Law Publications

Document Type

Article

Publication Date

2017

Journal

Osgoode Hall Law Journal

Volume

54

Issue

4

First Page

1181

Abstract

Canadian common law contract law casebooks are beset with a tension. On the one hand, they all reveal a sustained commitment to the “wholesale assault on the jurisprudence of forms, concepts, and rules” that typifies American Legal Realism and its intellectual descendants. Concern with underlying values, functional reasoning, social realities, and policy thinking pervades the explicit messages of Canadian contract law casebooks and their editors’ related writings. On the other hand, the two casebooks most frequently assigned embody an allegiance to rules and courts that has a close kinship with the classical attitudes purportedly rejected. They convey a monolithic image of legal reasoning that emphasizes rules, certainty, and analogical reasoning and that marginalizes policy thinking. The range of skills, and image of lawyer, communicated by the books is much narrower than their critical and realist introductions imply. Accordingly, the casebooks suggest that Canadian legal thought may be typified by theoretical eclecticism coexisting with methodological homogeneity. This characterization provokes three alternative responses. First, casebook editors may embrace this vision and mount a principled defence of it. Second, they may reject it and aim to operationalize their realist and critical commitments into a more methodologically plural casebook, as has been done in the United States. Third, a re-imagined set of teaching materials organized not around cases but around “empirically recurring problems of contracting parties” may transcend the paradigm. This last avenue holds the most promise for embodying a capacious vision of legal education.

Notes

2018 Peter Oliver Prize, Osgoode Society for Canadian Legal History

Included in

Contracts Commons

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