Wednesday, February 19, 2014

Teaching [American Lawyering History] While Canadian

One of the most intriguing aspects of guest blogging (or perhaps blogging, period) is that sooner or later the enterprise requires you to look in the mirror - to take explicit stock of what you're choosing to say to your readers, and why *you* are saying it. This is more than just cathartic for the blogger. If publicly articulated, it's also a useful exercise in transparency for readers who haven't thought much about where the blogger is coming from (maybe literally) and how their experience or background shapes their interests, perspectives and arguments. My predecessor LHB guest blogger Susan Carle did something of this sort back in December when she offered some very sensitive and revealing reflections on writing about the African American experience while being a white scholar. In this post, I'm going to follow in her footsteps, while taking a somewhat different path.

I'm a Canadian immigrant living in the US. Some of you may have concluded this from reading Dan Ernst's introduction of me a couple of weeks ago, but it bears repeating because I think it affects what I think and what I say, especially as I begin to turn my attention in these guest posts to the history of American lawyering and lawyers. Now of course nationality is not destiny, and certainly not everything of mine that you have been or will be reading on this blog is driven or informed by my national origin and/or residency status, but ultimately I do think those things are relevant. Because of who I am, I'm unlike many of my fellow laborers (labourers?) in this particular vineyard of legal history. Not being American, I'm an outsider looking in.

This is part of what Susan talked about in her own context. American lawyers are not any kind of vulnerable group facing debilitating discrimination, but yet I sometimes share Susan's sense of awkwardness in dealing with my own subjects of study. Being a foreign lawyer who's lived in the US for the past 25 years I can relate, but I still do not and cannot identify. There are parts of the American lawyering experience (such as those informed by extreme views of exceptionalism, constitutionalism and/or originalism) that I just don't get, and probably never will. I will always struggle with those as I try to explain them and understand their lawyerly champions and proponents. Race too (at least in the African-American context) challenges me as an area of examination in American lawyering history because, while it's hardly been irrelevant in Canada, it simply has not been as fundamental to the shaping of the Canadian experience or mentality. I will always consider myself at a disadvantage when trying to appreciate the historical plight of African-American lawyers and their struggles to liberate their brothers and sisters from legal and social oppression in this country (much of it, of course, orchestrated by white American lawyers).

At the same time, I think being a Canadian immigrant constitutes a strength that draws me to topics and situations that are often ignored in the standard historiography of American lawyering, such as that is. Reflecting the relatively high profile of indigenous "First Nations" peoples in Canada, I'm naturally drawn to the meager but still remarkable historical record of indigenous lawyering in the United States, both before and after the Trail of Tears. I'm interested in white lawyer in-migrations (from Europe and Canada) and out-migrations (to Canada, Europe, and even Central and South America) that to this point have been underplayed or not considered as interconnected events. As a cultural and perhaps even biological heir of the Loyalists, I'm particularly interested in American lawyers from the 18th century through the 20th who experienced war, loss, and exile north of the border and elsewhere. As an expatriate of a nation whose people still like to think of themselves as peacekeepers, I'm fascinated by the longstanding militarism of American lawyers both at home and abroad. As someone who came into the American "melting pot" from the Canadian "mosaic" I'm intrigued by the ongoing but underemphasized implications of ethnicity in American lawyering, and how the ethnic background of white American lawyers (English, German, Irish, Canadian, Italian, Russian, Jewish etc.) shaped their concerns, attitudes and initiatives over time. Coming from a (Con)federation of powerful provinces, I'm struck by the deep historical regionalism of American lawyering that in my view transcends in both significance and subtlety the North-South and/or East-West divides we tend to limit ourselves to today. Being a citizen of a county whose political spectrum (even now) is left-shifted as compared to the contemporary United States, I'm impressed by the many "lost" American lawyers who campaigned tirelessly for labor and working people in the late nineteenth and early twentieth centuries but whose efforts and contributions were largely erased from remembered American legal history after the 1920s and, even moreso, the 1950s. Finally, coming from a national legal educational system that was never as dependent on one law school and one instructional model, I've been almost relieved to recover in the dusty and literally disintegrating records of the forgotten US correspondence law schools (circa roughly 1890-1925) a legal pedagogical counterculture that was, to put it bluntly, far more visionary (not to mention profoundly democratic) than anything Christopher Columbus Langdell ever came up with at Harvard Law School.

Here, then, are potential topics for more posts over the next 10 days or so as I enter my guest blogging home stretch. In writing them, I hope I'll bring to the table (and this blog) the benefits of a different national perspective on the history of American lawyering and lawyers. My intent is not to "singe the king of Spain's beard" (or Uncle Sam's, for that matter), but rather to fill in some historiographical gaps. It's the same intent I bring into my classroom when I talk to my American law students. If I'm lucky, "teaching while Canadian" will turn out to be a help, not a handicap!

1 comment:

Michel Morin said...

I enjoyed very much reading this blog, but I find it revealing that there is no mention of bilingualism and bijuralism and nothing about the role of these two phenomena in shaping Canada's legal cultures. Admittedly, how this may affect our understanding of U.S. legal cultures is not obvious. Conciously or not, however, this gives the impression that, in Canada, most people who take linguistic rights and the specificity of the civil law seriously come from a minority. I hasten to add that in my opinion, the francophone majority in Quebec is often oblivious to bilingualism and anglophone civil law scholarship, just as the anglophone majority in Canada is often oblivious to bilingualism and francophone common law scholarhip. Take the Constitution Act, 1982 and Federal Legislation: both lingusitic versions are official, which means that, if worse comes to worse, the legal norm is expressed in two divergent or even contradictory ways. But the Canadian Bar Association feels confident that a unilingual anglophone justice of the Supreme Court of Canada has the requisite qualifications to interpret federal legislation, however incompetent he\she may be in French, whereas the Quebec Section of the same association disagree with such a position (if memory serves me well). All this to say that linguistic minorities, and the civil law tradition, are often a blind spot of Canadian Legal Scholarship (many works on "Canadian law" skip over Quebec's private law od the legal literature in French).

Here are some questions that these concerns bring to mind in the U.S. context: has there ever been any linguistic rights issues? Did the Civil Law play a more important role there than in England (see the literature on Story, Kent, the codificaiton debate, State rules derived from former Spanish colonies)? How did the U.S. react to attempted secessions abroad after the War of Secession? (The Supreme Court of Canada has clarified the conditions for secession in Reference re Secession of Quebec, [1998] 2 S.C.R. 217)?

Michel Morin, Droit, Université de Montréal