In Defence of Theory

5 08 2010

I’ve said it before and I’ll say it again: theory is (or should be) an important part of the law school curriculum. This point was once again brought to my attention by a post over at Slaw. Swan is certainly entitled to her opinion, but I must say that I do not agree for two reasons. First, the law-medicine analogy is not always a helpful one and second, a non-academic faculty of law sits awkwardly inside a large, research intensive university.

Of Law and Medicine

I do agree with Swan that analogies between the study and practice of law and the study and practice of medicine can be helpful. I do, however, think they can also be rather dangerous. For example, there are certain basic truths about the human body that, once learnt, will remain true forever; barring any radical changes in our genetics, of course. The same, by and large, cannot be said of the law. It can and does frequently change and this is true of even its most basic elements.

This poses a problem for law schools attempting to prepare would-be lawyers. Should these students be taught material that will be out of date before they even graduate if not sometime thereafter? It might be argued that there are breakthroughs in the life sciences all the time and that the practice of medicine has changed radically in the last 20 years alone. While this is true, I would argue that there still remains a fairly stable foundation that medical school can teach in terms of facts and procedures that will continue to serve a doctor well, even if the tools or techniques change with time.

In this respect, I think theory plays a vital role in any law school. First of all, it serves as a foundational topic upon which to build an understanding of otherwise disjointed and, at times, arbitrary subjects. Second, and perhaps more importantly, it prepares soon-to-be lawyers for thinking about the law. Given its changeable nature, it seems only right that the emphasis of a legal education be upon learning how to think and understand the law rather than learning particular statutes inside and out.

Faculty or Trade School?

It is not at all surprising that faculties of law have been drifting more and more into theoretical or, perhaps, academic waters as of late. Given the tendency across Canada for law schools to exist only at what are, in the Canadian context, major research universities, it is rather unsurprising that they are drawn into emulating the methods of other disciplines. This may also be a product of the fact that most law school students today have already completed an undergraduate degree in a more traditionally academic faculty. One important fact also remains, however, and that is that the education that leads one to be called to the bar in Canada is billed as a university level course, whatever the final degree is actually called.

With this in mind, then, it is surprising that so many commentators think that law schools should be less theoretical, less abstract. Instead, they argue, the focus should be on practical skills and doctrine. In some respect, law school should be more like other ‘professional’ schools with, perhaps, business school coming most readily to mind. Though many of these professional schools sit somewhat uneasily in the university environment, some would argue that we as a society have made our peace with that.

Again, I think this model of ‘professional’ schools falls apart when you leave the applied sciences such as engineering and the medical-related professions. The topics in these courses are both intellectually challenging and demonstrably practical. They solve real world problems, every time. Softer, human created subjects like law and commerce less obviously lend themselves to the same kind of study. For them, the practical is not, or so I’m told, all that intellectually challenging while what is does not pass the test of practicality. In short, you risk ending up with a sea of paralegals out of which the occasional ivory tower looms. The lawyer, I think, should sit somewhere between these two extremes and, I think, that is what a theoretically driven, but not dominated, legal education delivers.

Conclusion

Another thing I’ve said before and also that bears repeating is that it is not law schools that must become less theoretical, but it is articling that must become more practical. True enough the 10 months spent articling involve learning the practice of the law by observation and handling small matters with the supervision of a mentor. That said, it is only 10 months. While it is certainly the case that every lawyer, no matter how senior, is always learning, it is also true that few feel fully confident to practice with only 10 months under their belt, whatever the law society proclaims to the contrary.

To go back to the law-medicine analogy, I think one of its more helpful applications is to consider not law school vs medical school, but articling vs residency. The latter is a much longer and more involved process than the former and perhaps it is that which we should learn from those medical types.


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Theory or Practice: Law School’s Dilemma

22 07 2010

I had a conversation with two of my fellow former first year law students recently. While beginning casually enough, the conversation quickly turned to whether law school should really be three years long. In cruder terms, whether we should be half way done rather of only a third. This is a common enough complaint in the US, but for several reasons I don’t think it is applicable here. The reality remains, however, that there is a palpable tension in Canadian law schools today. An identity crisis of sorts: as institutions of academic and theoretical rigour or as trade schools whose sole purpose should be to teach you the practical skills you need to know as a lawyer. There is no obvious answer, but I do think there are good reasons to prefer the former to the latter.

Arguments Against the Three Year Law School
The first charge that is often levied against Canadian law schools is that they take too long to complete. The concern is that most first year students in competitive programs already have a full, four year bachelor degree under their belts. Law school adds at least another three to that and a fourth once you count bar exams and articles. I must admit that I have some sympathy for this position. Eight years is a long time and, if you do it back to back, you end up a 25 year old who has never held down a real, full-time job (summers don’t count, you see). After all, a quarter century is an awful long time to spend preparing for something.

The concomitant argument is one from opportunity cost. The three to four years law school adds to the equation include both forgone wages as well as costly tuition. Government loans and bursaries cover a lot of the tuition, but private loans are often necessary for living expenses and that does not even take into account the lost wages. This argument has more or less force depending on what kind of background each particular law student has. The cost in forgone wages for a BA in English, for example, is likely much less than one with a BSc in a hard science.

The third argument is from the inapplicability of most of the law school curriculum to legal practice. Many transactional lawyers, for example, will never think of torts again and the vast majority of lawyers in private practice will likely never see a Charter or criminal case if they don’t want to. And yet, these are subjects at the core aspect of the curriculum. I am not in a position to assess this argument’s merits just yet, but my suspicion is, given the amount of choice afforded to students during the course selection process, that the inapplicability of any given student’s course load may have more to do with their own selections than with a grand conspiracy to milk a third year of tuition out of them.

The Difference Between Us and Them
A lot of these arguments are most vociferously espoused by our Southern Friends. There are, however, significant differences between their law school experience and our own. These differences, I think, tend to mitigate against the arguments above. For example, $15 000 for tuition in Ontario is quite different from $42 000 at a Tier 1 (but not T14) law school in the US. Over three years that adds up to $45 000 in Ontario as compared to $126 000 in the US.

Articling attacks these arguments at a different point. Its existence tends to lessen the need to learn practical skills in law school. Sure, your Articling Principal will be happier if you can actually handle a Small Claims Court hearing, but she is also, or should be, expecting your 10 months to break even at best: after all, you are not even fully qualified. Not so in the US. Three years of law school and a brutal bar exam later and you are fully qualified whether you have any piratical skills or not. As such, it makes sense that when a firm hires a new employee they expect that employee to be qualified for the job. Thankfully, that is not yet the case here.

In Defence of a Theoretical Law School
If you haven’t heard a law student say that area X doesn’t make sense, is arbitrary, or is simply archaic, then you haven’t spent much time in a law school. A lot of that sentiment, I believe, is bound up in the fact that most law school courses teach you the law just fine, but they do not attempt, by and large, to get deeper into the problem and explain why the law is the way it is. Now, this might be question begging: not everyone agrees there is a reason why the law is the way it is. Many, in fact, believe there is no rhyme or reason. The law is what it is either because of historical accident or because it is cobbled together by hypocritical judges based on what they happened to eat for breakfast that day.

This is neither the time nor the place to tackle that particular debate, but it does get at an issue that my first year property professor loved to remind us of: theory drives practice. Many scoffed at the time, I assure you, but I don’t think he was wrong. What do we do when we are faced with novel situations? Usually, we try to draw analogies. In doing this, however, we tend to abstract away from the particularities of that particular case to come to general propositions which we can then compare to the new situation. The system of precedents is really just an interlocking web of these generalizations. They connect and impinge on each other in unintended and sometimes surprising ways. Even if we accept that this web is merely the creation of historical accident, we can still attempt to understand its larger structure and how it fits together instead of examining each node of the web individually. In so doing, we often lose the forest for the trees.

Something law students also tend to forget is that judges are not the only ones engaged in fashioning the common law. Cases only go to court and their facts and arguments only get to the judge’s attention because some lawyers got involved. The fact is judges don’t make decisions in a vacuum. Rather, they decide between two competing arguments; arguments fashioned by lawyers. The fact that lawyers do not write the judgment should not in any way denigrate the lawyers’ contribution. How they are to contribute, however, is beyond me if they do not understand the broader picture and the context in which they are arguing. This is especially true on appeal. Very often you are no longer arguing about what the law is, but what it should be. If the law is not to be arbitrary, then, its contributors must take it upon themselves to establish the coherence they themselves so badly want.

In the Alternative
If I am wrong, and theory has no place in Canadian law schools, then I believe we are forced into accepting the consequences of a rather modest proposal: bifurcating the profession. A common argument in favour of a shorter law school duration is the experience in the UK. If they can get all the academic training they need in three years, at an undergraduate level no less, then surely we do it in fewer given our relatively advanced academic standing.

This, however, overlooks one vital difference between our system and theirs: solicitors and barristers have very different career paths. While it is true that this distinction is being eroded, it is also the case that the UK has a somewhat more relaxed approach to legal advice in general. With those two facts in mind, then, it is not at all surprising that English lawyers experience a shorter academic education than their Canadian cousins. Add to this a two year ‘articling’ period and the picture is not substantially different. I think the name of one of England’s leading undergraduate law degrees also serves to shed further light on where the English stand with regard to the debate between theory and practice: Oxford’s BA in Jurisprudence.

The only way that I could see us shortening Canadian legal education is if we turned the second, and now terminal year, into a specific Barrister or Solicitor year which would be followed up by Barrister or Solicitor specific exams and articles. I say this because it is not apparent to me how else one could be competent to in all the subjects in which we are currently obliged to be minimally competent in just two years. If, however, we were only required to be competent in half the subjects, then I don’t think that would be such an impossible feat. This, though, would not exactly be a minor change.


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Robert Martin: Vitriolic Beyond Reason

7 07 2010

A friend forwarded a copy of Robert Martin’s polemic about the state of legal education in Canada. Much (virtual) ink has already been spilt over his various arguments since it was published last October in Interchange. I won’t rehash the entire piece, but there were a few key points that caught my eye as particularly egregious. I also feel compelled to comment given Prof. Martin’s links to my law school, Western, in particular.

Quality of High School Graduates

Martin is not alone in his assault on the state of high school education. Indeed, I own a copy of The Dumbest Generation even though I arguably belong to it by most people’s standards. Further, I don’t, or perhaps can’t, dispute that there are many, many ignorant and small-minded people in in my age cohort and younger. That said, I can, and will, dispute the total attribution of blame for this state of affairs to the kids, and now young adults, who make up that generation.

Unless we are willing to accept that something terrible happened to the the DNA of the so-called Dumbest Generation, then we are forced to concede that its members are no less capable than any other generation. This raises a couple of possibilities. First, every generation was just as dumb, but they merely (fortunately?) did not have as many distractions or pressures as youth face today. Second, and more importantly, if these necessarily average youth are not achieving the same levels of education as their predecessors, then perhaps we need to ask about not just the youth, but the system.

This, I think, is where Martin’s argument really falls apart. Youth since the mid-90s grew up in a rather different social setting than they did before the rise of consumer electronics, the internet, and global competition. Those aren’t the only differences, however. Teachers are no longer able to fail students, hand out zeroes, or, sometimes, even assign homework. The emphasis in schools is not on history or English gramar, but on scores on standardized tests. We cannot simply blame the Ministry of Education, though, as the parents – who are, incidentally, from an earlier generation – are just as complicit. In fact, how else do these dumb kids get all their distracting gadgets or afford their brain-melting pop culture media? Even worse, the parents indulge their kids’ slide into ignorance by condoning their skipping of classes and shirking of homework.

Let He Without Sin…

I also found it amusing that in a piece directed so forcefully against the ignorant and the unskilled that Martin manages to provide some altogether mixed metaphors. First, he complains that law schools ramped up their prices in an effort to emulate Wal-Mart. Not the first thing that comes to mind when I think of Wal-Mart, but I suppose the charitable interpretation is that Wal-Mart is a stand-in for the forces of globalization and its tendency toward commodification. I am not feeling terribly charitable, however, given the overall tone of the piece. Civility begets civility and Martin was anything but civil, so I have no compunction about holding him to his words. One thing that has been grilled into us in our first year is that you, the author, are responsible for the meaning of your writing. If the reader has to work for it, then you have failed in your task. With this in mind, then, I would suggest that Martin’s attempt to convey his meaning has failed quite miserably and in so doing, he has shown something rather important: no one is perfect.

There was a second rather confusing section where Martin complains about the Americanization of Canadian legal education and then turns around and complains that Canadian law schools are not even as good as 2nd-tier American institutions. Now, perhaps his point is that we have adopted a certain model and we cannot even excel in it. A sort of “you’ve made your bed, now you have to lie in it kind of argument”; only we aren’t lying in it very well, apparently. My comments above about charity equally apply here. This particular about-face is confusing insofar as it unclear why the so-called Americanization of Canadian legal education is a bad thing and why, if it is a bad thing, we should care that we are doing it differently. You notice I say ‘differently’ and not ‘worse’ as Martin seems to imply. I say this because I don’t think you can really compare apples and oranges, no matter how intelligent or educated you are.

One final point about this particular argument from Martin is that legal education is changing all over the Commonwealth and not just here. Even in the UK increasing numbers of would-be lawyers are not taking undergraduate degrees in the subject. Instead they are pursuing a Graduate Diploma in Law or writing the Common Professional Examination if they aren’t enrolling in two year graduate programs to the same effect. Austarlia, too, is changing with the University of Melbourne shifting to an American-style, graduate-only course of legal education. So, if Americanization is what this change should accurately be called, then Canada is not alone in its experience of it.

Closing Comments

I think my biggest concern with a piece like this is that it will be read out of context. Without an appreciation of what actually goes on inside high schools, undergraduate classrooms, and faculties of law one is more likely to buy what Martin is selling. Again, I use this language purposefully as the whole piece feels like Martin has a grudge that intends to prosecute it by whatever means necessary. Not only is this not particularly honest, it is altogether unfair to those who are, or recently were, in law schools. This latter point wouldn’t be an issue if what he were saying were true – a defence even to defamation – but, arguably, it is not.

My final remark would be that it is very easy to throw stones, but it is rather more difficult to make a constructive contribution. Note quite so difficult, though, for someone who once was a professor in the discipline which he now regards so disdainfully. I find it rather interesting that he waited to publish this rant until after he retired and in a journal that has little or nothing to do with the study of the law.


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Reflections on First Year: Going It Your Own Way

19 05 2010

I have been in a reflective mood since I finished my last first year exam. I am also very aware of that fact that information about the Canadian law school experience is thin on the ground. Most google searches are not of much help to those of us in Canada who wanted to know something about what to expect in 1L. Now, some idea is better than no idea, but you also cannot believe everything you read.

I agree. So, allow me be the first to tell you to take anything and everything you read about first year law with a grain of salt whether it originated north or south of the border. That said, I did manage to survive the last year while earning a place on the Dean’s List, winning, along with my teammate, an intra-school moot, and working on the Faculty journal. So, while your mileage may vary, I do know a little of which I speak.

The Standard Stuff

Now, I’m sure you’ll read everything in this section somewhere else if you haven’t already. There is, I think, a reason for this – it tends to work.

  • Assigned Readings
    • You may or may not have ‘suggested’ readings during the summer before law school. Many people say not to bother, but I think they are useful because, if for no other reason, they make you a little less lost. What’s this business about ‘civil’ law? Or public vs. private? For those that are curious, I discussed Western Law’s suggested readings in a prior post.
  • Do What Worked Before
    • You were at least moderately successful in your undergrad if you’ve made it this far, so why re-invent the wheel? Law school is not your undergrad, granted, but it is still a university environment and you are still tested and expected to write. You know yourself and your process best, so take some time to reflect on what you are doing and whether it is working. If not, tweak it, but unless you are in serious trouble it won’t be worth starting from scratch.
  • Take Fall Term Exams Seriously
    • Often they don’t count or at least they don’t count for much. They are, however, your only real chance to take a law school exam before they do count – for a very great deal. For better or worse, first year marks a hugely important for you 2L job hunt. Even if you aren’t in law school for the traditional reasons, you may as well do them properly if only to test yourself. After all, you put in a lot of effort to get that far, why waste it with a weak finish?
  • Learn From Your Mistakes
    • Or ‘Take Fall Term Exams Seriously II’. When you get your marks back, check out your exam. Even better, check out your exam with friends (see the next point) and compare your answers and feedback. If you didn’t do well or, perhaps, as well as you hopped, then the only way you are going to know why is if you go over your answers and the professor’s comments. You don’t have to agonize about it, but it is worth being congnizant of your mistakes and this is doubly true for full year classes where the same prof will be marking your all important final
  • No (Wo)man is an Island
    • Similar to the next point, the concern here is that you need friends. ‘But the curve!’ you exclaim. I know a couple people who have told me they wished they’d had other people to work with in first term to have a better idea of the different ways a summary can be organized and even just to have someone to bounce ideas off of. The frustrating thing about the law can be how opaque it is until you talk it through and see it from different angles.
  • Maintain Health and Sanity
    • This may go without saying, but do you what you have to do to stay healthy, both physically and emotionally. It gets pretty easy just to order pizza because you’d rather not take the time to make dinner for the 5th time this week. Similarly, its all too easy to have friends that you see at law school, study law with, and who, when you’re finished with the academics, you socialize with by discuss the law and law school. While your enthusiasm for the law should be saluted, it will get a little tiring. Its worth keeping outside interests and remembering to eat well and bathe – most of the time anyway.

The Not So Standard Stuff

Law school is a lot of hard work and can be quite stressful if you let it be. The latter may or may not be a bad thing depending on how you deal with stress. Does it turn you into a sobbing puddle of mush? Then you might have to find a way to deal with it. Even if you are the type for whom stress is a motivating sensation, you will need to find a way to deal with it, because otherwise it will grind you down. That said, I think it would be a mistake to look at law school as just another degree. I’ve heard people say that practicing law, like many professional occupations, is less a job and more a lifestyle choice.

For me, I do not see law school much differently – it is also a lifestyle choice. So, you can count the hours you worked if you want to, but it won’t win you many friends and even fewer braging rights and it will certainly add to your stress level. Instead, embrace the workload. Accept that you won’t be able to do everything all the time and simply commit to doing your best with what you have. I must admit I didn’t realize how hard I was working until I stopped, but then it was over and it didn’t really matter anyway.

The final thing I will say is something my constitutional prof said to us a couple times during September and October: you will spend most of first term in a haze. Everything will seem new and intimidating and you will feel like you don’t belong. Just know that you aren’t the only one feeling that way and that the feeling does pass – usually sometime during November. Just in time for those mid-terms you should be taking seriously.


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Reflections on Mooting

5 05 2010

I came to law school planning on mooting because I already knew I was interested in advocacy. For many of my peers, however, mooting was a terrifying prospect. All the more so because it was unavoidable – there is a compulsory, graded moot as part of Western Law’s first year curriculum. At the end of the January Term, after two or three weeks of research and writing, you are compelled to complete the advocacy component of the Legal Research, Writing, and Advocacy (LRWA) course.

Those who survived and/or thrived in this exercise were encouraged to participate in the First Year Appellate Competition at the end of March. The pitch was that it is only open to first years and there is limited preparation required. You simply have to stand and deliver. For the first time this year, there was also the Lenczner Slaght Legal Ethics and Professionalism Moot. This again was only open to first years and required minimal preparation. The third option was the Hicks Morely Labour and Employment Law competition that was open to all years. Again, the emphasis was on the oral presentations and there was no requirement for written submissions. It was this last option that my partner and myself entered and ultimately won. We went on to represent Western Law against three other schools at the Bay St. offices of Hicks Morely. Though we weren’t as successful in Toronto, we did learn a great deal.

Going In

One of the best resources for what to expect in a moot was actually one of our ‘suggested readings’ from the summer before first year. Hutchinson has a chapter on what to expect and how to hold your own. This was augmented by presentations in our LRWA course, including a presentation by Michael Lerner. We were told that the higher the court, the less the law really matters. This makes sense, once you get to the appellate level, you are no longer really arguing about what the law is, but about what the law should be. This means there are two basic questions to ask: is the law on my side and do I have the moral high ground? The former is good, the latter is better, but both is best. If for no other reason, though, Lerner’s presentation was worth attending for the advice that, whatever else you do, you must weave a good story.

What I’ve Learned

The most important thing I learned, though it wasn’t until we got to Toronto, was to expect to get off-script and stay off-script. Its great if the bench lets you deliver your 10 or 15-minute monologue without a question, but it rarely happens. Indeed, if it does you have either totally amazed them or totally bored them, with the latter likely being closer to the truth. Therefore, if you think your position is persuasive and thought provoking, expect to answer questions. I knew there would be questions, but I expected them to punctuate my otherwise prepared presentation. In fact, by the time we got to Toronto, it was quite the opposite.

This is for a couple of reasons. First, it’s boring to sit and listen as a judge, often to similar arguments, for extended periods of time. Second, the judges have often done their homework too and will either have decided as a group what the issues are or they will have a personal opinion on the issue will want to see how, if at all, you can address their concerns. What it comes down to is that the best mooters are those who can sustain a conversation with a judge on any aspect of their presentation until either the judge is satisfied or, if they are being a little stubborn, the mooter tactfully changes the subject.

Second important takeaway from the whole process was do not rely on statements made by judges in dicta unless you are certain that judge is universally well liked. The quote may be pithy and it may speak directly to your issues, but if its not binding (or at least persuasive, because it was ratio in that case), it could be a liability. Either the judges on your panel won’t like the judge at all or they won’t like the sentiment in this particular utterance. The best approach, therefore, is to leave your favourite judge and his or her witticisms at the door.

Third thing to remember is the logistics. If you are going to be in a multi-round competition or if you are preparing well in advance of the actual presentation (because you are just that keen), then you will want to consider preparing your materials in such a way that you can bring yourself back up to speed quickly and thoroughly. Because there was almost a month between the Western competition and the Toronto competition I was nowhere near as fluent as I was the first time around. Not that this is an excuse; quite to the contrary, I thought I was fully prepared. Note: over-confidence is not your friend either. This point largely speaks to the second takeaway insofar as you need to know your arguments and the authorities inside and out if you are going to have a persuasive and sustained conversation on the finer points of, say, substantive vs. procedural collective bargaining.

Don’t Forget: It’s Worth It

There are two things to keep in mind about mooting in law school. First, there aren’t that many opportunities when you stop to think about it. If you are like most law students you would like to have a summer position locked down before the end of second year and, for many applications, that means no one is going to see anything after the first term of second year. That means you only have three (Fall/Winter first year and Fall second year) terms worth of content to impress your would-be employer and demonstrate that ‘interested in advocacy’ is more than just three words in your cover letter.

Second, mooting can be daunting even for the seasoned third year, so it is no surprise that many first years let their fear get the better of them and avoid the few voluntary competitions that do exist like the plague. I think this is a terrible mistake for a few reasons. Most obviously, if you are actually interested in advocacy as a future career, it is never too early to demonstrate just how genuine that interest is. Even if you have no interest in traditional litigation, I am reliably told that it is rare that anyone working in a legal capacity will not be faced with advocacy scenarios on a regular basis. It could be as simple as advising a client on the best strategy for their will or as high-stakes as attempting to dissuade the board of directors of a publicly traded company from embarking on a questionable course of conduct. Finally, if for no other reason, you should moot because it’s scary. That sounds like an odd reason, I know, but facing your fears is the first step to conquering them.

.

Because, really, who doesn’t find a good public speaker impressive?


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Law School Rankings

13 01 2010

I came across the 2009 MacLeans Law School rankings the other day. While its nice to see the Western has climbed a little bit since last year (up to 10 from 12 out of 16 common law schools), it was the comments that really got me thinking.

Criteria: But ya’ gotta rate something

First of all, I want to say I agree that ‘elite firm hiring’ and ‘Supreme Court clerkships’ aren’t the most representative of measures. You do have to measure something, though, if you are going to have a ranking. Perhaps we shouldn’t, but that’s a whole different issue. I think rankings come with a huge caveat emptor attached at the best of times (they tend to be elitist and favour quantitative measures over qualitative ones) and what makes a ‘good’ law school may not necessary create ‘good’ lawyers.

Specifically, I think the danger in a space as small as that occupied by  Canadian law schools is that measures such as elite firms (which, I’m assume, are necessarily in large, urban centres) and SCC clerkships (which, by definition, are limited) simply aren’t informative. The fact is most law schools in Canada have a large regional focus. Want to practice in Windsor? Well, you better either be from Windsor or go to school there if what I’ve heard is accurate. The same, to some extent, is true in London. I’m sure its even more true in provinces with only one law school. Similarly, as an Ontarian, I would pick Windsor (or any Ontario school) over UManitoba any day, not because of the rankings (indeed, Manitoba beats Windsor), but because I have no interest in enduring the weather and travel that would come with it.

Finally, I fear that rankings become nothing but self-fulfilling prophecies. “Oh, you want to clerk for the SCC? Better get into McGill then!” or “Oh, you have your eye on Bay St.? Hope you like UofT!” Don’t misunderstand me, if a particular school has an academic strength in a certain area that interests you, you’d be a fool not to consider it on that basis. But to pick a school because a ranking told you that it might increase your statistical odds would be utilitarian at best and at worst it would simply continue the cycle that these rankings thrive on.

Alternatives

Do you own research. There simply aren’t that many schools out there (unless you apply to them all and then, well, that’s your own fault). Granted it can be hard to figure out who to trust when you’re doing this insofar as the schools have a vested interest in sounding fantastic and alumni are similarly biased. Our Dean here at Western, a certain Dr. Ian Holloway, QC, makes a pretty good point when he proposes that in Canada there are no bad law schools. Rather it is only a matter of finding the one that is right for you. How you make that choice is up to you. The schools might make it for you between scholarships and rejections. It might be the lure of that shiny MacLean’s #1. It might be your love of sea air. It might be your significant other.

The point is, if you place too much emphasis on any one factor, you have no one to blame but yourself.

In Closing

Rankings make sense in the US. As a legal employer there are simply too many different schools to understand what makes each one stand out. Instead, you can get a rough idea by looking at where they sit on the list. Even then, though, I’ve heard it said that a good, non-Tier 1 regional school can top a Tier 1 (though perhaps not a T-14) non-regional school in some markets.

We simply don’t have that problem here, as you’ll be able to see by looking at most medium to large sized firms’ websites. You’ll see regional/geographic biases to be sure, but that doesn’t show up in the rankings. You can’t really blame MacLean’s though. Its not like their in the truth business. They’re only in the business business.

The moral of the story here is there is simply more to the story than the stats would have you believe.


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Categories : Pre-Law

Law School’s Unspoken Academic Pre-Requisites: The Courses You Should Take

14 10 2009

A month into law school I have noticed one thing above all: some are better academically prepared than others. Law schools say there is no such thing as a ‘pre-law’ course of study, but I think they are doing future students a disservice. Do you have to take certain courses to succeed at law school? No. Do you have to take certain courses to get into law school? No. Could you take certain courses to mitigate the overwhelming unfamiliarity of the first term of your first year? That would be a resounding Yes.

Core Courses

The following are what I would consider ‘core courses’ insofar as they provide a comprehensive grounding in the subject matter you will encounter, if not in first year, during the course of you legal education. I say ‘core’ and not ‘required’ because you can obviously excel without them. That said, they will provide you with some basics that might be taken for granted once you get there.

The following are generic course names and/or the way the courses were organized at my alma mater. Your millage may vary.

  • Early Modern & Modern English (or British) history
    • Like it or not, a great deal of Canadian law stems from the English common law tradition. Understanding its development requires an appreciation of its context, which these two history courses will provide. Given the common law’s reliance on precedent for deciding cases, it is not unheard of to reach all the way back to the 1600s for an authority in certain areas of law.
  • 19th & 20th Century Canadian History
    • Though we have inherited a great deal from the UK, a lot of our law post-1867 has been a made-in-Canada affair. This is especially true in constitutional law. Again, this is about context.
  • Canadian Government
    • This is fairly obvious, but often overlooked. Law doesn’t develop in a vacuum and understand how laws come to pass can be as important for understanding their content as the history that preceded them.
  • Basic/Intro Logic (Philosophy)
    • This is more for the LSAT than law school, but it might possibly be a truism that more logic never hurt an argument.
  • Basic/Intro Ethics/Morality (Philosophy)
    • This serves two purposes. First, a lot of law, and especially criminal law, deals with moral questions. Second, as a law student, and especially as a lawyer, you have certain ethical standards to which you must adhere. Going beyond those minimums, however, a lawyer is generally expected to act in the public interest and it can be useful to understand the different perspectives on what exactly that might mean.

Supplemental Courses

These are courses that would broaden your perspective and provide greater context for your legal education, but if you were not interested in them or if you could not make them fit, then you would not be any poorer for it. I have listed them in order of priority (from my perspective at least).

  • Basic Business
    • Two things here. First, you’ll be surprised just how many courses at any given law school revolve around business or business transactions. As such, a basic familiarity will be useful in these courses, even if you don’t ever intend to practice ‘business law.’ Second, and not unrelated, you’ll be surprised just how much the practice of law is about business. Either you ‘learn’ it in school or on the job, you’re choice.
  • Canadian Politics
    • Similar idea to ‘Canadian Government’ but with a more of a focus on the action and not the process. Less important for context than Canadian Government, but won’t hurt you either.
  • Intro Economics
    • While ‘law & economics’ is less of a focus in Canada (outside UofT, anyway) it does still crop up in US cases and from certain classmates. Much like ‘Intro Logic,’ it can only make you stronger.
  • Roman History
    • Whether you are aware of it or not, the roots of much of our society can be traced back to this little village in Italy called Rome. Never heard of it? Then this course is for you.
  • Christian Religion
    • Similar to the above, a great deal of our laws, though less than in the past, are rooted in Judaeo-Christian morality. This is especially true in criminal law (laws against suicide anyone?), but also comes up in that mysterious concept of Equity.
  • Intro Political Theory (aka Political Philosophy)
    • You don’t get too much of this in first year, but I have found it useful context for understanding some of my constitutional lectures. If the course is just about reading the ‘greats’ it might be less useful to you than a course that discusses liberal and democratic theory, but you might be interested to know that Mill’s Harm Principle ended up in a Charter challenge regarding the criminal consequences of marijuana possession.
  • Advanced Logic
    • See ‘Intro Logic’

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Categories : Pre-Law

A Rose By Any Other Name?: Law Schools, Legal Education, and Professionalism

15 07 2009

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.


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