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.

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.

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.

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.

If you won’t do it, I’ll find someone who will!

You’ve all seen it on tv. The intrepid doctor is faced with a patient who requests a questionable procedure/prescription. Our ‘hero’ is caught on the horns of a moral dilemma. Does she respect the patient’s wishes or honour their own ethical code? After much deliberation, she is resolved to tell the patient she can’t go through with their request. The patient, furious, inevitably retorts “if you don’t do it, I’ll find someone who will.” The kicker is often “anyway, I’m paying you good money for this!”

Now, on tv these kinds of issues crop up with an unnatural regularity to be sure. Your average law practice may never even face such a conundrum. That said, the sorts of practices that do face them on a regular basis are from the ordinary: justice departments, firms specializing in securities, and criminal law of all flavours. It is also not beyond the imagination for a family lawyer to question her client’s motives. But what are these lawyers to do? Its not as if there aren’t other lawyers who can do the job. If lawyers were independently wealthy, then this wouldn’t be a problem; but when you need to put bread on the table it can get rather hard to say ‘no.’ It’s the classic ‘good guy’ paradox: why be good when it pays to be bad?

There is also the second trap, also often reprised on tv, of the well meaning doctor acquiescing to the patient’s unconscionable demands. If someone is going to do it, they say, it might as well be me so that I can stop it before it gets too far. Right, because that’s usually how it turns out. Slippery slopes are, well, slippery. Once you start down them, it’s not just hard to bet back to where you came from, it’s near impossible to stop sliding down at all. Given the alternatives, however, what’s a lawyer to do?

What was that counsellor?

The style of address says it all, doesn’t it? A counsellor, by definition, provides counsel. That can be pretty hard to do when your client doesn’t trust you. And why would he, if, in his perception, you don’t have his best interests at heart. What do you say to the quintessential utility maximizer who demands to know how much it might cost him to contaminate the local well? “I’m sorry, I don’t think that’s really the question you should be asking…” Even if he doesn’t fire you, you might find yourself doing less stimulating work. At least there won’t be moral ambiguity in his lease renewals.

It comes down to this: a lawyer purports to provide a valuable service. How does your client decide your service is valuable? It will likely come down to whether or not he makes more (or at least loses less) money than he would have without you. If that is the only criteria, as I submit it is, by which he makes this decision, then ‘good’ advice might not be the same as ‘valuable’ advice at all. To borrow from Matthew Good, Mill is fighting Kant and you’re in the stands.

Personal Integrity v. Professional Integrity

The problem seems to be one of trying to serve two masters simultaneously. Is the lawyer a servant of justice or merely the employee of a mega-conglomerate? Perhaps the two are not always mutually exclusive, corporations have rights after all. That said, the tension is palpable and, where they do conflict, it is not clear what the lawyer is to do.

Even where the latter wins out, it is unclear, at least to me, how the lawyer, as a person, is meant to respond to the demands of her profession. Are the two meant to be divorced such that you follow one set of rules from 9-5 (or whatever your workday looks like) and another during what’s left of the day? Or are you really able to separate the two. You do not cease to be a lawyer when you leave the office anymore than you cease to be a person when you enter it. This tension, at least, seems intractable.

Of Foxes and Lions

Perhaps this will all be cleared up in my mandatory professional ethics class next term. This is a murky topic, and there may be no easy answer. That alone, however, seems like a poor excuse not to try. The answer might be, as it so often seems to be, to focus less on the cost/benefit analysis and more on the result.

Make no mistake, this is not an apology for how things are, but a lament for the way things may never be. Given the personal cost associated with doing the right thing, the honourable thing, it seems unlikely that anyone will take that heroic step. Instead, lawyers might have to content themselves, as they long have, with living by their wits and doing what little they can with what little they have.

In this respect at least, J.G.A. Pocock could have been describing the legal profession when he said “we are all foxes, never lions.”

Inconsistent Theory, Uncertain Policy

As my professor would explain it, negligence, properly understood, is still very much within the mould of Donoghue v. Stevenson. When it comes to the duty of care proximity serves to limit liability. The question is: did the plaintiff share a relationship with the defendant such that the defendant should have reasonably foreseen that the plaintiff might be among those affected by her actions? In this respect, the defendant’s liability is delimited by a circle or series of circles with her at the centre. If the plaintiff falls within the scope of this proximity (within the circle), then we can say a duty was owed and you may proceed to the next step of the negligence analysis. If not, then there was no duty and, therefore, no right upon which to sue.

That is, if we take my professor’s view. The courts, at least on the basis of both my (admittedly limited) experience and the authority of my professor, often adopt a different approach. The first step is to address foreseeability and proximity with respect to the particular plaintiff(s) and defendant(s). If both they both obtain, then the court attempts to fit the case into an existing category of negligence. Where they are unable to do so, they turn to public policy to assess whether or not the case under consideration should give rise to a new case of action. In this determination they will consider if there are any reasons of public policy that might prevent them from creating such a new cause of action. As the term may suggest, public policy can include just about anything of concern to the public, be it the precedent set or broader social concerns.

Coherence Breeds Certainty

And what’s wrong with that? Well, in a word, everything. On the relationship-based view of negligence liability turns on the issues in the case. Sounds simple, but that is what private law is meant to be about or, at least, so I’m told. If it were a question of general concern, then it would likely be an exercise in public law.

Fine, but perhaps the court should take the consequences of its decision into account. After all, if the Supreme Court of Canada makes a pronouncement on a particular private law dispute it will certainly have a very public effect. This concern should not be easily dismissed. It does not, however, grant the courts carte blanche. While surely there would be some concern if, in the course of a judgment, the court imputed unlimited liability to an unlimited class of people. The concept of proximity, however, seems to address that very concern.

I do not owe you a duty and, therefore, I risk no liability if you are not, as Lord Atkin put it, my ‘neighbour.’ Now, some actors and some actions may be so large and pervasive that a great many people become their neighbours, but this, in and of itself, does not really present a problem. Indeed, that is the beauty of coherency: all actions have consequences that are roughly proportional to their scope. This perturbs some, like the Supreme Court of Canada, so much that they at once recognize the existence of liability and dismiss it for reasons of ‘public policy.’

P-Words Belong to Parliament

This approach raises its own questions. First, why do we need to limit liability at all? Granted, liability ceases to make sense if it captures all actions: if you are liable for everything, then, in some sense, you are liable for nothing. I don’t see, however, that such consequences are the realistic outcome of the application of Donoghue v. Stevenson. It seems rather arbitrary to proclaim that you, massive business enterprise, are entitled to all the benefits that accrue to your size while simultaneously bearing only some of the concomitant risks. If the duties and rights are there, then it would seem no answer to suggest that ‘public policy,’ whatever that means, somehow extinguishes them.

Second, and perhaps more importantly, ‘public’ questions should be left to representative institutions. This is not to say that the courts cannot make evaluative decisions. In fact, that is largely what the Charter requires them to do. Similarly, whenever the courts are called to make decision upon equitable grounds they often have no choice but to evaluate each party’s actions. The irony, then, is that by citing ‘public policy’ the courts set about extinguishing rights that are otherwise admittedly valid. The Charter calls for balancing, tort law, as far as I am aware, does not.

If the logical application of liability would lead to ‘publically’ undesirable outcomes, then that is a question for Parliament. In this respect, the courts seem to have it backwards. They will not extend liability where the doctrine demands it, but they will read into s. 7 of the Charter a richer definition of ‘fundamental justice’ than was clearly ever intended. If the application of ‘public policy’ is from a genuine concern with public welfare, then leave that essentially contestable concern to those who are competent do deal with it. That was the approach of the courts with nuisance in the former half of the 20^th century. I don’t see why it should be any different today.

Employment Standards

Perhaps the single most important document in this respect is the Employment Standards Act, 2000 (in Ontario, anyway – this will vary by province and/or industry). Of particular interest will be sections 5, 55, and 57. Section 5 ensures that you, as an employee, are guaranteed at least the minimum protections of the Act, but that you and your employer may contract for, and be bound to, higher standards if you so agree. This is significant because even if you sign an employment contract that allows for less than, say the minimum notice periods for termination, then it is the Act, and not the contract, that applies. Similarly, if your contract provides for more than the minimum notice period in the Act, then it is the contract that applies. Basically, whichever of the two most benefits the employee will apply.

Section 55 is interesting because it tells you that certain prescribed classes of employees are not entitled to notice of termination or pay in lieu of notice. To find out who exactly this is, however, you’ll have to check out Ontario Regulation 288/01, specifically section 2. Here you will see, for example, that an employee will not be eligible for notice of termination if they are:

“guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.”

This is kind of a sneaky way for the government to make the Act seem very employee-centric while still leaving a fair amount of power in the hands of the employer.

Section 57 sets out the minimum notice periods that employer’s must honour when terminating an employee. Keep in mind that section 54 tells us that these only apply if you have been continuously employee for more than 3 months. After that, its roughly 1 week for every year you’ve worked for that employer. This tops out at 8 weeks, however, so even if you’ve been working for an employer for 10 years, you’ll only get 8 weeks (unless some other provisions apply, of course).

What Else You Need Yo Know

Labour & employment law is a complicated area: the Employment Standards Act alone weighs in at over 100 pages. This doesn’t even include the regulations and thousands of cases that help further define this complicated area. For example, what does ‘wilful misconduct’ even mean? Well, to figure that out you need to some some legal research: there is no simple answer. In this respect, if you are facing a labour or employment dispute, do yourself a favour and find a lawyer. Not just any lawyer though, one that specializes in this area. Labour & employment law, like criminal defence, is not a subject where there is a lot of room for a general practitioner to figure it out as s/he goes along.

Options

So, avoid upgrading or purchasing a new computer unless you will have an exam-worthy alternative available to you. Or, you know, you could just write your exams by hand. I guess it depends on how badly you want to get rid of Vista ‘adopt’ Windows 7.

Apple For the Win

Not to brag, but OS X 10.6 ‘Snow Leopard’ is fully supported for this December. Just in case you need another reason to buy a unibody MacBook.

Core Courses

The following are what I would consider ‘core courses’ insofar as they provide a comprehensive grounding in the subject matter you will encounter, if not in first year, during the course of you legal education. I say ‘core’ and not ‘required’ because you can obviously excel without them. That said, they will provide you with some basics that might be taken for granted once you get there.

The following are generic course names and/or the way the courses were organized at my alma mater. Your millage may vary.

• Early Modern & Modern English (or British) history
  • Like it or not, a great deal of Canadian law stems from the English common law tradition. Understanding its development requires an appreciation of its context, which these two history courses will provide. Given the common law’s reliance on precedent for deciding cases, it is not unheard of to reach all the way back to the 1600s for an authority in certain areas of law.

• 19th & 20th Century Canadian History
  • Though we have inherited a great deal from the UK, a lot of our law post-1867 has been a made-in-Canada affair. This is especially true in constitutional law. Again, this is about context.

• Canadian Government
  • This is fairly obvious, but often overlooked. Law doesn’t develop in a vacuum and understand how laws come to pass can be as important for understanding their content as the history that preceded them.

• Basic/Intro Logic (Philosophy)
  • This is more for the LSAT than law school, but it might possibly be a truism that more logic never hurt an argument.

• Basic/Intro Ethics/Morality (Philosophy)
  • This serves two purposes. First, a lot of law, and especially criminal law, deals with moral questions. Second, as a law student, and especially as a lawyer, you have certain ethical standards to which you must adhere. Going beyond those minimums, however, a lawyer is generally expected to act in the public interest and it can be useful to understand the different perspectives on what exactly that might mean.

Supplemental Courses

These are courses that would broaden your perspective and provide greater context for your legal education, but if you were not interested in them or if you could not make them fit, then you would not be any poorer for it. I have listed them in order of priority (from my perspective at least).

• Basic Business
  • Two things here. First, you’ll be surprised just how many courses at any given law school revolve around business or business transactions. As such, a basic familiarity will be useful in these courses, even if you don’t ever intend to practice ‘business law.’ Second, and not unrelated, you’ll be surprised just how much the practice of law is about business. Either you ‘learn’ it in school or on the job, you’re choice.

• Canadian Politics
  • Similar idea to ‘Canadian Government’ but with a more of a focus on the action and not the process. Less important for context than Canadian Government, but won’t hurt you either.

• Intro Economics
  • While ‘law & economics’ is less of a focus in Canada (outside UofT, anyway) it does still crop up in US cases and from certain classmates. Much like ‘Intro Logic,’ it can only make you stronger.

• Roman History
  • Whether you are aware of it or not, the roots of much of our society can be traced back to this little village in Italy called Rome. Never heard of it? Then this course is for you.

• Christian Religion
  • Similar to the above, a great deal of our laws, though less than in the past, are rooted in Judaeo-Christian morality. This is especially true in criminal law (laws against suicide anyone?), but also comes up in that mysterious concept of Equity.

• Intro Political Theory (aka Political Philosophy)
  • You don’t get too much of this in first year, but I have found it useful context for understanding some of my constitutional lectures. If the course is just about reading the ‘greats’ it might be less useful to you than a course that discusses liberal and democratic theory, but you might be interested to know that Mill’s Harm Principle ended up in a Charter challenge regarding the criminal consequences of marijuana possession.

• Advanced Logic
  • See ‘Intro Logic’

I think two things need to be addressed here. First, is the charge of elitism. I think we might as well come out and accept that the world of academia is an elitist one. It starts with where and with whom you did your grad work, then its about where you did your post-doc, then it is about how much you publish and in which journals, and, finally, it is about how many citations your work receives. Even when you are getting references as an undergrad you are meant to, at least so I’ve been told, seek them from established professors; even if this means they may not know you, or your work, as well as, say, a teaching fellow who has taught you in several small seminars over the past three years.

Second, and frankly, size does matter. While there are exceptions to the rule, in both the UK and the US the schools with the highest research intensity also tend to be the larger schools on the respective blocks. Granted, they do specialize and, granted, there remain regional powerhouses that compete against each other. This, however, is more likely a product of the scale of the US population and economy than anything else. The fact is, that when it comes to research there is much that must be conceded to the scale of the institution. It means, perhaps, higher quality colleagues. Or, perhaps, it means more interdisciplinary approaches are possible. Certainly, it will mean that the school can build a better reputation as a leader and innovator in its own field or fields, both at home and abroad, if it is simply big enough to be noticed.

Undergraduate and Professional v. Graduate Degrees

This proposal raises a broader question: what should we look for in undergraduate (and, by extension, professional) education? The answer, at least to me, is simple: knowledge and skills acquisition. The question, then, is how best to go about developing that knowledge and those skills. Is it necessary to learn from the (wo)man who, literally, wrote the book on the subject? Or is it more important to not only read said book, but also have it expounded upon by someone who is both a cogent and engaging lecturer? This is not to say, of course, that those who are at the pinnacle of their field cannot, necessarily, give instructive lectures. Rather, it is to suggest two things. First, that they have other, more important, things to be doing that giving an undergraduate lecture course. Second, their brilliance and, perhaps, even their literary talent (though the latter is far from required it would seem) are no guarantee, contrary to popular opinion, of their ability as a teacher. Make no mistake, they should continue to supervise graduate students, but, as any grad student will tell you, that is a particular kind of relationship.

This brings me to a discussion I saw recently on lawstudents.ca. Now, I’m not forgetting my own advice since I am not going to engage with the debate in question directly. Rather, I want to draw it into the present discussion as an example of both the kind of elitism of which I spoke and of the distinction I want to draw between undergrad and professional degrees on the one hand and graduate degrees on the other. The debate in question hinges on whether or not you will receive the same quality of education outside of UofT and Osgoode. The initial premise is based upon the supposition that in order to receive a quality education one must learn from a leader in the field. This, of course, blatantly disregards not only the fact that other schools also have leading academics, but also that some fields will have more than one leading name.

More over, this position is based upon the idea that in order to receive a quality education at all it must be from such a leader. This, I would submit, is patently false, at least as it pertains to non-graduate degree programs. In fact, some of the best instructors I had during my undergraduate career were only associate professors or, for that matter, teaching fellows who didn’t even have their Ph.D. yet. Did we read the biggest names in the field? Certainly. Did I have a worse appreciation of their positions for not having heard it from the horse’s mouth? I doubt it. Indeed, of the instructors I did have, some of the worst were some of the best known.

What Does This All Mean?

Granted, this is all highly anecdotal, but it does demonstrate that there is no necessary connection between the quantity and quality of published material and the ability to teach. Now, if we accept what I said above, that the purpose of both undergraduate and professional degrees is to impart a certain amount of basic knowledge and skills, then it suggests that the research credentials of the faculty alone will not prove a sufficient indicator of the quality of such degree programs.

This should prove doubly true of professional programs where the end goal is to produce individuals who will then be in a position to join a professional body upon the completion of their program. It will be my ability to understand the law as it is now in the context of the facts of a particular situation and then render some form of actionable advice by which I will be judged as a lawyer. It will not be my ability to discuss the finer points of Rawls’ burdens of judgment as they apply to a piece of legislation currently under debate in Ottawa. This is not to suggest that undergraduate and professional degrees should not provide a rigorous and theoretical understanding of their subject matter. Rather, it is to argue that they should do so in a way that augments, but that does not supplant, their original purpose.

How I Choose My Degree Programs (And How Those Choices Won’t Change)

In choosing both my undergraduate and professional degree programs I want to satisfy two requirements. First, I wanted a program that would provide me with a broad background in the subject. When you start studying any subject for the first time you will necessarily have a shaky grasp of what exactly it entails. For example, when I began Political Studies at Queen’s back in 2005 I was convinced I was going to studying International Relations and go on to do an M.A. at the Norman Paterson School. Instead, I discovered Political Theory, something I was only vaguely familiar with before second year. Had I gone to Glendon at York, like I had been planning on since the start of grade 12, I would have gone straight into an IR program and never looked back. Similarly, when it came time to decide on a law school, I wanted to ensure that my choice would keep my options open. I didn’t want to back myself into a corner, for example, by committing to a school that was well known for its Intellectual Property program, but nothing else.

Second, I wanted a program that would lead to a degree that would be able to stand on its own. I wanted a program that, if I did nothing else afterwards, would stand me in good stead in the job market. It was this reason in particular that made me choose Western Law over some of my other options. As I mentioned before, Western’s articling stats are had to beat. Add to this its ‘national reach’ and it became clear that Western Law was the school to attend if I decided I wanted to practice once this was all over and done with.

If I decide I want to continue my education, either in the law or politics, then it will be at that point I will make an effort to attend the best schools my marks and finances allow. Until then, though, I will be perfectly happy right where I am.

The Point Is…

An undergraduate or professional degree should be an introduction, a grounding, in a subject. If something strikes your fancy, there will be plenty of time and opportunity to study it in depth and with some of the best and brightest. Indeed, the effort to specialize right out of the gate evokes the lamenting tones of Billy Joel’s Vienna. This breadth appears all the more important in the context of a legal education. Granted, you can study for, and pass, the bar exam without ever taking a course in family law, but doing so somewhat cheapens the exercise. You’ll be in a position, once you’re called, where you will be able to hold yourself out as an expert on a topic of which you may only have the most cursory of understandings. In this respect, I think the core curriculum of Ontario’s law schools doesn’t go far enough, but that is a topic for another post.

What I do find objectionable about the Big Five’s suggestion is that they don’t go far enough in divesting themselves of undergraduate and professional programs. Yes, they want less undergrads, but they also want other schools to give up, for all intents and purposes, their post-grad programs entirely. If what we need is the kind of focus, scale, and intensity, in short, a critical mass, of research that only these large schools can provide, then it would seem fair to ask them commit, whole-hog, to that project. If direct instruction by the best and brightest is unnecessary in a first-level program, then why are those leaders wasting their time?