As the new academic year begins at Osgoode Hall Law School, and elsewhere, it is a good time to make predictions. Below, I set out five developments which, in my view, have the potential individually and cumulatively, to reshape Canadian legal education in the coming year.
1) The first development falls into the category of everything old is new again – In the summer of 2011, the Law Society of Upper Canada struck an Task Force on Articling to examine the articling system, alternatives to articling, and how to respond to the number of law graduates seeking articling far outpacing the number of articling positions available – in March of 2008, 81 graduates went unplaced out of 1391 who sought articles (a rate of 5.8%). In 2011, 214 graduates went unplaced out of 1767 seeking articles (a rate of 12.1%). In other words, the proportion of graduates without articles doubled and the number of individuals denied access to the legal profession rose from 81 to 214.
This is just the latest in a long series of hand-wringing about the articling requirement, both formally through Law Society task forces and reviews, and less formally through roundtables, blog posts and op-eds. Last year, reflecting on this situation in a blog post, I recommended the Law Society consider alternatives to articling which meet the same substantive standards as articling – for example, a practical skills institute in which law graduates complete simulated tasks based on real files. In short, I believe we should keep and strengthen articling while at the same time providing alternative pathways to licensing. In this context, the Law Society as regulator should steer, not row.
Whatever the Law Society proposes and adopts in relation to articling, it will have a significant impact on legal education, both within law schools and in the all important phase after graduation but before admission to the bar.
2) The second development is the arrival of Canada’s first new Law Schools in over three decades – Thompson Rivers University in B.C. will open this year and and Lakehead University in Ontario will soon follow suit – each seeks to advance a distinct vision which will reshaping the landscape of Canadian legal education.
There are likely to be more proposals to come. Innovation in legal education is to be welcomed, but as I observed in more detail in a separate blog post last year, there are no guarantees that new proposals will in fact be innovative. Some Universities may simply wish to provide law school on the basis of charging the most tuition for the fewest services and most basic curriculum. Some may skip the in-person part altogether and opt for law school by correspondence. A race to the bottom is a real risk.
But a new generation of thinking differently about legal education is a tantalizing possibility as well. Why should legal studies be organized only around full-time students, for example? Should all law schools aim to be “global” or is there room for an urban, community focused law school? What ought to be the relationship between undergraduate and professional studies? My hope is that new law schools have the imagination to ask new questions and the energy and resources to pursue new answers.
3) The third development is the reinvention of the Law School curriculum. In 2007, Osgoode became the first Law School in the country to adopt a mandatory public interest requirement to move past the traditional curricular/extra-curricular barrier and put community leadership into the heart of the J.D. curriculum. In 2009, the University of Toronto introduced Administrative Law as a required element of the first year curriculum, while UBC added Transnational Law and The Regulatory State to its revamped first year curriculum. A decade ago, McGill embraced transsystemic legal education as its guiding approach. In each case, curricular change reflects and advances a school’s values and differentiates one school from another. In 2012, Osgoode will become the first Law School to make experiential learning through an intensive or clinical course a universal feature of the curriculum.
Beyond new courses and programs, law schools are responding to a diverse set of pressures to evolve the way in which law students learn – a greater emphasis on problem-solving, and less emphasis on exam-based evaluation of case-based knowledge; a greater emphasis on collaborative work and collegiality, and less emphasis on competitive zeal.
The real question for this and coming years will be whether these shifts in curriculum and pedagogy can and will make a difference in the kind of graduates emerging from Law School.
4) In 2009, the Federation of Canadian Law Societies issued its final report recommending a new scheme for the regulation of common law Law Schools involving a series of required competencies and a required stand-alone legal ethics and professionalism course, among other requirements. If the follow up report of the “Implementation Committee” is adopted by the various law societies, it will come into force in 2015. That means the entering class of 2012 will be subject to the new regulatory scheme (and the class of 2011 will be impacted where students are enrolled in 4 year joint programs).
The Federation approach of declaring certain areas of legal study to be core competencies has puzzled many. For example, fiduciary obligations in commercial settings are recognized as a “core competency” but not fiduciary obligations in family, professional or other settings. This approach has come under principled criticism from the academy. The existing disconnect is evidenced by the Federation task force’s final report being adopted by each law society in Canada, notwithstanding the urging of the Canadian Council of Law Deans to defer consideration of this scheme until further discussions could take place. Coming to terms with and addressing this disconnect will be a key priority going forward.
This development promises both to challenge the tradition of autonomy from the profession which has allowed Canadian law schools to innovate and thrive since the 1960s, and at the same time may give rise to new opportunities for engagement and collaboration between law schools and the bar. The shared engagement of the profession and the academy on questions of legal ethics and professionalism, for example, could be seen as a harbinger of such mutually enriching possibilities.
5) The fifth and last development which may reshape legal education goes to the heart of what law schools do. Beyond teaching and research, what other activities are appropriate (or not) for a law school? Should law schools be opening up more clinics to address access to justice needs to respond to the needs of our community’s most vulnerable members? Should law schools be offering more continuing professional development to provide lifelong learning opportunities to the legal community? Should law schools be operating a commercial arbitration or consulting business? Should law schools offer law classes to the public? Should law schools be selling their sweatshirts, mugs and pins on-line?
What is clear is that the status quo is under siege due to resource pressures. For some, the driving force for reform is accessibility, and ensuring high tuition does not become an insurmountable barrier. For others, the priority is attracting sufficient funding for new clinical and experiential offerings or for research initiatives. In the U.S., law schools are mooting the idea of launching in-house law firms (which represent for some a logical extension of the law school based clinics, pro bono initiatives, and innocence projects which already have become important features of law school), and fending off class actions from disgruntled students.
While the model may be evolving, what drives law schools forward is not – an enduring commitment to understand and improve legal ideas and to use those ideas to understand and improve our world.