A friend (and fellow law graduate, non-practising) recently related an exchange she had with a prominent Canadian justice in the course of the friend's work with a federal government department. (You may notice I am trying very hard to keep details vague, so as not to cause any embarrassment, although the friend did give me permission to relate this story in this column.) My friend had the pleasure of accompanying the judge during a trip, and they got to chatting about Canadian law and the Charter in particular. The friend mentioned the concept of the "living tree" in the context of concepts originating in Charter law. The judge gently chided her, noting that the phrase far predated the Charter, appearing in the Person's Case, and reportedly expressed a mild lament for the state of legal history education in law schools today. That my friend graduated over 15 years ago didn't help.
The story got me wondering about what exactly is taught in law schools specifically in the way of legal history, and whether this can or should be improved. As I recall, historical case law or concepts were taught course by course as foundations or background for the material in the course – which seems a logical way of presenting material and the concept of precedent in the common law courses. It makes sense to me that legal history be taught contextually; to understand where the law comes from should help the student understand what it is now and where it is going. However, it seems to me that, for the most part, what students retain for the purposes of exams is current statutory or case law or very recent precedent. This may differ for courses in which a student must or chooses to research and write a paper. Perhaps legal history is somehow incorporated in legal research and writing courses today, but I don't recall this being the case when I was in law school. And unless the real emphasis (by schools, students, and potential employers) on legal research has also changed, the influence of mandatory legal research courses is minimal, despite the real importance of the practical skills they offer. I seriously doubt that most students believe that an A in legal research land them their coveted jobs. If I'm wrong, that would be a good thing.
The difficulties carry forth into practice. In my experience, researchers place heavy reliance on recent case law. As well, many researchers understandably prefer to use CanLII as a starting point because it is free but, as we know, the starting point of most of its collections is fairly recent. For example, I've seen several instances in which lawyers base legal arguments primarily on recent case law located from electronic databases or from judicial consideration of current statute only, without reference to earlier versions of the same provisions. Of course, apart from the "living tree" example, this approach may offer the most recent law, but the precedential basis of those cases might not be understood or might, indeed, be altogether misplaced. Without an appreciation of the historical development of the law in the particular area, the lawyer can be without an appropriate depth of understanding of the legal position and risks missing arguments by distinction or analogy, as well as flaws in the parties' respective positions. Most recently I've seen legal reasoning blunders on limitations law issues, because of misconstruction of precedent, failure to look at the law of other jurisdictions, or lack of awareness of the basis for limitations principles or origins of statutory provisions.
What can law schools do differently to help students retain or at least better understand the importance of legal history? I'm not an expert on pedagogical matters, so I don't expect I can answer as well as many who might have read this far. Perhaps simple things such as incorporating some legal foundational elements into exams in various courses. Or perhaps a required course in legal history, or a capping exercise that addresses some aspect of legal history or foundations. How to address this problem in practice? This depends on whether employers or practitioners themselves recognize a problem and are willing to direct resources to train students in in-depth research, and to provide them with (or allow them to access) research tools beyond those of recent coverage. Some of the best research I conducted was at the courts, where I was able to refer to older editions of Halsbury's, to UK and US resources, and even to Blackstone's Commentaries. This is probably most challenging for lawyers in smaller communities, who don't have ready access to large courthouse or law school libraries. Do others see any other challenges for lawyers and students in larger firms or in larger centres? Or any other solutions? Or do you see a concern at all?