Over the course of the past decade, however, that familiar landscape began to change. As the Canadian population grew and the legal profession presented students with attractive career options, Canadian law schools did not keep pace with demand for places. Three things happened as a result.
The first was that Canadian universities discovered they could charge more money for their LLB/JD programs. Where they were not restricted by government from doing so, Canadian law schools generally increased tuition, albeit by varying amounts. The second was significant numbers of Canadian students who were unable to get into a Canadian law school began to study abroad, most often in England and Australia. They sought admission to the legal profession in this country as foreign law graduates through the National Committee on Accreditation. The third, and most recent, development is Canadian universities that did not have JD programs began exploring the creation of new programs.
Each university whose new common law degree program has received conditional approval from the Federation of Law Societies of Canada since 2009 — Thompson Rivers University, Lakehead University, the Université de Montréal, and Trinity Western University — has a unique reason for wanting a new law school (or, in the case of the Université de Montréal, for adding a common law option to its existing civil law degree program). Nevertheless, all were influenced by the current imbalance between supply and demand for university legal education in Canada and all will be affected (along with other Canadian law schools) as the institutional landscape continues to evolve.
So what shape is this evolution likely to take?
At least three possibilities present themselves. One is new law schools will be few in number and will concentrate on niche markets that do not interfere significantly with the positions occupied by the Canadian law schools that have been around since at least the 1970s. One could argue this is the approach pursued by the four institutions that have sought approval for new JD programs in the past five years.
The optimistic view for the existing Canadian law schools is this shift in the landscape will open up new opportunities that fit the needs of Canadian students seeking access to careers in the legal profession without fundamentally altering the current high level of demand for university legal education. Under this scenario, Canadian law schools will experience a greater degree of regulatory oversight as a result of the establishment by the Federation of Law Societies of Canada of national standards for Canadian common law degree programs designed to ensure equal treatment to law graduates educated inside and outside of Canada.
Nevertheless, one could predict regulatory standards will be sufficiently flexible that existing institutions will be able to fulfill their educational missions in much the same way they did before the new rules were adopted.
A second prospect is a fundamental shift will occur in the relationship between university legal education and the programs of articling and professional education that are mandated by law societies as a way of facilitating the transition from university to the professional practice of law.
In this view of the future, the Law Society of Upper Canada’s creation of the Law Practice Program and its approval of Lakehead’s Integrated Practice Program as equivalents to articling are simply way stations on the road to the abolition of articling requirements and the assumption by law schools of the professional preparation mandate previously undertaken by law societies.
My point here is not to weigh in on the vital question of whether or not this would be a positive development. For present purposes it is enough to say this change in the landscape, if it does come about, will represent a fundamental shift in the role of law schools, and some institutions are significantly better positioned than others to take advantage of it.
A third possibility is the continued expansion of places in Canadian JD programs will fundamentally shift the balance between supply and demand for university legal education. The forces exerting pressure on the forms of legal practice that have evolved in recent years could exacerbate this situation, raising doubts about whether practising law will continue to be a career of choice.
If it seems implausible to suggest Canadian universities will overbuild law school capacity, one only has to look at the object lesson currently being provided in the United States. Many American law schools that prospered a decade ago are now struggling to find qualified applicants and are consequently reducing both the numbers of students they accept and the faculty and staff they employ. A Canadian version of this is far from inevitable. If it does come to pass, some law schools are more likely than others to enjoy continued success in an increasingly competitive environment.
I cannot predict with confidence which, if any, of these scenarios represents the future of university legal education in Canada. What I can say for certain is the stable institutional landscape of the early part of my career is well and truly behind us.
Philip Bryden is the Wilbur Fee Bowker Professor and dean of law at the University of Alberta.