Volume 60, Number 4 /2010 of University of Toronto Law Journal is now available at http://utpjournals.metapress.com/content/x6111358w7qu/.
This issue contains:
Investing In Democracy? Political Process And International Investment Law
David Schneiderman
Abstract: International investment law is rushing to stake out the high ground of democratic theory. It has been claimed that the interests of foreign investors ordinarily will not be represented within a host state's political processes and so investors deserve heightened protection from policy decisions that adversely affect investment interests. I argue in the present article that this smuggling of democratic theory and constitutional postulates into international investment law is inapt and, as an empirical matter, inaccurate. By looking to the us origins of political process doctrine, I argue that its invocation by international investment tribunals is inapposite given the doctrine's concern with relegating ordinary economic regulation to relaxed scrutiny. Nor is reference to the European experience all that helpful – representation reinforcement review has not been a hallmark of European jurisprudence. I claim that this worry over democratic processes masks an attempt at legitimating controversial review by investment tribunals of high public-policy matters. Moreover, as empirical studies suggest, this solicitude offered to investors by political process review is mostly unwarranted as foreign corporate actors can and do shape host domestic policy.
http://utpjournals.metapress.com/content/0533r52371l28415/?p=483fdb5f3d5d4931b717885c906b389e&pi=0
Is Systemic Risk Relevant To Securities Regulation?
Anita I. Anand
Abstract: The global financial meltdown has led to a renewed focus on the purposes of securities regulation and on the expansion of these purposes to include considerations of systemic risk; yet the case for such an expansion has been assumed more than argued. This article derives an argument for expansion from developments in the financial markets. Traditionally, mitigating systemic risk has fallen within the realm of financial institution (i.e., prudential) regulation rather than securities law. However, developments in financial markets, including the bundling and sale of securitized products by a variety of complex institutions, are blurring the line between prudential regulation and securities law. This evolution makes systemic risk increasingly relevant to securities regulation. Consequently, the article argues, the securities regulatory regime should expand to encompass mitigating systemic risk
http://utpjournals.metapress.com/content/032281m174626r02/?p=483fdb5f3d5d4931b717885c906b389e&pi=1
If Philosophical Legal Ethics Is The Answer, What Is The Question?
Alice Woolley
Abstract: Philosophical legal ethics, a sub-discipline of legal ethics arguably initiated by Charles Fried and Richard Wasserstrom, follows a consistent methodological structure: first, what is the ‘standard conception’ of the lawyer's role? second, what is the relationship between the standard conception – the conception of the lawyer as a partisan advocate for her client, neutral about (and unaccountable for) the morality of her client's aims – and the claims of morality more generally? and third, given that relationship, can what lawyers do be morally justified? or should what lawyers do be changed? The concerns of philosophical legal ethics are not primarily doctrinal; they analyse the lawyer's role with some generality and are fundamentally rooted in philosophy, moral or political.
This article uses two recent publications in the area of philosophical legal ethics – Daniel Markovits's A Modern Legal Ethics: Adversary Advocacy in a Democratic Age and Tim Dare's Counsel of Rogues? A Defense of the Standard Conception of the Lawyer's Role – to argue that the straightforward rhetorical structure of philosophical legal ethics belies the difficulty inherent in analysing something that necessarily incorporates both legality (doctrines of law) and ethics (the ability of a person to lead a well-lived life), particularly since both legal doctrine and a well-lived life also bear some relation to the dictates of impartial morality, while yet remaining in some way distinct from impartial morality. Its seemingly straightforward structure also obscures the risk for philosophical legal ethics of drawing implications from ethics for law, or from law for ethics, even where those implications may be unwarranted or actively problematic.
http://utpjournals.metapress.com/content/g38v5541v52643r8/?p=483fdb5f3d5d4931b717885c906b389e&pi=2
Daniel Markovits
Abstract: A court – which is the name given the institution charged with resolving legal disputes at retail – is comprised of three elements: an umpire (judge or jury), disputants, and advocates. The court's structural purpose is legitimate (which is not the same thing as just) dispute resolution. No part of the court can stand in for the whole; each is only a part. In order for the court to achieve legitimacy, each of its components must pursue partial aims: the umpire must seek truth and justice, the parties must be free to seek advantage, and lawyers must pursue partisan loyalty.
Lawyerly partisanship thus stands against truth and justice – the court's legitimacy requires this. Although rules of legal ethics might constrain hyper-zeal, the legitimacy of the court requires that lawyers' ethics avoid imposing general duties to truth and justice as this would conflate advocate and umpire. This requirement of legitimation is a direct consequence of the familiar fact of moral pluralism. There simply exist no regulative principles – including principles of justice – on which all sides of moral and political disputes can agree. Legitimacy depends on affective engagement with a process; it cannot be sustained by argument. Adjudication is part of this process; and adjudication requires partisan lawyers.
Partisanship is thus ineliminable from the lawyer's life. Legal ethics must take such partisanship into account. To do so, it must take up problems associated with the lawyer's integrity. Such questions are not mere navel-gazing but are instead entirely appropriate for a profession whose place in the political division of labour renders conflicts between professional obligations and ordinary moral ambitions particularly clear and stark.
Legal ethics thus cannot – for reasons that apply to ethics quite generally – ever be reduced to generic moral or political theory. And in this sense, taking the lawyer's point of view in legal ethics is not a sop to local interest but an inevitable part of any serious engagement with the legal facts and moral circumstances of the lawyer's life.
http://utpjournals.metapress.com/content/18x4h27183413653/?p=483fdb5f3d5d4931b717885c906b389e&pi=3
W. Bradley Wendel
Abstract: Professor Woolley's principal article identifies a fault line in the theory of legal ethics, between those who ask what a lawyer should do in a situation, and those, like Professor Markovits, who are concerned with how a lawyer should be. The first-personal turn in legal ethics emphasizes the lawyer's integrity or character, rather than impartial considerations such as the client's interests or legal rights. Professor Markovits, for example, foregrounds the affective process of engagement by clients in adjudication, and from that derives a conception of legal ethics that emphasizes the lawyer's passivity, as a negatively capable conduit facilitating client engagement. Professor Woolley acknowledges that there is a first-personal problem in legal ethics, but insists on separating it from the questions pertaining to the best way to regulate the legal profession. This comment accepts Professor Woolley's distinction between theoretical questions pertaining to regulation and those pertaining to what constitutes a life well lived. It goes beyond her article, however, in denying that considerations of integrity, personal identity, and a life well lived do not bear on impartial questions such as what duties lawyers have to their clients and others.
http://utpjournals.metapress.com/content/hw3j21612rw22v73/?p=483fdb5f3d5d4931b717885c906b389e&pi=4
Philosophical Legal Ethics And Personal Integrity
Tim Dare
Abstract: Alice Woolley's survey of contemporary legal ethics (UTLJ 60.4) discusses Daniel Markovits's A Modern Legal Ethics: Adversary Advocacy in a Democratic Age (Princeton University Press, 2008) and my The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer's Role (Ashgate, 2009). Woolley argues that philosophical legal ethics has focused ‘too much on the ethical experience of the lawyer's life’
http://utpjournals.metapress.com/content/257p18335738741x/?p=483fdb5f3d5d4931b717885c906b389e&pi=5
Language And Judgment's Reach: Reflecting On Limits On Rights
Robert Leckey
http://utpjournals.metapress.com/content/txl85255t4724824/?p=483fdb5f3d5d4931b717885c906b389e&pi=6
http://utpjournals.metapress.com/content/t26l73705v7g3204/?p=483fdb5f3d5d4931b717885c906b389e&pi=7
The University of Toronto Law Journal, founded in 1935, is the oldest university law journal in Canada. It continues to represent the broad and visionary approach to legal scholarship which was initially announced by W.P.M. Kennedy, the first editor of the Journal, when he ventured the hope that its publication would foster a knowledge of comparative laws ‘not merely as substantive or adjectival systems, but as expressions of organized human life, of ordered progress, and of social justice.’
The journal publishes the work of the most internationally well known scholars, not only in the law, but also in the broad range of disciplines relating to the law, such as economics, political science, philosophy, sociology, and history.
For more information about the University of Toronto Law Journal or for submissions information, contact:
University of Toronto Law Journal
University of Toronto Press, Journals Division
5201 Dufferin Street, Toronto, ON M3H 5T8, Canada
Tel: (416) 667-7810 Fax: (416) 667-7881
Fax Toll Free in North America 1-800-221-9985
Email: [log in to unmask]
Join us on Facebook! www.facebook.com/utpjournals
Posted by T Hawkins, UTP Journals