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What we know about legal education

“That’s because we perfected the model.”

A few years ago, I was visiting a law school where I was talking about the future of legal education. I made the observation that if any of us were plunked down in a law school classroom 70 or 80 years ago, we’d feel quite comfortable. A doctor or dentist or engineer probably wouldn’t feel the same, I said.

One of the folks in the audience responded, “That’s because we perfected the model.”

I waited for the punchline, only to realize that the guy was perfectly serious. As startling as it was to me at the time, he was genuine in his belief that no real change was needed to the way in which we educate law students. Tinkering at the edges, sure. New clinical programs, maybe. A course on business skills, in a pinch. But root-and-branch change? Nope. Not necessary.

So was he right? Maybe. But here are some things we know.

We know the majority of law students progressively disengage from their studies as time goes on. As one of my colleagues once put it to me, by third year, many of them are mailing it in.

And lest there be any doubt of that, just have a look at the results of the Law School Survey of Student Engagement. The LSSSE is a U.S.-based survey in which most Canadian law schools in the common law provinces now participate. What does it show? Well, it shows without a shadow of doubt that the degree of time students spend actively engaged with their studies decreases steadily from first year to third year.

Put simply, that’s not a good thing.

We know articling in its current form is not sustainable. The crunch began in Ontario, but it is by no means limited to the 401 corridor. On the contrary, as students in Ontario schools spread their wings in search of more fertile fields, and as the number of foreign-trained law graduates continues to increase, the tightness in the market is becoming national in scope.

What this means is that the unspoken, yet clearly understood, compact that existed for a couple of generations, whereby any law student who diligently applied him or herself could some day become a lawyer, is in danger of being upended.

We know articling is an inconsistent model for training lawyers. Some students have wonderful articling experiences under dutiful principals, who are assiduous in making sure the students are exposed to all the facets of legal practice, and consciously look for teachable moments. But we would have to be wilfully blind to deny that many students have sub-standard articling experiences.

And if we are honest, we have to concede that law societies simply don’t have the resources to police the articling system with much vigour. And even if they did, the last thing they want to do is to add further disincentives to lawyers to take on students.

We know that the one-size-fits-all scheme of bar admission does not reflect the complexities of modern practice. Just think of this: a student can article at a big national firm whose mainstay is business law. The day after admission, that new lawyer has the formal right to represent someone in a criminal or family law proceeding.

Can anyone say that a licensing system like this makes sense? Seriously? And yes, the law society can go after any of us for professional incompetence, but do we really need to wait for the horse to bolt before we shut the barn door? If we are serious about protecting the public interest, oughtn’t ex ante licensing trump ex post facto discipline?

We know the practice of law is changing. Or maybe a better way to put it is to say the way in which the public accesses legal services is changing. This is driven by a conflation of three factors: globalization (an overworked term, but still something real); the technological revolution (which doesn’t show any signs of flagging); and commodification.

As I say to my colleagues all the time, our duty is to prepare students for the profession they’re joining, not the one we joined. And no question, their profession is going to look different from ours.

We know more about how adults learn than we knew in the last quarter of the 19th century when the conventional law school model was born. We now know that adults learn best through short, intense engagement with the material, in which lots of opportunity for practise (“formative assessment,” as it is known in the jargon) is woven into the equation. Unfortunately, that’s not how most of law school is conducted.

So what’s a law school to do? We’ll talk about that in April’s column.


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