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Incentivization and change in legal education

The genius of our version of the rule of law is that it is not the law of rules. Yes, there are imperatives — what we lawyers call statutes and regulations — with which we all are obliged to comply. But for the most part, the rule of law in the anglo-Canadian tradition is premised on the notion that freedom is a paramount social value.

As a people, we tend not to react well to governmental heavy-handedness. We prefer governments that make us feel as if we are respected as individuals. Indeed, as Business School 101 will teach you, that is the essence of modern leadership.

While there is still plenty of time for it to come a cropper, one of reasons that the current federal government continues to enjoy its extended honeymoon is that it is doing such a good job through its various consultation processes at making us feel that we, too, are involved in the business of policy formulation.

Though corporate trainers make a packet selling this kind of stuff in leadership training, it is hardly a revolutionary concept. The secret sauce of the market economy is that it places a premium on individual autonomy and the power of incentives. After all, what else is Adam Smith’s invisible hand other than an encapsulation of the notion that society becomes better when people are permitted to decide for themselves what is in their best interest, and then to act on it?

Think of the original Participaction campaign, which began to make us all think more seriously about exercise, diet, and smoking, by pointing out that the average 70-year-old Swede was as fit as the (then) average 40-year-old Canadian. It’s hard to imagine a legislative regime that would have been as effective.

In addition to being founded on a presumption of liberty, the other great thing about incentives is they enshrine a social contractarian notion of collaboration as being the key to social cohesion.

Moreover, they allow a subtleness and flexibility that the parliamentary command, for all its awesome majesty, does not. Acts of Parliament are a blunt tool. As counterintuitive as it may sound, this is why professors who teach public policy often suggest that legislation should be the last resort when a government wants to change behaviour.

Given this, it seems odd to me that when Canadian lawyers talk about reform of legal education, the first instinct is to think of command and control mechanisms.

We speak of courses being “required” or “mandated.” We talk of a “core curriculum” — by which we mean the part of the curriculum that is compulsory. For whatever reason, we seldom begin the discussion by thinking about how we could make students take courses because they want to, or because they feel a need to. Instead, we start from the premise that students will study something whether they like it or not.

This dynamic was on display in glorious technicolour in the process by which the Federation of Law Societies came up with content of the approved common law degree. To be fair to the federation, it employed about as gentle a touch as a law dean could have asked for. And many of the leaders of the project remain personal friends of mine, but that doesn’t alter the fact that the nature of the exercise was to develop an edict about what we all have to teach.

That there might be another way actually dawned on me a few years before that, when the debate took place in Ontario over whether legal ethics should be required of all law students.

The treasurer of the Law Society of Upper Canada was firmly of the view that it should be. His proposed solution was to oblige all law students to take a stand-alone legal ethics course as a condition of being entitled to article.

Now I was one of the ones who happened to think that ethics is as essential to a lawyer’s education as, say, torts or contracts, and I was proud that the school of which I was then dean actually introduced it before any other. But I argued at the time — in vain as it turned out — that it was not something that had to be imposed from above.

I told the benchers that if the bar was really serious about the “coreness” of ethics and professionalism, they’d start asking questions about it in the hiring process. The students would then demand more of it in the curriculum and — hey, presto! — the problem would be solved.

When you talk to senior lawyers, they often lament that today’s law students don’t have sufficient grounding in one area of the law or another. A litigator will complain that students have never done a cross-examination. A solicitor might grumble that students have no concept of what is involved in a closing. And so on. I’m sure they’re sincere in these statements, but you’d never know it from the way the profession makes hiring choices.

Of course, it’s unfair of me to paint the whole profession with a single brush. But the point is that those who hire lawyers have a tremendous power to shape the future of legal education.

Most of us who work in law schools have come to the belief that legal education needs to change. But one of the problems is that far too much turns on demands and not enough on discussion. Put another way, if we think that change is necessary, then we need to think of how to incentivize people to want to do it.

“Virtue is its own reward.” That was a favourite saying of my late grandmother. It was a multi-use admonition available whenever she thought that someone in her province of thought was not behaving as she thought they should. People should do the right thing because . . .  well, because it was the right thing.

However, as much as it would have disappointed my grandmother to hear me say this, that’s not how things work. If we really want to improve legal education — if we want to make it more relevant — we can’t simply rely on the instincts of individual law professors to do the right thing. Nor should we want a world in which the law societies dictate the form and content of the law degree.

Instead, we should think about how we can create a culture where bar and academy interact as partners with a shared interest in educating the next generation of lawyers. But this will only happen if we turn away from the command and control imperative and embrace in its place a new relationship that has at its base the concept of incentivization.

In 2008, I gave a talk in Charlottetown in which I argued that a new concord between bar and academy was critical for the Canadian legal profession in the 21st century. I was far from the first person to borrow the metaphor from Hugh MacLennan that we exist largely in two solitudes, but I could not think of a more apt description for the state of affairs that existed between us.

I believed then, as I believe now, that unless we work together as partners — true partners — then we’re bound to fail in preparing today’s students to be tomorrow’s lawyers.