Column

The Law Review in the 21st Century (Or Legal Scholarship in the Twitter Age)

Let me share several observations about legal scholarship in general and law reviews in particular.

First, we cannot simply continue to do things the way we have always done them. That is a recipe for irrelevance at best and for obsolescence at worst. This statement applies equally to the practice of law, to the justice system and to legal education. It applies in equal if not stronger force to legal scholarship because unlike legal education in this country at least, the forces of globalization, technology and competition are exerting pressure on traditional legal scholarship in this country.

An aspiring law student in 2018 has only two more choices as to where to attend law school in Canada than they had 40 years ago (Lakehead and Thompson Rivers University). In contrast, a legal scholar now has significantly more outlets for publication than even two decades ago (more law journals in Canada, more journals outside of Canada, CanLII, the Social Science Research Network (SSRN), etc.). Legal publications have always needed contributors in this country, but now the dynamics of that relationship are shifting significantly in favour of the contributors.

Second, it is not worth being in the legal scholarship “business” unless you aspire to be a leader in it in some manner. There are so many outlets for publication these days, it is not sufficient to simply be, you must be something and that something must aspire to the best in its field. For example, the Ottawa Law Review has always stood to be the leading forum for publication of articles on the common law in both official languages. But that is not enough.

Several years ago, the leadership of the Ottawa Law Review engaged in a process of profound introspection about its role in the 21st century. The result was the report entitled “50 Years Later: Reimagining the Ottawa Law Review in the 21st Century”. The authors of that report identified a number of principles, including increased efficiency by moving more to real-time publication of scholarship and accessibility. The Ottawa Law Review, like others, has moved to an open-access model. As the authors of that report stated: “A person’s ability to pay, or proximity to an institution that subscribes to our publication, should not dictate who can read our material.”

As my uOttawa colleague Professor Kyle Kirkup said, a law review must reflect the values that it promotes. Access to justice does not exist behind a paywall.

Third, in an age of real-time and often superficial expressions of asserted expert analysis expressed in 160 (or 320) character tweets, there is most certainly a place for “deep scholarship”. Legal scholarship can take its cue from Nobel Prize-winning author Daniel Kahneman’s, Thinking, Fast and Slow (2011). Legal scholarship can be both “fast” and “slow”. Engaged scholars like many of my faculty members, engage in real-time analysis through social media, blogs, old media and quickly-written briefs and articles. The contributions of University of Ottawa Professor Craig Forcese and his colleague, University of Toronto Professor Kent Roach, to the debate surrounding Bill C-51, the Anti-Terrorism Act, demonstrate both the “fast” and the “slow” legal scholarship response.

Good fast thinking analysis like that of Forcese and Roach is timely, relevant and immediate. Slow legal scholarship provides opportunity for reflection, depth and breadth of analysis. Forcese and Roach did both, converting their real-time analysis into deeper analysis upon reflection with the benefit of time.

For a law review to be relevant today, it must address the pressing issues of the day. Let me suggest three, although there are certainly more.

First, the changing nature of the legal system and of the legal profession. I have previously suggested that access to justice is the dominant ethical issue of our time. It goes to the heart of the legitimacy of the legal system and of lawyers. The raison d’etre for an independent, publicly-funded legal system is to provide impartial adjudication of disputes. The justification for self-regulation of the legal profession and the special privileges that lawyers enjoy is the public interest. Providing a forum for the critical evaluation of these claims, both qualitatively and quantitatively, is essential for a 21st century law review.

Second, the role of law in an age of STEM. We live in a period of rapid technological change. There are two aspects to such changes, in terms of the interaction with law. The first is the impact of technological changes on the law and the legal system. This is an aspect of my point above about the changing nature of the legal system and the legal profession. The second point is more fundamental; it is about the impact of law on technological changes. I will develop this further another time, but my key point is that law – in the fullest sense as including notions of legality, ethics and justice – must be a central part of discussions and developments regarding technological advancements. History shows that where technology is invoked where there is an absence of (the rule of) law, danger or even catastrophe can follow.

Finally, reconciliation. I believe that reconciliation with Indigenous peoples is the defining public policy issue of our time; equivalent in Canada to the civil rights era of the 1960s in the United States. The colonialization of Indigenous peoples, attempts at assimilation and exclusion were all built on law. There is a special responsibility on all actors in the legal system to play an active role in the process of reconciliation. Legal scholarship is an important part of this process of reconciliation.

Based on Remarks at the Annual Ottawa Law Review Dinner

Ottawa, ON September 22, 2018.

Comments

  1. Yes, access to justice (A2J) is the most important of problems for law journals to write about and to solve. There is a mountain of literature in legal publications on how to live with it, but none in such journals on how to solve it. That is because it is not a legal problem. It’s an economics problem concerning production methods for services. In particular, it requires knowledge of their individual abilities to produce the sufficiently large economies-of-scale that the affordability of services for middle and lower income people requires. But that type of analysis is not part of lawyers’ legal education or experience. So, they don’t write about it. And so the problem stands not only unsolved, but also without an attempt to solve it. But its victims continue to grow—the population; the courts system; and, the legal profession itself.
    So, how to justify the continuation of the self-regulation of the legal profession and of its law societies, given such a breach of trust? It is also a breach of the laws that set out the duties that law societies are entrusted to perform, such as section 4.2 of Ontario’s Law Society Act. Is it also a “breach of trust by a public officer,” which is the offence in s. 122 of the Criminal Code? See, R. v. Boulanger 2006 SCC 32, for the definition of “public officer” for purposes of that offence.
    Note that writings on the A2J problem do not ask, what do other professions and all of the manufacturing of goods and services do? They must have their own version of the same problem? Yes, and they’ve solved it by moving away from the cottage industry method that lawyers use to produce legal services, to “support services” methods, because support services provide the necessary large economies-of-scale and high degree of specialization required for affordability. That’s why the “parts industry” exists to provide the economies-of-scale necessary to enable automobiles to be made affordably for middle and lower income people, and why the medical services infrastructure is made up entirely of specialists working in mutually-interdependent, highly specialized, high volume support services. There are no “generalists” in the production of medical services. Even the family doctor is a kind of specialist–specialized in the knowledge of that whole infrastructure of medical services, treatments, and drugs.
    The legal profession needs a similar infrastructure for producing legal services. Now, the legal profession has no support services. As a result, its “factories,” being its law firms, do not have the sufficiently large volumes of production, and high degree of specialization of all factors of production, that are necessary to create the economies-of-scale that the affordability of legal services for middle and lower income people requires. LAO LAW at Legal Aid Ontario is the only true support service in the production of legal services in the legal profession in Canada. It provides centralized legal research services for the thousands of Ontario lawyers in private practice who are willing to service Legal Aid cases.
    But that kind of knowledge law society bencher-managers do not have, and law societies don’t go out and retain it. Benchers are part-time amateurs, and so Canada’s law societies are like an elected government without a civil service. Such a government cannot govern, and neither can our law societies as is proved by the existence and persistence of the A2J problem.
    So elect a different kind of bencher. Not the traditional 19th century bencher based upon the concept of providing a free helping hand for law society management work, in exchange for using the position of bencher to embellish one’s career. A fair exchange in the 19th century because the problems of law societies were all within the expertise of lawyers. But an unconscionable exchange in the 21st century because the major problems of law societies are not within the expertise of lawyers. Therefore, create a single civil service for all of Canada’s law societies, and enable CanLII to finance it. That will provide the necessary permanently-developing expertise for competent law society management. And that is the least disruptive solution for the A2J problem. See: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions (SSRN, June 7, 2018); at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627.

Leave a Reply

(Your email address will not be published or distributed)