Whither English-Canada Law Schools?

Ryerson University in Toronto recently announced that its new law program will allow students to include what would otherwise be post-graduate training as part of their law school stage of legal education (or perhaps more accurately, avoid training after graduation). The school’s curriculum will adopt the Integrated Practice Curriculum (IPC) concept. This follows the same design as that of the Bora Laskin Faculty of Law at Lakehead University in Thunder Bay. Ryerson’s decision, coupled with that of the Lakehead program, raises anew a question that has never really received a definitive answer: what is the role of university law schools?

For most graduates of law schools, there are currently two ways to acquire their licence to practice: the more traditional articling and the more recent Law Practice Program (LPP) (offered in English by Ryerson and in French by the University of Ottawa) (plus bar admission exams). Articling consists of “a ten-month placement with an approved principal to gain practical legal skills in preparation for entry-level practice“. The LPP was developed as an alternative to the articling program in response to the difficulty students had in finding articles. It involves a four-month training course and a four-month work placement. It “replicates the experience of working in a law firm using interactive web-based modules and digital simulation tools”, except for three weeks of in-person training. (See the discussion in the 2012 Pathways to the Profession: A Roadmap for the Reform of Lawyer Licensing in Ontario). The Pathways Report also discussed Lakehead’s proposal for what became the Iintegrated Practice Curriculum (ICP) (integrating what had been post-graduate training into the law school curriculum).

The Bora Laskin program was the first example of the Integrated Practice Curriculum. The first and second years are fairly standard, but in the third year, students complete courses and for one semester undertake a four-month unpaid practice placement. In the third year “capstone course” in civil procedure, students “act[] in small firms with a local practitioner as their ‘principal’. They take a fact situation from initial client interview through to appeal, including a four-hour trial….” (The school points out that its students take more course hours than the minimum required by the Federation of Law Societies and more than that required by other law schools.)

In short, the IPC shortens the education period for lawyers by eliminating (what should be paid) articles or even the LPP, which the IPC resembles, and possibly provides law firms with unpaid labour ( perhaps not so different from the clinical programs and extern/internships that have proliferated at law schools). It reduces the number of graduates who require scarce articles (although the number of graduates has increased through the opening of the Bora Laskin school and will increase further with Ryerson’s program). And it and the LLP help to divert attention from the reality that not all articling positions are equal, with some constituting excellent mentorship experiences and others not so much. The difficulty of finding articles is not new: in 1948, following the return of soldiers from war, “Students scramble to find articling positions. Some firms take on extra students but have little for them to do, while others that are short on juniors or support staff use them as cheap labor. Some students and firms resort to sham articles“. More recently, but still about 35 years ago, articles were tough to find for some students when I was finishing law school in the early ‘eighties, too, and at different times, when teaching or as dean, I heard about articles with no pay or worse, students paying for them.

The Ryerson University Faculty of Law, to open in September 2020 has ambitious goals, including a new kind of law school, no less:

The law is worthy of its name only when constant effort is made to redefine it. Our democracy is built on this possibility, on the idea that we can always think bigger about representation and inclusion.

This is why legal education must be as critical of its traditions as it is transparent about its intentions. It’s why we must continually strive to increase access to justice. It’s why we need a new kind of law school.

It’s time to embrace technology as a means to achieve greater representation. It’s time to advocate for ordinary citizens. (Ryerson Law’s website)

Although it does not explicitly say so, it would not be unfair to describe it as a “trade school”, readying students specifically for practice: it proposes “to train lawyers who can adapt to new trends by concentrating on practice-readiness in all forms“. Graduates will be “technologically savvy and equipped with crucial entrepreneurial skills”. Ryerson’s program “includes a mandatory professional placement, as well as immersive bootcamps designed to teach students everything from coding to innovative business skills“.

Its innovation occurs in the second year: “Intensive two-week modules with lectures in the morning and hands-on mentorship in small student ‘firms’ in the afternoon“. Most of the modules cover standard courses (usually requiring a full term to gain the basics), but two, such as “coding bootcamp” are not. One semester in third year will be a placement (again, not necessarily novel), while the other semester allows students to select from electives offered at many law schools, plus “Emotional and Cultural Quotient Bootcamp”.

Two aspects of both Lakehead and Ryerson feature in their desire to stand out: the IPC and the emphasis in other ways on “practice”. Ryerson also stresses technology and “entrepreneurship” and Lakehead prioritizes, among other areas, preparation for “Sole/Small Town Practice”. They do not claim to prepare students for any kind of practice or for a career that uses law other than practice; they do not pretend to prepare students for all purposes.

To some extent, their curriculum and mandates are different from other schools, but in other ways, they are not as different as it might seem. All schools provide certain kinds of practice skills and offer the opportunity to learn others. The University of Calagary, where I was dean some dozen years ago, emphasized “practice” when it opened and nearly 45 years later was still making that one of its claims to fame: “Experiential education involves learning by doing. It occurs inside the classroom and out, but it has been at the core of the faculty’s ethos since 1976.” Its curriculum is, however, less different from other schools than the claim might make it seem and it has a high number of mandatory courses. Many schools stress their “experiential” component and offer clinical experience to their students, as well as other forms of “practice” opportunities. And schools are pleased to promote, as does the University of New Brunswick, where I spent nine years, “a strong emphasis on career readiness“.

Osgoode Hall Law School emphasizes that only it “can deliver a legal education that combines a rigorous academic program with a range of experiential learning opportunities.” (Indeed, I enrolled in the Family Clinical Program when I was a student there and consider it one of the most valuable courses I took, although it doesn’t exist now.) The University of Toronto Faculty of Law “values experiential learning and provides myriad opportunities for students to roll up their sleeves and help people solve their legal problems“. The University of Victoria Law School boasts that it has “the largest number of clinical placements per student in the country“.

And every school, particularly perhaps, although not only, the smaller ones, have sought to establish their niche areas. The Law School at Thompson Rivers University in British Columbia has a “focus on law and technology, and 21st century law practice“. The Ottawa Common Law program offers several focus areas, including Aboriginal Law and Technology Law. The University of Windsor Faculty of Law considered its major focus from the beginning to access to justice, now slightly qualified to refer specifically to relationships with Indigenous peoples. At the same time, access to justice and Indigenous law are features at a number of law schools.

Big or small, all law schools seeks to distinguish themselves from the others; nevertheless, they all offer a similar first year curriculum, although they differ in the extent to which the upper year courses are mandatory, and, of course, in how many and how varied their elective courses and other options are. I have always believed that law schools should offer a complementary mix of substantive courses, theory, access to justice and “practice”-type courses and opportunities. But I also have believed that law schools, as university faculties, are primarily a place where students learn how to analyse, develop critical skills, come to appreciate the crucial place law stands in our democratic system, while also understanding how it can be used oppressively. For those students who intend to practice, post-graduate training should provide a “hands-on” experience (although I did not think I would practice, I did article and was fortunate enough to have had a worthwhile experience that assisted me in the different law paths I travelled). Ryerson anticipates it will “create a new kind of lawyer – one who will be technologically savvy, a driver of the new economy and equipped with the diversity of perspectives required to be a champion for ordinary citizens“.Who could argue with that as a goal in a consumer-driven world?

Now, universities are increasingly challenged by the need to prepare students for specific forms of employment, often ignoring that the skills I listed above prepare people more readily for an ever-changing workplace better than training for existing jobs or jobs we believe are on the horizon. This does not mean that students should not train for specific jobs; that is why we created other institutions that could focus on this. Most law schools are really not different in the need to appeal to students who want to be “ready” for employment, although they have tried to combine the academic and the practice or experiential elements in a way that continues to respect the “philosphy” of law (defined broadly).

Lakehead and Ryerson have taken the notion that there should be significant emphasis on practice a step further, by combining the undergraduate legal education with training specifically required for practice, whether through articling or, in Ontario, the LPP. Thus the two schools can be said to be in stark contrast from most other English-speaking schools (as well as the French-language common law programs in New Brunswick and Ontario) by explicitly identifying themselves as schools that emphasize the law as a “trade” (although they might prefer the term “profession”).

In doing so, they have taken us back in part to the beginnings of academic legal education (as opposed to the practice of clerking with a principal that constituted the first form of legal training). Given the integration into their academic programs of the ICP and particularly given Ryerson’s future model of second year lectures in the morning and “hands on mentoring” of student law firms in the afternoon, it seems that everything old is new again. In 1889, the Law Society of Upper Canada (now (re)burnished as the Law Society of Ontario), established Osgoode Law School on the site of Osgoode Hall (the courthouse), with students attending lectures in the morning and working in a law firm in the afternoon (the difference being that these were actual law firms, not student virtual firms). A history of Osgoode Hall Law School notes that in 1935,”The Law Society’s Committee on Legal Education recommends that there be no expansion of the academic program and expresses regret that a university degree appears to be of more value than practical experience.

A few years ago, Harry Arthurs suggested three “visions” of law schools:

The first sees their primary, if not their sole, function as producing “practice ready lawyers” for today’s profession. The second proposes that they should produce “tomorrow’s lawyers,” lawyers with the capacity to adapt to the rapidly and radically changing circumstances of legal practice. And the third insists that the leading role played by law schools in the creation and transformation of legal knowledge, legal practice, and the legal system requires them to provide their students with a large and liberal understanding of law which alone will prepare them for a variety of legal and non-legal careers and for participation as citizens in the broader economy and polity. (“The Future of Law School: Three Visions and a Prediction“, Alberta Law Review, (2014) 51:4, 705).

The introduction of the IPC to substitute for articling (and for the LPP) raises the question: will some schools be viewed as “trade” schools, while others will be that mix of academic and experiential that allows them to “produce tomorrow’s lawyers” and a small number (if any) will be known as preparing their students for a broader relationship to societal institutions that allows them to take a significant role in critiquing where our society goes off the rails? will the first provide the option for future lawyers whose only interest is a relatively pedestrian legal practice that is hardly likely to reflect the excitement promised by their law school’s website? will the second provide the kind of education that most thoughtful lawyers require? is the last too “elite” for today’s society?

Arthurs had his answer to these questions. After touring through the three ways of thinking about law schools, as well as the factors that help determine their direction, he concluded that in 100 years, “When this law school [the University of Alberta, where he gave the paper] celebrates its bicentenary in 2113,when speakers look back on its second century of accomplishment, they will mention distinguished scholarship more often than skills training, they will mention its long-term contributions to the public good more often than its immediate influence on present-day legal practice, and they will mention its role as an agent of change more often than its role as a faithful purveyor of conventional wisdom.”

There can be few “great” law schools. But there can be many schools who think they have the edge on what their graduates will need to know and the skills they need to have acquired not only when they graduate, but in the future.And so perhaps we have reached a point for now (who knows what will change in the future?) when we acknowledge that most schools will be best described as fitting into Arthurs’ category two, with some on either end of the continuum: the (effectively) journeyperson schools at one end and the “academic” schools that cherish scholarship at the other. I was grateful to attend Osgoode where I had access to both academic and practice-type options; this combination seemed to me to acknowledge most satisfactorily the nature of the profession of law. In my career, I have followed both paths (as professor and (I hope) scholar and as tribunal member).

Law plays too significant a part in how we structure society; how, despite its own abuses, we challenge attacks on the institutions basic to our system of government; and in protecting those maligned by those in power for legal education to be defined predominantly as playing to the crowd.

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