Does Canada Need New Law Schools?

The short answer, I believe, is “yes.” For some context to the question, see the recent piece on the “future of Canadian legal education” in last week’s Lawyer’s Weekly. I believe Canada needs more innovation and experimentation in legal education, including (but not limited to) new law schools, but this goal cannot be achieved by simply adding more law schools. This distinction merits some discussion.

The rationale for new law schools is clear and compelling. There has not been a new law school in Canada since the University of Calgary took the plunge thirty-four years ago. That is a long time. The population of Canada has grown by over a third since the mid-1970s and Canadian society has been transformed. To put this length of time in perspective, when Calgary’s law school opened its doors, it had only been nine years since the Toronto Maple Leafs had won a Stanley Cup!

There have been some promising pilot initiatives in the intervening decades, including the brief but notable run of the Akitsirat Law Program in Iqaluit, in collaboration with the University of Victoria in the early 2000s. Recently, momentum for new programs has been building. In B.C., the Government announced in 2009 it was approving the creation of a law program at Thompson Rivers University (TRU) in Kamloops, in collaboration with the University of Calgary. Chris Axworthy was appointed Dean of the TRU program, which is expected to launch in 2011.  With former Victoria Law Dean (and ex-Osgoode Professor) Andrew Petter now at the helm of Simon Fraser University, SFU may not be far behind. In Ontario, Lakehead, Laurentian, Laurier, Waterloo and Ryerson all have explored new law programs to varying degrees, notwithstanding the Ontario Government’s announcement in 2008 indicating it saw no reason to fund new law schools when there appeared to be a glut of existing students relative to articling spots.

Why does Canada need more law graduates? To start, the need for legal services in Ontario (and elsewhere) is striking (see, for example, the recent Report of the Civil Justice Needs Assessment).  While access to justice does not equal access to lawyers, more committed graduates are needed to provide a wider range of legal services in areas of growing complexity to a more diverse population. And, of course, the purpose of law school is not simply to train lawyers, but to engage with distinct ideas, perspectives and analytic frameworks. Graduates of law school will just as likely provide the next generation of leadership for politicians and public servants, business and social enterprise, writers and educators, and mediators and diplomats. Demand for spots in the existing Canadian law school spots has never been higher (10 people apply for every spot at Osgoode). Articling remains the bottleneck, as increasingly, there are more people seeking a career in law than there are articling spots, at least in Ontario. Whether or not articling survives in its current form in Ontario and elsewhere (the subject of an upcoming post), the ups and downs in the articling market should not impede innovation or, for that matter, growth in legal education.

So, what might new law schools do that is new. Let me offer three brief suggestions, all of which have been associated with one or more of the proposed new programs.

First, a new program could anchor and build community in underserved parts of the country – a theory which already underlies proposals in Lakehead and Laurentian, in addition to the B.C. Thompson Rivers initiative. In this context, innovation extends not only to the way in which law students engage in leadership in those communities (through clinic programs, pro bono placements, etc) but also to ensuring graduates stay and enrich those communities (a law school, foundation or government could, for example, pay off student debt for as long as a graduate works in an underserved community, or tuition tax credits of the kind in place in Manitoba and New Brunswick are just two possibilities). Tuition could be based on income contingent loans so that students do not pay for law school but graduates do, and in proportion to the income they derive from that education.

Second, new schools can adapt legal education to different kinds of law students and grow the pool of applicants who presently consider law as an option. Consider Ryerson’s ambition to design a law program with access and excellence as twin priorities. It would be based on a flex-time model, with classes during the day, evening and weekends, on intensive and term models, so that law school would fit how people work and live rather than expecting students to work and live according the demands of law school timetabling. It might take three, four or five years to complete and would include mentorship, hands on experience and a more seamless transition into practice (for those who wish to pursue that career path).

Finally, a new program could be designed around how law happens in the world rather than how law happens in law school. Rather than silos of “torts,” “property,” “contract” and “criminal,” a law program could be taught around how people encounter law and the way in which law solves (or creates) their problems. Georgetown Law School’s “curriculum B” experiment in first year, in which students are exposed to a course in “bargain, exchange and liability” rather than doctrinal courses in contracts and torts, is just a first step down this road but offers a glimpse of some of the possibilities. Alternatively, new law programs could shift toward “narrowcasting” rather than “broadcasting.” An entire program could be developed aimed at preparing students for international legal careers or a University could launch a “green” law school in which environmentalism infuses every aspect of the core curriculum. These programs could remain small, focused and become to existing law schools what Banana Republic has become to the Bay.

None of the innovations described above require new law schools. Any could be adopted by the existing law schools (and some certainly have been discussed or piloted in modest ways). Existing law schools, however, have student expectations to consider, faculty preferences,  alumni support and a history of previous innovations and initiatives to navigate and advance. Existing schools continue to pursue meaningful innovation (McGill’s shift to a unique, transsystemic curriculum in 2009 and Osgoode’s first-in-Canada “Public Interest Requirement” in 2007 are but two recent examples) Realistically, however, if a completely new approach to legal education is to emerge in Canada, it is almost certain to come from a completely new program.

But what if new programs do not bring innovation? What if Universities pursue law schools as “cash cows” and decide not to invest resources in full-time law faculty, career development offices, law libraries, curricular enrichment or mooting programs but to charge high tuition anyway? Alternatively, is there room for a “no-frills” law school at a bare bones level of tuition? What if new law schools simply become more law schools, and instead of pressing all of us to aim higher, they trigger a race to the bottom? These are hard and important questions, and ones which we will confront, I would venture, sooner than many think.