Lawyers, Snails, and Bottles: The Creeping Pace of Change in the Law

• Author: Melina Buckley
• Pages: 119-134

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Lawyers, Snails, and Bottles:

The Creeping Pace of Change in the Law

melina buCkley

   a majestic image in contemporary society. The impressive

wood-panelled courtrooms; the forma l language and style of dress; the

wise, stern, rega l judge on the dais; and the heavy sou nd of the gavel ac-

companying stern pronouncements of rights and w rongs together provide

the law with an authority t hat is unmatched in today’s informa l, fast-paced,

anything-goes society. As a lawyer whose work is focused on public inter-

est litigation, however, my image of the law is less leonine and more gas-

tropodal: the most apt sy mbol is a snail rather than a lion. Let me ex plain.

PubLIc Interest LItI GatIon and test cases

   law generally involves mak ing the existi ng body of law

work as best as one can for a client. Typically, a lawyer will listen to a

client’s situation, problem-solve, and apply the law as it stands. There is

room for creativity in stretchi ng the boundaries of a statute, regu lation, or

established legal pri nciple to get a good result. This is particu larly the case

where a statutory provision or regime ha s been newly adopted and there

is a greater degree of scope for novel argumentation as to how it should be

interpreted and applied. However, generally speaking, t he boundaries of

the law itself are not brought into question. The motivation of a law yer in

a standard ca se is to provide the best service to a client, a nd this serv ice-

    

[120]

orientation is tied to the twi n goals of professionalism and prof‌itabi lity

that animate lega l practice.

An alternative form of legal practice is one that is concerned with

changing the law itsel f. The main route to statutory change is through

the ballot box since it is the parlia ment or other legislative authority that

has the responsibilit y to revise existing legislation to meet cu rrent societal

needs and to adopt new laws when conditions require it. However, the law

also adapts and ch anges through the force of court decisions . Many legal

principles have in fact been developed by judges over the centuries in re-

sponse to gaps in the law, in applying laws to specif‌ic f act situations and in

ensuring th at laws have an equitable impact on litiga nts. Constitutional

adjudication is one major avenue for changing the law. A constitution is

the supreme law of a country, which means that it supersedes a ll other laws.

The judiciary has the responsibil ity to ensure that a ll laws, regulat ions,

and governmental policies and pract ices are consistent with constitutional

provisions. Once a court ma kes a decision interpreting the Constitution in

a given situation, the government has no choice but to act in accordance

with the court’s decision. It can not reject or ignore a court’s decision on

the Constitution. The cour ts then are a secondary, but nevertheless crucial,

arena for lawmak ing and more specif‌ically for changing the l aw.

Some lawyers, including myself, focus thei r practice on making the law,

and the legal system as a whole, work in a fai rer, more equitable way. This

type of practice is motivated less by achieving results for an indiv idual

client and more by achieving overarching moral, political, or socia l goals

through legal advocacy st rategies. This is often referred to as public inter-

est practice or “cause lawyering”1 or, by its detractors, as “ hobby litigation.”

In contrast to a traditiona l legal practice, the ser vice-orientation is more

expansive since the objective is to improve the law a nd the administration

of justice for the benef‌it of the many, rather than to solve the problems

of a specif‌ic client. The indirect ef‌fects of a public interest case on the

legal system and society a s a whole are greater than the direct ones on the

parties to the litigation. T his altern ative practice is consistent with lega l

professionalism and par ticularly with the duty to act in t he public interest

and to continually work toward improvements in the administration of

justice. 2 The prof‌it motive is non-existent in these cases, and few lawyers

1 Austin Sa rat & Stuart A. Sch eingold, eds., Cause Law yering and Social Movements

(Stanford: Sta nford University Press , 2006).

2 Canadian Ba r Association, Code of P rofessional Conduct (Ottawa: Canadian Bar Asso-

ciation, 2009), on line: CBA Code of Professional Conduc t www.cba.org/CBA/act ivities/

pdf/codeofconduct.pdf.