Law schools are the cause of the articling crisis

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

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