Is slashing the number of law students the solution to Ontario's articling crisis?

The complaints office for jobless articling students.

The Law Society of Upper Canada has been examining the articling crisis in Ontario. Earlier this year it established the Articling Task Force to trace the dimensions of the crisis and advance solutions. It recently released a consultation report and opened a period of public consultation. This post is going to survey the dimensions of the articling crisis, explore whether the increase in enrollment is the cause of the articling crisis and then offer some ideas about how the situation can be addressed.

Articling in a Nutshell

Some of my readers might be confused at this point, so let me explain what articling is. It's essentially a period of apprenticeship that all law students have to complete to become lawyers. After law school students must work for ten months under the supervision of a practicing lawyer, complete a professional skills and responsibility course and pass two comprehensive exams about law covering a range of topics. The articling process is overseen by the Law Society as part of its mandate.

Articling is a difficult process, but a fair one that exposes law students to the realities of legal practice; however, it should be noted that the quality of the articling experiences varies considerably and I've heard horror stories ranging from sexual harassment (common) to not paying minimum wage (uncommon) to lawyers literally beating students (rare). 

I've reviewed the report and it's well-researched. The Articling Task Force has asked a series of probing questions that will no doubt garner a significant amount of discussion and response. The report suggests a spectrum of solutions, from keeping the status quo all the way to abolishing the articling requirement completely. It's encouraging to see a greater range of options being explored, but I remain unconvinced that the critical mass exists to make the changes that are needed.

The dimensions of the articling crisis are complicated, but not overly complex. In a nutshell: the legal profession is getting older and becoming highly urbanized; amid a moribund economy there's little opportunity for growth; the legal industry is facing stiff competition internationally from globalization, consolidation amongst large corporate firms and outsourcing; legal education has become increasingly commodified amid funding cuts adopted under a neoliberal public policy; and, finally, at the core of the articling crisis there's a demand problem with too many students competing for too few entry-level legal jobs.

Is the articling crisis a result of a cash grab by universities?

The 99% want a tuition refund.

A couple issues from the report jumped out at me in relation to the exponential increase in the number of students seeking articling jobs. First, there is the growth of internationally trained students enrolling in the articling process, this issue has two dimensions: Canadian students going abroad to obtain legal education and immigrants to Canada seeking recognition of their foreign credentials. This is an area that the legal profession has limited control over as it can't erect extensive barriers to entering legal practice, although there anecdotal evidence that these groups face increased difficulty entering the profession.

Second, the enrolment rates at most of Ontario's law school have posted small increases from 2001 to 2011 (increases in actual numbers and percentages are: Windsor, 26, 8.2%; Osgoode, 6, 2.1%; Western, 23, 13.9%; Toronto, 34, 15.4%; Queen's, 2, 1.2%; Ottawa, 98, 33.2%). The University of Ottawa's Faculty of Law is the exception, posting the largest increase over the the last decade with the number of students shooting up to 295 in 2011 from 197 in 2001. Regardless of the unique structure of the faculty with separate civil and common programs, this problematic increase falls far outside of the growth rates seen at Ontario's other law schools.

It's no secret that law students have greater value than most types of students under the funding formula used by the Ministry of Training, Colleges and Universities to set university operating grants. In the wake of fee deregulation the suggestion has been made that tuition from law students is used to financially prop up university operations. If this is actually what's occurring at the University of Ottawa and other law schools then quite a bit of effort is being expended by the legal profession to address a problem that's really the chronic underfunding of post-secondary education rather than one arising out of the labour market.

Should the Government of Ontario adopt an interventionist approach?

There's an "easy" regulatory fix to the articling crisis that wasn't contained in the report for unknown reasons. Placing hard caps on enrollment isn't a new idea as both education and medical faculties in Ontario currently have enrollment caps in place. Given the limited short-term growth prospects for the legal profession it might be time to decrease the number of spots available at Ontario's law schools as the supply currently outstrips demand. 

Here are some arguments for enacting enrolment caps. It would rapidly reduce the number of students competing for articling positions. It would alleviate the need for more radical reforms of current articling process. It would address the unfair tuition fee deregulation that has law students financially supporting other university operations. It could be structured in a reflexive way that allows for enrolment growth to be linked to economic and population indicators. Finally, considering the tension between the government and the law society

Criticisms of enacting enrolment caps cover a number of disparate arguments. A cap would impinge on the self-regulatory nature of the legal profession (albeit in an indirect manner) and it would interfere with the internal operations of law schools. A cap is a interventionist public policy response into the labour market that might be viewed as a form of economic planning, although governments generally shy away from this sort of public policy. Reducing the pool of law students could have implications for access to justice and the diversity of the profession. Finally, with many foreign institutions offering legal education, students may simply leave Canada for law schools in Australia, the United States and England.

Despite these criticisms, decreasing enrolment at Ontario's law schools represents sound public policy if enacted as part of a wider strategy that includes responses from the law schools, government and the law society. No one stakeholder has a lock on the solutions required to address the articling crisis in a comprehensive sustainable manner. It's clear that law students are getting a raw deal from the law schools, law society and the government - this has to end. 

What's worrying is the fact that the government, law schools and law society are working at cross-purposes, consider: the new law school at Lakehead University; a lack of current labour market information that might dissuade students from attending law school; law schools increasing enrolment amid a poor labour market; the limited regulatory oversight from the Ministry of Training, Colleges and Universities over the enrolment policies of Ontario's law schools; the law society's short-sighted previous attempts to address the crisis; and, the minimal support given to students who haven't found a job. 

It's clear that something has to give and hopefully the law society and other stakeholders will actually enact the measures that are necessary. I'll continue to report on the developments in relation to the articling crisis and if you have any comments please leave one or send me an email.

Further Reading on the Articling Crisis

I've culled a number of resources tracing the dimensions of the articling crisis. Osgoode Hall's Dean, Lorne Sossin, wrote an excellent article earlier this fall. The Law Times has run a series of articles, see: here and here. The Globe and Mail recently ran an article about the issue. Canadian Lawyer has a run a couple feature length articles, see: here, here and here. I've previously written about the articling crisis, check out this article where I ask if law students are being sold a bill of goods and this interview with two candidates from the recent Benchers Election.