Wanted: A Law School Vade Mecum

One of the earliest nautical handbooks published in the English language and intended for a mass market was called The Seaman’s Vade Mecum. Published in 1744 by William Mountaine (who, despite publishing a series of books on seafaring, was not himself a sailor, but a mathematician), the book remained the go-to book for seafarers until the end of the age of sail. The name itself translates from the Latin as “go with me”, and it was used to denote a pocket handbook that a prudent sailor always kept close to hand. And that’s exactly what we in the Canadian legal academy need now. We need a Law School Vade Mecum. And to quote Mountaine himself, we need one posthaste!

A year ago, Canada’s law schools were faced with an unprecedented crisis: the need to turn on a dime, and – almost literally overnight – start delivering our programs online. This mode of course delivery was completely alien to most members of the Canadian legal academy – and indeed, was expressly forbidden in any significant measure by the Federation of Law Societies, our accrediting body. Yet we were able in short order to respond to the demands of the moment and, by mid-March, the vast majority of Canadian legal education was being carried out, competently and dutifully, online. Of course, there were bumps in the road, and mistakes were made. But to my mind, the pedagogical aspect of the legal academy’s response to the pandemic represents a shining success story of which deans, professors and staff alike – and students themselves, for most of them were embarking on the unknown, too – deserve to feel proud.

The year since has been a grind, and I know that I’m speaking for most in the legal academy when I say that it has been professionally exhausting. We’re all suffering from Zoom fatigue, which sometimes leads us to be shorter, and more curt, with each other than we ought to be. And the pandemic stress was only magnified by the imperative to respond to EDI concerns. That was entirely proper, and long overdue, but it didn’t make it any easier to have to do so in what I have described elsewhere as two dimensions.

But now, as Winter turns to Spring, and as Summer beckons with the promise of large-scale vaccinations, comes the task of planning – assuming that we’re not overtake by fourth or fifth waves – a return to campus. And what we’re going to find, I’m confident in predicting, is that it is much easier to turn off a law school than it is to turn one back on again.

Assuming that it’s not going to be possible, for a host of reasons including uneven vaccine supply and inefficient vaccine rollouts, to go from zero to sixty in one day, the first task will be to determine which parts of the program go back into the building first. Is the priority the new 1Ls, on the basis that the professional acculturation that stems from active socialization that begins in first year is as important as the substance that one learns in the classroom? Or is it the upper years – particularly the current 2Ls, who so far have done sixty percent of their legal education online? If they don’t get back in the building this September, they will look to have done at least two thirds of their programs without personal human engagement. That seems a poor bargain for a system which formally eschews online JD degree programs.

Partly, the choice between first years and upper years will turn on whether any form of social distancing continues to be required. If so, will it continue to be six feet? Three feet? Something else? That calculation has a dramatic impact on the capacity of every law school building in the country, which in turn will determine which classes it is physically possible to hold in-person.

Will masking be required? If so, the vast majority will comply. But what are we supposed to do when a recalcitrant student or professor – and it is inevitable that there will be one who thinks that he or she is making a point – refuses? Will we need to start having bouncers in the schools? Perish the thought! But what do we do?

And what of students and faculty who either cannot, or will not, be vaccinated? Obviously, we have a legal duty to accommodate. But how much, and for how long? Could a professor refuse ever to teach in person again now that this coronavirus looks as if it is with us to stay? And what happens if, in one of the in-person classes, someone develops the virus? Do we do as the schools (at least here in Alberta) do, and immediately send everyone home for two weeks?

No law school I know of maintains a custodial staff large enough to thoroughly clean every classroom after each class. Thanks to budget cuts, we in Alberta are lucky to have a really full cleaning now once a week. So is the prospect that profs will be expected to ensure that the room is fully wiped down after teaching, in the same way that we expect them to turn off the projector and the lights? I can imagine Faculty Associations having a word or two to say about that!

The point is that none of us have the faintest idea of what we’re about to embark upon. It is true that some law schools – Western and Queen’s, most notably – have continued to offer in-person classes throughout, but in Western’s case, that was accomplished by keeping two thirds of the students online, and in Queen’s, it was by taking over much of the broader university campus. We can learn from them (and I for one will always have a soft spot in my heart for Western), but only to a point. The real question is where we will find our latter-day William Mountaine. Where will we find our post-pandemic Vade Mecum?

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