RSS FeedIf school kills creativity, what about law school?
Sir Ken Robinson offers some critique of our education system in this video from 2006. Perhaps some of this could be used in law school reform.
Who ever heard of creativity in law school?
Planet Law
The 1Ls in my law school put this one together.
It’s actually not that far off from an accurate description of what goes on.
Planet Law: 1L Obiter Dicta Video 2010 from Steven Pulver on Vimeo.
Billing By The Hour
There has been a great deal of discussion among legal commentators about the failure of hourly billing for legal services and the need for alternatives. The most recent article I’ve seen is in the CBA’s Jan/Feb issue of National. Although I’m a law student and have never billed a single hour as a lawyer, I have worked for more than a decade as an entrepreneur and I wonder … what are the alternatives, really, but masked versions of hourly billing? Given the limited amount of hours available to work in any day/week/year/lifetime, billing by the job MUST reflect the time that the task requires.
Flat fee services must have caps on the input of resources to succeed as business models and, as a result, will tend to put a floor rather than a ceiling on the cost of any given service. At best, a flat fee will reflect the average amount of time required to perform a service. Innovators can find ways of doing things more quickly through economies of scale, computer processing, outsourcing and so forth, but price reductions that service providers choose to pass on to the clients can be built into an hourly billing model just as easily as any alternative. Innovations might put pressure on hourly rates through competition, but this has nothing to do with the method of billing.
Frankly, I fail to see how alternatives to billing by the hour will change the cost of legal services. The real pressures on cost come from the the well-known forces of the marketplace … the rest is just packaging. And if clients are becoming more sophisticated, will they really be impressed by a fancy one-size-fits-all (unless you want more) gift bag?
The real issue is value. Lawyers that provide it will gain clients and those that do not will lose clients. Those who insist on talking about how the billing is done, please explain (and be nice about it): What am I missing?
Tell ‘em They’re Your 1st Choice (Even if They’re Not)
Here’s a great piece from Andrew Black of Windsor Law. I think he’s funny, even though he beat me in a moot (I’m not bitter or anything).
If you get an OCI friend,
Cop it like its hot
Cop it like its hot
Cop it like its hot
If your competitions dressed well,
Knock it like its not
Knock it like its not
Knock it like its not
And tell em they’re your first choice,
Even if they’re not
Even if they’re not
Even if they’re not
I’ve got the herbal in my tea and I’m pouring coffee,
And I bomb the first one ’cause I really gotta pee
Ahhh Im a fly dude, plus a nice guy
See this back pat? See this pink tie?
Eligible law student, 20 grand debt
That’s overdue like gum for that dirty breath
The interview: interior like driz-ead
The exterior like firetruck riz-ed,
I can exercise you, this can be your Phys. Ed,
Tell ‘em they’re your first choice – that’s how you get ahizzead
Lawyers on the Street send these lawyers with a sheet
With a list a names so long it make you wanna play it cheap
So don’t try to run up on their ear talking all about school n’ shhh
Cause they heard that shhh
Show personality and ask ‘em shhh
Dont say “I’ll think about it.” Take the offer
Matter fact, tell ‘em that you’ll work for free,
And think before you tell ‘em that they’re choice #3
If you get an OCI friend, keep it on the low, nobody wanna know, you’ve got a ways to go
If you get an in-firm interview, keep it on the low, nobody wanna know, you’ve got a ways to go
If you get a dinner invite, keep it on the low, nobody wanna know, you’ve got a ways to go
If you make it past that, then you’re on the right track,
If you played your cards right then they might just call you back
I’m a law student, but y’all knew that
In OCI mode, yeah I had to do that
I keep my cell phone right here in my pocket
Strictly set to vibrate – only way to rock it
Ain’t no other way to interview the way I do,
I smile, I nod, I always tell ‘em “thank you”
By the time they get to us, they know who we are,
W-I-N-D-S-O-R
If you can’t take it, just fake it until you make it,
See I specialize in making interviewers elated,
Research your firms, ask questions, keep facts,
And before you head in, breathe deep and relax
Don’t lose your hizzay, it’s only for a dizzay,
Never, ever, flirt with the student recruitizzay,
Send out your e-mizzles to fizzirms, and that be iz-all
Now head’r back to biz-ed, and wake up for the ciz-all
If you’ve got a fly suit, friend,
Rock it like its hot
Rock it like its hot
Rock it like its hot
If your interviewer stares at you,
Act as if they’re not,
Act as if they’re not,
Act as if they’re not,
And tell ‘em they’re your first choice,
Even if they’re not
Even if they’re not
Even if they’re not
I’ve got the strut up in my stride, but my shoe is untied
So I blame it on the floor, like “this tile – it really slides”
I’m an A student, with a lot of Bs
A couple reference letters, and a single C
I study last minute, plus I like to party,
So no response from Davies or McCarthy,
Close the computer screen and Macleans Magazine,
‘Cause everybodys an authority, know what I mean?
Oh you got a job, now you wanna talk back?
Same position. Half the tuition. Top that.
So its all over, now its back to class,
If you got an offer, just make sure you pass,
But if you got the shaft, that’s just fine, too
Must I remind you they’re only here to find you,
Fine wine and dine you, sign you then grind you,
So maybe you were better off catching the swine flu
Good luck student, this lesson is free,
And if it doesn’t work for you, come work for me.
An Interview with Quebec’s first black lawyer
Anthony Morgan, a McGill law student and president of the Black Law Students’ Association of Canada, interviewed Frederick Phillips, McGill’s first black law grad and Quebec’s first black lawyer.
You can read the interview on inFocus online, McGill’s news magazine.
“Bleeding hearts in law school”
On Friday, Kory Teneycke, a former top adviser to PM Stephen Harper, was interviewed on CTV’s Power Play about the Khadr decision:
Here’s a transcript of the best parts:
Aside from showcasing the Harper government’s ideological approach to human rights, Teneycke’s dialogue serves to remind us of the importance of the Charter with respect to individual rights. As eloquently stated by then-Chief Justice Dickson, the Charter safeguards minorities from the “tyranny of the majority” (R. v. Big M Drug Mart Ltd., [1985] S.C.J. No. 17 at para. 96).
I personally hope that most Canadians would prefer to see an alleged terrorist brought before our functional justice system, rather than lower our justice system to a terrorist-like level of disregard for human rights. But even if the Harper government, and the majority of Canadians, wouldn’t care to see Khadr treated as a human being, there is still Charter-based justification for the judiciary (and the “bleeding hearts in law school”) to seek protection of his fundamental rights.
LSAT Accomodation
A would-be law student has filed a complaint with the Human Rights Tribunal of Ontario in Arenson v. Law School Admission Council. She was requesting accommodations for the LSAT exam due to her disability.
See a summary of the case at Doorey.
The Life and Times of Ivan C. Rand
From Volume III, Issue II of Amicus Curiae, Western Law’s Student Paper
Canada was a different place before Trudeaumania swept the nation, and the man we know as Ivan Rand, founding Dean of this law school and former Justice of the Supreme Court of Canada, was a product of his times. It would be easy to dismiss Dean Rand as an intolerant bigot, but as William Kaplan explained to an audience at Western Law on Nov. 11, [2009,] Rand was complicated character.
“Canadian judicial biography has been, with a few exceptions, mostly uncritical and largely celebratory, written by unabashed admirers,” Kaplan writes in his new book, Canadian Maverick – The Life and Times of Ivan C. Rand. “To my great surprise, this book turned out to be different.”
Ivan Rand was born and raised in the Maritimes and graduated from Harvard Law in 1912. It was his exposure to the American Bill of Rights that, according to Kaplan, differentiated Rand from other Canadian lawyers. And it’s Justice Rand’s decisions as a Justice of the Supreme Court that make his legal legacy so difficult to reconcile with his private views, which have been largely hidden until now.
By 1951, the court in Noble v. Alley assessed a restrictive covenant against selling property in the Grand Bend area to Jews, blacks, or those with “coloured race or blood.” It was Justice Rand who interrupted oral submissions by the respondent saying,“If Albert Einstein and Arthur Rubinstein purchased cottages there, the property values would increase, and the association should be honoured to have them as neighbours.”
Despite his position on restrictive covenants in this case, he was a member of two restrictive clubs that excluded Jews. He defended the right of Communists to hold elected positions, and famously opposed the internment of Japanese citizens, all the while refusing to meet his sister’s Acadian husband for 30 years because of his background.
“It’s this hypocrisy – because he did know better – that ultimately leads me to conclude: first-rate mind, third rate temperament,” said Kaplan, noting that the most influential judges are rarely collegial consensus builders. “Not such a bad combination.”
What, if anything, changed during his lifetime?
Kaplan suggests that Rand’s exposure to Jews in the Palestine Mandate may have led him to develop a more favourable impression of Jews. Rand was impressed by the largely secular, often highly educated and industrious, and was sometimes even disdainful of the religious establishment of the Holy Land. He believed that rational law could resolve all human conflict, and was a social engineer at heart.
Robert Mackay, one of Rand’s colleagues at Western who would eventually succeed him as Dean, recalls Rand’s rants against Jews and people with ethnic names that ended with a vowel: “Rand would declare he had enough of them.”
Yet he continued to donate to Hebrew University in Jerusalem for the rest of his life. A forest in Israel was named after him, and he would tour the country receiving awards.
So what is Rand’s legacy for this school?
Kaplan tellingly notes, “Almost all of his great civil libertarian decisions reversed the actions of state authorities in Quebec.” Mackay explained, “Rand had to decide who he hated more – the French-Canadian Roman Catholics, or Jehovah’s Witnesses.”
Rand believed that ethics could not be taught – either you had them or you didn’t. Western is now known as a pioneer in legal ethics education.
The Ivan Rand window in the Moot Court Room looms menacingly above all those who dare try their hand at advocacy. Rand himself believed that mock trials courts were entertaining, but not educational. He preferred his old 1909 Harvard law texts for the students.
Rand felt that women were good as solicitors but did not have the fortitude for criminal law, a notion that would not bode well for our classes in which women outnumber men , the legal aid clinic, or our struggling criminal law program.
Dean Rand defied utilitarian economics by taking surplus budgets and returning them to the university, much to the chagrin of his staff. He abandoned the administration of the law school only months after its opening to attend to a coal crisis in Cape Breton.
Yet the students loved him.
The Rand formula, where workers pay union dues irrespective of membership, is still one of the hallmark characteristics of Canadian labour law. One of Rand’s recommendations (which was never adopted) was that unions be recognized as legal entities that could sue and be sued [directly, and not through agents]. Another was abolishing picketing altogether.
Overall, Kaplan describes Rand’s own hand at labour relations as nothing less than “disastrous,” with nearly every stakeholder and political party expressing strong criticism. “Reforming labour law,” Kaplan said, “is best done incrementally.”
As our own Dean Holloway acknowledges, “it’s difficult to write fairly about Ivan Rand… What emerges is a picture of a principled man, who thought deeply about the best way to enhance the standards of this profession.”
Kaplan suggests that what makes Rand impressive is his ability to draw bright lines between his public and private life, especially when on the Court. And for a man whose vision in many ways may have been ahead of his time, perhaps that is the most we can ask for.
Panel Proclaims Prorogation Problem Political
An expert panel on prorogation was convened on Thursday at the University of Toronto’s Faculty of Law. The panel featured law professor David Schneiderman, director of Fair Vote Canada Larry Gordon, Globe & Mail correspondent Michael Valpy, and political science professor Simone Chambers, and its goal was to engage in dialogue about Stephen Harper’s second prorogation of Parliament within a year. The panel was organized by Law Students for Democracy, with Camille Labchuk and Daniel Goldbloom hosting and chairing, respectively, the discussion.
There were two fundamental questions that emerged from the debate: 1) is the latest prorogation legal? and 2) if legal, is the prorogation an ethical abuse of power?
It was conceded by all parties (with the exception of Larry Gordon, who spoke exclusively about voting reform) that the prorogation is legal. It is certainly the prerogative of the Prime Minister to ask the Governor-General to prorogue Parliament. Even if it is perhaps against the spirit of the constitution, there is no black-letter law against prorogation.
So if prorogation is legal, is it right? Without explicitly saying as much, the panellists suggested that the answer is No. Both Schneiderman and Valpy pointed out that the prorogation process has been substantively abused only three times since Confederation: by Stephen Harper in 2008 and 2009, and by Sir John A. Macdonald in 1873 to avoid an inquiry into the Pacific Railway scandal. Chambers argued that it’s a matter of degree: while every past prorogation has been for the advantage of the governing party in some capacity, one must examine the degree of partisanship with respect to the reasons claimed for proroguing.
What were Stephen Harper’s reasons for proroguing? Valpy stated the obvious, that all of Harper’s ostensible reasons are disingenuous (see e.g. the Economist critique of Harper’s “recalibration” reason). Schneiderman suggested that the real motivation was that Harper wanted to avoid having to turn over documents related to alleged complicity in Afghan detainee abuse. Schniederman detailed the history of Harper’s misleading claims that his government was legally obliged to keep the documents hidden – claims that were blown out of the water by Parliamentary law clerk Rob Walsh. Schneiderman suggested the possibility that, had he not prorogued, Harper and cabinet could have been forcibly removed from Parliament for not respecting the majority vote to turn over the documents.
Harper’s behaviour, said Schneiderman, is part of a broader agenda to Americanize the Canadian constitution – evidenced by Harper’s insistence on separation of powers between the Judiciary, Parliament, and the “Executive”; also evidenced by Harper’s desire for an elected Senate.
The panel agreed that the Governor-General did the correct thing in 2009 by agreeing to the prorogation. The Governor-General is not expected to interfere with political affairs beyond what is asked of her; her role today is primarily symbolic, and we wouldn’t want her to begin exercising her black-letter prerogative.
There was debate as to whether Parliament could create a statute governing prorogation. Chambers thought that this would require a constitutional amendment, which is very hard to effect practically. Schneiderman said that it might be possible, and a similar problem is playing out in Harper’s proposed Senate reform.
Perhaps the most crucial point came from Chambers. She said that while the 2009 prorogation is technically legal, it is dependent on the citizens to voice outrage at the audacity of Harper proroguing out of such blatant self-interest. The outrage is manifesting itself in the infamous facebook group, the 10-point hit that the Conservatives have taken in the polls, and the planned protests that will occur all over Canada tomorrow.
In short, the prorogation problem is a political one, not legal.
Body Part Maker Aptitude Test (BPMAT)
Fast Future Research has released a report of the jobs of the future. Fortunately lawyers still made the list, but with a slightly different role that they call a “virtual lawyer,”
The internet is a major facilitator of innovation in both the legal and illegal realms. Hence a significant part of a virtual lawyer‘s time will be spent monitoring new legal developments and precedents that apply to the virtual world. Much of the legal territory remains the same e.g. disputes, contractual failures, ownership issues, intellectual property theft, sabotage, copyright infringements and trademarks. However, the complexity comes from the global nature of the web and the different legal jurisdictions that could be involved…
Virtual lawyers will make extensive use of technology – for example setting up bots and spiders to develop a reverse audit trail of suspect transactions and scanning the web for possible clues or experts that could help in the prosecution of a case. A key role will be to advise customers on how to set up online activities – particularly e-commerce transactions – in a manner that is legally sound across a range of jurisdictions. The goal is to prevent possible future prosecutions in areas such as online gaming and content download.
Here are some of the other careers you could have considered that probably wouldn’t have required a BPMAT either:
- Body part maker: Create living body parts for athletes and soldiers.
- Nano-medic: Nanotechnology advances mean sub-atomic treatments could transform healthcare.
- GM or recombinant farmer: That’s “GM” as in “genetically modified” or engineered crops and livestock.
- Elderly wellness consultant: As an aging population increases in size, we’ll need folks to tend to their physical and mental needs.
- Memory augmentation surgeon: Like Eternal Sunshine of the Spotless Mind, surgeons could boost patients’ memory when it hits capacity.
- ‘New science’ ethicist: With the rise of cloning and other ethically-dubious practices, ethicists will be needed to ford the river of progress.
- Space pilots, tour guides and architects: Space tourism will allow for space pilots, tour guides and the architects that will allow them to live in lunar outposts.
- Vertical farmers: The future of farming is straight up. Vertical farms in urban areas could significantly increase food supply.
- Climate change reversal specialist: Regardless of what you think about human-induced climate change, it’s clear we’ll need scientists who specialize in altering it.
- Quarantine enforcer: When a deadly virus spreads rapidly, quarantine enforcers will “guard the gates.”
- Weather modification police: If weather patterns can be altered and adversely affect other parts of the world, law enforcement will be needed to keep things legal.
- Virtual lawyer: As international law grows to supercede national law, lawyers will be needed to handle cases that involve people living in several nations with different laws.
- Classroom avatar manager: Intelligent avatars will replace classroom teachers, but the human touch week be needed to properly match teacher to student.
- Alternative vehicle developers: Goodbye, internal combustion engine. Zero-emission cars will need smart people to design and manufacture them.
- Narrowcasters: As in, the opposite of “broadcaster.” Media will grow increasingly personalized, and we’ll need people to handle all those streams.
- Waste data handler: Think of it as an “IT axe man”… for information. Waste data handlers will destroy data for security purposes.
- Virtual clutter organizer: Now that your electronic life is more cluttered than your physical one, you’ll need someone to clean things up — including your e-mail, desktop and user accounts.
- Time broker/Time bank trader: What’s more valuable than precious metals, stones or cold, hard cash? Your time.
- Social ‘networking’ worker: A social worker for the Web generation.
- Branding managers: These already exist for celebrities, but now everyone needs a “personal brand” so others can easily digest who you are and what you stand for.
Do We Need Courses in Ethics and Professional Responsibility?
Prof. Michelle Harner shares over at Concurring Opinions,
We started our spring semester today at Maryland, and I am teaching one of my favorite courses, Legal Profession. Having faced ethical dilemmas in practice (and unfortunately seen very talented lawyers disciplined, disbarred and jailed), I believe that this course is extremely valuable. I suspect, however, that most of our students disagree with me, which is why they typically wait until the last semester of law school to take this required course. In fact, the very first time I taught Legal Profession, I asked my class of 75 3Ls to raise their hands if they would “elect” to take Legal Profession if it was not required for graduation. Only one student raised her hand; I promptly commented that she was perhaps the smartest woman in the room. Since that first year, more students have raised their hands, but I attribute at least part of that increase to a note in prior students’ outlines to “raise hand when Prof. Harner asks . . . .”
Are professional ethics courses useful in law school? Are these better relegated to the bar admissions process and learning on the job? Or is it too late by that time given the pressures lawyers face, as Prof. Harner suggests?
3L Suspected in Philly Shooting
David Lat of Above the Law says,
Many 3Ls these days are angry and frustrated. If the allegations are true, one has resorted to gun violence (and not just against his casebooks)…
If the allegations are true, this would not be the first time an Asian-American law student in Philadelphia has gone on a shooting spree. Back in 2007, Joseph Cho riddled his neighbors’ apartment door with nearly 15 shots. Such incidents raise broader questions about the mental health of law students (and whether schools are doing enough to help them).
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