of law schools accredited only by individual state bar committees and there are also schools that are not accredited by anyone, but whose graduates can still take the bar in their home states. According to the ABA’s Comprehensive Guide to Bar Admissions 2013, 35 states do not require graduation from an ABA accredited school, allowing instead, variously, graduation from an ‘approved’ but not accredited school, law office study, correspondence study, and online study. As a result, law schools spring up in some jurisdictions like mushrooms after a fall rain, as is the case in California, where there are 21 ABA accredited law schools, 18 schools accredited only by the California Committee of Bar Examiners, and 23 which are merely ‘registered’ with the CBE. California can illustrate the variety as well as the number of schools. Stanford Law School is generally considered one of the best law schools in the country. It is expensive, has an outstanding faculty, is extremely selective in admissions, and enjoys excellent physical, technical, and financial resources. Contrast that to a school taken, not quite at random, from the list of unaccredited law schools. The University of Honolulu School of Law (UHSL for our purposes) located, bizarrely, in Modesto, California, far from the Pacific Ocean and even farther from Honolulu, Hawaii. UHSL is a correspondence school which is ‘dedicated to providing a quality and rigorous education at reasonable costs’ and whose ‘specific objective’ is to ‘provide students with a superior education without having to attend class.’ Although admissions are selective in that an application is required, there is no requirement of any formal education whatsoever, and only four faculty members are listed on UHSL’s website, one of whom is neither a lawyer nor a law graduate. My point is not to praise Stanford or to condemn UHSL. Given that Stanford’s tuition is $50,580 in 2013–2014 compared to $3000 at UHSL (whose students need not have spent a penny on undergraduate tuition) and that graduates of both can become full members of the California bar, who is to say which is the better approach to becoming a California lawyer? My point is not normative but descriptive: it is extremely difficult to generalise about American legal education. The final feature of American legal education that may distinguish it, at least in kind if not nature, from other legal systems is less fundamental, but no less important to understand as we consider the future of comparative law in American legal academe. American legal education is in crisis, or at least so say a great many authoritative voices, starting with the US President and including leading figures in the bar and professoriate. President Obama has called for a 33 % decrease in the time spent in law school; the Chief Justice of the US Supreme Court has ridiculed contemporary legal scholarship as useless; law professors have been criticised as unproductive, overpaid, and enjoying only a ‘remote relationship with the practice of law’; law school deans have called the economics of law schools ‘unsustainable’; students have filed class action suits against multiple law schools for fraud in their admissions practices; and members of the ABA’s Task Force on the Future of Legal Education claimed ‘almost universal agreement that the current system is broken’. The reasons for the sense of alarm are not hard to find: the last several years have witnessed a substantial drop in applications; the technological revolution that has already outsourced or eliminated myriad other white collar jobs is now eliminating and outsourcing legal work; and students often graduate with debt well over $100,000 and cannot find legal jobs, all paradoxically as the legal needs of average Americans are going unmet. A quick review of two recent books at the middle of this crisis can illustrate its dimensions. ‘Schools for Misrule: Legal Academia’ and an ‘Overlawyered America and Failing Law Schools’, by Walter Olson, a libertarian social commentator, and Brian Tamanaha, an elite law professor respectively, approach the issues from distinctive but intersecting perspectives. Olson’s argument is typical of much ideologically conservative criticism of the “cozy assumptions about the rightness of the views of members of the elite, thinking class” and “estrangement from Main Street opinion” that conservatives see permeating not only the legal academy, but also American higher education generally. His view of contemporary legal scholarship as “daffy, eccentric, or bonkers,” for example, echoes with the Chief Justice’s slightly more restrained characterization. Tamanaha’s critique is more structural and economic: he does not so much condemn contemporary legal education as warn that it cannot last. His problem with scholarship, for example, is not so much that it has departed from the largely doctrinal work of 50 years ago but that approaches like quantitative empirical work are too expensive and that American law schools cannot and should not continue to ask debt-ridden students facing uncertain employment prospects to pay not only for fancy inter-disciplinary methodologies but also for reduced teaching loads for tenured faculty. Indeed, one of the commonalities of these books and approaches is the attack on tenure and the research orientation that the authors believe characterize too many American law schools. Understanding these five features of contemporary American legal education will alert the reader to both the limitations in the generalisations in the chapter that follows, and the context in which attention to international and comparative law education arises in the United States.
Source Publication
The Internationalisation of Legal Education
Source Editors/Authors
Christophe Jamin, William van Caenegem
Publication Date
2016
Recommended Citation
Upham, Frank K., "IOLE in the United States: The Relationship Between a Country’s Legal System and Its Legal Education" (2016). Faculty Chapters. 1446.
https://gretchen.law.nyu.edu/fac-chapt/1446
