BOOK REVIEWS
CHRONIQUE BIBLIOGRAPHIQUE
Sales and Sales Financing in Canada [:] Cases and Materials. By Michael G. Bridge and
Francis H. Buckley. Toronto: The Carswell Co., 1981. Pp. xlix, 694 [$72.50 hardcover].
Commercial and Consumer Transactions. By Jacob S. Ziegel and Benjamin Geva. Toronto:
Emond-Montgomery Ltd, 1981. Pp. xlv, 1230 [$80.00 hardcover].
The major problem facing the authors of a casebook is one of selection.
What material should be included in the work and what should be left out?
This difficulty becomes particularly acute when the subject matter to be
covered is one which embraces a wide range of diverse topics, such as
commercial law. In this connection it is interesting to compare the approach
adopted by the authors of two recent casebooks on Canadian commercial law
which appeared at about the same time in 1981. They are “Sales and Sales
Financing in Canada” by M. Bridge and F. Buckley, and “Commercial and
Consumer Transactions” by J. Ziegel and B. Geva.
Bridge and Buckley’s book, as the title indicates, deals with how goods
are sold and how the sale is financed, and it includes sections on products
liability and on the giving of a security interest in assets by manufacturers and
retailers. The provisions of consumer protection statutes which impinge upon
the private law relationship of buyer and seller are discussed, although the
regulatory aspects of these statutes have been omitted. Also omitted is any
detailed consideration of general principles of contract law, although certain
aspects are covered where they have a particular impact on the contract of sale
of goods. Thus, there are discussions on formalities and part performance; on
unconscionability, including the control of exemption clauses, improvident
bargains and the development of good faith and standards of fairness; on
misrepresentation; on mistake; on conditions and warranties; and on frustra-
tion. There is also a good discussion of dependent and independent promises
and the terms of the contract as well as the concept of “substantial breach”.
The topics covered in Part I, entitled “The Contract of Sale of Goods”,’
follows a fairly standard pattern. They include the scope of the Sale of Goods
Act;2 statutory and common law provisions governing the entry into a con-
tract, including consumer protection legislation permitting “cooling -off’
periods and cancellation of a contract; the terms of the contract and the
buyer’s right of rejection, acceptance and the cure of defective tender; implied
conditions of description and quality; delivery and payment; seller’s title and
the passing of property; risk and frustration; remedies; documentary transac-
tions covering both domestic and international sales and including a discus-
sion of bills of lading, trade terms and letters of credit; and finally, the transfer
IM. Bridge & F. Buckley, Sales and Sales Financing in Canada [:] Cases and Materials
(1981) 1.
2R.S.O. 1980, c. 462.
McGILL LAW JOURNAL
[Vol. 28
of title to chattels including bulk sales which are dealt with from the point of
view of legislation protecting the seller’s creditors.
Part II covers sales financing.3 There is an historical outline of chattels
security legislation including the Conditional SalesAct 4 which is followed by
a detailed consideration of the Ontario Personal Property Security Act.’
Business financing, conflicting claims to the collateral, and consumer protec-
tion in relation to default and enforcement, including truth in lending, are also
examined. The authors note in the preface that much of the structure of the
book was inspired by the casebook on sales and sales financing by Professor
Honnold 6 to whom they acknowledge their indebtedness.
The approach adopted in Part I goes beyond the time-honoured casebook
method of collating edited extracts from leading cases and adding some brief
notes and questions or problems for class discussion. There is an introduction
to each topic, which is always interesting and which at times has a humorous
touch to whet the appetite of the student. See for instance the note on the
Statute of Frauds I or the comment that “man does not live by bread alone; on
occasion he also needs strawberry jam”,8 or the reference to the fraudulent
merchant who finds business bad and wonders whether life would be better in
Costa Bananas. 9 In addition to the lively introductions, relevant cases are
selected and edited with care and the extracts from the judgments are not
excessively long. These extracts are followed by questions, some quite
penetrating. There are also problems to test the student’s analytical ability.
Finally, a discussion on various points is undertaken and references are made
to review articles or texts where a particular matter can be pursued further. A
notable feature of the book is the frequent reference made to the Ontario Law
Reform Commission [OLRC] Report on Sale of Goods 1o and the Draft Sales
Bill ” promulgated by it. In this connection, it is a pity that the text of the Bill is
not included in the casebook, especially when many questions are directed to
the terms of the Bill. Indeed, no statutory texts are included in the work and
the authors acknowledge in the preface that where reference is made in the
casebook to a statutory provision, students are expected to turn to a statutory
supplement and read it. A list of 21 relevant’statutes is then given.’ 2
‘Supra, note 1, 433.
4R.S.O. 1970, c. 76.
5R.S.O. 1980, c. 375.
6J. Honnold, Cases and Materials on the Law of Sales and Sales Financing (1976).
7Supra, note 1, 27.
sIbid., 55.
9Ibid., 424.
“Ontario Law Reform Commission, Report on Sale of Goods (1979).
“Ibid., Appendix 1.
2Supra, note 1, iv.
1983]
BOOK REVIEWS
There are numerous references to relevant decisions, including Austra-
lian and New Zealand cases, and, as one would expect, to American decisions
and to the Uniform Commercial Code. 3 The selection of cases is always an
issue on which opinions may differ; this reviewer would have liked to see, for
instance, the decision in Hammer and Barrow v. Coca-Cola 14 extracted
rather than referred to briefly at page 122, or more emphasis given to the
Ashington Piggeries case 15 in relation to correspondence with description and
its likely effect on such cases as Re Moore and Co. and Landauer and Co. 16
Nevertheless, the authors handle the difficult topic of correspondence with
the description well, they bring in Reardon Smith Line Ltd v. Yngvar Hansen-
Tangen 17 , as to the two meanings of “identity” or “identification”, and
proceed to ask some penetrating questions on page 163. Reference could have
been made on page 151 to the Supply of Goods (Implied Terms) Act 1973 11 in
relation to the recommendation of the OLRC that the display of goods for sale
should not by itself prevent the sale from being by description, while in the
discussion on the meaning of merchantable quality, greater emphasis could
have been placed on the fact that there is a statutory definition of the term
contained in the same legislation, a definition which Lord Denning M.R. in
the Cehave case ‘ 9 was prepared to apply to cases governed by the common
law. Lord Denning did not advert to the fact that the statutory definition
imposes a more stringent test than was the case at common law, but the matter
is referred to in the casebook in the context of the OLRC recommendation? It
is interesting to note the authors’ comment that the statutory definition has not
proved particularly successful in the United Kingdom and that the whole area
of implied terms has been referred once again to the English and Scottish Law
Commissions.
The decision in Lambert v. Lewis 2′ is not given the treatment it deserves
although this is partly due, no doubt, to the reporting of the House of Lords
judgments late in the day.’ A future edition of the casebook should refer to the
views of the Law Lords as to the period during which an implied term as to
fitness remains extant. The case is concerned with remoteness of damage and,
3Promulgated first in 1952 by the National Conference of Commissioners oh.Uniform State
Laws and approved by the American Bar Association.
41[1962] N.Z.L.R. 723.
5[1972] A.C. 441, [1971] 1 All E.R. 847 (H.L.).
.6 [1921] 2 K.B. 519.
17[1976] 3 All E.R. 570, [1976] 1 W.L.R. 989 (H.L.).
181973, c. 13 (U.K.).
19Cehave N.V. v. Bremer Handelsgesellschaft m.b.H. (The Hansa Nord) [1976] Q.B. 44,
[1975] 3 All E.R. 739 (C.A).
1″Supra, note 1, 198.
2.[1981] 1 All E.R. 1185, [1980] 2 W.L.R. 299 (H.L.).
“See supra, note 1, 369, fn.
REVUE DE DROIT DE McGILL
[Vol. 28
along with Parsons (Livestock) Ltd v. Uttley Ingham & Co. 13 it exemplifies
the problems which can arise in this area in relation to sales of goods. It is
suggested that both cases could with advantage have been included in the
casebook.
These criticisms are minor and are not intended to detract from the
overall high standard of the casebook. This is, after all, a book dealing with
Canadian sales law and emphasis must be placed on Canadian decisions and
on proposals to reform the law such as the Draft Sales Bill.24 The authors
clearly have put a great deal of time and effort into producing a first-class
casebook with carefully edited extracts from relevant cases and with pertinent
and well-researched introductions to, and comments on, the various topics.
Questions asked are often penetrating and even difficult, which may pose
problems for some students. The law of sale of goods is not easy, involving as
it does difficult concepts and many complexities, and this casebook may tend
at times to confuse the less gifted student. The task of the law teacher using the
book is to see that any such problem is overcome.
Ziegel and Geva’s Commercial and Consumer Transactions 1 is a mas-
sive book, of over 1200 pages. Over half of it is devoted to the law of sale of
goods while the remaining pages are divided into two sections covering
negotiable instruments and the financing of commercial and consumer trans-
actions. The casebook is designed to meet the needs of a four-hour, single-
semester course, but it covers substantially more ground, in greater detail,
than the traditional materials on sales and sales financing and the authors
admit that there is no practical possibility of covering the whole casebook in
the allotted time. It is therefore up to the law teacher who uses the work to
make his own selection from the three principal sections of the book accord-
ing to his own preferences and predilections. As in the case of Bridge and
Buckley, relevant statutes are not reproduced and the student is expected to
acquire them for himself and thus be in a position to understand the materials
and to answer the questions propounded. However, the appendix contains a
number of forms of agreement and conditions of sale in use in Canada which
will assist the student to understand current contractual and financing prac-
tices.
The section on the sale of goods is similar to that in Bridge and Buckley,
containing extracts from cases, from review articles, aid from the OLRC
Report on Sale of Goods 6 as well as notes and a series of questions in relation
to each topic. However, Ziegel and Geva take a much wider perspective and
-[1978] Q.B. 791, [1978] 1 All E.R. 525 (C.A.).
2’Supra, note 10, Appendix 1.
21J. Ziegel & B. Geva, Commercial and Consumer Transactions (1981).
6Supra, note 10.
19831
CHRONIQUE BIBLIOGRAPHIQUE
deal with such matters as the rights and wrongs of codification; the position of
the law of sales in Qu6bec, the United States and at the international level; the
tax implications of the distinction between lease and sale; and the role of
“plain English” legislation in the combating of standard form contracts
(discussed in an excellent coverage of the doctrine of unconscionability).
There is a much wider approach to the problems of consumerism and to the
interplay between consumer protection legislation and traditional sales law in
Canada.
Indeed, the overriding impression that is obtained from a perusal of
Ziegel and Geva is one of breadth of coverage of the topics discussed, with,
for example, references to studies commissioned by Government agencies, to
Hansard, to articles concerned with model consumer protection legislation
and to what the law ought to be, and even to Australian and New Zealand
legislation on used motor vehicles warranties. General principles of contract
law are included on a selective basis, the theory being that the student may not
have as extensive a grasp on the law of contract as might be hoped. Conse-
quently there is a discussion of non estfactum, (the judgment of Lord Denning
M.R. in the Court of Appeal in Gallie v. Lee I is preferred to those of the Law
Lords on appeal) I and this is followed by a table showing variations on the
non estfactum theme in the context of consumer legislation. The problem of
uncertainty of terms especially in relation to price is also examined although
English cases are extracted in preference to Canadian authorities. Typical
contracts cases like Esso Petroleum Co. v. Mardon,29 Leaf v. International
Galleries,3″ and Koufos v. C. Czarnikow Ltd3 appear in a discussion on the
scope of the contract and on the measure of damages. The section on the
measure of damages is particularly excellent.
The authors clearly have tried to keep up with the latest developments in
the commercial world and have for example referred to and discussed such
innovations as price scanning, the “rust code” in relation to the merchantabil-
ity of motor vehicles, and, in Part II, the transfer of funds by electronic
means. Part II, dealing with payment mechanisms, is an excellent treatment
of the topic of payment by negotiable instruments including letters of credit
and their use in international trade.
To sum up, this is an excellent casebook, the preparation of which must
have required many long and arduous hours of work. If there is a fault with
21[1969] 2 Ch. 17, [1969] 1 All E.R. 1062 (C.A.).
-[1971] A.C. 1004, [1970] 3 All E.R. 961 (H.L.).
“[1976] Q.B. 801, [1976] 2 All E.R. 5 (C.A.).
– [1950] 2 K.B. 86, [1950] 1 All E.R. 693 (C.A.).
3. [1969] 1 A.C. 350, [1967] 3 All E.R. 686 (H.L.).
McGILL LAW JOURNAL
[Vol. 28
this book, it is the surfeit of material through which the law teacher or the
student will have to pick his way. The Canadian law teacher is now in the
unenviable position of having to make a choice between two first rate
casebooks dealing with commercial and consumer law, and his choice will be
influenced by his method of teaching and by what he wishes to cover in his
commercial law course. If he seeks to adopt a traditional and straightforward
approach, he will no doubt be attracted by Bridge and Buckley; if he leans
towards a wide-ranging, broad treatment of the subject, with materials from
diverse sources and with attempted integration of consumer protection leg-
islation at all levels, he will prescribe Ziegel and Geva for his class.
Kenneth Sutton*
* Of the Faculty of Law, The University of Queensland.
1983]
BOOK REVIEWS
Droit constitutionnel. Par Frangois Chevrette et Herbert Marx. Montr6al: Les Presses de
l’Universit6 de Montr6al, 1982. Pp. xv, 1728 [68$].
Les professeurs Frangois Chevrette et Herbert Marx ont publi6 en f6vrier
1982 aux Presses de l’Universit6 de Montr6al, un ouvrage tr~s attendu: Droit
constitutionnel. Les deux professeurs de la Facult6 de droit de l’Universit6 de
Montreal ont ainsi combl6 un vide important dans notre litt6rature constitu-
tionnelle. Leur ouvrage est un outil de premiere importance pour tout travail
sfrieux en droit constitutionnel.
Compos6 de notes et de jurisprudence, le livre des professeurs Chevrette
bien des 6gards la forme et l’approche du Case Book
et Marx emprunte
am6ricain. Bas6 fondamentalement sur la d6cision judiciaire, l’ouvrage
la dimension historique, id6ologique et institution-
donne une certaine place
nelle des probl~mes constitutionnels dans des notes que l’on retrouve en
pr6sentation de sujet et en situation et synth~se de chapitre. Ces notes sont
pertinentes et fort bien faites. Elles seront une source de r6f6rence importante
pour l’6tudiant, l’avocat ou le juge qui doit solutionner un probl~me de droit
constitutionnel.
Les premieres pages de l’ouvrage sont consacr6es aux sources histori-
ques et formelles du droit constitutionnel, puis, dans une premiere partie, les
auteurs abordent les principes fondamentaux du droit constitutionnel. Le
principe de la 16galit6 ou rule of law, la souverainet6 du Parlement, la
s6paration des pouvoirs, le contr6le judiciaire de la constitutionnalit6, le
f6d6ralisme et la d6l6gation intergouvernementale sont 6tudi6s dans cette
premiere partie. Ces principes ne sont pas toujours faciles A comprendre. Bien
qu’ils se compl~tent t plusieurs occasions, il demeure que dans bien d’autres,
ils se contredisent nettement. L’ouvrage a le m6rite de les pr6senter d’une
fagon fort claire et par le fait m6me de contribuer A une meilleure compr6hen-
sion du droit constitutionnel.
Dans une deuxi~me partie, les auteurs abordent les principaux sujets du
partage des comp6tences l6gislatives pour terminer dans une troisi~me partie
par une 6tude de quelques libert6s fondamentales comme l’6galit6 devant la
loi, la libert6 d’expression, la libert6 de religion, la libert6 et sfiret6 de la
personne, l’immigration et la citoyennet6 et les droits des minorit6s.
L’ouvrage des professeurs Chevrette et Marx sera particuli~rement utile
aux juristes aux prises avec un probl~me concernant les comp6tences 16gisla-
tives. Les notes et la jurisprudence utilis6e font de cet ouvrage l’outil le plus h
point en droit constitutionnel canadien pour l’6tude de cet aspect majeur de
notre droit constitutionnel qu’est le partage des comp6tences 16gislatives. Les
libert6s publiques sont aussi trait6es avec beaucoup de discemement et de
pertinence quant au choix de la jurisprudence. Cependant, il faut dire que
REVUE DE DROIT DE McGILL
[Vol. 28
cette partie importante de l’ouvrage se r6fere tr6s peu A la Charte canadienne
des droits et libertis. ‘
I1 semble que le rapatriement et la Loi constitutionnelle de 1982 2 ont
caus6 quelques difficult~s aux auteurs. tvidemment, c’est IA un ouvrage qui
ne se r6dige pas en quelques mois. C’est probablement A la veille de donner
leur texte aux 6diteurs que les auteurs ont 6t6 confront6s avec la d6cision de la
Cour supreme sur le rapatriement du 28 septembre 1981 qui en elle-meme est
un v6ritable trait6 de droit constitutionnel. Quant A la Loi constitutionnelle de
1982, elle a 6t6 promulgu6e deux ou trois mois apres la parution du livre. Tant
au niveau des principes fondamentaux qu’A celui des libert6s publiques, cette
situation a probablement mis les auteurs dans le dilemme de publier quand
meme leur ouvrage dans les d6lais pr6vus ou d’attendre quelques mois pour le
compl6ter A la lumiere de ces nouveaux textes constitutionnels. ls ont d6cid6
de publier dans les d6lais pr6vus au risque 6videmment d’avoir A n6gliger
certains aspects nouveaux. Ainsi, nous pouvons retrouver certaines phrases
comme “[a]u Canada, le consensus est loin d’6tre r6alis6 en faveur de
l’incorporation dans une Constitution r6vis6e, d’une D6claration des droits
qui lierait tous les gouvernements, f6d6ral et provinciaux”.3
Le livre des professeurs Chevrette et Marx est aussi un ouvrage p6dago-
gique tres bien fait. Non seulement les notes sont claires et abordables pour un
6tudiant de premier cycle, mais en plus, tout au long du livre, on trouve des
jugements-problemes qui, pour la plupart, 6manent des tribunaux de premiere
et de deuxieme instance. Dans ces jugements-problemes, les auteurs laissent
le juge exposer le probleme constitutionnel auquel il est confront6 puis, ils
l’interrompent pour demander A l’6tudiant: “Quel a 6t6 le jugement rendu et
pourquoi ce jugement a-t-il 6t6 rendu?” La m6thode est tres int6ressante, elle
permettra 1’6tudiant d’61aborer sa r6ponse, puis de se rendre A la biblioth6-
que pour en v6rifier l’exactitude.
Le Droit constitutionnel est donc un ouvrage de premiere importance et
en tant que tel, il devrait se retrouver dans toute bibliotheque de droit digne de
ce nom. Le principal reproche que nous pouvons faire au livre, en est un plus
de forme que de fond. En effet, l’ouvrage est d’un volume consid6rable,
puisqu’il fait mille sept cent vingt-cinq pages. Il aurait peut-etre 6t6 pr6f6rable
de le pr6senter en deux tomes. De plus, 6crire en droit constitutionnel
aujourd’hui est une tache p6rilleuse, l’6volution jurisprudentielle y 6tant
ph6nom6nale. Depuis sa parution, plusieurs arrets de la Cour supreme sont
‘Voir ]a partie I de I’annexe B du Canada Act 1982, 1982, c. 11 (U.K.).
2Voir l’annexe B du Canada Act 1982, 1982,c. 11 (U.K.).
3Voir F. Chevrette et H. Marx, Droit constitutionnel (1982), A la p. 1202.
1983]
CHRONIQUE BIBLIOGRAPHIQUE
venus compl6ter certains points importants trait6s par les professeurs Che-
vrette et Marx. Dans la mesure ois l’oiwrage est un Case Book bas6 sur la
jurisprudence, il aurait
t6 int6ressant de le pr6senter sous forme de feuilles
amovibles. Un syst~me d’abonnement aurait ainsi pu 8tre offert h ceux qui
sont int6ress6s A compl6ter cet ouvrage qui est sans contredit une piece
maitresse dans la doctrine constitutionnelle canadienne.
Gil R6millard*
*Avocat, professeur A la Facult de droit de
‘Universit Laval.
McGILL LAW JOURNAL
[Vol. 28
A Common LawfortheAge of Statutes. By G. Calabresi. Cambridge, MA.: Harvard University
Press, 1982. Pp. 319 [$25.00 U.S.].
At first reading, this book appears to examine less than the title suggests.
A reader will, within a few pages, find himself enmeshed in the institutional
and procedural complexities of United States legal, political and administra-
tive structures. For the person not specialized in American law and politics,
this focus may prove frustrating, not to mention curiously parochial. Yet a
touch of patience will be rewarded. Professor Calabresi raises serious ques-
tions concerning the traditional balance between the legislature and the
judiciary. The discussion of these issues throughout the book does indeed
underline the generality of the title and raises the possibility of a broad
comparative view for this so-called “age of statutes”.
The book describes the “statutorification”‘ of the law and the conse-
quences for the judiciary of that development. Unlike the regime of laws that
existed in the nineteenth century, which was predominantly casuistic and
where the courts acted with ease to renovate the legal landscape, the twentieth
century legal structure, particularly after the onset of the Great Depression, is
founded on statute law. Under such a regime, courts are loath to interpret
statutes in a manner which might implicitly alter the product of legislative
enactment. This judicial “self restraint” has, according to the author, created a
“multitude of obsolete statutes in the face of the manifest incapacity of
legislatures to keep those statutes up to date”.2 The question is raised: What
institutional and procedural changes are required to allocate more effectively
the burden of inertia, thus stimulating change so that laws reflect more closely
the views of the shifting “majority”?
The author’s solution to the problem of “petrification” is made clear
early in the book. A new doctrine of judicial interventionism must be de-
veloped – with clear limits and techniques, as he writes toward the end of the
book –
to allow courts to mitigate the problems of obsolescence. Professor
Calabresi prefers that judicial action be open and frank. He deplores the
subterfuge that characterizes many court decisions today. For, as Calabresi
describes, the judiciary has attempted to update laws, without admitting that
intention, employing techniques not designed originally for that purpose.
These techniques include the use of constitutional adjudication, particularly
the invocation of the equal protection clause in the United States.3 Additional-
‘ G. Calabresi, A Common Law for the Age of Statutes (1982) 1.
2Ibid., 7.
‘In part, says Calabresi, because the Court found the constitutional principle closely
comparable to the common law principle “that like cases should be treated alike”. Ibid., 14.
1983]
BOOK REVIEWS
ly, the courts have used what Alexander Bickel called the “passive virtues”,4
“delegation of powers”, vagueness, desuetude and even the use of “lacks of
jurisdiction”, as a way to “actively force and at other times, through purposive
inaction to induce legislative reconsideration of statutes”. All, as the author
describes, suffer from an ill-fitting adaptation to new tasks.
Having disposed of these current judicial responses, the author, in
Chapter Five, commences a searching analysis of non-judicial techniques to
avoid legal petrification. He examines the appropriateness of using the admin-
istrative agency to update laws. Then he looks at the legislative solution –
and finally at structural reforms, the extremes of which are the
sunset laws –
creation of a more direct majoritarianism to overcome the “checked and
balanced” 5 legislatures or a return to the nineteenth century legal topography
–
that is a predominantly common law environment. Each solution is
discussed in turn, and weaknesses identified. The administrative agency
suffers from its own expertise, says Professor Calabresi. Agencies are im-
mediate problem solvers and cannot be trusted to fit a problem into “the
historical context”. And while in some ways politically accountable, indepen-
dent or dependent agencies are likely to be subject to pressures of special
interest groups, and may be unable to assess “the public interest”. The
legislative response of sunset laws would likely prove to be too mechanical,
updating by nullification many statutes which still represent a consensus. As
the author says, “[t]ime does not serve as a good indicator of age”. 6
As for the structural reforms, each extreme suffers from significant
limitations. Direct majoritarianism would require the abolition of the checks
and balances required for maintaining a balance between change and con-
sistency, a balance necessary to any legal fabric. As for turning back the clock
to a nineteenth century, common law landscape, Calabresi finds little comfort
in that solution either. The rise of statutorification was not accidental, as the
author describes in Chapter Seven. Its removal would necessitate the end of a
“social-democratic” view of society which the author refuses to countenance.
Having put aside the non-judicial responses, Professor Calabresi returns
to the courts to identify the antecedents, the doctrines, the limits, and the
techniques of a court system of statutory reform. In a democracy, argues the
author, a court, given its traditional role, methodology and authority, remains
the preferred institution to assign the burden of inertia. The courts have
always played a role in updating the legal fabric; that fabric and its underlying
principles form “an aspect of the popular will”. The judiciary can use its skills
4Bickel, The Supreme Court, 1960 Term – Forvard: The Passive Virtues (1961) 75
Harv. L. Rev. 40. See also Calabresi, supra, note 1, 17.
‘Calabresi,
6Ibid., 62.
ibid., 14.
REVUE DE DROIT DE McGILL
[Vol. 28
to adjust the law to “deep majoritarian” wishes. In the United States, judges
are individuals who are elected, or appointed and ratified by elected officials,
and they respond to election returns. Moreover, their decisions are subject to
legislative or popular revision as a final check. The damage of a wrong
decision can be rectified relatively easily. All this makes the courts the most
appropriate means of meeting the unsatisfactory state of contemporary law.
Professor Calabresi argues his position most convincingly. Not only
does he critique thoroughly present court methods and possible institutional
solutions, he also tries to meet the range of criticisms that might arise given
his support for the revision of the relationship between courts and statutes.
Yet even his strong advocacy cannot erase serious doubts, in the mind of this
reader at least, about the proposed solution.
The doubts, in fact, begin with the problem set out at the commencement
of the book. We are presented with the view that judicial activism by the
American courts is in part a “desperate response” to the problem of obsoles-
cence. But one does not come away from the book convinced either of the
extent of the problem or that the existence of this problem is an adequate
explanation for current judicial activism.7 Professor Calabresi is not very
forthcoming in pointing out the breadth and seriousness of the problem of
statutory obsolescence. Yes, he does provide specific examples, but it is not
apparent that these cases represent the proverbial “tip of the iceberg”. Fur-
thermore, it may well be that obsolescence, if it is as serious and as wide-
ranging as described, may comprehend various “types” of laws which may
allow for distinguishable institutional and procedural solutions. The author
alludes briefly to these themes, but most of this discussion, unfortunately, is
assumed.
Ignoring this problem for the moment, greater questions revolve around
the author’s other assumptions, notably concerning the value of formalism –
separation of powers, for instance –
in the constitution, as well as the
underlying motivation of the Founding Fathers in their construction of the
second constitution of the United States. The Founding Fathers in the United
States, as I read the constitutional debates and later writings, sought to
structure a system to provide the widest ambit of freedom to the individual
while still providing for necessary government authority to promote the
public interest.8 As much as possible, the structure was designed to prevent
‘For a less sanguine view of the courts’ role, see D. Horowitz, The Courts and Social Policy
(1977) and P. McGuigan & R. Rader, eds, A Blueprint for Judicial Reform (1981).
I This view is accepted widely by pluralists and their critics alike. See R. Dahl, A Preface to
Democratic Theory (1956) and Democracy in the United States: Promise and Performance,
4th ed. (1981); T. Lowi, Incomplete Conquest: Governing America (1976).
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tyranny by permitting particular interests to use the government. To guarantee
this result, the functions of government-legislative, adjudicative, adminis-
trative – were separated, though checked by other branches. This approach
involved the widest representational mix, not necessarily majoritarian, to
further protect individuals. While the author defends the checks and balances,
at least regarding revisions for a more direct majoritarianism, he dismisses a
little too quickly, “constitutionalism” –
the separation and the limitation of
power of the three branches of government.
independent administrative agencies –
In reaching his conclusion, it is hardly surprising that Professor Calabresi
notes carefully the arguments of Dean Landis of Harvard. I James Landis
was, of course, deeply involved in formulating solutions to the challenges
presented by the Great Depression to the American economic and political
systems. A large part of his institutional solution was to create and promote a
relatively new institutional form –
which the Brownlow Committee would call the headless “fourth branch” of
government. 0 And much like Professor Calabresi’s proposals, this earlier
solution was little concerned with the functional separation or overlapping
representational checks on authority. Ironically, the independent regulatory
agencies were called into being to right problems created by the courts’ and
the legislatures’ unwillingness to act. Now, that solution has become part of
the problem which courts are called upon to solve –
statutory obsolescence.
What new unforeseeable consequence will flow from the implementation of
Professor Calabresi’s functional and institutional revision? How many insti-
tutional alterations must be advanced and implemented before a more sensi-
tive appraisal of the original structure and purposes of the system will be
undertaken?
In fact, it is not clear that the pace of statutory change is not in keeping
with the “representational” character of legislatures. For Professor Calabresi,
the failure of revisions represents “checked and balanced” legislatures, anti-
majoritarian in their construction. Yet judicial activism may well distort the
normal representational character of pluralist legislatures. As William Stan-
meyer says: “[T]he refusal of a legislative body to do anything, when it is
quite aware that it could do something, often demonstrates the process
working. For it shows that the requisite popular consensus favouring change
has not yet formed. And popular consensus should be the backbone of public
policy in a representative republic.” 1 The task of balancing consistency and
change in the light of representational consensus might best remain with the
9See J. Landis, The Administrative Process (1938).
‘”United States Government, President’s Committee on Administrative Management,
Administrative Management in the Government of the United States (1937) 36.
“1 Stanmeyer, “Governing the Judiciary” in McGuigan & Rader, supra, note 7, 37.
McGILL LAW JOURNAL
[Vol. 28
legislature. At least, much more will have to be done to assess what consti-
tutes the public interest in a representational democracy before Professor
Calabresi’s position could command significant authority.
I have argued that the American political system was constructed as a
representative democracy, designed to limit majoritarianism. Changes have
occurred which have reflected a desire to press toward a more directly
majoritarian form of polity. To the extent that the system tries to integrate
both elements –
the courts are likely to
represent the least appropriate institution to legitimize the public interest.
Notwithstanding the author’s defences and his definition of the courts as
“semi-representational”, 2 the court remains the most problematic institution
in a modem democracy if addressing the issues of political accountability and
legitimacy.
representational and majoritarian –
If one is concerned about this legitimacy and accountability, then non-
judicial solutions, institutions and procedures come readily to mind. If admin-
istrative agencies are employed, the use of directives from the executive or
legislature can force non-elected agency officials to act within guidelines set
by representative bodies. Executive or legislative veto might reinforce the
political accountability of non-representative institutions. Professor Calabresi,
on the other hand, would ask judges to alter the directives –
the statutes –
that are established as guidelines by other, more representative, institutions.
It is a solution fraught with difficulty.
Various solutions to the problems of legitimacy and accountability are
open, but it is not possible to work them out here. It is, however, my concern
to question Professor Calabresi’s benign view of the courts regarding these
values. The courts, as recent politics in America has shown, have far less
legitimacy in their quasi-legislative roles than Professor Calabresi tends to
suggest. 3 The arrogation of authority to the courts, by the redefining of the
legislative-judicial balance, might aid the cause of change and equity at the
price of legitimacy. The danger to the public interest, and even to the courts,
appears as great as the presumed benefits.
If the concern I raise about the courts’ role in the United States has
validity, then my concern is heightened if one addresses the Canadian situa-
tion. As in the United Sates, the division of function has blurred with the
demands of a modem welfare society. Yet, in Canada, the representational
quality of the courts has never been as serious a concern as in the United
States. This fact seems odd because no judges in Canada are elected. Never-
“Calabresi, supra, note 1, 118.
3For a glaring example, note the negative effect upon the Court’s legitimacy of the abortion
decision Roe v. Wade 410 U.S. 113 (1973).
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theless, here too, legitimacy and accountability are not values that can be
ignored. The judiciary’s historic role, and its relationship to Parliament, have
defined a narrower role for the court in our society than in the United States.
Some change in that role and relationship has occurred recently. The federal
appointment of provincial judges and the current process of selection have
circumscribed the courts’ legitimacy in a broad policy or political role. So it is
that Professor Calabresi’s solution, in a Canadian context, at least as the
courts are presently arranged, seems highly questionable. One need only
reflect on the possibility of a Qu6bec court, or perhaps the Supreme Court,
asking the Qu6bec National Assembly to re-evaluate a statute, to recognize
the dubious character of the proposal in the Canadian context. Such a move
certainly would raise a storm of protests from all nationalists, and might well
prompt the same reaction amongst federalists. Few would countenance wil-
lingly a federally appointed judiciary vetoing the provincial legislative will.
Even without authority to declare statutes obsolete, the judiciary remains on
barely legitimate ground in Qu6bec. This proposition may be true for other
provinces as well.
I would conclude by urging other scholars to take up the issue of
statutory obsolescence as identified by Professor Calabresi, both to examine
the seriousness of the problem, and to evaluate the proposed solution. Profes-
sor Calabresi has done the legal and political community an important ser-
vice. It is up to the community to further his contribution.
Alan S. Alexandroff*
*Research Associate, Centre for the Study of Regulated Industries, McGill University and
LL.B. II, Faculty of Law, McGill University.
