Part Two: Making it Real – A Legal Education in the Public InterestNSRLP
Part One of this blog (The End of a Love Affair? Why I Despair About Legal Education) was pretty bleak. It articulated my frustrations with the disconnect between legal education and the realities of legal practice and client service, and our slow steps towards meaningful change.
It also clearly resonated with many of you whom I heard from last week.
In that earlier piece, I highlighted three fundamental disconnects:
- Law school classes rarely describe or simulate the work that lawyers actually do. This includes neglecting discussion of the dramatically changed context of legal practice in the 20 years (e.g. the decline of trials, record numbers of self-represented litigants).
- Clients are invisible in law school. As a result, the translation of legal rights and remedies into actual services (especially in light of the unaffordability of legal services for many Canadians) is also off the agenda.
- Law students (who are primarily focused on getting a job) and law faculty (who are primarily focused on publishing research) live in parallel but separate universes.
In Part Two, I want to start by acknowledging initiatives that do make these connections. The last few years have seen an uptick in the number of externships and clinical programs in Canadian law schools. A few examples: the curricular and extra-curricular work being done by the clinics and intensive placements offered at Windsor Law and Osgoode Hall Law School; the projects of Pro Bono Students Canada; the Family Law Incubator at the University of Calgary; and the Law Apps course being pioneered by Professor Katie Sykes at Thompson Rivers University. These and other examples from around the country are authentic and valiant efforts to connect legal education to reality.
But praiseworthy as these types of initiatives are, they are the exceptions that prove the rule. Many struggle on a shoestring with short-term resources, and as a result lack strong pedagogic models for supervision and deep reflective learning. They are not changing the deeply rooted norms of legal education – evidenced by the fact that they remain counter culture.
I want to focus today’s blog on how we make systemic changes in legal education. Because legal education needs a fundamental realignment, not tinkering around the edges. And that requires changing the experience for all – and not just some – students, and the commitment of all – and not just some – faculty.
What does not represent systemic change in legal education
Let’s start by getting clear about the difference between systemic changes in the norms of legal education, and tinkering around the edges. While individually admirable and important, initiatives such as the following fall into the latter category:
- The “special class” model: having an “expert”, “expert panel” or “practitioner” drop in on law school classes for a 30-minute overview or a “one-class special” on some aspect of practice.
- The “radical research” model: research institutes/ talking shops / conference series that engage or employ a handful of law students (for example, the University of Toronto’s Middle Income A2J Initiative; the Saskatchewan College of Law’s A2J Working Group; and indeed, the NSRLP).
- Clinical and externship initiatives that are seen as a place for “students outside the mainstream” to “go play”. For example, the Windsor Law Mediation Clinic, 1996-2012; the Public Interest Law Clinic at the University of Calgary; and other for-credit and extra-curricular clinical and externships programs.
I have tried each of these approaches in the last 30 years, some of them many times over.
The capacity of such endeavors to influence the delivery of the broader curriculum, the blissful client-free bubble in which most of the law school floats, and general student knowledge of the realities of legal practice, is minimal.
So if you are presently involved in such projects – please don’t stop. But please be realistic about the impact of your labours. And let me urge you to set your bar higher, and to lobby for real change that affects how all student learn in law school.
What would systemic change require?
I believe that the systemic change we need in legal education requires us to accept four propositions:
- Law school in North America is for students who want to be lawyers
True, some will decide a legal career is not for them during the course of those three years.
Others will find a creative way to utilize their legal knowledge in the service of another profession.
But the reason that the vast majority of law students take out huge loans in order to go to law school is to practice law. It is the obligation of law schools to honor that, or to explain to students in their marketing materials that the law school has a different vision for what is good for them to learn in those three costly years.
For those who believe that accepting this will mean the intellectual dilution of legal education with a trade school mentality, I would say – this is an unsustainable dichotomy. Legal education is inevitably a complex mix of theory and practice, and all theory is not an acceptable training model.
- Legal education should equip lawyers to work in the public interest
This is the “bargain of self-regulation” – “to maintain the privilege of self-governance, the public interest must always be of paramount concern to the Law Society(ies)”.
This means that law schools should offer instruction by full-time faculty in the areas of law that are important to ordinary Canadians. Subjects such as family law, real estate/ residential tenancies, wills and estates, and criminal law – and to a somewhat lesser extent employment law and human rights – are their most common points of contact with the legal system. Law schools need to demonstrate that the importance of areas of law that touch the public directly and often, by appointing dedicated and experienced faculty to teach these topics, full-time teachers (rather than adjuncts) who can show leadership in addressing the public’s need for legal services in these areas, and identifying changing practice norms.
Accepting this proposition also means that law school must tackle exactly how legal services can be provided to ordinary Canadians – including but not limited to corporations and businesses. This means weaving into every course a discussion of ways to structure legal services to make them financially and practically accessible; working through a menu of common tasks undertaken in that practice area; and considering how to expand access and enhance service.
- The primary mission of law schools in Canada is teaching, and the secondary mission is research
The reverse assumption is messing us up, big time.
It is turning areas of promise that espouse Access to Justice issues into abstract, unusable theory courses.
The first obligation of law school faculty is to teach. Of course (!) I believe that research is important – but it cannot be allowed to overwhelm the provision of a practical, relevant, foundational legal education taught in a way that enables new law graduates to experience something other than rigor mortis the first time they meet with a client, or attend on a motion or a judicial settlement conference.
Some law schools may protest that faculty members are unwilling, or unable, to teach their area in a practice context.
Unwilling? See the discussion below about faculty recruitment.
Unable? We are not talking rocket science here. It is perfectly possible to teach simple, basic tasks and the skills required to complete them – drafting a claim, a contract, interviewing a client – as well as describe a variety of financial delivery models – without an extensive practice background. The key is recognizing the ability to translate knowledge into a practical context in the classroom as a critical qualification for new faculty.
Other professional schools including business, engineering and health (nursing and medicine) are light-years ahead of law schools in recognizing this necessity and in the use of class-based experiential learning models (look for a future blog by NSRLP Research Assistant Gurleen Gill who has been through both systems and who will compare her medical training with her legal education).
In hiring new faculty, a critical factor should be willingness to commit to teaching, and to teaching in a practical context. Next time there is faculty recruitment in your law school, consider placing candidates’ pedagogic skills and interests – in teaching their specialist subject (plus at least one of the core subjects that are most significant for providing public legal services) in a practical as well as an intellectual framework – front and centre in hiring criteria.
- Emphasizing teaching information over principles and application is a waste of student time and money
Even before the Internet (if anyone can remember that), the amount of time we spent in law school pumping information into student heads was ridiculous. By the time I graduated law school, at least 50% of what I had memorized in labour law the year before was obsolete (her name was Margaret Thatcher and she didn’t like trade unions). The World Wide Web makes the teaching of a stored repository of information even more pointless.
Most law students will tell you that they cram for two or three weeks before the exam because that is all it takes to pass. It’s remarkably unchallenging. Let me breach a final protocol here and say the unsayable – legal knowledge is just like any other form of knowledge. Its not “special” any more than anatomy or physics or literature. Its informational knowledge base is a system like any other system of knowledge.
Learning the basic principles of a core subject does not need to take 10 weeks of teaching if we can drop our compulsion to cover topics by including enormous numbers of appellate decisions. Instead what law students need to learn is how to identify and locate up-to-date information, not how to memorize the status quo – the rest of their time would be much better spent learning how to analyze pertinent information and apply it in practice.
What would systemic change look like?
If we adopted these 4 propositions, we would do the following:
- Provide supportive orientation and training to new faculty so that they could learn how to teach (and value learning how to teach).
- Equip all law professors to include in their courses: (i) the context of legal practice in the area they are teaching (settlements versus trials, working with clients, self-represented litigants, etc) (ii) basic information about possible financial delivery models and (iii) student exposure to simple and relevant practice tasks such as drafting, advocacy, client interviewing.
- Encourage and support professors to significantly limit the amount of class time spent teaching information, and refocus teaching and learning on principles and application.
Proposals 1-3 will likely be met with cries of academic freedom. We have long accepted a culture in law school in North America where teachers are unaccountable and teaching is largely (easily fillable paperwork aside) unmonitored. But asking professors to be accountable for teaching in a way that is relevant and practical is not a breach of academic freedom (which is about protecting those with unpopular or marginalized perspectives) – it is about requiring them to step up to their basic responsibilities to their students and to the public interest.
- Bring the work of the law school clinics – which have co-existed alongside the “serious, intellectual” curriculum for 40 years – into the law school. Connect students in all classes to (simulated or live) clients and client service challenges, and to practical ways to deliver those services to the majority of the public that cannot afford full legal representation. This is more feasible than establishing clinical opportunities for every student (although that would be terrific) and is critical to making the clinics and other experiential programs mainstream, not marginal.
- Regularly survey both students and employers about the skills and knowledge they believe should be taught and learned in law school and respond to this (my office is filled with excellent reports from both the US and Canada on how law school can do a better job of training future lawyers; these reports have largely gone ignored).
- Incorporate a pervasive ethical framework throughout all law school classes that questions students about what choices they would make, and why, when faced with common ethical dilemmas arising in that practice context.
- Develop assessment models that provide formative feedback, and ultimately evaluate students on application, practical skills and ethical sensibilities, as well as knowledge. Our continued reliance on three-hour examinations is an embarrassment. This unfairly privileges good test-takers and is a wholly inadequate measure of a student’s ability to provide any legal services in the area – aside from those that rely on recall under stress…
This is not an exhaustive list. But it’s a start. Please add your ideas and comments.
Legal education is currently failing both law students and the public interest. Yet our law schools are filled with talented and dedicated faculty and students. Changing the norms is a serious, complex, long-term endeavor – but it is long overdue.