Marx predicted that a Communist revolution would arise in a mature capitalist society like England or Germany. Instead, it took root in backward economic Tsarist Russia. Sometimes you take what you can get.
The revolution has arrived in Canadian legal education. Nobody started it. COVID-19 forced it upon us. The question is where this revolution will lead?
This fall, every law student in Canada will take most or all of their courses online through distance learning. Last fall, almost every law student in Canada could have expected to complete their three years of legal studies without taking a single course with a significant online component. The change is obviously due to COVID-19. And it is not just courses that will be online this year. Legal clinics, moots, law school clubs, research symposia and law school governance are all moving into virtual spaces too.
For law schools, COVID-19 is a true “black swan” – a phrase coined by Nassim Nicholas Taleb in his eponymous book. A black swan refers to an almost wholly unpredictable event that has a disproportionate impact on an industry, a business or, in the case of the COVID-19, a national and global economy (Taleb has written that COVID-19 is not actually a black swan because a global pandemic was entirely predictable but let’s put that aside for our purposes).
Before COVID-19 struck, not much had changed in legal education in decades. There was a lot of talk about innovation but like in the legal system about which our students learn, the truth is that there has not been significant innovation in Canadian legal education since the Law Society of Upper Canada (as it then was) finally agreed to surrender its monopoly on legal education in Canada’s most populous province in the 1950s after “the fiercest debate”, lasting more than three decades.
Canadian law schools are very conservative institutions. They teach largely the same subjects and use the same methods (the large in person lecture) as they have for decades. There are of course important exceptions but both the curriculum and the style of teaching remains overwhelmingly similar across the country.
Lawyers and certainly those outside law are often surprised when I muse about the conservative nature of Canadian legal education because many of them view us at progressive beacons or hotbeds of radicalism, depending on their perspective.
There are a number of reasons why the teaching of law has remained so stable and resistant to change over successive decades.
First is the law itself. The legal system and the courts in this country are incredibly conservative and strongly resistant to change. It did not go unnoticed that the Ontario Superior of Justice only just abandoned the use of the fax in criminal proceedings.
Next is the law school curriculum. Law schools operate on models of collegial governance in which there must be broad agreement to effect change. Curriculum is one area where everyone has an opinion and thus a stake. It thus becomes very difficult to make significant curriculum change. Some law schools (Calgary, UBC and McGill) have succeeded in making significant changes to their curriculum and should be commended for this. Victoria worked for a decade to create the joint degree program in Canadian Common Law and Indigenous Legal Orders; both Lakehead and Ryerson offer an Integrated Practice Curriculum but they were able to do this because they were both new schools. It is noteworthy that no other existing law school has chosen to follow the Lakehead model.
Canadian law schools all have a few innovative courses, often one in the first year curriculum. For us at uOttawa it is our Dispute Resolution and Professionalism program, for Osgoode it is Ethical Lawyering in a Global Community, for Windsor it is Access to Justice etc. But these are anomalies. The rest of the curriculum at our schools and at others looks very much like it did two decades ago, perhaps even four decades ago.
The difficulty of making curriculum change is exacerbated by the Federation of Law Societies of Canada’s “national requirement” which is a standard for accrediting common law programs in Canada. It requires the teaching of the usual suspects of contracts, torts, property, criminal law, constitutional law, administrative law, etc. It impedes innovation and helps to freeze the curriculum.
Finally, the market for legal education in Canada is one where demand (applicants to law schools) continues to far outstrip supply (law school places). This has served to moderate competition between law schools and reduce incentives to innovate.
Individual professors also have few incentives to change the way they teach. Most law schools in Canada are located at large research universities – the so-called U15 – where the emphasis is on research over teaching.
We are incredibly fortunate to have many talented and dedicated teachers in the Canadian legal academy. But those professors who are committed to teaching innovation do so because they are committed to their craft, not because of any incentive structures.
This all helps to explain why it has taken a global pandemic to force law schools and professors to become innovators in teaching. Strike that.
COVID-19 has created the necessary conditions for law schools and law professors to innovate. Professors who simply do the same thing they were doing in person over Zoom are not innovating, they are in fact making legal education worse.
The message that I have sent to my professors is that you cannot simply transfer the 1.5 hour lecture or (God forbid) a 3 hour seminar to Zoom. This is not an effective way of teaching and it will not be an effective way of learning for our students.
It is up to make this new space for legal education a true revolution in how we teach, learn and think about law.
Viva la revolution!