Blaming Law Schools . . .

My Dean, Bruce Feldthusen, has written an article for Canadian Lawyer in response to criticisms in the legal profession about legal education and allegations that we are responsible for creating the perceived articling crisis in Ontario. The title of Dean Feldthusen’s article is pretty self-explanatory: ”Legal Profession in Turmoil: Let’s Blame the Law Schools“.

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  1. Dean Feldthusen’s article leaves me seriously concerned for the immediate future of Canadian law schools, if it accurately reflects the thinking and attitudes of legal educators in this country. A few points:

    “Every crisis requires a whipping boy. Many lawyers have found one: legal education. Everything would be fine, they pronounce, had the law schools not increased enrolment. Everything will be fine again, they dream, if law schools restrict enrolment.”

    That’s a lovely straw man, but I don’t know of anyone remotely informed about the legal marketplace who lays all the blame for the current situation on law schools and their graduation rates. Conjuring up an irrational opposition is a poor way of deflecting criticism of your own contributions to the problem.

    “Restricting admission to law school to protect mandatory articling, itself probably an unlawful barrier to entry, is against the law! The profession can’t do it and neither can the law schools. ”

    Law schools increase and decrease their enrolment all the time in response to market demand — dozens of US law schools are cutting class sizes right now because both law school applications and first-year lawyer employment are down. It cannot be the Dean’s contention that class sizes, once increased, can never again be reduced for fear of prosecution. The clear implication here is that law schools should not have to change their practices in order to accommodate the legal profession’s needs. Considering that the profession is the sole buyer of law schools’ entire inventory, that’s a form of risk-taking bordering on arrogance.

    “the legal profession has priced itself beyond the means of ordinary Ontario citizens”

    And law schools have priced themselves beyond the means of ordinary Ontario students. QED.

    “We could close every law school in Ontario and still have an articling crisis.”

    This is nonsense, and I really hope it’s an expression of hyperbole, not an actual statement of belief.

    “Today’s students are better educated and more committed than ever.”

    I would like to see some evidence to support this statement.

    “They are preparing for a much more complicated employment market than existed even a few years ago. They enjoy experiential learning opportunities in clinics, work-study placements, and through innovative active learning in the classroom.”

    Legal aid clinics were thriving when I entered law school more than 20 years ago; other clinics have emerged since then, but most are available to or enrolled in by only a minority of students.Work-study placements in the law remain rare. I do not know what “innovative active learning in the classroom” means.

    “Ontario’s law schools did not cause and cannot cure the articling crisis. They cannot alone address the profession’s training objectives.”

    That is correct. But no one is asking the law schools to take all the blame and single-handedly find a solution. They are being asked to assume their share of responsibility for a situation in which there is plenty of blame to go around and plenty of parties (law schools, law societies, law firms, and clients) to share it. This article would lead you to believe that law schools are innocent bystanders whose decisions to (a) increase class size year over year, (b) raise tuition year over year, and (c) steadfastly refuse year over year any structural changes to faculty, curriculum or teaching methods that might reflect or accommodate fundamental shifts in the provision of legal services, are wholly unrelated to the growing challenges of lawyer employment and lawyer competence. I’ve been more willing than most to defend law schools, or at least excuse their lack of engagement on these issues. But I have no patience for attempts to absolve law schools of any responsibility for helping build a system from which they have benefitted enormously and then to cast themselves as victims when that system starts breaking down.

    “The law schools could work as equal partners in co-operation with the profession to help address real problems. They have never been invited to do so.”

    Nor, so far as I’m aware, have they ever asked.

  2. I actually agree with his comments in part, and with the previous comments by Garry Wise, that this entire exercise turned into a big blame game against various parties.

    Part of the solution, clearly, is for LSUC to raise the bar for foreign “approved law degrees” to stem the potentially infinite tide of NCA candidates.

    However, I don’t think the solution necessarily lies in the now-retired bar admissions course, which was discontinued for a number of very good reasons.

    Feldthusen indicates that they are willing to work with the Treasurer. Let’s see how that actually plays out in practice. Until then let’s acknowledge that the entire profession shares responsibility for the situation, not just the law schools.

  3. I am not a lawyer, but having spent the last 6 years immersed in legal issues, I am very interested in all things legal. I am a Registered Nurse. I am familiar with the ways that doctors and nurses are educated. Hands-on practice is just as important as theoretical education.

    It should be mandated that as part of the benefit of membership in the LSUC, lawyers have a responsibility to the education and mentorship of new lawyers. All lawyers whether they be practicing in the public or private sector must be required to take on newly graduated lawyers. Part of the licensing process is that a new graduate accumulate articling hours. If they cannot get these hours what can they do? It is out of their control.

    This should not be a choice. All lawyers should be expected to interview for the best candidate but this should be the only choice they have.

  4. Under Feldthusen’s watch at U of O the school has boosted enrolment by an additional 221 students per year, every year. This increase accounted for 78% of the total enrolment increases at Ontario’s law schools from 1997 to 2011. It’s irrational for Feldthusen to ignore demand-side labour market pressures and it leaves many reasonable observers scratching their heads wondering what’s happening internally at U of O. No other law school engaged in such an expansion given that the market didn’t need (and clearly couldn’t handle) the vast increases we’ve seen over the past decade or so. The MTCU, universities, and LSUC need to start asking some tough questions and taking action as charging excessive tuition to students for legal education that they may never get to use is frankly wrong and unfair. I wrote a rebuttal to Feldthusen’s letter that expands on some of these points: http://www.youthandwork.ca/2012/12/who-let-dogs-out-rebuttal-to-bruce.html.

  5. People need to understand how universities work.

    1) Law Schools get their budget from the university administration. When law schools are told that they won’t get any more money or any more professors (to replace retirees just to keep the faculty level the same, not to increase the number of faculty) unless they increase enrollment and/or increase tuition, they basically have to follow suit. Universities see law schools as cash cows. Law schools often have very little choice in this. Hasn’t anyone noticed that in the last decade the provinces have reduced funding to universities, and this is the main time period that law school tuition and enrollment has increased?

    2) Universities focus on research and publishing rather than teaching. I do not blame law school professors for not wanting to have more hands-on classes or clinics or courses with many skills-based assignments instead of a 100% final exam – they are being pressured to publish and research. As long as they just do the teaching, they are fine, but if they don’t publish or research, they will not obtain tenure, which means they are out of a job. Skills-based learning takes more time, and professors are pressured by the university to spend more time publishing and researching. Again, professors really don’t have a choice in this.

    I am in no way absolving law schools for their role in ‘the articling crisis,’ but if people really understood the pressures faced by law schools and law professors – that they often have no choice about increasing tuition or enrollment or focusing on research and publications – they may understand the issues a bit better.

  6. Law school is education. Reducing enrolment means reducing access to education.
    It means impeding the flow of knowledge to people who want to learn.

    We must *never* restrict access to education just to spare today’s lawyers from competition with new graduates.

    And we should think long and hard before we do so paternalistically, i.e. because we think students might not get the jobs they want after they leave.

    The better approach is to ensure that prospective law school students make decisions based on comprehensive and accurate information. This might be a useful role for neutral bodies like the Ontario Law School Application Service (http://www.ouac.on.ca/olsas/).

  7. What Noel has posted above is a very nice thought. But flooding the market and thereby reducing the odds of realistically getting a legal job after graduation can also pose a barrier to entry.

    Sure, as a law student, I enjoy learning in the abstract. On the other hand, as someone in their 30s with debt, there’s no way I would have felt able to “afford” 3 years of law school and close to $50 000 tuition if the market in Canada looked the way it does in the US or UK. I’m sure a lot of my fellow students who are older and/or have families and/or have more challenging financial situations would say the same. The cost/benefit analysis is already pretty bad.

    Learning purely for love of knowledge is great at any age, but it’s especially great when you’re 23 and your parents are helping you pay for it. If you just want to learn – no one’s stopping you from getting a library card. I don’t think it’s unrealistic or unfair to expect that education that is a gateway to a specific profession should have some regard to the realities of actually entering that profession.

  8. Noel, I have to take exception with what you’ve said. Society, law schools, and the legal profession have already installed massive barriers that prevent students from equity seeking groups from accessing legal education.

    Tuition fees currently stand at tens of thousands of dollars at every law school in Ontario. The need to take on debt is a reality that many law students face and no one blinks when someone incurs $100,000.00 plus to obtain a J.D. The LSAT is an incredibly biased tool for rating students and privileges students from the dominant culture. There’s an intense culture of Whiteness within law schools, the legal system, and the legal profession. One could also point to the incredible male privilege that pervades the profession and drives countless women away each year. Or you can point to the lack of a politics of time within firms that think it’s nothing to demand associates work twelve hours a day, seven days a week at the expense of their families, personal lives, or their human development. Those are but a few of the barrier that I can rhyme off without so much as a thought. So, if you want to discuss access to education and the flow of knowledge, that’s fine, but realize that you’re going to have to throw down the cards in the process and address the structural and institutional barriers that already exist.

    What has been occurring in law schools over the past decade is a stealth form of cultural apartheid where students from many equity seeking groups are slowing being weeded out and denied entry via excessively high tuition fees amid a corporatization of law schools that’s part and parcel with the retrenchment of the social welfare state. Consider the cuts to university funding, the elimination of student grants in favour of loans, the reductions to Legal Aid Ontario, the institutionalization of unpaid labour by the Law Society, or the fact that most citizens can’t afford to access the services of lawyers. These trends aren’t limited to law schools or the profession as deep structural changes are occurring in wider society as well, but it’s changing the profession slowly and eliminating what I consider some of its best parts: defence for the downtrodden, zealous advocacy on social justice issues, or the ability to contest (and stop) governmental action.

    It’s high time that this discussion about the role of legal education started to occur, but let us not forget the wider context in which it is taking place or ignore the barriers that have always existed even if our blinders prevented us from seeing them.

  9. There are institutional barriers in the legal profession. That much I agree.

    But the term “apartheid” is used far too freely, both in this context, and in other political activist circles.

    The Rome Statute, to which Canada is a signatory, states,

    (h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1 [crimes against humanity], committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

    Advocacy is essential for transformation of the profession. Hyperbole is only, and always is, harmful.

  10. but the straw man, hyperbole, and ad hominem is what makes the world go round dunnit?

  11. I don’t throw around terms like “cultural apartheid” lightly and my deployment of the phrase conforms with recent Canadian scholarship studying the intersection of labour markets and how racialized workers are treated. Beyond that, if you look at Canadian history the Rome Statute could arguably be applied to quite a few historical and recent examples. Be it Canada’s treatment of Aboriginal peoples, the legal framework that applies to migrant or temporary workers, explicit inaction over the Highway of Tears or the Pickton murders, or the labour market position of racialized workers. All of these examples point to the fact that Canada, as a settler society, has been a historically and remains a society where a narrow aged White male elite exercises full control over all the economic, legal, social, cultural, and political levers.

    Despite how uncomfortable discussions of this nature are it’s perfectly reasonable discourse and it’s troubling to be subject to attempts to diminish or limit critical analysis via the use of nebulous phrases like “hyperbole” or “harmful”. So if you think the term “apartheid” is used too freely in some circles to the point where its import is diminished, fine, I would tend to agree with that assessment; however, if someone is using it accurately and legitimately in a specific context to describe prevailing conditions then one needs to assess what power structures are being served through attempts to limit discourse, define boundaries, or set parameters on which topics can be discussed and which ones are taboo.