— General Presentation

The novel, overarching theme of the project is the influence of supreme courts on the development of the common law. In particular, how the institutional position of supreme courts causes them to shape the common law; and conversely how the traditions of the common law shape the way supreme courts conceive of their role. Leading academics from around the common-law world will address this overarching theme in three different contexts: first, the particular characteristics of the supreme courts of several selected jurisdictions; second, the influence if any of constitutionalism and bills of rights on supreme courts’ relationships to the common law; and third, how supreme courts around the common law-world have treated core concepts such as causation, restitution, good faith and property. Participants in the conference have committed to producing 8,000-word papers. The ultimate goal is to add to the academic literature by producing an original edited collection with a leading international academic publishing house.

Although legal academics and scholars from related disciplines such as political science have studied individual supreme courts in some detail, a survey of the interrelationship between the common law and the institutional position of supreme courts would be novel and of interest to many lawyers (scholars, practitioners and students) and academics in related fields. An edited collection of the expected high quality would soon become a reference point not only for lawyers but for academics from other disciplines who are interested in judicial adjudication and the influence of institutional considerations on decision-making.

The overall goal is to better understand how the institutional role of supreme courts influences the common law and vice versa. Contributors to this project will generally apply traditional common law methodology, using judicial decisions as the building blocks for arguments about the nature of legal reasoning and subjecting those decisions to close analysis for doctrinal and theoretical consistency, but will also draw inspiration from other disciplines, such as political science, philosophy, sociology and public administration.

For centuries courts across the common-law world have developed their systems of law by building bodies of judicial decisions. By deciding individual cases, common law courts settle litigation and move the law in new directions. Supreme courts which sit at the apex of common-law systems fulfil these standard dispute-resolution and law-development functions, but they also have a unique institutional position. By virtue of their place at the top of the judicial hierarchy, the decisions of supreme courts and, in particular, the language used in those decisions, resonate through the legal system. Moreover, members of the legal community – judges, lawyers, legal academics, students and laypeople – often look to supreme courts for general guidance. Accordingly, the institutional position of supreme courts may nudge them away from incremental development of the law based on the resolution of individual cases and towards the elaboration of general principles that can unify large areas of the law and provide meaningful guidance to the legal community.

Indeed, institutional considerations may introduce a tension between “top-down” and “bottom-up” legal reasoning. The development of the common law has typically been seen as a “bottom-up” exercise, with courts proceeding by analogy from case to case without guidance from tablets of stone delivered from on high. By contrast, a “top-down” approach requires that individual decisions must conform to a set of settled principles. Although this distinction has found judicial favour, most notably on the High Court of Australia, it is hotly contested. Common law judges and scholars who advocate principled reasoning as a means of bringing coherence to a mass of decided cases often note that the principles must be drawn from the cases, an approach which is arguably as much “bottom-up” as it is “top-down”. Nevertheless, a supreme court’s position at the apex of its national legal system may push it to prefer a “top-down” approach designed to achieve coherence in the application of law by lower courts.

Constitutionalism complicates the analysis still further. Many common-law jurisdictions now have judicially enforceable written constitutions or bills of rights whose provisions are often cast in general terms. Principled reasoning has of necessity become a feature of the common-law landscape. In the common-law tradition, no sharp distinction is drawn between private and public law; constitutional norms are enforced by the same courts that decide matters between private parties. And in the area of public law, there is strong demand for supreme courts to develop a coherent set of principles that can guide the legal community in the development of the law. Constitutionalism may, when combined with common-law supreme courts’ institutional positions, push them further towards a decision-making approach dominated by general principles.

In addition, the internationalization of legal discourse may contribute to the lowering of common lawyers’ intellectual trade barriers. True, common law judges have long been accustomed to seeking inspiration from their brothers and sisters in other jurisdictions. But technological change has made cross-border research and in-person discussion much easier. Judicial decisions and scholarly work are now available at several clicks of a button from anywhere in the world. Moreover, the low price of international travel and communication has permitted the growth of academic and judicial networks in which jurists from various jurisdictions are in regular contact.

Participants in the project will critically analyze the institutional position of common-law supreme courts and the influence it has on the decision of individual cases and the development of the common law. This critical analysis will be conducted by focusing participants’ attention on three particular areas.

The first area concerns individual supreme courts themselves. Professor Peter Cane, for instance, will discuss from a comparative perspective the High Court of Australia and the Supreme Court of the United States, two bodies that share much because they are courts of last resort in constitutional issues, but that take very different approaches to the common law. A particularly instructive case study is the recently created UK Supreme Court, to be analyzed by Dr. James Lee; although the powers of the new court are those of its predecessor, the Appellate Committee of the House of Lords, its newfound status appears to have influenced its decision-making. Another useful case study is Carissima Mathen’s analysis of the Supreme Court of Canada’s reference function, exercised in public-law matters, which expressly takes it away from the resolution of individual cases and requires it to answer hypothetical questions in a principled manner. A first-person perspective on a particularly influential supreme court will be offered by Beverley McLachlin, Chief Justice of Canada. Coming up to her retirement Chief Justice McLachlin will be in a privileged position to look back at the relationship between the Supreme Court of Canada and the common law in recent decades.

The second area concerns the influence of public law. Of particular note is the UK Supreme Court’s recent revival of common-law constitutionalism, which locates fundamental constitutional values in the common law. From the body of decided cases, judges following this approach can distill the fundamental commitments of the legal system: to transparency and accountability, to the rule of law and to respect for legislation passed by parliamentary majorities. Moreover, these values may leak across the common law’s permeable boundary between public law – the judicial control of public administration – and private law – resolution of inter partes disputes.

Jason Varuhas, who has previously conducted award-winning research on the relationship between public law and the law of tort, will examine the resurgence of common law constitutionalism in the UK Supreme Court and assess its legitimacy. Notably, assessing legitimacy in this context necessarily requires an assessment of the legitimacy of the “top-down” reasoning that has characterized recent decisions. For their part, both Audrey Macklin and Han-Ru Zhou will critically analyze common law constitutionalism as a constraint on administrative and legislative action respectively, again with a view to highlighting the methodological implications of public law adjudication for the whole of the common law; Macklin will focus on the Supreme Court of Canada, whereas Zhou will examine the courts of last resort across the Commonwealth. Finally, Bob Williams will discuss the role of state courts in the United States in constitutional adjudication.

The third area concerns particular common-law concepts. Leading experts on causation, restitution, good faith and property will examine how supreme courts around the common-law world have treated these concepts. These concepts continue to provoke academic debate. Each concept will be, in essence, a case study in the relationship between supreme courts’ institutional positions and the nature of common law adjudication. The goal is to pick apart leading supreme court decisions on these fundamental concepts, put them in a broad, international perspective and draw more general lessons about the development of the common law.

Updated 12 August 2016 at 17 h 07 min.