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The Trump presidency and law school teachable moments

For those of us who work in law schools, late summer is a special time of year. After the somnolence of the summer, the adrenalin starts to pump again as we gear up to welcome our new class and welcome back our returning students.

I’ve just learned that in our new class here at the University of Calgary, we’ll have no fewer than 44 different undergraduate institutions represented — 17 mother tongues, apart from English and French, are spoken. And I was thrilled to learn that a fifth of the class comes from a rural background. All of these things represent the fruits of a push by us to diversify our portfolio, so to speak. So it’s gratifying to see data like this.

Nevertheless, it’s a nervous time for me. I can’t speak for anyone else, but no matter how long I do this, I still feel as anxious on the first day of school as I did when I was 14 and starting high school. For me, adrenalin — and the desire to make sure that the new students have a happy start to their professional lives — is what keeps my nerves pointed in a productive direction.

Yet the beginning of the new school year also always has a certain poignancy and tenderness to it. Part of it, I suppose, is that I’m a Maritimer, and we are bred to be a sentimental lot. So with the entrance of each new cohort — and this year, we are welcoming the Class of 2020, which means that most of them never knew a world before 9/11 — one is conscious that another page in the calendar has blown away. There is a wonderful scene in the film The Bridge on the River Kwai in which Alec Guinness’ character, Colonel Nicholson, is talking with the Japanese commander on the night the bridge was completed. Nicholson becomes reflective, and says to Colonel Saito, “There are times when suddenly you realize you’re nearer the end than the beginning. And you wonder, you ask yourself, what the sum total of your life represents, what difference your being there at any time made to anything, or if it made any difference at all really.” Well, that captures pretty well how I feel at this time of year myself.

This year, though, there is a more pressing reason for the poignancy — the Class of 2020, like their schoolmates in the Classes of 2018 and 2019, is studying law at a time when the rule of law seems to be under siege. Many years ago, I got to know the late S.F.C. Milsom, the distinguished English legal historian. I remember him once talking about what he described as “the sheer unreality of studying public international law in the autumn of 1941.” He talked about how bizarre it was to be learning about the League of Nations and mandates and the obligation to disarm, “while most of Europe was under the Nazi jackboot.”As I watch our neighbours to the south constitutionally self-immolate, I can’t help but be reminded of what Professor Milsom said.

The last time I felt this way was when teaching administrative law in the spring of 2001. It seemed as if Robert Mugabe, in his conflict with the High Court of Zimbabwe, was going out of his way to give me a weekly supply of grist for the pedagogical mill. Reasonable apprehension of bias? Check. Use of privative clauses to deny judicial review of executive action? Check. Conferral of purported unlimited discretion? Check. Judicial resistance? Check. Packing the court? Check. And so on, and so on. It was probably the most dramatic context in which I’ve ever taught! Thanks to Mugabe and his cronies, the concepts I was teaching were given far more meaning than they ever could have in normal, day-to-day Canadian life. It was an exhilarating experience for me, and even now I will occasionally hear from former students who remember that semester. But at the same time, I was very conscious of the fact that my classroom excitement was grounded ultimately in the evisceration of the rule of law and in the misery and suffering of the people of Zimbabwe.

Undoubtedly, the Donald Trump presidency will make its way into many if not most Canadian law school classrooms this coming year. Almost certainly, it will in mine. Some of this, I regret to say, will likely be in the form of that self-satisfaction that constitutes an unfortunate part of our Canadian character when it comes to discussing the United States. On a deeper level, though, what America is enduring now offers a host of teaching opportunities for us. We are a monarchy and they are a republic. They had a revolution and we evolved toward independence. But we share a legal tradition, and many of the same social forces there also exist here, albeit on a muted scale.

It would be arrogant folly for us to completely dismiss America’s current agony as something that could never happen here. For one thing (and to harken back to my theme three columns ago), the ructions that are going on within the political branches of government remind us of just how critical a role respect for tradition plays in the constitutional systems of common law states. But “Trumpism,” if there is such a word, can also be a useful tool in human rights, in international law courses (in both their public and private varieties), in criminal law, in administrative law, in courses on negotiations and in so many others. The point is that while few of us like what is going on in the U.S. right now, we owe it to our students to at least make use of it as a teachable moment.

 


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