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This book offers a radical challenge to accounts of the common law's development. Contrary to received jurisprudential wisdom, it maintains there is no grand theory which will explain satisfactorily the dynamic interactions of change and stability in the common law's history. Offering original readings of Charles Darwin's and Hans-Georg Gadamer's works, the book shows that law is a rhetorical activity that can only be properly appreciated in its historical and political context; tradition and transformation are locked in a mutually reinforcing but thoroughly contingent embrace. In contrast to the dewy-eyed offerings of much contemporary work, it demonstrates that, like life, law is an organic process (i.e., events are the products of functional and localized causes) rather than a miraculous one (i.e., events are the result of some grand plan or intervention). In short, common law is a perpetual work-in-progress - evanescent, dynamic, messy, productive, tantalising, and bottom-up

This book offers a radical challenge to accounts of the common law's development. Contrary to received jurisprudential wisdom, it maintains there is no grand theory which will explain satisfactorily the dynamic interactions of change and stability in the common law's history. Offering original readings of Charles Darwin's and Hans-Georg Gadamer's works, the book shows that law is a rhetorical activity that can only be properly appreciated in its historical and political context; tradition and transformation are locked in a mutually reinforcing but thoroughly contingent embrace. In contrast to the dewy-eyed offerings of much contemporary work, it demonstrates that, like life, law is an organic process (i.e., events are the products of functional and localized causes) rather than a miraculous one (i.e., events are the result of some grand plan or intervention). In short, common law is a perpetual work-in-progress - evanescent, dynamic, messy, productive, tantalising, and bottom-up

Table of Contents -- Preface -- Constitutionalizing Procedure -- Constitutional Consideration Concerning National Class Actions -- The Constitutional Position of Civil Remedies: Is Access to the Courts Guaranteed? -- Aboriginal Self-Government Rights: Background and Emerging Issues -- Treaty Lands and Crown Authority: The Impact of Delgamuukw, Badger, and Marshall in Ontario -- Evidence in Aboriginal Title and Other Aboriginal Rights Cases: After Delgamuukw and Van der Peet -- The Legal Framework Governing Secession in Light of the Quebec Secession Reference

Frontmatter -- Contents -- Preface -- 1 Playing the Game: An Introduction -- 2 It's All in the Game: Adjudication in a Nonfoundationalist Way -- 3 The Language Game: From Ambiguity to Indeterminacy -- 4 Playing with Authority: Interpretation and Identity -- 5 A Pure Way of Playing: The Naturalist Revival -- 6 At Play in the Fields of Law: The Reasoning Game -- 7 Playing by the Rules: A Good Faith Approach -- 8 Calling the Shots: The Development of Legal Doctrine -- 9 Playing Politics: Putting Poetry in Motion -- 10 Playing with the Rules: Experiments in Judging -- 11 Overtime? A Conclusion -- Appendix -- Notes -- Index

The effort to make sense out of what the judges of any Supreme Court do is all the more pressing and acute in times of political turbulence. Lawrence Lessig's Fidelity and Constraint offers itself as one such effort to distinguish constitutional decision-making from "the ad hoc in politics" by its reliance upon principled and neutral reasons; it is the judges' detached and professional nature that underwrites their democratic legitimacy and institutional commitment. This review challenges those claims and demonstrates how Lessig's analysis does more to undermine that project than achieve it.

Although Berle and Means's work was intended to redirect the governance of corporate affairs away from furthering private cupidity and toward advancing public policy, their insights have done more harm than good; they have tended to reinforce the primacy of private cupidity or, perhaps more accurately, allowed subsequent theorists to prefer the pursuit of private cupidity by equating it with the development of public policy. This is not only unfortunate, but also unnecessary. Although Berle and Means's The Modern Corporation forms the bedrock of the prevailing paradigm in corporate law and governance, it also contains some very suggestive materials from which to construct an alternative and more democratic way of proceeding that actually subverts and transforms the established model. This Article seeks both to celebrate The Modern Corporation, but also to lament the enduring influence of its received understanding on corporate law scholarship and practice. If The Modern Corporation is to avoid becoming "defunct" and remain relevant to contemporary ideas and practice, it must be more as a conceptual corrective and less as a traditional prop for the prevailing paradigm of corporate governance. After offering a different and more democratic inspired reading of The Modern Corporation the Article examines how it might be feasible to move from the present situation of corpocracy to a future milieu of democracy. Finally, the Article lays out the main features of a democratic agenda for reforming corporate governance.

Some years ago, I ran into a former colleague and ex-Dean. He was now a judge. After some friendly banter, he commented that he had recently read a piece that I had published about the hoary problem of 'state action' in constitutional law; it argued that the persisting doctrinal dilemmas were attributable to the contradictions of the underlying liberal basis of rights-talk. He had reason to read it, he said, because he had to decide a case that raised related problems about the institutional reach of Canada's Charter of Rights. However, after he had generously complimented me on the piece, he made a familiar complaint – 'For all the force of your critique, you never tell us what we should do. Don't you think that you should tip your hand and give us a sense of what we should decide?' I simply responded with my customary shrug and by saying that 'I'm not in the business of judging – that's your challenge, not mine'. His implicit sense of what academics do and should do was very different to my own. In this short essay, I want to explain what is the 'business' that I think that I am in as an academic or, more grandly, as an intellectual. In particular, I will explore and explain what the implications of these intellectual commitments are for the fraught and misunderstood relationship between the academic and judicial (and, by implication, the professional) sectors of the legal community. In order to do this, I will first of all introduce an important distinction between the two different types of intellectual role – a traditional one and a critical one – that polarize law schools; this duality is far from original or unfamiliar. Then, I will take the recent confirmation process of Elena Kagan in her appointment to the United States Supreme Court to illustrate the political characteristics and institutional context which give rise to and sustain the pervasive acceptance by most law professors of their role as traditional intellectuals. Lastly, I will look at how this continuing nexus between judges and law professors affects academics in the way that they go about doing their intellectual business. Throughout the essay, I will emphasise that 'law is politics' and that there is no site of political innocence or independence that academics or judges can inhabit in meeting their professional roles and responsibilities.

While considerable thought and effort has been put into exploring and fixing the ethical rights and professional responsibilities of private lawyers, little energy has been directed towards defining and defending the role and duties of government lawyers. As a result, the traditional understanding seems to be that government lawyers are to consider themselves as being under the same regimen and restrictions as their private counterparts. After criticizing this default approach, the article offers a fresh evaluation of what is different about the role of government lawyers and develops a more appropriate model for thinking about their professional responsibilities and ethical privileges. The central thrust of the article is the effort to appreciate legal ethics and professional responsibility as part of a larger democratic understanding of law and justice.

This paper addresses the central jurisprudential issue of the connection between judges' political commitments and adjudication. Concentrating on the contested question of whether judges are and can ever not be "activist", it argues that adjudication is inevitably and unavoidably political in nature: there is simply no other way for judges to fulfill their responsibilities other than by resort to basic political values. By examining the recent decision of the SCC in Doucet-Boudreau, the paper offers a very different account of how judges can meet constitutional expectations in contemporary Canada.

It is said of statistics that what they reveal is interesting, but what they hide is crucial. Much the same can be said of the present British debate over constitutional change and the courts. The various constitutional reforms proposed seem to be obvious and long overdue - abolishing the post of Lord Chancellor, setting up a Supreme Court separate from the House of Lords, and establishing a judicial appointments committee. However, at least as presented and dealt with by the government and the judges, while these innovations are interesting and generally positive, what they fail to mention or address is much more crucial and revealing. The government papers and the judiciary's response resolutely refuse to tackle the central issue of what it is that judges do and whether it is done in a suitably legitimate and proper way. For all the sound and fury of constitutional engagement, the main antagonists share a deep and disturbing assumption that judicial power has and will continue to be exercised in a non-political, objective and neutral manner. In this paper, by reference to the Canadian experience, I will challenge that assumption: it is not that judges are unprofessional or corrupt, but that adjudication is inescapably political and non-objective. Instead, I will offer a very different account of the adjudicative performance and propose a more complementary set of institutional reforms.