By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Bleaching Law

Welcome to my blog on teaching law.  I have entitled it "bleaching law". This is an obvious contraction of "blog" and "teaching".  It is also a play  on words capturing the endless struggle of a law professor to convey as neat, tidy, proper and well-starched things that are emphatically not, like the standard of review in administrative law.  All opinions are my own and do not reflect on anyone else who I work with, for or around. 

Friday
Sep212012

The 12.1 Percent: Why Law Schools are to Blame for, well, Everything

It being late September, two things are on the radar: First, the anniversary of the first Occupy movement and its resonant preoccupation with the fortunes (literally) of the top 1%; second, the imminent arrival of the Law Society of Upper Canada's articling taskforce report.  That report is driven by its own percentage figure: the 12.1% of JD graduates in Ontario who were unable to secure articles by the time of publication of the LSUC placement report in 2011.  To make that number clearer, it is generated by the 214 students (of 1767) unplaced in articles at the end of March 2011.

This figure is at least in part responsible for the near constant buzz about an "articling crisis" in Ontario, especially when it is contrasted (in the same report) with the 5.8% number (81 of 1391 students) from the gilded, pre-US subprime mortgage-oopsy days of 2008.  To the extent that concerns about all that ails articling fixates on this number, that is a huge tragedy.

Over the last year, and especially in my vice dean capacity at uOttawa, I have conversed with a number of students and some members of the profession about this issue.  There is a commonplace perception that law schools are to be blame for inflated enrollment -- especially law schools that have grown (to wit, my own institution and a few others).

Probably because I am one of the Occupy movement's 1% (I think -- although you wouldn't know it from my peanut sized house), I am not tremendously impressed with this apparent groupthink.   Let me canvass some facts.

1. Jobs in the legal profession are harder to get, or are they?  The LSUC articling consultation report shows the rate of employment following call to the bar from 1995-2011.  2009 and 2010 are horrible years -- in the mid-50% range.  But the June 2011 figure is 68.6%, the highest number since 2002.  And the number in June 2012 is 65.1%.  So which is blip and which is trend?  Is it the long history of numbers in the mid-60% range (including over the last two years) or the 2009 and 2010 (post-2008 economic crisis) numbers?

2. A little perspective: Whatever the numbers, law graduates and lawyers are still an awfully privileged bunch.  There are graduates of other programs who would celebrate a post-graduation placement rate of 87.9%.  Those with teaching degrees are a case in point (68% unemployed or underemployed in 2010).  Let's call that a placement rate of 32%. 

3. There are too many law students!  Oh really?  This is a big one for me, for obvious reasons.  Let's be clear. As best as I can establish in the time available, from about 1976 until really quite recently, there were approximately 2,000 first year law students in common law programs. In 1976, the Canadian population was 22,993,000.  And so there was 1 first year law student for every 11,496 people in Canada.

According to the people who give LSAT training, in 2011, there were 2,621 first year students in common law programs.  The population of Canada in 2011 was 34,278,400.  And so, there was 1 first year law student for every 13,078 people in Canada.

Put another way, there are 1.31 times as many first year law seats now than in 1976.  And there are 1.49 more people.  The people are winning, something that might please many of those people. Well, except when they actually need to find an affordable lawyer.

So if we have too many law students now, we had WAY too many in 1976.  Boy did we misjudge it.  We probably should have slashed a few first year seats back then to get us to the ratio of law students to population we have now.

Now, it is true that the profession has changed, automated and outsourced in ways unknown in 1976.  But to say we have all the lawyers we need begs the question: why do we have 1. an aging profession and 2. an access to justice crisis in which only the very rich and the very poor (where legal aid is available) can truly access legal services.

4. Life (ambitions) will find a way:

In Jurassic Park, the supposedly sterile cloned dinosaurs mutated to form sustainable populations.  "Life will find a way," said one of the characters.  Well, using law school as the bottle neck to the profession just does the same thing.  And the "mutation" in this case is the number of Canadian students going overseas to the UK, the United States and Australia to obtain law degrees.  They then return to Canada and enter the National Committee on Accreditation process, and from there the articling pool.  The NCA is no longer quite like it was -- a place where the principal clientele were foreign trained first generation immigrants seeking accreditation.  Last year, there were something like 600 NCA students (both first generation immigrants with foreign credentials and Canadians who had gone overseas) authorized to write the bar.  That makes the NCA the biggest "law school" in the country, by a huge measure.

Let's be clear about who these people are who are going overseas: many are largely indistinguishable from the students who sit in law classes.  Maybe they had .1% lower GPAs or a personal statement that didn't catch the eye of a faculty admissions evaluator.  But at uOttawa, we receive more than 10 applications for every student in our first year class.  And for many of those 10, admission or not turns on the slenderest of differences.  (Yes candidates, those personal statements matter).  The same is almost certainly true everywhere else.  Students lucky enough to sit in any law class in the country would do well to remember that.

And this outsourcing of Canadian legal education will only continue now that the Federation of Law Societies "accedited law school" concept allows foreign schools to offer, essentially, Canadian legal education.  Sure, the students pay $40K a year, give or take a few $10K, but they get in, and then they come home.

Cutting law seats in Canada, or freezing them at that happy 1976 number, would just mean that a lot more students get turned down at home, and those people with wealth or a willingness to take on staggering loans turn to overseas purveyors of legal education. 

5. Law's not just for the lawyers.  People who go to law school don't always want to work as lawyers.  I know, academics always say this.  And lawyers never believe us -- hard to imagine after all!  But it happens to be true.  A number of people do JDs to broaden the mind, to segue into policy work, to upgrade their credentials in their current job.  I have had students who are retired admirals, serving CF officers or RCMP members, former federal ministers, doctors, engineers, human rights activists, you name it.  They don't all want to work on Bay Street.  Honest. 

So do we shut the doors to these people because of the 12.1%?  Or maybe we make them sign a solemn oath to never practice law, in case they change their mind about articling.  Oh, and the people who don't sign that oath, they have to practice law.  No career changes, ever.

So here's the thing: we are educators.  That is our mission.  We offer a form of education that is scarcer than it was in 1976, even with the increases in our class intake.  We offer an education that opens doors in a lot of different places, not just to courtrooms and nice law firm offices.  And we offer an education that is so in demand that were we to lock our doors, the very rich or the very indebted would simply stream overseas in even greater numbers. 

Those without money or debt tolerance, well, they can give up their dream. 

And meanwhile, the consumers of legal services, well, they can represent themselves when they can't find any reasonably priced lawyers.

Now that would be a crisis. Actually, come to think of it...

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