Conflicts of Laws – Should It Stay or Should It Go?
Cameron Hutchison and Scott Meyer
The curriculum committee is currently reviewing options pertaining to the future of Conflict of Laws 454 (“Conflicts”) as a compulsory course. This article will start off by giving a brief background of Conflicts at this institution, followed by a discussion of three options available to the curriculum committee and the faculty-at-large.
Note: Conflicts is still a course you are required to take to graduate.
Conflicts has been a required course at our law school since 1970. It was continued as a mandatory course in 1981, along with the current slate of compulsory courses, on the basis that it was: “an essential part” of a legal education; “necessary” for legal practice; “intellectually interesting”; and an “important and unique area of the law, conceptually difficult and easy to be missed in practice without prior training.” A contrary view at that time was that Conflicts should remain optional as it did not “frequently arise in practice”, a three credit course was not necessary to sensitize students to conflicts issues, and the subject was no more difficult than other courses which were not compulsory.
Historically, the rationale for the compulsory status of the course may thus be summarized as follows: (1) a belief that law students should be grounded in certain key areas of law before going into practice and this should include conflicts and (2) the challenging nature of the subject does not easily lend itself to self-learning in legal practice. To this, we might add a third justifying rationale, which has developed since that time: (3) the increasing trans-boundary or international nature of law and legal practice means that students should be required to engage in a course that has an international perspective.
At our law school, students must complete 60 units total in years two and three. Of these, students are required to take: Administrative Law, Corporations Law, Civil Procedure, Evidence, Conflicts, Professional Responsibility, Jurisprudence or Legal History. Comprised of 21 units, these seven (7) compulsory courses make up one third of the upper year curriculum. There are approximately seventy five (75) other upper year courses on offer at our law school which are not compulsory from which students can choose to fill out the other two-thirds of their course requirements.
While a majority of common law schools in Canada have compulsory courses at upper year levels, only Thompson Rivers, Manitoba, Calgary and UNB have seven or more compulsory courses (some have none, while the average is around 4 – 5 compulsory upper year courses). In the main, these courses consist of the courses that our school has deemed compulsory, with the specific exceptions of Conflicts and Jurisprudence/Legal History. In contrast to other institutions, only UNB requires Conflicts as an upper year course. At the same time, a number of schools demand one or more of the following as compulsory courses: taxation law, trusts, advocacy, dispute resolution and/or fiduciary law. In terms of International or Comparative law, only Toronto and British Columbia requires a course in one of these areas.
Three (3) possible options are available moving forward:
Option 1: Status quo
The main advantage of this option is that the study of Conflicts is difficult and can be very useful depending on the career path of a student (especially if one chooses to become a litigator). However, the same can be said of a number of other courses that are not mandated at our school, and in some cases are mandated at other schools, e.g. taxation law or advocacy. Only one of the other common law schools in Canada (UNB) makes it compulsory. Moreover, none of the reports on law school education that have been released in recent years, including the Federation of Law Societies most recent work, suggest that it should be a compulsory course. Additionally, the Law Society of Alberta’s competency profile, which outlines the necessary skills, knowledge and behaviour expected of an entry-level lawyer, fails to identify Conflicts as a required competency, which is why discussion of the subject has been omitted from CPLED’s curriculum. Thus it would appear that there is little or no objective basis, in other words, for making this a compulsory course.
Option 2: Offer Other International or Comparative Law courses as Alternatives to Conflicts (ie. Conflicts, Comparative, or International Law would be considered sufficient for fulfilling this compulsory requirement)
This option brings into tension the rationales for the course presented above. There is virtually no likelihood that a practitioner of any kind will encounter public international law issues unless they work in a specialized department of the federal government. The only rationale that seems to apply is (3). But while International or Comparative law offers an interesting perspective in an increasingly globalized work, one could make similar arguments, for example, about the increasingly pervasive role of technology in society and a need for exposure to related areas of law. Perhaps more importantly, the high number of compulsory courses already at our school means that maintaining the same number may prove more burdensome than beneficial to students. While both Toronto and UBC have a compulsory international or comparative law component to their curriculums, they have no, or relatively few, other mandatory courses.
Option 3: Conflicts as Non-Compulsory
This seems to us to be the most appealing option. The benefits of this option far outweigh any disadvantages. Students would be free to take more courses of their choosing, which might align better with their aspirations, interests and/or the areas of law they are most likely to encounter. This should also have the effect of making law school more interesting and engaging for law students. It would also remove the misguided paternalism of requiring a course that we cannot objectively or empirically justify as essential to a law school education. Importantly, the course would still be offered, though presumably fewer sections would be needed.