Monday, 9 September 2013

DOES MEMORIAL NEED A LAW SCHOOL?

The President of Memorial University, Dr. Gary Kachanoski, thinks it is time to "again examine the feasibility of establishing a law school at Memorial.  It’s been 25 years since the university last reviewed this avenue”, he stated in February.

University Presidents tend to like legacy projects. Mose Morgan built the Music School; others, including engineering, medical, nursing and business are all important legacy projects of Memorial Presidents.

But, do we need a law school?  The arguments are murkier than those advanced for the other professional schools.

This Province’s population has actually declined, and the number of practising lawyers has increased, since the idea of a law school was first studied. This might suggest that the number of lawyers, per capita, is a meaningful measurement of how well a society is served, by that group.  But, is it?

The Canadian average, according to a McLean’s 2009 article, is one lawyer for 421 people.

In Nova Scotia it is 485 people, Alberta 458 and in Saskatchewan 660.  The three Provinces have law schools.

In Newfoundland and Labrador the per capita average is one lawyer for 710 people.

Still, lawyers have set out a shingle in pretty much every town of reasonable size.

Is the arithmetical imbalance, cited, evidence of a social deficit? 

Comparisons with other Provinces help the analysis but the numbers, alone, should not be weighed too heavily. More than individuals, businesses represent a large demand for legal services. 

NL has an economy dominated by big government and a small number of big companies, especially big oil, whose needs are met largely by firms with international heft.  Increasingly, our law firms, too, are connecting with those in Halifax or elsewhere, to achieve better economies and access to diverse expertise. 

NL does not have a big economy, independent of oil, nor a mature sector of small to medium sized businesses with which to combat our propensity for boom and bust, and as an alternative to mega projects. 

Can the Government even afford to underwrite a law school? 

It is a fundamental question. The public purse already funds over 70% of Memorial’s capital and operating costs.  Despite our nascent wealth, the Government still relies upon deficit financing.

Is a law school a priority within Memorial?

Our University, has an infrastructure, which until very recently, was visibly crumbling.  It is still hard pressed to manage many of its essential programs.  Should it achieve more breadth, rather than depth, before reaching into additional program areas? Count on many, inside and outside Memorial, to have a problem with that suggestion.

The issue of a law school is no minor matter.  Because it represents both significant upfront and recurring costs, the question should be tested not just against a benchmark of priorities for Memorial.  It needs to be butted against those of the Province, as a whole.

This Fall, Lakehead University, located in the northern city of Thunder Bay (population 122,000), will accept law students to “Ontario’s first new law school in decades”, in a province “already teeming with lawyers”, wrote Canadian Press reporter Allison Jones, whose article dwelled on the problem of Ontario law students finding article positions.

Lakehead Law School Dean, Lee Stuessar argues that scarce article positions are not a problem in northern Ontario. In addition, local aboriginal bands are “thrilled” with the new law school and expect more native students to attend and more lawyers, sensitive to native issues, to be an outcome.

"I'll be blunt, I think that many…universities want a law school for the wrong reasons...They perceive it as being somewhat prestigious…," said Dean Stuesser.

The Dean’s comments underscore the issues which are central to the question the Memorial University President poses. 

In particular, they suggest we should ask whether our legal community, or the broader community, has identified serious deficits in the legal representation of our disadvantaged. Have our aboriginal people been crying out for more ‘aboriginally sensitive’ lawyers?  Are our many small rural communities suffering from a lack of such services? How far away from a law office is considered remote and can that community sustain the costs of such a professional?

If the answer to any of these questions is in the affirmative, why haven’t we heard from any of these groups?  Indeed, when have we ever heard any citizen experiencing difficulty seeing a lawyer?  Isn’t the message of every “Make the Call” legal advertisement a plea for a full docket?

Dean Lorne Sossin, of Osgoode Hall, acknowledges that Canadian law schools face some of the same challenges as those that underpin “an existential crises” among U.S. Law Schools, citing high tuition costs, high student debt and problems of articling.  He suggests the situation in Canada is different; that our tuition fees are “on average, about half the cost of an American legal education”.

Implicitly, the Osgoode Dean acknowledges the large subsidies, that underwrite a substantial portion of the cost of professional schools, are an integral part of the Canadian law school equation.

Dean Sossin turns aside the problem of articles.  He believes: “We need people capable of making the justice system work in the public interest. We need problem-solvers. We need champions of economic innovation and social justice. We need leaders. Lawyers remain very much in demand, particularly to address access to justice for middle-income communities…”

Dean Sossin seems to submit that lawyers are more valuable than their contribution to GNP suggests.  He places them in a special circle, one that ascribes  a public policy role as well as qualities less definable than those of, the ostensibly more pragmatic, Dean Stuessar of Lakehead.

Then, let’s ask the question: 

Would more lawyers assure this Province a more vigorous citizen participation in public policy issues, both with and without specific legal import? Would more lawyers reduce the prospect of unwise legislation or other government sponsored initiatives?

The Muskrat Falls issue, for example, enshrouds a multiplicity of legal and economic issues as well as those of governance and transparency. On the legal side, alone, the complexities mount with decisions, like that of Nova Scotia’s UARB and latterly with additional legal challenges involving aboriginal groups and Hydro Quebec.

The implications are staggering, when their economic and social impact, by a prematurely sanctioned multi-billion dollar mega project, is considered.

Then there is Bill 29. 

Apart from two of the three that are Cabinet Ministers, you can count on one hand the number of NL lawyers who were actively engaged in the issue, on either side.  The NL Law Society counts 717 lawyers as practising Members.

How many more lawyers must graduate before those, that Dean Sossin calls “champions of economic innovation and social justice”, put up their hands?

Perhaps, I misinterpret Dean Sossin; he may have been speaking in a more commercial context.  Perhaps, my expectations are too high. Perhaps, lawyers like most other professionals, just want to work without the burden of any overriding preoccupation with higher ideals.

But, if that is true, where is the pay-off for the society that underwrites much of the cost of creating the excess of law graduates who, as in parts of Ontario, can’t find articles or as in the U.S., can’t find jobs? 

Does Memorial need a law school?

Students from across Canada come here to enroll in Memorial’s diverse programs. Can other campuses continue to supply seats for our law applicants as, for example, we now provide in our medical school? Do Newfoundlanders and Labradorians have difficulty gaining access to law schools? 

Acceptance is a competitive process based upon academic merit. According to one lawyer, who would know: “there has never been a problem for good Newfoundland students to get into law schools in the rest of Canada.”  Another, sagely, adds: “It’s not such a bad idea if our lawyers, lived for a while and were trained in a place other than where they performed their undergraduate work”.

Has our legal system received critical review?  

Retired Canadian Supreme Court Justice Antonio Lamar, in 2006, conducted a public enquiry and issued a “scathing” 486 page Report, in which he made 45 recommendations for improving the administration of our justice system; he made no mention of a deficit of lawyers in the Province.

NL possesses an increasingly large group of aging and “low income”, many of whom are associated with seasonal work, in our widely dispersed outports.    

Will more lawyers make the cost of legal services, to them, less pricey or the Court system more efficient? That is certainly doubtful. 

In last year’s round of budget cutbacks some lawyers, in the Prosecutor’s Office, received the ax. This is hardly the action of anyone, including the Minister of Justice, suffering concern over a paucity of legal talent. Though some reinstatement followed the ensuing outcry, one should not be too hopeful that a heavily subsidized law school will be matched with bigger budgets for the justice system.    

Advocates of legal aid services, too, have always despaired over the availability of money; not the availability of lawyers.  Those offering private legal services are none too private about deriding the paltry legal aid rates that fail to cover the cost of running an office.

Some local lawyers whisper that already Firms, in St. John’s, have young hires who should be a lot more productive.

Is Memorial looking for a law school or is it searching for prestige?  According to Lakehead’s Dean of Law, on some campuses, just possibly there is a relationship.

It will cost many millions of dollars to construct a campus, develop a law library, hire professors and subsidize tuition. Students will come, but our better students will still want to go to established law schools with good reputations.
Let me declare my bias, in case it is not already evident:  I value our University. I am on the side of what strengthens Memorial; but, any decision predicated on extracting more funding from an unpredictable and already over-stretched public purse, does not work for me. 
 
If Memorial’s President intends to establish proof that the need exists for a law school, one that transcends notions of prestige, and that exceeds all other priorities, his Committee truly has its work cut out.

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