미국식 로스쿨의 역사가 주는 제도적 시사점

Abstract

Even though there are variants from State to State, historically, the training system for lawyers in U.S.A can be mainly classified with five phases; 1) personal apprenticeship, 2) co-existence of personal apprenticeship and job law school in commercial private college, 3) market monopolized by major job law schools, which waived its academic identity, 4) undergraduate law schools’ settling down, and 5) moving toward graduate law school system. The background of graduate law school system in U.S.A can be traced back to 1890’s, when ABA (American Bar Association), considering complementary measures needed for too short traineeship, proposed to Law Schools that they should require pre-education experiences of 2 or more years prior to admission to Law Schools. However, it took a century for this suggestion to be actualized. In particular, ALA (American Law School Association) strongly had opposed the ABA’s proposal, because they thought this would be aristocratic obstacles for middle class to equally access to becoming lawyers. On the contrary, night Law Schools and those which required fewer standards than college experiences, e.g. one year completion of high school, had been very popular among young people and middle class. There are several principles in the heart of these historical traces of American Law Schools, which are to ensure the equal access to the legal career, to raise credible professionals in job schools, to delegate the lawyer training system to the private sector, to secure the multiple channels for lawyer training, and to offer choices to the legal consumers. These basic spirits provide us some guidelines useful to make a diagnosis of the defects of our present law school system and to suggest solutions to these matters. It cannot be denied that the current system is designed to the providers’ advantage, namely, the law schools and the competent authorities, rather than to citizens including legal consumers. This comment can be supported by the following examples; the prohibition of measuring legal capacity in admission selection which leads to the lack of transparency, the bar exam designed to get through for those who even record zero in multiple choices if they get more than half scores in subject questions, no-implement of oral test for becoming a lawyer, non-disclosure of answer sheet which records the lowest scores and the highest ones including grade distribution chart. The latest decision of the Constitutional Court, which declares that the current Bar Exam Legislation is violating the Constitution for its non-disclosure policy of bar exam result shows that there are something problematic to be rectified. The author concludes that we are to examine the general situations in fostering system for lawyers, and to seek the ways to the problems by raising the basic question, “What are the law schools? Do they exist for whom?”