Legal education in a time of financial restraint

As those who read my column will know, my overarching theme in these pieces has been the imperative of innovation in how we educate lawyers. The conversations in which I have been privileged to play a role have been tremendously exciting, and our accomplishments here at the University of Calgary have been both gratifying and exhilarating. 

But the one thing that I’ve not talked about directly — until now — is the economics of the project. This is an important point that it’s easy to lose sight of; namely, that experiential learning is far more resource-intensive than old-fashioned style law school teaching.

I did touch upon this a couple of years ago when I quoted my colleague Greg Hagen as saying that it’s challenging “to teach twenty-first century lawyers with twentieth-century funding.”

I went on to write that “there is nothing quite so cost-effective as lecture-based teaching. It’s of little or no pedagogical value, but it’s a way of balancing the budget when, in most provinces, tuition is frozen and funding for legal education is at best flat … To incorporate things like technology and laboratory-based teaching and intensive courses … well, all those things demand a vastly different business model than the one we have.”

I was reminded of this last fall when we learned the details of Alberta’s provincial budget. In common with most of the higher education sector, we faced an immediate budget cut, with the promise of further cuts to come in each of the next three fiscal years. As I put it to some of my colleagues, Citizen Ian got it: Alberta is in a difficult situation, and invidious political choices must be made. Nonetheless, Dean Ian found himself with a major headache.

The central problem with the business model of legal education — indeed, of higher education in Canada — is that the traditional levers for offsetting cuts to government funding are to increase tuition or enrolment. And given the demand for spots in law school far exceeds demand, both are easily possible provided the government is willing to come to the party.

Most Canadian provinces now limit tuition increases; but for an illustration of how the legal education marketplace in this country works, look no further than Ontario during the governments of Mike Harris and Dalton McGuinty. Premier Harris deregulated tuition and it rose astronomically. Premier McGuinty froze tuition, and enrolments went up. The solutions seemed simple: law school needs cash? Charge more per seat, or put more seats up for grabs.

But that needn’t be the only way. In 2008 I was invited to deliver the Chief Justice Thane Campbell Lecture to the Law Society of Prince Edward Island. In it, I called for a new concord between the bar and the legal academy. The idea was to enshrine professional legal education as a partnership between our law schools, our students, and the practising arm of the profession.

This would mean turning our back on the current arrangement, which sees legal education in bifurcated terms: three years of university education culminating in the award of a JD, followed by a year of apprenticeship, known as articling. The fundamental flaw in this model is that it is based on a false premise, namely that theory and skills form a dichotomy. The model grew out of an agreement negotiated in 1957 between the Ontario universities and the Law Society of Upper Canada, and in the years that followed all the other common law provinces followed suit.

Today, most law schools have multiple clinical programs, and both Lakehead and Ryerson in Ontario have “integrated practice curricula” that weave an equivalent of articling into the JD program. Yet the foundation of the system remains grounded in the late 1950s, when Elvis ruled the charts and the Chevrolet Corvair emerged as the hottest car on the road.

To view our current budgetary woes in glass-half-full terms gives us an opportunity to break the stranglehold of the 1950s. This could well be the spark that ignites a long-overdue conversation about the continuum of professional education, including articling, which in its current form acts as both a funnel to the big cities and a roadblock to areas of pressing social need for legal services.

I don’t have a clue what the end result of such a discussion would be, yet if anything, that makes the idea of a conversation even more important. As I told my faculty colleagues when I gave them the news about the cuts, we’re in for a period of real pain, but once we’re through the tunnel we can be a stronger, more resilient and better law school. I believed it then, and I believe it now.

I do, however, have one cautionary anecdote for my fellow deans. When the cuts were announced I wrote to all of our part-time faculty, letting them know of the situation and that we might have to reduce the number of courses taught by them. UCalgary pays a stipend to all part-time or “sessional” staff, whether they are a sole practitioner or a senior partner in a global law firm, so I reminded them that, in some cases, adjunct faculty have donated their stipends back to the school. Someone took offence at my suggestion and sent it to the CBC, which promptly ran a story on it. My note ended up going viral. But not in the good way.

Given what I do for a living, I always try to glean a lesson from every situation. I’ve been in leadership roles for a while and I’m accustomed to hearing unkind things said about myself. But I’d never experienced vitriol like this. I have an adolescent daughter, and it made me appreciate a little more how young people can have their sense of self-worth stripped from them by social media. Although I’m not the first to say this, technology has a wonderful ability to connect us, but it also has the ability to tear us apart.