Peer-review papers by undergraduate students are a rarity in the world's legal research periodicals. When undergrads are credited in such journals, it is most often in a collaborative capacity together with a professor or other senior legal expert in a mentorship role.
The Fall 2018 edition of the Alberta Law Review feature an article by then third-year University of Alberta Faculty of Law JD student Michael Custer - and by him alone.
The paper, entitled "The Presumption Against Interference with Vested Rights: Creating Structure Out Of The Confusion," was originally envisioned as a co-authored piece together with Professor Cameron Hutchison, for whom Custer currently worked as a research assistant. However, an initial draft persuaded Prof. Hutchison to let his student fly solo on this one.
"I hired Michael to help me research an area of law with a view to co-writing a paper on it. He came back with a write-up that was so good that I suggested he publish it single-handedly. It's very unusual for an undergraduate student to publish a paper of this kind, and it's a real tribute to his abilities," said Hutchison.
The paper focuses on "interference with vested rights," an area of law that pertains to the enforcement of prior legally binding conditions in the aftermath of change to the relevant laws. The language around vested rights, Custer explains, is notoriously messy, and while many new principles and approaches to the topic have been put forward over the years, few if any attempts have been made to address the crux of the problem: what sort of unifying framework should be used to approach the issue.
"As an illustration, I developed a hypothetical scenario wherein a lender and a borrower agree to a car loan with an interest rate of ten per cent, and a law is subsequently introduced that caps such interest rates at five per cent, to see how the law of statutory interpretation would affect the rate. I then propose a general structure, which incorporates the principle of ensuring fairness, with the aim of more clearly delineating where the line between enforcing prior rights and overriding them should be drawn," said Custer.
The lack of clarity around statutory interpretation in general has been a point of contention among top jurists for decades. In a 1996 ruling, Supreme Court of Canada Justice Claire L'Heureux-Dubé called out Canada's top court for its lack of coherent and consistent methodology in its application of statutory interpretation. In his paper, Custer argues that the courts' "patchwork" approach to vested rights in particular risks creating conflicting precedent, making it even harder to interpret the law.
ALR editor and UAlberta Law classmate Curtis Auch further underlined the importance of Custer's paper.
"At the ALR, we seek to publish articles that can help educate and inform members of the legal community in Alberta, and statutory interpretation is an area where this is particularly needed. It is often thought of as being limited to basic maxims of interpretation like expressio unius, but it's much deeper than that, and we're thankful that Michael is highlighting this fact our readers. This stands to be a major scholarly contribution on this subject," said Auch, further adding that it is particularly unique coming from an undergraduate researcher.
Now a new graduate, Custer is articling at Carscallen LLP in his hometown of Calgary. While his plans remain somewhat up in the air, he is already seriously considering returning to school after a few years of law practice to pursue an LLM.
"I've really enjoyed this foray into academia. I don't know yet if I want to be an academic in the long run, but I've certainly enjoyed this and I know I want to do more of it," he said.
The Alberta Law Review is a student-run publication founded in 1955 for the purpose of enhancing discourse on important legal issues affecting Canadians. The journal is published by the Alberta Law Review Society, which is overseen by students from the University of Alberta and University of Calgary Faculties of Law.