Some ‘What if?’ Thoughts: Notes on Donoghue v. Stevenson

This article looks at the seminal case of Donoghue v Stevenson and poses a series of “what if?” question as to the importance of Donoghue. What if the events that led to that case had not unfolded in the same way or its cast of characters had been different? The author finds that the players in Donoghue left a continuing impact on the fine texture and local development of the law. But the impact of particular individuals must be measured and assessed in light of the pervasive social and historical forces in play in 1932 and soon after. To prioritize individual personalities over social forces (and vice-versa) as a general matter of historiographical principle is mistaken; each interacts with and on the other. On another day and in another case, their involvement might well have been decisive. Accordingly, the article tentatively concludes that the precise interaction of the general social forces in play, the particular situational dynamics in law, and the characters involved can unfold very differently from one context to another. Donoghue is simply one chapter, albeit a significant one, in the further evolution of the common law

Razzle-Dazzle

In this essay, I intend to challenge Raz’s philosophical ambitions - and, therefore, much contemporary work in legal philosophy - by concentrating on his crucial methodological distinction between the local and contingent and the universal and necessary

Looking for the Good Judge: Merit and Ideology

The ambition to appoint judges who are truly meritorious is unquestionable. Nobody would want to have judges on such an important tribunal who did not possess all the technical and professional attributes of a truly competent judge. This much is undeniable. The problems arise when people assume that this can be achieved with indifference to the ideological leanings of any particular candidate. It would be folly to select an out-and-out ideologue, especially if they otherwise lacked (or even had) all the qualities of meritorious judges. Karl Marx and Friedrich Hayek would make for less than ideal judges. However, the assumption that merit and ideology are unrelated notions and that is possible to attend to matters of merit without taking into account ideology is mistaken. No matter how much people may wish that it were so, it simply is not. Merit and ideology walk down much the same street. Any denial to the contrary flaunts both history and analysis. Moreover, how the relation between merit and ideology is understood has profound implications for the whole process of not only appointing judges, but also evaluating their judicial performance. In this short essay, I will demonstrate that, while merit and ideology do not collapse into each other, it is simply not possible to talk of one without the other. Good judges recognise that the resort to values (and contested ones at that) is an integral and inevitable part of the judicial task. In the first part, I explore what might be involved in being a ‘good judge’. I then proceed to examine how Canadian jurists have sought to explain the resort to values in.the adjudicative process. In the third part, I respond to the claim that ‘activism’ is something that judges can and should avoid. Finally, I look at the institutional implication for the judicial selection process of understanding the judicial function as a mix of merit and ideology. Throughout the essay, I will insist that any reasonable appreciation of the judicial function must accept that the sin is not accepting the ideological dimension of adjudication, but trying to hide it

The Province of Jurisprudence (Really) Redetermined

When Julius Stone published his famous essay, The Province of Jurisprudence Redetermined, in 1944, he had reasonable cause for genuine optimism. English jurisprudence had been in the doldrums since the initial flurry of activity and excitement following Austin\u27s launch of the modern project of analytical jurisprudence in 1832 with his The Province of Jurisprudence Determined. Most of the subsequent scholarship had simply refined and riffed unimaginatively on the basic Austinian themes. Yet, as the Second World War came to a close, there were signs that the time was ripe for a different and more vibrant approach to jurisprudential study. Julius Stone was at the forefront of such a spirited revival. Unfortunately, history has not been kind to Stone\u27s optimistic obituary for analytical jurisprudence. Within a decade of his famous essay\u27s publication, Hart\u27s revival of legal positivism had restored the flagging fortunes of analytical jurisprudence. More sociologically-based efforts to expand the province of jurisprudence continued to be treated as marginal and secondary. This is an unfortunate state of affairs. Accordingly, in this essay, I want to do three things - to chronicle the hold that analytical jurisprudence still exerts as the \u27default theory\u27 of much legal thought and practice, to explore how Stone may have unintentionally contributed to that state of affairs, and to suggest how that continuing influence can be arrested and perhaps reversed. I intend to push through on an unconditional critique of analytical jurisprudence and to recommend an alternative approach that derives its rationale and motivation from a robust commitment to what I will term \u27strong democracy\u27

Public Policy and Private Cupidity: Berle and Means Re-Visioned

Adolph A. Berle and Gardiner C. Means\u27 The Modern Corporation and Private Property is one of law\u27s undisputed canonical texts. Its 75th anniversary is an occasion both to reassess its legacy and perhaps to rework its insights. Although Berle and Means\u27 work was intended to redirect the governance of corporate affairs away from furthering private cupidity and towards advancing public policy, their enslaving 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\u27 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 which actually subverts and transforms the established model. In this essay, therefore, I want both to celebrate The Modern Corporation, but also to lament the enduring influence of its received understanding on corporate law scholarship and practice

Education in Pediatrics in US Colleges and Schools of Pharmacy

Objective. To determine the extent to which pediatrics is taught at US doctor of pharmacy (PharmD) programs and to characterize what is being taught and how. Methods. A 40-question online survey instrument was sent to accredited and candidate-status US PharmD programs. Results. Of 86 participating programs (67.2% response rate), 81 (94.2%) indicated that pediatric topics were included in their required classroom curricula (mean, 21.9 contact hours). A pediatric elective course was offered by 61.0% of programs (mean, 25.9 contact hours). Advanced pharmacy practice experiences (APPEs) in pediatrics were offered by 97.4% of programs, with an average of 27 students per program completing this practice experience annually. Conclusions. Almost all responding programs incorporated pediatrics in their required curricula. Pediatric elective courses provided an adequate mean number of contact hours, but 39.0% of programs did not offer an elective course. One-fifth of students completed a pediatric APPE prior to graduation. Continued expansion of pediatric-focused classroom and experiential curricula across US PharmD programs is recommended

Casaubon\u27s Ghosts: The Haunting of Legal Scholarship

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 \u27usefulness\u27 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