An illuminative discussion with one of Osgoode’s finest
In the inaugural piece of what I hope is to become a recurring feature with different instructors, I sit down with Professor Berger for a chat about his career and what he likes to do to unwind.
Tomi Milos (TM): I know a little bit about your decorated path through school, but I’m curious as to when you developed a taste for academia. Did you always know you wanted to be an intellectual or did you have other dreams as a child?
Prof. Benjamin Berger (BB): Oh no, the desire to be in a university as a career was really late in coming to me. When I was very young, I did think about being a lawyer, but I kind of imagined myself as a courtroom lawyer, engaged day to day in the practice of law, but it was vague. I also imagined I would have a jetpack by the year 2000, so I didn’t have a very good grasp on what was realistic in the future. Although it is shocking to me that we don’t have jetpacks in 2020.
What happened was that I had this vague interest in politics. I guess more than vague. I had a curious interest in politics and in law as a kid. (TM: What age are we talking about?) Oh, you know, I grew up in Alberta, so it’s elementary to junior high. Elementary goes to grade 6. 7, 8, 9 is junior high. So, I’d say, later on in elementary school when you start thinking you know what you want to do. In junior high, it was this vague interest in politics and happenings.
But I was also just very interested in literature and in books, so in high school and in junior high I just came across some amazing teachers who completely ignited my interests in books, arts, and literature. Though I remained very interested in a range of things — I liked physics and chemistry — I loved literature. So, I just had fabulous teachers who connected with me on that. Over the course of high school, I had this really strong, developed sense of interest in books, writing, and in history to some extent. And then by the end of high school I was struggling with what I was going to do. I was thinking about anything from dentist, physiotherapist, to arts, and law was sort of dropped for a little bit.
Then in university, I started in Honours English. I took a course in Religious Studies, then I switched over to that because it gave this really broad world of thinking about history, about philosophy, about cultures, about people put their lives together, about how communities interpret their experiences. I really got into that and was very close to or maybe even applied to grad school in religious studies, but then I had an encounter at a lecture with a professor, John McLaren. He’s now an Emeritus Professor at University of Victoria (Editor’s Note: Go Vikes!), but he was doing a little bit of early work on history, law, and religion and that made me think, “You can be a law professor, that’s a thing.” By then I was pretty sure I wanted to be at university, but this switched things a little bit. I realized I still had this itch for law and saw that it at least wasn’t off the table — I wasn’t closing a door to being at a university if I went to law school — so I decided to go to law school.
At law school, I didn’t know whether I wanted to be a professor or not. I loved my summer articling experience at Avray Finlay with Joe Arvay and Murray Rankin doing constitutional and public law litigation. That was my summer articles, which is a thing in BC; I did my formal articles clerking. I got a clerkship and thought I’ll do that next, that’s really appealing to me. Once I was clerking, I was either going to go to grad school or start in the practice of law and I got into the grad school I wanted to go to (Editor’s Note: a little school called Yale) and the rest is history.
So, it was kind of following my next most interesting thing and a little bit of serendipity.
TM: Going back to that time in elementary school, how did that interest in the law manifest itself?
BB: One other member of my extended family is in law, and so is my dad, who is a recently retired judge of the Court of Appeal of Alberta, and no doubt that was super influential. Whereas my sister was interested in fine arts and has remained so her whole life. I don’t know what the alchemy of nature and nurture is, but my dad was certainly there to feed my interest in law. That being said, he was also there to feed my interest in math. So, I don’t really know what drove that. I will say that there was a period where it felt like law was off the table.
TM: Could you tell me about a favourite memory from your time clerking for Chief Justice McLachlin, as she then was, or Bev as she’s known to Section A.
BB: (laughs) She is not known as Bev to Section A, but only known to Aidan as such. (Editor’s Note: Inside joke)
There are so many, it was just such an incredible experience. I spent a good portion of my time there as many of us do — at law school, or in our law jobs — thinking “do I belong here?” or all of that kind of stuff which is super familiar to all of us in one way or another. We all deal with that.
I would say there are a range of good memories. She’s the hardest-working person I’ve ever met. The standout moments go from simply being called in by the then Chief Justice and hearing, “Can we talk?”, and then you put on your suit jacket and down you go and talk about a case. Those were the times I looked forward to the most in my time clerking, as I invariably learned the most through those interactions. She’s a superb teacher; patient, kind, incredibly bright, and a great mentor.
But going to have Christmas dinner at their cottage in Gatineau, Quebec was a personally special moment of openness, generosity, and kindness. I don’t celebrate Christmas, so dinner with them was really nice. It was thoughtful and gave me a place to be. So, there were personal moments that really stood out to me.
The way that she modelled the regard throughout for work, and for the beautiful things in life — art, poetry, literature, nature — and that the two together matter for living a life well has stuck with me very strongly.
TM: Can you point to any seminal pieces of scholarship that you think every law student should read? Or scholars to make note of?
BB: I can think of many, but I’ll pick one. I hope all law students, in terms of legal scholarship, will have an exposure to Robert Cover. He wrote a couple of pieces I like, one called “Violence and the Word,” and the other, “Nomos and Narrative.” Both talk about the way that the law is both real and practical and has deeply consequential impacts on people’s lives; that it’s violent, that it disrupts community, that it interferes in a bossy, disruptive way, and that it’s an imaginative way of putting together our world that we have to care for if we want it to be good.
I think the way that Robert Cover thinks about pluralism and the character of law is really refreshing. In one of his pieces, that’s remained important to me my whole career, he begins by saying something like “a law student could be forgiven for confusing the procedural accoutrements of the law with the law itself.” We have all of these rules and procedures and systems, but a lot of it is an imaginative endeavour for better and for worse, so I think that’s really useful to consider.
I would like as a genre and I would like us as a school to do more to introduce students to legal history and comparative law. Because it’s too fast, it can start to feel that the law you’re learning is furniture that’s bolted down. But it’s not bolted down, you can move it around in all kinds of interesting ways and legal history gives you a sense of how what we are learning now hasn’t always been this way — it’s changed over time, it’s moved, it’s evolved — and comparative law shows us that it doesn’t have to be this way today, that it’s different in our world today.
I’d love in terms of genres of people learning about while in law school is to think a little more about comparison and history. I think it enriches your law school experience a lot.
TM: You dealt with this a little bit in a previous answer, but what informs your interest in the intersection of law and religion, as well as criminal law?
BB: Those are the two kinds of hemispheres of my work. If I had to describe two hemispheres, I would say, criminal justice in theory, and law and religion and constitutional.
Law and religion was a linking up of the interests. I’ve always had an interest in the way communities and individuals use narratives, ideas, stories, to shape their experiences and to make sense of really complicated collective and individual lives. Our lives are extremely complicated; they involve joys and suffering, they involve triumph and disappointment, collectively and individually, they involve harm and kindness…all of those things. So, in a complex world, how are we going to live together well?
Religion is one technique some communities have used to try to make sense of their experience, it’s not the only one. Law is another technique we use that’s about stories, and narrative, and making sense of the experiences that we go through collectively and individually. It’s that link from my background in religious studies that carried over into my interest in law that has tethered those fields together at a fundamental level. I’m really interested in the way that the law lands in people’s lives, in doctrine, in the way that we make sense of the law’s effect on people’s lives. But at a very fundamental level, I’m interested in the way that we make sense of this kind of crazy existence. Law, religion, and a variety of other fields of human endeavour are some of the tools we use, and I’m interested in those tools.
TM: You wrote an article for the Osgoode Law Journal in 2007 dealing with the Canadian Constitution’s limited means of dealing with religion. Was that the jumping off point for your book, Law’s Religion, in 2015?
BB: Yes, that and certain other articles set out planks in the argument that would eventually be Law’s Religion. The articles responded to issues that I was working on at a given point. But there was a larger story to be told… an underlying and deeper story. The book was the chance to bring some of those existing elements together, to add new pieces of the argument, and to tell that deeper story. Sometimes a book will BE present from the beginning as a book project. Sometimes it is the result of ongoing work and the feeling, with time, that a larger story needs to be told. For me, Law’s Religion was the latter.
TM: Aside from your research interests, what do you like to read or watch every day? Any guilty pleasures? I know you’re a fan of Brooklyn 99 from your practice questions.
BB: That’s right… I experience a paradox that I think a lot of people experience: reading fiction and non-work non-fiction is one of the things that most anchors and pleases me. And yet at the times I need that the most — the busy and stressful times — that reading is often the first thing to go. So I am always working on bringing that reading back into my days, particularly when things are busy.
One thing that I never let drop away is the Edmonton Oilers. It’s been hard to be an Oilers fan over the last many years, but moving to Toronto and seeing that the pathos here is even worse has been a comfort! I watch about 75% of the Oilers games. It’s not great for my sleep, but it’s wonderful for my happiness.
TM: Is there any advice you would give to students unsure of what they’re interested in or want to do?
BB: I have been well guided by the attempt to pursue the next most interesting thing. I recognize that my career looks to some as though it followed a clear and efficient plan. It did not. It was never very clear to me where I would end up. At each decision point I did my best to reflect on what felt like the most exciting, challenging, and compelling next step, and then tried to pursue that. One doesn’t always have the flexibility to do that, and that has to be respected. But, where possible, taking some time to reflect on what, of the opportunities realistically available to you, is the next most exciting or interesting opportunity helps you to steer into your passions and, with that, to tap into those deeper resources that allow you to flourish. Sometimes your answer will not accord with what others think is the most sensible next step. But having a real dialogue within yourself as to the relationship between “the next most sensible thing” and “the next most interesting thing” is, in my view, a recipe for long-term happiness.
TM: Now you get to nominate a colleague to speak to me next.
BB: Professor Kidd White. A quick reason: she is both wickedly smart and uncommonly kind. A person like that is worth learning about!