Legal Challenges
The real reasons few law students are ruling in favour of activism
BY Meribeth Deen
Illustration by Joshua Leipciger
When the Federal Court of Appeal struck down a challenge last November that would have seen a massive power plant built in Sumas, Washington, residents of the Fraser Valley, British Columbia were jubilant. The proposed Sumas Energy 2 Generation Facility power plant would have spewed up to three tonnes of toxins a day across the border into southern BC, and required that a massive power line be run through the town of Abbotsford. The battle was protracted, lasting five years, and the court’s decision to uphold a 2004 ruling by the National Energy Board that a power line would not benefit Canadians and should therefore not be built, was a major environmental victory.
Tim Howard, until recently a lawyer with the Sierra Legal Defence Fund—a law firm that specializes in strategic environmental litigation—was a major player in the Sumas 2 case, representing the David Suzuki Foundation and the Vancouver-based Society Promoting Environmental Conservation. Despite the length of the dispute, Howard says he was excited about working on a case that was so obviously important to a community—and he also saw a chance to advance the law, since the potential existed to set precedent. Sumas Energy 2 argued that Canada’s refusal to allow construction of a power line was an illegal barrier to trade under NAFTA, so when the Court of Appeal rejected that argument, it indeed set a precedent, with the well-being of communities trumping international trade.
As a University of British Columbia Law student, Howard says didn’t he didn’t know what his life would look like as a practising lawyer. He liked the idea of working with communities, and fighting on their behalf. But he also wanted to pick up skills in the private sector before doing public interest law. After graduating, he articled with a small local firm before going on to work for another small firm. His caseload was diverse, and included medical malpractice suits and wills and estates. Less than two years out of law school, however, Sierra Legal offered Howard a job, and, despite a big cut in pay, he jumped at the chance.
Howard is one of many who have chosen to use his legal skills to further social justice and environmental causes, and his work demonstrates just how powerful law can be as an instrument of social change. And while there are many people doing tremendous progressive work with the law, the activist-lawyer is a relatively rare breed. The vast majority of legal work is geared toward business and government. And law schools, Howard points out, don’t exactly nurture the instinct to swim against the tide. “Public-interest law is essential to a healthy democracy,” he says. “But law schools are missing out on the chance to emphasize the way the practice of law is a part of democratic dialogue in our society. They miss out on a chance to talk about values, to examine what society looks like, to question who has power, and whose rights need protecting.”
Law school is less a place to nourish ideas than one to help people enter a profession.
Just about every once-idealistic law student or young lawyer can tell you stories about how quickly idealism vanishes at law school. In 2001, Rachel Furey, a third-year law student at the University of Toronto, wrote an article, published in the U of T News, lamenting that the pressure to get a job on Bay Street is so fierce her peers resorted to doctoring their transcripts. She writes: “I recall my Orientation Week at the law school—less than two years ago—when I spoke with my colleagues about our goals and aspirations during and after law school. I met people who wanted to work for the United Nations, people who wanted to study poverty law and people who wanted to enter politics. I don’t remember a single person saying corporate mergers or bankruptcy legislation was her calling.”
Furey then states what seems to be a point of pride for U of T’s law school: Most grads go on to work for a Bay Street law firm. If a person walks into law school wanting to become, say, a human rights lawyer, he or she will quickly encounter lawyers, recruiters or career counsellors who will discourage such a path. According to second-year UBC Law student Ashleigh Keall, “They’ll say, well, you could do that, but they’ll make it sound really risky.”
Indissent.com, a short-lived online journal for “cynical law students and lawyers,” has a handy “Legal Insider’s Guide to Alternative Legal Careers,” for those unsatisfied with the traditional route. The tongue-in-cheek piece sums up the narrow culture and options available to law students, with an introduction that asks, “Were you not impressed with the 37 full service firms at the last wine and cheese? Did you accidentally veer off the Bay Street track by taking Aboriginal Women and the Law? Do you have even a passing interest in watching your children grow up? Perhaps it’s time to consider an alternative legal career.”
There are many reasons law schools don’t turn out more activists—most people go into law hoping to end up earning a comfortable living, something a new lawyer is unlikely to achieve pursuing a social justice-oriented career. And with tuition costs as high as they are—from $7,000 up—and the corresponding student debt load, there is little incentive to take a $30,000-a-year job when you can land one that pays $80,000. But another key factor is the pedagogical approach to law.
There are two schools of thought about how best to prepare future lawyers for their roles. One contends students must be drilled in substantive, or black-letter law. In this view, students need to learn the “tools of the trade”—such as knowing how to sue someone, enforce a contract or transfer property. The other believes law needs to be taught within the context of social issues and theories such as feminism, Aboriginal rights, economics or liberalism. Generally speaking, law professionals tend to support the former approach while a majority of legal academics support the latter. Howard says he was disappointed to find that law school did not provide a more theoretical approach. “Law is an instrument through which social policy is formed,” he says, “and teaching it as a white-collar trade is far too narrow.”
This divide is fairly recent, and it’s only due to shifting social values that we see an emphasis on social policy at all. Until 1968, Toronto’s Osgoode Hall was considered a professional trade school, not a university. Also in that year, the Law Society of Upper Canada stopped effectively regulating Canadian law schools and reduced the number of mandatory “core courses.” The courses continued to be offered, but the new freedom made way for more diverse offerings, such as Securities Regulation and Consumer Protection, and on the more radical end of the spectrum, Feminist Legal Theory and Aboriginal Law. Alongside curriculum changes, schools across the country established equity programs to promote diversity among students and faculty. They also opened legal-aid clinics, where students could gain experience and offer services to people in need of assistance.
Concerns about the effect of curriculum changes on the skills of graduating students started cropping up pretty early in this process of change. In 1984, Secretary of the Law Society of Upper Canada Kenneth Jarvis wrote a letter stating, “There are some indications that some graduates of approved LLB courses are coming to the Bar Admission Course in Ontario without adequate grounding in substantive law,” a belief shared by those who favoured sticking to the substantive view of legal education.
But within the law schools, some academics believed students were not receiving an adequately liberal education. In 1983, a group of legal academics, including Henry Arthurs, wrote an influential report, “Law and Learning,” calling on Canadian law schools to imagine themselves as providers of a legal education that was humane and professional, not simply vocational. Law schools, according to what’s referred to as the Arthurs report, needed to go beyond teaching practical skills to challenge the assumptions underlying legal rules, reasoning and institutions.
The decade since Howard was a student has been one of substantial change for law schools. Most significantly, government funding has undergone major cuts, and the price of tuition has skyrocketed, making it far less accessible. In 1998, the average cost for a year of tuition at law school was about $4,000. Now, it’s more like $7,000. If you happen to be interested in studying law in Ontario, you’ll pay more—the University of Toronto charges $17,000 per year, and other schools in the province are looking to follow suit.
As with all university programs, funding cuts have led law schools to adopt corporate approaches to management and to increasingly look to the private sector for funding. The advent of university rankings has contributed to this view of schools as market competitors. In 1991, Canadian Lawyer magazine published its first annual law school rankings, and Maclean’s magazine evaluated Canadian law schools once, in 1997. UBC associate law professor Margot Young points out that these surveys have contributed to an evolving hierarchy among Canadian law schools, making it increasingly difficult for them to strive for an ideal such as teaching humane professionalism. They are now in a position of having to justify their relevance to the profession, and to serve student—consumer—expectations.
Not all law students start out idealistic. Young says she is frustrated by the fact that many students come into law school with strong ideas about what they do and don’t need to learn to become successful lawyers. “From the first week of school,” Young says, “they want hard-core black-letter law, and they’re generally quite vocal about it.” She says she was shocked to realize—through course evaluations—that some students will dismiss the contents of an entire course because social theory or a feminist perspective is taught within it. “Every good lawyer, policy-maker, legal clerk in Canada is knowledgeable about these issues—you have to be to do your job well. They’re reading this stuff, but students don’t seem to think this is important.”
Young admits that law schools and the professors have to do a better job of explaining to students why it’s so important to put the law into context. It’s easy to see though, how the importance of learning about things like feminism, the environment or philosophy can be easily overshadowed by the importance of post-graduation employment. Christina Litt is a second-year associate with one of Canada’s biggest firms, Borden Ladner Gervais, in Toronto. Looking back at her law school days at the University of Western Ontario, she says, “People got caught in tunnel vision, because there’s so much pressure to get a job.”
And what does it take to get that job? According to Norman Letalik, Borden Ladner Gervais’ managing director in charge of recruitment, a good potential candidate is someone who will assimilate well in the workplace. While he agrees a good legal education offers students a breadth of knowledge he says, “No one goes to a lawyer for theory. People go to lawyers for their knowledge of the law.”
When students graduate and enter a firm, their success is largely dependent on their ability to pick up quickly on the tasks assigned. In the first years, these tend to focus on black-letter work such as drafting motions or statements of claim, or on specific kinds of research—such as securities or contract law. This past year in Canadian Lawyer’s rankings, UBC got mediocre grades on the overall curriculum, and ended up in last place among 13.
UBC Law is currently undergoing a thorough curriculum review that cannot be tied directly to this ranking. But, for better or worse, rankings do have the power to foment change within a school. In 1998, Osgoode Hall Law School at York University ranked poorly, and according to professor Lisa Philipps, the ranking provoked a “crisis-like atmosphere.” The school chose a new dean, developed innovative new aspects to its curriculums such as offering a combined law and environmental studies degree, and also made significant investments in facilities. By 2006, Osgoode ranked first in the Canadian Lawyer survey.
Increasingly, schools are finding niches to fill—the University of Victoria Law School is well known for its alternative co-op programs and environmental law program, Dalhousie is identified with its work on equality law within the constitution, and the University of Saskatchewan is recognized for its Native Law Centre and small class sizes. And there’s nothing wrong with niches, as long as the public good isn’t sacrificed for the sake of competition.
Tim Howard, who now works for a firm that does Aboriginal law, and who, 11 years out of law school no longer lives like a student, insists that no matter where you find yourself in the legal profession, you’ve got the power to make positive change.
Meanwhile, Margot Young insists that despite cynicism about money being poured into business law centres, even there, good, critical work is being done. It shouldn’t be a big surprise that law school—and the profession of law—can be a rough ride for people with idealistic intentions. Like everything else, they are entrenched in a money-driven world. But for those who want to pursue it, it is possible to fight the good fight. And if you happen to get sidetracked, and find yourself on Bay Street, it’s never too late to get back on track.
