Justice Ivan Rand was perhaps the greatest exponent of the rule of law in the history of the Supreme Court of Canada. He was a great judge. He scorned as impractical the admonition that judges should “apply the law, not make it”. His judgements frequently broke new ground, but it should be understood that in “making the law” great judges like Ivan Rand respond to fundamental considerations of order and fairness and not to personal whim. It is sometimes necessary for judges to return to first principles to provide legislators with a framework within which to operate in unforeseen situations. The word “activism” is usually used by critics to imply that a judge is pushing the envelope beyond the proper boundaries of the law, but properly understood the term may equally indicate a judicial tightening of the boundaries to deny the bench a power seemingly conferred by the Constitution or legislation. Restraint, as much as expansion, is governed by the judges’ recognition of the limits of their institutional competence and their appreciation of their role in the constitutional scheme.

In the absence of statutory authority the courts have not yet addressed issues related to globalization and human rights with the sort of boldness and creativity we associate with great judges like Ivan Rand. Order and fairness have acquired a global dimension. Globalization offers a different kind of challenge, but is no less demanding of the rule of law. In the case of creating some form or forum of relief for Third World victims of globalization, we seem to have used restraint as an excuse for inertia. Judges need to be practical, but their greatness will rest on their capacity to see not only what the law is but what it should become. There is a time for boldness and a time for restraint and judges should be judged on their ability to tell the difference.

Scholars under the ‘Progressive Property’ banner distinguish between dominant conceptions of property, and its underlying realities. The former, exemplified by Singer’s ‘ownership model’, is said to misdescribe extant forms of ownership and misrepresent our actual moral commitments in worrisome ways. Put simply, it is argued that our representations of property’s reality are incorrect, and that these incorrect representations lead us to make bad choices. Better understandings of the reality of property should lead to better representations, and thus improved outcomes.

However, the relationship between ‘reality’ and ‘representation’ is not made fully explicit. This essay seeks to supplement progressive property through a more careful exploration of the relationship between the two, by drawing from performativity theory. From this perspective, accounts of property are in an important sense not descriptions of an external reality, but help bring reality into being. The ownership model is not so much constative (descriptive) as performative. Such an account, I suggest, directs us to several important insights. Rather than asking what property is or is not, the task becomes that of trying to describe how property is performed (or not) into being. But concepts do not stand alone: rather, other ideas, people, things and other resources have to be enrolled in complicated (and often fragile) combinations. Rather than criticizing the ownership model for its mismatch with reality, we might consider that models do not have to be ‘true’, just successful. As such, it may be more useful for progressive scholars of property to redirect their energy into enquiring how it is that certain conceptions of property are successful, and others not. To do so also requires that we think about the role of scholars in performing property, for good or bad, into being.

Despite tributes paid to Fuller as an intellectual father of ADR, little attention has been paid within the ADR field to the broader interactionist vision that underlies Fuller’s discussion about process. A closer reading of Fuller’s study of mediation, however, reveals that he intended that study to substantiate his interactionist thesis about the nature of social ordering. He understood ordering to be generated by and to reflect a particular experience of social interaction. Fuller’s interactionist vision recognizes the creative, choice-making and purposive dimensions of human reality, emphasizes participation as a normative criterion for institutional design, and gives rise to a pluralistic notion of power arrangements. It appears in Fuller’s thinking about process as a kind of dialectic and integrative mindset that pervades his means-ends analysis, functional analytical approach and his emphasis on institutional design. This interactionist vision has particular relevance for the practice and research of ADR, for example, in helping to develop a more integrative approach to process pluralism.

This article re-examines the distinction between the libertarian approach and the egalitarian approach to the regulation of campaign finance. The conventional approach (as exemplified by the work of Owen Fiss and Ronald Dworkin) is to reconcile the competing values of liberty and equality. By contrast, this article advances the normative claim that democracies should seek to incorporate both the libertarian and the egalitarian approaches within constitutional law. I argue that instead of emphasizing one value over the other, the ideal position is one that simultaneously recognizes the values of liberty and equality despite the irreconcilable tension between them. Rather than choosing one value over the other, or reconciling these values by redefining them, I claim that it is vital to maintain the tension between liberty and equality by instantiating the conflict in law. Democracy is better served when the law contains an explicit tension between these foundational values.

After setting forth this normative framework, I then apply it to the campaign finance decisions of the Supreme Courts of the United States and Canada, respectively. I make two main claims. First, I argue that although the libertarian/egalitarian distinction is usually presented as a binary choice, the laws of a given jurisdiction often simultaneously display both libertarian and egalitarian characteristics. For this reason, I claim that the libertarian/egalitarian distinction is better conceived of as a “libertarian-egalitarian spectrum.” Second, I argue that in recent years, the U.S. Supreme Court and the Supreme Court of Canada, respectively, have privileged one value—liberty or equality—at the expense of the other. The U.S. Supreme Court has over-emphasized the value of liberty (most notably in its Citizens United decision), with the result that political equality is markedly undermined. By the same token, the Supreme Court of Canada’s commitment to equality has become too one-sided in recent cases (Harper and Bryan), with the result that there are significant impairments to free speech liberties. I argue that both of these approaches are detrimental to democratic participation and governance. Finally, this article offers a preliminary proposal for how courts and legislatures can allow for the conflict between liberty and equality to be instantiated in law.

The provocation defence, which militates against full legal responsibility for unjustified killings in several common law jurisdictions, has been the subject of considerable controversy during recent decades. Much of the criticism focused on substantive legal issues. This article examines the philosophical bases for the defence in hopes of establishing a theoretical groundwork for future debate on the legal defence. The defence originated on desert bases and continues to be understood on those grounds. This article thus examines it in light of two dominant desert-based theories of punishment originating with Aristotle and Immanuel Kant respectively.

Ultimately, the best theory of punishment and the best theory of defence are provided by different approaches. The more plausible and robust Kantian theory of punishment can nonetheless be supplemented by the Aristotelean theory of defence as a continent sociological morality to create a more nuanced account of defence that better explains both excuses in general and the provocation defence in particular. From a substantive legal perspective, this position justifies continued use of the provocation defence in our imperfect legal order, but the partial excuse of provocation will not exist in the ideal legal order. An ideal political order will sufficiently control its citizens’ emotions such that the defence cannot be justified. A partial excuse of provocation is only necessary in the interim.

I argue in this article for the use of a dialogical approach to cost-benefit analysis, which is identified here as a process that rationalizes cross-cultural judging. Weighing in on the Kahan-Sunstein debate about the effect of culture on risk perception, I use economic valuations of Indigenous sacred sites to demonstrate how cost-benefit analysis can misrepresent loss. I identify the way cost-benefit analysis operationalizes preferences that have little relevance for perceptions of substitutability, property, or harm related to sacred sites held by some Indigenous peoples. In doing so, I problematize the use of cost-benefit analysis as a method for ascertaining loss and contextualize risk in the social context in which it is perceived. In order to further procedural justice, I recommend valuation of loss that allows for epistemological disparities in determining rationality. This dialogical approach expects to maximize the accuracy of cost benefit analysis so as to create greater accountability for loss valuation and destabilize formulations of culturally determined preferences as bounded but corrected by expert knowledge.

It is often said that the Constitution does not interpret itself, that we are in need of a theory of interpretation for constitutions. This need has led to a flourishing literature on constitutional interpretation. Statutes, also, stand in need of a theory of interpretation, and that obvious need has led to a robust literature on that subject. What is said too infrequently is that Supreme Court rulings do not interpret themselves, that we are in need of a theory of interpretation for rulings. In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions—variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation—appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.

I argue that these two theses—the progressive thesis and the doctrine of judicial supremacy—are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent. In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism—not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation.

Legal scholars have been inspired by the dialogic approach and rallied around it as the solution to constitutional conflict in domestic constitutional orders and the transnational legal landscape. This paper aims to show that the gravitation towards judicial dialogue in contemporary constitutional theory misses the point, given the ambiguities surrounding it. My investigation reveals that the dialogic approach does not succeed in guiding the inter-departmental or inter-regime interactions in a way that no single power would exert unilateral domination. The emergence of judicial supremacy in both national and transnational constitutional orders further suggests that underlying those ostensible examples of judicial dialogue is a transfigured conception of sovereignty. As it is the rise of judicial sovereignty that drives the move towards judicial dialogue in contemporary constitutional developments, I suggest that legal scholars shift focus of attention from the idea of dialogue to the enhanced judicial role in the new constitutional era.

The theory of unjust enrichment – the theory supporting the recognition of a doctrinal category of unjust enrichment – has been accepted across much of the common law world. The recognition of a doctrinal category is not just a matter of presentation. It has a role in legal reasoning that reflects the fact that it is based on a particular principle or distinct justification for a claim. The theory of unjust enrichment is misguided because there is no principle or distinct justification common to the various claims that have been gathered together to form the new category. The theory has appeared attractive, it would seem, not because a plausible version of the principle of unjust enrichment has been identified, but because it has appeared impossible to explain these various claims in any other way, in particular as claims in property or contract. This difficulty has arisen, it is suggested, largely as a result of a mistaken analysis of primary and remedial rights. The article explores these issues with respect to contract law and property law.

All forms of criminal charge adjudication produce errors of mistaken conviction or acquittal. Yet in most criminal justice systems, an endpoint of sorts is eventually reached and further attempts to correct errors are disallowed. The first issue discussed is whether such “finality” in charge adjudication should be presumptive or non-presumptive. My contention is that it should be presumptive. But should it be presumptive only for convictions or also for acquittals? As against strong forms of asymmetry, I urge weaker forms, according to which we should seek to correct both kinds of errors while exhibiting some degree of preference for correcting errors of wrongful conviction over those of wrongful acquittal. The issues that must be faced if we are to set up procedures allowing rebuttal of the presumption of finality are then surveyed. Doing so reveals the forms that weak asymmetry might take.

According to the principle of corrective justice, one who causes a wrongful loss or receives a wrongful gain is obligated to make good that loss or restore that gain. The guiding principle of the remedies of private law (the law of torts, contract, and unjust enrichment) is to put the aggrieved party in the position s/he would have been in had the complained of conduct not occurred. The connection between corrective justice and private law’s remedies thus appears analytic. My article challenges this orthodoxy. I argue that, on the one hand, if corrective justice is treated narrowly, as an exclusively remedial principle, it severs the connection between right and remedy that lies at the heart of the corrective justice theories of private law. On the other, if it is interpreted broadly to encompass as well the parties’ original (pre-wrong or pre-unjust enrichment) relationship, it becomes otiose.

The purpose of this essay is to offer a reconstruction of Lon Fuller’s critique of Hart’s legal positivism. I show that contrary to the claims of Fuller’s many critics, one can derive from his work a clear and powerful argument against legal positivism, at least in the guise found in the work of H.L.A. Hart. The essence of the argument is that Fuller’s principles of legality posit that the same considerations that count for law’s excellence are relevant also for the determining what counts as law. I contrast this view with Hart’s legal positivism, which acknowledged that the principles of legality are relevant for law’s excellence, but considered them irrelevant for determining the question what counts as law. I argue that the positivist position is arbitrary, and - a point on which I focus - completely undefended. I draw from this point a more general challenge to Hart’s theory of law (as well as that of many of his followers), namely that though claimed to be a true theory of law, it has no resources to explain why this is so. I argue that Fuller’s theory does not suffer from this problem, because Fuller rejected a staple of contemporary jurisprudence - the separation of conceptual and normative jurisprudence.

The rules governing impaired transfers are widely thought to lie at the core of unjust enrichment law. This essay defends two propositions about these rules. First, there is no duty, in the common law, to make restitution of benefits obtained as the result of an impaired transfer (for example, a transfer made by mistake or as a result of fraud or compulsion). Rather than imposing duties to make restitution, or indeed duties of any kind, the rules governing impaired transfers impose only liabilities, in particular liabilities to judicial rulings. The only legal consequence of a mistaken payment is that the recipient is liable to be judicially ordered to repay a sum of money equal to the payment. Second, it matters that the law governing impaired transfers imposes only liabilities, and not duties, because, inter alia, explaining and justifying liabilities is different from explaining and justifying duties. In particular, certain well-known objections to attempts to explain impaired transfer law can be avoided once it is recognized that this law is concerned exclusively with liabilities. In summary, then, this essay argues that the distinction between duty-imposing and liability-imposing rules has important implications for understanding the foundations of the law governing impaired transfers.

In contract law, common mistake or frustration are grounds for relieving the promisor from the obligation to perform. Conventional economic theory justifies relief by appealing to its effect on the promisee’s incentives, namely, her incentives to act efficiently to prevent the unfavorable occurrence or its associated losses. The Article challenges this justification. While relief may indeed generate efficient incentives under certain conditions, these are not the conditions in which it is in fact granted. Consequently, the cases in which the conventional theory recommends that relief be provided and those in which it is actually awarded, are incompatible. Based upon this premise, the Article develops a new theory of the law of common mistake and frustration, bearing descriptive and prescriptive implications. Under the new theory, the purpose of relief is not to incentivize promisees, but rather to determine the legal consequences of non-contemplated events. Viewed in this light, the Article identifies a new set of efficiency rationales for the rule. Under specified conditions, relief allows contracting parties to (1) refrain from welfare-reducing trade in unquantifiable risk; (2) maintain control over the distribution of contractual gains; and (3) overcome disincentives to form efficient contracts. The Article analyzes the conditions under which these virtues are applicable, and finds that they generally correspond to those in which relief is actually awarded.

Legal ethics theories give competing and exclusive accounts of the ethical foundations of the lawyer’s role. They disagree about the relationship between morality and law, about the content of the lawyer’s central ethical duties and about how specific ethical problems should be resolved. Each theoretical account asserts that the others are mistaken in some fundamental way. Yet all legal ethics theories are theories of action; legal ethics theorists do not seek merely to enlighten, they also seek to influence how lawyers and the legal profession respond to ethical issues. This creates a problem of disagreement: the problem created by the divergent but exclusive claims made by different ethical theories at the point when those theories are to be translated into action. This paper considers how, given the problem of disagreement, legal ethics theories can have any impact on individual ethical decision-making or public policy. Specifically, it considers how theories can have any impact given a) that they fundamentally disagree; and b) what experimental psychology tells us about how people make ethical decisions in fact, and the nature of lawyer regulation.

In a number of places, Mark Murphy has defended what he calls a ‘weak version’ of the natural law thesis. His claim is that, “law not backed by decisive reasons for action is still law, but defective precisely as law”. In this paper, I attempt to provide an answer on behalf of Murphy to the question: when law is defective, what is it about law that continues to make it ‘law’ despite its being defective? Three separate, but related, strategies are examined; all three – for separate, but related, reasons – are shown to fail. The conclusion drawn is that if Murphy is unable to provide a sufficient answer to the central question of the paper, the viability of his weak natural law theory is thrown into serious question.

The rule against penalty clauses in contract law sits uneasily with the promise theory of contract. According to the rule, if contracting parties agree a monetary remedy for breach which is substantially in excess of what would be required to compensate the claimant then that remedy is not enforceable. If contracts enforce promises however one would expect to see these clauses enforced. The rule appears therefore to be an example of a contract doctrine that diverges from promise. Promise theorists tend to respond to divergent doctrines in one of three ways, they either: seek to accommodate these doctrines within the promise principle, or they repudiate them, or finally they justify these doctrines on the basis of the specific legal context within which they operate.

I argue that in the case of the penalties rule all of these standard responses would fall short. These responses are inadequate because they are premised on the claim that the promise principle is the only general moral principle relevant to evaluating contract law, or that it has overriding justificatory priority when it conflicts with other moral concerns. I argue that a richer conception of the moral principles that bear on contract and how they interact offers a way forward for justifying the rule.

“Subsidiarity” views of crime against humanity propose that state crime is at the core of the idea, thus necessitating a further level of authority. That proposal can be given a strong moral justification in terms of the enormous risks that arise from a state’s authority and territorial control. Discussions of crime against humanity by Larry May and Norman Geras, however, offer different views of the idea, May proposing that it be seen as group-based crime (in one or both of two senses), Geras proposing that it be seen as a serious violation of human rights. Those views are questioned on the basis of their fit with either the nature of the crimes involved or the moral basis of their condemnation, and the subsidiarity view is restated.

In the 1972 case Flood v. Kuhn, St. Louis Cardinals outfielder Kurt Flood petitioned to the United States Supreme Court arguing that professional baseball’s century-old reserve system was illegal. In the case, which was ultimately unsuccessful but led to the establishment of modern free agency, Flood argued that by granting teams the perpetual right to renew players’ contracts and the right to unilaterally trade players to other teams, the reserve system treated him as “a piece of property to be bought and sold” and reduced him to a “well-paid slave”. In this paper, I justify Flood’s claim by appeal to a Kantian division of rights. I argue for a Kantian conception of rights under which property rights are properly defined as rights in rem in external objects; on the basis that the right a team holds in a ballplayer under the reserve system is alienable and holds against all the world, I argue that it is a right in rem and accordingly constitutes a property right under Kant’s view. I then argue that the reserve system treats the player as a slave by constraining his purposiveness such as to violate a Kantian conception of the innate right of humanity. On this basis I argue that Flood was right to conclude that the reserve system treats the player as an object of property akin to a slave.