Many Canadian academics are familiar with the Carnegie Foundation’s 2007 report “Educating Lawyers” and its call for significant changes to the American model of legal education. Although it is an obvious oversimplification of a complex argument, the basic idea advanced in “Educating Lawyers” is that American law schools ought to look beyond preparing their students to do legal analysis and research and devote significantly more attention both to enhancing their students’ practical skills and to developing their professional identity.
The authors of “Educating Lawyers” draw on the experience of medical education to build the case for the integrated development of foundational knowledge, practical skills, and professional values in a university setting, and suggest that this is a model law schools should emulate.
They do not employ the term “experiential learning” but they do advocate the use in law schools of a range of pedagogies that extend beyond lectures and the Socratic method of teaching. In particular, they strongly encourage the use of simulations, clinical experiences, and other approaches to provide law students with a more rounded professional education.
Canadian legal educators’ reaction to the Carnegie report has been mixed. One strand of thinking suggests it paid insufficient attention to the role of law schools as places for the study of law as an intellectual discipline and academic research into law.
A second line of thinking suggests the report’s analysis has limited application in Canada, where our system of articling supplies the practical apprenticeship dimension of professional legal education lacking in the United States.
A third response is that Canadian law schools already provide their students with significant opportunities for experiential learning and would gladly do more if Canadian universities (and their government funders) resourced law schools at the levels at which they support medical schools. I find the third line of thinking the most interesting because it raises both pedagogical and resource questions of considerable importance to the future of Canadian legal education.
There are at least three significant questions associated with the pedagogy of experiential learning at law school.
• The first concerns its definition: What is meant by experiential learning, and in particular does it always require “live client” experiences analogous to the experiences medical students have with patients?
• The second concerns its nature: Is having the experience sufficient, or does experiential learning require structured opportunities for reflection and feedback to be effective?
• The third concerns its scope: Is experiential learning required by all students, and if so to what extent, or is it an option that can be selected by some students and not by others?
The answers to these three pedagogical questions have significant implications for the ways we look at resourcing law schools. A law school that requires significant “live client” experiences accompanied by reflection and feedback for all its students, for example, demands a substantially different level of resources than a school that offers a range of experiences, some involving clinics and others involving simulations or other approaches, to only some of its students on an optional basis.
This is not just a question of cost, though the cost of clinical legal education has tended to be a limiting factor on these programs at Canadian law schools in the past. Of equal if not greater importance, expanding “live client” clinical experiences requires law schools to think deeply about the skills and qualifications they look for in the faculty members or instructors who teach in these programs, the types of facilities they need in order to offer them, and the nature and scope of the obligations the law schools undertake to the clients who participate in them.
The increasingly specialized nature of Canadian legal practice makes resourcing decisions associated with experiential learning especially challenging for law schools that aspire to provide a relatively full-service program of preparation for legal practice. In many instances specialized practice not only requires advanced knowledge of discrete areas of substantive law, but also draws upon skills and poses ethical challenges different than those experienced in other practice areas.
The medical profession accommodates specialization in both its regulatory and educational structures. The “one-size-fits-all” structure of professional regulation of lawyers facilitates lawyers’ ability to adapt their patterns of practice as opportunities and their own understanding of their professional strengths and interests evolve. On the other hand, it can make it difficult for law schools to satisfy the demands of professional regulators for a broadly based generalist education while at the same time offering the range of specialized courses that reflect the many different settings in which lawyers practise now and may practise in the future.
I have no doubt Canadian law schools will want to embrace new approaches to experiential learning, both to engage their students in exciting ways and to enhance the preparation students have for the types of professional practice they will experience upon graduation and thereafter. The challenge for law schools is to address the pedagogical questions associated with experiential learning in a way that enables them to match their commitment to experiential learning with the types of resources needed to deliver it well.
Nobody realistically expects either governments or universities to devote the kinds of financial resources to legal education they do to medical education. Over the last few years, American law schools have demonstrated there are limits to what students will pay for a legal education, though the variation in the tuition charged by different Canadian law schools and the gap between Canadian and American tuition fees suggests at least some Canadian schools may be able to raise tuition in order to enhance the quality and breadth of the experience they provide to their students.
Nevertheless, Canadian legal educators will have to draw on all their ingenuity and sense of commitment if they want to make significant progress toward the type of legal education envisaged in the Carnegie report.