“We live in rapidly changing times,” writes Osgoode’s Associate Dean Trevor Farrow. Ethical questions are “continuously changing as a result of global trends.” The “complexity of today’s world is an issue for all lawyers.” Needless to say, globalization has been in vogue in the academy for more than a decade, not just in professional circles. So why is there so much talk and so little impact?
Why do tuition and licensing fees increase year after year while the access to justice crisis worsens? Why is there an ever-growing gap between the supply of graduates and the availability of jobs? Why do students increasingly suffer from mental health issues under internecine academic competition? Why is there a law school in BC that actively discriminates against LGBT? What accounts for the legal academy’s cultural and institutional inertia in the face of our profession’s—and Canadian society’s—mounting social and economic challenges?
Our profession’s history is intimately connected with the forces of globalization, but not in the frame of reference adopted by most scholars. The definition of globalization is contested, to be sure. But there is common ground in the idea that it entails the spatial transformation of social and economic relationships, increasing flows of activity, interaction, and power.
Canvassing the profession’s history in Ontario, and the manner in which law as an institution has mediated social and economic relations, it is apparent our gatekeepers and regulators have used the institution as an instrument of oppression. The unspoken aim is to perpetuate and insulate the legal institution’s social and economic privilege from the rest of society.
Ontario’s legal and political model originates in the United Kingdom’s imperial enterprise. Globalization in this era entailed the demographic spread of ethnic Europeans to other parts of the world. In addition to physically displacing indigenous peoples, European settlers used the law as an instrument to disempower them. Courts never engaged with the basic question of their own sovereignty in the context of European conquest. Records indicate judges and lawyers were overtly discriminatory to their subjects.
The notion that indigenous peoples were lawless imposed a social reality that dehumanized the native population. This experience has become so embedded in the collective consciousness of racialized groups that it continues to define the institutional features of legal practice and society at large. Still today, less than a handful of aboriginal candidates secure a spot in law school despite the academy’s best efforts at outreach.
The Law Society of Upper Canada, founded in the 18th century, was modelled after the Inns of Court in the UK. As the local Canadian industry moved from Montréal to Toronto in the 19th century, Canada’s robber barons installed an insular community of economic power, imitating the British model of aristocratic privilege. The law firm was the nexus of finance and industry, then as now. In fact, William Osgoode—Ontario’s first Chief Justice and the namesake of Ontario’s original law school—was a prominent member of the Family Compact. As Constance Backhouse has argued, the wealthy protestant elite who presided over the LSUC fashioned the legal profession in their own image.
Next came the period of globalization from confederation to the Second World War. Inflows of immigrants enriched Canada’s ethnic and cultural complexion. Therefore, the legal profession’s gatekeepers made rules to entrench racial and social hierarchies. With substantive law such as the Chinese head tax, Japanese internment during the war, and the Komogata Maru incident, the professional organization constituted itself as a bastion of whiteness to reinforce male Anglo-Saxon hegemony in Ontario.
The history of Ontario’s legal profession illustrates how the flows of globalization have empowered a predominantly white and insular legal and capitalist elite. Too little ink has been spilled on the perpetuation of socio-economic privilege in law today, and what that implies for the economy and society at large. In fact, U of T’s law and economics czar Michael Trebilock mentioned tuition rates only once and “parenthetically” in the latest review of legal aid in Ontario. That’s rich, coming from someone who makes over $300,000 per year (although I suppose that’s only worth approximately nine and a half U of T students).
So often, Canadian institutions adopt the intellectual, pedagogical, and institutional forms of our peer jurisdictions. To this end, globalization has contributed to our profession’s unthinking pursuit of isomorphism with the US and UK. In 1998, following the deregulation of tuition for
Ontario’s professional programs, the dean of U of T’s Faculty of Law Ron Daniels led the charge. Adopting the justifications of the Neoliberal law and economics canon, originating at the University of Chicago, Daniels sought to raise the tuition rate so that U of T could compete with top US schools. The province’s other law faculties followed suit, yet again evincing a pattern of institutional isomorphism. Just last year, U of T rewarded his effort with a free degree despite opposition from students.
It is writ large that the growing price tag for tuition is instrumental in the high cost of legal services, and the unavailability of sufficiently remunerated legal jobs. With growing debt loads, providing lower cost services has become unimaginable. As markets go through cycles of boom-and-bust, the number of articling positions naturally grows and contracts. But because law school is a seller’s marketplace, with ten times more applicants than spaces, the price tag can go against the market in spite of economic conditions.
What is more, in 2005 Statistics Canada reported that deregulation of tuition in the 1990s—which nearly tripled the cost of law school—negatively impacted enrolment from students with the least educated families. Meanwhile, in Québec and British Columbia, where tuition rates remained fairly stable in the same period, there was no similar finding. Today, McGill’s Faculty of Law charges little over $7,000 to students, yet it remains competitive with its counterparts in Toronto and around the world.
As a result, students with parents holding a professional degree are the most likely to pursue a professional degree themselves, a more invisible form of socio-economic privilege not accounted for by many critiques. Even a cursory economic analysis highlights that the access to justice crisis is not merely about unmet demand, it is equally about the limits and burdens imposed on labour supply. Granted, Osgoode and other schools have implemented limited programs of back-end debt relief, and contingent income-based loans. But these are band-aid solutions generated for publicity and with little real impact on the student body at large. They are palliative toward the condition rather than curative of the disease.
Isn’t it ironic that the real beneficiaries of this whole cartel model—the professors, and not legal practitioners—are those exhorting us to take action in the access to justice crisis? What a sad irony indeed that increasing tuition renders legal services unaffordable for the average Canadian in need of a lawyer, while promoting the underemployment of its graduates. Rather than a golden ticket it is a fetter. Law school today is not the environment of unbridled intellectualism it could be, but rather an economic bait and switch that breeds misery and discontent among its student body.
Like so many other institutional features of law school, our pedagogy is also an import, imitating Harvard Law’s case-based method developed in the early 20th century. In the first few weeks of 1L, law students are inculcated to be servile and obedient. Hand in your essays on time. Do your pop quiz by this Monday. Embrace the “do as you’re told” culture now and you are sure to succeed in OCIs. This is the law’s vision of professionalism. It’s the way things have always been done.
You have made it into the adult version of elementary school. Now if you can survive the internecine academic competition given effect by the curve, you can make 1L count, and you stand a chance at making it into the legal workforce. But if you do not, keep in mind there are no refunds. Is law school a sublime meritocracy? Or in a system where one case or rule citation can separate an A from a B, is it actually a culture of false merits?
We are told tuition increases are necessary to enhance the academic program in law school because education is a “people business.” Such an approach overvalues school faculty while ignoring the practicalities of the law school experience, and law students’ expectations. Why should we pay some professors in excess of $200,000 when we could hire three up-and-coming legal academics to teach and write even more for the same price?
It is time our legal academics realize we are striving for an A+ intellectual institution on a B+ budget. We never have, and never will be, on the same playing field as the highly capitalized private US research universities. To think otherwise is a delusion.
The magnitude of many professorial salaries exceeds twenty times the median Canadian incomes. They are often justified in terms of competitiveness with the legal and academic marketplace. Indeed, many of our teachers have expensive and elite Ivy League degrees. Yet, how is the comparison justified if many of our professors have never practiced law? Or if some receive salaries in private practice alongside their teaching obligations?
Today, there are fewer jobs in traditional law, and the extant model is being disrupted and challenged by global forces. Not only does the market-based salary justification illustrate in microcosm the sort of social and economic privilege that has pervaded our profession’s history since its founding, it exemplifies a vast disjuncture between the academic world and its epistocrats, and the growing legal labour market diseconomy that it has given effect to.
The stinging irony is that all of this arose at U of T because of a concern about international competitiveness. But it was not about the competitiveness of our legal economy or labour market. Rather, it was and is about the selfish prestige of law faculties and their professors. Our economy is undergoing a digital transformation, given life by social technologies and made possible by regulatory innovations such as the LSUC’s Alternative Business Structures (ABS). Our failure to address the dramatically rising cost of legal education will ensure, ironically, that our graduates will be at a huge disadvantage in this brave new legal world. The Canadian legal market will thus be undermined in this age of economic globalization.
We may live in “rapidly changing times,” but plus ça change. Instead of doing as we are told, I exhort my fellow law students to be advocates of our interests, and those of society at large. Law is a public good that suffers from a diseased mindset of competition and privilege.
Together, I am confident we can realign the legal academy with the avowed progressive and social science orientation that characterized Osgoode Hall’s younger academics during the “fiercest debate” in the 1940s.
I say down with tuition rates, or off with their heads! The revolution is nigh. Now, please excuse me while I get my pitchfork.
Michael Motala is a second year JD student. Follow him on twitter.com/michaelmotala