Tag Archives: Law

The unreasonable person test

A couple months ago one of my professors asked us to pick out what we think are characteristics of the legal concept of the “reasonable person.”

The reasonable person test is a standard that judges have used for centuries in an attempt to create an objective legal test for evaluating behaviour. The theoretical reasonable person is one who shows acceptable care, skill, and judgment in a given situation, according to the values of the community.

The idea of the reasonable person has morphed and changed with time. It has also faced significant critique, given that in practice, the reasonable person essentially amounts to the reasonable judge. Since the bench has consistently lacked diversity, the reasonable person becomes the white, male, upper-class reasonable person.

So, my professor asked us who we think the reasonable person would be. After some silence, my hand shot up, and I declared “white, male.”

These are the immediate characteristics that I thought of, and there is considerable evidence to support this claim from well-respected scholars and experts. However, I was immediately seized by a feeling of awkwardness that filled the classroom. Both the professor and I are racialized women. The class was mostly white, and evenly split between men and women.

Eventually, more people added some other relevant characteristics. The awkwardness was soon broken when someone noted that the reasonable person in practice was basically Mr. Darcy, of “Pride and Prejudice” fame.

Since then, I have carried the lingering sensation that I did something wrong or inappropriate when giving my answer. I even found myself questioning my judgment, wondering why I didn’t consider the possibility that my answer, given in a classroom where both my professor and I were racialized women, might lead to an uncomfortable situation.

My interpretation of the sensation was that I felt people responded in a skeptical manner. For instance, if I had been white or my professor had been white, I feel like the legitimacy of that statement would have been enhanced. Our collective marginalization left me feeling that we weren’t believed. It continues to bother me. I wonder what I should have done differently. Could someone else could have been an ally in that space, mitigating that tension sooner by voicing their agreement?

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Access to justice and Ontario’s articling crisis

It’s a scary time to be a law student. We’re on the cusp of great changes in the profession. Or so they say. I would argue the changes can’t come fast enough!

It’s no secret that the legal profession is a conservative one, one which is highly regarded by the upper-class of society and deeply embedded in centuries-old Western traditions and philosophy. It’s a self-regulating profession with an interest in preserving this status quo. Law attracts a particular type of student: someone seeking a safe, stable path to employment and prestige, who can meet the financial commitment and who is lured in by the financial reward. (These days, though, the I-don’t-know-what-to-do-with-my-life student is a close second).

Here’s the dilemma: most lawyers, and aspiring lawyers, hope to earn top dollar – even at the start of their careers. Yet, legal services are out of the price range of many that need them. A 2007 Toronto Star investigation found that a three-day civil trial in Ontario would cost $60,000 – more than the median family income in Canada. Meanwhile, access to legal aid is arbitrary, and funding for the program is insufficient. In leaving out low- and middle-income Canadians, we are facing an access to justice crisis.

At the same time, the Law Society of Upper Canada (LSUC) has focused its energies this year on addressing the “articling crisis.” The LSUC reports that in 2012, 15 per cent of applicants – roughly 1, 750 law graduates – were unable to get an articling post (a term for the 10-month mandatory work component necessary to be permitted to practice law). There’s plenty of blame to go around, as the cause of the trend is uncertain. It has been attributed to higher enrollment, the pedagogy in law school, economic uncertainties, applicants themselves, and any other factor that might be able to take the blame. In light of this, the LSUC created a task force to study the subject, and this past fall agreed to initiate a three-year pilot project. The project commences in 2014, and throughout law schools in Ontario, students now dread their futures as guinea pigs.

The new plan would offer an alternative option to students who do not receive a traditional articling position. This option will include an in-class law practice program provided by third parties, culminating in a final assessment, and followed by a co-op work placement. This option is to be completed in a total of eight-months.

The main critiques of this solution – and to the existing articling system – are that the plan:

  • Does not address the fact that most of those who cannot get articles are visible minorities, linguistic minorities, aboriginal students, or mature students who have historically struggled with articles. Bencher Clayton Ruby referred to this as “a bottleneck now facing visible minorities” in their search for articles. (The Black Law Students Association of Canada wrote a submission to the LSUC’s Articling Task Force that is well worth reading.)
  • Lacks third-party providers for the course, meaning that the price of the program is still unknown. Regardless of the cost, forced unemployment for 8 months certainly puts students at a disadvantaged, especially as loan-repayments begin to approach.
  • Fails to recognize that part of the problem is that articling is unregulated and unmanaged. Though it is required for students hoping to become lawyers, the Law Society has been unsuccessful is encouraging more firms to hire and cannot force them to do so. Of course, it also can’t compel them to take on coop students! With so few firms hiring, this hardly seems to be a fitting solution. Swapping an articling shortage for a co-op shortage, perhaps?
  • Is two-tiered, with traditional articles regarded more favourably. Those completing the alternative program are likely to be stigmatized as being less qualified. To those who say that stigmatization is unlikely, perhaps consider how arbitrary Maclean’s rankings or simply sharing an alma mater with a potential employer can impact your chances when competing for certain jobs.

The issue with articles is not simply this new regime, but rather with the concept of articles as a whole. First, the articling requirement assumes that students do not gain practical experience during their time in school or during their summers. Especially among those of us with a social justice bent, practical experience in clinic work, pro bono work, internships, community volunteering, legal education and the like is a must for personal, as well as professional, fulfillment. Many students are ready to roll up their sleeves from day one, and they should be credited for these efforts.

Second, the articling system has disadvantaged some groups more acutely than others. This goes back to the culture and nature of the profession and its gatekeepers. The firms that hire articles are often looking for a particular type of individual: young, unattached, apolitical, in perfect physical and mental health, and incentivized by money – a blank slate! There are many people who do not meet that profile, and on that basis alone they will struggle to find articles, particularly in larger markets where there are more students vying for a static number of placements. Yes, the class make-up in many schools in changing, but the “average” student is still supreme when it comes to firms that hire articling students.*

The profession does benefit from those with an atypical profile, yet the approach to the two legal crises in Ontario – articling and access to justice – has failed to recognize that. Instead, those legal crises have been treated in isolation. This is a missed opportunity.

The law needs students who are interested in working with the under-served populations at the heart of the access to justice issue, and who have the background from personal or previous professional experience to do so successfully.

How do we train those students who do want to do legal aid work? Those who want to have a social justice-oriented practice? Those how come from marginalized communities and want to use their new skills to give back?

The new articling system may be a help, but it’s up to the LSUC make it work. Co-op posts must address training needs in these and other under-served areas, such as promoting opportunities in rural or aboriginal communities, or with small firms and sole practitioners. The LSUC, and all members and students of the profession, need to shift the professional culture to one that is more in touch with the communities it serves or should serve.

The legal profession as a whole needs to make a clear connection between access to justice and the recruitment and training of a broader range of law students and graduates who are willing and enabled to do that work. As long as our legal system only privileges the wealthy who can afford the status quo, we cannot truthfully refer to it as a system of justice.

To law graduates of 2014, 2015, and 2016: let’s be vigilant and vocal as this pilot project moves forward.

*Note: I do not think, for the most part, that these individuals are bad students, and often are not less qualified. I also do not think being accepted for an articling position is where you want to filter out those unfit to practice. That filter should be in law school, or upon entry into law school—of course failing law school is nearly impossible. I wonder why…

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Questions in the Interest of Progress

I have been a university student for seven years now. I pride myself on the fact that I did most of my learning outside the classroom. (If we’re honest with ourselves, I’m sure we would all say the same). A lot of that “informal” education came from the jobs I had in my field. But more than that, I learned through student activism and volunteer work — from my colleagues, really, and our collective efforts. It’s not any course in women’s studies — I didn’t take any! — that brought me to feminism. It was those other wonderful experiences and relationships.

I just finished my first year of law school. Happy to be here, and happy with the decision to go to the school that I did — one that prides itself on its commitment to principles of social justice, even though it sometimes falls short of them.

Confronting privilege is nothing new for me. I’m a racial minority woman going to school in Ottawa, for crying out loud! At the same time, I’m in a position of privilege by virtue of that. Yet, as this year has shown, the extent to which some people have not yet had their privilege challenged never ceases to amaze me.

Yes, it’s law school. It’s disproportionately upper middle-class, and brings in a certain “kind” of individual. Still, it’s unnerving the number of highly-educated, well-traveled, seemingly well-rounded people who fail to think twice before complaining that there are more women than men in law school; that affirmative action is reverse discrimination; that listening to a panel of female professors is alienating; that there is no such thing as a poverty cycle in Canada; that whenever the issue of sexual assault comes up in class they, as men, feel victimized; that they’re sick of looking at courses from an aboriginal law perspective; that they’re unconcerned by racism, unless it’s toward a close personal friend; and that the law cannot and should not be a remedy for racial discrimination, because status quo, yo.

Let me say, I’m an open-minded person. I don’t just mean a “progressive” person. I’m also eager to debate and engage people with differing views. However, the reality is that bringing about the kinder, feminist, collectively-oriented, direct democracy I envision will require changing political culture, changing people’s thinking issue by issue and as a whole.

To the point: How do we get more people (especially young people) on board with progressive social change? If all these well-educated, interesting people, who have had every opportunity to be exposed to progressive ideas in so-called liberal arts programs, can unwittingly believe such problematic things, is there hope in reaching out to them?

I like my classmates. Few are malicious. Many are simply oblivious, but to my mind that’s just as harmful, especially given the authority our society grants those with law degrees, formally or informally.

So how do we effectively reach out to people with these viewpoints? Is there a point at which someone is a lost cause? I hope not!

It can be exhausting, feeling like you’re always on the defensive with a simple ultimate objective of creating a more accepting community. It’s easy to say “well, that’s not my job”, or “why should I have to take on so much when my classmates are blissful ignorant and working towards better grades because of it?” (I know, I’ve said it!)

The simple answer is, because that’s what got you here. Someone at some point took the time to reach out to you. A blogger, an author, a classmate, an activist, a professor – as difficult as it may be, it’s on you (us!) to pay it forward and work on reaching out to our classmates.

Two more years of law friendships certainly will not mean everyone will share my political views (how boring would that be!), but it should mean that they will respect them, and be critical and sensitive in theirs. I’m willing to take on that challenge, because a few uncomfortable conversations are better than biting your tongue and feeling marginalized.

If anyone calls you out on it, just say you’re “networking”. These discussions will surely pay off in your future career – and in theirs.

My hope for this blog space is to write about the best methods for doing outreach on campus. I’m of the “more flies with honey” school, and looking to inspire more genuine dialogue along those lines.

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A Professional Miseducation

The last professional event I went to through school was a law firm meet-and-greet. The event was coordinated by my school’s Law Careers Office, and was supposed to provide an opportunity for us to inform ourselves about potential career options once we as-yet-unformed lawyers moved out into the wider world.

In order to attend this event, I needed to own at least one set of professional clothes. Picking those clothes, of course, involves all sorts of unspoken rules: how they ought to fit, what fabrics look too cheap for the occasion, how to match colours and prints, what shoes go with which belt. As a woman, I got to deal with the added questions of whether or not to wear make-up – and if yes, how much? Should I wear jewelry? Would wearing a pant suit with my short hair lead to assumptions about me, my abilities, and my interests?

Then there are the secrets of behaviour. What is the ideal level of firmness for a handshake – and does that expectation change by gender? It’s a wine and cheese event – should I eat, or drink? How dangerous is it to do both at the same time? Is it pretentious if I have my own business cards? What questions should I ask? How much should I know about the approximately 25 firms that are here?

Trying to fathom the answers to these questions sometimes feels like trying to reason my way into understanding a language I don’t yet speak. I say that knowing that I’m lucky – I had the advantage of growing up with professional parents, who modeled business-appropriate behaviour to me and who will walk me through stressed-out phone conversations when I call in a panic, worried that I’ll never be able to get a legal job because I refuse to wear high heels. This kind of school-sponsored event is something I have experience with, and yet I still get anxious trying to navigate it. My law school tries to give students the tools to find their way through this professional maze, but sometimes in my frustration I have to wonder why they bother. What benefit does this kind of deliberate inauthenticity have for either students or potential employers?

It’s events like this that conspire to make the post-secondary educational experience so alienating for so many. Even for those of us who grew up in situations of relative privilege, it can be incredibly difficult to navigate the unspoken rules of education. How formal should emails to professors be? How do you dress for a faculty-sponsored social event? What is “networking” and how the hell do you do it?

Education should, ideally, provide us with tools to help us better understand the world, but sometimes the world we’re meant to examine in class has little to no bearing on the world we experience ourselves. That disconnect is difficult to cope with, especially on those oh-so-special occasions when a professor or fellow classmate tries to explain how our day-to-day life is insufficiently real, representative, or relevant for that particular class discussion.

Trying to resolve that tension is why Caitlin and I decided to put this blog together. We know we’re not the only people out there struggling to reconcile our education with the wider world. We also know that sometimes the best – or only – way to cope is by creating a community of our own where we can work through these struggles together.

And so, we created this blog. We’ve got brilliant friends around the world working these issues out, and we figured their brilliance should be shared. We also want to be a space for brilliant thoughts regarding education from people we haven’t met yet – and what better place to meet strangers than the internet?

For now, this is a grand experiment; we’re not quite sure how it’s going to turn out. We hope that, regardless, you’ll come along for the ride. No doubt we’ll learn some good stuff on the way.

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