BOOK REVIEWS
CHRONIQUE BIBLIOGRAPHIQUE
Carol Harlow. Compensation and Government Torts. London: Sweet & Max-
well, 1982. Pp. xv, 173 [$29.00 cloth; $17.75 paper]. Reviewed by David K.
Allen.*
This book, one of the Modem Legal Studies series, examines the difficult
and often delicate problems raised by the issue of the nature and extent of
government liability to the citizen. As Dr. Harlow indicates at the outset,
more is involved than simply traditional tort law.l Much has changed since
the days when the King could do no wrong and the only effective recourse
open to the injured citizen was to proceed against the individual Crown
servant, usually a fruitless exercise. Prior to the enactment of the Crown
Proceedings Act, 1947, 2 whereby the Crown was rendered liable for the torts
of its servants, it was argued that the Crown should be governed by the
same rules as its subjects; more recently, as the Welfare State has extended
the scope of its activity, the plea has been made that as the law of torts is
incapable of controlling the juggernaut, special rules of government liability
are necessary.
Dr. Harlow rightly takes time to consider the extent to which the law
of torts is actually or potentially capable of meeting the challenge posed by
the extension of state involvement in the life of the individual citizen. We
live increasingly in an age of public law; are private law rules capable of
solving the problems raised by cases where loss has been suffered allegedly
as a consequence of government action or inaction; indeed, are such rules
appropriate to the resolution of these problems?
Dr. Harlow provides a clear analysis of the limitations of the law of
negligence, and the near-Byzantine complexities of applying negligence prin-
ciples to the exercise of discretionary powers, as exemplified in Anns v.
Merton L.B.C..3 She also canvasses the extent to which the common law is
capable of developing or extending existing principles to meet the problems
posed by cases such as Hammersmith Railway v. Brand4 and Dunlop v.
Woollahra Municipal Council.5 It is argued that abuse of rights, breach of
*Of the Faculty of Law, University of Leicester.
IC. Harlow, Compensation and Government Torts (1982).
210 & 11 Geo. 6, c. 44.
3[1978] A.C. 728, [1977] 2 All E.R. 492.
4(1869) L.R. 4 H.L. 171, [1861-73] All E.R. Rep. 60.
5[1981] 2 W.L.R. 693, [1981] 1 All E.R. 1202.
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BOOK REVIEWS
statutory duty and the risk principle all have to varying degrees, the potential
to fill existing gaps. Dr. Harlow recognizes the limits on the operation of
the abuse of rights doctrine, given the discretion that would still be available
to the court, and the likelihood of a subjective test of malice and suggests
that it would be unwise to expect the doctrine to be relied upon. Breach of
statutory duty, however, despite the extremely uneven treatment it has re-
ceived at the hands of the courts, appears to have a greater potential as a
cause of action. To bring this potential to fruition would require making
considerable demands upon judicial creativity. At least a likely consequence
of activism by the courts in this area though would be to persuade the
Legislature to provide expressly whether or not civil liability ensues follow-
ing breach of a duty under the statute. As Dr. Harlow indicates, risk, as a
basis of liability, is likely to result from statutory rather than case law de-
velopment; fault is too firmly secured in our civil law to be replaced at this
stage. The effective demise of Rylands v. Fletcher6 liability underlines this
point.
A particularly interesting section of the book considers the possibility
of creating special rules of administrative liability in tort to cover those
cases where a plaintiff goes uncompensated because existing rules of tort do
not provide for damages. In a typical case a planning decision is imple-
mented and later discovered to be ultra vires. If the decision has already
been acted upon, and the building constructed, quashing the decision would
be useless as a remedy since the court would be disinclined to order the
demolition of the building. Damages are surely the only acceptable remedy
in such a case, but Dr. Harlow indicates a number of difficulties that would
hinder an attempt to frame an appropriate cause of action on these facts.
Frequently, the wrong lies in a procedural defect which, if corrected, does
not bar a statutory authority from reaching an identical decision following
a procedurally correct re-hearing. What is the loss in such a case? Clearly,
any test which requires the administrative act to be the cause of the loss
will run into difficulties. Also, if a criterion for recovery is that the admin-
istrative act be unlawful, what would follow if the decision were character-
ised as merely voidable? This problem is exemplified all too clearly in Hoffman-
La Roche v. Secretary of State for Trade and Industry.7 The drafting diffi-
culties here are formidable, quite apart from the question of whether this
is the best mode of compensating the citizen.
In her discussion of the capacity of the common law to develop and
meet the problem of the uncompensated citizen, Dr. Harlow is careful to
leave open the question of whether the law of torts is the appropriate means
6(1868) L.R. 3 H.L. 330, [1861-73] All E.R. Rep. 1.
7Hoffmann-LaRoche v. Secretary of State for Trade and Industry [1974] 3 W.L.R. 104, [1974]
2 All E.R. 1128.
McGILL LAW JOURNAL
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of devising a solution. For an important theme of this book is the decline
of tort as a means of compensation for loss or damage resulting from ad-
ministrative action. In part this decline has occurred because in so many
instances the state has taken upon itself the responsibility of providing
compensation where the common law does not impose liability;8 in part
because of damnum sine injuria cases where the common law cannot or
will not impose liability and the state has not intervened; in part because
the mechanism of the tort system is simply not equipped to cope –
indeed
the machinery of the judicial process is not equipped to cope – with the
problem of compensation. Dr. Harlow does not regard the role of the courts
as being played out. She sees them as forming part of a mixed system, with
the bulk of their work consisting in the interpretation of the many statutes
governing different compensation schemes regulating most cases of govern-
ment liability.
Dr. Harlow is equally at home in her discussion of administrative prac-
tices and in her skillful analysis of case law and statute. Her exposition of
the historical development of government tort liability is lucid and thought-
fil. Her abilities as a comparative lawyer are also clearly displayed, for
example, in the discussion of the restricted applicability of the Couitas and
La Fleurette decisions within their own jurisdiction and her analysis of the
potential of “l’galit6 devant les charges publiques” in the common law.9
Professor Harlow takes a realistic view of the difficult problems raised
by the question of compensation for unlawful government action. Rather
than bemoan the fact that the tort system is ill-equipped to cope with many
of these cases, she rightly prefers to examine the available alternative mech-
anisms, criminal injuries compensation schemes and ex gratia payments;
she describes their powers and procedures and makes recommendations for
their more efficient operation. While not neglecting the importance of ju-
dicial review and tort law, this important book emphasizes that the nature
of the game is changing. Public and private lawyers alike must be alert to
adapt to these changes.
For example, in the area of criminal injuries compensation.
9Supra, note 1, 102-7.
Michael Jackson. Prisoners of Isolation [:] Solitary Confinement in Canada.
Toronto: University of Toronto Press, 1983. Pp. xii, 330 [$35.00 cloth; $12.50
paper]. Reviewed by Stephen Fineberg.*
Prisoners of Isolation is the first book on Canadian prison law to appear
since John Conroy’s groundbreaking reference work of 1980.1 Both publi-
cations grew out of their authors’ pioneering labours in British Columbia,
and it is interesting to note how differently they have treated their common
subject and commitment. Mr. Conroy’s invaluable two volume loose-leaf
edition with update service was intended to provide persons already active
in prison law with a research tool covering all aspects of the field.
Professor Jackson has, by contrast, woven legal analysis and less tech-
nical materials into a general text, wherein lies the thread of the argument,
while a wealth of supplementary Canadian, British, American, and inter-
national jurisprudence and doctrine is explored in the footnotes. This fe-
licitous organization invites the attention of several other disciplines as well
as the legal; nor has the concerned non-academic reader been excluded. The
transparent intention is to galvanize potential legal and lay recruits.
If Professor Jackson’s approach is broader in appeal than that of the
earlier work, it is narrower in another respect. He arrives at prison law
through his preoccupation with the “principles and processes that have been
designed, primarily by lawyers, to protect the individual against the abuse
of state power.’ 2 That same concern explains the specific focus on solitary
confinement: “as the ultimate exercise of state authority over a prisoner, it
can be seen as a litmus test of the morality and legitimacy of the state’s
dealings with prisoners in lesser exercises of authority.”‘ 3 Accordingly, such
‘lesser exercises’ as the practice of gating and the denial of legal counsel
before a disciplinary tribunal are touched on only incidentally, while hotly-
contested issues such as double-bunking, arbitrary transfers, parole, medical
care, access to education and training, protection against arbitrary punish-
ment, sentence calculation and the right to vote are not broached at all.
A second and perhaps less intentional limitation on the book’s scope
is the imbalance of testimony in favour of the west coast. The distinctive
features of most other regions are entirely overlooked. As for Quebec, we
are informed in a passing observation that the national headquarters of the
Correctional Service, desirous of implementing policy in its super-maximum
*LL.B., B.C.L., McGill University.
1J. Conroy, Canadian Prison Law (1980). For a review of this book, see Buchanan, (1981)
27 McGill L.J. 129.
2M. Jackson, Prisoners of Isolation[:] Solitary Confinenent in Canada (1983) ix.
3Supra, note 2, 3.
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establishment at Laval, was “putting pressure” on the prison’s administra-
tion in 1980.4 This oblique reference is the book’s only hint at the stubborn
independence of Quebec’s federal wardens and their special brand of insti-
tutional lawlessness. Nor does the brief comparison of solitary confinement
in the British Columbia Penitentiary and the super-maximum establishment
at Laval complete the picture of the peculiar hardships of Quebec’s federal
prisoners. 5
One notices also that the text is based at all times on the experience
of male prisoners, while the special problems of Canada’s more than 200
female federal prisoners6 are ignored. Finally, the reader is reminded that
the provincial prison systems are not studied here.
The practice of solitary confinement, also known as segregation or ‘the
hole’ within the prison walls, is divided by Canada’s Penitentiary Service
Regulations into ‘punitive dissociation’ 7 and ‘non-punitive dissociation’.8
The latter is composed of two categories: protective custody, which is almost
always requested by the prisoner in question, and administrative segrega-
tion, which is imposed by the institutional head under section 40 of the
Regulations “for the maintenance of good order and discipline in the in-
stitution.” It is this second category of isolation, conferring on the peniten-
tiary wardens “virtually untrammelled discretion over the lives of prisoners,”
that occupies Professor Jackson’s attention. 9
The subject is rendered in historical terms. In search of the precursors
of contemporary practice, we are taken back to the San Michele House of
Correction, commissioned by Pope Clement XI in 1703, and other early
penal institutions on the Continent. The English and American experience
of the eighteenth and nineteenth centuries is then explored and particular
attention is given to the prison regime developed at Auburn, New York,
which, together with the English Penitentiary Act of 1779, served as a model
for Canada’s first Penitentiary Act in 1834 and the organisation of Kingston
Penitentiary in 1835.
In 1894 we encounter for the first time the modern conception of ad-
ministrative segregation. In that year a new wing known as the Prison of
Isolation was opened at Kingston Penitentiary. Its regime was not intended
4Supra, note 2, 180.
5Supra, note 2, 178 et seq.
6Correctional Services of Canada, Female Population Profile Report (1983).
7Penitentiary Service Regulations, 13 C.R.C. 1978, c. 1251, s. 38.
SPenitentiary Service Regulations, 13 C.R.C. 1978, c. 1251, s. 40.
9Supra, note 2, 44. For further explanation of Professor Jackson’s thoughts on punitive
segregation, see Jackson, Justice Behind the Walls – A Study of the Disciplinary Process in a
Canadian Penitentiary (1974) 12 Osgoode Hall L.J. 1.
1984]
BOOK REVIEWS
to mold the general population, nor was it designed as punishment for
specific infractions of the institutional rules. Closely foreshadowing section
40 of the current Penitentiary Service Regulations, the governing Regulation
ordained that “any male convict whose conduct is found to be vicious, or
who persists in disobedience.. .or who is found to exercise a pernicious
influence” may be segregated “for an indefinite period.”‘ 10 Curiously, Pro-
fessor Jackson neglects to explain this transition to modem practice, stating
merely that between 1888, when the Prison of Isolation was conceived on
an earlier model, and 1894, the original understanding of its function “had
undergone revision.” I” Similarly, the author fails to explain how this regime
spread to other institutions. The text supplies the superintendent of peni-
tentiaries’ claim in 1933 that solitary confinement no longer existed in Canada
and then jumps ahead to the modem “Age of Corrections,” in which every
federal establishment has its “hole” and the authority to dissociate on ad-
ministrative grounds. 12
If this history of solitary confinement (and incidentally, the rise of the
prisoners’ rights movement) 13 admits certain gaps, the overall impression
is one of careful scholarship. All the pertinent literature has been digested
and invoked. One must furthermore applaud Professor Jackson’s method
of viewing judicial and legislative utterances against the moving backdrop
of developing juridical trends. In assessing the Federal Court’s decision in
the McCann14 trial, for example, Mr Justice Heald’s “clear judicial reluct-
ance to become involved in the ongoing review of prison decision-making”
is situated and understood within the context of the Federal Court of Ap-
peal’s “hands-off approach” of the period. 15 The plaintiffs’ notion of a flex-
ible “fairness” doctrine, ignored in 1975, went on to find acceptance at a
more propitious moment in the Supreme Court decision in Martineau (No.
2).16
Professor Jackson takes his analysis of developing trends to its logical
conclusion by attempting to indicate the arguments which will succeed in
future prison litigation, particularly with reference to the Canadian Charter
of Rights and Freedoms.17 This aspect of his book of course will require
‘0Supra, note 2, 37.
1’Ibid.
‘2Supra, note 2, 42 et seq.
‘3See, for example, supra, note 2, 16 and 82-3.
‘4McCann v. The Queen [1976] 29 C.C.C. (2d) 337.
‘5Supra, note 2, 125.
‘6Martineau v. Matsqui Institution Disciplinary Board (No. 2) [1980] 1 S.C.R. 602. Referred
to in Jackson, supra, note 2, 124 et seq.
‘7Part I of Schedule B, Canada Act 1982, 1982 c.l 1 (U.K.). Supra, note 2, 81 et seq., 277,
fn. 20, 293-4, fn. 183.
McGILL LAW JOURNAL
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constant re-evaluation in the light of the rapidly accumulating body of Charter
jurisprudence.
Prisoners of Isolation is built around the circumstances, arguments and
judgment of the McCann18 case, which has been called “undoubtedly the
most ambitious prisoners’ rights action ever brought in Canada.”‘ 9 McCann
sends tentacles throughout the text: from Charles Dickens’ 1842 denuncia-
tion of solitary confinement, cited by the plaintiffs in 1975,20 to the future
litigation of section 12 of the Charter,2′ where the plaintiffs’ arguments,
according to Jackson, “will provide a surer guide to a principled approach
to the limits of carceral authority. ‘ 22 The author is writing from a special
vantage point, having played a key role in the McCann case, and it is the
reader who benefits. We witness the full gestation of a Federal Court de-
cision, from the plaintiffs’ initial contact with Professor Jackson, through
the elaboration of courtroom strategy and the presentation of legal argu-
ments, to Justice Heald’s reasons for judgment. The first-hand nature of the
account lends an air of immediacy to the text, at times even a note of high
drama: “[t]he day before the trial started [one of the plaintiffs] … escaped
when he arrived at Vancouver Airport. He was still at large when the Court
convened the next day.”’23
The Court in McCann declared the conditions of confinement in the
British Columbia Penitentiary’s Special Correctional Unit to be cruel and
unusual punishment or treatment within the meaning of section 2(b) of the
Canadian Bill of Rights.24 A year later that unit exhibited “virtually the
same inhumanity and gratuitous cruelty that had existed before the trial. ’25
The Solicitor-General’s Department, in fact, proceeded to endorse and ad-
vance the cause of administrative segregation by establishing Special Han-
dling Units at Kingston and Laval. Professor Jackson, in what is surely the
most thorough account of the SHUs that has been put before the public,
discredits the programme’s objectives, decision-making process, conditions
of confinement and term of detention. The carefully reasoned attack is
buttressed by an effective use of direct testimony from SHU inmates whose
comments reveal a striking eloquence and understandable sincerity. The
entire discussion takes on new urgency in 1984 as the construction of three
SHUs destined to replace and expand current facilities nears completion.
18Supra, note 14.
19price, Doing Justice to Corrections? Prisoners Parolees and the Canadian Courts (1977) 3
Queen’s L.J. 214, 279.
20Supra, note 2, 20.
2 1Part I of Schedule B, Canada Act 1982, 1982, c. I1 (U.K.).
22Supra, note 2, 106.
23Supra, note 2, 47.
24R.S.C. 1970, App. III.
25Supra, note 2, 144.
1984]
CHRONIQUE BIBLIOGRAPHIQUE
The solution recommended for the present law and practice of segre-
gation remains the most controversial aspect of this book. The appendix
reproduces the author’s proposal for a code embodying the premise that
administrative segregation “is not designed for any end except limited pre-
ventive detention. ‘ 26 In effect, the Model Segregation Code seeks to specify
reasonable and limiting criteria for the use of segregation, establish strict
standards of procedural fairness for decisions regarding segregation, and
impose minimum conditions of confinement based largely on the American
Correctional Association’s Manual of Standards, the whole to be set out in
regulations rather than commissioner’s directives so that “the legal profes-
sion and the courts will play a vital role in seeing that the code is enforced”. 27
One important innovation would be the establishment of a maximum term
for dissociation. 28 The substitution of this regime for the style of segregation
now practised, it is argued, would likely render the experience considerably
less repressive, and would certainly eliminate the open-ended quality of the
detention.29
Professor Jackson’s capacity to move beyond denunciation and draft
a regulatory instrument worked out in all its detail bespeaks an intimate
knowledge of the prison milieu and a pragmatic attitude toward a most
difficult problem. The major objection his proposal invites is one he has
tried to anticipate: “having documented the history and nature of the state’s
ultimate carceral power and having sought to demonstrate its illegitimacy,
[it is suggested] I should lend the weight of this book to the prison-abolition
movement. … Yet I have resisted the attractions of the abolitionist stance
because it offers little consolation or hope to those now experiencing the
most extreme of the pains of imprisonment.” Professor Jackson adds that
this plea for immediate reform must “not be interpreted as diminishing the
need for Canadian society to give the most serious reconsideration to the
future of imprisonment. ‘ 30 The author, then, does not deny the wisdom of
abolition so much as put it aside for his present purposes, handing the
abolition movement a missed opportunity. Yet the awful litany of flagrant
illegality, needless brutality and useless destruction seems to take on a life
of its own, and one wonders if the momentum of the book’s damning
evidence has not overtaken its conclusions.
One of the central questions debated in Prisoners of Isolation is the
effectiveness of judicial intervention within the prison walls. An examina-
tion is made of the expanding literature which evaluates the enforcement
26Supra, note 2, 230.
27Supra, note 2, 239.
28Supra, note 2, 224-5.
. 29Supra, note 2, 226.
3 0Supra, note 2, 205-6.
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of judicial decrees in the United States, where the courts have been more
active in applying the rule of law to carceral situations than in Canada.31
One finds that the implementatin of hard-won decisions depends largely on
the good faith of prison administrators: “Court decisions do not enforce
themselves. .. There are limits to the capacity of the Courts to police de-
cision-making inside the prison”. 32
The same is true in Canada. Professor Jackson admits believing initially
that the McCann decision would be implemented in the British Columbia
Penitentiary, an opinion he was later forced to relinquish.3 3 The plaintiffs,
prepared by a different experience, “had no illusions as to what would really
change inside the walls when the lawyers, the judge, and the press went
home.”‘ 34 Conditions in the segregation unit of British Columbia’s new Kent
Penitentiary at the time of the June, 1981, riot served as a reminder that
McCann still was not being applied.
Yet the role of prisoners’ rights litigation in the slow process of forging
and mobilizing public opinion, influencing local and national correctional
administrators, and militating for legislative change must not be ignored.
The McCann trial became a movement, inspiring community groups and
artists, contributing to the creation of a Citizen Advisory Committee to the
British Columbia Penitentiary (performing the function of outside inspec-
tion advocated by John Howard 200 years earlier),35 and lending its moral
and legal authority to the government’s decision in 1980 to close that prison
forever. 36 The ‘ripple effect’ of McCann is still felt, most recently in the
writing and publication of Prisoners of Isolation, and the force of this re-
markable book is such that one suspects the federal authorities will be an-
swering to its readers before long.
31Supra, note 2, 82 et seq., 297-8, fn. 22.
32J. Jacobs, Stateville[:] The Penitentiary in Mass Society (1977) 113-18. Referred to in
Jackson, supra, note 2, 145.
33Supra, note 2, 226.
34Supra, note 2, 144.
35Supra, note 2, 12.
36Supra, note 2, 145-6.
Robert Stevens. Law School [:] Legal Education in America from the 1850s
to the 1980s: Chapel Hill: University of North Carolina Press, 1983. Pp.
xvi, 334 [$19.95]. Reviewed by Eric Tucker.*
The direction and purpose of legal education and legal scholarship, the
two central activities of the modem law school, are once again being sub-
jected to intensive scrutiny in both Canada’ and the United States. 2 What
is the proper balance between the professional and academic components
of legal education? Should law schools focus on the teaching of analytic and
technical skills or should they define their goals more academically and
teach students to think about the social function of law and its intellectual
foundations? Is there a contradiction between these objectives? Can they
be pursued simultaneously in a homogeneous program? What educational
techniques are appropriate for realizing the goals of legal education however
defined? And what about the full-time law teacher? Is she a Hessian trainer 3
of proto-professionals or a serious scholar committed to critical research?
Is it appropriate for members of the “community of scholars” to spend a
preponderance of their time devoted to the preparation of teaching materials
and the production of texts and law review articles that do “the housekeeping
of the law, trying to keep track of decisions and to make sense of them ‘ 4
for students and practitioners? These questions have been asked since… well,
*Of the Faculty of Law, Osgoode Hall Law School.
‘The recent report by the Consultative Group on Research and Education in Law, Law and
Learning[:] Report to the Social Sciences and Humanities Research Council of Canada (1983),
is evidence of this concern and is likely to generate active discussion of structural reform to
the law school in Faculties across the country. Canadian law students held a conference on
legal education at Osgoode Hall Law School in March, 1983. A book of essays on legal education
was recently published. See N. Gold, Essays on Legal Education (1982). See also Pickard,
Experience as Teacher: Discovering the Politics of Law Teaching (1983) 33 U.T.L.J. 279.
2For recent indications of renewed concern see Symposium on Legal Scholarship: Its Nature
and Purposes (1981) 90 Yale L.J. 955; D. Margolick, The Trouble with American Law Schools
New York Times Magazine (30 May 1983) 20; Symposium: The Law Curriculum in the 1980’s
(1982) 32 J. of Leg. Ed. 315. Also see the Report of the Committee on Educational Planning
and Development (1982) on curriculum reform for the Harvard Law School.
Va L. Rev. 646.
3The phrase is from Bergin, The Law Teacher: A Man Divided Against Himself (1968) 54
4Reisman, The Law School: Critical Scholarship vs Professional Education (1982) 32 J. of
Leg. Ed. 110, 115.
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as Stevens convincingly demonstrates, at least since the inception of insti-
tutional legal education in the United States.
Stevens has traced for us in great detail the development of legal ed-
ucation in the United States. Unlike many institutional studies of individual
law schools which celebrate the triumph of the three year, university-
affiliated law school and the case method over its competitors, 5 Stevens is
concerned with the economic, political and social forces which shaped the
development of the legal profession and the distribution of legal services.
He is interested in exploring the dynamic relationship between the role of
the law profession in American society and the institutional arrangements
for training its members. These concerns are developed in two major and
closely interwoven themes in Stevens’ book. The first theme is the rise to
dominance of the university-affiliated, professionally accredited law school
as the primary institutional arrangement for training lawyers. The second
theme is the internal life of law schools, and in particular, the direction of
legal education and its relationship to the professional identity and scholarly
pursuits of the full-time law teacher.
Stevens’ first theme, the rise of the university-affiliated law school, is
of interest both because of the approach he adopts in explaining why one
model of legal education succeeded in eliminating its competitors, and be-
cause the contours of that development are so different from those of our
own history; this serves as a reminder to the historian of the importance
of paying careful attention to the distinctive conditions of Canadian life
when seeking to explain local developments. Thus it is useful to begin by
outlining the historical development of legal education in the United States
and briefly contrasting it with developments in Ontario.
In the post-Revolutionary War era almost all of the original thirteen
states required some period of formal apprenticeship for admission to the
bar.6 Apprenticeship requirements were also imposed in Upper Canada in
5For a critique of these institutional studies see Konefsky & Schlegel, Mirror, Mirror On the
Wall: Histories of American Law Schools (1982) 95 Harv. L. Rev. 833. Also see J. Willis, A
History of Dalhousie Law School (1979) 12. Unfortunately, Willis shares many of the defects
identified by the authors. He notes, “from the beginning the School knew what it was trying
to do and has to this day continued to do so.” It is a history in which external adversity is
continuously overcome as the School moves inexorably towards the realization of its founder’s
ideals, the Weldon tradition. The self-congratulatory tone of the book is at times embarrassing.
Commenting on the impact of the rapid growth of the student population and the rise of
student activism in the 1960’s Willis notes, “what Benny Russel said in 1914 is as true today
as it ever was: ‘During the whole history of the law school… there has never been a single
instance of friction or misunderstanding between faculty and students’ “.
6R. Stevens, Law School[:] Legal Education in American from the 1850s to the 1980s (1983)
1984]
CHRONIQUE BIBLIOGRAPHIQUE
the late eighteenth century.7 However, unlike Upper Canada, where the Law
Society was granted a statutory monopoly and exercised direct control over
all aspects of legal training until the 1950’s,8 private and college-affiliated
schools soon appeared in the United States to satisfy a demand for legal
education that went beyond what could be provided by office training.9
Notwithstanding the different political conditions and institutional arrange-
ments for training lawyers in the United States and Upper Canada, the legal
profession was seen in both jurisdictions as an emerging elite destined to
play an important leadership function, especially given the relatively weak
competition from more traditional social and political elites.’0
Although these initial differences in educational arrangements for train-
ing lawyers would have led, by themselves, to markedly different paths of
development, it was the rise of Jacksonian democracy in the United States
which assured that such would be the case. The anti-elitist thrust of the
movement directly challenged the view that lawyers, or any other group for
that matter, should be allowed to constitute themselves as an elite. As a
result, formal requirements of any kind for admission to the bar came under
attack and were abolished or reduced in many states. Bar associations were
disbanded and the movement to make the judiciary subject to election
achieved significant success.” In such an environment, institutional legal
education was bound to and did suffer as law schools came – but mostly
went – with great rapidity. These early confficts set the agenda for the
politics of legal education that was to dominate American developments
for the next century.
In contrast, legal education in Upper Canada appears to have remained
relatively free of such conffict and was characterized by the stability and
7See Baker, Legal Education in Upper Canada 1785-1889: The Law Society as Educator in
D. Flaherty, ed., Essays in the History of Canadian Law (1983), vol. 2, 49, 68 and 79.
8University-affiliated law schools did not play a significant role in Ontario until the departure
of C.A. Wright and most of the full-time Faculty of Osgoode Hall, then run by the Law Society,
to join the Law Faculty at the University of Toronto in 1949. For a discussion see Bucknell,
Baldwin & Lakin, Pendants, Practitioners and Prophets: Legal Education at Osgoode Hall to
1957 (1968) 6 Osgoode Hall L.J. 139, 207-83.
9Litchfield Law School, the most prominent antebellum private institution, was founded in
1784. The first professor of law, George Wythe, was appointed at William and Mary in 1779.
Stevens, supra, note 6, 3-4.
10Baker, supra, note 7, 55-8 argues convincingly that the Benchers of the Law Society were
consciously seeking to build a local elite with an appropriate outlook. Stevens, supra, note 6,
3-7, argues that the status of lawyers in general was enhanced in the antebellum period and
that the educational ambitions of the better law schools reflected a desire to provide a broad
liberal education which would be appropriate for such an elite.
IIStevens, supra, note 6, 7-10. It must be noted that Stevens is wary of drawing any general
conclusions with respect to the impact of Jacksonian Democracy on the legal profession. For
example, he notes that geographic factors such as the Frontier played a role and that in im-
portant centers, such as Boston, leading lawyers retained their powerful positions and prestige.
REVUE DE DROIT DE McGILL
[Vol. 29
continuity of its institutional arrangements.’ 2 Although there were com-
plaints when barriers to entry to the bar were raised in the 1850’s,’ 3 the
control of the Law Society was not diminished. The politics of legal edu-
cation in nineteenth-century Ontario were dominated by regional tensions,
not populist ferment.’ 4
Stevens links the revival of institutionalized legal education in the 1850’s
with a booming demand for legal services and the economic and social
restructuring of the country. As American industry developed and business
firms expanded, they required more specialized services which came to be
provided by a new type of law firm catering to these corporate needs. Further,
the members of a growing middle-class saw occupational professionalization
as a means of creating a more structured environment in which to realize
their aspirations of upward mobility. 15 Both of these concerns created an
environment favourable to the raising of standards for entry into the practice
of law, and one way to raise standards was to require that new entrants
successfully complete a university course of legal studies. But this was not
the only way of raising standards, and institutionalized legal education could
take on many forms other than university-affiliated law schools. The fact
that even by 1922 not one state required attendance at a law school for
admission to the bar 6 attests to the difficulties that were encountered in
the movement to entrench such institutional training requirements. Formal
apprenticeship and bar examinations remained the most common instru-
ments for tightening admission to the bar. Ironically, the raising of entry
requirements did create a demand for more formal training which law schools
rushed to meet, despite the absence of a law school attendance requirement
for admission to the bar. Further, attendance at law school enhanced one’s
professional status and provided a pathway for entry into the upper echelons
of an increasingly stratified profession.
Stevens traces the resurgence of academic law school training to the
Langdellian revolution at Harvard in the last three decades of the nineteenth
century. By emphasizing that the law was not a hodge-podge of procedures
and ad hoc precedents, but rather a set of “scientific” principles which could
be discovered from the study of cases, Landgell provided a conceptual
framework upon which the academic study of law could be based. It was
this characterization of the law as a science that supported the claim that
its study was an intellectual endeavour appropriate for university education 17
12Baker, supra., note 7, 52-5.
W31bid., 57.
141bid.
‘5 Stevens, supra, note 6, 20-3.
W61bid., 172.
IIbid., 36-9.
19841
BOOK REVIEWS
and led to the creation of a new division in the legal profession between
practitioners and academics. If law was to be taught as a scientific system
of principles, it would best be done by those who were engaged full-time in
its study rather than by practitioners who were only expert in using the law.
The paradigm of the law as scientific also lent support to the legal elite’s
characterization of law as an intellectual profession, which in turn provided
a respectable justification for the demand that entry requirements be stiff-
ened in order to upgrade its members.
However, at the same time that academic law schools were reviving,
full and part-time proprietary law schools were also flourishing as increasing
number of students from minority, immigrant and lower socio-economic
backgrounds sought entry into the legal profession as an avenue for upward
mobility. This was an unwelcomed development for the academic law schools
and elite corporate law firms who recruited from them. The proprietary
schools were viewed by the academic law schools as unwanted competition
which they sought to eliminate.’ 8 As for the legal elite, Stevens explains
their opposition to these schools as motivated by genuine concerns about
the quality of professional services offered to the public, a desire to control
competition by restricting entry, and last, but certainly not least, prejudice
against Jews, blacks and immigrants.’ 9 Notwithstanding the confluence of
interest between academic law schools and elite lawyers, their initial at-
tempts to control the market for legal education by raising standards met
with little success. Not only did they experience difficulty in co-ordinating
their efforts, they also lacked the support of politically influential local and
state bar associations which tended to be dominated by solo practitioners,
who, at least prior to the Depression, were less concerned with restricting
access. 20
Although both the American Bar Association (ABA) and the Associa-
tion of Americal Law Schools (AALS) continuously raised their standards
for accreditation of law schools from the 1920’s onwards, they were unable
to eliminate the competition. The turning point came with the Depression,
which generated greater concern with “overcrowding” at the local, non-elite
level of the profession. The raising of educational requirements was con-
sidered an appropriate way of restricting entry, and states increasingly re-
quired law school training at ABA-approved schools. The result was predictable.
Full and part-time proprietary schools declined and access to legal education
and entry into the legal profession increasingly moved out of the reach of
181bid., 98.
191bid., 99-103.
2 Ibid., 96-8, 176-8.
McGILL LAW JOURNAL
[Vol. 29
minorities.21 In the post-World War II era, the ABA-accredited schools con-
solidated their virtual monopoly over university affiliated legal education.
An undergraduate degree followed by a three-year law degree from an ac-
credited school became the normal educational requirement for admission
to the bar.
Legal education in Ontario developed along quite different lines and
in response to very different pressures. The Law Society retained a contin-
uous monopoly until the middle of the twentieth century over all aspects
of legal education, including formal institutional training which was con-
ducted under its auspices in its own law school, Osgoode Hall. 22 Early efforts
to establish university-affiliated law schools were motivated by regional forces
favouring decentralization and by pressures from the fledgling universities
rather than a desire to further restrict entry into the profession. 23 Although
it has been argued that access to the legal profession was relatively open in
Ontario prior to 1850,24 compared to the United States during the same
period, access was far more restricted; and because of the Law Society’s
monopoly, further restrictions could more easily be imposed directly by the
Law Society by raising admissions requirements to its own programs rather
than by delegating educational responsibility to universities. To the extent
that there were forces opposed to elitism and restricted access, they were
not able to generate enough of a critical mass to attract the politics of legal
education to revolve around their concerns.
Indeed, when the Law Society ultimately relinquished its control of
legal education to the universities, it was not done as an attempt to restrict
access. The initial break occurred as the result of an internal dispute at the
Law Society’s own school between the full-time faculty and the profession
over the control and direction of legal education which led to the estab-
lishment of a rival faculty of law at the University of Toronto.25 Even more
significantly, however, the decision of the Law Society to recognize univer-
sity legal studies in 1957 and subsequently to negotiate the affiliation of its
own law school, Osgoode Hall, with York University in 1968 were, to a
great extent, motivated by the recognition that they no longer possessed the
capacity to accommodate the rising number of students seeking entry into
a legal profession which was rapidly growing after World War II.26 Thus,
21Ibid., 195.
22For a history of the establishment of Osgoode Hall Law School by the Law Society, see
Baker, supra, note 7, 91-112; Bucknall, supra, note 8, 140-9.
23See Baker, ibid., 52, 106-9.
241bid., 57.
25See Bucknall, supra, note 8, 207-21.
26For brief accounts of this process see Bucknall, supra, note 8, 226-9; Law and Learning,
supra, note 1, 12-5; and Arthurs, The Affiliation of Osgoode Hall Law School with York Uni-
versity (1967) 17 U. of T.L.J. 194, 197.
1984]
CHRONIQUE BIBLIOGRAPHIQUE
the modern American university-affiliated law school influenced the de-
velopment of legal education in Canada only insofar as it provided an
attractive model to law teachers who chaffed under direct professional con-
trol, and to a profession that felt overwhelmed by the influx of students.27
However, as we shall see, this American heritage had embedded in it the
seeds of the present discontent with legal education.
This brings us to the second theme of Stevens’ book, the internal life
of the law school and the professional identity of the full-time law teacher.
Both of these concerns will be of particular interest to Canadians, in light
of the recent publication of Law and Learning, a critical study of the present
state of legal education and research in Canada. 28 Both Stevens and the
authors of Law and Learning identify a dialectical tension in university-
affiliated legal education between professional training, which emphasizes
doctrine and lawyering skills, and academic study, which examines the in-
tellectual foundations and social functions of law. Apparently, this tension
was present even in the earliest attempts in the United States to teach law
in college affiliated schools. Steven notes:
The truth, however, is that the overall efforts by the colleges to develop law
as a scholarly study were not a success. … In a very real sense the dichotomy
between the teaching of law as a liberal and liberating study and the teaching
of law as a technical and professional study was already established. 29
Of course, so long as legal education remained predominantly outside
a university environment, as it did in the United States throughout the
nineteenth century and a good deal of the twentieth, and in Ontario until
the 1950’s, professional training was the dominant goal. Yet for those who
taught in university-affiliated law schools and for those who advocated man-
datory attendance at such schools, their legitimacy, in part, depended on
their ability to establish the appropriateness of legal education for university
study.
27Although the number of law students has increased rapidly at Canadian law faculties from
2896 in 1962-63 to over 9000 in 1980-81 (see Law and Learning, supra, note 1, 25-9), the
question of whether, from a socio-economic point of view, access has been broadened, remains
unanswered. A study of the entering class at Osgoode Hall Law School for the 1971-72 year
revealed that the mean income of the families of entering law students was $14,350 at a time
when the mean for the entire population was between $5,500 and $6,500. Indeed, one out of
four students came from families that earned over $25,000. See M. Levy, Attitudes of the Most
Likely To Succeed (1972) [unpublished, on file in Osgoode Hall Law School Library]. More
empirical research needs to be done before firm conclusions can be drawn, but the overall
impression is that entry to legal profession is still largely a middle and upper-middle class
privilege.
28Law and Learning, supra, note 1.
29Stevens, supra, note 6, 5.
REVUE DE DROIT DE McGILL
[Vol. 29
One of the reasons for the success of Langdell’s innovations at Harvard,
both with respect to the paradigm of law as science and the case method
of study, was their ability to overcome the tensions between the academic
and professional approaches to the study of law, if only temporarily. Not
only did the image of law as a scientific system of principles enhance the
status of the profession and help justify restrictions on entry, it also enhanced
the status of the law teacher, who could claim a respected place in the
university “community of scholars”. The intellectual task of retrieving or
discovering doctrinal purity out of the swamp of all reported cases provided
a valuable service to the profession as did the educational technique of
socratic dialogue through which students learned substantive law as well as
the skill of “thinking like a lawyer”. The achievement of a harmonious
reconciliation of professional and academic aspirations in university legal
studies in the last decades of the nineteenth century was further facilitated
by the movement of universities away from classic liberal education towards
more practical training which would prepare students to pursue careers in
an increasingly specialized industrial society.30
When the Langdellian paradigm of law began to crack in the early part
of the twentieth century, the potential conflicts between the scholarly and
the professional focus of legal education re-surfaced. The Realist Movement
challenged the belief that the common law was formally rational and socially
and politically neutral. If law was to be understood as a social institution,
a broader perspective was required which would borrow insights and tech-
niques of analysis from the social sciences, history and economics. An ed-
ucational curriculum designed to achieve these scholarly objectives would
look substantially different from the traditional curriculum emphasizing
professional training. Indeed, the differences between the two were so great
that an effort to implement such a program at the law school of Columbia
University in the 1920’s split the faculty and culminated in the departure
of those pressing for the non-professional study of law. 3′
Despite the disillusionment at the failure of Legal Realism to achieve
many of its curricular objectives, and the fact that the focus of legal edu-
cation in most schools remained largely professional, the heritage of Legal
Realism did leave an imprint on law teachers and the law schools. For many
law teachers with scholarly aspirations there was a permanent loss of faith
in the legitimacy of pure doctrinal analysis as an academic endeavour. The
alternatives may have been undeveloped and uncertain in promise, but the
kind of knowledge they were committed to seeking was no longer easily
reconciled with the perceived requirements of professional training. For
301lid., 51.
31jbid., 134-9.
1984]
BOOK REVIEWS
even those committed to professional training, it was becoming increasingly
unclear just what that training entailed. While there was a theoretical unity
of interest among members of the bar, there were in fact a diversity of career
patterns ranging from real estate conveyancing to policy advisor to the
government. Law students themselves were unlikely to know at the outset
which career they wished to pursue and whether they would have the op-
portunity to do so given the realities of the market. Should the focus be on
substantive law, legal process, policy analysis, advocacy skills or “non-ad-
versarial lawyering tasks?” 32 In the absence of a unifying model of legal
knowledge either within the scholarly approach or within the professional
approach, let alone between them, the law curriculum became increasingly
fragmented as lectures, seminars, “Law and…. ” courses and clinical legal
education3 3 were introduced first in the elite schools, and then spread to
the less prestigious.
In sum, Stevens describes the heritage of university legal education as
“one of the inherent confficts between the professional and the scholarly”. 34
The goal of lawyer-training is a practical one, the production of competent
practictioners. Yet, the institutional arrangements for such training are as
much a function of social, economic and political forces as they are of
educational concerns. The imposition of a requirement that lawyers obtain
a three year law degree from an accredited school forced professional training
into an academic environment in which the faculty is recruited largely on
the basis of their scholarly potential rather than their ability to teach profes-
sional skills, however defined. Although various compromises have been
struck at different times and in different places, teachers and students remain
unsatisfied, caught in the web of their own history and unable to achieve
structural reform.
Despite the markedly different path of the historical development of
legal education in Canada, it seems we have arrived at the same destination,
not only in terms of institutional arrangements, but also in regards to struc-
tural tensions between professional and scholarly aspirations in the uni-
versity law school. This is the conclusion reached by Law and Learning:
The basic problem of legal education is that it espouses a broad range of goals
and has opted for no specific structure to achieve any of them. As a result,
professional formation – undoubtedly the primary objective of Canadian law
schools –
is neither effectively professional nor as broad and humane as it
32Pickard,supra, note 2, 280.
33For an interesting discussion of how the debates over curricular reform reflect more fun-
damental and unresolved theoretical debates, see Macdonald, LegalEducation on the Threshold
of the 1980’s: Whatever Happened to the great ideas of the 60’s (1979) 44 Sask. L. Rev. 39.
34Stevens supra, note 6, 266.
McGILL LAW JOURNAL
[Vol. 29
aspires to be. Scholarly or intellectual legal study is diluted and marginalized
by the predominance of professional concerns. 35
The major recommendation of the Report is that instead of the eclectic
curriculums now in place, a variety of distinctive alternatives should be
developed, including a clearly defined scholarly program.3 6 In the authors’
view, only by creating a separate and distinct institutional space for non-
professional scholarly activity will it be possible to escape the pervasiveness
of professional demands which have continuously distorted or diverted the
research agenda of faculty members with more academic inclinations.
This not the place to comment on these recommendations in any de-
tail.37 However, it is worth considering some of the historical lessons that
might be gleaned from Stevens’ analysis of Americal law schools. First,
earlier attempts by the Realists to develop non-professional legal studies
either in law schools or as autonomous institutes largely failed, although as
noted previously, they did leave a permanent imprint on the standard cur-
riculum. This is not to suggest that history is bound to repeat itself, but
only that caution is appropriate. To what extent can that failure be attributed
to the inability to develop appropriate institutional arrangements in which
empirical research could be conducted? Were the social sciences that the
realists were rushing to embrace too undeveloped to be of much help, and
if so, how much has the situation improved?38
Second, since the Law Society gave up control of law school training,
it has been content to give university law schools great leeway in the de-
velopment of their curriculum. However, it is not certain that a defined
non-professional course of studies leading to an LL.B. degree would, or for
that matter, ought to be recognized as qualifying an individual to enter the
Bar Admission program. Of course, it may be that the profession does not
really care what actually goes on in law schools, but is now only interested
in the enhanced status and barrier to entry that a three year program of
graduate legal studies provides. But the case for giving the same degree to
a person who has been trained as a legal historian or sociologist and to a
person who has studied traditional doctrine, legal process, taken some law-
yering skills course and had a little bit of history and policy analysis thrown
in to spice things up, is not at all clear. If non-professional legal studies
35Supra, note 1, 153.
361bid., 155.
37For two generally favourable reviews, see Slayton, (1983) 33 U.T.L.J. and Johnston, (1983)
28 McGill L.J. 1034. Also see Weisberg, The Relation ofLawandLearningtoLaw andLearning
(1983) 29 McGill L.J. 155 for a critique of the Report’s definition, classification and assessment
of legal scholarship in Canada.
38Some of these questions are explored by Schlegel, American Legal Realism and Empirical
Social Science: From the Yale Experience (1980) 28 Buff. L.Rev. 195.
1984]
CHRONIQUE BIBLIOGRAPHIQUE
mean just that, then perhaps the institutional severance should be made
clearly.
Of course, there are strategic reasons both for keeping non-professional
studies within the law school and for continuing to award an LL.B. degree
to its graduates. Students who are uncertain of their career plans or possi-
bilities would not be forced to make an early commitment and therefore
might be more inclined to choose the scholarly option as the more interesting
way of satisfying the three year degree requirement. However, more im-
portant than recruiting students, sheltering non-professional studies within
the confines of a professional school increases the possibility that the pro-
gram will receive funding. In an environment where investment in higher
education must be justified in terms of its economic rate-of-return, a pro-
gram that seeks to constitute itself as an island of critical thought which
challenges prevailing views about law and social policy is unlikely to be
given a very high priority by authorities responsible for funding. Com-
menting on developments in Ontario universities in the past twenty years,
Axelrod has noted:
Higher education was valued not for its ideals but primarly for its products-
skilled professionals who would contribute to economic prosperity. So long as
they seemed to be fulfilling this function, universities remained an important
social priority. But once they produced surplus manpower, redundant pro-
grams, and a burdensome addition to the public debt, they no longer appeared
to be such profitable investments. 39
Thus even in designing institutional arrangements for non-professional legal
studies, professional, economic and political considerations are still influential.
In sum, for those who are interested in attempting serious structural
reform of legal education it is important to remember the central theme of
Stevens’ book: pedagogic concerns alone have not shaped the development
of legal education in the past, and are unlikely to do so in the future.
39p. Axelrod, Scholars and Dollars: Politics, Economics, and the Universities of Ontario, 1945-
1980 (1980) 4.
