Transcript Intégration d’approches diverses Lillian Boctor, Léonie Brais Laporte, Katarina Daniels, Camille de Vasconcelos.

Intégration
d’approches diverses
Lillian Boctor, Léonie Brais Laporte,
Katarina Daniels, Camille de Vasconcelos
Outline
1. Survey
2. Activity – Fact Pattern
3. Introduction
4. Catharine MacKinnon, « Mainstreaming Feminism in
Legal Education »
5. Questions
6. Shauna Van Praagh, « Stories in Law School »
7. Adelle Blackett, « Mentoring the Other: Cultural
Pluralist Approaches to Access to Justice »
8. Discussion
Activity: Fact Pattern
Please form 6 groups
• Read the fact pattern (you all have the same fact
pattern) and decide the outcome of the case based on
the specific instructions indicated on your paper.
•
•
•
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Should A be convicted of counseling to commit
murder?
What might save A from this fate?
It is possible that members in your group will have
different opinions of what the outcome should be.
What are the reasons for these differences?
Introduction, état des choses
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L’objectivité
La personne raisonnable abstraite
Normalisation
Standardisation des comportements
Stare decisis
Rule of law
Mainstreaming Feminism in
Legal Education
Catharine MacKinnon
Catharine MacKinnon: biography
•
Feminist, scholar, lawyer, teacher, and activist
•
Sex equality issues under international and
constitutional law
•
SCC has largely accepted her approaches to equality,
pornography, and hate speech (R v Butler)
•
Recognition of rape as an act of genocide
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Works with Equality Now and the
Coalition Against Trafficking in Women
•
Since 2008, Special Gender Adviser to
the Prosecutor of the ICC
Mainstreaming Feminism
"The question of the role of feminism in legal education
can thus be reframed as: What can legal education do
to prepare lawyers to intervene in this situation women's inequality to men - in order to change it?”
•
Initial start: courses centred on the status of women
o
o
o
o
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Sex equality
Violence Against Women
Women's Legal History
Women's Human Rights
Feminist Jurisprudence
Mainstreaming Feminism
Public Law
Private Law
Constitutional and international
guarantees of sex equality
Mainstreaming Feminism
• Tort law: How does inequality CAUSE harm?
• Contract law: Consent in Contract Law vs Consent in Sex
• Law of civil procedure: "What are the implications for class
actions requirements of this potentially largest plaintiff class
action in history?"
• Jurisdictional doctrines: structurally prefer the local (recall:
subsidiarity)
• Criminal law: What happens when perpetrators and crimes are
ordinary rather than exceptions? What about the death penalty?
• Constitutional: Is respect for precedent neutral? What about the
traditionally "neutral" approach in constitutions?
Mainstreaming Feminism
In law schools:
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Clinical teachers versus theoretical professors
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Self-censorship by women in the classroom
•
Socratic method in law school
What does successful mainstreaming
of feminism look like?
Gender literacy is a
requirement
Women, their POV, and
experiences, as well as those of
all excluded groups, are
represented and respected in
texts and in class
Women speak up with ease in
law classrooms
When there are no more
explicit rape hypotheticals on
100% exams
When students are taught that
almost everything they do is
"on one side or another of a
real social divide that includes
sex, with material and
differential consequences"
When women are not sexually
harassed in law schools
When there are as many men
secretaries and librarians as
women and they are paid
properly, and as many women
faculty members and deans as
men
When childcare is available
onsite
When it no longer takes
courage to be a feminist in the
legal academy
Mainstreaming feminism :
Liens et intégration
•
La perspective féministe
o
o
o
•
Critical Race Theory
o
•
Égalité substantielle v formelle
Le droit comme outil de changement social
Les femmes sont différentes des hommes
Déconstruire l’idéologie du droit (Douglas Hay) pour la
reconstruire
Queer Theory
o
La catégorisation et l’essentialisme
Mainstreaming feminism :
Liens et intégration
• Pluralisme juridique
o Si tout est droit, quel impact peut avoir le changement des
règles formelles?
o Only girls wears barettes (Katherine Bartlett)
o Stabilization of interactional expectancies (Lon L. Fuller)
o Le droit et la culture
o Boaventura de Sousa Santos : la projection n’est pas un acte
neutre
o Que met-on au centre de notre système?
o Geocentric/ Ego-centric
o Transsystémisme
Mainstreaming feminism :
Liens et intégration
Le débat réaliste: rapport nécessaire entre la moralité et
le droit?
• Precedent
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o
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o
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A.T. Kronman «Precedent and Tradition»
Hobbes + Holmes: precedent should not binding
L’utilité des précédents
Perspective économique
Stories in Law School
Shauna Van Praagh
Why are you here?
Arriving in Law School
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First: Congratulations! You made it. You are smart.
Welcome to Law School!
+
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Then: Thank you for your intervention, but next time,
please use legal language.
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Result: Do I belong here? Can I say what I have to say?
What do I have to say? What is “legal language”?
I. Law School – The Personal and
Political; Silence and Voice
“You may, most likely will, find your classes proceeding as if nothing you
studied before, nothing you have learned through your life experience, is
relevant. They also tend to proceed as if none of the wide differences
among your professors’ backgrounds, commitments, and life experiences
is relevant. This too creates a sense that The Law is There – even a
pressure to see it that way – that Law is a thing to be grasped, and each of
us has to put our self aside, has to understand It for what It is. But that
is not right. It is right that there are certain understandings shared by
most of those engaged with law – that legal stances, decisions, arguments
have a certain self-understanding, and that law teachers are out to impart
their own understanding of these self-understandings. But like any
individual’s understanding of him or herself, these self-understandings
are only partial.”
I. Law School – The Personal and
Political; Silence and Voice
•
Idea behind Van Praagh’s introduction: law school is
both personal and political
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Hierarchical organisation of law school
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The law and its inevitable subjectivity – resulting in
uneasiness in the classroom
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All of which points to “the personal nature of the
responsibility that accompanies the power of law”
I. Law School – The Personal and
Political; Silence and Voice
What does it mean to participate fully both as a student and as a
teacher in law school?
•“Personal experience and emotion are traditionally
understood to have little part to play in teaching and
learning the language of law.”

•“The themes of participation, silence, personal
experience, and voice are found in the emerging discussion
of narrative or storytelling in legal writing and law
teaching (…)”
II. Teaching With Stories –
Participation through personal
perspective
What is storytelling?
“Law school teaches its students fluency in a discourse that
their society listens to and respects. At the same time,
students learn that some of their reactions and feelings
cannot be expressed in a ‘legal voice.’”
II. Teaching With Stories –
Participation through personal
perspective
What is storytelling?
“Rejecting that lesson, some participants in law school are
pursuing a new genre of pedagogy. Alternatively
described as narrative, storytelling, and feminist
methodology, this genre of legal education gives
significance to emotion and provides a space for
multiple experiences and perspectives.”
II. Teaching With Stories –
Participation through personal
perspective
What is storytelling?
It’s about the « hidden subjectivities and unexamined
claims »,
it’s about the diversity and complexity of the human
experience,
it’s about relations,
and about how humans are treated and the way they feel…
II. Teaching With Stories –
Participation through personal
perspective
Why should we adopt a storytelling pedagogy?
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Belief that “personal experience constitutes one valid source
of knowledge”
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Encourages cooperation rather than competition amongst
law students
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Favours the questioning of “the authority that places value
on certain constructions of information and truth”
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Thereby favouring the envisioning of alternative structures
How is it done?
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Through the teaching of law: both personal and
fictional stories
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Through surveys and empirical studies
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Through personal journals
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Through forums of discussion
II. Teaching with Stories –
Participation through personal
perspective
Response, Critique, and Challenge
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“Personal reactions and related stories tend to be too
fuzzy to decipher and use”
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“[T]hey quickly become boring without shedding light
on the legal issues raised by the professor”
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“[E]motions are irrelevant in legal argument”
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“[L]aw school is not the appropriate forum for this
kind of storytelling”
II. Teaching with Stories –
Participation through personal
perspective
Indeed, not all stories are relevant:
“The nature of highly individual and personal writing or
speaking can negate the possibility of responsive and
constructive dialogue. (…) Multiplicity and context can
be overwhelming; diversity that ignores important
commonalities can be suffocatingly individualistic,
especially if the goal of talking about and listening to
experience is to empower groups to instigate change.”
III. Stories Told and Heard
“She involved my vision, my nerve-endings, my memory of
experience; she stirred my emotions and thus more deeply
stimulated my mind. I learned more from her because she
spoke to all of me – she connected. Yes – I understand
historical materialism, and if you insist, guys, I’ll talk that
game, but, you know, I just can’t relate to it in the way I
can to a story about sisters transcending pain to learn that
they’re sisters. I learn best when I relate, and it is
intellectual, this learning process.”
- Lucinda Finley
III. Stories Told and Heard
Persuasion, Imagination, and Transformation
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Stories as a teaching tool:
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Through real and fictional stories
“To persuade students that a fact situation creates a
‘hard case’”
Through empathy, identification and/or understanding
of the other
To recognise the significance of the connection between
personal and legal issues
How does it work?
Empathy or identification
Perspectives otherwise ignored
into the law
Because of who you are
Because of who you’re not
CHANGE
IV. Why do we listen?
1.
The narratives must « create and strengthen a special
relationship between the speaker and listener »
2.
The stories must weave together emotion and reason
3.
Put together, these stories must amount to a
generalized call for change. They stand as a starting
point for assessing the difficulties and impacts of the
rational language of law.
4.
The stories, whatever their form, need to be connected
« to the area of law to which it offers a previously
unheard perspective. »
Conclusion
“ While some supporters of narrative
pedagogy might advocate substituting it for
rational argument, I suggest that neither
language is sufficient. Instead, law students
need fluency in both voices.”
Does your experience here
reflect your expectations?
Storytelling : Liens et intégration
Poet as judges (Martha Nussman) : contextualiser les
problèmes et les solutions
• Exemples
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Beverly McLauchlin dans Tremblay c Daigle
Cas CSC de Van Praagh
R.D.S. c R. 1997 CSC
R. c Ryan 2013 CSC (l’activité/ fact pattern)
Storytelling : Liens et intégration
Critical Race Theory
• Perspective féministe
• Communautés autochtones
• Queer Theory
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Storytelling : Liens et intégration
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Droit et culture
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Clifford Geert : Local Knowledge (thick description)
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Formaliste v Contextualistes  R.D.S. c R. 1997 CSC
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Théorie économique
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Efficientes les histoires?
Transsystémisme et bilinguisme
Mentoring the Other: Cultural
Pluralist Approaches to Access
to Justice
Adelle Blackett
Mentoring the Other Visioning Exercise:
Setting the Scene
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Please close your eyes.
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First I would like you to place yourself in the McGill Faculty of
Law.
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Imagine if in this law faculty most of the students reflected who
you are, and had a similar ethnicity, history, origin, class, and
cultural background as yourself. What would that look like?
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Now imagine if your professors had a similar ethnicity, history,
origin, class, and cultural background as yourself. What would
that look like?
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Now imagine what the Faculty of Law actually looks like; is it
similar or different from your first two visions?
Student First Year Diversity at the
McGill Faculty of Law
Professor Diversity at
McGill Faculty of Law
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Approximately 102 full time faculty members, Adjunct
Professors and Course Lecturers.
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Brief review demonstrated that professors who are
visible minorities is around 10-12%”
Visible Minorities in Canada and Quebec
and the Legal Profession
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According to Statistics Canada, by 2031, nearly 40 per cent of
children under the age of one in Canada will belong to a visible
minority group and by 2031, 47 per cent of second-generation
Canadians will belong to a visible minority group.
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4% of the Barreau de Quebec self-identified as visible minorities.
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In Quebec, visible minorities represent 9% of the population.
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Last year, a Globe and Mail investigation of superior court
appointments over the past three and a half years revealed that of
100 new judges in provinces across the country, 98 were white.
William Sundhu, a Canadian-born
Sikh and former B.C. Provincial
Court judge who has studied
minority representation on the
bench.
RACE LITERACY IN LAW
SCHOOL?
When asked about racial literacy in Canadian law
schools, this is what Dr. Esmeralda M.A. Thornhill
had to say: “I don’t know what race literacy means in law school,
because it has not yet been discovered. Race literacy means understanding
the hard and durable grammar of race that textures people’s lives day in
and day out. It means that one grasps or comprehends the racial dynamics
and how race operates in people’s lives in terms of relationships,
opportunities, or disadvantage, and it also means understanding the
racial hierarchies often left in silence but which are set up and structured,
not just in terms of who gets to be in positions of dominance and who
gets to be the subordinated or the subaltern, but also, who gets to be the
heroes and heroines in the national narrative, who gets to be included
front and center stage and who gets to be excluded, who is fit to be
marginalized or left as the second, third rate position…”
Mentoring Experience
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Short video of potential student
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https://www.youtube.com/watch?v=GJbiw_bOFmY
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What are your reactions to this video?
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Notions of merit – realized or imagined
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Mentoring as reification of old boy network or way to access
justice
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Have you had a mentor? What was that relationship like?
Did the person reflect your race/culture/class/values?
MENTORING THE OTHER: Cultural Pluralist
approaches to access to justice
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Professor Adelle Blackett is a William Dawson Scholar at
the Faculty of Law, McGill University; holds a doctorate
in law from Columbia University.
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Teaches and researches in the areas of labour and
employment law, trade law, and law and development
and former official of the International Labour Office in
Geneva.
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Directs the Labour Law and Development Research
Laboratory at McGill and is a founding steering
committee member of the international Labour Law
Research Network.
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A research coordinator for the Quebec based Interuniversity Research Centre on Globalization and Work.
Informal institutions versus formal
equity initiatives to increase diversity
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Informal institutions are a reality – Institution of mentoring exists as a tool to
increase access in academics and employment in the law profession
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What is the potential of informal institutions have in promoting diversity
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Proponents of increasing diversity in law school usually push for formal rights
based institutions that promote access to justice – but informal mechanisms
should be explored as a means of increasing representation
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Informal institutions play a dual role – reifying ‘old boys networks’ and
reproducing exclusionary practices as well as affirming spaces that promote
inclusion
Mentor or Role Model?
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Critique of the model of role models to increase faculty diversity
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Richard Delgado is one of the leading commentators of race in
the US. He is a professor at the Seattle University School of Law
who teaches civil rights and is a proponent of Critical Race
Theory. He says that when role modeling is applied to people
who have historically been disenfranchised or underrepresented
in legal profession, it promotes tokenism. Questions of access
and privilege.
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Role models are used as examples of success to encourage
others in their group to follow the same path but also used to to
rebuke those who do not succeed in the same way.
ROLE MODELING ECLIPSES
SYSTEMATIC NATURE OF EXCLUSION
Lani Guinier is a lawyer, scholar and
civil rights activist in the U.S. She is
the first Jewish/African-American
women who is a tenured professor at
Harvard and her work focuses on the
professional responsibilities of public
lawyers, the relationship between
democracy and the law, the role of
race and gender in the political
process and equity in college
admissions and affirmative action. She
says role modeling serves to eclipse
attention to the systematic nature of
exclusion.
ROLE MODELING
MODEL MINORITY
According to Guinier, the idea of a role
model trivializes the important
contributions that outsiders can make to
a faculty and focuses on singular
achievements of a person from a specific
culture or race, without looking the
multiple identities and experiences of
marginalized peoples.
So Mentoring Is…
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“…about building relationships across differentials in age,
experience, power, with the explicit purpose of expanding the
life options or advancing the career of the mentee”
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For Guinier, it moves beyond cultural icons towards “a process
of dialogue that monitors student performance and hold those
who follow to high expectations. Mentors see learning as a
dynamic process that builds on students’ emotional engagement
and emphasizes the mutuality of their role in the educational
conversation.”
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Blackett emphasizes the potential of the mentoring model for a
deeper access to justice project
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Delgado “Rodrigo’s Chronicles”
So Mentoring Is…
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Guinier: Understands mentoring as part of her role as
an educator
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Should not only be the job of under-represented
educators (including visible minority and women)
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In a pool of meritorious candidates, those effectively
mentored will usually be preferred – and mentored
candidates may bypass the formal candidate pools
altogether
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Mentoring the other as a critique of institutional
racism and also as a response to the lack of
equity/access in informal mentorship
Rethinking Merit
• Scholarly attention to mentoring
leads to rethinking and
complicating the notion of merit
• Challenges the tendency that
proponents of equity initiatives
favor formal structures over
informal structures
Rethinking Merit
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Traditional approaches to access of justice – focus on formal
channels of access
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Equity initiatives to diversify law schools have been put in place
in US and Canadian schools
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BUT, since the 1960s, these initiatives have relied on formal
criteria like LSAT – growing body of material challenging notion
of a color-blind meritocracy and objectivity of standardized
testing
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Questioning the idea of merit itself is at heart of CRT – very real
limits of formal mechanisms to promote meaningful equality
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Attention to informal sphere is what Blackett calls “crucial but
troubled work.”
Sources of Concern of
Mentoring the Other
• Public-Private Nature of
mentoring
• Informal nature of mentoring
• Power imbalance (Patricia
Williams – Contracting while
Black)
Challenge of Cultural Pluralism
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Challenge to dominant groups to think about if mentoring can sustain
difference enough to move outsiders into the center without having to
assimilate
Teaching positions = scarce societal resources = access to an institution
that distributes or withholds power . Equitable allocation is necessary.
People should be represented in institutions that have power over their
lives – so if mentoring cannot be promoted across difference – then
mentoring itself needs to be called into question on equity grounds.
Mentoring the other – if minority faculty are necessary for the
empowerment of subordinate groups, then this tactic should be taken
seriously by members of dominant group who say they are committed
to increasing diversity in a real way in their schools
Mentoring goes beyond formal inclusion policies – deeper sustained
relationships of guidance to ensure access for members of
underrepresented groups to be part of legal establishment
What would this take?
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Politicization of campuses where all members of dominant
group take it upon themselves to mentor students - potential
and actual – from historically disadvantaged communities
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This may be unlikely as law schools traditionally serve dominant
groups and the often dehumanizing atmosphere of law school
may not create the space necessary for an academic to mentor
one that is not like oneself
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Challenges to mentee– the other may find difficulty in seeing
his or herself in a mentor that represents dominant perception
of law: white and privileged
Suggestions and Critiques
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Suggestion: formalized mentorship programs – but this sidesteps deeper
questions of cultural pluralist vision of inclusion in academic work
Mentees can have several mentors, academics take cross-cultural
training
Educator’s mentoring work – source of ambivalence – Assimilative or
Transformative?
Insider-Outsider – Dual Subjectivity
Mentoring the other: way for academics from dominant groups to
acknowledge own privilege and way of being in the world and ideas of
merit - they could become critical of status quo by sharing access with
“other”
Would members of dominant groups actually embrace the change that
followed if people from traditionally excluded communities had power
and opportunities to create research and scholarly traditions of their
own??
Herma Hill Kay: “Our future depends on the
lived out, myriad examples we dare to impart to
our colleagues and our students…that will help
them to define their own lives as lawyers, judges,
or law professors as well as human beings.”
Mentoring : Liens et intégration
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Critical Race Theory
o
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Actions positives pour l’égalité substantielle
Accès Formel / Informel à la justice
o
o
o
o
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Normes juridiques formelles et informelles
Stabilisation des attentes mutuelles (Bartlett + Fuller)
Pluralisme juridique
Le droit et la culture
Économie:

o
Les incitatifs
Valorisation du mentorat dans la communauté
Mentoring : Liens et intégration
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Queer theory
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Mentoring v. Role Model
Prédétermination des besoins?
Discussion