Lesson Three- Legal Education
绝世美人儿
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2020年08月01日 20:41
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Background背景
美国的法律教育体制具有一个不同于世界上其他国家的特点，即没有一般意义上的法学本科生。美国法学院的学生都是本科毕业生。换言之，申请入法学院学习者必须已在其他专业领域内获得了学士学位。这反映了美国人注重权利和法律的传统。他们认为，法律事务涉及人的各种权利和复杂的社会生活，因此从事法律工作的人应该象医生一样，具有比从事其他职业的人更为丰富的学识和经历。从理论上讲，在任何专业领域内获得学士学位的人都可以考法学院；但是在实践中，法学院学生多在政治学(Political Science)、经济学(Economics)、刑事司法(Criminal Justice)、社会学(Sociology)、新闻学(Journalism)等学科获有学士学位。
虽然美国律师协会(ABA)对其认可的法学院有统一的评估标准，但是各法学院在学位设置和课程设置上仍有很大的自主性和灵活性。一般来说，美国法学院设置的学位主要有法律博士(JD, 即Juris Doctor)、法学硕士(LLM，即Master of Laws)和法学博士(SJD，即Doctor of Juridical Science)。法律博士学位课程是法学院的基本教育课程，犹如中国及其他国家的法学专业本科课程。法律博士学位的学制一般为三年，其第一年以必修课(Required Course)为主，包括合同法(Contract Law)、侵权法(Tort Law)、财产法(Property Law)、刑法(Criminal Law)、民事诉讼(Civil Procedure)和法律文书写作(Legal Writing)等；第二年和第三年则以选修课(Elective Course)为主，学生可以根据自己的兴趣和意愿从几十门法律课程中选修若干门，但要达到学校规定的学分标准。法学硕士和法学博士的培养属于法学院的研究生教育。攻读法学硕士学位的人必须已经获得了法律博士学位或者在其他国家获得了法学学士学位；其学制一般为一至二年；其学习方式以修课为主，而且法学院一般允许学生以增修一定学分的方式代替毕业论文。攻读法学博士学位的人一般应已获得了法学硕士或法律博士学位；其学制一般为三至五年；其学习内容主要为撰写学位论文，但法学院院长或其导师也可能要求其选修一定课程或从事一定研究工作。法学院很少开设专门面向研究生的课程，因此研究生多与"本科生"(JD生)一起听课。
美国法学院的教授在教学过程中较重视对批判性思维(critical thinking)方式的培养，且多采用案例教学法(Case Method)和问答式即苏格拉底式教学法(Socratic Method)。诚然，在美国的法学教授中亦不乏偏爱讲演式教学法(Lecture Method)的"说书人"(story-teller)。
Text课文
In 1983, over 125,000 law students were studying in more than 170 ABA accredited law schools including public law schools supported
in part by government funds; private law schools supported by contributions from individuals and foundation funds; and local or national schools offering full time or part time legal study programs. As virtually the only way to prepare for membership in the legal profession, law schools in the United States fulfill several functions including professional training and socialization of future lawyers and screening and gatekeeping for entrance to the profession. Since there is no central institution where all lawyers practice, the only institutional experience which lawyers have in common is law school.
The criticisms which range from "mild to caustic" of the way in which law schools have carried out these functions and of the functions themselves have been persistent, diverse and rooted in the historical and political development of the profession. These criticisms have focussed on the curriculum and the dominance of the case method; the distribution of power and prestige reflected in the hierarchy within and among the law schools; and the imbalance in terms of women and minorities in the student body and faculty in the law schools.
Part One： Curriculum and the Case Method
The traditional firstue011year program offered in virtually all American law schools includes contracts, torts, property, criminal law and civil procedure. Duncan Kennedy has described the traditional firstue011year curriculum as basically teaching the ground rules for late 19th century laissezue011faire capitalism. The second year and third year course expound the moderate reformist New Deal program and the administrative structure of the modern regulatory state. The peripheral subjects, if they are offered, include legal philosophy, legal history, legal process, and clinical education, a "kind of playground or finishing school for learning the social art of self presentation as a lawyer".
However, as new areas of the law continue to develop in response to contemporary issues and problems, some law schools have expanded curricula to include courses and clinical programs in environmental law, housing and urban development, womenue10bs rights, health in the workplace, welfare rights and consumer protection. There are also increasing efforts to teach law in interdisciplinary contexts, drawing on other disciplines such as history, psychology, sociology, medicine, and economics.
In teaching the traditional curriculum, law teachers in almost all the law schools use to some extent the case method or the Socratic method. Developed in the 1870ue10bs by Christopher Columbus Langdell at the Harvard Law School, the case method looked to the common law as the source of legal priniciples and focussed on the teaching of an abstract conception of the law as a science. The legal principles elicited were to be taught divorced from the "grubby world of practice--and also from politics, history, economics, and social contexts". This narrow formalistic approach was justified on the ground
that it taught students how to state, analyze, evaluate and compare concrete fact situations thus developing their powers and skills of analysis, reasoning, and expression.
However, this process of learning "how to think like a lawyer" has been criticized as having an adverse impact both on the students and the quality of future lawyering. Students, law teachers, and others have pointed to the alienation, anxiety, hostility and aggression caused by use of the case method or Socratic method. The narrow and destructive interaction of this dialogue, or often "nondialogue", contributes to the impairment of the ability to care about other people, a professional unemotionalism and cynicism on the part of law students. And it is not only the law students who suffer from this narrowing of their professional selves. The work of a lawyer involves continuous contacts with clients, associates, other lawyers, judges, witnesses, others affected by the law, and involves the lawyerue10bs own goals, attitudes, performance, and sense of satisfaction.
Part Two： Law School Hierarchy
Duncan Kennedy has described the law schools as "intensely political places", characterized by a "tradeue011school mentality, the endless attention to trees at the expense of forests." The law schools function as the institution for "ideological training for willing service in the hierarchies of the corporate welfare state". In the ranking and evaluation of students, students learn to accept their place in a hierarchy which is presented as just and inevitable and "so prepare themselves for all the hierarchies to follow". In the law teachersue10b modeling of hierarchical relationships with students, colleagues, secretaries and support staff, students learn a particular style of condescension towards perceived inferiors and deference towards perceived superiors. And under the subtle but intense pressure to conform to the "white, male, middleue011class tone" set by law faculties which are overwhelmingly white, male, and middleue011class, law students adapt, "partly out of fear, partly out of hope of gain, partly out of genuine admiration for their role models". In these ways, "legal education is one of the causes of legal hierarchy. Legal education supports it by analogy, provides it a general legitimating ideology by justifying the rules that underlie it, and provides it a particular ideology by mystifying legal reasoning. Legal education structures the pool of prospective lawyers so that their hierarchical organization seems inevitable, and trains them to look and think and act just like all the other lawyers in the system" .
In addition to the hierarchy within the law schools suggested by Kennedy, other analyses of the law schools functions and relationship to the profession suggest the existence of a hierarchy among the law schools. The top dozen or so elite law schools occupy a position of power and prestige which is partially reflected in the professional career paths of their gr
aduates and in the "old boy networks" connecting the law schools and the rest of the legal profession. The models of the "law school as the gateway to the American power elite became possible with the New Deal". Felix Frankfurterue10bs placement network for the "best and the brightest" into influential public policy positions during the New Deal in the 1930ue10bs was an early example of this kind of network. During his tenure at Harvard and later while on the Supreme Court, Frankfurter developed an "old boy network" which was intimately involved with the placement of many of the "elite" lawyers, all of whom were white and male, into public service. The typical Frankfurter recruit was "a graduate of Harvard Law School, politically liberal, usually ranked high in his class, and either an obvious product of upper class gentile culture or an obvious product of a radically different culture who was 'comfortable' in the upper class gentile world".
In the current hiring practices of the major law firms and in the competition for judicial clerkships, and in the appointments to law faculties, the graduates of the elite schools continue to have an advantage over graduates of other schools. In a recent study of Chicago lawyers, Zemans and Rosenblum found that lawyers who attended "highue011prestige law schools and graduated in the top 20 percent of their classes were much more likely to practice in large firms and specialize in highue011prestige fields of law". In terms of appointments to law faculties, 60% of the legal professionue10bs teaching specialists are produced by fewer than 15% of the nationue10bs accredited law schools. These law teacher producer schools are mostly national, located in urban locations, and include schools such as Harvard, Yale, Columbia, University of Michigan, Chicago, New York University, Northwestern University, and Georgetown. If it is true that the fullue011time faculty of the law schools "have a virtual monopoly on who will and will not enter the (legal) profession" and "on the power to mold future generations", then the existence of a hierarchy among the law schools suggests that an elite group of schools is primarily responsible for staffing the law schools, which in turn produce lawyers for the hierarchies within the profession.