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The C Ndition of Legal Education in Canada* The C ndition of Legal Education in Canada* MAXWELL COHEN t. Montreal Two or three generations of Bar papers, studies and reports' make it abundantly clear that legal education long ago became a hardy perennial of discussion within the profession.. Yet, examining the volume and quality of 'thinking by lawyers and scholars in Cana- da, the United States and the .United Kingdom, ovér the period of the past seventy-five years,, it is evident that the what and the how of teaching law have had the serious attention of some very good minds., And the fact that the issues reassert themselves at x The statistical and other data in this paper are compiled substantially from the replies to a questionnaire sent to,all Deans of Canadian law schools and faculties . Without their ready_ and unstinting co-operation the material could not have been assembled; The questionnaires were followed up with a visit by the writer to almost all law schools in Canada in the summer of 1949, thus permitting first-hand observation and many personal interviews with deans, staff members, students, Bar officials, university authorities and others. This personal investigation was made possible by grants from the Canadian Social Science Research Council and McGill University. Although a shorter version of this paper was presented to the Section on Legal Educa- tion and Training at the Annual Meeting of the Canadian Bar Association in August-September 1949, at Banff, Alberta, the paper was prepared prin-' cipally for publication in the Canadian Bar Review, and in the gathering of information the writer has had the frequent help of the Editor, Mr. G. V. V. Nicholls. Maxwell Cohen, B.A., LL.M ; Associate Professor of Law, McGill University; Member of the Quebec and Manitoba Bars . 1 See Reports of the Legal _Education (Commttee) Section, in 3 Proceed- ings of the Canadian Bar Association (1918) 118 (Mr. Justice Russell) ; 4 Proceedings (1919) 150 ; 5 Proceedings (1920) 250 (The standard curriculum, recommendations) ; 6 Proceedings (1921) 241 (Curriculum adoption by prov- inces, casebook materials, research, staff needs, etc.) ; 7 Proceedings (1922) 259 _(Need of teaching books and raising admission standards) ; 8 Proceed- ings (1923) 376 (Survey of Canadian legal education, condition and needs), and annually thereafter ; the most recent report is in 23 Proceedings (1949) 178. 2 One of the earliest statements is Dicey's in his, Can English Law Be Taught . at the Universities? (1883), Inaugural Lecture, All Souls College. The following Canadian, British and American references are indicative. of the interest of the profession and the variety of the views. MacRae ; Legal Education in Canada, Report of a Canadian Bar Association Committee 268 THE CANADIAN BAR REVIEW [VOL. XXVIII frequent intervals is indicative more of the fluidity of the pro- blems, and the difficulty of final judgments on methods and ob- jectives, than of indecision or immaturity within the profession - academics and practitioners alike. These pressures for frequent re-examination of the character of professional training for the law have many sources. There is the increasing complexity of the legal order with its novel and varied technical demands. There is the problem of how to achieve an appropriate admixture of technical competence with cultural breadth and humane insight. There is the very substantial parti- cipation in our constitutional society of the legal profession in the sources of political power, with the resulting public relations of the profession often a paradox of public prestige and public suspi- cion.3 There is the clash between idealized memories of profes- sional training in former generations, or in more ancient centers (1923), 1 Can. Bar Rev. 671; Stone, Some Phases of American Legal Educa- tion (1923), 1 Can. Bar Rev. 646; Montgomery, Problems of Legal Educa- tion (1934), 12 Can. Bar Rev. 431, 510, 639 ; (1935), 13 Can. Bar Rev . 31 ; Report of the Special Committee of the Law Society of Upper Canada (1935), 13 Can. Bar Rev. 347; Wright, Law and the Law Schools (1938), 16 Can. Bar Rev. 579; Hazel, Law Teaching and Law Practice (1931), 47 L.Q.R. 502; Wright, The Study of Law (1938), 54 L.Q.R. 185 ; Internship for Lawyers (1946), 30 Jour. of Am. Jud . Soc. 59 ; Review of Legal Educa- tion during the War (Symposium) (1947), 1 Jour . Soc. Teach. Pub. Law (New Series) 23; Simpson, The Function of the University Law School (1936), 49 Harv. L. Rev. 1068 ; Simpson, Trend of the Law in its Impact on Legal Education (1944), 57 Harv. L. Rev. 558 ; Llewelyn, On What is Wrong with Legal Education (1935), 35 Col. L. Rev . 651 ; Frank, A Plea for Lawyer Schools (1947), 56 Yale L. J. 1303 ; Frank, Why Not a Clinical Lawyer School (1933), 81 U. of Pa. L. Rev. 907; Hentig, Clinical Method in Teaching Criminal Law (1934), 24 Jour. of Cr . Law 1081 ; Henderson, Wherein Do Law Schools Fail to Prepare a Student for Practice (1941), 9 Am. L. Sch. Rev. 1178; Shaw, Legal Education and Legal Clinics (1937), 53 Scot. L. Rev. 74, 111. See also many articles in the newly founded Journal of Legal Education, in particular : Caldwell, The Law School of the Future (1949), 1 Jour. Legal Ed. 388 ; Cavers, "Skills" and Understanding (1949), 1 Jour. Legal Ed. 395; Prosser, Lighthouse No Good (1949), 1 Jour. Legal Ed. 257 ; Hornstein, A Lawyer Looks at the Law Schools (1949), 1 Jour. Legal Ed. 516. See also the following monographs surveying the United States experi- ence from special points of view : Brown, Lawyers, Law Schools and the Public Service (1948) ; Brown, Lawyers and the Promotion of Justice (1938). For the classical analysis of the orthodox case method see Redlich, The Common Law and the Case Method in American University Law Schools (1914) . An older survey of law schools in Canada and the United States is contained in Reed, Present Day Law Schools in Canada and the United States (1928) . For a comparative approach to medicine, engineering and law see, Education for Professional Responsibility (A Symposium) (1948). For a summary of continental legal education see Schweinburg, Law Train- ing in Continental Europe (1945) . The most recent Canadian views are set forth in several papers in (1950), 28 Can. Bar Rev. 117-196. s Brown, Lawyers, Law Schools and the Public Service (1948), passim ; Llewelyn and Fuller in, Education for Professional Responsibility (1948), at pp. 101-113 and 14-35 respectively. 1950] Condition of Legal Education 269 such as the United Kingdom, and the realities of present-day urban and rural practice in North America.4 There is the chang- ing r6le of pure litigation and the growth of small and large-scale corporate organisation with their effects on practice. There is the admission to professional life of many new classes of people through the growing mass movement from high schools to the univer- sities. All these have led to a continuing professional concern with real as well as imagined gaps in the training with which young lawyers, have seemed to 'begin their professional lives and the not-so-young lawyers' to carry forward their rate of professional advance. Heretofore, too large a number of studies and reports on legal education in Canada have been subjective, almost intuitive state- ments, with a minimum of .objective; quantitative data about the teaching of law and the profession as a whole. Indeed, if one examines the reports. of the Section on Legal Education and Training of the Canadian Bar Association and other bodies, as these have appeared in the Canadian Bar Review and the Pro- ceedings since 1923, only in a few cases is there a real attempt to survey quantitatively and qualitatively the teaching of law in Canada, and the most detailed study was made over twenty- five years ago, in 1923; by D. A_ . MacRae, then Dean of the Dal- housie Law School.b When one considers the fact that there have been law schools, law teachers and law students operating on an organized, academic basis in Canada at least since 1848,6 the time perhaps is appropriate again for examining the "facts" of legal education and its relation to the practice of law in Canada in the hope of contributing to the understanding and, further development of both school and practitioner . II. Some Physical Factors in Legal Education in Canada t the turn of the century -1900 - there were about 440 law students in the various academic and professional schools operat- ing in all Canada. The number rose to 1,309 in 1919-1920 with the post-war bulge in enrolment, and became stabilized in 1924 at About 911. By 1932 there were ten law schoôls and the enrolment stood at 931.7 These numbers remained at this order throughout 4 See Comments of Reed, Present Day Law Schools in Canada and the United States (1928), at pp. 26-28. e MacRae, Legal Education in Canada (1923), 1 Can. Bar Rev. 671 . s The Centennary of the Faculty of Law of McGill University was cele- brated in 1948 . 7 Report of Committee on Legal Education, Canadian Bar Association (1933), 18 Proceedings 219 ; 11 Can. Bar Rev. 475. 270 THE CANADIAN BAR REVIEW [VOL . XXVIII the thirties, for example at 936 in 1938-39; and then with the World War II veterans returning the figures for the eleven law schools bounded in 1947-48 up to 2,434 and in 1948-49 to 2,506. 8 The number graduating in recent years also is suggestive. In 1938-39 the figure stood at 255; in 1947-48 it was 527 and in 1948-49 it reached 693.9 Admitting that the disappearance of the veterans group will reduce enrolment and graduates after 1950, it is not likely, however, that the proportions in law will drop more than the estimated decline for all faculties.
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