Legal Education

Undergraduate nature of legal education in North America

Canada has been following the trends marked by the United States in terms of legal education for the last 40 or 50 years.

Unlike in Europe, Latin America, and other parts of the globe, legal education in North America requires some undergraduate education. There are no undergraduate law degrees in the United States or Canada. The program of studies leading to the first degree in law (Juris Doctor or J.D.; Bachelor of Law or LL.B.) lasts three years and covers the basic principles of American or Canadian Common Law, respectively. It is an undergraduate education in nature. Students do not do research, the writing requirements are minimum, and they don’t produce a thesis. They attend classes and write an exam, generally worth 100% of the final grade at the end of the term.

Law professors

Law professors are practically the only ones who are not required to have a graduate degree or graduate education, i.e., they have never carried out research in their studies and have never written a thesis. The recruitment process of law professors is strongly influenced by the AALS in the United States and law schools invariably recruit professors from relatively recent graduates of a handful of Ivy League law schools. As a result, there is not much diversity in the faculty.

Law School Admission

Prospective law students must first obtain a four-year (or sometimes three-year) undergraduate degree in any field and take the Law School Admissions Test (LSAT) before applying to law schools.

Apart from having an undergraduate degree, which screens out those who cannot afford a seven-year university education, you must take the Law School Admissions Test (LSAT) before applying to law schools. There are studies that show that there is nothing in the LSAT that may assure that those that have a high score have high intellectual skills. But then, why is it used so widely both in the United States and Canada? Simply, because it guarantees that those who subject to all the arbitrariness of the test will also subject to the arbitrariness of law school.

Purpose of Law School education

The only purpose of legal education is to socialize students in the profession. In law schools, instruction is limited to the analysis of edited appellate opinions. Its substantive content is quite irrelevant and professors insist that the main objective is to teach students to think like lawyers.

Actually, thinking like a lawyer is very simple. You can grasp legal thought, i.e., thinking like lawyers, in one hour or less. It basically entails two very simple propositions. First, to be able to argue both ways. This means that you have to be prepared to think of an argument in favor of a certain position, e.g., that your client is innocent, and against that position, e.g. that your client is guilty. Second, you learn to be able to isolate all non legal issues from legal issues and to apply certain fact to rules. The dysfunction that arises from the first proposition is that lawyers do not commit to any cause, and hence are quite conservative. The second dysfunction is that you learn to ignore the experiences of marginalization and exclusion and to ignore the influence of social locations and social identities. In other words, you lean not to question the basis of the system and not to challenge the problems presented by seeking radical solutions outside the given framework.

So, thinking like a lawyer is very easy. Why, then, spend at least 3 years in law school? Well, one thing is to understand how to think like a lawyer and another different thing is to actually be convinced that this is a good way to reason. And that is where Law School comes in. No one in his or her right mind -not even lawyers- can believe that legal thought is a sound approach to resolve any problem. But throughout the 3 years of law school you are convinced -brainwashed I should say- that this is the best approach. They do this by showing you the rewards you will have if you follow -and internalize- this way of thinking.. And this is done by means of the Socratic method which places the law professor as a dominant authority figure. This in turn reinforces respect for authority power.

As to content, there is a divorce between what you learn in Law School and what you do in practice, in real life. There is also a divorce between what you do during the term and the way you are evaluated.

Bar admission

The legal profession has defined the parameters of the practice of law and carefully exclude all who cannot utter the password of bar membership. In the United States, access to the profession is through an exam, where students have to memorize thousands of useless legal rules. In Canada, emphasis is on articling, where students learn by osmosis, by being in contact with practicing attorneys. The articling system in Canada is complemented with some combination of bar course and bar exam. Bar associations act as interest groups whose main objective is to be the gatekeepers of the legal profession, i.e., preserve lawyers’ monopoly over legal practice.

The courtroom workgroup

The courtroom workgroup represents the shared understanding between lawyers and judges regarding the proper disposition of a case.  The norms of the courtroom workgroup frequently encourage plea bargaining or other quick resolutions to a case.  Defense attorneys often suffer an inordinate amount of pressure to maintain their dual role, serving both the client and the court.

The prosecutor holds significant power and discretion over the decision to charge a suspect and is often cited as being the most powerful member of the courtroom workgroup.  

Just as the police are seen as the gatekeepers of the criminal justice system, prosecutors are viewed as the gatekeepers of the courts. 

Once charged with a crime, a defendant may be in need of a defense attorney.  

The duties of a defense attorney are vital in protecting the rights of the accused. 

• Although they are often criticized on a number of ethical issues, indigent defense systems in every state serve the majority of defendants in the criminal justice system. 
• Finally, the roles and responsibilities of judges are examined. 
• Judges are the “referees” of the courts and perform an important administrative function in its management.  
• All three main players in the court have roles, duties, and levels of discretion, yet all work together in the same forum to produce justice. 

  The process by which judges and prosecutors are appointed plays a large role in their subsequent decision-making.

•  There are pressures and influences surrounding every selection method used in the judiciary.
•  Presidential nomination of judges entails the approval of politically motivated persons and groups.
•  Public election of judges entails a dependency on public satisfaction with job performance for re-election.
•  Even merit selection, which combines these methods of nomination and election to overcome their limitations, still retains a measure of political affiliation.

Similarly the nomination of district attorneys and the appointment of prosecutors to specific cases is a political process.  Overall, the method used in the selection of prosecutors or judges will play a large part in the discretion used by each official of the court.

There is a distinction between the normative and actual role played by defense attorneys in North American courts.

•  Defense attorneys represent “double agents.”  On the one hand, they have a service to provide for their clients regardless of the fact that they may believe the accused to be guilty of the crime charged.
•  On the other hand, defense attorneys have an important role to perform as a member of the “courtroom workgroup” and the ultimate dispensation of justice.