Class wars — Shaking up the law school curriculum

Law firms — and not law schools — have historically been tasked with instructing their young recruits about the practice of law and working with clients. But should law faculties be schooling students on the business of law?

By Virginia Galt

McCarthy Tétrault is training lawyers in project management, Baker & McKenzie sends senior partners to the Kellogg School of Management and Blake Cassels & Graydon is placing greater emphasis on client relationships in its professional development programs. But there is no move in Canada (at this point, at least) to compel law schools to teach business management skills in response to the changing legal marketplace—an approach that some officials of the American Bar Association are promoting in the United States. “We didn’t want to go there.

That would involve a significant intrusion into law school curriculum,” said John Hunter, head of a Federation of Law Societies of Canada task force that recently introduced harmonized national standards for entry into bar admission programs, and the “foundational competencies” that all law school graduates will soon be required to demonstrate.

Still teaching the same old things?

As it is, the federation’s recommendations on the essential elements of a law school education are controversial enough — with some leading legal educators accusing the law societies of unwarranted interference with academic autonomy. Even the mandatory ethics course has come under fire — not because the law schools are opposed to teaching ethics, but because they have differing views on the best pedagogical approach.

Osgoode Hall Law School professor Harry Arthurs, a renowned educator and former Osgoode dean takes issue with this view.

“It is difficult to understand why a 21stcentury task force would chisel the traditional 19th-century first-year curriculum in regulatory stone . . . and expand the list of compulsory fields of study by adding not only ‘ethics and professionalism’ but also administrative and commercial law,”

Arthurs said. These new requirements will drain resources from other, more innovative fields of study, he added.

“Our job is to improve, not to turn out the same old product,” Arthurs said. “We [legal educators] take a good critical look at what the legal profession is doing, where it has fallen short, where the law is going... so we’re quite forward looking.

Time to be more business-like?

University of Ottawa law professor Constance Backhouse is critical of what she views as a “business bent” to the federation’s recommendations.

As one of the few dissenters in the room when the Law Society of Upper Canada endorsed the federation’s recommendations earlier this year, Backhouse noted that “some law schools currently teach courses on access to justice, critical race theory, disability law, feminist legal issues, poverty law.

“None of these issues made it onto the list of mandatory competencies. The social justice courses, currently taught as electives with small enrolments, will see their numbers decline even further as law students fill their timetables with the federation’s mandatory competencies,” she said.

“I think this lies at the heart of what has troubled legal educators so deeply. The social justice curriculum will suffer substantially if the report is implemented.” Hunter disagrees. “I think most academics don’t see it as that big a deal. We think most of what we have recommended
is being done now anyway,” he said. “It’s a pretty flexible program. We didn’t do what other countries do, which is to prescribe course lists and we didn’t do what the Americans do, which is to try to micromanage the way law schools set up and how they function.

“We’re not concerned about our law schools. We’re more concerned aboutmaking sure that internationally trained students meet the standard that our law schools produce.” Arthurs says the federation overlooks the one indispensible “competency” for all lawyers: “The ability to handle unfamiliar problems, to build one’s own conceptual vocabulary and repertoire of skills — legal or not — and to re-educate oneself repeatedly over the course of one’s career.”

Stewart Saxe, a senior partner at Baker & McKenzie said he doesn’t expect new law school graduates to be practice-ready, but he does expect them to arrive with solid analytical skills and the ability to “think like a lawyer.”

If private practitioners, through the law societies, eventually exert more control over law school content — which is what many educators fear will happen — “there might be too much of a bias towards the facts of practice, today’s statutes today’s case law . . . and that doesn’t necessarily teach you to think like a lawyer. The case law is going to change, the statutes are going to change,” Saxe said.

“What I would not want to see happen is that they are off learning how to keep a set of books for a law firm, because the people we are hiring are never going to be asked to do that. I have been managing partner twice, and I never had to worry about how to keep the books. What I had to worry about was whether my chief accountant knew how to keep the books.”

Saxe’s view is that many of the practical issues lawyers face — “how to talk to a client, how to mediate a problem, how to negotiate a problem, how to deal firmly but respectfully with the other side — need to be learned on the job.”

“We think they are arriving with the skills we need them to have to start,” Saxe said. “We’ll teach them about real-world client issues, how much time we can spendon a problem.”

Virginia Galt is a freelance writer based in Toronto.

 Published in National Magazine's 2011 Student Edition. More articles from this issue:
http://www.cba.org/cba/PracticeLink/careerbuilders_students/