Suchergebnisse

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.

Much academic work continues to operate within the cramping and pervasive spirit of a black-letter mentality that encourages scholars and jurists to maintain legal study as an inward-looking and self-contained discipline. There is still a marked tendency to treat law as somehow a world of its own that is separate from the society within which it operates and purports to serve. This is a disheartening and disabling state of affairs. Accordingly, this article will offer both a critique of the present situation and suggest an alternative way of proceeding. The writer recommends a shift from philosophy to democracy so that legal academics will be less obsessed with abstraction and formalism and more concerned with relevance and practicality. In contrast to the hubristic and occasionally mystical aspirations of mainstream scholars, it presents a more humble depiction of the worth and efficacy of the jurisprudential and scholarly project in which 'usefulness' is given pride of place. Of course, these fundamental charges are not applicable to all legal scholars. Many scholars are engaged in work that not only challenges the prevailing paradigm of legal scholarship, but also explores exciting new directions for legal study. It will be part of the essay to acknowledge those contributions.

This paper offers a review of The Limits of Freedom of Contract as an exercise in postmodern critique and politics. It examines the extent to which the book is informed by the postmodern motifs of contingency and indeterminacy. It attributes difficulties in Michael's analysis to a lack of postmodern nerve. Finally, it provides a contrast to a law-and-economics notion of citizenship which is applied to the problem of racist practices in the marketplace.

Twilight is upon us. As the contemporary continuance of the Enlightenment project, modernity has had its day. Its erstwhile, champions' efforts to establish a combination of authenticity and authority as the ground for Truth and Justice – that individuals can only give meaning and value to their own lives by locating and expressing their own self-identity – have proved to be misplaced. A modernist deliverance from doubt and uncertainty remains a tantalizing, but.receding prospect. The sun of Truth is unfailingly hazy and in danger of total eclipse, resembling more a fading battery of artful floodlights. Everything loses its iridescence and is reduced to a dull pastiche of bland on bland. In a way of speaking, Minerva's owl has flown the philosophical coop entirely. No longer taking its crepuscular flights of fancy, Wisdom's bird has abandoned Western attempts to locate a fixed.

As seems fitting, the debate over free speech is one of the most heated and intense on the academic and political agenda. The topical problems of pornography, hate literature, election campaign financing and freedom of information attest not only to the importance of these exchanges, but also to the confusion and indirection of the different contributions. Like moths drawn to the light, legal theorists have been irresistibly attracted to the bright beacon of free speech, the literature on the American First Amendment is truly enormous. The challenge and ambition is as worthy as it is important - to ensure democracy's fragile flame is kept aglow so that its ennobling light can suffuse and enhance the practices and possibilities of social and political life. However, like their lepidopteral counterparts, most writers on free speech have found its attraction to be fatal. Despite a plethora of different approaches, they have been unable to solve its mysteries or fathom its secrets.