Eric Grigg

Several times in the last few weeks I, and other budding law students, have been reminded that the future is bleak. For some, it is a collapsing job market. For others, it is a profession that is systemically broken. Yet for some it is the law schools themselves that are the subject of scorn.

Call me an optimist, but I’ve never been one for apocalyptic prognostications. It is not that the end isn’t nigh, relatively speaking, but rather that such soothsayers have a horrendous track record when it comes to actually pinning down the date. In fact, if I were a betting man (which, indecently, I am not), I’d put the odds against them every time.

This isn’t a matter of ‘thinking positively, and it will all turn out.’ Indeed, if things continue unaltered, they probably won’t turn out. What is the case, however, is that the choice facing law school administrators today should not be one of merely more of the same, but with clinics, as if a few more hours handling small claims files will teach you how to run a practice. If, then, the naysayers are right, the choice is between the high road or the low road, with little in between.

Criticisms

Before we can talk about solutions, though, we should probably understand the problem. First, and foremost, there is the charge that the legal scholarship produced by tenured law professors is fundamentally disconnected from the day-to-day practice of lawyers. Now, having limited exposure to both said theory and said practice, my comments on this matter should be taken with a grain of salt. What I can attest to, however, is that the majority of assigned readings in my honours seminars on contemporary political theory (neutrality and perfectionism and liberalism and toleration) were written by, ostensibly, legal theorists. This is not to say that such questions don’t necessarily contain legal aspects or implications, but it does demonstrate how such work is not as purely ‘legal’ as some of its critics would like.

Second, there is the complaint that law schools focus too much on providing a ‘liberal’ education and not enough time on providing the ‘professional’ skills need to actually lawyer. While it might be worth probing the distinction made here, and the assumptions that underlie it, what is at issue at the moment is what kind of institution a law school is meant to be. This gets to the heart of the criticism that law schools have been attempting to respond to, it would seem, through the growth of clinical programs.

The final criticism I will mention here is the non-US problem of the shortage of apprenticeship positions available to new law graduates (I use apprenticeship so as to include the UK experience as well). While this is not a comment on the law school curriculum directly, the implicit concern is that if there are not enough positions in which a law graduate could learn the necessary skills to practice, then why not abolish the apprenticeship and shift the burden to the academic phase of their training. Furthermore, there is the insinuation that law students aren’t learning all that much of value at law schools anyway.

J.D. v. M.D. – What’s In A Name?

Those familiar with the history behind the American shift from the Commonwealth standard LL.B. to the, now contagious, J.D. designation will know that it was a, more or less, conscious effort to emulate the medical profession. Some have drawn the connection even closer by arguing that if one were to look for cutting edge, practical work in each of the two respective fields, then one would be quite disappointed if one had chosen to search in the vaunted halls of the t14. The assertion is that, as we saw above, law schools, unlike medical schools, are simply out of touch with their profession. The analogy, however, misses one crucial point.

That is, medical schools create doctors, surely enough, but they do not create medical practitioners. The point of the distinction is to note the (prolonged) period of apprenticeship required by, an otherwise fully qualified, doctor in order to practice medicine in their own right. In turn, this point of distinction is to draw attention to, particularly the American, but also the Canadian practice with regard to law students and lawyers. The practice with M.D.’s clearly indicates an acceptance on the part of society that, given the complexity of the subject, no amount of class time can substitute for an extended immersion in its practical application. J.D.’s, to the contrary, are expected to function with little (the Canadian approach) or no (the US approach) practical experience in the practice of the subject at hand.

A Fork in the Road?

It would seem, then, that the problem is not so much with the requirement to do three years of law school on top of a four year undergraduate program (the de facto if not the de jure requirements). Indeed, the problem is not with the schooling at all, but the lack of practical training provided to would-be lawyers. As such, it is the legal profession that must take the lead in deciding just what kind of profession they want to be before they can expect the law schools to oblige them; the law schools simply cannot aim at a moving target.

The first option for the profession would be to adopt the medical model more closely and arrange for longer (or any, as the case may be) on-the-job training programs. In effect, J.D.’s would get a similar kind of residency as their ( however distant) medical cousins. This would then in turn imply that the legal profession, and our society as a whole, genuinely feels that the body of law which lawyers manipulate, and the operation of their practice, is comparable in its complexity to the body that doctors (i.e. medical practitioners) manipulate. Do not misunderstand me, there are, and will forever remain, stark differences between the two professions, but purely in terms of practical training, I think there remains something to be learnt as well.

The second option would be to do away with the second-entry requirement entirely and adopt a model more akin to the current English and Welsh practice or the practice of other professions. For example, in Ontario becoming a Chartered Accountant requires (at least) an undergraduate degree with the requisite courses, passing the necessary exams, and somewhere close to two and a half years of supervised experience. Similarly, to become a certified Professional Engineer requires an undergraduate degree in engineering or applied science, passing the requisite exams, and four years of supervised practice. There are other direct entry professions, but these two provide a sufficient example of an alternative approach to legal education and licensing.

Where To?

The question seems, then, which of the two routes that should be taken. Personally, I don’t see the practice of North American legal education adopting the English (and Welsh) model anytime soon. Rather, I’d bet (and remember, I’m not a betting man) that, if anything, it would move toward the, for a lack of a better term, ‘medical’ model (and, for what its worth, Mr. Furlong doesn’t disagree). Or, at least, I hope it does. What is clear is that the current model satisfies no one – not students, not employers, and, probably, not even professors. If a change happens at all, the only question will be how long it will take and who will push for it.

What do you think? Does legal education need change and, if it does, in which direction? Or, perhaps, I’m totally out to lunch – I’ll leave that up to you.

Cross-posted on LawIsCool.com.