Canadian Contract Law Teaching and the Failure to Operationalize: Theory Practice, Realism Formalism, and Aspiration Reality in Contemporary Legal Education

This dissertation examines the attitudes, pedagogical practices, and teaching materials of Canadian contract law professors to better understand the relationship between theory and practice in legal education. Professors express a widespread aspiration to translate theory into practice – to incorporate theoretical and critical perspectives as a means of producing “better lawyers.” However, an analysis of the substantive theoretical attitudes about law reveals that this aspiration is imperfectly realized. When professors describe their beliefs about law, they overwhelmingly express strong commitments to realist and critical ideas, drawn largely from American legal thought, that emphasize law’s contingency and indeterminacy, and that construe considerations of policy, context, and politics as central to an understanding of law. However, the attitudes about law reflected in key manifestations of “practice” reveal an apparently contradictory set of commitments. Professors describe and conceive of legal reasoning, which can be considered a foundational practice shared by legal professionals, in a way that foregrounds formalist attitudes of law. These conceptions treat judicial reasoning seriously, privilege the importance of doctrine, and emphasize the determination of relevance with reference to an internally coherent set of rules – all of which effectively marginalizes considerations of policy, politics, and context. Moreover, the way professors teach, how they formulate their learning objectives, the decisions they make about substance, and the materials they use all put into practice these formalist ideas, rather than the realist and critical attitudes to which professors are purportedly committed. A similar tension arises as between critical introductory statements in Canadian contract law casebooks and the casebooks’ more conventional presentation of substance, as viewed through the remedies chapters. These observations imply that Canadian legal thought may be characterized by theoretical eclecticism co-existing with methodological homogeneity, a failure to operationalize theoretical commitments. Moreover, the dynamics reveal a complex interplay between structure and agency in legal education in which professors participate affirmatively in reproducing the structures that condition them. This complex interplay partially accounts for the tenacity of conventional categories, concepts, and pedagogical formulae, and is a crucial factor to understand in the pursuit of any transformative vision for legal education.S.J.D