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Law schools are the cause of the articling crisis

A response to Ottawa law dean Bruce Feldthusen
|Written By Jan Weir
Law schools are the cause of the articling crisis

This is in response to the article by University of Ottawa law dean Bruce Feldthusen in which he defends against the claim that the law schools have any part in the articling crisis. It may well be that this very respected dean may change his opinion with a review of the history of legal education in Ontario.

In 1857 (or so), Harvard initiated the classroom model of legal education. It was designed to train lawyers via the co-operative effort of law professors and leading practitioners. An essential component was that a significant number of full-time positions were to be given to practitioners. Alan Dershowitz is probably one of the best-known examples of an outstanding practitioner who was appointed to the full-time faculty.

In 1949, in Ontario, there was a dispute between the law professors, who then taught under the Law Society of Upper Canada at Osgoode Hall, and the law society. Probably both were equally at fault as is usual for that kind of dispute. The resolution was the law professors would break away and start a classroom-style education, based on half of the Harvard model, at the University of Toronto. Law schools would teach only the theory, and the law society would be responsible for teaching the practice aspect; hence, the creation of the unique articling and bar admission course processes.

Unique is the operative word here, because the American system, using the Harvard model, has never had a need for articling or the bar admission course. It has graduated, and continues to graduate, competent lawyers without the need for the extra year of education and the expense.

Thus, if we now adopted the complete Harvard model, there would be no need for the extra full year proposed by the law society. It would mean however, that the law schools would have to accept as their mandate the goal of training lawyers, and appoint about half of its faculty from leaders of the profession.

At present, law schools allow some practitioners to teach, but only by part-time appointments. These practitioners have to run from a busy day to teach, basically “from the hip,” with little time to prepare curriculum, leave their work for a successor to build upon, or develop and adapt new curriculum and teaching ideas — all of which take place in American law schools.

If the law professors feel they are protecting the high standards for the teaching of law, they can take some comfort from the fact that there is a nearly 250-year history at Harvard, and other American law schools, they can look to for evidence that high standards in both areas can be maintained using the Harvard model.

Dean Feldthusen blames the law society for abolishing articling without consulting the law schools. He may be correct, yet here again, his knowledge of history may not be complete.

In 1974, former LSUC treasurer Derry Millar and the writer made a proposal to the bencher’s education committee, through the grace of then-director of the bar admission course, James MacDonald. The proposal was to abolish the then six-month bar admission course and have its materials used as a basis to develop practical courses within the three-year law school curriculum.

Two prominent members of the legal education committee, Peter Cory and Sam Grange, strongly supported the proposal. The legal education committee endorsed it and sent it on to the committee of law deans. Dean Marty Friedland made its response. The writer only remembers the opening sentence, which began, “Are we to be saddled with . . .” In sum, it was a scathing rejection of the idea that the law schools should train lawyers instead of soley teaching the theory of law.

Millar and I were surprised, perhaps astonished is more accurate, upon completion of the bar admission course, that so many practical aspects of law could be taught so effectively and so well. We thought the bar admission course materials were excellent! Our complaint was they were taught in too compressed a time, and too late.

These materials could be used as a basis for developing courses in law schools. About half of the theoretical courses were redundant and could be converted into this type of course. If the entire practical training were to be taken over in a co-operative effort with the law schools, there would be no need for the extended training beyond the A¬merican system.

The writer has from time to time raised these issues with law professors and deans, but always with the same, although more temperate, reaction as from dean Feldthusen (Dean Ian Holloway of Western, who agreed to the reform ideas, excepted). The law professors seem to believe they are protecting the high standards of legal education by keeping to a mandate that they were to teach law and that students could do whatever they wanted with it, go into practice or some other area, but they were not to train lawyers.

However, the law professors can look to about 250 years of experience at American universities, such as Harvard, and take some comfort from the fact that having a significant number of practitioners, and judges who take an early retirement, on full-time faculty does not damage the high standard of teaching the theoretical aspect of law.

Perhaps, as dean Feldthusen alleges in his article, the law society failed to consult with the law schools before abolishing the bar admission course a few years ago. Perhaps that was because they had unsuccessful communications with the law deans in the past, or perhaps the law society was simply insensitive to the law deans. In any event, it is time for both sides to set aside personality conflict issues for the sake of the law students.

Undoubtedly, law professors such as dean Feldthusen want to ensure students from disadvantaged groups have an equal opportunity to enter the practice of law. If he and his colleagues examine the history of why we are at the impasse of non-co-operation, perhaps the law professors could lead the way to co-operation where the law has failed (I would then have to amend the title of my next article from the intentionally provocative one here to “Law schools are the solution”).

Strange is it not: Americans can co-operate where Canadians cannot?

Imagine an Ontario law school with the full-time faculty of law professors, outstanding lawyers, and judges who co-operate in creating a balanced legal education of high-level theory and practice.

Jan Weir is a trial lawyer practising in Toronto, who teaches at the Faculty of Management Studies at UTM and is the author of The Critical Concepts of Canadian Business Law, 5th ed. His web site is www.jdweir.com

  • Law Schools do Teach Skills

    Recent Grad
    I find it odd that people think we lack practical skills. At my school, everyone is required to take courses in advocacy and practical skills. My school has students perform incorporations, write contracts, file trademark applications, represent inmates, represent those accused of crimes, appeal administrative decisions, write wills and POAs, shadow professionals, perform clinical externships, consult for large organizations on legal issues, perform at moots and more (other schools have tax and environmental clinics as well)! Generally, these programs are supervised by lawyers, many who work in a full-time capacity, and some even hire articling students! Universities are fully capable of teaching the practical skills and actually do!

    LSUC and corporate interests are preserving the system of dependency as opposed to one where schools organize/host placements which they could do more easily and for less, benefitting the community and enabling students to see beyond $$.
  • History

    A former professor
    If you are going to accuse someone of being ignorant of history, it is important to ensure that you are not also ignorant of history. Alan Dershowitz is indeed an excellent example of a law professor who is also a practitioner; but he is not a good example of "an outstanding practitioner who was appointed to the ful-time faculty." Alan Dershowitz was a full-time faculty member who had never practiced law until he was asked to defend the JDL bombing suspect. He took on a number of well publicized cases after that, while maintaining his position as a professor.
    While this is not a fatal flaw in your argument, it certainly tempers your credibility.
  • Reader

    Areader
    #History, Dershowitz is merely a passing example of a law professor well-versed in the practice of law - you're missing the forest for the trees. Nitpicking aside, having gone through the system relatively recently myself I tend to agree with Weir's well-reasoned position.
  • New York Times

    Jan Weir
    Assuming all you say is true, Ontario law schools take four years to turn out poorly trained graduates, while American law schools do it in three.

    Numerous New York Times articles criticize certain US law schools for not teaching enough “lawyering”. There is no New York Times article saying that law school should have fewer full-time practitioners or less practical teaching. Every article says there should be more.

    So the reform of Ontario law schools should ensure a proper balance.
  • RE: Law schools are the cause of the articling crisis

    Anon
    I had a lawyer admit this to me. The US has full time professors and adjunct faculty. Yes, cooperation goes far in the US and basic education. Since the US does standardize testing and SAT, ACT and LSAT testing, it assumed you can capable of writing. What is taught is legal writing and research. The LSUC is strangling your system. The system in Canada has to many bosses who are not willing to learn, cooperate and communicate and therein lies the problems that is Canada.
  • RE: Law schools are the cause of the articling crisis

    Ian J H Brown
    The U.S. model is equally disastrous to ours, graduating thousands of students with no practical skills and crippling debt. The New York Times has had a series of articles in the past year on the number of unemployed law school grads and the extent larger firms go to educating new hires.

    Law schools are bureaucracies that inherently choose growth; in enrollment, breadth of study etc., when they should be like trade schools; two years with a balance of practical skills and theory.

    Law schools today are for the wealthy.
  • Re Anonymous

    Jan Weir
    Collective agreements are negotiated. Law schools and the professors' unions have the power to exempt practitioner-teachers from research and publishing quotas. If the schools and professor's union's were to selectively remove these quotas - which are effectively keeping practising lawyers out of Ontario law schools - all law students (especially those frrom minority communities) would gain immediate and much-needed opportunity to learn from their experience.

    This is the model that US law schools have successfully adopted for many years.
  • RE: Law schools are the cause of the articling crisis

    Anonymous
    While one can empathize with the origins of the points made in this article, the article does ignore the realities of law schools being part of universities governed by collective agreements, with those collective agreements governing the duties to be performed by law professors. The usual split required by the faculty agreement is a 40-40-20 split between teaching, research and service. Many practitioners and judges post-retirement may not want to become law professors with a requirement to spend 40% of their time contributing to a published stream of scholarship.

    Moreover, the US is not the only comparator available. The UK combines a university education with vocational training via pupillage for barristers and training contracts for solicitors as well as a post-university course of studies. The UK system recognizes a different deliverer is needed for vocational training.
  • History

    A former professor
    While the usual tenure track professorship includes a this split, there are many other full-time, permanent teaching positions offered at universities across Canada with a different workload. Such as, permanent lecturer positions, or long-term sessional positions. Most universities also can adjust the percentage workload attached to a particular professor's salary.
    Rather than blaming the CBA of the school for the lack of former or current practitioners on faculty, you might want to consider the way that law schools are ranked. If you have to choose between hiring someone who will turn out tons of research, receive grants and awards, and attract students, or hiring someone who will not, there is no contest. The scholar/researcher will increase your schools rankings, increase the recognition of your school globally. Combine that with the pay cut these post-retirement people would be taking, and you have a much more realistic answer to the lack of practitioners on faculty.
  • anonymous lawyer

    LMAO
    You've got to be kidding me! Another sector where unionization stifles advancement, innovation and reason. Law professors governed by CBA's but law professionals excluded from OLRA! How can any result be surprising! Canadian Law schools are the "ivory tower" of philosophy with little application to reality or the practice of law; notice how many labour law professors fail miserably when they try to start arbitration practices. I did not learn much from law school that has application to my practice; the philosophy was an interesting intellectual pursuit but everything I learned about the practice of law (i.e carrying a file!) was from joining the legal aid clinics etc. The Bar Ads experience was incredible, enlightening and kept me in the practice of law - and left all of my graduating year wondering why none of it was taught in "law" school - the article is on point.

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