Persisting Issues
 

The central debate in the history of legal education has, since the twelfth century, been whether law should be taught as a practical trade or as an academic discipline.¹  Initially, a would-be lawyer was apprenticed under articles to a practicing barrister.²  Then, in 1870, Dean Langdell introduced the "scientific" casebook method to Harvard which heralded the beginning of the end of vocational apprenticeship as the primary mode of legal education.³  The transformation to university-based academic training in the United States was largely complete by the nineteen twenties.⁴  However, in Ontario, the Law Society resisted a university-based law school curriculum and held apprenticeship as the primary mode of legal education.⁵  It was not until the mid-fifties, under pressure spearheaded by Cecil Wright, that the Law Society conceded that a university law degree was equal to that of its own law school at Osgoode Hall.⁶  With the exception of Nova Scotia, the evolution of legal education in the rest of Canada was similar.⁷  The transition in Ontario was completed in 1968 when the Law Society of Upper Canada transferred Osgoode Hall Law School to York University and an academic-based university law degree became a prerequisite for admission into the practice of law.⁸
 

In 1980, Professor Weiler described the transition as follows:

In 1983, a consultative group, assembled under the aegis of the Social Sciences and Humanities Research Council of Canada and chaired by Harry Arthurs, delivered the  Law and Learning report. The Arthurs Report recommended that law be promoted as a scholarly discipline emphasizing "intellectual and theoretical as opposed to professional perspectives"; Arthurs advocated the avoidance of "narrow vocationalism".¹¹  The debate continues today¹²  and at the scholarly level tends to be fought as to the respective values of doctrinal analysis versus legal theory.¹³  At a recent Law and Society conference, Professor Manwaring noted: "Twenty years after the Arthurs Report there have been no fundamental changes to the common law school curriculum in Canada."¹⁴ And matters may be getting bleaker for proponents of law as an academic study of legal theory: the Law Society of Upper Canada is considering substantially reducing the teaching portion of its Bar Admission Course.¹⁵

This historical and ongoing debate plays out every time a professor designs a course curriculum. Dynamic tension between many (most?) professorsí dedication to academic investigation and pressures towards professional preparation remains.¹⁶ Perhaps someday the two will be synergistically integrated. The debate is also relevant to the choice of teaching method(s), including the use of PowerPoint, which professors must make.

__________________________

¹ In England, apprenticeship at self-regulated Inns of Court was, as far back as the 1300s, the principal mode of instruction for barristers. University training and literature were minimal and what little there was focussed primarily on teaching Roman Civil Law in a formal and highly structured fashion. In 1753, Blackstone began to give a popular series of lectures at Oxford and later compiled them into his Commentaries on the Laws of England. Blackstone believed that the common law could be taught systematically to "gentlemen of all ranks and degrees". However, by 1766, Blackstone resigned in exasperation over the conservative resistance of the legal profession. In 1846, a parliamentary report concluded that an excessive focus on the practical aspects of legal practice was detrimental to the development of the law. The end result was that the Inns would establish lectureships and universities would foster legal scholarship. While this was an improvement, it served to widen the gulf between the practical and learned branches of the law; few university graduates intended to actually practice.

Meanwhile, in America, Blackstone's Commentaries had taken root and by the 1860s there were twenty-one schools teaching law in university settings.

See: Kyer & Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario 1923-1957, (Toronto; Osgoode Society/University of Toronto Press, 1987), pp. 6-15; D.B. King, "Old and New Models of Legal Education: Proposals for Change" in D.B. King, (ed.), Legal Education for the 21^st Century, (Littleton, Co.; Fred B. Rothman & Co., 1999), p. 5 and Le Brun & Johnstone, The Quiet Revolution: Improving Student Learning in Law, (North Ryde, NSW; The Law Book Company Ltd., 1994), p. 19

² Ibid.

The establishment of the bar in Ontario, then Canada and later Upper Canada, followed the traditions established in Britain. Admittance to the profession was through a five-year period of apprenticeship, but these articles could be reduced to three years if preceded by university education. Starting in the mid-1800s, sporadic attempts were made to provide lectures for law students, either via one or more universities or through the law society itself. Finally in 1889, in part due to an attempt by the University of Toronto to establish a fully functional law faculty, the law society opened Osgoode Hall Law School in downtown Toronto. Vocationalism had triumphed over scholarly learning. Articling, "practical office training", would continue to be the primary mode of training. The content of the lectures too was to be practical. As were their scheduling: morning and late afternoon so as not to interfere with the studentsí duties towards their articling principals. This format continued until the late nineteen fifties when university law courses became more fully integrated into legal education in Ontario.

In 1923, Cecil Wright enrolled at Osgoode Hall Law School which was still located in the original building on Queen Street. Three hundred and ninety-one students were crammed into the facilities. It was poorly equipped (2,500 books - Harvard had 100,000 at the time) and lacked school spirit. Falconbridge took over as acting dean and began a gradual series of improvements, including the recruitment of two notable lecturers from Dalhousie University which had a much richer academic program. Wright graduated in 1926 with one of the highest set of marks in the history of the law school and headed for Harvard, the then leading common-law school. See sources in footnote 1 above.

³ In 1870, Dean Langdell introduced the casebook method to Harvard. Langdell rejected the notion that law was a handicraft best learned through apprenticeship. Rather law should be learned systematically through participation in judicial reasoning, often taught via the Socratic method. By the 1920s, universities had, after battles paralleling those to come in Ontario, obtained predominate control of legal education. Vocational apprenticeship no longer held sway.

See Keyer & Bickenbach supra note 1, pp. 16, 22 and King, supra note 1, p. 6

Langdell believed that the common law comprised a comprehensive and complete system which had a formal rationality and conceptual order. The scientist had a laboratory; a legal scholar had a law library: G. Quinn, "Legal Theory and the Casebook Method of Instruction in the United States", in M. Ó Súilleabháin (Ed.), Legal Theory and Cases: Shifting Frontiers, (Munich; Rainer Hampp Verlag, 1994), pp 15 - 26. Quinn describes the rise of the Socratic casebook method as well as its advantages and disadvantages (pp. 20 - 24).

⁴ ibid.

⁵ In 1927, Wright returned to Osgoode to teach. He had studied Canadian constitutional law at Harvard and developed a taste for the full potential of legal scholarship. Wright now espoused the view that law could not be taught dogmatically; law changed over time and had to be "observed in operation". In 1933, a student who shared Wright's views, wrote a letter in the Obiter Dicta detailing the inadequacies of the law school's program which came to the attention of the press. The upshot of the ensuing debate was a retrenchment by the conservative Benchers: lower admission standards, fewer lectures, less academic course work. Nineteen-thirty-five saw Dean Falconbridge back where he had started twelve years earlier. Wright bided his time with scholarly pursuits for the next decade, but by 1944 his frustration had boiled over and he made a public attack on the poor quality of the law school.

While Wright's frustrations were out in the open, they were not at an end. The Law Society avoided directly dealing with education issues despite the opinion of Chief Justice Robertson that legal education in Ontario was "lousy". However, personnel were moving into favourable positions and in 1948, Wright was appointed dean of the law school after the sudden resignation of Dean Falconbridge. The Committee finally reported, but the majority recommended retention of the concurrent teaching/articles format over Wright's suggestion in favour of full-time university studies. A debate in the press ensued. Wright, a young Bora Laskin and others resigned. The debate intensified, but the law society did not budge. Wright, Laskin, et al. joined the University of Toronto Faculty of Law and Wright set out to make it an "honest to God Law School".

In 1955, the Law Society added a two story east wing to Osgoode Hall at a cost of 1.3 million dollars. It was not until 1957 that the Law Society recognized the value of a university law degree as being equal to that of its own Law School. In 1968, the Law Society transferred Osgoode Hall Law School to York University and a university law degree became a prerequisite for admission to the practice of law.

See Bucknall, Baldwin & Lakin, Pedants, Practitioners & Prophets: Legal Education at Osgoode Hall to 1957 (1968) 6 O.H.L.J. 137, 140. which describes many details of student life and dissatisfactions. See also Kyer & Bickenbach, supra note1 and Ó Súilleabháin, supra note 3, p. 19

⁶ For Wright's views at the time, see Law and the Law Schools (1938) 16 Can Bar Rev 579.

At a Symposium held at the University of British Columbia in 1949, Wright set out his views as to what would constitute an "honest to God Law School". The university should "educate persons who will come to these tasks [solving client problems] with the  qualities of mind and general discipline which should characterize the group to whom a monopoly on social control through law has been given." They should stand out against narrow professionalism.   "I would suggest that the three big objectives of a university law school are (i) education in the qualities that should be found in a legal practitioner; (ii) education that will train a man not merely in the work of solving problems of individual clients but of the society in which he lives; and (iii) to act as a centre of research, criticism and contribution to the better understanding of he laws by which societies are held together."

The Law Society had previously offered some special recognition for University of Toronto law graduates, but this was rejected as insufficient by the University: Report of Law Society Treasurer C.F.H. Carson, February 9, 1953 entitled, The Law School Controversy.

⁷ For a discussion of the history of legal education in other parts of Canada, see, W.W. Pue, Common Law Legal Education in Canada's Age of Light, Soap and Water, (1996) 23 Man. L.J. 654.

For a more detailed account of the evolution of legal education in British Columbia, an evolution not dissimilar to that in Ontario, see W.W. Pue, Law School, The Story of Legal Education in British Columbia, (University of British Columbia Faculty of Law; Vancouver, 1995).

⁸ Kyer & Bickenbach, supra note 1, p. 268; Bucknall et al., supra note 5, pp. 139, 229

⁹ P.C. Weiler, "Past and Future in Canadian Legal Education: Personal Reflections", in N. Gold, ed., Essays on Legal Education, (Toronto, Butterworths, 1982), pp. 2 - 3.

For a detailed description of university law faculties from a teaching and research perspective as at this period, see Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada by the Consultative Group on Research and Education in Law (H. Arthurs, chair), (Social Sciences and Humanities Research Council of Canada; Ottawa, 1983).

¹⁰ Weiler, ibid., pp. 3-8

¹¹ Law and Learning Report supra note 9:  See particularly pp. 153-163.

¹² See A. Goldsmith, "Standing at the Crossroads: Law Schools, Universities, Markets and the Future of Legal Scholarship" in F. Cownie (ed.),  The Law School?Global Issues, Local Questions, (Aldershot, G.B.; Ashgate/Dartmouth, 1999), p. 62.  For a description of the situation in Australia, see C. Parker & A. Goldsmith, 'Failed Sociologists' in the Market Place: Law Schools in Australia, (1998) 25 J. Law & Soc. 33 and in the United Kingdom, see A. Bradney, Law as a Parasitic Discipline (1998) 25 J. Law & Soc. 71.

¹³ See A. Austin, The Empire Strikes Back: Outsiders and the Struggle over Legal Education, (New York; New York University Press, 1998) and A.C. Hutchinson, The Role of Judges in Legal Theory and The Role of Legal Theorists in Judging (or 'Don't Let The Bastaraches Grind You Down'), (2001) 39 Alta. L. Rev. 657. See also, A. Rochette and W. Pue, "Back to Basics"? University Legal Education and 21^st Century Professionalism, (2001) 20 Windsor Y.B. Access Just. 167

¹⁴ Toronto, January 31, 2003

¹⁵ The Law Society's Task Force on the Continuum of Legal Educationís interim report is available online at: http://www.lsuc.on.ca/news/updates/july04_legaleducation.jsp  (accessed February 14, 2003). The final report has been delayed and may not be delivered until late fall of 2003.

If the Law Society follows through, it may force the law schools to shoulder the burden of preparing their students for the vocational bar exams. See A. Levine, Bar Ad Changes to be Delayed, (2003) January 13 Obiter Dicta 7. Gina Giannopoulos, Assistant Registrar Bar Admission Course Office confirmed that the report may not be tabled until after April, 2003 (personal correspondence).

This may be the latest example of legal academics being subjected to constructions and constraints not of their own choosing. See R. Buchanan et al., Legal Knowledge for our Times: Rethinking Legal Knowledge and Legal Education, (2001) 20 Windsor Y.B. Access Just. xiii, where the authors note that educators and teachers both participate in the construction of legal knowledge and are subjected to the constructions and constraints imposed by other actors including courts, legislatures, law societies and the media.

However, professorial scholarship is often valued over teaching prowess. See for example F. Cownie who criticizes academics who "do not know how they teach, understand why they teach as they do, or see how such self-insight might improve" their teaching. Most teach as they were taught. She then observes that the self-same academics would hold someone who adopted such an approach to a substantive subject in extremely low regard. See "Searching for Theory in Teaching Law" in The Law School?Global Issues, Local Questions, supra note 12, p. 41.

It should be noted that the upper tier of U.S. law schools maintain a highly academic program despite the fact that no bar admission courses are offered. However the majority of U.S. law schools have a significant vocational component in their program. Given that there is less differentiation between law schools in Canada, termination of bar admission courses would likely result in substantial pressure to increase the professional preparation component in Canadian law schools.

¹⁶ See for example P. Birks (ed), Reviewing Legal Education, (Oxford; Oxford University Press, 1994), pp. 20 et seq. and pp. 102-104

P. Wescott describes the tension between imparting subject matter expertise and the instructional goals of fomenting "critical thinking, understanding of others, tolerance for ambiguity and ethical responsibility." In "Student Development: From Problem Solving to Problem Finding" in J. Newton et al. (eds) Voices from the Classroom: Reflections on Teaching and Learning in Higher Education, (Aurora, Ont.; CST/Garamond Press, 2001).

¹⁷ P. Bateman, Toward Diversity in Teaching Methods in Law Schools: Five Suggestions from the Back Row (1997 ) 17 Quinnipiac L. Rev. 397; S.I. Friedland, How We Teach: A Survey of Teaching Techniques In American Law Schools (1996) 20 Seattle Univ. L. R. 1

¹⁸ D.E. Buckingham, Rules and Roles: Casting Off Legal Education's Moral Blinders for an Approach that Encourages Moral Development, (1996) 9 Can. J.L. & Juris. 111; P.C. Kissam, The Ideology of the Case Method/Final Examination in Law School, (2001) 70 U. Cin. L. Rev. 137

¹⁹ Personal conversation with well-known professor, 2003

²⁰ Friedland, supra note 17

²¹ Friedland, supra note 17

²² See A. Petter,"A Closet Within the House: Learning Objectives and the Law School Curriculum", in Gold, Essays on Legal Education,supra note 14, starting at page 88 where he quotes from Krathwohol's taxonomy. According to Krathwohol, at the first stage the student Receives sensitization as to how law affects peopleís lives and attends to the opinions of others. The student then Responds to these concerns and actively explores the relevant issues. The next stage would see the student valuing ideas and opinions. On the fourth step of the affective ladder, the student Organizes an integrated value system. When students reach the final stage, their behaviour is Characterized by actions consistent with their value systems. Even lawyers who aspire to be little more than their clientsí mouthpiece may have undergone a form of affective development:

²³ K. Rubenstein, J. Patterson & R. Johnstone,  Improving Criteria & Feedback in Student Assessment in Law, (Sydney, Aust.; Cavendish Publishing (Australia) Pty Ltd., 1998), pp. 15-16 At pp. At pp. 18-22, the authors describe various objectives and sub-objectives.

When formulating objectives, the teacher should be able to articulate what the learner will be able to do, or do better at the end of the course. Objectives serve as a framework to determine what content and activities to include in the course and to provide criteria against which to assess progress. If stated explicitly, objectives will focus studentsí attention on what the instructor views as most important. Objectives may influence the teaching method chosen to teach the course, segment, or skill. Teaching objectives and goals are also relevant when choosing the form of student grading and evaluation. (p. 19, pp. 25 et seq.)