I. BACKGROUND FOR THE PRESENT PROPOSAL
At the August meeting of the Executive Committee of the National Conference of State Trial Judges, the Education Committee was asked to look into the matter of standards for judicial education. As Vice Chair of the Education Committee, and with the concurrence of Chairman Sam Desimone, I undertook to gather information concerning judicial education standards. There are presently extant two sets of standards. The first is a set of standards that was adopted by our own Conference and the ABA House of Delegates at the 1982 Annual Meeting. The second is a set of standards promulgated by the National Association of State Judicial Educators, which was passed by the Board of Directors of that organization in December of 1991. I am furnishing copies of those documents and requesting that they be distributed to the committee along with this proposal.
My inquiry into the matter of standards, which included discussion with leadership at the National Judicial College and National Council of Juvenile and Family Court Judges, leads me to believe that the problem confronting judicial education is more fundamental than a mere definition of standards. In 1992 a task force of the American Bar Association produced a study entitled Legal Education and Professional Development–An Educational Continuum. The study is often referred to as the McCrate study. Central to the McCrate study is a definition of the skills and values required for success in the practice of law. The study explored the gap that exists between the education provided by law schools and the actual knowledge and training that is required for the successful practice of law. The study concluded that the educational enterprise is a continuing journey in which law schools, the profession, and the institutions of continuing legal education must all participate. Unquestionably, the legal education provided by law schools, standing alone, does not adequately prepare the prospective lawyer.
Judges, in turn, are drawn from the ranks of lawyers. Experience in the practice of law is considered desirable but is not a prerequisite to becoming a judge. We assume that the education provided by law school, usually combined with experience as a practicing attorney, somehow produces the skills and values required for successful judging. As every experienced judge knows, nothing could be further from the truth. The skills and values required of judges are quite different from those required of the practicing legal profession.
What we need at this time is a comprehensive study of judicial education. The object of the study should be to define as clearly as possible the skills and values that are required for successful judging. The study should entail, as a minimum, the following:
1) An examination of the history of judicial education in the United States;
2) A comparative study of judicial education in other industrial nations;
3) A description of the skills and values required of judges;
4) A survey of existing resources for judicial education;
5) An analysis of the data produced;
6) Recommendations.
The result should be a definitive study which can be published as a book similar to the McCrate study. The book will be very useful to every program of judicial education. It will be a vehicle which can be reviewed by new judges to acquaint them with the educational requirements of the judicial profession.
I. The Proposed Study
The following is an outline of the proposed study, with a brief description of each section:
Section I:
The History of Judicial Education
If we are to understand the present status of judicial education, we must understand the presently-existing institutional structures of judicial education. A study of the history of judicial education will enable us to better understand both the present infrastructure and the possible inadequacies of the present system. A description of the history of judicial education will include an examination of the history of the National Judicial College, the National Council of Juvenile and Family Court Judges, the National Association of Judicial Educators, and at least a selective description of leading developments in state efforts at judicial education.
Section II:
Comparative Judicial Education
There are systems of judicial education in the industrialized world that differ quite markedly from ours. In France, there is a three-year curriculum especially for judges. In Japan, there is a totally different curriculum depending on whether a person intends to enter the legal profession or the judicial profession. The comparison of judicial education should include an examination of the methods of judicial education used in other judicial systems derived from the English model as well as a sampling of those used in the continental civil law systems. The comparison should be more than a surface description. It should include a description of the actual contents of judicial education in the various systems.
Section III:
Judicial Skills and Values
Central to the entire study should be an attempt to describe the skills and values required of judges. What educational programs are necessary in order to successfully move from the practice of law into the judicial profession? The McCrate study will be an important point of reference in this effort. One approach will be an attempt to compare the skills and values of judges to those required of lawyers. I have extracted from the McCrate study concise statements of the skills and values of lawyers in order to demonstrate how a comparison might work. A copy is attached. The idea, of course, is to use the McCrate study as a foundation and to develop a parallel statement of skills and values for judges.
More than a simple comparison to the McCrate study will be required, however. There will need to be at least a cursory reexamination of the work of law schools as preparation for the work of judges. In most law schools, jurisprudence is an elective. Lawyers can take a position based on natural law one day and on legal positivism the next, depending on the interest of the client. However, if judges fail to understand the nature of law, the chances of successfully managing a system of law may be greatly impaired. Jurisprudence takes on a much more important role in the background training of judges.
Judges have the front-line responsibility for management of the judicial system. Lawyers attempt to use the judicial system to promote the interests of their clients. Lawyers also utilize the judicial system as a part of their means of livelihood. Thus, even if “the law” with which judges and lawyers deal is the same, their motives for dealing with it are vastly different. Judges must manage the system not merely as an extension of the economics of law practice, but must take into account the needs and interests of the entire society.
Section IV:
A Survey of Resources for Judicial Education
Obviously, any meaningful examination of judicial education will entail a careful survey of the resources that are presently available for judicial education. Such a study will involve both an examination of the institutions that provide judicial education and of curricula and course material that is presently available. A substantial amount of work of this type has already been done by The Judicial Education Reference, Information and Technical Transfer Project, commonly known as the JERITT project. The JERITT project has been funded by SJI and is an important national clearing house for information on continuing judicial education for judges, other judicial officers, and court personnel. The work for this particular section of the study can probably be developed from information that is already available through JERITT.
Section V:
Analysis
After developing the foregoing information, the information will need analysis. Perhaps some of the fundamental questions will be the following:
1) Do the presently existing judicial education organizations and curricula produce the skills and values required for judges?
2) Do the present judicial education programs successfully enable the transition from practice to the bench?
3) Does the present system of judicial education, with its foundation in legal education and law practice, so entrench judges in lawyer-thinking and the economics of law practice that the operation of the judiciary is less than optimal?
4) Does the present system of judicial education align judges too closely with the interests of the legal profession?
5) What steps are needed to move the judicial profession from where it is to where it needs to be?
6) Is there an adequate level of participation by judges in continuing judicial education?
7) In what ways can we provide incentives for judges to participate more fully in judicial education?
8) Is it totally impractical to include advanced judicial education as a prerequisite for judicial selection? Is there a way to make advancement in the profession (financially or otherwise) dependent upon participation in judicial education programs?
9) How can we make judicial education both mandatory and effective?
10) Others. (Of course, the foregoing questions are merely the ones that spring to mind before information has been fully developed. They may be nothing more than personal concerns of the author of this proposal. No doubt, other questions and a comprehensive framework for analysis will emerge during the course of the study.)
Section VI
Recommendations
Now is hardly the time to begin to suggest the recommendations that will result from the study. However, there are some issues that we can reasonably anticipate.
1) Is there a need for accreditation of the various programs of judicial education? If so, who should be the accrediting agency? Should the accrediting agency not be the lawyer-dominated American Bar Association?
2) Is there a need for the expansion of masters degree programs? Should they be offered at multiple locations? Should state programs be upgraded and integrated into masters degree programs?
3) Is there a need for a national clearing house for continuing judicial education curricula? Should it be the National Judicial College.
III. Funding
The study will require funding. I recommend that we first approach State Justice Institute for funding. My preliminary contacts with SJI have been encouraging. This study seems to me to be ideally suited to SJI’s purposes. The first step would be the submission of a concept paper, and it should be fairly easy to adapt this proposal to that purpose. If funding is not available through SJI, there may be foundations that could grasp the importance of this proposal, and provide funding.
IV. Coordination
This study must be carefully coordinated with other projects, such as the proposed National Symposium on the Future of Judicial Education. However, after discussing the proposed study with Karen Thorson, who helped prepare the concept paper for that event, I am clear that the there is no conflict between the two concepts. They will tend to support each other. Attached is a letter from Ms. Thorson of the National Association of State Judicial Educators, in which she expresses the same view. There is also a project underway sponsored by the National Association of Court Managers which will need to be considered in connection with this proposal.
Representatives of the National Judicial College and the National Council of Juvenile and Family Court Judges have expressed a strong interest in this study, and feel that the time is right for such a study. Some of the ideas expressed here are derived from conversations with those representatives. A preliminary question will be who should actually handle the grant for this project. Should we administer it within our own organization, or should it be handled by the National Judicial College or some other agency?
For this study to be successful, we will need to identify and contact every state, national, and private group interested in judicial education. The active support of all groups interested in judicial education will be needed if the study is to gain the consensus that will be needed for it to be effective. But while all interested groups must have the opportunity to offer input, it will be important for judges to draw heavily on their knowledge and experience, and to have a primary role in the study.
V. Structure for the Work
The implementation of this proposal will likely require two or three years. We will need to create a committee structure with enough continuity to maintain motivation and focus to see the project through to completion. I believe that it will be appropriate to commission the Education Committee to begin the work, but some arrangement for continuity needs to be put in place. The leadership for the work does not need to change in the middle of the project.
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