Ultra Vires


Dear Denning

Advice on selling out and turning away the King of England

Dear Denning: I came to law school to be social justice litigator, but I got hired by BigLaw LLP in the 2L recruit! Am I a corporate sellout?

– Elena Everywoman (2L)

Dear Elena,

The facts are reasonably clear. In 2014, your father, a stockbroker, was minded to educate you. Your mother, a Bay Street lawyer, hoped you would go to Harvard. You failed to score well on your SATs. Your parents feigned excitement when you were admitted to McGill.

Your parents agreed to enroll you in a programme called “Political Studies”. Together, you assumed it had something to do with democracy and diplomacy and the like. It was nothing of the sort.

As soon as you entered school, you learned the entire programme was dedicated to studying “oppression”. Even though you had never before heard of “oppression” (let alone experienced it yourself), you decided you needed to end it. So your journey began. Social justice became central to your life. When you weren’t brunching or clubbing, you were fighting social injustices.

So, you came to law school. You worked at DLS. You defended men accused of petty crimes. But then, you took a job at BigLaw LLP. You liked the office and the fine dinner they offered you.

The question of whether you sold out is one of some controversy amongst the judiciary. The old rule at common law was that barristers worked for prestige while solicitors worked for the common good.

In Re Boringdispute (1960) 1 ER 2, Lord Reid said “My Lords, it seems to me that there is no greater service to the public than that of a solicitor. Mindlessly copy-pasting terms from a term sheet into a contract in a windowless office is an undeniable public good. Now let us quickly dispose of this appeal. The other Lords and barristers must make haste to our fancy party.”

In Specter v New York Bar Association (2015), the Supreme Court of the United States took a different view. In a rare unanimous judgement, the court said, “It is incontrovertible that Mr. Specter, being the city’s best ‘closer’, has contributed immeasurably to serving the court—certainly more so than those nerdy corporate lawyers. The Bar Association’s 10,346 findings of unethical practice will be dismissed if Ms. Zane will agree to a date with Justice Samuel Alito.”

Without reading any cases, I will assume the law of Canada is some mish-mash of the two positions.

So, then, I am presented with two options on how to dispose of your case. I could engage in some contrived analysis to reconcile the cases and come to the result I intuitively wanted. Or I could simply skip to the result I intuitively wanted without forcing the parties to engage with analysis so contrived. In the interest of justice, I think it best to do the latter.

Elena, it seems to me that I do not know if you are a sellout. I do not understand the case law. I also do not care. Deal with your own problems. 

Dear Denning: I am a current 1L at a well-known school in Toronto. When I first began at the school, I was greeted with a warm reception. Then things got colder. Then they got warm again. Then cold again. Then unbearably hot.

The temperature control in the building appears to be lacking. Some days I arrive with a woolen sweater, only to be thrust into a humid room in the basement of the building. Other days, I am wearing a t-shirt in a frigid moot courtroom.

What remedy would you suggest?

-Lukewarm Luke (2L)

Dear Lukewarm Luke,

As an esteemed jurist once said of the weather: “The poorest [person] may in [their] cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.”1

It may be stated, as you alluded to, that the law school building may have certain inadequacies. The humidity rises wildly, the temperature falls sharply, rain mixes with tears of students. It may feel as though one has journeyed through the weather systems of the world. A truly internationally ranked experience.

The appropriate remedy here is neither in equity nor law. The law school building is not a palace that exists to cater to the whims of each person who enters it. It is an institution which entitles each student privileged enough to be within it only two things: 1) training in the most esteemed professional to have ever graced the world and 2) protection from the King of England.

If there comes a day where the King of England has finally found you within his grasp,2 the Courts will be here to provide you with remedy. As for now, when it is a “bleak winter” in a chilly building, one must find their own remedy.3 Wear lots of layers and remove as needed for comfort.

[1] Denning J in Southam v Smout [1964] 1 QB 308 at para 320.

[2] Or, when one has the inevitable realisation of how inadequately they are trained.[3] Denning LJ in George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803.

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