Legal Education for the 21st Century
McCallum, Margaret, University of New Brunswick Law Journal
[As recipient of the Law Faculty Teaching Award, Dr. McCallum was asked to give a talk on teaching, which she delivered to colleagues and students during Speakers' Hour on 17 February 2011. Below is the text of the talk, revised to incorporate some of the comments from those present. Sources referred to are listed in the Suggestions for Further Reading, below.]
Thank you to all of you who were part of naming me as the first recipient of the Law Faculty Teaching Award. I feel privileged to have the job that I have and I am glad that you think that I do it well enough to deserve a teaching award. What follows are some of my observations about first year law. These are my observations but they are not uniquely mine, nor are they new. Duncan Kennedy, for example, offered similar observations in an article entitled "Legal Education as Training for Hierarchy". First published in 1982, this article is still a depressingly accurate and apt critique of the law school enterprise. (See the Appendix, below.)
Most Anglophone common law degree programs in the USA and Canada offer a compulsory first year curriculum that has changed very little since universities began offering a professional law degree program. The courses offered in first year deal primarily with private law. At UNB, three of the five full-year courses in first year--property, contracts, and torts--are private law courses which have been part of the first year curriculum since the school was established in Saint John in 1892. Currently, we allocate more class hours to these three courses than do most other Canadian law schools, but property, contracts, and torts are a substantial part of the required first year curriculum in all of the common law degree programs in Canada. Windsor offers a slight variation, with torts a compulsory course in second year. At the new law schools to be established at Thompson Rivers and at Lakehead, property, contracts, and torts will be a major element of the compulsory first year curriculum.
There is considerable agreement, too, about how to organize the first year private law courses. For the property course, instructors in Canadian law faculties have a choice of three national casebooks. Each presents property law primarily as a mechanism for facilitating individual decisions about the use of assets, and for resolving disputes between individuals about which of them has a better claim to the use of a particular asset. In the make-believe world of property law, all the players own property and all property owners are treated as juridical equals by the court -equally able to acquire property and equally able to defend their property rights.
Property law does not concern itself with those who do not own property, and are therefore excluded from participation in decisions about the allocation and exercise of private property rights. Thus, property law can ignore the grossly unequal distribution of wealth in Canada. It can also ignore uses of property that damage the environment or waste natural resources, unless these uses can be challenged within the narrow confines of common law protection of individual property rights, such as the rights of riparian owners.
Contracts is also about juridical equals making choices about how to use assets, and making agreements with others in order to implement those choices. Law will enforce these agreements but will not regulate their content. Occasionally, equity may intervene in individual cases where one party takes undue advantage of the other. Remember Old Herbert Bundy of Yew Tree Farm in Broadchalke, "one of the most pleasing villages in England"? Lord Denning intervened to prevent Lloyds Bank from evicting Mr. Bundy, because in the circumstances it would be "unconscionable" for the Bank to exercise its legal rights. But cases that merit intervention are treated as anomalies. As Lord Denning observed: "No bargain will be upset which is the result of the ordinary interplay of forces. …