I was one of those rare law students who knew exactly what they wanted to do after law school. I was going to be a labour lawyer. For a burgeoning labour lawyer, you wanted a law school with depth in labour law faculty, and there were several great options to chose from in the early 1990s.
U of T had David Beatty, Brian Langille, Patrick Macklem, Stan Schiff, and Katherine Swinton (now a judge) on faculty, all specializing in labour law in some form. Queens also had a stellar group of labour law profs, led by Bernie Adell and Donald Carter. Paul Weiler had left Osgoode Hall Law School by the time I got there, but Osgoode still had the great Harry Arthurs, Harry Glasbeek, Judge Fudge, and Eric Tucker. Most of the leading labour lawyers in Ontario (and many in the other provinces) went to one of these three schools, but Western and Windsor also had strong labour law depth, as did Dalhousie in Halifax, and the Quebec law schools had (and still have) great depth in the field.
It turns out that the 1990s marked the end of the glory days for the Canadian labour and employment law in Canadian law schools. I was reflecting on this the other day, when I learned that Professor Judy Fudge had left Victoria Law for a job at Kent University in England. With that departure, the province of British Columbia now has exactly zero law professors who claim labour and employment law as their area of speciality. Today, there isn’t a full-time labour law professor at a law school in Canada west of Saskatoon.
The State of the Labour Law Academy Today
UBC Professor Joe Weiler knows labour law, but he has mostly moved onto other fields. Janine Benedet at UBC works in labour law and is on Labour Law Casebook group with me and others, but I think Janine would agree that labour law is not really her main area of focus. Try to find labour and employment law as the area of speciality of any faculty on this list of UBC faculty areas of interest. Thompson Rivers Law has only been around a few years, but it has no one with labour law expertise. The lack of labour law depth anywhere in B.C. might explain why I always have students flying in from B.C. to take the Osgoode LLM program in labour and employment law. In British Columbia, labour law appears to be considered a technical legal trade that can be taught by practitioners in a nuts and bolts format, not requiring faculty expertise, research, scholarship, or other contributions to the Canadian or global labour law community.
The Alberta law schools have long had smart faculty who teach and occasional write papers in labour and employment law, but no one would suggest that these professors specialize in labour and employment law. Today, two professors at U. of Alberta list labour and employment law among their areas of interest (Eric Adams and James Muir), but Professor Adams publications suggest his real scholarly interests lie elsewhere, and Professor Muir is principally a historian, cross-appointed to History, though he does some very good work in labour history. Not a single faculty member at the U. of Calgary lists labour law as a research or teaching area of interest, neither does UNB. At Manitoba, Bryan Schwartz does some labour law work, but his primary focus is in Constitutional law. Saskatchewan has Ken Norman and Beth Bilson with backgrounds in labour law, though both appear to be focusing on other areas of law these days in their research publications.
The story is somewhat more rosy in Ontario, though the days of having 4 or 5 labour law scholars on faculty are long gone. Osgoode Hall Law School lost Harry Arthurs and Harry Glasbeek to retirement and Judy Fudge to transfer in last 15 years, and hired only Sara Slinn as a replacement, leaving just Sara and Eric Tucker. That’s a drop from 5 to 2 in labour and employment law depth, and labour law has not been listed as a target area of recruitment since Sara was hired. Queens lost Bernie Adell and Donald Carter to retirement, but hired Kevin Banks and recently Wanjiru Njoya, who does some labour law. Windsor last year hired Claire Mumme in labour law to join Brian Etherington, which is great news. Western has Michael Lynk and Gillian Demeyere, and U of T still has three strong labour law faculty members (Brian Langille, Patrick Macklem, and Kerry Rittich), but this is still fewer than in the past. On the other hand, Ottawa, now the largest law school in the country (I think) with a faculty that has been growing by leaps and bounds, and located in the middle of constant labour strife and legal issues arising in the nation’s capital, still has not a single full-time labour and employment law professor! What’s that about?
Wither Labour Law Scholars?
The decline in labour law faculty in Canada is not unique to Canada. My friend Cindy Estlund at NYU Law has described a similar devolution in America in her paper, The Death of Labor Law? When we labour law profs get together at international conferences, we often hear similar stories from other countries. In part, it is a trend that reflects the decline of collective bargaining more generally. As the scope of unions and collective bargaining declines, so too does interest in the legal rules that govern that process. Powerful political and economic forces have an interest in alienating labour law and its tendency towards income distribution and worker empowerment. It is probably not a coincidence that the decline of labour law faculty components has paralleled a rise in private sector funding of law schools and ‘distinguished chairs’ in corporate law and other business related legal fields.
But labour law is about law and work, and not just unions and collective bargaining. The complexity of governing work and employment has not receded. Indeed, employment law is growing in complexity with developments in regulation, human rights law, and the common law of contracts. How to address growing income inequality is among the most important policy challenges facing Canada and the world today. Labour Law knows a lot about how law can address income inequality. The newspapers are full of stories about the challenges of governing labour markets–think the temporary foreign worker fiascos, social media and the workplace, the shift to ‘self’ employment and the absence of regulation to protect those workers, the effects of ‘free trade’ on labour markets, the use of sweatshop labor, the challenge of maintaining decent pension plans in times of market crashes and austerity, and so on. These issues all raise complex issues of law and policy, and they are all matters for labour law and its experts.
Some of Canada’s leading labour lawyers on both the management and union side have expressed concern about the declining fortunes of labour law in law schools, and are pushing for law schools to rebuild their labour law component. They are concerned that without dedicated leading faculty, fewer quality students will be drawn into field and the profession, and that the quality of lawyers entering the field will decline. This was the sentiment expressed by both Jeffrey Sack (Sack Golblatt Mitchell) and Brian Burkett (Fasken Martineau) when I invited them to speak on the issue to my LLM class recently. They pointed out also that labour law professors have been influential contributors to the development of the Canadian model of justice and social security over the years. Great labour law scholars like Bora Laskin, Harry Arthurs, Innis Christie, and Paul Weiler and others helped shape legal institutions that defined Canada’s legal model.
Jeffrey and Brian argued that the study of labour law develops important skills and insights into how law and legal institutions can (and cannot) influence behaviour and economic and social outcomes. The decline of labour law as a discipline in law schools threatens not only this important area of the legal profession, but also our legal and institutional memory of the teachings and insights of some of the world’s great thinkers on matters that remain hugely important today. And yet there is a real question today about whether there will be a next generation of labour law scholars in Canada. If there are few academic jobs for labour law experts in law schools, there will be little sense in studying labour law in graduate school, and qualified candidates will dry up. Even if labour law makes it onto the hiring agenda of a law school, a failed search will result when no star candidates apply. It’s a vicious circle that may already be entrapping the discipline.
There’s still time for the profession to alter this course. I hear that Victoria will try to replace Judy Fudge next year, and that Queens has plans to hire another person with labour law expertise down the road. Will there be top talent to fill these positions? Will other law schools replace retiring labour law scholars, or just use practitioners to teach the core courses? The future of our field is uncertain. The loss of labour law as a vibrant legal discipline would be a great loss to society.