2013 July

Malcolm Aboud, Discussion: Athletes as Objects of Property: A Kantian Rethinking of Flood v. Kuhn”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp. 471-490.

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.


Gary Chartier, Book Review: Michael Huemer, The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey. Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp. 515-520.

In The Problem of Political Authority, Michael Huemer argues for anarchism, and so against the authority of state-made law and against the moral legitimacy of the use of force to compel obedience to this kind of law. He explains why the state lacks legitimate authority before suggesting reasons to think that it isn’t necessary as a source of social order. He opts for minimalist moral foundations, eschewing any sort of elaborate normative theory in favor of the intuitionist approach to moral reasoning he defended in his earlier Ethical Intuitionism; his decision to opt for minimalist foundations should make the book accessible to readers inclined to endorse a wide range of normative assumptions.


Helen Cheng, “Beyond Forms, Functions and Limits: The Interactionism of Lon L. Fuller and Its Implications for Alternative Dispute Resolution, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp. 257-292.

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.


Yasmin Dawood, “Democracy and the Freedom of Speech: Rethinking the Conflict between Liberty and Equality”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp. 293-311.

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.


Peter M. Jaworski , “Originalism All the Way Down. Or: The Explosion of Progressivism”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp. 313-340.

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.


Ming-Sung Kuo, “Discovering Sovereignty in Dialogue: Is Judicial Dialogue the Answer to Constitutional Conflict in the Pluralist Legal Landscape?” Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp. 341-376.

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.


Richard Lippke, “Adjudication Error, Finality, and Asymmetry in the Criminal Law”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp. 377-398.

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.


Richard Mullender, “The Scattergun and the Owl: Brian Simpson on Herbert Hart. Critical Notice: A.W.B. Simpson, Reflections on The Concept of Law”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp. 491-513.

While recognizing that H.L.A. Hart’s The Concept of Law has exerted a powerful and continuing influence on general jurisprudence, Brian Simpson finds it wanting. Simpson argues that Hart’s determination to make broad generalizations about the nature of a legal system deflected him from the important task of attending to the particularities of actually-existing law. Moreover, he identifies Hart as a ‘hedgehog’ in Isaiah Berlin’s sense: a thinker whose work gives expression to a ‘single central vision’ (in Hart’s case, law as a system of rules). This critique of Hart leads Simpson to argue for an approach to legal philosophy that is more attentive to the details of existing legal systems. But Simpson fails to present his readers with the theoretical approach for which he argues. This essay seeks to make good this deficiency in his response to The Concept of Law. To this end, it uses the writings of two philosophers on whom Simpson draws (Berlin and Michael Oakeshott) with the aim of enriching Hart’s contribution to general jurisprudence. Moreover, it finds in this Hart-Oakeshott-Berlin-based interdisciplinary theory (HOBBIT) a basis on which to throw much light on Britain as a distinctive form of politico-legal life.


Dan Priel, “Reconstructing Fuller’s Argument Against Legal Positivism”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp. 399-413.

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.


Yuval Procaccia, “Revisiting the Efficiency Theory of Non-Contemplated Contingencies in Contract Law”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp.415-441.

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.


Prince Saprai, “The Penalties Rule and the Promise Theory of Contract”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 2 (July 2013) pp. 443-469.

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.