Chapter 7: Laws Content
Theyre Actually Reading Cases! Pedagogic Objectives of the Early University of British Columbia Faculty of Law
If the tremendous idealism and "can-do" attitude of the post-Second World War generation is one feature that marked the early University of British Columbia law faculty, its approach to scholarship and education was another.
The preceding chapters have emphasized continuities of intellectual and institutional lineage between the University of British Columbia law faculty and earlier programmes of legal education. But it would be wrong to underestimate the degree of innovation involved in creating a new law faculty in common-law Canadas second-most populated province. Interviewed in 1980, Dean Curtis recalled that, a generation previously,
there was a great debate in Canada. What should the future of legal education be? Should it be the essentially old system where such law schools as existed would be run by the profession as in Ontario (Osgoode Hall), or should it be what Id been familiar with both at Saskatchewan and at Dalhousie, namely that it should be a university enterprise. The academic side of the preparation . . . for the practice of law should be within the university atmosphere . . . .
I was convinced that here we were at a point of decision and I was determined that if the opportunity came to start a law school out here in B.C.of what I call the university type of law school, that patternthat it was terribly important for the country. That was the right answer and it was still up for grabs . . . of course.
Given the qualities of the new dean, the law teaching background of President Norman MacKenzie, and the important preparatory work undertaken jointly by President Leonard Klinck and several generations of Benchers, it is not surprising that a scholarly programme derived from Dalhousie and the Harvard Law School was in fact implemented. Curtis, it will be recalled, had been much relieved during his earlier meetings with Vancouver lawyers when they told him of their desire to create a university law faculty modelled on Dalhousies.
The full import of this choice merits emphasis. Fifty years later it is easy to take for granted the general outlines of the educational programme then brought into beingit is recognizably of the same family as the programmes to be found in any credible North American law faculty of the 1990s. In fact, the decision to follow in the path of Dalhousie and Harvard connoted much more than a simple substitution of full-time studies for the part-time lecture series that had preceded it in British Columbia. "Dalhousie" serves as a sort of code-word among legal educators in Canada, much as "Harvard" does in the United States of America. It invokes a vision of intellectually ambitious, rigorous, and scholarly approaches to education for the profession of law. In British Columbia, the transformation from part-time to full-time study involved the implementation of a model of legal education that was "Dalhousie" in all respects. The result differed dramatically from the old Vancouver Law School.
Law Faculty and the Law Society
For many years before the war, meetings of representatives of the University of British Columbia and of the Law Society had taken place, looking toward the establishment of a Faculty of Law at the University of British Columbia.
Last year the Legal Professions Act was amended to permit the Society merging its Law School with such a Faculty.
Only just before the meeting of the Law Society in July was the establishment of such a Faculty made possible. At that meeting a Committee of the Law Society was appointed to act with a Committee of the University of British Columbia in the matter. The joint committee met on several occasions in July and August. The Governors and the Senate of the University of British Columbia approved of their recommendations in late August, and on September 8th the Benchers did the same in general terms, directing that the Rules of the Society . . . be amended as required. These necessary amendments, after consideration, were laid over until the meeting of October 8 for further study. They were then adopted.
The new system requires a student to obtain a degree of Bachelor of Laws from a recognized University, or to complete the course at an approved Law School, and to serve one year under Articles in his principals office. This last year need not be continuous. If the student wishes, he may, after one academic year, serve during the time the University is closed in his principals office, and again after the second year.
The degree of Bachelor of Laws is conferred by the University of British Columbia after three years in Arts and three in Law. . . .
(1945) 3 Advocate 154
Curtis believed that "[t]he academic side of the preparation of men for the practice of law should be within the university atmosphere. The approach to law shouldnt be black letter, positivist exclusively, by any matter of means but the approach should be creative, imaginative and so forth". An early decision about the colour of the law hood worn with an academic gown on academic occasions was intended to reinforce this belief. By convention, each faculty at the university has its own hood colour. In 1945 blue, red, and gold were already spoken for by the faculties of arts, science, and agriculture. The colour chosen for law, the universitys fourth faculty was amethyst. It was meant to merge in harmony "the blue, the high mindness of Arts" and "the red, the practicability of Applied Science" to symbolize that the new faculty united traditions of law society legal education (practical training) with those of the university (scholarship and open enquiry).
The new law faculty also took a quantum leap forward in training students to "think like lawyers". The much-vaunted Socratic or case method made its debut in British Columbia with the opening of the law faculty. As caricatured on prime-time television or in films like The Paper Chase, the approach requires students to engage in a careful reading of assigned court decisions in advance of each class. They are expected to grapple with conceptual difficulties on their own, to learn the fact-patterns that gave rise to litigation, and to assess the legal and logical merits of the "case-law" before coming to class. In its ideal form, the Socratic method is played out in the classroom through a sustained dialogue between teacher and studentthe teacher never lectures. Instead, he or she simply puts a series of questions to students, calling upon them to develop answers of their own. Each answer produces another question as an unpredictable, unscripted, and un-ending drama is played out. Audience and teacher together search actively for law. A Socratic teacher leads students toward their own conclusions but never declares "truth" from the podium. The object is not the accumulation of information, rote-learning, or memorization, but the development of critical thinkinglearning to "think like a lawyer". With extraordinary teachers and dedicated students, the Socratic method can be electrifying. In the hands of lesser beings, however, it lapses into either undirected discussion (Madam Justice Mary Southin characterized this as " the blind leading the blind . . . a lot of ignoramuses . . . continuing to spout your ignorance") or a ritual of "sarcastic-method" bullying, intimidation, put-downs, professorial power-tripping, and ostentation.
The Socratic method presupposes the displacement of a passive body of student scribes. It offers instead an instructorinterogator whose careful questioning is intended to lead students to discover the fundamental principles of law for themselves. Students are taught to teach themselves, to engage with the internal logic of law. "The law teachers task," according to Kyer and Bickenbach, "was changed from that of setting out the principles and practices of the law to the considerably more challenging one of selecting and presenting cases that embodied or exemplified legal principles and, through a process of careful questioning, drawing out these principles from the responses of his students." In his book Law School: Legal Education in America from the 1850s to the 1980s Robert Stevens said that the role of law teacher was transformed "from treatise-reading clerk to flamboyant actor in a drama".
|At Osgoode Hall when I went down there I had in my third year dear old Dr. MacRae who told us where to get a copy of his lectures; we were expected to buy them and then he would read them to us and correct the punctuation. And it was awful going, . . . He . . . didnt have his own thoughts . . . he was just following the Privy Council down the line verbatim. No questioning of anything, right or wrong . . . .
Gilbert Kennedy, 1983
Harvard Law Dean Christopher Columbus Langdell is generally credited with originating the case method of legal instruction. He described his vision in the introduction to his ground-breaking 1891 book Cases on Contracts. Laws principles were to be found, he said, in the cases decided by the courts:
To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every student of law. . . . the shortest and best, if not the only way of mastering the doctrine effectively is by studying the cases in which it is embodied. . . . It seems to me, therefore, to be possible to take such a branch of the law as Contracts, for example, and without exceeding comparatively moderate limits, to select, classify, and arrange all the cases which had contributed in any important degree to the growth, development, or establishment of any of its essential doctrines; and that such a work could not fail to be of material service to all who desire to study that branch of law systematically and in its original sources.
Law was a science, the library its laboratory, and the case approach its method.
In practice, Robert Stevens said that the study of appellate decisions "became entangled with the question-and-answer technique, similar in purpose and form to the traditional law school quiz, a merger that rather pretentiously came to be known as the Socratic method". Thaddeaus Hebert, who taught at the University of Saskatchewan College of Law during the 1920s, was an early Canadian master of the method. His classes were vividly described in the memoirs of one of his students, Dean J. A. Corry. Hebert assigned:
specific cases from the law reports for students to read and study with care. They had to be prepared to state in class the essential facts of a case, the precise decision made by the judges on the facts, and the legal reasoning given for the decision. The student (or perhaps I should say the victim) who reported on a particular case was then questioned by the instructor and by such of his fellow students as found some defect in his report. Did he think the decision right or wrong by law? Why? What facts had been decisive in the opinion of the judges? How did he distinguish this decision from that in other cases on similar facts where the decision had been different?
Then, if the distinction could not be made clearly other, often suppositious, cases would be put to the studentor to the class as a whole. What was the right answer in these cases? Could he reconcile his views on these hypothetical cases with the judgment in the principle case as he had reported it? If there were strong differences of view within the class as a whole, there might be a torrent of suppositious cases to be analysed.
The immediate purpose was to shake the student in the view he had adopted, entice him into adopting indefensible positions, and trap him into contradicting himself. Any other student who had expressed firm views would be given the same treatment. It was a great victory to get most of the class confused. The longer-run purpose, of course, was to rouse the students critical faculties, sharpen his mind, compel him to think clearly and consistently, and make him wary of pitfalls. In short, the objective was to make him think, as a lawyer must, about all sides of the facts and to anticipate opposing legal arguments which would almost certainly be raised in a courtroom.
The Socratic method is best understood by comparison with what it displaced. The formal lecture "inherited from English universities" might offer the advantage of clarity of exposition but, C. R. Smith noted in 1935, it tends "to degenerate into dictation of notes by the lecturer, written down a breakneck speed by the students". In all events, "the formal lecture . . . does very little to develop the power of analysis and gives little practice in expression and argument". Cecil Wright described the method of instruction prevailing at Osgoode Hall in his student days as consisting only of entirely uninspired lectures that combined dogmatic presentation, furious note-taking, and assignment of a solitary textbook slavishly followed by students and lecturer alike.
At the other end of the spectrum, the Socratic method is quite different too from more informal, relaxed approaches in which a teacher attempts to engage students in "discussion": there is a world of difference between the sort of educational experience to which Thaddeus Hebert subjected his students and looser classroom discussion. Few students exposed to "discussional" teaching would think of themselves as "victims". Non-Socratic discussional teaching does not revel in leaving a class confused, nor does it generate the "perplexity, frustration, and anger" that John Willis described in his History of Dalhousie Law School. For Willis, the case method was "something more" than discussional teaching and something "more rigorous and more demanding both of teacher and of student".
Although now commonly used, the introduction of Socratic teaching marked a significant transformation in 1945. A senior British Columbia lawyer who visited the law faculty during its first year was much impressed. E. A. Lucas reported in the Advocate that the students "have been . . . cluttering up the Library, reading Law Reports of all things, at their age". This experience, he remarked, was quite different from his education for he recalled having been told to "get Indermaur on Common Law and read it", committing "whole passages" to memory "practically letter-perfect" for regurgitation in response to "hardy perennial questions" on law society examinations. If Lucass report is accurate, in his reporting the new method was introduced to British Columbia without the common side-effect of turning students into "victims". No sense of student "perplexity, frustration, and anger" was reported in the enthusiastic description he provided. Like an anthropologist in a strange and foreign land, he reported his observations of a class on the requirements of a memorandum under the Statute of Frauds:
Days before, the class had been given a list of half a dozen border-line cases; they had read summaries of the facts and the judgments in a big case book they have out there, and the Reports themselves at the Court House Library. They brought to the lecture their own head notes of the six cases. The Dean started off with a short rescript of the requirements of a memorandum, and asked Mr. Blue to read his notes on the first case.
"Have you any further observations to make?" And there was an impromptu reply. "You disagree with the judgment; any one supporting it?" Hands went up, and their comments were listened to. The subject matter, the bargain, the price, the signature, were taken apart and put together. They came to the Auctioneers case, where the auctioneers clerk (the Dean called him "the little man in the bowler hat" so they would remember him) said to the successful bidder, "Name, please?" and wrote it down in his book. Was this the signature of the party to be charged therewith? "The Court says, Yes. What do you say?" "I say the memorandum was not signed by the purchaser, but was a record made by the vendor." "Did you see who the judge was?" "Mr. Justice Denman may have been wrong." The debates were punctuated by half a dozen laughs like that. The Dean commented on the generous principle of importing a legal fiction into a case. There was a brisk hour of this and by the time those young protagonists had put forward their opinions, backed or attacked by others, and questioned, corrected and commented on by the Dean, they must have gone away, as I did, with a vivid picture of the angles of judicial interpretation of the Statute of Frauds.
The students, Lucas observed, still looked at textbooks but now only as "commentaries on the decided cases". The rigour of examination and the quality of student answers also impressed this experienced practitioner:
The Christmas examination paper on Contracts consisted of a series of moot cases upon which the students wrote their opinions, giving their reasons and their authorities. An example:On the centrefield fence of a ball park there was a large target painted, with these words under it: "Players hitting Bulls Eye Get $1,000. Target Cigarette Company." The Plaintiff, without having seen the sign, stepped up to the plate with the bases loaded and whango, hit the bulls eye. Should he succeed in recovering the $1,000? The Dean read me one answer. Precise, concise, well-reasoned, and inclusive of all the pro and con factors. Written by a freshman.
Lucas clearly thought the students of 1945 were being far better prepared for the practice of law than had his own generation. He felt that the new generation was benefiting both from a systematic and orderly exposure to legal knowledge and from a method of education that, in combining extensive reading of important court decisions with probing, daily cross-examination in the classroom was superior to anything that had preceded it.
It proved more difficult to import the full-blown Socratic method, however, than either full-time instruction or a case-based legal education. Although Dean Curtis ("a question-and-answer, true-case-method man" according to his Dalhousie colleague John Willis) and some other early full-time teachers had thoroughly mastered the method, the new faculty relied heavily upon part-timers who themselves had never benefited from any such classroom experience. Effective use of the Socratic method requires extensive preparation by the teacher and an intellectual ease and agility that is hard to attain without considerable experience. Moreover, the small full-time teaching staff was soon stretched to its limits. Class sizes grew from seventy-six in 1945 to approximately 150 in 1946 to 250 in 1947. The tiny new faculty was swamped! Intensive Socratic dialogue requires classes of modest (not necessarily very small) size and this prerequisite soon gave way to massive enrolments. The stress must have been great on teachers whose pedagogic conviction ran in a direction entirely incompatible with their conditions of work.
As a result, the overall student experience during the early years was not one of consistent or uniform exposure to Socratic teaching. Mr. Justice Lloyd McKenzies small first class (LL.B. 1948) was exposed to a strong, active Socratic method that involved "a great deal of vigour in the interchange between the teacher and the students". Circumstances soon overtook pedagogy, however. Professor Diana Priestly recalled only that her large class (LL.B. 1950) encountered "the method where the lecturer would ask the different people in the class to comment on the cases youve read overnight, so there was some class discussion".
Other students of the day have similarly recalled a teaching method that combined modest amounts of class discussion with a predominance of lecturing. Professor Robert Franson asked Chief Justice Allan McEachern (LL.B. 1948) how classes were conducted in the early days of the faculty and whether they were "mostly lectures?" McEachern responded:
Oh yes! Straight lectures! We were given casebooks and mimeographs and some just case lists. We were just expected to read and brief these cases . . . and then the lecturer would lecture to us but ask the various members of the class to state a case, to describe it and extract the principle from it . . . and this was done with varied degrees of success.
B.C. Lawyers Urged to Wear Wigs, Robes
VANCOUVER Lawyers had some advice for their profession todaya call to "glamorize".
Dean Cecil Swanson, rector of Christ Church Anglican Cathedral here, told the Vancouver Bar Association Thursday night lawyers should resume their wigs and "glamorize" the profession.
"A generation has grown up that has no respect for law," he said. "By glamorizing, the law can reach a height just below the level of the divinesomething that must be obeyed."
He said all Canada was in need of a glamour treatment, adding that wigs and robes in British courts contributed to the "deification of the law".
Victoria Times, May 30, 1947
Madam Justice Southin (LL.B. 1952) pointed to the limitations imposed by class size when asked by Dean Lynn Smith to recall the teaching methods of the early faculty: "with big classes like that there wasnt much time for anything else other than lecturing". Despite the constraints flowing from a poor studentteacher ratio, some heroic efforts were made to preserve traces of Socratic dialogue. These efforts were not always appreciated by the young Mary Southin:
Well, if you mean asking questions of the class, wed be asked occasionally about what the proposition in some case was, but most of it was just straight lectures and paying attention. . . . You know lecturers were very good. Now I dont mean that sometimes they werent dull, but I didnt care about that and I didnt want anybody asking me any questions. I wanted to sit at the back of that lecture hall and listen. I thought that was what my father and mother were paying for, for me to listen, not gab but listen . . . and I didnt care much . . . I mean there was always a handful of students in our year who wanted to ask a lot of questions and what not. It used to irritate me . . . because theyd interrupt the flow of the class.
Despite the concessions necessary in the face of enormous post-war enrolments, professors were not prepared to compromise on the fundamental principle upon which the Socratic method rested: students were responsible for preparing themselves thoroughly in advance of each class. Southin recalled Professor George McAllister reinforcing this point with dramatic flair:
Ill never forget this little incident, we must have only been there a week, we were supposed to have briefed these cases, so . . . he could ask somebody to say what the case was . . . well he asked about three people, nobody had done any work . . . and nobody he had asked had done any work. I had done it, but I was sitting way at the back of the class, skulking, I didnt want anybody asking me anything. Well, I was shy, . . . I didnt want anybody asking me. He was so angry, he put his books together and he said "Im not going to lecture a class that wont do any work, Ill come back . . . next time and see whether any of you have done the work then . . . and then well see." Of course everybody had done their work next time.
Chapter 7 continued
Copyright © 1995 The University of British Columbia Faculty of Law. All rights reserved.
Please address questions or comments to Professor W. Wesley Pue, email@example.com