The Canadian International Law Students’ Conference

Keynote speaker, Alan Kessel.

The student-organized conference–a joint initiative between the Osgoode International Law Society of Osgoode Hall Law School and the International Law Society at the University of Toronto, Faculty of Law–presented a range of sessions on different aspects of and issues in International Law.

The career opportunities panel presented a wide array of paths that could be taken and which might lead to practice in International or Transnational law, from practice within private law contexts and via firms, to making use of legal training via various government-based and international bodies, as well as via NGOs. A second panel featured talk about international justice, with regard to the International Criminal Tribunal for the former Yugoslavia and other contexts of transitional justice. Keynote speaker Alan Kessel, who is the Canadian Legal Advisor in the Department of Foreign Affairs and International Trade, discussed some of the challenges faced by the DFAIT on a daily basis. The afternoon sessions featured talks on maritime piracy, international banking and constitutional design.

The organizers did a fabulous job, though some of the sessions felt a little long. While some of the sentiments expressed were not without controversy, it was an interesting, engaging and thought-provoking way to spend a Saturday, and I was glad to have made it out for the event.

Susan

Sent from my mobile, so please pardon any typos!

Speaking of law…

First year law school, also known as 1L, can be a trial by fire. It can be stressful, intense and even overwhelming at times. But one of the joys that I discovered, even during the frantic weeks and months leading up to exams, was that of the law itself, in all its endlessly fascinating and often bewildering complexity.

I had the opportunity to recap my impressions and revisit those thoughts and reflections today, when I delivered a talk on my experiences in first year. Notwithstanding the facetious title, it was truly a shaping and engaging experience.

Postcards from 1[hel]L: my first year at law school

I am sitting in a room of dilapidated elegance. Morning sunlight slants through the bay windows along one wall, illuminating the faded frescoes and elaborate crown moldings around the ceiling. I am seated, along with sixteen other students, around a heavy wooden banquet table. It is an exquisitely evocative setting—the kind of moment that is steeped with a golden nostalgia even as I am living it.

It is my second week of law school, and after a week of frantic socializing during orientation, we have finally settled into our regular class schedule. Readings have been assigned and we have begun to puzzle our way through the peculiar, often arcane and labyrinthine phenomenon that is case law.

A bespectacled professor with a kindly, vague expression and curly grey hair beams at me from the front of the room. I had met him during orientation week, and he had seemed sweet, but a little absent-minded.

I now know otherwise. He has just finished dissecting my argument with a surgeon’s precision, extracting each of its internal organs in turn, casually remarking on the fatal flaws that make it untenable, and then discarding it.

Don’t get me wrong–this isn’t like the Paper Chase, where the daunting Kingsfield uses his acidic wit to humiliate a student in front of all of her peers. No—this is a kinder, gentler law school. This particular professor–who is one of the top scholars in the world in his specialization, a man whose theories are as elegant as they are controversial–is unfailingly kind to his students, but simultaneously ruthless in his attack on their arguments.

During those moments, even as my fellow students eye me with sympathy—knowing full well that their turns will come—I feel strangely exhilarated. It takes me a moment to realize that this is a distinctive combination of awe and excitement. I’ve never seen anyone reason like this—anyone able to separate the tangled threads of different thoughts and arguments that I have put out there in a messy jumble, incisively extracting each of them before undermining them one after another.

The law teaches a way of thinking—so-called legal reasoning is actually many things at once, but perhaps the most important element consists of this ability to look at complex issues, take them apart and then frame arguments around each of them in a methodical way, complete with contingencies and rebuttals.

As the weeks go by, I begin to wade into the painstaking and often frustrating process of acquiring this skill for myself, even as I revel in the ways that studying law helps open up my understanding of the world and how it fits together.

But, it is not till a few months later, during the first lecture of my Administrative Law class, that I have my epiphany. I suddenly feel like Neo, in the first Matrix movie. If you haven’t seen it, it is about a man who finds that he is living in a complex, but seamless social construct. There is a moment of clarity and insight towards the end of the film, when the underlying construct, consisting of lines of code, suddenly becomes visible to him, and he begins to see how this world he’d been inhabiting has been put together. He begins to understand how he can navigate that world in new ways—and even begin to change it.

That’s how I feel in this particular lecture, as I suddenly begin to understand the true reach of the law.  It is everywhere. It is in the thickness of our walls, and the telephone and electricity lines that are hidden inside those walls. It is in the width of our roads and what we can and cannot do on those roads. It keeps our food safe and our water flowing through the pipes of our buildings. These are the regulatory standards. It also governs our behaviour, outlining ways in which we ought to conduct ourselves—in a car, on the streets, with regard to our families and loved ones as well as towards the world at large.

And yet—you cannot touch the law—the words on the page reveal how a statute is formulated, how a regulation is phrased, but the words on the page just represent the law. They aren’t the law itself. The law is lived and living. It is intangible, but ubiquitous. This is what I see, during those moments in class, and it takes my breath away, with its scope and its marvelous complexity.

References to the Matrix aside, in the course of my day-to-day routine, the University of Toronto Law School actually reminds me a little of a combination of Gormenghast and Hogwarts—dusty motes of sunlight; genteel, slightly threadbare, elegance; a library filled with arcane tomes; and an emphasis on old rituals that go hand in hand with the practice of courtly etiquette.

The law itself sometimes feels a little like magic, though again, a more complex, difficult, subtle magic than what you’d find in the Fantasy classics. The study of law is a matter of acquiring a language that looks oddly familiar and very much like English, but is actually subtly yet profoundly different, and has the potential to change how we, as individuals in a social construct, interact with each other and with the world.

Change the law, and you legitimize certain activities while disallowing others—suddenly something is permitted and another thing, that was allowed moments before, is a crime.

Laws can even change the very nature of who a person is, in the sense of how their rights are defined, in society. I had touched the edge of this as a Lay Chaplain. Before law school, when I had performed weddings, I had some inkling of this mysterious process by which two individuals became linked, through the ritual of marriage. But here it was—part of what I had sensed in those moments when I’d pronounce two people legally united. Suddenly, through a simple, mutual act, your rights and obligations change, both with regard to the person to whom you are married, and with regard to the world at large. You are suddenly a different legal entity, at a fundamental level.

This is the law.

There are other peculiar, Hogwarts-like rituals. The Grand Moot—a name worthy of J.K. Rowling or Lewis Carroll—is held in early October each year, and in the days leading up to this event, there is a sense of rising excitement among the upper year students and profs. A quidditch match for the brain, the Grand Moot is a mock trial in which the top mooters in the school are grilled by justices from the Supreme Court of Canada, the Ontario Court of Appeals and the Ontario Superior Court. It requires meticulous preparation, but is also a battle of wits, a display of quick thinking and adroit rhetoric, as each mooter’s arguments are rigorously tested in front of their profs and peers.

Much of the school turns up amid an atmosphere of festive anticipation. As a first year student, uninitiated into the complexities and nuances of appeals-level argument, I am sometimes lost, but among the profs and upper years, every thrust and parry of the argument is greeted with loud, collective gasps or groans—or the occasional, spontaneous burst of applause.

After the elegant reception that follows, life falls back into the routine of courses, smattered with fascinating talks and visits from special guests and distinguished speakers from around the world. A woman lawyer comes to speak. She has spent the last six years in the Hague, preparing the case for the prosecution for war criminals, and she speaks with passion about the suffering and heartbreak that the victims and families have experienced, the horror of the mass graves and the testimonies of those who come forward. Bill Graham, former minister of defense, gives a fireside chat and q&a, discussing the difficult choices he had to make around Canada’s original deployment in Afghanistan. Other key shapers, of NGOs and Environmental summits, all pass through, give talks and answer questions, in the intimate, sunlit rooms of the two ivy-covered buildings on University Avenue.

As we move towards the end of the year, the pressure rises. Final exams loom, and my brainy classmates—all of whom I am by now convinced are far brighter than I am—all tense up like high-spirited thoroughbreds. The anxiety in the air grows palpable—we are all in the same classes, doing the same readings, and able to watch each other’s progress while wondering how we will fare. The anxiety runs high among my classmates—when grading is relative rather than absolute, it matters how everyone else does in relation to you.

I escape the law school whenever possible, stealing away to the meditation room in Victoria College or to one of the cafeterias or libraries elsewhere on the campus. I try to stay grounded amid the madness, even as my body breaks out in rashes from the sustained stress.

And yet, through it all, I find myself continually engaged, fascinated and drawn in by my study of the law.

Why? Because underneath the complexity, the arcane language, the labyrinthine reasoning, the law is an intensely human story. It is narrative, at multiple levels. Every court case is a story of conflict—often tragic, occasionally bizarre, and, very rarely, funny. The facts in each and every one of the court cases we looked at could form the basis of a novel. How could I not be hooked?

But those aren’t the only stories, riveting though they are. At another level, the struggles of the judges, trying to work their way through the complex turns of the common law, in search of justice—which itself is far from black and white—forms another layer of this story of adversity and aspiration. There is no doubt, whether or not you agree with the outcome, that each set of written reasons is hard come by and painstakingly wrought, in the attempt to make the law fairer and more just—despite the flaws in many of the judges’ conclusions, in an imperfect world.

This quest for justice is another of the ongoing narratives of the law.

And, at the highest level of all, the law is the story of a society’s aspirations and the ways in which it falls short.

We have a Charter because we believe in a society in which we have certain rights that respect our humanity, our dignity, our freedom of thought and belief.

But if we always met our aspirations, of honouring rights and respecting each other, then we wouldn’t need to write them down and give them the power that we do—they’d simply be givens.

Documents like the Charter of Rights and Freedoms, and even the Criminal Code, tell us how we should treat each other—but also, by the implication of their very existence, they tell the story of how we have wronged each other again and again, often in tragic or horrifying ways.

This is what keeps me engaged by the law—it’s not just about dusty tomes and dry cases. It’s living, breathing, ever-changing. It’s the story of our aspirations and of our imperfections. It is vibrant, tragic and also beautiful. To see a judge struggle for justice and somehow, get things just right, so that his judgment comes to represent a foundational principle of law—it’s extraordinary. And the fact that we keep trying—that no matter how many times we fall short, and how imperfect we may be, we keep reaching for justice, and for ways to do what is right, and to help each other. This is what makes the law so profound, so moving—and so endlessly fascinating.

An Elizabethan Courtyard

A favourite on-campus spot to hang out and read. This cloister-like passage between one part of Knox College and another is a delicious retreat, particularly now, with the last summer roses growing overblown, the bright red rose hips making an appearence and the vines gloriously blazing, before they subside into their hibernal quietus for the duration. There’s such a wistful, past-its-prime beauty to the gardens here, as the golden days of autumn shorten and the wind begins to grow teeth that lightly nip at any skin left exposed.

Instead of lining interior square of the courtyard, this passage cuts across it, so that there are gardens to either side. Though the vaulted arches are probably a little post-Elizabethan, there’s a Tudor feel to this place. I availed myself of this peaceful retreat a few days ago. It’s such a sanctuary, particularly from the frenetic excitement and anxiety that permeates the atmosphere at the law school, often as not.

The Grand Moot

The Grand Moot was a few days ago–and the scenario was particularly topical, concerning a “C20” summit, riots in the streets, and the alleged violation of Charter rights re detainment. Was it justified under s. 1?

Tune in to find out…

Sadly, I couldn’t stay for the whole thing, as I had a class. Fortunately, this year, they had an overflow room where it was broadcast on closed circuit tv, so I was able to watch from there and dart out when needed. And after class, I partook of some yummy treats at the reception and got the lowdown on the rest of the arguments.

And for those who are wondering: “just what is a moot”? Look no further. A moot is generally a mock trial at the appellate level (court of appeals), where the focus is on arguments and points of law. At U of T, we either have to do a compulsory or a competitive moot to graduate. The Grand Moot takes that up a notch: there is usually a Supreme Court Justice, one from the Court of Appeals and one from the Superior Court, present and grilling the mooters. And did they ever grill them! Hot seat indeed. But, at least from what I saw, the mooters showed grace under pressure and answered the questions put to them with impressive aplomb.

To add even further to the pressure, this particular contest takes place in front of a goodly number of classmates and profs, who turn up to watch. It reminds me a little of a jousting or quidditch match–there’s a similar air of festive competition among the spectators–but the contest is one of words, wits and arguments, rather than of physical prowess.

All in all, a grand spectacle indeed!

Susan

Sent from my mobile, so please pardon any typos!

Check out the Grand Moot for yourself.

Tort Law Part III: The Fundamental Question

This is part III of the series on tort law. For parts I (context and background) and II (basic ideas of Tort law, the Weinrib edition), please scroll down to read the earlier posts in order.

As an undercurrent to the specific questions relating to the mechanics of working out the nature of the wrong and the wrongdoer, there has been another consideration that has provided an ongoing subtext of continuity through this past year of classes. This is the issue of the purpose behind torts itself. Why do we allow for the victim to be compensated in this way at all?

Weinrib says, we allow for recovery because a right has been breached by someone else, who had a duty, as part of society, to avoid breaching the rights of others. In other words, with a tort, someone has been wronged in a way that speaks to their fundamental rights, and therefore should be compensated by the person who committed the wrong. It is about the relationship between te parties and trying to restore the wronged plaintiff to the position he or she would have been in had the tort never occurred.

But others do not agree. Others see torts (and other areas of law) as an extension of the regulatory state. They see it as another way of promoting deterrence for certain behaviours, or of promoting other kinds of caution. Some see it as an extension of punitive sanctions, in the context of private law and compensation, rather than criminal law. Others still see it as presenting a series of puzzles about who is best situated to shoulder the burden of paying for a given act of negligence–such that it’s not just about guilt and compensation but also about who can afford to pay out, or who is better insured to do so.

These additional perspectives add further uncertainty and instability to the law itself. While the outcome of any case is never a sure thing, when you add in questions of deterrence, regulation of behaviour and other considerations to the process of decision-making that a judge undertakes, it becomes even more uncertain. Because if those are all factors that must be added to the decision, you have additional layers of variables that must be considered as influences on which way things will end.

For instance.

In the rights-based approach, tort law has a particular function and role. It is not about larger issues. It is about the relationship between the wrongdoer and the person who has been wronged, and it is about trying to provide recompense for that wrong. There is a certain analysis that needs to be undertaken. The outcome might not be assured–it will depend on a number of different facts that different decision-makers will interpret differently, and which will determine whether or not that relationship of wrongdoer and wronged can be established. In the careless driving case, what one judge might find to be careless driving–barely–another judge might find to be just barely within the scope of legitimate driving. But, once the careless driving is established, then it’s simply a matter of moving to the next step in the analysis. Ultimately, if a right is found to have been breached, then compensation is awarded. This can be a harsh standard, sometimes, and can feel wrong of unfair, because it feels like other factors should come into play.

With approaches that look to other factors, it’s not just about different interpretations of the facts and how a judge might read those facts and determine whether there was a wrong–though the reading of the facts will still be a factor. But it will be the first of several.

There will also be the question of what the judge considers to be the role of tort law–and indeed, of the common law and the courts in general. If he wants to deter careless driving, and feels that tort law is a good place to do it, then he might be more likely to have a strict standard for what comprises careless driving. If he feels that torts are about who is best positioned to compensate the wrongs, he might look to who has the better insurance policy–the victim or the driver (it may sound like a peculiar perspective, and yet there’s a case by the Supreme Court–not about driving, but rather on more complex issues that weren’t necessarily cut-and-dried–in which the outcome seemed to hinge in large part on who was best positioned to pay for the loss). Even if the driver was careless, perhaps a finding that will allow the victim to get a higher payout from his own insurance will be construed as the more just outcome, because the victim would be better compensated.

Of course, that would wreak hell with the precedent, but might allow for what is ultimately an outcome that is kinder to the plaintiff. In other cases, policy issues and considerations allow for an outcome that “feels” fairer. So, how does this work?

An example (from Miller v. Jackson, an English case):

A woman moves in beside a cricket field so that she has a lovely green space to look out over from her back yard. The problem (not unforseeable): cricket balls sometimes fall onto her property. The cricket club always repairs any damage, but she feels she can no longer enjoy her garden. So, she files suit and asks for an injunction to stop them from playing cricket there–even though she chose to move there because it was beside the cricket field, and even though they have been playing cricket there for 150 years. What would be a just result?

A policy-based approach might bring into play factors like what might happen to the sense of community, if the cricket club were shut down. What would the young men do, without this harmless way to blow off steam? Is it fair that this woman can move in, knowing and planning to benefit from a certain byproduct of the cricket club, while refusing to put up with another, less welcome byproduct? Should she, given that, be allowed to shut down the club?

The rights-based approach is rather different. It says, Mrs. Miller has the right to the use and enjoyment of her property. The cricket club has the same right. But they do not have the right to interfere with Mrs. Miller’s use and enjoyment of her property. So long as they can contrive to keep the cricket balls on their own property, they can play. But if this is impossible, then they are impinging Mrs. Miller’s right. The only way to prevent that is to stop playing there (shut down or move). Simple as that. Seems unfair in one way, and yet, is one property owner more important than another, such that he can take away the right of his neighbor?

If you answered “yes” then you’re probably in the purposive/policy-based camp. You may be thinking along the lines of larger benefits (if the many benefit, then maybe taking away Mrs. Miller’s right is justified in favour of the greater good). If you answered “no” then you’re a rights-based thinker.

Next up: a brief discussion of Canadian Constitutional law, and some of its core tensions and issues.

My likely-not-legally-binding-but-what-do-I-know? disclaimer.

Tort Law Part II: Some Basic Ideas

To get the background on this post, please scroll down to Part I.

Ernest Weinrib has a beautiful, elegant system to apply to tort law, which allows the analyst/lawyer to extract key elements and come to a finding. There are still ambiguities, of course, but these are often relating to the evidence–not to the question of what to do with that evidence, once it is available (other schools of thought would debate that question, as a separate issue). Before elaborating on the system, I should mention that this is, of course, my own imperfect understanding of his view–and may be filled with my own misconstructions of his theory. So if you’re really curious about Weinrib’s torts, be sure to go to the source: his book, The Idea of Private Law, which I haven’t actually read in its entirety (too busy with classes, school and assigned readings!).

The main idea that he advances is that we all have rights. The right to our own physical integrity. The right to the use and enjoyment of our property. And so on. A tort comes into existence when one of those rights is breached by someone else (Weinrib’s more technical way of putting it would be along the lines of “When the tortfeasor breaches the duty that is correlative to the right of the person who has been wronged.”). So, figuring out whether a wrong has happened–whether there was negligence, for instance, rather than just an unfortunate accident for which no-one is responsible–is a matter of working through the elements of the relationship between the potential tortfeasor (who may have been negligent, or who may have been helpless to prevent the wrong) and the injured person.

This process (in Weinrib’s system–not that of others!) basically involves looking to see if the potential wrongdoer creates an unreasonable risk (e.g. driving recklessly). It then involves an analysis of who would be put at risk as a result of the negligent act (others in the car, others on the road, potential pedestrians), and an analysis of what the likely harm or outcome would be if that risk were to manifest as a harm (the vehicle getting into an accident and causing injury to any of the people listed). The final step is to see whether the actual harm (and you have to have actual harm in tort–you can’t sue someone for just being careless, if you didn’t end up getting hurt by that carelessness) manifested within the scope of the risk that was created.

So, with the above scenario, if someone is driving carelessly and gets in an accident, injuring the occupants of another vehicle involved in the accident, that’s a tort. The injured occupants can sue–and will likely win compensation (though much of this is now regulated by insurance–but for the purposes of this example, let’s pretend we’re in a world where there isn’t insurance, heaven forbid).

BUT, if someone is driving carelessly, and as a result, something that he didn’t even know was in his back seat were dislodged and flew out of his window, hit another car and caused it to get into an accident, recovery might not be as likely–because you can argue that the kind of risk generated by careless driving isn’t that something will fly out of your window and hit someone else, causing an accident. So this second scenario would be open for debate.

The third scenario is at a further remove. What if that dislodged item–say, some kind of firecracker that the driver knew nothing about–were to somehow be ignited as a result of his careless driving, fly out of his open window, and hit a statue a block away, which then fell and injured someone (law students will recognise some elements of Palsgraf, a landmark tort law case, in this scenario)? It is even less likely that the injured person would be able to recover. Why? Not only is this something that is well beyond the normal scope of risk created through careless driving, but as well, the person put at risk is outside of the scope of those to whom the careless driver could ever imagine would be endangered by his acts. The people whom you can reasonably imagine would be endangered by reckless driving are those in the vicinity of the vehicle–and does not include someone a block away, and completely outside of the driver’s contemplation.

So this is the idea of torts. Of course, it’s often not as straightforward as any of that–for instance, there can be multiple careless drivers, all of whom are negligent to some degree, who cause an accident and injure someone. With many people contributing to the wrong, who can the injured person claim compensation from? These–among many–are the questions raised by torts.

To be continued in Part III, tomorrow, when I will turn to one of the fundamental questions raised by the concept of tort law itself–namely, what is its underlying purpose?

My likely-not-legally-binding-but-what-do-I-know? disclaimer.

Tort Law Part I: The Weinrib Edition

At University of Toronto, the first year program isn’t all dauntingly vast classes, with the instructor standing up at the front, frowning at seating charts, choosing random students to be called upon through the year and otherwise delivering pithy and acerbic insights from the podium, a la “Paperchase”. Indeed, it should be said that even in those classes, it’s not super daunting, and there’s a lot of openness to participation, questions and discussion during lectures.

At any rate, at the uni, one of the six core classes that the first years get is actually in a small group setting. Different people are in different small groups for different subjects. I was lucky enough to be in Ernest Weinrib’s torts for mine. It has been amazing, and I’m genuinely sad that this class has come to an end.

Twice a week, we have met in a room in the elegantly dilapidated old house that comprises one of the two buildings of the law school. We have sat around a heavy, carved table in dark wood, on heavy, dark wood chairs that are a mishmash of styles. High ceilings, accented by carved cornices, above, and an elaborate fireplace at one end of the room. From where I sat, I could see one of the trees just outside the house, in what would have been the side yard, years ago, when this was still a dwelling. In September, the morning sun slanted through the green, nodding leaves which mellowed into autumnal shades as the year advanced. For the last months, the sun has been largely unencumbered and bright, slanting through bare branches, which are just now starting to grow nubby with buds. The room itself has been retrofitted with heaters that can be absurdly warm, or shiveringly inadequate, because the settings can’t be adjusted per room, but must serve for the entire house. It’s an idyllic, old school setting, and a wonderful backdrop for learning the basic tenets of a legal system that has offered recourse to litigants for hundreds upon hundreds of years–an apparatus belonging to one of the foundational cornerstones of our civilization: justice.

Ernest Weinrib himself, is an amazing instructor, and extraordinarily kind to us students, who often come forward with flawed and flailing arguments. Make no mistake–he will dissect that argument with a surgeon’s precision, and leave its organs scattered across the table by the end of his analysis. He does not spare the arguments. But he does it in a way that doesn’t embarrass, demean or denigrate the student.

So that was the classroom experience for me and 15 or so other 1L students this year–as well as countless others no doubt, in previous years.

One of the best things about Weinrib’s torts is that he has a paradigm through which they make some kind of sense. It is a controversial one, and one that has not been adopted by many–including the Supreme Court of Canada. But it means that as a student, tackling a daunting subject, there’s something to help parse through the messiness of the topic.

So, what are torts? If you know French, the word itself gives you a hint: they’re wrongs, visited upon each other. Those who have been wronged sometimes choose to seek compensation for their injuries, through the justice system. The instrument for seeking that compensation is tort law.

When someone slips on a patch of ice in your driveway, which you hadn’t cleared away, that’s a tort. It’s a private lawsuit, between private parties–rather than something like a criminal trial, which doesn’t provide compensation for the victim, but instead just metes out punishment to the wrongdoer.

They can also be extraordinarily complicated and messy–because life is messy. There isn’t always one wrongdoer–sometimes there are several. So torts deals with how to approach and pick apart that complexity, in order to decide who committed the wrong–or at least, the wrong that is big enough to require compensation.

To be continued tomorrow, with an introduction to some of the basic ideas behind tort law: the Weinrib Edition.

My likely-not-legally-binding-but-what-do-I-know? disclaimer.