Chapter 4: The Continental System
[I spent a year in the country then known as West Germany on a Fulbright Scholarship in law.]
In Germany, law is an undergraduate subject. … It's just another course of study, like biology or literature, which made me wonder for the first time why American universities classify it as graduate school. There's no other American graduate degree without a parallel undergraduate major. Such "pre-law" courses as political science don't count, because a person could avoid them all—I did—and do just fine in law school, whereas an incoming medical student would be lost without a foundation in biology and chemistry. I think the only reason Americans conceive of legal studies as a graduate course of study is because law schools were originally independent trade schools. They were administratively engulfed by universities without ever being integrated into them.
American law schools, it must be said, provide an unpleasant environment for their students in comparison to most undergraduate degree programs. The teachers pile on a great deal more homework than the typical undergraduate professor. But there's little about the law that's conceptually difficult. The law is, in practical effect, an elaborate system of classification. It requires a great deal of mental effort to master the vast grid, but the effort involved requires memorization and the dexterous retrieval of memory, not original thought. "Legal analysis" is a matter of figuring out the best category in which to slot a legal problem. Legal analysis is different from sorting mail only in that the legal slots exist mentally rather than in the physical world, and there are many more of them than a letter carrier would find practical.
There's no reason why law can't be an undergraduate course in the United States. It could begin with the third year of college, with the law major taking two legal classes a term to cover eight foundational courses. A required fifth year could be devoted to the intensive study of specialized topics. A student who completed that program of study would be as well prepared as a typical JD but two years younger—and not so deeply in debt. That last item explains why there's no chance of such a sensible reform being introduced. American law schools are profit centers for their universities. A single law professor can instruct 100 students with no equipment but a podium and blackboard, although Internet access and a projector are useful extras. Law schools don't even have to pay graduate students to serve as teaching assistants, because no grades are assigned before the final exams and a single professor can take care of those. (B-pluses all around!) If the course of study were shortened and integrated into undergraduate school, the university would lose many tens of thousands of dollars in fees per student. The professors would feel they'd lost prestige, too.
The fact that law is an undergraduate course of study in Germany has another effect: the courses are normal. That was pretty amazing to me. The courses I took were lectures, not rituals of humiliation. ...
The year in Germany taught me far more about the American legal system than about the German one. It did that by making me see through German eyes features of the American system that, at both UNM and Northwestern, were so taken for granted they weren't even taught.
For instance, a German student once asked me at what point during law school American students decided whether to become judges. The question at first made no sense to me, as my puzzlement must have made no sense to the student with whom I was chatting. Because German judges usually hear cases in panels of three, while American trial judges work alone, there are many more judges per capita in Germany than in the United States. In Germany, becoming a judge is a career path. Promising students undergo years of training, then work their way up the career ladder. It's a rational, orderly way to choose judges.
The smaller number of American judges might suggest they would be better— the crème de la crème—but in practice it means the opposite, because competition for the jobs ensures that those with the power to fill them use that power to benefit themselves. That's why the American judiciary remains today the last part of the government still staffed by Andrew Jackson's spoils system. For ordinary government workers, the spoils system was eliminated by civil service reforms. We no longer hire paper-pushing government clerks based on their service to the party, but that's how we still choose our judges.
On another occasion a student asked about the practicum. How long did the practical training of lawyers last in America? That, too, was a somewhat embarrassing question.
In Germany, students who complete four years of legal study become eligible to take the state exam, essentially the equivalent of our bar exam. (In practice, many students spend an entire fifth year getting ready for it, paying a tutor to guide them in the necessary intense study.) Once they pass that exam, the young lawyers begin a formal internship. It lasts three years. During that time the baby lawyers work their way through a variety of legal offices, typically on a three-month rotation. Rotations might include a corporate legal department, a prosecutor's office, a public defender's office, an administrative agency, a private law firm, and an insurance company. By the time they're licensed, German lawyers have a pretty good idea of how the legal world works.
Internships served by newly minted American lawyers, by contrast, don't exist.
Then there was the time I described the typical course of study at an American law school to a fourth-year student named Andreas. We were standing in Bonn's beautiful Cathedral Square, at one end of the wonderfully labyrinthine pedestrian shopping district, not far from the Beethoven memorial. I mentioned that almost all law students take a course in Evidence. "Evidence?" Andreas asked, surprised. "What's to study about evidence? Either it's relevant or it's not."
Even as I had become generally familiar with the procedure of German courts, it somehow had never quite lodged in my mind that there were no rules of evidence. Lawyers never objected to questions, since the questions were asked by judges. Besides, what purpose would be served by limiting the judges' access to information pertinent to their decision?
The American Rules of Evidence include a definition of relevance. The definition is one sentence long, consisting of 36 words. It says what everyone knows: information that it would be a waste of time to learn is irrelevant. Perhaps as much as 15 minutes of class time could profitably be devoted to the study of relevance. The rest of the semester-long Evidence class is devoted to all of the other evidentiary rules, almost all of which are much longer than 36 words. Their point is to prevent the decision-maker—the jury—from having access to all relevant information. That's the most fundamental point about the law of evidence to which I'd devoted a semester of study, and yet somehow it was a point I had never quite grasped.
Andreas got me thinking about the peculiarity of a system for resolving disputes that depends so heavily on the filtering of pertinent facts. I thought I could discern two reasons for it. First, in the Anglo-Colonial system the questions are asked by lawyers, not judges. That builds in an obvious bias against the truth. Whichever side would be hurt by the truth will try to keep it under wraps, or at least confuse the matter sufficiently to avoid the consequences that, by law, should attend upon its disclosure. Unless restrained, therefore, some of the lawyers asking questions at a trial will predictably steer the judge's or jurors' attention away from the important point. One purpose of the Rules of Evidence is to control the lawyers who would otherwise sabotage the whole purpose of having a trial in the first place.
That word "jurors" supplies the second reason. In the Anglo-Colonial system, lawyers are trying to sway nonlawyers, the jurors. Nonlawyers can't be counted upon to look at things the way lawyers are trained to look at them. Deliberating jurors are also the only trial participants who act independently of the judge. The parties, the lawyers, the witnesses, the spectators, the bailiff, the deputies or marshals—all are subject to the summary justice of the courtroom. But once the jurors shuffle out of the courtroom into the jury room to begin their deliberations, they are entirely free of the judge's control. The judge has told them to follow his or her instructions, but if the jurors decline to do so the judge has few options other than to start the whole trial all over again ("declare a mistrial")—and often not even that.
Much of the American legal history of the past century has consisted of judges inventing new ways to restrict the autonomy of jurors. One of their most conspicuous successes is the creation of highly technical rules of evidence that permit the judge to keep information from the jurors' ears. If we think of the jury room as the verdict factory, we can see that the judge has no control over the sausage eventually produced, but tight control over the ingredients that go into it. Today in the United States it's no exaggeration to say that in some trials, the lawyers and judge spend more time arguing about what evidence the jury will hear than the jurors spend actually hearing it.
Joel Jacobsen
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