In Defence of Theory

5 08 2010

I’ve said it before and I’ll say it again: theory is (or should be) an important part of the law school curriculum. This point was once again brought to my attention by a post over at Slaw. Swan is certainly entitled to her opinion, but I must say that I do not agree for two reasons. First, the law-medicine analogy is not always a helpful one and second, a non-academic faculty of law sits awkwardly inside a large, research intensive university.

Of Law and Medicine

I do agree with Swan that analogies between the study and practice of law and the study and practice of medicine can be helpful. I do, however, think they can also be rather dangerous. For example, there are certain basic truths about the human body that, once learnt, will remain true forever; barring any radical changes in our genetics, of course. The same, by and large, cannot be said of the law. It can and does frequently change and this is true of even its most basic elements.

This poses a problem for law schools attempting to prepare would-be lawyers. Should these students be taught material that will be out of date before they even graduate if not sometime thereafter? It might be argued that there are breakthroughs in the life sciences all the time and that the practice of medicine has changed radically in the last 20 years alone. While this is true, I would argue that there still remains a fairly stable foundation that medical school can teach in terms of facts and procedures that will continue to serve a doctor well, even if the tools or techniques change with time.

In this respect, I think theory plays a vital role in any law school. First of all, it serves as a foundational topic upon which to build an understanding of otherwise disjointed and, at times, arbitrary subjects. Second, and perhaps more importantly, it prepares soon-to-be lawyers for thinking about the law. Given its changeable nature, it seems only right that the emphasis of a legal education be upon learning how to think and understand the law rather than learning particular statutes inside and out.

Faculty or Trade School?

It is not at all surprising that faculties of law have been drifting more and more into theoretical or, perhaps, academic waters as of late. Given the tendency across Canada for law schools to exist only at what are, in the Canadian context, major research universities, it is rather unsurprising that they are drawn into emulating the methods of other disciplines. This may also be a product of the fact that most law school students today have already completed an undergraduate degree in a more traditionally academic faculty. One important fact also remains, however, and that is that the education that leads one to be called to the bar in Canada is billed as a university level course, whatever the final degree is actually called.

With this in mind, then, it is surprising that so many commentators think that law schools should be less theoretical, less abstract. Instead, they argue, the focus should be on practical skills and doctrine. In some respect, law school should be more like other ‘professional’ schools with, perhaps, business school coming most readily to mind. Though many of these professional schools sit somewhat uneasily in the university environment, some would argue that we as a society have made our peace with that.

Again, I think this model of ‘professional’ schools falls apart when you leave the applied sciences such as engineering and the medical-related professions. The topics in these courses are both intellectually challenging and demonstrably practical. They solve real world problems, every time. Softer, human created subjects like law and commerce less obviously lend themselves to the same kind of study. For them, the practical is not, or so I’m told, all that intellectually challenging while what is does not pass the test of practicality. In short, you risk ending up with a sea of paralegals out of which the occasional ivory tower looms. The lawyer, I think, should sit somewhere between these two extremes and, I think, that is what a theoretically driven, but not dominated, legal education delivers.

Conclusion

Another thing I’ve said before and also that bears repeating is that it is not law schools that must become less theoretical, but it is articling that must become more practical. True enough the 10 months spent articling involve learning the practice of the law by observation and handling small matters with the supervision of a mentor. That said, it is only 10 months. While it is certainly the case that every lawyer, no matter how senior, is always learning, it is also true that few feel fully confident to practice with only 10 months under their belt, whatever the law society proclaims to the contrary.

To go back to the law-medicine analogy, I think one of its more helpful applications is to consider not law school vs medical school, but articling vs residency. The latter is a much longer and more involved process than the former and perhaps it is that which we should learn from those medical types.


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Theory or Practice: Law School’s Dilemma

22 07 2010

I had a conversation with two of my fellow former first year law students recently. While beginning casually enough, the conversation quickly turned to whether law school should really be three years long. In cruder terms, whether we should be half way done rather of only a third. This is a common enough complaint in the US, but for several reasons I don’t think it is applicable here. The reality remains, however, that there is a palpable tension in Canadian law schools today. An identity crisis of sorts: as institutions of academic and theoretical rigour or as trade schools whose sole purpose should be to teach you the practical skills you need to know as a lawyer. There is no obvious answer, but I do think there are good reasons to prefer the former to the latter.

Arguments Against the Three Year Law School
The first charge that is often levied against Canadian law schools is that they take too long to complete. The concern is that most first year students in competitive programs already have a full, four year bachelor degree under their belts. Law school adds at least another three to that and a fourth once you count bar exams and articles. I must admit that I have some sympathy for this position. Eight years is a long time and, if you do it back to back, you end up a 25 year old who has never held down a real, full-time job (summers don’t count, you see). After all, a quarter century is an awful long time to spend preparing for something.

The concomitant argument is one from opportunity cost. The three to four years law school adds to the equation include both forgone wages as well as costly tuition. Government loans and bursaries cover a lot of the tuition, but private loans are often necessary for living expenses and that does not even take into account the lost wages. This argument has more or less force depending on what kind of background each particular law student has. The cost in forgone wages for a BA in English, for example, is likely much less than one with a BSc in a hard science.

The third argument is from the inapplicability of most of the law school curriculum to legal practice. Many transactional lawyers, for example, will never think of torts again and the vast majority of lawyers in private practice will likely never see a Charter or criminal case if they don’t want to. And yet, these are subjects at the core aspect of the curriculum. I am not in a position to assess this argument’s merits just yet, but my suspicion is, given the amount of choice afforded to students during the course selection process, that the inapplicability of any given student’s course load may have more to do with their own selections than with a grand conspiracy to milk a third year of tuition out of them.

The Difference Between Us and Them
A lot of these arguments are most vociferously espoused by our Southern Friends. There are, however, significant differences between their law school experience and our own. These differences, I think, tend to mitigate against the arguments above. For example, $15 000 for tuition in Ontario is quite different from $42 000 at a Tier 1 (but not T14) law school in the US. Over three years that adds up to $45 000 in Ontario as compared to $126 000 in the US.

Articling attacks these arguments at a different point. Its existence tends to lessen the need to learn practical skills in law school. Sure, your Articling Principal will be happier if you can actually handle a Small Claims Court hearing, but she is also, or should be, expecting your 10 months to break even at best: after all, you are not even fully qualified. Not so in the US. Three years of law school and a brutal bar exam later and you are fully qualified whether you have any piratical skills or not. As such, it makes sense that when a firm hires a new employee they expect that employee to be qualified for the job. Thankfully, that is not yet the case here.

In Defence of a Theoretical Law School
If you haven’t heard a law student say that area X doesn’t make sense, is arbitrary, or is simply archaic, then you haven’t spent much time in a law school. A lot of that sentiment, I believe, is bound up in the fact that most law school courses teach you the law just fine, but they do not attempt, by and large, to get deeper into the problem and explain why the law is the way it is. Now, this might be question begging: not everyone agrees there is a reason why the law is the way it is. Many, in fact, believe there is no rhyme or reason. The law is what it is either because of historical accident or because it is cobbled together by hypocritical judges based on what they happened to eat for breakfast that day.

This is neither the time nor the place to tackle that particular debate, but it does get at an issue that my first year property professor loved to remind us of: theory drives practice. Many scoffed at the time, I assure you, but I don’t think he was wrong. What do we do when we are faced with novel situations? Usually, we try to draw analogies. In doing this, however, we tend to abstract away from the particularities of that particular case to come to general propositions which we can then compare to the new situation. The system of precedents is really just an interlocking web of these generalizations. They connect and impinge on each other in unintended and sometimes surprising ways. Even if we accept that this web is merely the creation of historical accident, we can still attempt to understand its larger structure and how it fits together instead of examining each node of the web individually. In so doing, we often lose the forest for the trees.

Something law students also tend to forget is that judges are not the only ones engaged in fashioning the common law. Cases only go to court and their facts and arguments only get to the judge’s attention because some lawyers got involved. The fact is judges don’t make decisions in a vacuum. Rather, they decide between two competing arguments; arguments fashioned by lawyers. The fact that lawyers do not write the judgment should not in any way denigrate the lawyers’ contribution. How they are to contribute, however, is beyond me if they do not understand the broader picture and the context in which they are arguing. This is especially true on appeal. Very often you are no longer arguing about what the law is, but what it should be. If the law is not to be arbitrary, then, its contributors must take it upon themselves to establish the coherence they themselves so badly want.

In the Alternative
If I am wrong, and theory has no place in Canadian law schools, then I believe we are forced into accepting the consequences of a rather modest proposal: bifurcating the profession. A common argument in favour of a shorter law school duration is the experience in the UK. If they can get all the academic training they need in three years, at an undergraduate level no less, then surely we do it in fewer given our relatively advanced academic standing.

This, however, overlooks one vital difference between our system and theirs: solicitors and barristers have very different career paths. While it is true that this distinction is being eroded, it is also the case that the UK has a somewhat more relaxed approach to legal advice in general. With those two facts in mind, then, it is not at all surprising that English lawyers experience a shorter academic education than their Canadian cousins. Add to this a two year ‘articling’ period and the picture is not substantially different. I think the name of one of England’s leading undergraduate law degrees also serves to shed further light on where the English stand with regard to the debate between theory and practice: Oxford’s BA in Jurisprudence.

The only way that I could see us shortening Canadian legal education is if we turned the second, and now terminal year, into a specific Barrister or Solicitor year which would be followed up by Barrister or Solicitor specific exams and articles. I say this because it is not apparent to me how else one could be competent to in all the subjects in which we are currently obliged to be minimally competent in just two years. If, however, we were only required to be competent in half the subjects, then I don’t think that would be such an impossible feat. This, though, would not exactly be a minor change.


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Robert Martin: Vitriolic Beyond Reason

7 07 2010

A friend forwarded a copy of Robert Martin’s polemic about the state of legal education in Canada. Much (virtual) ink has already been spilt over his various arguments since it was published last October in Interchange. I won’t rehash the entire piece, but there were a few key points that caught my eye as particularly egregious. I also feel compelled to comment given Prof. Martin’s links to my law school, Western, in particular.

Quality of High School Graduates

Martin is not alone in his assault on the state of high school education. Indeed, I own a copy of The Dumbest Generation even though I arguably belong to it by most people’s standards. Further, I don’t, or perhaps can’t, dispute that there are many, many ignorant and small-minded people in in my age cohort and younger. That said, I can, and will, dispute the total attribution of blame for this state of affairs to the kids, and now young adults, who make up that generation.

Unless we are willing to accept that something terrible happened to the the DNA of the so-called Dumbest Generation, then we are forced to concede that its members are no less capable than any other generation. This raises a couple of possibilities. First, every generation was just as dumb, but they merely (fortunately?) did not have as many distractions or pressures as youth face today. Second, and more importantly, if these necessarily average youth are not achieving the same levels of education as their predecessors, then perhaps we need to ask about not just the youth, but the system.

This, I think, is where Martin’s argument really falls apart. Youth since the mid-90s grew up in a rather different social setting than they did before the rise of consumer electronics, the internet, and global competition. Those aren’t the only differences, however. Teachers are no longer able to fail students, hand out zeroes, or, sometimes, even assign homework. The emphasis in schools is not on history or English gramar, but on scores on standardized tests. We cannot simply blame the Ministry of Education, though, as the parents – who are, incidentally, from an earlier generation – are just as complicit. In fact, how else do these dumb kids get all their distracting gadgets or afford their brain-melting pop culture media? Even worse, the parents indulge their kids’ slide into ignorance by condoning their skipping of classes and shirking of homework.

Let He Without Sin…

I also found it amusing that in a piece directed so forcefully against the ignorant and the unskilled that Martin manages to provide some altogether mixed metaphors. First, he complains that law schools ramped up their prices in an effort to emulate Wal-Mart. Not the first thing that comes to mind when I think of Wal-Mart, but I suppose the charitable interpretation is that Wal-Mart is a stand-in for the forces of globalization and its tendency toward commodification. I am not feeling terribly charitable, however, given the overall tone of the piece. Civility begets civility and Martin was anything but civil, so I have no compunction about holding him to his words. One thing that has been grilled into us in our first year is that you, the author, are responsible for the meaning of your writing. If the reader has to work for it, then you have failed in your task. With this in mind, then, I would suggest that Martin’s attempt to convey his meaning has failed quite miserably and in so doing, he has shown something rather important: no one is perfect.

There was a second rather confusing section where Martin complains about the Americanization of Canadian legal education and then turns around and complains that Canadian law schools are not even as good as 2nd-tier American institutions. Now, perhaps his point is that we have adopted a certain model and we cannot even excel in it. A sort of “you’ve made your bed, now you have to lie in it kind of argument”; only we aren’t lying in it very well, apparently. My comments above about charity equally apply here. This particular about-face is confusing insofar as it unclear why the so-called Americanization of Canadian legal education is a bad thing and why, if it is a bad thing, we should care that we are doing it differently. You notice I say ‘differently’ and not ‘worse’ as Martin seems to imply. I say this because I don’t think you can really compare apples and oranges, no matter how intelligent or educated you are.

One final point about this particular argument from Martin is that legal education is changing all over the Commonwealth and not just here. Even in the UK increasing numbers of would-be lawyers are not taking undergraduate degrees in the subject. Instead they are pursuing a Graduate Diploma in Law or writing the Common Professional Examination if they aren’t enrolling in two year graduate programs to the same effect. Austarlia, too, is changing with the University of Melbourne shifting to an American-style, graduate-only course of legal education. So, if Americanization is what this change should accurately be called, then Canada is not alone in its experience of it.

Closing Comments

I think my biggest concern with a piece like this is that it will be read out of context. Without an appreciation of what actually goes on inside high schools, undergraduate classrooms, and faculties of law one is more likely to buy what Martin is selling. Again, I use this language purposefully as the whole piece feels like Martin has a grudge that intends to prosecute it by whatever means necessary. Not only is this not particularly honest, it is altogether unfair to those who are, or recently were, in law schools. This latter point wouldn’t be an issue if what he were saying were true – a defence even to defamation – but, arguably, it is not.

My final remark would be that it is very easy to throw stones, but it is rather more difficult to make a constructive contribution. Note quite so difficult, though, for someone who once was a professor in the discipline which he now regards so disdainfully. I find it rather interesting that he waited to publish this rant until after he retired and in a journal that has little or nothing to do with the study of the law.


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The Importance of (Civil) Rights

2 06 2010

Civil (or private) rights enjoy an odd existence: at once foundational and largely ignored. Even when they are considered, the reasoning that surrounds them tends to invoke so-called public policy concerns. I would suggest that there are good reasons for this ambiguous existence. I would also argue, however, that those reasons do not excuse the prevailing dearth of discussion surrounding civil rights in contemporary society.

Civil Rights Defined

Perhaps what little attension they do recieve is due to the confusion to which civil rights are subject. Civil rights, properly understood, belong to a conceptual morass which can easily bog down the unwary. Part of the problem is that the different kinds of rights overlap in many respects. On one level this is obvious and to be expected. After all, they all attach to human beings. While this need not universally be the case (think corporations and outlaws respectively), it certainly describes the vast majority of rights holders. On another level, however, it is the word ‘civil’ that confuses. What is meant by civil in this context is the same as is meant in civil society, that is, a private context concerned as between individuals. This is not to be confused with the context often associated with the civil rights movement in the US. It is true that, in part, they were seeking a recognition of their civil rights in the sense used here, but it the movement has now become synonymous with the political, some would say human, rights that they also sought.

In the sense I wish to use the term, civil rights evokes those rights that you have good against your fellow members of society. Classically, at common law, these include your bodily safety, freedom of movement, your property (both real and personal), your reputation and, perhaps, not to be lied to. These are rights in the sense that they can be vindicated in court insofar as they are all torts of one kind or another: assault and battery, false imprisonment, trespass and conversion, defimation, and deceit respectively. In this respect, and due to their common law nature, they exist, in theory at least, independent of the state. Her Majesty could abolish Parliament tomorrow, but she could not detain you or seize your goods without cause. (n.b. I say in theory because if the Queen were in a position to abolish Parliament she would have to be in a benevolent mood indeed to continue to pay, and refrain from applying pressure to, the judiciary.)

The Obsession with Political Rights

Why, then, is it that we hear so much about political rights? I think there are a few reasons, some of them historical and some of them of a universally pressing nature. The latter has to do with the fact that the state is scary and, with each passing day, increasingly so. It has always been able to muster a greater force than most, if not all, could possibly hope to assemble. Add to this the legal privilege to ignore an individuals right when they have cause and you end up with the ‘who watches the watchmen?‘ dilemma. You, as an agent of the state, have the privilige to ignore my right to freedom of movement if you have cause, but what is cause and does it matter how you happend to come by it? I think we would all agree that those two questions are of great importance and that, it would seem, is the gist of political rights. These questions, and political rights themselves, seek to curtail the otherwise terrifying power of the state. In a sense, it is a real life gloss on the ‘with great power comes great responsibility’ message of Spider-Man. The state may weild imense power, but its exercise is hemed in at every turn by our political rights, rights which are good against, but only against, the state.

The historical reason for the obsession with political rights is that they were not very well respected or widely distributed. This necessarily meant that many people were left standing naked before that terrible power of the state. This, as history has shown, became increasingly unacceptable. As many would suggest, we still have yet to see the end of this process of extension, especially if we think these rights are of a substantive as opposed to a procedural nature. As such, they have often been and, indeed, continue to be the subject of great concern. The most obvious injustices are often the most one-sided and, frankly, it does not get much more one-sided than a contest between you, the signle individual of limited financial means and only your own time with which to defend yourself, and them, the state of enourmous, nearly unlimited, finances and the time of its inumerable servants. Finally, we are all acutely aware that if we allow the state to ignore its responsibilities to that particular individual today, it could be any of us tomorrow.

Enter Human Rights

In some respect, human rights are a continuation of the obsession with political rights. The problem with political rights is that necessarily depend upon the political unit to which you belong. If your right is against this state, then you must be within its jurisdiction to claim it. Now, this appears radically unfair in a number of ways. Primarily, however, the argument for human rights appears to be a concern with equality. If we are all human why should a particular accident of birth alter you basic entitlements? The term is somewhat problematic, however, as the notion of ‘human’ rights is at once under- and over-inclusive. On the one hand, all rights are, to a large extent, enjoyed by humans – not just the political rights often covered by human rights legislation. On the other, as documents primarily concerned with political rights, human rights documents emphatically do not include all the rights enjoyed by humans.

It must be noted at this point that, at least in the Canadian context, provincial human rights legislation is targeted at civil rights in the sense used herein. They are not, however, comprehensive in scope. In the Ontario context the legislation only pertains to employment, accomidation, vocational associations, and ‘services, goods and facilities’. While that certainly covers many of the areas where an individual human being might face discrimination in the civil context, it is not exhaustive. The simplest example is that nowhere are your property rights enshrined nor is you right not to be lied to. Perhaps the legislation shouldn’t be comprehensive, though. After all, we are far less squeamish about placing obligations on the state than we are on private individuals.

Why You Should Care About Civil Rights

That said, the state is not the only entity before which individuals tend to stand naked and alone. Mill’s concern in On Liberty was as much about the tyranny of the majority as it was about arbitrary exercises of the state’s authority. Now, some will object to this notion of ‘society’ as a singularity, as an entity unto itself. They will not be alone, sharing the notable company of Baron Bramwell and many liberal theorists. Without requiring your ontological conversion, however, it is sufficient to accept that civil society exists, in some respect, and provides us with a number of goods. It can, as I have alluded to, be a source of harm as well. In this respect, at least, claim rights against the state are of little worth.

Now, it would be question begging in the extreme to assert, with nothing more, that we should all have claim rights good against the world, against both you and the state in equal measure, to non-discrimination in all things. It is not question begging, however, to wonder why civil rights, in the sense used herein, do not attract the same kind of attention as political/human rights. My concern is that if we are serious about tackling discrimination, in the popularly understood sense of confronting irrational and arbitrary distinctions, then it is not at all apparent that we can safely ignore this aspect of our social existence. It is cold comfort that the state treats you with dignity and equal respect if you cannot get a job or hold certain forms of property because of who you are.

With all respect to those who are of the contrary opinion, it is no answer to point to the Human Rights Code. There are many things for which the state should be responsible, but it is not obvious that it should be the arbiter of our common decency. While the common law does seem loathe to impose positive duties upon individuals, it would be absurd to suggest that it would therefore countenance an abdication of individual responsibility to the state. Indeed, it is not hard to appreciate that the common law’s distrust of positive duties is merely the correlative of a deep and abiding respect for individual responsibility. If so, then there might be more to our civil rights than we thought. In this respect, at least, perhaps the way forward looks a lot more like our past than it does our present.

n.b. this post is heavily indebted to the work of Robert Stevens in Torts and Rights.



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Reflections on First Year: Going It Your Own Way

19 05 2010

I have been in a reflective mood since I finished my last first year exam. I am also very aware of that fact that information about the Canadian law school experience is thin on the ground. Most google searches are not of much help to those of us in Canada who wanted to know something about what to expect in 1L. Now, some idea is better than no idea, but you also cannot believe everything you read.

I agree. So, allow me be the first to tell you to take anything and everything you read about first year law with a grain of salt whether it originated north or south of the border. That said, I did manage to survive the last year while earning a place on the Dean’s List, winning, along with my teammate, an intra-school moot, and working on the Faculty journal. So, while your mileage may vary, I do know a little of which I speak.

The Standard Stuff

Now, I’m sure you’ll read everything in this section somewhere else if you haven’t already. There is, I think, a reason for this – it tends to work.

  • Assigned Readings
    • You may or may not have ‘suggested’ readings during the summer before law school. Many people say not to bother, but I think they are useful because, if for no other reason, they make you a little less lost. What’s this business about ‘civil’ law? Or public vs. private? For those that are curious, I discussed Western Law’s suggested readings in a prior post.
  • Do What Worked Before
    • You were at least moderately successful in your undergrad if you’ve made it this far, so why re-invent the wheel? Law school is not your undergrad, granted, but it is still a university environment and you are still tested and expected to write. You know yourself and your process best, so take some time to reflect on what you are doing and whether it is working. If not, tweak it, but unless you are in serious trouble it won’t be worth starting from scratch.
  • Take Fall Term Exams Seriously
    • Often they don’t count or at least they don’t count for much. They are, however, your only real chance to take a law school exam before they do count – for a very great deal. For better or worse, first year marks a hugely important for you 2L job hunt. Even if you aren’t in law school for the traditional reasons, you may as well do them properly if only to test yourself. After all, you put in a lot of effort to get that far, why waste it with a weak finish?
  • Learn From Your Mistakes
    • Or ‘Take Fall Term Exams Seriously II’. When you get your marks back, check out your exam. Even better, check out your exam with friends (see the next point) and compare your answers and feedback. If you didn’t do well or, perhaps, as well as you hopped, then the only way you are going to know why is if you go over your answers and the professor’s comments. You don’t have to agonize about it, but it is worth being congnizant of your mistakes and this is doubly true for full year classes where the same prof will be marking your all important final
  • No (Wo)man is an Island
    • Similar to the next point, the concern here is that you need friends. ‘But the curve!’ you exclaim. I know a couple people who have told me they wished they’d had other people to work with in first term to have a better idea of the different ways a summary can be organized and even just to have someone to bounce ideas off of. The frustrating thing about the law can be how opaque it is until you talk it through and see it from different angles.
  • Maintain Health and Sanity
    • This may go without saying, but do you what you have to do to stay healthy, both physically and emotionally. It gets pretty easy just to order pizza because you’d rather not take the time to make dinner for the 5th time this week. Similarly, its all too easy to have friends that you see at law school, study law with, and who, when you’re finished with the academics, you socialize with by discuss the law and law school. While your enthusiasm for the law should be saluted, it will get a little tiring. Its worth keeping outside interests and remembering to eat well and bathe – most of the time anyway.

The Not So Standard Stuff

Law school is a lot of hard work and can be quite stressful if you let it be. The latter may or may not be a bad thing depending on how you deal with stress. Does it turn you into a sobbing puddle of mush? Then you might have to find a way to deal with it. Even if you are the type for whom stress is a motivating sensation, you will need to find a way to deal with it, because otherwise it will grind you down. That said, I think it would be a mistake to look at law school as just another degree. I’ve heard people say that practicing law, like many professional occupations, is less a job and more a lifestyle choice.

For me, I do not see law school much differently – it is also a lifestyle choice. So, you can count the hours you worked if you want to, but it won’t win you many friends and even fewer braging rights and it will certainly add to your stress level. Instead, embrace the workload. Accept that you won’t be able to do everything all the time and simply commit to doing your best with what you have. I must admit I didn’t realize how hard I was working until I stopped, but then it was over and it didn’t really matter anyway.

The final thing I will say is something my constitutional prof said to us a couple times during September and October: you will spend most of first term in a haze. Everything will seem new and intimidating and you will feel like you don’t belong. Just know that you aren’t the only one feeling that way and that the feeling does pass – usually sometime during November. Just in time for those mid-terms you should be taking seriously.


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Reflections on Mooting

5 05 2010

I came to law school planning on mooting because I already knew I was interested in advocacy. For many of my peers, however, mooting was a terrifying prospect. All the more so because it was unavoidable – there is a compulsory, graded moot as part of Western Law’s first year curriculum. At the end of the January Term, after two or three weeks of research and writing, you are compelled to complete the advocacy component of the Legal Research, Writing, and Advocacy (LRWA) course.

Those who survived and/or thrived in this exercise were encouraged to participate in the First Year Appellate Competition at the end of March. The pitch was that it is only open to first years and there is limited preparation required. You simply have to stand and deliver. For the first time this year, there was also the Lenczner Slaght Legal Ethics and Professionalism Moot. This again was only open to first years and required minimal preparation. The third option was the Hicks Morely Labour and Employment Law competition that was open to all years. Again, the emphasis was on the oral presentations and there was no requirement for written submissions. It was this last option that my partner and myself entered and ultimately won. We went on to represent Western Law against three other schools at the Bay St. offices of Hicks Morely. Though we weren’t as successful in Toronto, we did learn a great deal.

Going In

One of the best resources for what to expect in a moot was actually one of our ‘suggested readings’ from the summer before first year. Hutchinson has a chapter on what to expect and how to hold your own. This was augmented by presentations in our LRWA course, including a presentation by Michael Lerner. We were told that the higher the court, the less the law really matters. This makes sense, once you get to the appellate level, you are no longer really arguing about what the law is, but about what the law should be. This means there are two basic questions to ask: is the law on my side and do I have the moral high ground? The former is good, the latter is better, but both is best. If for no other reason, though, Lerner’s presentation was worth attending for the advice that, whatever else you do, you must weave a good story.

What I’ve Learned

The most important thing I learned, though it wasn’t until we got to Toronto, was to expect to get off-script and stay off-script. Its great if the bench lets you deliver your 10 or 15-minute monologue without a question, but it rarely happens. Indeed, if it does you have either totally amazed them or totally bored them, with the latter likely being closer to the truth. Therefore, if you think your position is persuasive and thought provoking, expect to answer questions. I knew there would be questions, but I expected them to punctuate my otherwise prepared presentation. In fact, by the time we got to Toronto, it was quite the opposite.

This is for a couple of reasons. First, it’s boring to sit and listen as a judge, often to similar arguments, for extended periods of time. Second, the judges have often done their homework too and will either have decided as a group what the issues are or they will have a personal opinion on the issue will want to see how, if at all, you can address their concerns. What it comes down to is that the best mooters are those who can sustain a conversation with a judge on any aspect of their presentation until either the judge is satisfied or, if they are being a little stubborn, the mooter tactfully changes the subject.

Second important takeaway from the whole process was do not rely on statements made by judges in dicta unless you are certain that judge is universally well liked. The quote may be pithy and it may speak directly to your issues, but if its not binding (or at least persuasive, because it was ratio in that case), it could be a liability. Either the judges on your panel won’t like the judge at all or they won’t like the sentiment in this particular utterance. The best approach, therefore, is to leave your favourite judge and his or her witticisms at the door.

Third thing to remember is the logistics. If you are going to be in a multi-round competition or if you are preparing well in advance of the actual presentation (because you are just that keen), then you will want to consider preparing your materials in such a way that you can bring yourself back up to speed quickly and thoroughly. Because there was almost a month between the Western competition and the Toronto competition I was nowhere near as fluent as I was the first time around. Not that this is an excuse; quite to the contrary, I thought I was fully prepared. Note: over-confidence is not your friend either. This point largely speaks to the second takeaway insofar as you need to know your arguments and the authorities inside and out if you are going to have a persuasive and sustained conversation on the finer points of, say, substantive vs. procedural collective bargaining.

Don’t Forget: It’s Worth It

There are two things to keep in mind about mooting in law school. First, there aren’t that many opportunities when you stop to think about it. If you are like most law students you would like to have a summer position locked down before the end of second year and, for many applications, that means no one is going to see anything after the first term of second year. That means you only have three (Fall/Winter first year and Fall second year) terms worth of content to impress your would-be employer and demonstrate that ‘interested in advocacy’ is more than just three words in your cover letter.

Second, mooting can be daunting even for the seasoned third year, so it is no surprise that many first years let their fear get the better of them and avoid the few voluntary competitions that do exist like the plague. I think this is a terrible mistake for a few reasons. Most obviously, if you are actually interested in advocacy as a future career, it is never too early to demonstrate just how genuine that interest is. Even if you have no interest in traditional litigation, I am reliably told that it is rare that anyone working in a legal capacity will not be faced with advocacy scenarios on a regular basis. It could be as simple as advising a client on the best strategy for their will or as high-stakes as attempting to dissuade the board of directors of a publicly traded company from embarking on a questionable course of conduct. Finally, if for no other reason, you should moot because it’s scary. That sounds like an odd reason, I know, but facing your fears is the first step to conquering them.

.

Because, really, who doesn’t find a good public speaker impressive?


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Categories : Law School

Loopholes: Rights and Taxes

10 03 2010

I was planning on responding to this article I had read earlier, but then I read this and I began to see a theme and I asked myself: what relationship is there, if any, between so-called ‘loophole’ or ‘override’ provisions and their parent statutes? The answer, I would suggest, might go against our common sense.

Tax Code

What do Canadians like to complain about besides the weather (and losing to the US in hockey)? In a word: taxes. The Globe & Mail article linked to above seemed to think it was doing us a favour in that regard. It was purporting to educate ‘wealthy’ Canadians about their options when it came time to file their taxes (though, perhaps, a little too late for this year). What did the enlightened individuals who habitually post comments to G&M articles have to say about that? Well, in two words: loopholes bad.

Why are they bad? Because they allow these ‘wealthy’ Canadians to shirk their responsibility to society by not paying the maximum amount of taxes possible to the government(s). My question is: why should they have to? The tax code says, among other things, that certain entities are taxed at certain rates and sets out the way in which tax brackets work. What it does not do (as far as I am aware) is forbid those who are not wealthy from taking the same liberties (yes, I chose that word on purpose). Now, as with many private/civil rights (‘civil’ as in distinguished from the Charter, not as in the 1960s movement in the US), many of the liberties that the tax code affords are simply not worth pursuing unless you happen to be wealthy. I say this because the right to sue someone who has totalled your car is worth far less when the car in question is a 1992 Corolla than if it were a Bentley. The same, I would suggest, applies to the tax code. Just because your means don’t make the setting up of holding companies and trusts or the making of spousal loans worthwhile doesn’t mean they are ‘loopholes’.

My problem with the term, is that it suggests that those who avail themselves of their legal rights are engaged in some kind of moral breach. If (big if for some, I know) paying your taxes is a morally good thing and if these moral goods are set out in a certain statutes, then it is unclear to me how other provisions of that statute come to take on this sinister moral character. Now, this is not to suggest that you can’t claim that certain parts of a statute are immoral without impugning the entire thing (certain parts of the Criminal Code come to mind). It is to suggest, however, that if a statute explicitly provides for a course of action, then that course of action should not be labelled a ‘loophole’. This is for the simple reason that this course of action does not occupy some weird conceptual space left hanging between (hypothetically) ss. 3.4(1) and 3.4(3); it is actually s. 3.4(2). A loophole, then, would properly be a course of action that,while not explicitly forbidden in a statute, is nonetheless not explicitly provided for either. The scary part about that statement? It describes most of your ‘civil rights’ (as understood above) and, in fact, characterizes most of the common law.

The Charter

It seems that Mr. Yunusov’s concern in his article (link above) is that between ss. 1 and 33 the rights guaranteed in the Charter aren’t worth the paper they are written on. He’s not in bad company, to be sure, but his argument about the Charter sounds decidedly similar to the arguments about the tax code above. Both s. 1 and s. 33 of the Constitution Act, 1982 are part of the ‘Charter’ which is the first 34 sections of that document. In what sense are those two sections loopholes? They both allow government actors to behave in ways that otherwise limit a Charter right, either by establishing that the limitation is a reasonable one in the circumstances (s. 1) or by passing legislation notwithstanding that particular right (s. 33). In short, both sections allow the government to dodge their obligations and undermine the Charter, much the same way the wealthy do with their taxes every year.

My response here is substantially the same. I also want to highlight what is, in my opinion, a paradigm example of why we have s. 33 in the first place. First, a constitutional loophole (i.e. something that would really allow a government to disrespect someone’s rights) would be the result of a poorly worded constitution, not the result of a particular section of the constitution itself. A perfect example would be  s. 15′s protection of equal treatment irrespective of a set of characteristics (race, colour, faith, gender, etc.). Sexual orientation was left out of that list, and quite deliberately I’m told, and that, in my mind, constitutes a loophole that some governments attempted to exploit (Alberta, that would be you). Now, the courts are, unsurprisingly, not thrilled when such bona fide loopholes are brought to their attention. They tend to close them quite quickly, as they did here, by reading sexual orientation into s. 15 as a protected ground.

Does this make rights (both civil and human) a little uncertain? Sure. Does it allow for a more flexible approach to complex questions? Sure. Some, like Mr. Yunusov, might argue that to protect something so important as your Charter rights such flexibility is a cost he is willing to accept. He is entitled to that view (s. 2(a) and/or (b) if you’d like to check), but I cannot share it. Rights are never absolute (see all the ink spilt over ‘fighting words‘ in the US for but one example). Sure, their Bill of Rights makes for a more stirring read than ours, but does that surprise anyone coming from a country whose founding principles are “peace, order, and good government”? We’ve always had a more practical bent, but, perhaps ironically, we also tend to have a better record when it comes to protecting those rights. Perhaps its a cold comfort, but in our jurisprudence we explicitly recognize when we are limiting someone’s rights. In other systems, the protection isn’t engaged because the argument is that the right wasn’t engaged, that is, it wasn’t limited. Often that is patently false (as with fighting words – you are clearly limiting my ability to express myself. It is, obviously, a reasonable limitation, but that doesn’t change the fact that it is a limitation).

This brings me to my second concern, about those who would wage war against ‘loopholes’ and that is the recent SCOTUS decision in Citizens United. I’m just going to guess that Obama & Co. would really like a s. 33 of their own right about now. Their alternative? The intellectually honest, precedent respecting, and time honoured tradition of waiting for a judicial opening and filling it with someone who thinks like you do. This is clearly the President’s prerogative, but it is also a far less principled way of dealing with the issues at stake. Furthermore, while any appoint to the bench carries a degree of uncertainty, any statute passed pursuant too s. 33 is subject to renewal every five years or else the exception expires (and brings the legislation back into the realm of Charter scrutiny). You can’t say the same about binding Supreme Court decisions.

Tomato, Tomato you say?

It seems to me that if the ‘offending clause’ (let’s call them) is part of the document itself, then it was intended to be there as a matter of positive law. If this is true, then we cannot suggest that those who are taking advantage of them are doing something wrong. The objection at this point would be: we aren’t suggesting they are doing anything wrong, only that they are doing something immoral. That is a tougher question, indeed. Still, I would think that the blame would be on the offending legislature(s), not on the particular person who happens to be exercising their liberty. If there is something immoral about reasonable and demonstrably justified limits on rights or on paying less taxes through the proper use of trusts, then it is the legislature’s fault for endorsing them.

‘But they’re still immoral then!’ you say. I don’t dispute that, I only dispute the imputation that it is a legal problem. It is not. It is decidedly a political problem and, in the case of the Charter, a fairly intractable one. Both cases, however, allow governments to be flexible in their approach to complex problems and, that alone, seems laudable. They won’t get it right every time, but as long as it keeps them from getting it spectacularly wrong, that seems good enough.


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Categories : Legal Analysis, Theory

Lawyers and the Apocalypse

3 02 2010

Sounds like a bad late-night early morning, made-for-cable movie, but the recent obsession with post-apocalyptic themes has me thinking. No, not just about how much we have to thank the Mayans for; though clearly we, as a society, are slightly perturbed. This isn’t exactly new, though, and, obviously, such predictions have tended to fizzle and fade into relative obscurity.*

The First Thing We Do….

What I had in mind, rather, was what role, if any, the lawyer would play if the nut jobs, conspiracy theorist, alternative reality observers turn out to be right. Some professions have an obvious role: cops and soldiers become the enforcers/guardians; doctors, nurses and EMTs can, well, continue what they’ve been doing (although, with far less); and politicians would continue to lead (or, start to lead, depending on how you define the current game of ‘follow the poll’ played by most (all?) major parties). Others, however, probably won’t be so useful: journalists (where’s your new media now?), investment bankers (money makes the world go round eh?), and theoretical physicist (we can’t eat the organizing principle of the universe, sorry).

So, which of the two groups does the lawyer fall into? Well, that depends (surprise!) on what you think the law is. Either it is merely a collection of rules that describes the prevailing social superstructure and, therefore, has nothing deeper to say than ‘this is how we do X today in a modern, secular, Western society’ or it is a rough approximation of a higher truth about how human society is (should be) organized. By the latter I don’t quite mean something akin to natural law. Perhaps there are certain fundamental principles that are (should be) part of every human society, but you don’t need lawyers for that; a good priest or political theorist (and you thought they were totally different) would do just fine.

No, what I have in mind is more practical. Imagine a small group of survivors settling down near a river and setting about creating a small agrarian community. Now suppose a dispute arises. Maybe its over someone’s cow or maybe its because Fred and Joe had a punch-up. Is a lawyer better equipped to settle this dispute than, say, any other reasonable person? On the former view, no, not particularly. What the lawyer is acquainted with is nothing more than the way things were done, pre-apocalypse, and that doesn’t really speak to the reality they now find themselves in. On the latter view, however, the answer is very much yes.

This, I would suggest, is because what the lawyer is acquainted with is not just a by-product of a particular social structure. Rather, she is acquainted with social interaction itself. This will require a certain level of abstraction, of course, from her day-to-day experience pre-apocalypse. She will no longer be dealing with commercial contracts, but it is not entirely clear to me that the basic concept of bilateral and voluntarily assumed duties should not be equally applicable in our post-apocalyptic setting. Certainly some of the particulars will change (there will be far less, if any, written contracts, for example), but that does not mean the theory is inadequate. The same is likely true of property and tort; really any area that remains largely common law. Areas largely governed by statute pose a slightly different problem.

So does, for that matter, criminal law, regardless of its state of codification, outside the US. This is because in the majority of other Commonwealth Realms the criminal law is enforced on behalf of Her Majesty while in the US it is on behalf of the State or the People or some similar amorphous abstraction. How to characterize criminal prosecutions in a small would-be village in post-apocalyptic countryside of Southwestern Ontario decides to characterize its criminal prosecutions will, I would think, probably not be high on their initial list of concerns. That said, while the theory might be problematic, as with contract, tort, and property, the practice need not change more significantly than taking the absence of institutions and scientific evidence into account.

Less Law, More Justice?

My point is this: just because society becomes suddenly and radically less complicated doesn’t remove the need to deal with intra-group conflict in a consistent, principled way. This is, I think, what the lawyer brings to a possible post-apocalyptic future. Perhaps this won’t be the most urgent of skills during the immediate aftermath. If, however, society is to continue to be more than merely the arbitrary rule of the strongest, then I think any surviving lawyers will have a role to play. A dangerous role, I’m sure, and perhaps one that many will shirk or abuse, but a role nonetheless.

* Side Note

I’ve always been fascinated by such apocalyptic predictions. It’s kind of like Pascal’s Wager. So what if you’re right, not only are you dead, so is everyone else and, quite clearly, no one will know, care, or remember. With this in mind, then, why don’t we all get on with our lives and worry about things that are within our control like, say, poverty, disease, or maybe the environment. That is, if that lingering, chronic, real-world kind of thing isn’t too banal for you.


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Law School Rankings

13 01 2010

I came across the 2009 MacLeans Law School rankings the other day. While its nice to see the Western has climbed a little bit since last year (up to 10 from 12 out of 16 common law schools), it was the comments that really got me thinking.

Criteria: But ya’ gotta rate something

First of all, I want to say I agree that ‘elite firm hiring’ and ‘Supreme Court clerkships’ aren’t the most representative of measures. You do have to measure something, though, if you are going to have a ranking. Perhaps we shouldn’t, but that’s a whole different issue. I think rankings come with a huge caveat emptor attached at the best of times (they tend to be elitist and favour quantitative measures over qualitative ones) and what makes a ‘good’ law school may not necessary create ‘good’ lawyers.

Specifically, I think the danger in a space as small as that occupied by  Canadian law schools is that measures such as elite firms (which, I’m assume, are necessarily in large, urban centres) and SCC clerkships (which, by definition, are limited) simply aren’t informative. The fact is most law schools in Canada have a large regional focus. Want to practice in Windsor? Well, you better either be from Windsor or go to school there if what I’ve heard is accurate. The same, to some extent, is true in London. I’m sure its even more true in provinces with only one law school. Similarly, as an Ontarian, I would pick Windsor (or any Ontario school) over UManitoba any day, not because of the rankings (indeed, Manitoba beats Windsor), but because I have no interest in enduring the weather and travel that would come with it.

Finally, I fear that rankings become nothing but self-fulfilling prophecies. “Oh, you want to clerk for the SCC? Better get into McGill then!” or “Oh, you have your eye on Bay St.? Hope you like UofT!” Don’t misunderstand me, if a particular school has an academic strength in a certain area that interests you, you’d be a fool not to consider it on that basis. But to pick a school because a ranking told you that it might increase your statistical odds would be utilitarian at best and at worst it would simply continue the cycle that these rankings thrive on.

Alternatives

Do you own research. There simply aren’t that many schools out there (unless you apply to them all and then, well, that’s your own fault). Granted it can be hard to figure out who to trust when you’re doing this insofar as the schools have a vested interest in sounding fantastic and alumni are similarly biased. Our Dean here at Western, a certain Dr. Ian Holloway, QC, makes a pretty good point when he proposes that in Canada there are no bad law schools. Rather it is only a matter of finding the one that is right for you. How you make that choice is up to you. The schools might make it for you between scholarships and rejections. It might be the lure of that shiny MacLean’s #1. It might be your love of sea air. It might be your significant other.

The point is, if you place too much emphasis on any one factor, you have no one to blame but yourself.

In Closing

Rankings make sense in the US. As a legal employer there are simply too many different schools to understand what makes each one stand out. Instead, you can get a rough idea by looking at where they sit on the list. Even then, though, I’ve heard it said that a good, non-Tier 1 regional school can top a Tier 1 (though perhaps not a T-14) non-regional school in some markets.

We simply don’t have that problem here, as you’ll be able to see by looking at most medium to large sized firms’ websites. You’ll see regional/geographic biases to be sure, but that doesn’t show up in the rankings. You can’t really blame MacLean’s though. Its not like their in the truth business. They’re only in the business business.

The moral of the story here is there is simply more to the story than the stats would have you believe.


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Categories : Pre-Law

Note Taking at Law School: A Reflection on First Term

23 12 2009

In an earlier post I had argued that the best option for taking notes at law school was the wiki system I had used in my undergrad. I also said I would follow up on that advice after I practiced a little of what I had preached. I now realize, though, that it is not an ideal system. Now, let me tell you why I’ve abandoned it.

Summaries

The main thing I discovered was that the wiki system was simply not conducive to creating summaries. Or, should I saw, the way I went about making a summary. Others might find a way to make it work, but I found it didn’t really jive with my approach. I basically wanted to be able to copy and paste large chucks of my class notes into another document and then format them and flesh them out because I wasn’t in a position where I had to add a lot of my own material from our casebooks.

In this regard, my biggest problem with the wiki approach was that it didn’t really allow me to copy bulleted or numbered lists into a Word document in a convenient way. This is not a deal breaker, of course, but it was just another thing I had to deal with that I personally found rather annoying. While Word is not the only way to create a summary, the auto-generating table of contents function is a dream come true. Furthermore, OpenOffice.org suffers from the same basic formatting problems that Word does relative to the wiki.

Sharing

The other issue I ran into with the wiki approach was the difficulty of sharing my notes with my peers. Now, some might not think this such a problem (i.e. those who don’t think law school should be about ‘sharing’), but I found there was quite a bit of emailing back-and-forth when I or someone else missed a lecture for whatever reason (sick, bus strike, clinic duty, etc.).

For whatever reason, the wiki files don’t email well. Add to that the fact that most people don’t entirely know what to do with it once they receive it and it just becomes a bit more work than its worth. Once your favour turns into a lecture about f/oss and/or wiki mark-up, you’ve kind of missed the point. The real clincher, though, is that everyone else just uses Word and, as terrible as it sounds, in this respect, conformity is a good thing.

Conclusion

So, long story short, I’ve switched to Word to keep my class notes. I think I will keep the terms separated, if only to keep the files from ballooning to over 200 pages (I ended up at over 100 in my constitutional law class this past Fall).

Not the most original or unique solution, but it gets the job done and that’s all I really have time to worry about these days.


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