Date: Fri, 8 Dec 2006 10:32:25 -0500

From: David Cheifetz

Subject: If I Prick Thee ... Law Schools, Law Students & Research Competence

Holiday Humbug

In a lighter vein, with the approach of the holiday season, and somewhat in the holiday spirit, since Scrooge is now part of the holiday season mythos ...

Over in Slaw there's a post that mentions that the "the Faculty of Law at the University of Toronto is reconsidering how to teach legal research and writing to law students, with the goal of ensuring that graduates know how to find the law, and conduct effective legal research."

With that in mind, I offer this, in the holiday humbug spirit.

Let’s apply some flawed logical analysis to this problem - analysis about on the level of too much of what passes for acceptable legal analysis these days in too many of the areas in which I practice - and see where it leads us. Law students and lawyers should learn how to put up and knock down irrelevant straw men. It’ll give them good practice when it comes to writing facta and dealing with opposing counsel, judges and reasons for judgment.

If it’s true that, after all these years, Canadian laws schools are still turning out graduates who aren’t competent at legal research, that suggests (inductively) that it’s not really the schools’ or teachers’ problem. It suggests that it’s a problem relating to the qualifications of the students.

On the presumably appropriate assumption that the entire Canadian class of still-living lawyers and judges is composed of people who were once law students, let's apply an example of practising lawyers' and judges' too-common approach to the scientific method and test an hypothesis to see where it leads. Let's assume that that the schools’ admission standards are simultaneously both too low and too high. Assuming simultaneously inconsistent propositions is permissible in legal logic. Law calls this approbation and reprobation. Law students should learn that, too. It’s much nicer way of saying "sucking and blowing at different times. Literature calls this "cognitive dissonance", but we won't go there as (1) we're examining law, not literature and (2) how can we expect overburdened Canadian law students to study (let alone remember) Keats when they're overburdened with the resonances between (a) Scottish snails in opaque ginger-beer bottles and (b) North American flies in transparent water bottles? Given the relative immobility of snails as compared to the common house-fly, I think it safe to assume the snail was a "Scot". On the other hand, it's not safe to assume the fly was not a visitor from the United States. (Note the double negative: legal logic likes to be careful. Remember that two negatives do not necessarily equal a positive - we wouldn't want to unnecessarily offend our neighbour to the south.)

First, I’m reasonably certain (anecdotally, and from personal experience) that if we were to check an adequately-sized sample of graduate, practising, lawyers who were admitted to law school immediately after 2 years of university education (in the interests of efficiency, I'm limiting this to the sample of graduates who wouldn't "fail" current medical tests for brain death), we’d find that all of them easily met the law schools’ requirements for (at least) research and writing aptitude. If we assume that state of affairs is likely to exist for future candidates, the law schools could restrict admission only to that group.

I suppose, though, that might make for too small a class. It would probably play havoc, too, with the most of the schools’ sports teams’ recruiting drives (at least in some cases), but then that’s probably no longer (if it ever was) a central feature of the schools’ admission standards.

On the other hand, I understand that the 2-year window has been or is being eliminated. If so, this suggests the schools should reconsider that. However, eliminating this group would not deal with the assumed problem as its members are small percentage of any graduating class.

Next, let's consider what we'd find if we checked an adequate sample of those admitted as mature students. Again, based on anecdotal information, there's reason to assume that all, or at least most of them, also meet the law schools’ requirements for research and writing aptitude. If the assumption is valid, then law schools could continue to admit that group. However, eliminating this group would not deal with the problem as its members, too, are small percentage of any graduating class.

That means the bulk of the problem students come from the group admitted on the basis of at least one undergraduate degree. If this is the case, well … post hoc ergo propter hoc, right? If we eliminate that group from those eligible for law schools, or at least raise the admission standards - say nothing below nomination for Nobel prize or its equivalent (excluding economics) - it seems we’ll have a reasonable chance of a graduating law school students who know how many legs there are in a syllogism, and where to put them.

I realize that, if these standards had existed in the past, most people who are now practitioners, judges, and academics would never have been admitted into law school and, similarly, their equivalents won’t be admitted in the future. However, wouldn’t this be a small, but appropriate sacrifice to eliminate the problem that the schools are concerned about? And, I’m sure that all of the schools of study from which those students came would benefit from the contributions of scores of talented students who stay in their undergraduate fields for post-graduate work rather than moving to law.

I suppose I could admit to having been one of the 2-year babies, but then I can always claim (accurately) that Osgoode needed another goalie for its hockey team.

Mea culpa, cheers, and best of the season to all,

David

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