THE DISINGENUOUS HOWL - The Fantasy of Libel Chill

July 1, 1992,  The Idler

Canadian writers have been advertising Ontario as a welcoming forum for international figures wanting to bring a libel action. The claims they make are largely false. The two cases that have tested them, Bahamiam Premier Lyndon Pindling's action against NBC and sprinter Carl Lewis' action against Der Stern have lead to nothing. In truth Ontario libel law is perfectly unexceptional and unexceptionable. It is the whining about it that is egregious.

A mere handful of actions in the last couple of years provoked an outbreak of media concern and protest over an alleged libel chill in Canada. None of the actions had its merits passed on by a court. Protesters could not point to a politically or morally defensible publication that had proved legally indefensible. It was alleged nonetheless that libel law chills the ardour of the press for a free accounting of the conduct of public figures. No evidence of the chill was produced beyond the actions themselves. It was not defeat in court but the possibility of being sued that provoked. A group of "Writers to Reform the Libel Law", including defendants in three of the actions, produced a brief entitled A Dangerous Silence calling for major changes to the law. They wanted writers and publishers to have practical immunity from libel actions.

In the law of defamation the principles of free speech meet the rights of persons. Libel is the more important part of the law of defamation. It applies to written publications and broadcasts. Slander applies to mere talk. Defamation is any publication that causes a person, in the conventional phrase, to be held up to hatred, ridicule or contempt. The law of defamation does not protect persons' feelings but their reputations. There is no doubt that a libel can cause serious injury. Writers will not make light of the power of words.

Much of the controversy over the law of libel arises from a presumption of law that any defamatory publication is false. This presumption has lead to the protest that a defendant in a libel action is guilty until proven innocent. This is a false analogy with criminal law. It would be fairer to reverse the analogy and say that writers and publishers who want to put an onus on plaintiffs to prove that the defendant knew that a libel was false want a rule that anyone hauled before the court of public opinion by the media is guilty until proven innocent.

There is no unfair burden of proof in a libel action. The presumption that a libel is false is rebuttable. Truth is a complete defence. The burden of proof is only on the balance of probabilities, not beyond a reasonable doubt as in a criminal prosecution. That the onus is on the defendant to prove truth means only that where a jury is undecided on the evidence whether a libel is true it should find for the plaintiff on the presumption that it is false. Cases where the evidence will seem so evenly balanced and the onus matters are rare. A plaintiff who launched a libel action relying on the onus without strong evidence of his own to overcome any evidence the defence might lead would be ill advised. Conversely any writer or publisher wanting to defend a well researched article should plead truth and defend confidently. Where the presumption that a libel is false matters is in saving a plaintiff the burden of proving a negative, of disproving a libel published by a defendant who would rely on an effective presumption of truth under a law reformed to the taste of the chill lobby. What reformers want is to be able to publish with impunity libels they have no grounds for believing, so long as they neither actually know them to be false nor have some provable ulterior motive for attacking the plaintiff.

Truth is not the only defence. Apart from arguments about whether a publication refers to the plaintiff or means anything harmful, a defendant can plead fair comment on a matter of public interest. On this pleading part of an offensive publication can be defended not as true but as fair comment on facts that are true. Fair comment can be "in the most hostile spirit and in the severest terms" and may "denounce [a person] as unfit for his position for want of such qualities as wisdom, judgment, discretion or skill...".

The three defendants among the "Writers to Reform the Libel Law" were Elaine Dewar, the author of an article in Toronto Life that was the subject of an action brought by the Reichmanns and Olympia & York, Ron Graham, a passage in whose God's Dominion was the subject of an action by Conrad Black, and Heather Robertson, whose attack in Canadian Forum on Allan Gotlieb and his appointment as Chairman of the Canada Council was the subject of an action by Gotlieb against Robertson and the Ottawa Citizen, which reprinted the attack.

The suit against Robertson, implicating Canadian Forum, the traditional organ of the Canadian literary left, produced the sharpest reaction and lead directly to A Dangerous Silence which was published in the May 1991 Canadian Forum. Robertson herself did well out of the reaction. Gotlieb promptly dropped her from the suit. Far from chilling, the experience seemed to heat both Robertson and Canadian Forum, which persisted in attacking Gotlieb, adding the libel action itself as a further ground allegedly unfitting him for the Canada Council. Nor was there any reason why they should be chilled. Canadian Forum was never sued. Robertson, the author of several successful books, was perfectly capable of defending the action herself. In any event she did not have to as Southam Inc., the publisher of the Citizen, assumed the defence for both. Finally in May 1991 the Citizen published a circumspect "Editor's Note" clarifying the "intent" of its reprinting the attack and the action ended there.

A Dangerous Silence claims that under the libel law of Ontario, "it has become progressively more difficult....to bring forward new ideas, raise new issues, root in the past for the origin and meaning of current circumstances and for clues about the future."

There is no evidence of this. It is impossible that it could be so. The only material changes in the law in generations have favoured defendants. Reforms in the 1950's provided that a libel action should not succeed because a defendant could not prove the truth of all he said, if what he could not prove did not materially injure the plaintiff in light of what he could prove, and that whether comment was fair should be judged on the basis of what facts could be proved, excusing what could not be proved. The application of the law by a populous judiciary with little experience of libel actions has become progressively more lax and indulgent to defendants. Qualified privilege, which will excuse defendants from proving truth, has been confused with fair comment and extended.

The writers are confused and ignorant about the law. They complain that there is no definition of libel and that they "can't have any idea what might give rise to a lawsuit." There is no definition in the provincial Libel and Slander Acts, which make largely procedural changes to the common law for the protection of defendants. But the meaning of libel is well settled in common law. They make the preposterous claim that the law assumes "That there has been a libel or the plaintiff wouldn't have sued."

They claim that "well known" plaintiffs have a much better than even chance of success. Putting aside the obscure qualification "well known", this is surely as it should be. People who do not like what is said about them should not sue unless competently advised that they have a good chance of succeeding. But even at that plaintiffs' successes are hard to find. The Canadian Newspapers Association complacently reports year after year that most newspapers have no expenses for libel and only a handful have paid anything in settlements or had judgments against them. Much of the newspapers' legal expenses result from the big papers' efforts to change the law in the courts. They have had limited success in this because there is no need for change and little in the few cases they face to test the law.

A few apologies and retractions, more or less qualified, and a handful of modest settlements or judgments are little to show from a law allegedly biased towards plaintiffs. The writers themselves concede that judgments are modest but complain of the costs. They make a rather disingenuous argument that libel actions are too expensive for people of modest means. This may be true, but people of modest means are unlikely to have occasion to bring libel actions, not generally being exposed to attacks in the press or likely to be materially injured if they are. Conversely publishers who are unable to afford to defend a libel action are not worth suing.

The title of the brief is based on a contention that because defendants are advised not to comment on the subject of a libel action a dangerous silence ensues. What a defendant should say will depend on the particular defence he advances. If he is confident of the truth of what he published there is no reason why he should hide it. The contention flies in the face of the axiom that all potential plaintiffs must face: that suing is likely before the end to give more publicity to the libel. The pleadings and finally a trial can be freely reported.

The reforms the writers propose are anticlimactic. They want shorter notice periods and the proceedings speeded up. Plaintiffs are usually more keen than defendants to get on with an action. Potential plaintiffs have to be warned of the great delays in any action. Defendants' counsel might not want to be deprived of ways of dragging out proceedings and distracting and dispiriting plaintiffs, often at relatively modest cost. They want libel actions tried by a jury. But libel actions are already tried by juries, except when a defendant does not want it or in actions against the CBC, which benefits from an indefensible Crown privilege.

More importantly the writers want the plaintiff to have to prove "actual damages". This is the measure of damages applied in a case where a newspaper publishes a timely apology. It means that a plaintiff has to prove something like financial loss. As this is usually difficult to do, actions are usually not pursued after an apology. Where there is no apology damages are "at large" and juries are instructed to assume that there must have been some damage and to arrive at a reasonable assessment in all the circumstances. It is not an easy or predictable task but the risk of uncertainty is as much a problem for the plaintiff as for the defendant. As the writers concede, damage assessments are not extravagant. As the law has moved towards increasingly granting damages for intangible, not physical or financial, injuries, mental distress and violations of rights, it would be wrong to deny damages for injury to reputation however difficult they may be to assess precisely.

Newspapers have striven to insinuate a kind of responsible reporting defence. Under this it would be safe to report falsely that someone was a psychopath so long as the alleged psychopath was given an opportunity to respond. They have persuaded judges to accept professors of journalism as expert witnesses to testify that the reporting of an untrue story was fair. A judge accepting such testimony errs. It preempts the role of judge or jury in deciding the issues of law and fact. There is no subject or discipline of journalism in which there can be an expert. That it has happened shows how insecure the law is and the uncertainties that plaintiffs face.

The writers seem to want something like the law made up by the United States Supreme Court in New York Times v. Sullivan. This held that the first amendment protection of freedom of speech required in an action against a public official that the plaintiff should have to prove that the defendant published the libel knowing it to be false or reckless whether it was true or false. The rule has been elaborated in subsequent decisions to place the same burden on any public figure defamed by the media. As anyone who is the subject of a publication might be a public figure, by a rough circularity any possible plaintiff in the United States may now have to prove that the defendant knew what it published was untrue and thus have to prove his innocence and that the defendant knew it or did not care.

New York Times v. Sullivan arose in the heated atmosphere of the early sixties civil rights struggle and overturned an Alabama jury verdict in favour of Sullivan, the Montgomery Police Commissioner, for $500,000. For technical reasons having to do with the jurisdiction of the Supreme Court its reasoning may have been necessary to overturn the judgment. On the Ontario law of now and then, as the Supreme Court of Canada could finally state it without resort to the Charter, the judgment would have been overturned. The publication did not refer to Sullivan. The judge allowed the jury to confuse compensatory and punitive damages. What was false in the publication was arguably immaterial in relation to what was true. Some of the defendants did not even know their names would be attached to the publication. It is an unnecessary precedent for Canada.

In any event, despite New York Times v. Sullivan, and its elaboration, the American media do not feel free of libel chill. It is their phrase. Actions by William Westmoreland against CBS and Ariel Sharon against Time were fruitlessly pursued to much affected media dismay despite the great economic strength of the defendants. Libel insurance is more expensive in the United States than it is in Canada. The American situation confirms that what only can satisfy the chill lobby is complete immunity.

The Reichmanns' action against Toronto Life raised issues that had nothing to do with the actual law of libel. The Reichmanns' wealth grounded a concern that they could bear the enormous costs of the action themselves and impose insupportable costs on the defendants regardless of the merits.  The $102,000,000 they and their company claimed should not have been a concern. If they had been completely successful they would not have recovered more than a fraction of that amount. The article they complained of was 55,000 words long. Only specific passages were alleged to be libelous, but the whole family history and Dewar's research in New York and Hungary and Vienna and Israel and Montreal and Tangier were evidently to be recapitulated in pretrial proceedings and at a trial. If Toronto Life and Dewar had succeeded at a trial they would have recovered enormous costs from the plaintiffs. The complaint was that Toronto Life could not have borne the costs that long. The action was seen as a kind of litigious terrorism in which the plaintiffs threatened to kill Toronto Life. But the Reichmanns would have injured their reputations more by killing Toronto Life than by letting pass Dewar's interminable account of her far flung researches and their exiguous and ambiguous results, which, however many might have bought her planned book, few would have read and fewer still have drawn any damaging imputations from.

The ability of the rich to pursue actions without regard for the costs or the likely recovery is a notional problem in any area of the law. The only and unacceptable remedies are to bar the rich from the courts or openhanded subsidy of defendants. The use of wealth to crush a libel defendant cannot protect a reputation. Libel actions of the rich are too much reported and with too much sympathy for the defendants.

The Reichmanns in their statement of claim did not simply rely on the presumption the writers find so chilling. It asserted an obligation on the defendants "to carry out a proper investigation" and alleged they ignored "readily ascertainable facts". It positively asserted the plaintiffs' "excellent and 'accepted'[sic] reputations". They appeared ready to do battle with the defendants on some of the ground the press would choose in its responsible reporting defence.

In the end Toronto Life and Dewar published a very full retraction and apology and made substantial donations to charity at the Reichmanns' request. The magazine survives in hard times. Slimming and layoffs result from declining advertising in the posh markets to which it appeals. The financial press has shown no inhibitions, rather the reverse, in reporting and speculating on Olympia & York's much greater financial difficulties. The Reichmanns' family history retains an air of mystery, but it was one Toronto Life and Dewar seemed unlikely to dispel. A curious passage in the apology says "we intended to and believed we had thoroughly dismissed all [allegations and insinuations about the Reichmann family] as we felt there was no reasonable basis for them. We now realise that we did not." It was always difficult to see what exactly they were driving at and consequently what the Reichmanns were complaining about. These obscurities added to the expense and risk for both sides.

Conrad Black's action against Ron Graham and McClelland & Stewart is only one of several he has brought, attracting a large share of the libel chill protest and a demonstration outside his Toronto Street offices. He has never carried an action to trial, generally settling for retractions, including a memorably precise and fulsome one from the Globe & Mail. He took a rather flat apology from Graham and McClelland & Stewart in an open letter published in the Globe. They regretted their ambiguity.

The treatment Black receives in the Canadian media shows no signs of gelid deference. It may be wondered whether his resort to the law of libel has done his reputation much good. There is no ground for thinking that he has succeeded in suppressing any truths. He did not frighten Ron Graham or McClelland & Stewart, who published after he had shown his readiness to sue. But Graham by his association with the "Writers to Reform the Libel Law" has already joined in the simple complaint that writers should not have to worry about the libel law at all. Commenting on the painless disposition of Black's action he said he would not write on Black until the Ontario libel law is changed and pronounced: "The chill is still on." Graham's comments show how the chill is largely self-induced and the alarm self-fulfilling.

The self-fulfilling alarm reached a preposterous extreme early in the year when Macmillan Canada announced it would not publish a book on Edward and Peter Bronfman's tangle of companies after receiving a letter from one of them claiming that portions of the manuscript, unseen by Macmillan, might be actionable. The author, Globe & Mail reporter Kimberly Noble, had already written a series of articles for the Report on Business. The Bronfman companies criticised the articles but took no action. The articles and the book required the careful analysis of complex financial structures. Securities markets have lacked enthusiasm for the Bronfman companies because of the complexity of their finances. There is no interest in writing about them that does not get the facts right. There is no reason to think that Noble's book does not. There is no reason to think therefore that it would expose her or Macmillan to liability for libel.

Macmillan's immediate and public capitulation to the Bronfman's produced what can only have been the intended reaction. PEN Canada president John Ralston Saul gloated over a "classic case of libel chill". Ludicrously, Noble's agent praised Macmillan's "bravery" in exposing the impact of libel chill.

After the incident had been fully exploited Macmillan said it would read the manuscript after all and possibly publish it in the fall. Macmillan will not have to worry about a libel action. It will have to decide whether sales of a book that can only interest and be understood by a few thousand Canadians will be sufficient after the free publicity to support the costs of publication.

The situation in Canada presents a marked contrast with that in England. The writers claim that Ontario suffers under a specially oppressive libel law and has become a haven for litigious public figures. But the Ontario law is essentially the same as that in England and the other common law jurisdictions in the Commonwealth. The operation of the law and its effects are very different.

In Canada judgments for libel are few and modest. In England they are many and often enormous. There were several awards in six figures in pounds in the 1980's. The writers made frantic by Allan Gotlieb's action against Heather Robertson should be thankful they do not face the awful example of Nikolai Tolstoy who was ordered to pay £1,500,000 to Lord Aldington for calling him a war criminal for his role in the postwar repatriation of Cossacks and Yugoslavs. The different operation of the law seems to result from a combination of better understanding of the law by a more concentrated judiciary and bar and the willingness of juries - it is always juries in England - to treat libel seriously and make defendants pay.

But despite an operation of the law that Canadian writers would consider ice age the effect is not at all what they argue it must be. English writers are far more outspoken than Canadian writers. Auberon Waugh, though an unsuccessful defendant in libel actions himself, has not hesitated to call one Conservative minister a pedophile and another an obvious madwoman. Private Eye, the remote inspiration of Frank, despite several libel actions, published more good dirt in an issue than Frank has managed to come up with in years of digging. The most typical product of Canadian journalism is the admiring profile. It was not libel chill that led Toronto Life to run an admiring profile of Patti Starr just months before her name became synonymous with scandal in Ontario politics.

In fact, from carelessness rather than vigour, libels regularly appear in the Canadian media. They are not pursued because their victims do not notice them or do not wish to draw attention to them, because they are true, because politics makes it inadvisable to sue and finally because the burden on a plaintiff, the uncertainty and delay and cost, is too much to bear.

The chill lobby implies there is no burden on a plaintiff, who can simply sit back and rely on legal presumptions until a grovelling apology or a handsome judgment arrives. But the plaintiff generally bears the greater expense and faces the inevitable publicity given to the libel through dispiriting delays and uncertainty in the outcome. His whole reputation and life may go on trial despite principles that should restrict the proceedings to the precise libel complained of. In the most famous Canadian libel trial, Sir Arthur Currie sued a Port Hope newspaper for a gross libel alleging he had wasted the lives of troops under his command in a vainglorious attack on Mons on the last day of World War I. He won. But the strain was such that he collapsed on learning there was to be an appeal, which he was rightly advised had no hope of success, and never fully recovered.

Much of the trouble writers have with the libel law results from a vanity that prevents them from admitting when they are wrong. When they have confidence in their story they should plead truth or fair comment and take their case to a jury, looking forward to a courtroom triumph. When they lack that confidence they should proffer a prompt and fair apology and retraction. In the cases of periodical or broadcast libel, and largely with any libel, an apology and retraction faces the plaintiff with the burden of proving actual damages. As after an apology this is difficult to do, the plaintiff will usually drop the case. The defendant has been put to nominal expense. As an apology and retraction is usually insufficient to remove entirely the damaging imputations of a libel the defendant can console himself with the thought that if there was anything to his story after all, which he may still believe, the seed remains from which the truth may finally sprout.

In the heat of protest it is never allowed whether the outraged defendants believe they cannot successfully defend what they said or object simply to being put to the trouble and expense of doing so. Reading A Dangerous Silence it seems that the writers have received alarmist or overcautious advice. But finally what the writers want is a risk free occupation with no enforceable responsibility. No other profession has this. Doctors, lawyers and engineers are all subject to lawsuits and the press is only keen that they should be held to higher standards. Writers should leave their whining and accept the just risks of their profession. A free press is a necessity. But it will be better if it is a press willing to take responsibility for the injuries it may cause.

CAESAR WRIGHT'S CASE: The Viciousness of Law Schools

CAESAR WRIGHT'S CASE
Legal Education in Ontario
November 1, 1988, The Idler

The Fiercest Debate
Cecil A. Wright, the Bencher, and Legal Education in Ontario 1923-1957
C. Ian Kyer and Jerome E. Bickenbach
The Osgoode Society
ISBN 0-8020-3986-3

The history of legal education in Ontario from the 1920's to the 1950's must seem a narrow and parochial topic, likely only to interest a few aging members of the Law Society of Upper Canada and academic specialists. Ian Kyer and Jerome Bickenbach have managed notwithstanding to make of it for most of their book an intriguing and occasionally dramatic narrative. They bring to life the civilised provincial world before Toronto Life. But though they strive to be fair, they miss in their uncritical acceptance of the apparent march of progress and the role of their hero, Cecil Augustus Wright, whose biography their book doubles as, much of the reason why their story should be of the widest possible interest.

Cecil Augustus "Caesar" Wright, born in 1904, was at the top of his classes coming out of high school, the University of Western Ontario and Osgoode Hall Law School, where he "achieved a standing of 94.5%." Such a consistent career of scholastic success is not often the beginning of a great life and it cannot aptly be called brilliant. But it was for Wright the foundation of his lifelong career and his historic role set out in this book. The immediate result was a year at Harvard Law School from 1926 to 1927 and a doctorate in "juridical science." He then returned to Osgoode Hall to teach law. Legal education in Canada has never recovered.

For a hundred years Harvard Law School has been the single most prestigious educational institution in the United States, the school of Wall Street lawyers and Supreme Court justices and senators and cabinet officers, and a president. The foundation of this prestige and influence lies in reforms made in the 1870's by the modestly named Dean Christopher Columbus Langdell and usually known as the Langdell case method. In theory this meant that, instead of simply setting out in lectures and textbooks a system of rules of law drawn from statutes and cases, a selection of reasons for judgment in cases decided in the higher courts was set before the students and by "Socratic" questioning the students were lead to find the rules in the cases.

The case method was perversely recommended by Langdell as "much the shortest and best" way of mastering the law. In fact it is absurdly inefficient. It is largely irrelevant to the larger and growing part of the law that is found in statutes and regulations. How to read a case, how to find the rules it expresses and how to distinguish it on or extend it to a new set of facts are learnt easily enough on reading one's first few cases.  At Osgoode Hall Law School in the 1970's this was left to disregarded teaching assistants in a couple of hours a week in first year together with such jurisprudence and legal history as the modern professors of law thought needful.

But the simple theory of the case "method" rather conceals Langdell's project and the "revolution" he began. Langdell saw law as a science (thus the absurdly named doctorate Wright earned in one academic year). Cases were the raw data of this science. He wanted to make of Harvard a national law school where the "science" could be studied without regard to the particular requirements of the various states; and he wanted to create a new sub-profession of law teachers, untainted by practice, the scientists as opposed to the mere technicians of the law, who would pursue their science in the "legal laboratory" of the law school. The legal professoriate would have authority in politics and social reform. As putative experts in justice they would deserve and achieve the authority of Plato's philosopher kings. Harvard achieved much of Langdell's ambitions and in its path other American law schools followed. On the courts and as critics of the courts and in government and politics and major law firms Harvard's faculty and graduates have exercised a powerful influence on American life. Cecil Augustus Wright returned to Osgoode Hall with similar ambitions and spent the rest of his life in a fight to achieve them.

In Ontario legal education had followed a very different course. It consisted of a mix of practical experience in law offices and lectures given largely by practising lawyers. Though circumstances differed from country to country and generation to generation it was basically legal education on the English model under which solicitors articled and barristers qualified by a mysterious process of eating dinners at the Inns of Court and devilling. There were always practical difficulties. Lectures given at Osgoode Hall, typically at the beginning and end of the day, meant all law students had to find articling positions in Toronto. Satisfactory positions where students actually learnt something, had something to do and were adequately paid were seldom available for everyone and lawyers were not always happy with students who came late and left early for lectures.

There was probably always a case for a major reform of legal education in Ontario and the Benchers of the Law Society played their hand poorly against Wright and his allies. What was needed was the adaptation of a system whose principles were sound to the practical difficulties of a large province with a rapidly growing and dispersed population and ever more complicated law and practice. Wright was not interested in pragmatic reform. His attack was on  the principle of office training mixed with instruction from practitioners. The volunteer self-government of a profession or other institution is an admirable thing but it only works when there is a traditional agreement on the goals and principles of the institution. Faced with an attack on principles benchers or other governors break down into reactionaries and appeasers. The reactionaries may not be wrong because they cannot make an effective argument for principles they never before questioned nor the appeasers right because they will not.

From his return to Osgoode Hall in 1927 Wright was arguing for the establishment of a full time, three year, post-graduate law school. It took him thirty years to achieve his goal. There were occasional outbursts of controversy in the 1930's and 1940's but no important changes took place. Wright remained one of only three or four full time teachers at Osgoode Hall and his students were his for no more than a couple of hours a day and had their minds principally on their offices and their careers.  To Wright's chagrin students could enter law straight out of high school and get called to the bar at the price of a couple of extra years working in a law office. Equally chagrinning were students who had studied law at W. P. M. Kennedy's academic Department of Law at the University of Toronto earning a B. A. that did not advance them towards their call to the bar but made them according to Wright "self-satisfied" and "difficult to teach."

In 1948 Wright became Dean of Osgoode Hall Law School. In January of 1949 after a lengthy study of legal education the Benchers voted to continue the longstanding system of concurrent lectures and articling. Wright, John Willis, Bora Laskin and Stanley Edwards, the entire full time faculty of the law school resigned. The newspapers, The Globe & Mail in the lead, made a sensation of the story and the resulting controversy well earned the epithet given it twenty years later by Bora Laskin: "the fiercest debate." There could be no turning back.  Osgoode set about rebuilding its faculty under the guidance of the 74 year old John Delattre Falconbridge, who had been Dean from 1924 to 1948. Kennedy was opportunely retiring at the University of Toronto and Sydney Smith, an old friend and ally of Wright and President since 1946, snapped up Wright for Dean of the now "School" of Law. Wright was free to devise the full time, three year, post-graduate LL.B. course he had his heart set on.  Smith only asked for and got two years' credit towards a call to the bar from the unnerved Law Society and the University of Toronto Law School was threatened with a slow death for lack of students.

Victory came as much because the growth of the profession took legal education beyond the physical capacity of Osgoode Hall and the financial capacity of the Law Society to provide. In 1957 the Law Society was forced to turn to the universities for help.  The University of Toronto Law School has now established a fair claim to be the leading law school in the country, much firmer than the claim of Osgoode Hall Law School, forced by overcrowding to move in 1968 to York University in Downsview, eleven miles from Osgoode Hall, to be the "best law school in the Commonwealth," although its standing has as much to do with urban geography as academic excellence.

Without such fierce debate and generally far in advance of Ontario, legal education in the other common law provinces has followed a similar course. It was Ontario's contribution to dramatise the conflicts between lawyers and law professors. But Kyer and Bickenbach fail to establish the importance of the change and the issues behind the "fiercest debate." The increasing impracticality of the concurrent system left the Law Society's old guard apparently defending the indefensible.  Wright's own intellectual confusion obscured the implications of his ambitions. Kyer and Bickenbach concede that Wright had no sure grasp of the issues in American jurisprudence that were alive at Harvard when he was there and made no contribution to legal theory in his chosen field of torts or elsewhere. They suppose, because he said it, and because he was theoretically effete, that his goal was a practical law school albeit on a new model. But his real ambition can be made out well enough from the concrete elements of the law school he campaigned for and finally built, his legal teaching, such as it was, and the development of law schools in Ontario since 1957 or in the United States.

The law school is the law professor's creature and servant. The law societies specify a number of basic subjects to be covered but these can be got through in less than half the three years of the LL.B. course and are no imposition. The professors are free to teach them as they please. The position of law as a post-graduate degree requiring at least two years of undergraduate work for admission protects the law schools from students whose commitment to the course or vocation is too weak to keep them steady and compliant or who might be rebellious. Their control of access to the perennially prestigious profession assures them of a steady demand for places and an oppressive authority over their students. The absurd length of the course, about twice as long as is needed to prepare for the practice of law, leaves plenty of time for the professors to pursue their own interests before a conscript audience.

Wright's use of the case method was typical of the followers of Langdell, though not apparent from the simple theory.  He was principally interested in criticizing the decisions, berating the judges as illogical, biased and incompetent. After all they had not been to Harvard. As a preparation  for the practice of law this was about as useful as a harangue against the iniquities of the Income Tax Act might be for filling out a return. Lawyers have to deal with the law as it is in advising clients how to comply with it or trying to persuade a court that their client's conduct comes within it where it arguably does. Yet what the law should be, rather than what it is, influencing its change rather than using it as it is, is what interests a law professor. Law schools now exist to appropriate the prestige of the law and the profession of law in support of the law professors' opinions on and influence over what the law should be. The case method serves an ideological purpose. It forces the idea that the law is made in decisions of courts of appeal and that the rights and wrongs of it can only be understood by lawyers and principally law professors.

Bad laws are made not because of bad legal reasoning but because of bad politics, economics and social theory. Law professors do not necessarily know anything more about these things than the average citizen. It is an irony of law schools that law professors priding themselves on the breadth of their learning can hold forth before classes in which on every score except the mere knowledge of the system of rules, which they despise, they could be outmatched by their students: in philosophy, politics, sociology, economics and experience of life. The law professor's leverage over his students' careers allows him to indulge his intellectual conceits.

Wright, from the start, simply held forth on a selection of cases generally damning Canadian and English decisions, which were after all the law of Canada, and praising American decisions. He was a dreadful teacher. The splendid J. Shirley Denison, a long time bencher and Treasurer of the Law Society in 1949, wrote in 1947, thinking of Wright, that successful teaching required "some humility and a sense of humour". These qualities Wright conspicuously lacked. His teaching expressed contempt for his students, whom he was uninterested in assisting to the successful practice of law.

The law schools, bringing prestige and a lucrative enrollment to their universities, have now had it largely accepted that there is a discipline quite as respectable as chemistry or history that they teach and command. They no longer call it a science as the early Harvard professors did. It is not however the despised black letter law, the common tools of a vulgar trade. Its professors command the workings of the law reform commissions keeping politicians' dirty hands off the work of legislation. They are thought fit to be judges, most famously in the case of Bora Laskin, unlike Wright a fondly remembered teacher and a considerable black letter law scholar, but a dreadful judge. From the bench they want to make law. From off the bench law professors' court reviews, written with student assistance in the plenty of time their part-time teaching at full time pay allows them, exercise an unwarranted influence on the law. They are received authorities on what the law should be in almost any field. The Globe & Mail, whose unctuous officiousness was already evident in its support of Wright in 1949, has a particular weakness for law professors and seldom allows more than a day to go by without printing some law professor's conceit on its op ed page.

The case method of teaching has meant that there are few satisfactory texts on Canadian law. What texts the law professors produce are peppered with their unsupported opinions on where the law is wrong. The ever more complicated law is often without satisfactory guides and corrupted by the law professors' pervasive Pyrrhonnism. The law's special function of giving order and predictability to our relations is increasingly ill-performed.

The Charter and subsequent constitution making have played greatly into the law professors' hands. They have encouraged a general justiciablisation (an ugly word for an ugly thing) of politics. More and more, public issues are not settled politically with all assumed fit to speak their mind. They are settled in court and only lawyers and particularly law professors are presumed to know their rights and wrongs. Practising lawyers' opinions are traditionally, rightly and still for the most part, for their clients and they are generally not free to practise political law. Law professors have the time and the audience to assert their authority on these issues. They are heard as experts, though in the final analysis their arguments have no more authority and rely on no more special knowledge than general discourse. By a kind of mystification the arguments are dislocated. Instead of saying something is good or bad it is said to be or not to be against the Charter.

This is the outcome of Langdell's and Wright's ambition. The law faculties have attained the authority of a mystificatory elite. The paradox is that to do it they have had to take over the training of lawyers while holding the practice of law and by extension training for that vulgar trade in contempt. Nowhere else is there such a conflict in the interests of teachers and the taught. Elsewhere in a university there may be a vast gap between the degrees of interest of a professor and a student. Many undergraduates are uninterested in their subjects and just going through the academic motions while "finding themselves" or enjoying "college days." But any interest they do have in a subject is shared with their professor who, however ineptly, will try to assist it.

In law schools, as Wright's teaching showed, the student's interest is in knowing what the law is and the professor's in holding forth on what it should be. Of course the professor may know a good deal about what it is and the more decent, as Laskin did, will try to impart this to the students. More importantly the students may be interested in what the law should be; but they are as likely to be able to teach their professors something about that.

There are two law subjects appropriate to a university and of little use to a practising lawyer. They are legal history and jurisprudence or philosophy of law. These subjects have characteristically prospered in English universities and they were prominent in W. P. M. Kennedy's Department of Law at the University of Toronto. They have almost no place in Canadian law schools. The study of history requires and teaches humility, not something to endear it to the modern law professor. They want only a superficial history of law, which by collapsing seven hundred years of the evolution of the common law makes it seem that the judges busied themselves continuously with making law rather than mainly deciding cases according to the law they found.

What is law? How does it get its authority? What part do or should judges play in the making of law? are questions to which a series of not entirely consistent answers are assumed in law schools, but the hard task of finding the justification for those answers or finding other answers, the province of jurisprudence, essentially a branch of philosophy, is scarcely touched. A serious study of jurisprudence would undermine law professors' claims to authority. It cannot be undertaken without some philosophy. What passes for jurisprudence is the law professors' ideology, chiefly expounded by the American charlatan Ronald Dworkin, Professor of Jurisprudence at Oxford and pillar of The New York Review of Books.

Wright was no scholar of legal history or jurisprudence. After one attempt to teach jurisprudence at Osgoode Hall he "killed it" (his phrase) in 1928 and never tried teaching it again. His chosen specialty, torts, was one in which the principles are peculiarly simple if vague but the social implications enormous. The contribution of Wright and law professors generally has been simply to scoff at any rule that restricted the cases in which a person could claim damages for personal injury or the kinds of damages that could be claimed. Those trying to solve the liability insurance crisis of the late 1980's, or indeed to determine whether it is real, will not find any help in Wright's bibliography.

Wright's was an odd life. Forty years spent lecturing to students he was not interested in on points they were not interested in, writing carping comments for law reviews and doggedly manœuvring for the creation of a law school where he could rule the roost. After he achieved his goal his career was an anti-climax. There were no innovations in curriculum or teaching methods at the University of Toronto Law School. His publications petered out. Law professors became a numerous band. He was, mercifully, passed over for Chief Justice of Ontario and a place on the Supreme Court of Canada.

The fierceness of the "fiercest debate" had not a little to do with Wright's character. Kyer and Bickenbach concede he was arrogant and widely disliked. He had distinguished friends and allies, like Sydney Smith, but it seems likely that needed reforms would have come earlier if the demand for change had not been closely associated with a man whose character and ambitions were so reasonably distasteful to many in the profession. Kyer and Bickenbach tell two stories about Wright in 1949 without relating them. Taking the train to the Canadian Bar Association annual meeting in Banff he was he wrote

"literally forced from car to car by certain members of the Association who seemed to treat me as some kind of moral leper and who were fairly vocal about it in my presence and in the presence of my son."

Those rude lawyers cannot have known the other story, but they may have known enough about him to know it was in character and to make their behaviour understandable. A few months before Wright had written every English law professor he knew urging them to pass the word that none of their colleagues should accept a position at Osgoode Hall.

Canada's identity and independence have been importantly and dramatically injured in the law, where it has independent traditions and institutions to support them but, chiefly through the law schools, has seen them undermined. The "nationalists" have ignored or even connived at the injury. Wright played a significant role in this. His ideals were American law schools and American law. He scorned the English legal tradition in Canada and its Canadian developments. Though confirmed by Kyer and Bickenbach as a maker of Canadian history in his field his attachment to Canada was no more than the Pennsylvanian's attachment to Pennsylvania. It is painful to read of the anxiety of his teachers over whether the top student at Osgoode Hall would be found fit to attend Harvard Law School. It was perhaps a pity for Wright and for Canada that he did not get a job at the University of Pennsylvania Law School that looked likely in 1929.

In 1988 twenty-eight of the forty-three full time faculty at what is now called the Faculty of Law at the University of Toronto have American degrees. The American influence in the law schools is the strongest force propelling our law ever closer to American law. American law and jurisprudence has been fundamentally affected by the Constitution and particularly the Bill of Rights. That fact made it particularly inapt as an influence in Canada. The Charter is both in some measure an effect of and a powerful stimulant to this influence.

Twenty years after Wright's death the Law Society has no spirit to resist the law schools. Law professors are called to the bar without articling or passing the Bar Admission Course, the Law Society's vestigial practical law term, now given in Ottawa and London as well as at Osgoode Hall. They are elected benchers because they are better known to their former students than most prominent practising lawyers.  The law schools control legal education. Their calendars are filled out with courses on "Gender Issues" or "Self-Determination and Liberation Movements" and a banquet of theoretical courses free of any particular theoretical discipline and taken only by handfuls of students desperate for something diverting to fill out their three years sentence without parole. Some schools perversely attempt to make up for their academic detachment from practice by offering expressly practical courses, typically in trial advocacy, but their ideas of what is involved in the practice of law are too select to be generally useful, even if law schools were the right places for practical teaching.

Kyer and Bickenbach end by referring to a 1983 report on legal research and education by the ubiquitous Harry Arthurs, former Dean of Osgoode Hall Law School, Bencher from 1979-1983 and now President of York University. Arthurs qualified for the bar in1961 in the ordinary way, after articling, but went straight into teaching. Though disdaining the practice of law he has made the profession a special interest and has been very free of advice on its development and naturally regularly quoted by The Globe & Mail. Arthurs is sensitive to the contradiction between the law schools' function as training schools for lawyers and their faculties' academic pretensions. Chaffing at the "eclectic curriculum" necessitated by the law schools' status as professional training schools he wants those pretensions bolstered by the recognition of "The scholarly enterprise of law....as a distinct and separate endeavour, with its own goals, standards and basis of legitimacy."

There is an admission in his arguments that for all their success in grabbing power and all the resources at their command the law professors have failed to establish securely an intellectually respectable discipline. But the goal, for all its vaguely high-minded presentation, is both unattainable and unwanted for two reasons. There is no academically defensible distinct and separate discipline of the law as Arthurs envisages it and the power of the law schools derives entirely from their control over entry to the profession. It is a sign only of the completeness of the law professors' triumph that they can contemplate being relieved even of the light burden of training lawyers and are chiefly anxious about their academic respectability.

A survey of recent graduates in the February issue of The Canadian Lawyer reported widespread dissatisfaction with Canadian law schools, most of which, including the University of Toronto, were given C grades. The common criticisms were that they were too academic, the three year course too long, and that law students should get more practical experience: all the arguments of Wright's opponents. The law schools are institutions more powerfully entrenched, more politically adept, with a greater vested interest in their status quo, and better access to the persuasive media than the Law Society of forty years ago. It will take a struggle longer than Wright's, champions more able and fiercer debates before their hold on legal education and their influence on the law are broken.