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Ian Holloway

Legal education and the tyranny of provincialism

“Earth is a smaller place.” “We live in a global village.” “It’s an increasingly interconnected world.” “Distance no longer matters.”

Phrases like these nowadays verge on the hackneyed. A close friend of mine – who happens to be the smartest lawyer I know – once said that he’d scream the next time he heard someone talk about globalization. But triteness aside, the aphorisms we use to describe the forces of globalization touch upon something that is very real, and that is changing the kind of legal service that clients need. And I’m not just talking about large corporations. I mean ordinary people and mom and pop business.

My own epiphany on this point came a few years ago when I was visiting a three-person law firm in northwestern Ontario. I asked them what sort of law they practiced. The answer I expected was wills and estates, real estate, low-level criminal matters, some family, etc. But the answer I got was, “We practice international law.”

After he helped me pick myself up off the floor, one of the lawyers went on to explain: “You see, we represent loggers who export logs to mills in Minnesota. And we represent lumber companies who import lumber from those same mills. We represent Americans who want to buy hunting and fishing camps up here – and who then want to take their game back home. And we’ve got clients who live in Canada, but who work in the United States, so they’ve got cross-border tax issues.”

It was then that the penny dropped.

It’s one thing in a place like Calgary to see a massive industry like energy that is integrated on a continental basis (as it is; for all you non-Albertans – like it or not, Houston is as important to Calgary as Toronto). But when three small firm lawyers in a remote part of the country tell you that they conceive of their practice as “international law” well, that’s when it dawned on me that the brave new global, interconnected, smaller, distanceless world is actually here.

It used to be that “jurisdiction” was a comfort word for lawyers, for it signified a boundary. It told us when we could stop thinking about an issue – because by definition, an issue in a different jurisdiction was someone else’s problem. Yes, there were a few whose practices were exotic enough that they involved conflicts of laws issues. And an even smaller number actually practiced in international tribunals. But most lawyers practiced nothing but pure old domestic law. Indeed, until relatively recently, most lawyers practiced pure provincial law.

I remember when I was an articling student in Nova Scotia being told about the Ontario Business Corporations Act as if it was a mysterious creature of a foreign parliament. How quaint this sounds now. Today, most lawyers – regardless of where they practice – have clients whose interests will at some point transcend borders. So rather than being a comfort term, the concept of jurisdiction has become an added wrinkle to an already increasingly complicated professional milieu for lawyers. So what does this mean for legal education? Well, to put it elegantly, it means that we in the law schools owe it to our students to place a much higher premium on international stuff.

Now to be fair, all Canadian law schools provide far more in the way of international opportunities than was the case a generation ago. Most schools have multiple international exchange partners, and many of us have some sort of “international requirement” that needs to be met before graduation. Likewise, it is increasingly common for law schools to fund summer international internships for students. And we’re blessed to have partner organizations like Canadian Lawyers Abroad (now called “Dare to Dream”) which provides a level of national co-ordination to our individual efforts.

This is all to the good, and it provides a rich tapestry of opportunity for students who seek it out. But the problem is that there is little systemic design to it. In most schools that have one, the international requirement can be fulfilled in any number of ways: through an exchange, though a course, through taking part in a moot, or through a grab-bag of other options. None of these things is invalid in and of itself. But apart from at a very high level of abstraction, there is nothing to provide a coherent framework to the experience.

To put it in curriculum-speak, there is no real agreed-upon set of universal learning objectives. Of course, curricular differences exist among the law schools – that is probably a good thing. But we all have a shared sense of what students should be learning in, say, Constitutional Law or in Torts. And we’d all agree that no student can graduate without both. But we seem to be willing to accept that the Canadian lawyer of the twenty-first century needn’t have anything beyond a patch-work familiarity with non-domestic legal orders. Some (and I am one) would say that Canadian law students today need to graduate with some familiarity with both the principles of public and private international law (Aboriginal Law, too, but that’s a subject for a future column). I don’t think that any of us could honestly say that this is the case.

I originally come from the Maritimes where the tyranny of small distances used to be one of the defining social characteristics. I’m not that old, but I can remember in my childhood an Acadian village that was 15 miles away being described as “the French country.” As far as we were concerned, it might as well have been 1,000 miles distant, for it was completely irrelevant to our existence. And I have friends from New Glasgow, N.S., who grew up believing that that people from Antigonish County (which is the next county over) were barely civilized.

This seems funny in its provincialism now, and my friends and I regularly laugh about it. But shouldn’t we ask ourselves whether the way in which are teaching our students in Canadian law schools today won’t seem just as parochial a few years from now? If our duty is to prepare our students for the profession they’re joining, not the one we joined, then mustn’t we do better?