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Critics clash over role of law schools
By Nora Rock
December 12 2008 issue

Professor David Chavkin of the American University Washington College of Law speaks at Ryerson University on Nov. 25.  Photo courtesy of Ryerson University

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If the goal of medical school were to teach students not how to be doctors, but how to think like doctors, would you want to be a graduate’s first patient?

Professor David Chavkin of the American University Washington College of Law put this question to attendees at a symposium about the future of legal education hosted by Ryerson University on Nov. 25.

The curriculum being delivered in today’s law schools and its relationship to the demands of modern legal practice were scrutinized by speakers including Michael Bryant, Ontario’s minister of economic development, who noted the trend toward self-representation in our courts. “Over half of the people in Canada, when faced with a legal problem in their lives, have no idea where to turn,” said Bryant, who expressed the related worry that many of today’s law graduates emerge from law school ill-prepared to meet the needs of average Canadians.

While the Ryerson symposium’s intended focus was on future directions in education, attendee Noah Aiken-Klar, national director of Pro Bono Students Canada, pointed out that our legal community faces a chicken-and-egg style dilemma: while law schools struggle to recruit and train a more diverse student body, dysfunction in the profession causes attrition that hits non-mainstream lawyers — women, lawyers with disabilities and minorities — hardest.

Two factors — the Law Society of Upper Canada’s latest redesign of the lawyer licensing system, and recent calls for the abolition of articling — have put pressure on law schools to provide the practical, “lawyering” training that articling and the Bar admission course were once intended to accomplish.

Many academics have been vocal in their resistance to this pressure: when he attended a meeting of the Council of Law Deans to discuss proposed new — and more skills-focused — accreditation standards, John Hunter, president of the Law Society of British Columbia and chair of the Federation of Law Societies Task Force, received a chilly reception: “it was sort of like appearing before the Supreme Court of Canada with a case that the judges didn’t like — except instead of having nine judges asking me why I was there, I had twenty or twenty-two deans asking me what I was doing there, and why didn’t I just go home.”

Among the reasons for academics’ resistance to practice-focused accreditation standards is the argument, voiced by Professor Harry Arthurs of Osgoode Hall Law School in his written response to the Federation’s proposal (see below), that new lawyers don’t need the Federation’s “framework competencies,” but instead a liberal education that prepares them to “absorb new information, adopt new approaches and develop new concepts” so that they will be prepared for evolution in the practice of law.

In the U.S., it seems, some schools have been more willing to contemplate a greater integration of theoretical and practical curriculum elements. Professor Chavkin, who hails from the law school with the U.S.’s largest clinical legal program, is one of 26 tenure-track clinical educators at the school. He noted that the American Bar Association “has adopted a resolution that says ‘we’re talking about integrating theory and practice, but we don’t have to re-invent the wheel: it already exists in clinical legal education’.”

Clinical education programs like Chavkin’s reflect the influence of the Carnegie Foundation Report on the Education of Lawyers, a 2007 U.S. study that suggested that most law schools lack a sufficient emphasis on teaching lawyering skills and providing a solid grounding in professional ethics.

The City University of New York (CUNY), noted Professor Douglas Ferguson at the University of Western Ontario faculty of law, has taken notice of the Carnegie report and prides itself on a diverse, urban student population and a progressive approach to the delivery of legal services. CUNY has responded to student demands for a stronger practical education by creating a program that draws on content from its traditional core law courses to build exercises used in compulsory “lawyering” seminars that are required in first and second year and a compulsory clinical component in third year.

Ferguson ended his review of the implications of the Carnegie Report with a provocative question: “if law schools in Canada adopted this integrative approach to legal education, would that allow for the abolition of articling?”

The prospect of an end to articling worries academics like Professor Annie Rochette of the Université du Québec à Montréal, whose research into teaching techniques in Canadian law schools suggests that law professors are “not very creative” and have a poor understanding of the mechanics of learning. Other research, conducted by a team including Carissima Mathen of the University of New Brunswick, suggests that Canadian law students have a growing appetite for the “outsider” courses — like Aboriginal Law or Prisoners’ Rights — most at risk of being squeezed out to make room for a skills-based curriculum.

Arthurs cautioned, however, that resistance to a skills-focused legal education cannot always be dismissed as elitism or traditionalism. Arthurs cast a different light on the law school/medical school comparison made by Ferguson by pointing out that law schools — like medical schools — have an obligation to turn out three kinds of graduates: not only skilled practitioners, but also “laboratory scientists” (in the context of law, researchers and intellectuals) and critics who will champion minority interests and the public good.

Acknowledging Ryerson’s stated interest in establishing a new law program, Julia Hanigsberg, general counsel for Ryerson argued that “what’s not needed, right now, is another law school that looks like every other law school. As Toronto’s urban university, we’re very connected to this city. We see the creation of an innovative law school as central to our mission, which is to serve societal needs.”

Ontario law society backs competence requirements

By Thomas Claridge

Law Society of Upper Canada (LSUC) benchers have overwhelmingly supported requiring law school graduates to demonstrate their competence in core areas before they are admitted to the Bar.

The benchers voted 44-4, with four abstentions, in favour of a submission to the Federation of Law Societies recommended by LSUC’s task force on licensing and accreditation, which suggests all prospective lawyers in common law jurisdictions should demonstrate competency in seven key areas rather than merely show that they have successfully completed specific law school courses.

Although no priorities were given, the submission’s main requirement appeared to be competence in the “foundations of Canadian common law,” including “the doctrines, principles and sources of the common law, how it is made and developed, and the institutions within which law is administered in Canada; contracts, torts and property law, and criminal law.”

The second area cited was Canada’s constitutional law, “including principles of human rights and Charter values and Canadian law as it applies to Aboriginal peoples.”

The other five areas of required competence were principles of statutory analysis, principles of Canadian administrative law, legal research skills, oral and written communications skills specific to law and “professionalism and ethical principles.”

The submission was introduced to the benchers by former LSUC treasurer Vern Krishna, who in addition to chairing the task force is a member of the federation’s “Task Force on the Approved Common Law Degree”. Its main conclusion is similar to that reached by the federation task force in a consultation paper released in September.

Krishna conceded that the submission was not unanimous, bencher Constance Backhouse having held that a “foundational competencies” approach failed to recognize that the practice of law is multi-directional, fluid and that the pace of change has never been so fast.

Although Krishna and Backhouse both teach law at the University of Ottawa, she supports a position taken by Harry Arthurs of York University’s Osgoode Hall Law School that the list of “framework competencies” proposed by the federation task force was based “neither on historical or current evidence of what lawyers actually know or do, nor on evidence-based speculation about what they will have to know or do in the future.”

Arthurs said what the federation task force termed “foundations of the common law” — torts, contracts, property and criminal law — “are not foundational in any historical sense: until the mid-19th century, contracts were mostly litigated outside the common law courts; torts was unknown as a unified field of doctrine; common law property concepts applied only to the tiny fraction of the population that held land in fee simple; and common law criminal law — administered largely by lay magistrates and in the absence of counsel — was transformed by statutory reforms and later, by legal aid.”

He found no evidence to support the proposition that the “framework competencies” identified by the task force described the “actual base of knowledge and skills common to all legal practitioners...”

Arthurs said the task force had neglected the clear implications of the point that lawyers “are no longer omni-competent; they either practise as specialists; or they do relatively routine work in general practice settings requiring limited foundational knowledge of several fields; or if they are true generalists (e.g. as litigators) they do not need subject-related competencies but rather the capacity to educate or re-educate themselves in law or other fields as circumstances require.”

He observed that today’s lawyers often must adapt to change “without formal training, or at most with obsolete training, in the fields in which they practice; those who succeed do so because they have the ability to absorb new information, adopt new approaches and develop new concepts — the hallmarks of a liberal education that pass unnoticed by the Task Force...”

Requiring students to acquire the framework competencies “will — or at very least should — set in motion a chain of consequences that will ultimately transform the governance of the profession,” he said, contending that governing bodies have until now essentially refused to test the competence of their current members “or even to disbar them for demonstrated lack of competence.”

Arthurs also argued that articulating a list of required competencies would not facilitate one of the task force’s objectives, that of ensuring fair treatment of graduates from foreign law schools. He observed that few of those applicants would have prior exposure to Canadian constitutional law, adding that they would “share this deficiency with Canada’s leading constitutional scholar, Peter Hogg.”

He also contended that the recommendation would constrain innovative developments in legal education and pose a future threat to the autonomy of law schools.

Arthurs said a preferable course would be to “formalize and legitimate the status quo” and support greater autonomy for law faculties.

Although supporting the competencies approach advanced by the federation task force, the LSUC submission suggested that three of the proposed compentencies in the consultation paper need not necessarily be acquired in law school, those of “equitable principles, including fiduciary obligations, trusts and equitable remedies; business organization concepts, and dispute resolution and advocacy skills and knowledge of their evidentiary underpinnings.”

The federation task force has asked that written comments on its consultation paper be submitted by Dec. 15 so that its final report to Federation Council will be ready by next spring.

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