By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]

Twitter: @cforcese


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Bleaching Law

Welcome to my blog on teaching law.  I have entitled it "bleaching law". This is an obvious contraction of "blog" and "teaching".  It is also a play  on words capturing the endless struggle of a law professor to convey as neat, tidy, proper and well-starched things that are emphatically not, like the standard of review in administrative law.  All opinions are my own and do not reflect on anyone else who I work with, for or around. 


Thinking about Teaching Law in a Cdn Law School (Common Law): Read This

(Revised Thurs July 10, 2014)

I am in the midst of a massive data collection and crunching process, in support of an article I am writing on public engagement by law profs in Canadian common law schools (that is, LLB and JD granting schools).  To this end, I have collected demographic and career data from the public web profiles on the people listed on the websites of these law schools as Assistant, Associate or Full professors (and occasionally emeritus). 

The results are fascinating, especially on some of the gender issues.  I am writing up the article now.  But as a teaser, here are provisional data on the education of Canada's common law professors.  Table 1 below shows the top 15 institutions from which Canadian law professors obtained their highest degree (an LLM or increasingly a doctorate -- more on that in the article) and the proportion of profs who received degrees from each institution.  I had data for 572 profs (a number that includes a number of emeritus profs). Table 2 represents the top 15 institutions, at the Assistant professor level.  It reflects, in other words, more recent hiring trends.  (Here, I had data for 102 profs.)

Table 1: Highest Degree By Institution, All Profs

Toronto 12.8%
Harvard 11.0%
Osgoode/York 9.4%
Oxford 8.2%
Columbia 6.6%
Yale 5.4%
Cambridge 4.9%
UBC 4.2%
McGill 3.8%
Dal 3.3%
London 3.0%
Queens 1.7%
NYU 1.7%
Michigan 1.4%
Berkeley 1.4%


Table 2: Highest Degree by Institution, Assistant Profs

Toronto 13.7%
Osgoode/York 13.7%
Harvard 12.7%
McGill 9.8%
Columbia 5.9%
UBC 4.9%
Dal 4.9%
Oxford 3.9%
Yale 3.9%
Ottawa 3.9%
Cambridge 2.9%
Sask 2.0%
Chicago 2.0%
Sydney 2.0%
Montreal 2.0%


These top 15 schools account for 79% of all of the highest degrees of all profs, and 88% of all of the highest degrees of Assistant Profs. 

These data suggest that UK schools have lost ground relative to Canadian schools, while US schools continue to figure prominently (although perhaps not as prominently).  In fact, a more general analysis confirms this inference.  Table 3 shows the region in which Canada's common law professors earned their highest degree. 

Table 3: Region Where Canadian Common Law Profs Earned their Highest Degree

All Profs Assistant Profs
Canada 42.0% 55.9%
US 34.3% 31.4%
UK 17.7% 8.8%
Aus/NZ 3.0% 2.0%
Eur 3.0% 2.0%


Canadian origin higher degrees have swelled among Assistant professors.  These data are heartening to those of us labouring in Canadian law schools to produce competitive graduate students .  We may be overcoming the "neocolonialism" of academic hiring -- the bias in favour of foreign credentials.

Special credit goes to Toronto, Osgoode and McGill for their success in producing graduate degree holders securing positions in Canadian law faculties.


Government Lawyers, Law Professors and Watchdogs: Thoughts on public engagement

I am in the midst of a largely empirical academic article measuring "public engagement" by law professors in Canada.  (And for that reason, I was very interested to read Paul Daly's excellent thoughts on this same topic.)

Along the way, I have been pondering not just "how much public engagement" but also "what sort" and the broader normative question of "whether and why" public engagement. 

Meanwhile, events have unfolded in the appointment of a career Justice Department lawyer to the privacy commissioner post.  There, there has been criticism of his perceived lack of independence and potential conflicts between his role as commissioner and the files he may have handled while in government.  See here for a discussion of some of the legal issues around appointment.  As best I know (after reading the reporting from the parliamentary committee hearing), this is as far as most of the critiques have gone -- circumstantial inferences drawn from a curriculum vitae, from perception and from maxims such as the appearance of independence.  (I would hasten to add that at least some critiques focus on degree of expertise in privacy law -- that is entirely a different matter and central to any discussion.)

This has led me to juxtapose what I am learning about law professor public engagement with the sorts of issues that lawyers in government (and also private) practice encounter daily.  For the very little it is worth, I thought the time ripe to articulate some of these impressions.

On Law Professors and Public Engagement

As an academic, I enjoy "academic freedom".  This is a contractual right found in Article 9 of the collective agreement of which I am part.  That provision guarantees that neither the university nor the union will infringe or abridge my "academic freedom", defined as follow:

Academic freedom is the right of reasonable exercise of civil liberties and responsibilities in an academic setting. As such it protects each member's freedom to disseminate her opinions both inside and outside the classroom, to practice her profession as teacher and scholar, librarian, or counsellor, to carry out such scholarly and teaching activities as she believes will contribute to and disseminate knowledge, and to express and disseminate the results of her scholarly activities in a reasonable manner, to select, acquire, disseminate and use documents in the exercise of her professional responsibilities, without interference from the employer, its agents, or any outside bodies. All the above-mentioned activities are to be conducted with due and proper regard for the academic freedom of others and without contravening the provisions of this agreement. Academic freedom does not require neutrality on the part of the member, but rather makes commitment possible. However, academic freedom does not confer legal immunity, nor does it diminish the obligations of members to meet their duties and responsibilities


The last few statements are important.  Academic freedom is not the right to be incompetent or lazy or inept or refuse to do my duties.  Nor is it some sort of quasi-constitutional, public law norm that elevates me above the law governing other persons.  Rather, it is an understanding between me and my employer that allows me to pursue scholarly and teaching activities without fear of employment-related retaliation.

For many law professors, public engagement -- which I believe done properly falls into the "disseminate knowledge" component of academic freedom -- may mean taking positions on the chief legal controversies of the day.  In so taking these positions, a law professor deploys (essentially state-funded) expertise to deepen understanding and provide (sometimes missing) context or countervailing positions. 

Most other actors in any given debate are encumbered by restraints on what they can or will say.  Law professors are not, and that very fact is at least one decent reason why they should exist.  (Another decent reason is that I like my job).  The positions taken and opinions voiced by a law professor are her or his own, ideally arrived at through academic study and analysis and supported by fact and credible inference.  In other words, they should ideally be the product of marshalled expertise and not instead a lay opinion shellacked with expert credentials. (If they are the latter, then they should be in the letter-to-the-editor section of the paper, not in the newsreporting or even the op-ed section). 

In sum, academic freedom means that these expert views are not dictated by others.  In the result, a law professor need only follow her or his conscience, and answers to no one for it.

(In recent practice, this has sometimes led academics to be tarred as "partisan" or "enemies" by the political class.  In some cases, there may even be truth to a few of these accusations.  But partisans often seem to imagine that criticism is motivated by allegiances, and not by reason.  In my case, I can only claim this: if I oppose a government position it is because of the substance of the position, not its author.  And if I have political preferences, it is because of amalgam of substantive positions, not because of the brand.  Put another way, support is earned on the merits, not bestowed because of the colour of the campaign sign.  I'm pretty sure that's how democracy works best.)

On Lawyers in Practice and the Client

I have also been a practising lawyer, albeit for a short period of time before embarking on a career as an academic.  As a practising lawyer, my behaviour is governed by the rules of professional conduct in the three jurisdictions in which I am a member of the bar.  I am expected -- obliged -- to act in the best interests of my client.  For example, Rule 4 of the Ontario code reads: "[w]hen acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect." 

As anyone who has had a foot in these two domains knows, this is a very different universe from the one that I inhabit as a law professor.  It is possible to follow one's conscience, but to a much lesser degree.  As Rule 4 suggests, there are outer limits to what I can and should do for a client.  And in private practice, I am free to choose which clients I am prepared to represent (at least in principle.  In practice, economic reality or the hierarchy in a large firm may choose clients for you).  But the range of liberty is much constrained relative to the world of a law professor.

This is true for a government lawyer as well.  The Ontario rules (R. 6.05) impose as high a standard of conduct on lawyers in public office -- elected or appointed -- as on any other practising lawyer.  My colleague Adam Dodek has authored an insightful article on government lawyering the rule of law in which he argues persuasively that government lawyers are on a different footing that private sector lawyers and have public interest obligations that pull in a direction different from their private sector counterparts.  But nevertheless, the freedom of action for a government lawyer is still much smaller than that of a law professor (and indeed has probably become smaller in the present climate at the federal level).

Academics v Lawyers

All of this is to say that when I write an article or opine on an issue, it represents my views on the matter, as they exist at that moment.  Those views may change and evolve -- they often do.  Indeed, "academic freedom" to me means that I must be open to changing my views -- freedom means intellectual nimbleness, not dogma.  (Like everyone else, I don't like being wrong.  But I figure that I'm doing well if I aspire to Teddy Roosevelt's effort to be right at least 75% of the time.)

All this is different from the world of private practice.  When I'm practising law as an advocate, I am advancing the full range of (ethical) arguments open to me in representing the interests of my client.  As a law professor that occasionally chooses to work on pro bono cases, there is not usually a large gap between where my current understanding of capital "T" "Truth" lies, and where my professional responsibilities take me.   As a lawyer briefly in private practice, this same philosophy might have informed how I offered advice and coloured my attitudes and interpretations.  I never had to deny my core values.  But this was never about wandering the earth following my conscience: I took instruction and served my client to the best of my abilities, within the range of my professional obligations and the law.  If a lawyer is not prepared to do that, then the exit is mostly (although not exclusively) at the front end: don't take on the client (or become a law professor).  Anything else, and the system crumbles.

The Fallacy of Judging a Lawyer by Her or His Brief

The juxtaposition between lawyer and academic has occasionally been made stark to me.  I have been known to speak at government events, and at those events, I feel inclined to exercise my academic freedom in criticising government positions or policies that so warrant.  I try to do so fairly and with balance (with mixed success, some observers might say).  But to leave the bull in the china shop unaddressed defeats the utility of my presence.  I see little virtue to love-ins.  (I would add that when speaking at events at which there is no government representation, I do often try earnestly to communicate my best understanding of government perspectives.  This assumes there is a government position -- I grow weary of trying to imagine never articulated justifications for certain policies and acts.)

At one government event in which I apologized in advance and then proceeded to do the gad fly thing, I was admonished by a senior (and justifiably, much admired) government counsel that I must distinguish between those who issue instructions and those who execute them.  He was right to do so.  Certainly, how and what a lawyer advises matter, as does the manner in which the lawyer executes the instructions. But nevertheless, the point is well taken.

And so this brings me full circle to the initial observation about government lawyers appointed to watchdog roles.  If they have served their government client with distinction (and within the bounds of ethical and legal responsibilities) then that is surely not a mark against them.  This is true even if they were the face on a legal matter with which I disagreed.  In sum: I am interested in who they are and will be, and not what they have been (except in so far as it relates to subject matter expertise or tangible evidence of improper conduct).  I do not believe it proper for me to judge otherwise professional conduct against the standards of unalloyed academic freedom that I enjoy.  (I hope in my public commentary I never have. I certainly have actively resisted efforts to do so in the past but I am not perfect).

Nor, as an empirical matter, am I at all persuaded that once a government lawyer, always a government fifth column.  I can name a few former government lawyers who, once free to follow their own conscience as academics, judges or watchdogs, exercised that freedom to much greater effect than I ever have.  And so I will judge by what happens in the future, and not doubt someone for their past professionalism.


Summer Opportunity for uOttawa JD students: Public Interest Litigation Practicum

Lorne Waldman and I are beginning the next cycle of our Public Interest Litigation Practicum at uOttawa Common Law.  We are looking for two JD students entering their third year at uOttawa to work on aspects of the appeal to the Supreme Court of Canada in J.P., G.J. v. Minister of Public Safety and Emergency Preparedness.  The Court gave leave to appeal in late April, and work in preparation for the appeal will begin this summer.  We are interested in having two students involved in the entire appeal process, starting in the summer and continuing into the Fall.  The emphasis of the Public Interest Practicum is to allow students hands on experience with a "live" case, in real time.  Academic credit would be for Fall term, in the form of a directed research course.  There is no need for students to be in Ottawa for the summer.

Students interested being considered for this opportunity should email with a copy of their curriculum vitae and law school grades (unofficial version is sufficient).  (No hardcopies please.)  The expectation is that students will perform to an A level or higher, as work below this level will be of limited use.  We are looking for students who are willing and able to make this kind of effort.  Given the subject matter, the successful applicants will also be students with a record of achievement and interest in Administrative Law and/or Immigration and Refugee Law.  Students will be operating (and writing) in English.

Applications should be submitted by May 30.



Jerry Seinfield and Scholarly Productivity

As any academic will tell you, "finding time to write" is one the great existential crises of the modern era.  Whatever the traditional time allocation of 40%/40%/20% (teaching, scholarship, service to the academic and broader community) might dictate, the middle 40% feels the squeeze.  The explanation is simple: if you don't prep your courses, you risk serious embarrassment.  It's pretty easy to over-invest in an area where you run the risk of being reduced to a deer caught in the headlights.  As for service to the community, well, not everyone comes close to 20%, but if you do dip your toe into really pulling the oars on administering an academic unit, there is never enough time.

So if you're like me, you're always looking for ways to squeeze in scholarship.  And if you're like me, you vacillate between years of decent productivity, and years that I'll call, um, "fallow periods".  In an effort to forever more stave off the fallow years, I have a couple of principles I have started applying that are a tad unconventional. 

For one thing, I am fairly religious in applying a "return on investment" (ROI) analysis to my scholarly activities.  That is, how much "return" is associated with the expenditure of a given "resource", usually time but often energy.  So applying my ROI policy, I turn down a lot of conference invitations, especially those that require travel.  I think the ROI on conferences is very low.  Setting aside the agony of modern air travel, the jet lag, the inevitable head cold, the email backlog, the bad food, the interruptions in family life (a big deal when you have young kids) and a regular exercise routine, I just don't see the point of swelling my carbon footprint for, usually, a 20 min talk.  Just filling out the endless reimbursement forms for travel and organizing my receipts leaves me weary. 

Sure, the "between the sessions" conversations and catching up with colleagues is fun (and is actually what it's all about), but that's what Skype is for.  Yes, I do feel a quiver of doubt watching colleagues jet here, there and everywhere.  There is a status associated with conference invites, with the status directly related to the distance travelled.  But I've been there and done it, and airports and stuffy conference rooms are never as exotic as the cities in which they are located.  Plus, I'm anti-social anyway. 

I know that others strongly disagree with me on my anti-conference animus, but I'll commit to my opinion. (And in truth, I do go to -- and do organize -- conferences -- but I cap them and try to be really strict in looking at each from the ROI perspective.)

In comparison, on an ROI basis, my blogs are a much better investment than any conference I've attended.  Well, maybe not this one.  But my substantive blogs have sparked more opportunities, more follow up and more useful attention that any academic conference I've attended. That may mean I haven't been going to the right conferences, but I don't think so. 

But still, there remains the above-noted existential crisis.  Whether its blogs, books or articles, I still struggle to "find the time", even when my ROI philosophy is firing on all cylinders.  Binge writing is rarely possible for me -- for the last few years, I've been pulled in so many directions that the idea of setting aside a solid chunk of time for writing, and nothing but writing, hasn't often been realistic.  And when I have had the time, I find my concentration span is now approximately 15 minutes.  I get board, read the Globe and Mail website, see what's happening on Twitter, have long conversations with my dog etc.

So what to do (above and beyond pining for the next sabbatical where I will clearly miraculously reach heretofore superhuman levels of productivity)? 

This is where Jerry Seinfield meets How to Write a Lot (by Paul Silvia).  Professor Silvia observes that it's never about finding time and always about allotting time.  "The secret," he says, "is the regularity not the number of days or the number hours" (Ch 2, in the kindle version).  As the fortune cookie might say: even the largest stalagmite is formed by the cumulative effect of drops of water. 

Jerry Seinfield, for his part, is credited with the "don't break the chain" anti-procrastination tool.  To wit: Pick a task that you will do each day, and create a wall calendar.  Mark an X in the calendar for every day in which you perform the task. Explained (reportedly) Mr Seinfield: "After a few days you'll have a chain. Just keep at it and the chain will grow longer every day. You'll like seeing that chain, especially when you get a few weeks under your belt. Your only job next is to not break the chain."

Now, this being the 21st century, there is an app for that.  I chose "Good Habits" for iOS.  And as my task, I have imposed "500 words of writing every week day".  (I have also included: "15 minutes of house cleaning every day", which is a real crowd pleaser at home.  It's amazing how much you can dust in 15 minutes each day.)

Now, I'm not particular about what the writing is (although emails don't count).  Just writing.  Do the math.  A law review article might be, say 12,000 words.  At 500 words per day, that's an article every 24 working days.  Yes, I know I exaggerate -- there will be raw research days in there, and editing and re-editing.  After all, it would be nice if the article were good. But still, the drops of water add up.

So why does this work?  It works for me because I am totally obsessive about not breaking the chain.  It becomes a challenge where I am always competing against my prior personal best.  And I can never turn down a challenge.  (Disclaimer: I also enjoy ridiculous endurance sporting events.)  Really, it's a personality defect. But since the "break the chain" movement seems to have a real internet presence, it's a defect in common with a lot of people, and maybe it'll work for you!

More than that, in the Good Habits app, a little red number appears above the app icon, just as it does when there is mail in your mail app.  The number represents the tasks left to accomplish that day.  Personally, I can't stand letting little red numbers accumulate.  I have to clear them.  (If Pavlov didn't have his dog, he could have studied me).

So to summarize: allot modest -- emphasis on modest, not heroic -- time regularly and do so in a manner that makes a "game" of meeting that daily objective, deploying every ounce of anal retentiveness to your advantage.  It'll be interesting to see how long I can keep this up.  But what's really important is that this blog entry in now 1170 words.  I wonder if I can count it as covering off two days?


"Doing it All", One Thing at a Time: Block Planning 

One of the things I do on this eccentric blog is voice conclusions about "lifehacks" and strategies that I have found useful, in the vain expectation that someone out there may also find them useful.  (Lots of people did come by to see my standing desk after my blog on that).

My topic du jour is a bit narrower and really is written with junior academic colleages in mind who are developing their time management strategies through hit and miss.  (Universities can often be institutions that provide modest assistance to junior colleagues in terms of career planning.)  My topic concerns organizing one's life as an academic, and specifically how to balance the three traditional demands of teaching, research and administrative (and service to the community) activities.

Like everyone else, I have struggled to "do it all", or at least "do it all well".  Some years I do better in one area than in others, with the areas changing from year to year.  That is life.  But my most common modus operendi has to been to spread my teaching load between our three academic terms (Fall, Jan, Winter), concentrate on admin in the interstices of these "in term" periods and try to reserve summer for research and writing.

Over the past several years as vice dean, this failed completely the first year (I was fried by summer and spent more time staring at my monitor than clacking on my keyboard and found it a lot easier just to keep the focus on admin -- which requires less real thinking). 

The second year, I paced myself better and had by then developed a "system" for vice dean work, but also concentrated on revamping my teaching (with one new course and a completely revamped teaching philosophy that prompted a redesign of another).  I also did a fair amount of conference travel in the Fall.  As a consequence, I still overclocked it, but had a better writing summer than the year before (albeit, one article short of my overall objective).

This year, I am in the midst of a new experiment, which I call "block planning".  Basically, I moved all my teaching into one term -- carrying my (vice-dean reduced load) of 3 courses between Sept and Dec.  I also was fortunate in being able to concentrate teaching days -- teaching twice in one day each week through the Fall, and once two days later. 

Meanwhile, I kept admin duties to "maintenance" as much as possible.  I also strictly adhered to a "maintenance" schedule on research and writing, confining myself to edits in anticipation of publication, mini-essays for my more substantive blogs (which serve as placeholdors for articles I intend to write) and participation in local (and only local) conferences.  And then I said no to other invitations that would take me far away, and bring me back jetlagged and with make-up classes to do.

I think the "block" strategy has worked very well so far.  Focusing on teaching meant that I could be "all in" with that pursuit, and not distracted by a million other things or consumed with existential angst about "not having time to write".  I also found that there actually is an economy of scale to teaching, even with radically different courses.  I found myself ticking along with a really focused habit of prep, teach, marking and giving constant feedback.  An emphasis of the last item: because I wasn't crowded by competing demands, I could really focus on giving feedback (something I find validating and rewarding, although I'm not sure my students would always agree). 

I don't record this kind of things, but I was probably in the range of 50-55 hour weeks on average.  But I also think I could have pared away a little more of the "mini-research" and done four courses in the semester, so long as they were concentrated into two teaching days (and I wasn't doing a course for the first time).  This block was 13 weeks out of 52, so there is still ample time to be well-rounded in the 2013-14 period.

Yes, exams and term papers remain to be marked.  But now, I can shift to a second "block" -- course planning for next academic years and other vice dean tasks.  And because I have "systems" for that, I anticipate having more time on the margins for other "service to the community" activities (peer reviews, grant application reviews etc.) and also for more sustained writing and research.  What I will not have come January is more than 100 students in my various classes whose emails I try to respond to in an expeditious manner.  I also will not have "lost days" -- teaching days tend to disappear even with a relatively short class.  I don't know why that is, actually, but between prep, teaching, questions, catching up on emails that come while you're teaching etc., the day seems to disappear.  (That is a compelling reason, in my view, to concentrate teaching days as much as possible.)

So in the next "block", I hope to achieve economies of scale and also real economies of scope. 

Come May, I shall be able to shift away from admin (because most of it will be done) to a fuller "research block".  There too I have a plan: go off the grid as much as possible and be ruthless is distinguishing between administrative wheat (that which needs to be done) and administrative chaff (activities analogous to trying to drive through the snowbank at the end of my drive after the plow comes by).

Time will tell.  But my advice so far to colleagues in similar situations who struggle to "do it all" at the same time is to instead approach the year as a unit, subdivided into blocks.  Try as much as possible to be a one-trick pony in each block and be as ruthless as you can reasonably be in guarding that objective.  Worry about "doing it all" only as an annual objective.

This may not be universal advice, but for me it has worked so far.