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.