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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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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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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The Consumer Profession of Law

2 12 2009

The recent post by Simon Chester on, as he put it, “[t]hree unrelated thoughts on law and honour” was truly thought provoking. Indeed, it made me wonder if it was not a terminal diagnosis. It is not just that lawyers face an historical culture that places an emphasis on acting on ‘instruction,’ but a current economic reality that brings the bottom line into sharp relief. This raises the disturbing proposition, then, that a lawyer may never be in a position to ‘do the right thing.’

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.”


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Private Law, Public Policy

18 11 2009

We have been studying the law of negligence in my first year tort class here at Western Law. In fact, it has, quite unexpectedly, become one of my favourite classes. To this I credit the quality of instruction, though the subject matter certainly is thought provoking. So much so, that I have become rather disturbed by the Canadian, and other Commonwealth countries’, approach to the subject. Even in an apparently clear case, such as Cooper v. Hobart, the Supreme Court of Canada feels compelled to expound the public policy reasons for their decision. This, I think, misses the point and, worse yet, overreaches.

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 20th century. I don’t see why it should be any different today.


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UPDATE: Windows 7 – Not Actually Your Best Friend

3 11 2009

So, as it turns out, my earlier post is just plain wrong. We’ve been warned here at Western Law that Extegrity, the producers of the Exam4 software used by the faculty for computerized exams, has advised students to avoid Windows 7 until further notice. Apparently there is a compatibility issue that will prevent them from ensuring a quality experience in time for December exams. They do, however, expect to have the issue resolved for Spring exams in 2010.

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.


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Expert or Teacher?: The Question of Quality in Post-Secondary Education

9 09 2009

I recently read an interesting article in the Globe and Mail that revealed that the big five research universities (UBC, UofA, UofT, McGill, and Montreal) have requested that governments shift the way they allocate funding for institutions of higher education such that they, the Big Five, can concentrate more on research and the other schools should begin to focus exclusively on undergraduate education. This created the expected furore among the many, many schools left out of this ‘elitist’ proposal. My own alma mater chimed in, as did several other universities who are, undoubtedly, doing fantastic research in their own fields.  The complaint seemed to be that size shouldn’t matter. Rather, it should be the quality of work that is rewarded.

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?


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Windows 7: A Law Student’s Best Friend?

8 07 2009

I’m a Mac guy or maybe I should say I’m not a Windows guy. That said, the legal world is still very much under the thrall of Windows and, for that matter, Microsoft. Unlike some individuals, I have nothing personal against Microsoft the company. In fact, if they were to produce a decent product, I would be more than willing to pay for it (as necessary and probably never for purely personal purposes).

Given, then, that most law schools have followed the legal profession as a whole into the jaws of the Beast of Richmond (like I said, nothing personal) it follows that the law student should, if nothing else, be acquainted with its products. This is easy enough to justify with products like Microsoft Office because of its sheer ubiquity. Ever try to open a .docx document in OpenOffice.org and you will understand what I mean. Simply for dealing with the great unwashed masses, therefore, it pays to own a copy of Office.

The law student faces another reason to pay for her software, though, except this time it is in the name of computerized exams. Most law faculties, like at Western, give their students a choice of how they would like to write their exams, but only if they have a copy of Windows installed (disclaimer: this statement is made from my recollection of an off-hand comment made by my tour guide at the Western Law Welcome Day back in March). Now, I have yet to have the pleasure of writing an exam on a computer, however, it honestly cannot be any worse than writing them by hand, at least if your handwriting looks anything like mine. On compassionate grounds alone (whether for your prof or your mark I’ll leave up to you), therefore, I would strongly suggest you ensure that you are compatible with the test taking software at your institution.

Windows 7: A Decent Product

This brings me to the heart of the post, Windows 7 is actually (note the surprise) a pleasure to use (on a MacBook Pro, at least). Whether or not Windows 7 is simply what Vista should have been I will not get into here. What is worth considering, though, is whether or not you should upgrade or dual boot your machine (for you Mac and Linux users out there).

This issue is a little more pressing for the Windows users among us as they only have until July 11th to receive a special offer of about half price off the regular price of an upgrade DVD. Similarly, if you buy a qualifying PC you will receive free upgrade media when it becomes available. If you are a Vista PC who has installed the second Service Pack and you are happy with your performance, then you can probably sit out the upgrade. If you are an XP PC, however, I would seriously suggest you take advantage of the deal. Not only is XP approaching its end-of-life, but it simply cannot compete with the feature set of Windows 7. You will want to ensure, however, that your computer meets the minimum requires and such in order to avoid a Vista-like fiasco.

What kind of features am I talking about? Well, for a complete list you’ll have to visit the website, but the feature I found most impressive was the ability, as a laptop user, to have Windows 7 detect when I have an external display attached and automatically refocus to said display when I close my laptop. Now, I can sort of do this in OS X, but it has to sleep in between which is, frankly, kind of annoying. Windows 7, on the other hand, does it without missing a byte (yes, that’s meant to be a pun).

Non-Windows Users: Dual Booting You Say

For the Mac (or Linux) user, however, the picture is not as clear. To start, we cannot take advantage of the limited time offer (unless you already have XP or Vista installed) as it is merely for the upgrade DVD. As a result, we’ll have to wait and (surprise) pay full price in October. For that matter, if you already have Windows installed, you don’t really need to worry about the upgrade anyway. You probably don’t use it as your everyday operating system (if you do, you kind of went about it backwards, didn’t you?) so the features are not of paramount importance and you are already in a position to avail yourself of the exam software at your institution.

For the rest of us, it will mean waiting until October, paying full price, and dual booting. There are plenty of detailed, step-by-step instructions available on how to dual boot your Mac or Linux machine, so I won’t go into details here. I will caution you that it does take some time and may require you to reinstall your primary operating system as well. My main piece of advice, then, would be to allow at least a day or, perhaps, a weekend to ensure you don’t end up needing your computer while it is in an install-induced coma. Windows 7 is still worth the wait, though, as there is no need to install an about-to-be last-generation product for essentially the same cost in terms of blood and treasure.

What To Do?

While Microsoft is not likely to win any Best Loved Company of the Year awards, it is getting better at giving people what they, and not what Microsoft’s overlords, want. If you are an XP, Mac, or Linux user, I would suggest you strongly consider setting aside some cash to commit to an upgrade this November. If you are already on Vista, you can save yourself some time and trouble and forgo the upgrade. At the end of the day, I’m a pragmatist and if that means dancing with the devil, then so be it.

Cross-posted on LawIsCool.com.


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