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Legal Inquiry: A Liberal Arts Experiment in Demystifying Law

Published online by Cambridge University Press:  18 March 2014

David Sandomierski
David Sandomierski*
Affiliation:
SJD Candidate, Faculty of LawUniversity of Toronto
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Abstract

For the past four years, two instructors and approximately one hundred students have participated in a novel experiment in liberal arts legal education. Legal Inquiry, an upper-year course in the Arts & Science Program at McMaster University, seeks to “demystify legal knowledge for the curious student of the world.” It brings together two kindred yet previously isolated academic traditions: an open-ended inquiry approach to knowledge and a critical pluralist understanding of law.

To explore the compatibility of “law” and “inquiry,” the instructors wanted students to gain confidence and skills in engaging with formal legal sources, apply critical thinking to law, and appreciate informal and everyday law. These objectives were met with surprising success given the brevity of the course. Students achieved a basic understanding of formal law and legal reasoning, generated a vocabulary of what it means to think critically about law, and began to identify the continuity of formal and informal law.

Résumé

Au cours des quatre dernières années, deux enseignants et une centaine d’étudiants ont pris part à une expérience inédite dans les domaines de l’éducation juridique et des arts libéraux. Le cours avancé sur l’enquête juridique du Programme d’arts et science de l’université McMaster a pour but de « démystifier les connaissances juridiques pour l’étudiant curieux du monde ». Ce cours réunit deux traditions académiques apparentées qui précédemment étaient isolées : l’enquête ouverte à la connaissance et l’approche fondée sur une conception critique et pluraliste du droit.

Afin d’examiner la compatibilité du « droit » et de « l’enquête », les enseignants ont encouragé les étudiants à accroître leur confiance et à améliorer leurs compétences avec les sources juridiques formelles, à mettre en application une pensée critique et à apprécier le droit informel et quotidien. Ces objectifs ont été atteints avec un degré étonnant de réussite étant donné la courte durée du cours. Les étudiants ont acquis des connaissances de base sur le raisonnement juridique formel, ont adopté un vocabulaire ainsi qu’une pensée critique envers le droit et ont commencé à déterminer la continuité entre le droit formel et informel.

Keywords

liberal artslegal educationlegal pluralismcritical thinkinginquiryarts libérauxformation juridiquepluralisme juridiqueréflexion critiqueenquête
Type
Articles
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 29 , Issue 3 , December 2014 , pp. 311 - 325
Copyright
Copyright © Canadian Law and Society Association / Association Canadienne Droit et Société 2014 

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References

2 Viewed in light of the long tradition of undergraduate legal education, Legal Inquiry appears to be an innovation. See Berman, Harold J., On the Teaching of Law in the Liberal Arts Curriculum (Brooklyn: Foundation Press, 1956) at 5–6Google Scholar; Broderick, Albert, Law and the Liberal Arts (Washington, DC: Catholic University of America Press, 1967) at viii, xvGoogle Scholar; Blaine Baker, “The Teaching of Law in Undergraduate Liberal Arts Colleges” (Legal Education Seminar paper, Columbia Law School, October 27, 1978), on file with author at 18–19; Sarat, Austin, ed., Law in the Liberal Arts (Ithaca: Cornell University Press, 2004)Google Scholar. On the goal of “demystifying law” in undergraduate legal education, see Vincent Kazmierski, “How Much ‘Law’ In Legal Studies? Approaches to Teaching Legal Research and Doctrinal Analysis In a Legal Studies Program,” Canadian Journal of Law and Society (2014) doi: 10.1017/cls.2014.61.

3 Course syllabus, Legal Inquiry, McMaster Arts & Science Program, term 1 (fall) 2013–14, on file with author. The current syllabus is available online: http://artsci.os.mcmaster.ca/_uploads/documents/2013-14%204CA3.pdf.

4 Partner, Labour & Employment Law, Osler, Hoskin & Harcourt LLP. The author conceived the course in a Legal Education seminar taught by Rod Macdonald in 2007. From 2008–10, the two instructors redesigned the course and have since collaborated equally in its teaching and iterative modification.

5 See Jenkins, Herb, Ferrier, Barbara, and Ross, Michael, eds., Combining Two Cultures: McMaster University’s Arts and Science Programme: A Case Study (Lanham, Maryland: University Press of America, 2004) [Combining Two Cultures].Google Scholar

6 McGill University is a primarily Anglophone university in the Francophone province of Quebec. Approximately 39,000 students attend. See http://www.mcgill.ca/es/registration-statistics. The Faculty teaches common law and civil law concurrently to approximately 200 students per year. Courses are offered in both English and French. On the centrality of critical legal pluralism to the transsystemic curriculum, see Macdonald, Roderick A. and MacLean, Jason, “No Toilets in Park,”McGill Law Journal 50 (2005): 721Google Scholar. See generally “Navigating the Transsystemic,” McGill Law Journal 50 (2005); http://www.mcgill.ca/law/.

7 http://www.tcu.gov.on.ca/pepg/audiences/universities/univers.html; http://www.mcmaster.ca/opr/html/opr/fast_facts/main/studentEnrolment.html.

8 See Herb Jenkins, “Planning and Approval of the Arts and Science Programme,” in Combining Two Cultures, supra note 5, 17 at 20.

9 Law-related courses are offered by the Departments of Philosophy, Political Science, History, Linguistics & Languages, Communication Studies & Multimedia, and Psychology, Neuroscience & Behaviour; the Centre for Peace Studies; the Bachelor of Health Sciences Program; and the Schools of Business and Geography & Earth Sciences. See http://registrar.mcmaster.ca/CALENDAR/current/pg4.html.

10 Hudspith, Bob and Jenkins, Herb, Teaching the Art of Inquiry (Halifax, NS: Society for Teaching and Learning in Higher Education, 2001)Google Scholar, cited in Barbara Ferrier and Herb Jenkins, “Third World Development: A First Year Inquiry Course,” in Combining Two Cultures, supra note 5, 104 at 106.

11 Ibid.

12 See Graham Knight and Jennifer Smith Maguire, introduction to Barbara Ferrier and Herb Jenkins, “Third World Development: A First Year Inquiry Course,” supra note 10.

13 Past, current, and future upper-year courses include: Media, Biomedical Research, Environmental Education, Climate Change, Diversity and Human Rights, Research and Creative Writing, Scientific Research, Multiculturalism, and Medical Humanities.

14 Roderick A. Macdonald, “Here, There and Everywhere . . . Theorizing Legal Pluralism; Theorizing Jacques Vanderlinden,” in Étudier et enseigner le droit: hier, aujourd’hui et demain–Études offertes à Jacques Vanderlinden, ed. N. Kasirer (Montreal: Yvon Blais, 2006), 381. See also Macdonald, Roderick and Sandomierski, David, “Against Nomopolies,” Northern Ireland Legal Quarterly 57 (2007): 610, n. 19.Google Scholar

15 Kleinhans, Martha-Marie and Macdonald, Roderick A., “What is a Critical Legal Pluralism?” Canadian Journal of Law and Society 12 (1997): 25.Google Scholar

16 Macdonald, Roderick A., “Custom Made: For a Non-chirographic Critical Legal Pluralism,” Canadian Journal of Law and Society 26 (2011): 301 at 311 [“Custom Made”].CrossRefGoogle Scholar

17 Ibid. at 303.

18 Macdonald, Roderick A., Lessons of Everyday Law (Montreal & Kingston: McGill-Queen’s, 2002) at 3–7.Google Scholar

19 See Kleinhans and Macdonald, supra note 15 at 39ff. The term “jurisgenerative” is originally from Robert Cover. See Robert M. Cover, “Nomos and Narrative,” Harvard Law Review 97 (1983): 4 at 33.

20 See Macdonald and Sandomierski, supra note 14.

21 Ibid.

22 Knight and Maguire, supra note 12 at 103.

23 See Ferrier and Jenkins, supra note 10 at 104.

24 See Herb Jenkins, supra note 8 at 20. Current courses includes those structured around subject areas, integrating different disciplinary perspectives (Environmental Education, Diversity and Human Rights, Climate Change, Technology & Society), those that bring together two distinct disciplines (Medical Humanities), and those that develop disciplinary competencies with a lesser degree of cross-fertilization (Physics, Calculus, Literature, and Economics). See http://artsci.os.mcmaster.ca/courses/2013-2014.

25 See, for example, Ernest Weinrib, “Can Law Survive Legal Education?,” Vanderbilt Law Review 60 (2007): 401 at 430.

26 See Roderick A. Macdonald, “Custom Made,” supra note 16 at 309 (describing “monism, centralism, positivism, prescriptivism, and chirographism”).

27 Cf. Jean Wilson, “Literature,” in Combining Two Cultures, supra note 5, 157. Wilson encourages students in her Arts & Science literature course to reject authoritative interpretations of the canons of literature and to engage in original reading, exercising their agency in the context of a broader interpretive community (at 166–67).

28 Re Drummond Wren, [1945] OR 778, 4 DLR 674 (HCJ); Re Noble and Wolf [1948] OR 579, 4 DLR 123 (HCJ); Harrison v Carswell, [1976] 2 SCR 202 (varying degrees of deference given by courts to legislatures on questions of policy).

29 Cf. Keith J. Bybee, “The Liberal Arts, Legal Scholarship, and the Democratic Critique of Judicial Power,” in Sarat, supra note 2, 41.

30 Dicey, Albert Venn, Introduction to the Study of the Law of the Constitution, 4th ed. (London, New York: MacMillan, 1893) (selected excerpts).Google Scholar

31 [1959] SCR 121.

32 Reference Re Secession of Quebec, [1998] 2 SCR 217; Edwards v Attorney-General For Canada, [1930] AC 124; Reference Re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 SCR 457; Dunmore v Ontario (Attorney General), 2001 SCC 94, [2001] 3 SCR 1016; Health Services and Support—Bargaining Assn v British Columbia, [2007] 2 SCR 391; Ontario (Attorney General) v Fraser, [2011] 2 SCR 3.

33 Readings included excerpts from Macdonald, “Custom Made,” supra note 16; Macdonald, Lessons of Everyday Law, supra note 18.

34 As originally conceived, students could choose a site of either formal or informal law, but in practice, almost all chose a court or tribunal. In Year 4, we revised the assignment to ask students to visit sites of both formal and informal law.

35 Lon Fuller, “The Case of the Speluncean Explorers,” Harvard Law Review 62 (1949): 616; Harrison v Carswell, supra note 28; Jacobellis v Ohio, 378 US 184 (1964), Stewart J (“I know it when I see it” at 197).

36 Students explored legal realism in a class called The Judicial Mind, in which a guest speaker, novelist Anton Piatigorsky, examined District of Columbia v Heller, 554 US 570 (2008) for clues about a judge’s personal and psychological upbringing. Readings also included George Kannar, “The Constitutional Catechism of Antonin Scalia,” Yale Law Journal 99 (1989): 1298; Karl Llewellyn, “Some Realism About Realism—Responding to Dean Pound,” Harvard Law Review 44 (1931): 1222.

37 Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at 1–21; John Willis, “Statutory Interpretation in a Nutshell,” South African Law Journal 55 (1938): 187.

38 Re Drummond Wren, supra note 28; Re Noble and Wolf, supra note 28.

39 Course syllabus, supra note 3 at 4.

40 We did three case studies per year. Topics have included biotechnology, pension reform (with guest speaker Alex Mazer), family property law, prostitution, and corporate social responsibility.

41 We expanded on these components in the syllabus and required students to address each question in their paper proposals.

42 Harvard College v Canada (Commissioner of Patents), 2002 SCC 76, [2002] 4 SCR 45.

43 We held this class in an e-classroom in the library. We provided basic instruction in electronic databases such as BestCase, LexisNexis Academic, Canlii, LegisInfo, and paper materials such as the Canadian Abridgment and the Index to Canadian Legal Literature. Students worked in groups, inputting sources into a real-time shared document using the online application Etherpad. In one hour of research time, the class produced a 40-source bibliography. See workopen.org/legalinquiry_prostitution.

44 Joel Bakan, The Corporation. DVD. Directed by Mark Achbar and Jennifer Abbot (New York: Zeitgeist Films, 2003); Friedman, Milton, “The Social Responsibility of Business Is to Increase Its Profits,” New York Times Magazine, September 13, 1970Google Scholar; Stout, Lynn A., “Bad and Not-So-Bad Arguments for Shareholder Primacy,” Southern California Law Review 75 (2002): 1189Google Scholar; Hansmann, Henry and Kraakman, Reinier, “What is Corporate Law?,” in The Anatomy of Corporate Law: A Comparative and Functional Approach, eds. Kraakman, Reinieret al. (Oxford: Oxford University Press, 2009), 1.Google Scholar

45 We asked students to submit paper titles using a Google form. Once students had submitted their titles, we discussed the different critiques embodied in the resulting list of titles. See https://docs.google.com/spreadsheet/pub?key=0AqdxK044GbuRdGdpY3Rkb3F1TDhCeHR3OHpMNnFRRUE&output=html.

46 House of Commons, The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws (2006).

47 Bruni v Bruni, 2010 ONSC 6568, 104 OR 3d 254.

48 Berman, supra note 2 at 9–16; Kennedy, Duncan, “Legal Education and the Reproduction of Hierarchy,” Journal of Legal Education 32 (1982): 591Google Scholar; Kronman, Anthony T., The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, MA: Belknap Press of Harvard University Press, 1993) at 113–21, 154–62Google Scholar; Ian Kyer, C. and Bickenbach, Jerome E., The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario 1923–1957 (Toronto: The Osgoode Society, 1987) at 6–36.CrossRefGoogle Scholar

49 In each of Years 2, 3, and 4, we asked the following questions on course evaluations: (1) What was a core objective of the course? (2) How well was it achieved? While the sample set is too small to produce statistically significant results, the figures provide useful illustrations. Our response rates in Years 2, 3, and 4 were, respectively, 15 out of 26, 20 out of 23, and 23 out of 23. We did not pose these questions in Year 1. The figures that follow in the text are based on the combined total of 58 respondents from Years 2–4.

50 In Year 2, 14 out of 15 students stated that at least one objective was successfully achieved. In Year 3, 20 out of 20 did so, and in Year 4, 22 out of 23 did. One Year 3 student wrote, “The confidence I have gained in reading and understanding legal texts may be the most practical and valuable skill I have taken from a course.”

51 In Year 2, three students expressed reservations; in Year 3, five did; and in Year 4, one did.

52 “The core objective as I see it is to gain a basic knowledge in Canadian law and apply it to socially relevant issues and cases critically. I feel that a hindrance to this task was the fact that we gained the knowledge as we try to critically evaluate the issues, which resulted in hasty and incomprehensive understanding of issues” (Year 2).

53 “Though the class covered many bases and was heavy on the analytical side, I feel almost as if law is even more intimidating than I once thought. I feel like my legal knowledge is lacking and that the course could be very overwhelming at times” (Year 4).

54 “It was a success in that I feel more confident approaching cases, statutes, law. However, I haven’t yet had a moment where I’ve seen the ‘big picture’ of law & society (but this might be neither necessary nor appropriate?)” (Year 3); “Though I don’t feel ‘knowledgeable,’ I do feel I have at least a basic understanding of these issues” (Year 3).

55 The quoted terms are from student evaluations.

56 “Law Day and Chocolate Bunnies,” in Lessons of Everyday Law, supra note 18 at 19–22.

57 See Roderick Macdonald, “Les vieilles gardes: hypothèses sur l’émergence des normes, l’internormativité et le désordre à travers une typologie des institutions normatives,” in Le droit soluble: contributions québécoises à l’étude de l’internormativité, ed. J. G. Belley (Paris: L. G. D. H., 1996), 233.

58 “MSU Who?: A Critical Examination of the Corporate and Legislative Nature of McMaster’s Student Union” (Year 1); “Informal Law and Consensus-Based Decision-Making” (Year 2); “Academic Integrity and Student Learning” (Year 3).

59 Roderick Macdonald shared all three examples with us when we were his students.

60 We ask students to indicate on the course evaluations their favourite and least favourite courses and readings. In Year 4, Customary and Everyday Law was outdone by only one course, Common Law Reasoning, which eight students selected as their favourite.

61 “Gone With the Wind: An Inquiry Into the Intersection of Science and Emotion in Municipal Law Through Wind Energy Development”; “Challenging the Gender Binary: Transsexuals In Sport”; “Sext-Ed: An In-Depth Look Into the Sexting Subculture of Teens and the Laws Suppressing the Growing Phenomenon.”

62 Three students identified the class as their least favourite. We must also guard against appearing to proselytize. As one Year 4 student wrote: “[I]nformal law looks more like a school of thought than an absolute perspective (which is how it was sold to us).”

63 Year 4.

64 See Nussbaum, Martha, Cultivating Humanity (Cambridge, MA: Harvard University Press, 1997).Google Scholar

65 See, especially, Elizabeth Mertz, The Language of Law School: Learning to “Think Like a Lawyer” (New York: Oxford University Press, 2007) at 5, 76–77; Kennedy, supra note 48. One Year 3 student, Simon Gooding-Townsend, returned to sit in on a class in Year 4 while on November break from his first year of law school. He reflected:

It’s not quite true that there is less explicit emphasis on social context in law school, but there is a strong tendency to want to dismiss it as a means of explaining the solution to the legal problem. …

I think that it is interesting that both first year law school and legal inquiry care in many ways about the legal thinking and thought process. However, law school mostly feels that it needs to give you the answer to the questions it asks in a way that we didn’t do in legal inquiry. …

Law students seem to be much more effective at narrowing their perspective to focus on a narrower issue. Legal inquiry encourages broad thinking on the topic. …

The purposes of first year law school and legal inquiry are clearly different. I think first year law aims to provide a more or less coherent understanding of the law. … Legal Inquiry I sense is more looking at the idea of a legal framework in society (Student comments on file with author).

66 For efforts to unpack “critical thinking” in law, see Susana Calkins, “Enhancing Critical Thinking in Law Students” (Keynote Address for Canadian Association of Law Teachers Annual Conference, Montreal, May 2012) (on file with author). See also Elkins, James, “Alternative Currents: One Teacher’s Thinking about the Critical Thinking Movement,” Legal Studies Forum 23 (1999): 379 at 380–81Google Scholar; Mudd, John O., “Thinking Critically about Thinking Like a Lawyer,” Journal of Legal Education 33 (1983): 704 at 706Google Scholar; Nussbaum, Martha, “Cultivating Humanity in Legal Education,” University of Chicago Law Review 70 (2003): 265 at 267–69Google Scholar. On critical thinking, see Arendt, Hannah, Lectures on Kant’s Political Philosophy, ed. Beiner, Ronald (Chicago: Chicago University Press, 1992) at 38–46Google Scholar; Frye, Northrop, “A Liberal Education,” in Northrop Frye’s Writings on Education, eds. O’Grady, J. and French, G., vol. 7, Collected Works of Northrop Frye (Toronto: University of Toronto Press, 2000)Google Scholar, 40 (“[T]he purpose of liberal education today is to achieve a neurotic maladjustment in the student, to twist him into a critical and carping intellectual, very dissatisfied with the world, very finicky about accepting what it offers him, and yet unable to leave it alone” at 48–49).

67 We were expanding on our discussion of “critical” in the Course syllabus, supra note 3, which reads: “You may disagree with a particular policy position as manifested in case law or legislation. You may disagree with a particular choice of governing instrument and propose alternatives. You may identify some injustice or bias or other social problem that occurs as a result (either incidentally or directly) of a given regulatory choice. You may argue for an expanded or narrower understanding of a key concept such as ‘law,’ ‘democracy,’ ‘equality’ as it appears in a given context. These are only examples, of course: the field for critical responses is wide open and invites your creative ideas.”

68 Although there are numerous examples for each, I have included one sample paper title in a footnote to the relevant question.

69 Thanks to Bridget Steele, a Year 3 student, for emailing me the list, which I have revised and combined with my own notes from the discussion in Year 4.

70 “Addressing the Conflicting Interests of Organic Farmers and Biotechnology Corporations Through Litigation and Alternatives” (Year 4).

71 “Unexpected Side Effects: Is There a Place for Criminal Law in HIV Prevention?” (Year 3).

72 “30 Years After Rape Law Reform in Canada: The Limits of a Criminal Justice Response” (Year 4).

73 “State Legislation on Child Maltreatment: A Comparative Analysis” (Year 2).

74 “Treatment or Detention—The Unclear Social Intent of Mental Health Legislation: A Critical Inquiry into the Mental Health Legislation of Ontario” (Year 2).

75 “The Politics of Prison: An Inquiry into the Purpose of Mandatory Labour Programs” (Year 3).

76 “The Limits of ‘M’ and ‘F’” (Year 1).

77 “Legislating Wildlife Control: A Critique of Hunting Laws in Canada” (Year 4).

78 “Israel’s Law of Return: Investigating Israel’s Status as a Jewish and Democratic State” (Year 1).

79 “Going Off the Rails on a Publicly Funded Train: Legislative and Institutional Issues Surrounding the Governance and Development of Mass Transit in Toronto” (Year 2).

80 “Informal Law and Consensus-Based Decision-Making” (Year 2).

81 Jean Wilson, “Remedial Metaphor: Pedagogical Frye,” University of Toronto Quarterly 81 (2012): 111 at 115.

82 Ibid. at 116.

83 Northrop Frye, “Social Importance of Literature,” in O’Grady and French, supra note 66 at 334, cited in Wilson, ibid. at 116.

84 Roderick Macdonald, Lessons of Everyday Law, supra note 18 at 6, 12.