Let’s put bad fact patterns to rest

Florence Ashley
Oct 29, 2018 · 6 min read

It is a longstanding law school tradition to enflame the passions of students and invite controversy through insensitively drafted fact patterns. Most often, the controversy erupts because a teacher or tutorial leads, wanting to motivate students, chose a “hot-button issue” as a start for the fact pattern. Almost without fault, those topics involve marginalised groups and students are invited — or forced — to argue a position that it is inimical to this group’s rights and interests. This year is my sixth at the faculty — first as B.C.L./LL.B. student, now as a LL.M. candidate — and I am assailed with a feeling of déjà vu.

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Those who I believe to be currently in 4L will remember the controversial fact pattern which, a few years ago, played on tropes of Indigenous criminality and invited some of the students to argue against the application of Gladue sentencing factors. For those who have yet to see Gladue sentencing factors in class, they were adopted by the Supreme Court in 1999 to address the overincarceration of Indigenous individuals and sets out that the full social factors which contribute to Indigenous overincarceration as well as Indigenous-led sentencing principles such as restorative justice should be considered at the sentencing stage.

This year, the fact pattern involves the unnecessary deadnaming of a trans litigant and invites students to defend a newspaper’s decision to out her to the world. For those of us who are trans or have trans friends, we know this to mean that she will be subjected to harassment, discrimination, and potentially violence in the future.

Although the fact pattern is fictional, the people who must write on it aren’t. We have trans students at the faculty who are repeatedly deadnamed in their private lives. When a fictional litigant’s deadname is casually revealed without any good reason whatsoever, it reinforces students’ mistaken assumption that they must know trans people’s deadnames, and that it is appropriate to ask for it or to disseminate it. The routine revealing of trans people’s deadnames is part of what a philosopher I know called the “curiotisation” of trans lives, a process that operates by the alienation of trans lives from their socio-psycho-historical context. In the context of deadnaming, the alienation from context is most salient in the fact that the very idea of revealing deadnames is experienced by my trans people as highly distressing. Indeed, many of us find it distressing to learn of other people’s deadnames because it traumatically recalls us to the perpetual risk of outing and of the weaponisation of our past as a way of invalidating our genders in the present. (For more on misgendering, see DOI: 10.7202/1046498)

Fact patterns in which students are invited to argue against marginalised groups’ rights and interests has at least three further effects: (1) they generate a perceived atmosphere of hostility toward that marginalised group, (2) they force students to argue in favour of positions they are morally averse to and would refuse to defend in their legal practice, and (3) they disproportionately negatively impact the future opportunities of students from that marginalised group.

It doesn’t really matter whether the students are for or against the imposed position. Hearing students orally defend the position in the atrium, knowing that at least some of them actually do support it and will happily take the opportunity to further their opposition to the group’s rights, and imagining students argue in favour of your rights being denied suffices to create a hostile atmosphere for students of that group. Indeed, I am rarely if ever physically present at the faculty nowadays since I am working on my thesis and publications, and knowing that the fact pattern existed was enough to send me in an emotional downward spiral — especially when added to the broader context of negative (read: life-destroying) developments in the U.S. and on the international scene regarding trans rights the last few weeks.

An article I particularly like in bioethics regards “undue inducements”. In their seminal work on the topic, Ruth Grant and Jeremy Sugarman (DOI: 10.1080/03605310490883046) delineate a range of research conditions which they consider to be unethical. For them, it is immoral to induce participants to act in ways that they are morally averse to or which is inimical with human dignity. The underlying idea is that you shouldn’t force people to debase themselves. By making people, some of whom are trans, some of whom have trans friends and family, argue against the bare right of trans litigants not to be publicly outed when their being trans isn’t at issue, the fact pattern is forcing people to argue in ways they are morally averse to. The incentive here goes far beyond what we might call undue inducements: in undue inducements, the unjust situation is not of the researchers’ making, but they exploit it — for instance by giving large sums of money to poor participants — to incite action. Here, it is of the faculty’s own creation: they either argue in ways they are morally averse to or they jeopardise their future legal career with a bad grade. This is properly coercive.

If I were a 1L today, I might refuse to write the fact pattern from the imposed position. I have indeed refused to participate in an in-class event, last year, during which I was asked to defend against civil sanctions someone who engaged in hate speech against queer people. The outcome of this unaccommodated refusal, within the 1L context, probably would have meant losing at least a full grade point if not failing the course. The impact on my career would have been noticeable: more likely than not, I would not have been set to become the first known openly-trans clerk at the Supreme Court of Canada, an achievement that is not only dear to my heart but to the Canadian trans community as a whole. Having a disproportionate adverse impact on students belonging to a marginalised group is the hallmark of discrimination. Whether or not it amounts to discrimination in a legal sense, we should seriously reconsider fact patterns of this kind.

Being critical is easier than being constructive. Although I do not want to suggest that people who criticise have a duty to provide solutions — criticism is hard and undervalued labour — I also want to make some recommendations for the future.

I am not suggesting here that fact patterns involving marginalised groups should be abandoned. However, they should not be presented in a way that is disrespectful to the group, they should avoid relying on stereotypes and tropes, they should not force students into a position hostile to that group’s interests or rights, and the positions should not be framed as a necessary duality.

The first two suggestions should be relatively straightforward and probably do not warrant much explication. If teachers and tutorial leaders proposing fact patterns are unable to guarantee with relative confidence that the fact pattern is respectful, it may be best to choose a different one. This includes being attentive to the socio-political context of the fact pattern and avoiding associations to relatively recent traumatic political events.

When suggesting that fact patterns should not force students into a position hostile to a marginalised group’s interests or rights, I do not mean that students who disagree with their assignment should be able to go see their teacher and change the party they are arguing for, but that no position should be either imposed or strongly recommended in the first place.

The last recommendation is meant to address cases in which, although no position is imposed on students, the structure of the exercise presupposes that both sides will or should be represented by students. This occurs when tutorial groups or in-class groups are separated based on which party they represent as well as when the exercise includes a debate during which representatives of each side face off. Though this may not directly impact the future options of students or force them to act in ways they are morally averse to, it contributes to a hostile learning atmosphere for some students.

The world is hostile enough as is, let us not make law school yet another place we can’t exist in peace without being constantly reminded of the hatred people have for some of us. How many more students will have to feel like they don’t belong before we change how we write fact patterns? This change is long overdue. Let us hope that in the future, no student will feel like their own faculty is contributing to their marginalisation.

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