Saturday, January 31, 2009

It's Poetry Time: Wallace Stevens: The Snowman

The Snowman

One must have a mind of winter
To regard the frost and the boughs
Of the pine-trees crusted with snow;

And have been cold a long time
To behold the junipers shagged with ice,
The spruces rough in the distant glitter

Of the January sun;
and not to think Of any misery in the sound of the wind,
In the sound of a few leaves,

Which is the sound of the land
Full of the same wind
That is blowing in the same bare place

For the listener, who listens in the snow,
And, nothing himself, beholds
Nothing that is not there and the nothing that is.


It does not get better than that.

Sad but true: the mother of all quagmires

Michael Totten:

"...I've just returned from a week-long trip through Tel Aviv, Jerusalem, and Israel's border with Gaza, and I'm reminded all over again of what has been beaten into me during my many visits to the Middle East: there is no solution to the problems that vex that region right now. Most Americans are inherently optimistic and think just about any problem in the world can be solved. We put a man on the moon before I was born, but that was easy compared with securing peace between Israelis and Arabs.

The American Jewish Committee brought me and seven of my colleagues to Israel and set up interviews with Israeli military officers, politicians, academics, and journalists on the far-left, the far-right and at every point in between. One of my colleagues asked the eternal question during one of our meetings. “What is the solution to this problem?” He meant the Arab-Israeli conflict, of course, and the answer from our Israeli host was revealing in more ways than one. “You Americans are always asking us that,” he said and laughed darkly.

Americans aren't the only ones who have a hard time grasping the idea of an intractable problem. “Unfortunately we Westerners are impatient,” said an Israeli politician who preferred not to be named. “We want fast food and peace now. But it won't happen. We need a long strategy.” “Most of Israel's serious problems don't have a solution,” said Dr. Dan Schueftan, Director of National Security Studies at the University of Haifa. “Israelis have only recently understood this, and most foreign analysts still don't understand it.”

A clear majority of Israelis would instantly hand over the West Bank and its settlements along with Gaza for a real shot at peace with the Arabs, but that’s not an option. Most Arab governments at least implicitly say they will recognize Israel's right to exist inside its pre-1967 borders, but far too many Palestinians still won’t recognize Israel's right to exist even in its 1948 borders. Hamas doesn't recognize Israel's right to exist inside any borders at all.

“We will never recognize Israel,” senior Hamas leader Nizar Rayyan said before he was killed by an air strike in Gaza during the recent fighting. “There is nothing called Israel, neither in reality nor in the imagination.”

Hamas does not speak for all Palestinians. I’ve met Palestinians who sincerely despise Hamas and everything it stands for. But let’s not kid ourselves here. Hamas speaks for a genuinely enormous number of Palestinians, and peace is impossible as long as that’s true. An-Najah University conducted a poll of Palestinian public opinion a few months ago and found that 53.4 percent persist in their rejection of a two-state solution.

Far too many Westerners make the mistake of projecting their own views onto Palestinians without really understanding the Palestinian narrative. The “occupation” doesn’t refer to the West Bank and Gaza, and it never has. The “occupation” refers to Tel Aviv and Jerusalem. A kibbutz in the center of Israel is “occupied Palestine” according to most. “It makes no sense to a Palestinian to think about a Palestinian state alongside Israel,” Martin Kramer from the Shalem Center in Jerusalem said to me a few days ago. “From the Palestinian perspective, Israel will always exist inside Palestine.”

“Making peace with the Palestinians is harder than making peace with other Arabs,” said Asher Susser, Senior Research Fellow at Tel Aviv University. “With the Palestinians we have a 1948 file as well as a 1967 file. With other Arabs we only have a 1967 file. The 1967 file relates to our size, but the 1948 file relates to our very being. It is nearly impossible to resolve because we cannot compromise on our being.”

The problem here isn't just with the worst of the violent rejectionists. Even the moderates on each side remain too far apart.

Fatah Party leader Mahmoud Abbas is clearly more moderate and reasonable than the leaders of Hamas and Islamic Jihad, but even he can't compromise on the “right of return,” the so-far non-negotiable demand that all Palestinian refugees and their descendants from the 1948 war be allowed to return to settle in Israel. Israel would become an Arab-majority country if that were to happen, and most of the would-be arrivals have been radicalized in politically toxic refugee camps. The “right of return” would ignite a civil war worse than Lebanon’s.

Listen to Ran Cohen, Member of the Knesset for the left-wing Meretz Party and former leader of the Left Camp of Israel peace movement. “Even I refuse the right of return,” he said. “It's impossible. It's the opposite of a solution. Abu Mazen [Mahmoud Abbas] and the others know our position on the right of return. Who are they going [to] negotiate this with? Not me, not Meretz, not Peace Now. Who? The Communist Party? Not even the radical left supports this.”
Palestinian right-of-returners aren’t the only ones to contend with. “We cannot look at Israel-Syrian talks or Israeli-Palestinian talks without looking at how Iran influences these talks,” said an Israeli intelligence officer who asked not to be named. “Iran has its fingers all over these talks. The situation is much more difficult now than it was in 2000.”

All wars end, and this mother of all quagmires will eventually end like the others. But the Middle East will have to change before it is solvable. President Barack Obama no doubt will pull out all the stops to broker a peace agreement no matter how bleak the prospects may look. There is something to be said for struggling against long odds, and an excessively negative attitude can be self-defeating. Perhaps it's even worth sponsoring a doomed peace process just to keep up appearances so the United States won’t be blamed when it continues to fail. But President Obama should take care to proceed as though failure – through no fault of his own – is the most likely outcome right now.

Jeffrey Goldberg wrote a cautionary note to Israelis in the New York Times that applies just as well to the Obama Administration. “There is a fixed idea among some Israeli leaders that Hamas can be bombed into moderation,” he wrote. “This is a false and dangerous notion. It is true that Hamas can be deterred militarily for a time, but tanks cannot defeat deeply felt belief. The reverse is also true: Hamas cannot be cajoled into moderation. Neither position credits Hamas with sincerity, or seriousness.”

Dan Schueftan made a similar point much more bluntly when I met him last week in Israel. “Ariel Sharon believed we could change the world by force,” he said. “Shimon Peres believed we could change it by being nice and stupid. They are both megalomaniacs...”

Friday, January 30, 2009

The Incompatibility of Science and Religion

Can you believe this:

"...Charles Darwin was born on February 12, 1809--the same day as Abraham Lincoln--and published his magnum opus, On the Origin of Species, fifty years later. Every half century, then, a Darwin Year comes around: an occasion to honor his theory of evolution by natural selection, which is surely the most important concept in biology, and perhaps the most revolutionary scientific idea in history. 2009 is such a year, and we biologists are preparing to fan out across the land, giving talks and attending a multitude of DarwinFests. The melancholy part is that we will be speaking more to other scientists than to the American public. For in this country, Darwin is a man of low repute. The ideas that made Darwin's theory so revolutionary are precisely the ones that repel much of religious America, for they imply that, far from having a divinely scripted role in the drama of life, our species is the accidental and contingent result of a purely natural process.

And so the culture wars continue between science and religion. On one side we have a scientific establishment and a court system determined to let children learn evolution rather than religious mythology, and on the other side the many Americans who passionately resist those efforts. It is a depressing fact that while 74 percent of Americans believe that angels exist, only 25 percent accept that we evolved from apelike ancestors. Just one in eight of us think that evolution should be taught in the biology classroom without including a creationist alternative. Among thirty-four Western countries surveyed for the acceptance of evolution, the United States ranked a dismal thirty-third, just above Turkey. Throughout our country, school boards are trying to water down the teaching of evolution or sneak creationism in beside it. And the opponents of Darwinism are not limited to snake-handlers from the Bible Belt; they include some people you know. As Karl Giberson notes in Saving Darwin, "Most people in America have a neighbor who thinks the Earth is ten thousand years old..."

Read this devastating essay on the fundamental incompatibilty of science and religion:

Wednesday, January 28, 2009


Comments by Joshua Cohen, and good they are; it's kinda' what we believe at Basman Rose as to political philosophy:

"...In his book Political Liberalism, John Rawls offers a general description of a liberal political outlook. He intends the description to cover views ranging from the classical liberalism of Friedrich Hayek and Milton Friedman, arguably in the tradition of Locke and Adam Smith, to the more egalitarian liberalism of his own Theory of Justice. Rawls writes, “the content of a liberal political conception of justice is given by three main features:

1. a specification of basic rights, liberties and opportunities (of a kind familiar from constitutional democratic regimes);

2. an assignment of special priority to those rights, liberties and opportunities, especially with respect of claims of the general good and perfectionist values; and

3. measures assuring to all citizens adequate all-purpose means to make effective use of their liberties and opportunities.

These three elements can be understood in different ways, so that there are many “variant liberalisms.”

Aren’t these just the typically vacuous abstractions that only a philosopher could love? No. Quite to the contrary, Rawls here identifies the common ground shared by classical and egalitarian liberals. And, I think, the common ground occupied by the participants in this discussion.

The abstract description of shared ground is located at the level of principle, not policy, but it is not vacuous at all, and in two important ways.

First, to believe in the equality and priority of basic personal and political liberties; to be skeptical as a corollary about paternalism, moralism, and perfectionism; to embrace an ideal of equality of opportunity and an assurance of adequate resources for all: these mark out a distinctive family of political views. Those three points are not common ground that we political liberals share with fascists; communitarians; traditionalists of various kinds; Stalinists; suffocating, oxygen-depleting moralists; believers in a confessional state (whatever the confession); or adherents to anti-state, anarchist libertarianism. We may be dull, but we are dull from our own distinctive principles.

Second, I think it is common ground among the variant liberalisms that expressing shared principles of this kind is an important part of politics. That is because we all think, anyway I think we all think, that there is something to the ideal of public reason: I mean the idea that politics is not simply about the use of power in pursuit of group interests, but also about drawing on basic principles and ideas of justice and fairness in guiding the exercise of collective power. For us, I think, there is some continuity between political philosophy and politics. And while we all know that politics is not a seminar and a movement is not a counterexample, we think that things have gone badly wrong in a democracy when politics degenerates into endless angling for personal and group advantage, and political “argument” is just another phase in that unprincipled struggle.

That said, we also disagree. And what we disagree about is, among other things, how best to understand those core elements of a liberal political outlook. And to provoke discussion I want to mention four points of disagreement: about democracy, equal opportunity, an adequate level of resources, and the use of collective power to advance political purposes. I am not sure whether our disagreements on these four broad issues are more philosophical or more empirical, or how, as a practical matter, to draw the line. One of the hopes I have for this discussion is that we can make some headway in thinking about why we disagree, despite our shared ground.

First, then, we are all democrats: we think competitive elections are important both for representativeness and accountability of government, and we favor universal suffrage and associated political rights of speech and association. But egalitarian liberals have a stronger ideal of political equality: we object when chances for political influence depend on positions in the distribution of income and wealth. We know that Obama dropped public finance, and are not happy that he did. And our unhappiness goes to something basic in our understanding of democracy. We think of democracy as more than an instrument for good policy. Democracy is also a way that equal citizens use their political rights to bring their sense of justice to bear on collective decisions: “The great glory of American Democracy,” King said, “is the right to protest for right.” Of course people attach different importance to political engagement. But we think that chances for influence should not depend so much on resources, and that means regulating campaign finance.

We see a basic political value at stake here—equality of opportunity—and think it is an appropriate use of powers to tax and spend to make policies in service of this value.
Now, we know (and share) the concerns about intrusive regulations, official distortions of speech, people spending on fancy cars instead of politics, and the troubles with drawing lines between regulable and non-regulable speech, especially in our political culture. But we see all of these concerns as conversation starters, not stoppers. The issue is whether we can figure out a system of electoral finance that would not simply dismiss the value of political equality. That is the question. But when we hear the idea of regulating the flow of money, we don’t assume that it will be perverse, or futile, or ruinous of all that is good (here, and later, I borrow from Albert O. Hirschman’s The Rhetoric of Reaction: Perversity, Futility, Jeopardy).

Second, I think there is a similar story about equal opportunity. Common ground is that we like the idea of people being able to do something with their talents, not being held back by artificial barriers as they are under racial apartheid or with rigid gender rules. And we don’t believe the unbelievable idea that everyone is the same—the ridiculous idea that we egalitarians are sometimes said to embrace. So we know that when people are not held back, they will end up in different places.

But we think that people are held back by lack of resources, and not only by legal restraints on social mobility. We think it is unfair when people of comparable ability, prepared to make comparable efforts fare differently because of their social-class origins. We know that this cannot be completely remedied. Having spent time on earth, we know that much better schools and training, better health care, and less solicitude for intergenerational transfers will not create the world of perfect equality of opportunity. But we see a basic political value at stake here—equality of opportunity—and think it is an appropriate use of powers to tax and spend to make policies in service of this value. And, once more, we don’t suppose that efforts to use political means to further this value will, as is said, be pointless, or hurt “the very people we are trying to help,” or send us down the road to some bureaucratic, rent-seeking swamp of feudal corruption. It might: markets fail, public policy fails. But experience on earth with addressing these issues in democracies is not a record of unbroken failure.

Third, there is the issue of adequate means: the idea that a protection of liberties and opportunities needs to be accompanied by some attention to the distribution of the resources we need to make use of our equal liberties. Assume that law and policy have a large impact on the life chances of members of society, that the distribution of resources is a function of the laws and policies we have adopted, not simply the choices that people make about what to do with their talents. We think that changes in laws and policies—including market-constituting laws about patent and copyright— would yield a different distribution of wealth. We know that some people will always fare less well than others. One response is to remind people that life is unfair. We think, instead, that a democratic society—dedicated to the proposition that we are all equals—must be prepared to explain to those whose prospects are worse why it has not chosen different rules that would make their prospects better.

Fourth: two threads run through all of this. One is about political philosophy. We egalitarian liberals are concerned about equality—political equality, equality of opportunity, equality of resources—in ways that classical liberals are not. But the disagreement also sounds in our positive views about politics, society, and markets: we don’t think that politics is a disaster waiting to happen. Friedman says “equality comes sharply into conflict with freedom; one must choose. One cannot be both an egalitarian . . . and a liberal.” We disagree. We think it is right to be both, and that it is possible to be both, without being na├»ve.

And that is partly because we have a different picture of politics. We think that politics is more than an unfortunate necessity required by our inability to live together without killing each other. We think it is, can be anyway, an arena in which we work out and pursue, sometimes with notable success, large and constructive purposes. When I think about the history of democracy in the past century, and think about its greatest achievements of domestic policy, the areas of real moral progress, I think of civil rights, women’s equality, and the halting fight against a class society. With respect, classical liberals were in the rearguard in every one of these struggles. And for a simple reason: in each case, the struggle depended on a willingness to fight against inequality, subordination, exclusion through political means, through the dread state. And if you mix your classical liberal values with the classically conservative predisposition to think that politics is at best futile, at bad perverse, at worst risks what is most fundamental, then you will always celebrate these gains when the fight is over: always at the after party, inconspicuous at the main event, and never on the planning committee...."


p.s. Who gets the acting prize and why: Penn in Millk, great acting, lesser movie, one might posit, or Rourke in The Wrestler, great acting but playing to type, not like Penn so brilliantly against type, and better movie--The Wrestler, large and inviting and empathetic as against a certain, biopiccy pinchedness in Milk, one might posit.

Basman at the Movies

1. I thought Sean Penn was phenomenal in Milk. He must be among the greatest American actors of his generation. But I agree with Bazelon that the movie, as good it was—3 ½ out of 5 in my book—suffered from being a biopic. Biopics in my experience tend to cramp imaginative possibilities.

2. I love Clint Eastwood, especially in this his later period and wanted to love Gran Torino, but I didn’t. I thought it suffered from some occasional Eastwoodian weaknesses, too much contrivance generally, too much contrived violence, too much violence as redemptive, an inclination to caricature, and too much black and white moralizing. Some critics say that the implicit homage to Dirty Harry and to the violence wreaking, say little wield a lethal stick protagonist of his early movies adds dimension to Gran Torino. I think it exacerbates the movie’s weaknesses. Again I say this as someone who thinks Eastwood is an exceptional director—and, digression, just compare the Sean Penn of Mystic River and the Sean Penn of Milk, simply amazing—and who ranks Letters From Iwo Jima as amongst my 4 or 5 greatest movies ever. (Possible slight spoiler alert): I thought the ending escaped and mitigated these weaknesses.

3. Wild Horses could not drag me to see the curious case of Benjamin Button’s Curious Case.

4. On the other hand I did see The Reader (haven't yet read the book) and thought it was good not great, but quite thought provoking. I liked the tension between the two perspectives of the Holocaust reflected in the movie's story and the relationship between Fiennes as a teenager lucking into sack time with Kate Winslett, too beautiful for her role perhaps, though I would not be so hard on her as others,. That then informed his dliemmas as a law student and as a lawyer and as a man. This is the perspective of subsequent generations of Germans coming to terms with the Holocaust as they live their already complicated lives in modern times.

If anyone got sick of Fienne's character's neurotic passivity and indecisiveness and cowardliness, well that was his character and he stood unredeemed. He was a weak louse, a particular cringe inducing and fully realized character, I thought. Lena Olin's rebuke of him near the movie's end, as he sought from her redemption, some kind of a moral pass, any kind of a pass, some cathartic cleansing, was strong and dignified and assertive and compelling, everything Fiennes is not.

Olin's is the other perspective of the Holocaust, that of the victims (and their children)--that there is no absolution to be had, no easiness allowed for what happened, no grays in the blacks and whites that properly and starkly colour that second perspective. That scene simply fixes Fiennes as one fixes a speciman.

Also I thought good and part of the first perspective were Winslett's answers to her interrogators as to why she did what she did and her question back, which they could not have honestly answered, what would they have done, with telling wisdom in her utterly prosaic, simple mindedness. Her answer served neither as excuse nor explanation nor not as exculpation either, but showed how utterly simple minded people sincerely and stupidly and robotically perceived their sense of duty, and showed how judgment from a perspective other than Olin's magnificent one is less than easy. Her sentencing was layered with dimensions of sanctimony and facile hind sight judgment.

I have read the director to have said he was making a movie that departed from the usual moral lines bounding movies about the Holocaust. To me he did, and without transgression either.

5. I cannot remember whether the “diavlogging ladies” discussed the silly and incoherent Slumdog Millionaire. Therefore, I shant say what I thought of it.

6. Finally, while I like Anne Althouse well enough, I think her reason for not seeing Frost Nixon, as I understood it, which movie I intend to see, is preposterous—she saw the real debate and wants not her memory of it desecrated, does not need a (possibly) liberal inflected account of it. Taken to its absurd logical conclusion, this reason, I think, is a denial of imagination’s reconstruction of reality in art and is a denial of diverse and complex human responses to, and accounts of, real events, as though there is only one perspective from which to see and gauge them.

Tuesday, January 27, 2009

Scope of the Charter
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...[100] The search for an answer to this question must begin with a review of the wording of the Charter itself, followed by careful consideration of recent jurisprudence from the Supreme Court of Canada as to the extraterritorial application of the Charter.

a) Section 32(1) of the Charter

[101] Section 32(1) of the Charter provides that:

This Charter applies

a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

[102] As the Supreme Court of Canada has noted, section 32(1) determines who is bound by the Charter, and what powers, functions or activities of those bodies and their agents are subject to the Charter: Hape, at ¶32.

[103] In identifying who is bound by the Charter, section 32(1) makes it clear that the Charter is intended to regulate the conduct of “state actors”: see Hape at ¶81.

[104] The respondents have previously questioned whether the Canadian Forces in Afghanistan are acting as Canadian state actors in this case: see Amnesty #1, at ¶73.

[105] However, for the purposes of this motion, the respondents have accepted that in carrying out their duties in Afghanistan, as part of both OEF and ISAF, the Canadian Forces are indeed functioning as Canadian state actors.

[106] It is noteworthy that section 32(1) does not expressly impose any territorial limits on the application of the Charter. As a consequence, it falls to the courts to interpret the jurisdictional reach and limits of the Charter: see Hape, at ¶33.

[107] The Supreme Court of Canada has recently pronounced on precisely this question in R. v. Hape, albeit in a different factual context. As the Supreme Court’s view of this issue must obviously be of central importance to the Court’s analysis in this case, it is important to have a clear understanding of precisely what the Supreme Court had to say in Hape. This will be addressed next..."

Section 24(1) of the Charter and State Actors
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[24] Thus, where ICBC is considered to be a "state actor," the court considering a Charter breach will take into account, in addition to the usual factors set out in R. v. Collins, 1987 CanLII 84 (S.C.C.), [1987] 1 S.C.R. 265, 33 C.C.C. (3d)1, the nexus between ICBC and the state actor, usually the police, that improperly obtained the evidence: see Ropchan at ¶79-80

Defendants under section 24(1) of the Charter

The defendant must be a state actor.

"...A cause of action cannot be sustained where the causal link between the actions of the government and the alleged violation of the appellants' rights under the Charter is uncertain, speculative and hypothetical. In this case the appellants raised matters that lie in the realm of conjecture rather than in fact. It is simply not possible for a court, even with the best available evidence, to do more than speculate upon the likelihood of the Cabinet's decision to permit testing of the cruise missile resulting in an increased threat of nuclear war: Operation Dismantle Inc. et al. v. The Queen et al., 1985 CanLII 74 (S.C.C.), [1985] 1 S.C.R. 441; R. v. Vermette, 1988 CanLII 87 (S.C.C.), [1988] 1 S.C.R. 985.

It is true that relief may be granted for a prospective Charter violation. However, relief will only be granted in circumstances where the claimant is able to prove that there is a sufficiently serious risk that the alleged violation will in fact occur. In Operation Dismantle Inc., Dickson C.J. adopted the requirement that the individual seeking to restrain government action must demonstrate a "high degree of probability" that the Charter infringement will occur before the court will grant relief: Phillips v. Nova Scotia (Westray Mine Inquiry), 1995 CanLII 86 (S.C.C.), [1995] 2 S.C.R. 97..."

Now For Something Different: Cleanth Brooks and the New Criticism

"...Brooks and New Criticism

Brooks was the central figure of New Criticism, a movement that emphasized structural and textual analysis—close reading—over historical or biographical analysis. Brooks advocates close reading because, as he states in The Well Wrought Urn, "by making the closest examination of what the poem says as a poem" (qtd. in Leitch 2001), a critic can effectively interpret and explicate the text. For him, the crux of New Criticism is that literary study be "concerned primarily with the work itself" (qtd. in Leitch 2001). In "The Formalist Critics," Brooks offers "some articles of faith" (qtd. in Leitch 2001) to which he subscribes. These articles exemplify the tenets of New Criticism:

That the primary concern of criticism is with the problem of unity—the kind of whole which the literary work forms or fails to form, and the relation of the various parts to each other in building up this whole.

That in a successful work, format and content cannot be separated.

That form is meaning.

That literature is ultimately metaphorical and symbolic.

That the general and the universal are not seized upon by abstraction, but got at through the concrete and the particular.

That literature is not a surrogate for religion.

That, as Allen Tate says, "specific moral problems" are the subject matter of literature, but that the purpose of literature is not to point a moral.

That the principles of criticism define the area relevant to literary criticism; they do not constitute a method for carrying out the criticism (qtd. in Leitch 2001).

New Criticism involves examining a poem’s "technical elements, textual patterns, and incongruities" (Leitch 2001) with a kind of scientific rigor and precision. From I. A. Richards’ The Principles of Literary Criticism and Practical Criticism, Brooks formulated guidelines for interpreting poetry (Leitch 2001). Brooks formulated these guidelines in reaction to ornamentalist theories of poetry, to the common practice of critics going outside the poem (to historical or biographical contexts), and his and Warren’s frustration with trying to teach college students to analyze poetry and literature (Leitch 2001).

Brooks and Warren were teaching using textbooks "full of biographical facts and impressionistic criticism" (Singh 1991). The textbooks failed to show how poetic language differed from the language of an editorial or a work of non-fiction. From this frustration, Brooks and Warren published Understanding Poetry. In the book, the authors assert poetry should be taught as poetry, and the critic should resist reducing a poem to a simple paraphrase, explicating it through biographical or historical contexts, and interpreting it didactically (Singh 1991). For Brooks and Warren, paraphrase and biographical and historical background information is useful as a means of clarifying interpretation, but it should be used as means to an end (Singh 1991). Brooks took this notion of paraphrase and developed it further in his classic The Well Wrought Urn. The book is a polemic against the tendency for critics to reduce a poem to a single narrative or didactic message.

He describes summative, reductionist reading of poetry with a phrase still popular today: "The Heresy of Paraphrase" (Leitch 2001). In fact, he argued poetry serves no didactic purpose because producing some kind of statement would be counter to a poem’s purpose. Brooks argues "through irony, paradox, ambiguity and other rhetorical and poetic devices of his or her art, the poet works constantly to resist any reduction of the poem to a paraphrasable core, favoring the presentation of conflicting facets of theme and patterns of resolved stresses" (Leitch 2001). In addition to arguing against historical, biographical, and didactic readings of a poem, Brooks believed that a poem should not be criticized on the basis of its effect on the reader. In an essay called “The Formalist Critics,” he says that “the formalist critic assumes an ideal reader: that is, instead of focusing on the varying spectrum of possible readings, he attempts to find a central point of reference from which he can focus upon the structure of the poem or novel” (qtd. in Rivkin, 24). While he admits that it is problematic to assume such a reference point, he sees it as the only viable option. Since the other options would be either to give any reading equal status with any other reading, or to establish a group of “‘qualified’ readers” and use those as a range of standard interpretations.

In the first case, a correct or “standard” reading would become impossible; in the second case, an ideal reader has still been assumed under the guise of multiple ideal readers (Rivkin 24). Thus, Brooks does not accept the idea of considering critics’ emotional responses to works of literature as a legitimate approach to criticism. He says that “a detailed description of my emotional state on reading certain works has little to do with indicating to an interested reader what the work is and how the parts of it are related” (Rivkin 24). For Brooks, nearly everything a critic evaluates must come from within the text itself. This opinion is similar to that expressed by W. K. Wimsatt and Monroe C. Beardsley in their famous essay “The Affective Fallacy,” in which they argue that a critic is “a teacher or explicator of meanings,” not a reporter of “physiological experience” in the reader (qtd. in Adams, 1029, 1027).

Reaction to New Criticism

Because New Criticism isolated the text and excluded historical and biographical contexts, critics argued as early as 1942 that Brooks’ approach to criticism was flawed for being overly narrow and for "disabl[ing] any and all attempts to relate literary study to political, social, and cultural issues and debates" (1350). His reputation suffered in the seventies and eighties when critics highlighted the flaws of New Criticism. Brooks rebuffed the accusations that New Criticism has an "antihistorical thrust" (Leitch 2001) and a "neglect of context" (Leitch 2001). He insisted he was not excluding context because a poem possesses organic unity, and it is possible to derive a historical and biographical context from the language the poet uses (Singh 1991). He argues "A poem by Donne or Marvell does not depend for its success on outside knowledge that we bring to it; it is richly ambiguous yet harmoniously orchestrated, coherent in its own special aesthetic terms" (Leitch 2001). Another flaw in New Criticism that critics exploited was its contradictory nature. Brooks writes, on the one hand, "the resistance which any good poem sets up against all attempts to paraphrase it" (qtd. in Leitch 2001)) is the result of the poet manipulating and warping language to create new meaning. On the other hand, he admonishes the unity and harmony in a poem’s aesthetics. These seemingly contradictory forces in a poem create tension and paradoxical irony according to Brooks, but critics questioned whether irony leads to a poem’s unity or undermines it (Leitch 2001). Poststructuralists in particular saw a poem’s resistance and warped language as competing with its harmony and balance that Brooks celebrates (Leitch 2001).

R. S. Crane was particularly hostile to the views of Brooks and the other New Critics. In “The Critical Monism of Cleanth Brooks,” Crane writes that under Brooks’s view of a poem’s unity being achieved through the irony and paradox of the opposing forces it contains, the world’s most perfect example of such an ironic poem would be Albert Einstein’s equation E=mc2, which equates matter and energy at a constant rate (Searle). In his later years, Brooks criticized the poststructuralists for inviting subjectivity and relativism into their analysis, asserting "each critic played with the text’s language unmindful of aesthetic relevance and formal design" (Leitch 2001). This approach to criticism, Brooks argued, "denied the authority of the work" (Leitch 2001).


Understanding Poetry was an unparalleled success and remains “a classic manual for the intellectual and imaginative skills required for the understanding of poetry” (Singh 1991). Further, critics praise Brooks and Warren for “introducing New Criticism with commendable clarity” (Singh 1991) and for teaching students how to read and interpret poetry. Arthur Mizener commended Brooks and Warren for offering a new way of teaching poetry:

For us the real revolution in critical theory…was heralded by the publication, in 1938, of Understanding Poetry…for many of us who were preparing ourselves to teach English is those years….this book…came as a kind of revelation. It made sense because it opened up for us a way of talking about an actual poem in an actual classroom, and because the technique of focusing upon a poem as language rather than as history or biography or morality, gave a whole new meaning to and justification for the teaching of poetry (qtd. in Singh 1991).

In an obituary for Brooks, John W. Stevenson of Converse College notes Brooks “redirect[ed] and revolutionize[d] the teaching of literature in American colleges and universities” (1994). Further, Stevenson admits Brooks was “the person who brought excitement and passion to the study of literature” (1994) and “whose work…became the model for a whole profession” (1994). Along with New Criticism, Brooks’ studies of Faulkner, Southern literature, and T. S. Eliot’s The Waste Land (appearing in Modern Poetry and the Tradition) remain classic texts. Mark Royden Winchell calls Brooks’ text on Faulkner “the best book yet on the works of William Faulkner” (1996). Eliot himself commended Brooks in a letter for Brooks’ critique of “The Waste Land” (Singh 1991).

Further, Winchell praises Brooks for “help[ing] invent the modern literary quarterly” (1996) through the success of The Southern Review. As testament to Brooks’ influence, fellow critic and former teacher John Crowe Ransom calls Brooks “the most forceful and influential critic of poetry that we have” (qtd. in Singh 1991). Elsewhere, Ransom has even gone so far as to describe Brooks as a “spell binder” (qtd. in Singh 1991)..."

Saturday, January 24, 2009

Hungry estoppel? Worry not, I'll feed you. Feeding the Estoppel

GOR without legal interest in land grants it to GEE. As between GOR and GEE, GOR is estopped from disclaiming the grant owing to lack of interest. GEE as against GOR has a right in personam, (ie, not against the world).

When thereafter GOR gets legal title to the land, the estoppel is fed. The original grant takes effect by interest and not just by estoppel. GOR is of course estopped from disclaiming his original lack of title. But at this point, where the estoppel is fed, GEE’s interest is good against the world. His rights are in rem. As noted, before dinner, GEE’s interest is good only against GOR.

Put another way, a grantor purports to grant an interest in land, which interest he or she did not at the time have. The grantor subsequently acquires the interest. The benefit of the subsequent acquisition goes automatically to grantee. The subsequent acquisition feeds the estoppel.

Friday, January 23, 2009

Lawyer Bounced For Personal Stake In Outcome
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[1] The defendants, other than Walter Jack Rinzema, move to have plaintiff’s counsel, Mr. Robert Kostyniuk, Q.C. removed as counsel of record on two grounds:
1. there is a conflict of interest between the plaintiff and Mr. Kostyniuk...

Conflict of Interest
[16] Law Society of Upper Canada Rules of Professional Conduct Rule 2.04:

Definition 2.04 (1) In this rule, a "conflict of interest" or a "conflicting interest" means an interest
(a) that would be likely to affect adversely a lawyer's judgment on behalf of, or loyalty to, a client or prospective client, or (b) that a lawyer might be prompted to prefer to the interests of a client or prospective client.

Avoidance of Conflicts of Interest 2.04 (2) A lawyer shall not advise or represent more than one side of a dispute. 2.04 (3) A lawyer shall not act or continue to act in a matter when there is or is likely to be a conflicting interest unless, after disclosure adequate to make an informed decision, the client or prospective client consents.

[17] In Roberts v. Pega Capital Corporation 2000 CanLII 22334 (ON S.C.), (2000), 47 O.R. (3d) 317 at page 319, the court stated:

In approaching the issue of the removal of counsel a paramount concern should be to maintain the high standards of the legal profession and the integrity of the justice system ...

Mr. Roberts has a substantial financial interest in the outcome of this litigation. There is a significant risk that the line between his personal interest in the litigation and his duties as counsel for the other parties might be blurred. This is not because of anything unique to Mr. Roberts. It is simply because it is often human nature to put one's personal interest ahead of one's obligations.

An informed and reasonable member of the public might well be left with the impression that any particular decision taken by Mr. Roberts as counsel for his co-plaintiffs could, in fact, have been motivated by his pecuniary interest in the outcome. This apprehension would surely bring the administration of justice into disrepute.

[23] Mr. Kostyniuk has acknowledged that the outcome of this action will have an effect on his claim with LPIC. His refusal to answer the two questions I have referred to lend credence to the fact that there is a nexus between the success of this action and Mr. Kostynuik’s exposure to LPIC. Again, without making any finding or determination that Mr. Kostynuik would put his own interests ahead of his client’s, those circumstances result in a perception that adversely affects the administration of justice.

[24] On this ground I am satisfied that Mr. Kostynuik ought to be removed as counsel..."

Disqualify Opposing Lawyer Who Has a Relationship With Her Client
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"...[1] The respondent wife (“Nellist”) brings this motion to remove Dianne Grenier (“Grenier”) as the solicitor for the applicant husband (“Taylor”) in this matrimonial action.

[22] The standard for the removal of counsel is an objective one, being that of a reasonably informed member of the public. See the case of MacDonald Estate vs. Martin, 1990 CanLII 32 (S.C.C.), [1990] 3 S.C.R. 1235. Thus, a solicitor should be removed as solicitor of record if a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor. See the case of Everingham vs. Ontario, 8 O.R. (3rd) 121, at paragraph 29.

[23] Moreover, there does not need to be a finding of impropriety in order for the solicitor to be removed, rather it is the appearance of impropriety that is the test. In MTS International Services Inc. v. Warnat Corp. Limited, [1981] 31 O. R. 221 at page 224 Justice Montgomery wrote, “A lawyer should avoid even the appearance of professional impropriety.” This is particularly true when the litigation involves a family dispute. See the case of Goldberg vs. Goldberg, (1982) 31 R.F.L. (2nd) 453 at paragraph 8.

[24] The basis for the above-mentioned statement of the law in this area can be summarized by that well-known quote from the case of R. vs. Sussex Justices, [1924] 1 K.B. 256 at page 259, “It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

[34] In the Everingham case one solicitor had, by coincidence, encountered a mental patient whom he was scheduled to cross-examine the next day. The solicitor described the meeting as brief and innocent. In confirming that the solicitor should be removed from the record, the Divisional Court wrote at paragraph 33:

“It is irrelevant that the solicitor’s innocent version of the meeting is eventually found by a court to be preferable to the patient’s version of the meeting. Apart from the obvious appearance of compulsion, oppression, and deprivation of counsel, it is inevitable that such a meeting will produce different versions of the conversation. That is the mischief to be avoided, yet that is the very mischief that occurred here in the patient’s version of what happened and the impression left with him that the meeting was prearranged with a view to gaining an advantage over him.”

[38] The weekend access of July 23rd demonstrates how these problems can escalate. The problems with respect to the extension of the access visit were probably a misunderstanding. However, by that weekend both Grenier and Birmingham had been involved in access exchanges without Nellist’s consent, and Marcus had made disclosures to Nellist about his relationship with Grenier. It was reasonable for Nellist to be very suspicious and very sensitive regarding any changes to the access schedule. The misunderstanding on this weekend simply provides more evidence of what may occur when there is the appearance of impropriety.

[39] For all of the above reasons I find that a reasonable, fair-minded person would believe that the proper administration of justice requires Grenier’s removal as Taylor’s solicitor in this case.


[40] Therefore, Nellist’s motion is granted. Grenier is hereby removed as solicitor of record for Taylor..."

S.C.C. Disqualifying a Lawyer Outside of Conflict of Interest

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"...This dispute presents a clash between two competing values — solicitor‑client privilege and the right of a party to select counsel of choice. The conflict here must be resolved on the basis that no one has the right to be represented by counsel who has had access to relevant solicitor‑client confidences in circumstances where such access ought to have been anticipated and, without great difficulty, avoided and where the searching party has failed to rebut the presumption of a resulting risk of prejudice to the party against whom the Anton Piller order was made.

[34]...Parties should be free to litigate their disputes without fear that their opponent has obtained an unfair insight into secrets disclosed in confidence to their legal advisors. The defendant’s witnesses ought not to have to worry in the course of being cross-examined that the cross-examiner’s questions are prompted by information that had earlier been passed in confidence to the defendant’s solicitors. Such a possibility destroys the level playing field and creates a serious risk to the integrity of the administration of justice. To prevent such a danger from arising, the courts must act “swiftly and decisively” as the Divisional Court emphasized. Remedial action in cases such as this is intended to be curative not punitive.

42 In MacDonald Estate, the Court held, in the context of a moving solicitor, that once the opposing firm of solicitors is shown to have received “confidential information attributable to a solicitor and client relationship relevant to the matter at hand” (p. 1260), the court will infer “that lawyers who work together share confidences” (p. 1262) and that this will result in a risk that such confidences will be used to the prejudice of the client, unless the receiving solicitors can show “that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur” (p. 1260). Only where there is “clear and convincing evidence” (p. 1262) to the contrary will the presumption be rebutted. Thus “[a] fortiori undertakings and conclusory statements in affidavits without more” (p. 1263) will not suffice to rebut the presumption of dissemination. For the purposes of the present case, it is important to note that Sopinka J. imposed no onus on the moving party to adduce any further evidence as to the nature of the confidential information beyond that which was needed to establish that the receiving lawyer had obtained confidential information attributable to a solicitor and client relationship which was relevant to the matter at hand.

54 In my view, the present proceeding should not be seen as punitive in any way. I accept, as did the courts below, that neither Cassels Brock nor Kasowitz set out to obtain access to, or to gain some advantage from privileged material. Their problem stems from carelessness and an excessively adversarial approach in circumstances that called for careful restraint in recognition of the exceptional position of responsibility imposed by the unilateral and intrusive nature of an Anton Piller order. The protection of solicitor-client confidences is a matter of high importance. On the present state of the record, Canadian Bearings can have no confidence that the privileged material to which Cassels Brock and Kasowitz obtained access will not be used to their prejudice.

55 In summary, I agree with the Divisional Court that lawyers who undertake a search under the authority of an Anton Piller order and thereby take possession of relevant confidential information attributable to a solicitor-client relationship, bear the onus of showing there is no real risk such confidences will be used to the prejudice of the defendant. Difficulties of proof compounded by errors in the conduct of the search and its aftermath should fall on the heads of those responsible for the search, not of the party being searched. The onus was not met by the respondents in this case.

66 In view of all the circumstances, I agree with the Divisional Court that Cassels Brock and Kasowitz have not produced sufficient evidence to satisfy the MacDonald Estate test, namely “that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur” (p. 1260).

67 I also agree with the Divisional Court that the right of Celanese to choose counsel yields to what occurred in the execution of the Anton Piller order in this case and its aftermath, and that “the reasonable perception of the integrity of the administration of justice would be adversely affected were Cassels, Brock . . . permitted to remain solicitors of record for [Celanese]” (para. 42). ...

IV. Disposition

68 The appeal is allowed with costs in this Court. Cassels Brock are removed as solicitors of record for the respondents in these proceedings. They are not to act for or advise the respondents, directly or indirectly, with respect to this proceeding or with respect to any related proceedings arising out of the facts pleaded in the amended statement of claim.

69 Neither the respondents nor anyone on their behalf is to communicate with or receive advice or information directly or indirectly, from Kasowitz with respect to this proceeding or any related proceedings in Canada arising out of or related to the facts pleaded in the amended statement of claim.

70 Any and all materials subject to the claim of privilege still in the possession of the respondents, Cassels Brock or Kasowitz seized from the premises of Canadian Bearings on June 20 and 21, 2003, pursuant to the Anton Piller order shall be returned forthwith to Canadian Bearings without retention of copies whether printed, electronic or of any other type.

71 Kasowitz is to file affidavits satisfactory to the case management judge confirming the existence of adequate firewalls and the destruction or return of all allegedly privileged material that came into its possession as a result of the Anton Piller order made in this case...."

Another Example of Disqualifying Conduct that is a Conflict of Interest as Such

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"...[21] The defendant argues that the court should be guided by the principals set out by the Supreme Court in MacDonald Estate v. Martin, 1990 CanLII 32 (S.C.C.), [1990] 3 S.C.R. 1235 (S.C.C.). While the matter in issue in that case is the existence of conflict of interest, the Supreme Court, in broad terms, is concerned with the conduct of solicitors and the violation of ethical standards that govern them. The ultimate pre-occupation of the court, argues the defendant, is the public's confidence in the process, its perception of the fairness of the judicial system and the avoidance of even the appearance of impropriety..."

[22] The defendant submits that while the court has jurisdiction to remove counsel on the basis of the breach of the rules of professional conduct, there need not be a breach. The applicable test is whether on the facts, a fair-minded and reasonably informed member of the public would conclude that the proper administration of justice requires the disqualification of the solicitor of record: Everingham v. Ontario, reflex, (1992) 88 D.L.R. (4th) 755 affirmed reflex, (1992) 8 O.R. (3d) 121) and MacMillan Bloedel v. Freeman & Co. [1992] B.C.J. No. 2815. Counsel for the defendant agrees that whether the court intervenes to remove counsel on the basis of the stated test will depend on the circumstances of the case. In this case he argues, Gowlings' conduct is such as to clearly disentitle the firm from further implication in this action.

[32] Justice Oliver in McMillan Bloedel, considered Everingham and distinguished it as follows at page 8 of the decision:

The test set out in Bell and Nash and in Everingham, whether a fair-minded and reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor, would obviously produce different results depending on the circumstances which gave rise to the call for removal. Communication between a lawyer and a confined mental patient or an emotionally vulnerable matrimonial litigant has far greater potential for creating an "obvious appearance of unfairness" and a risk of real mischief than does communication between a lawyer and an experienced business executive. Parallels between the these situations cannot readily be drawn.

[34] Neither party brought to my attention the decision of Brennan J. in Transamerica Life Insurance Co. of Canada v. Seward 1997 CanLII 12144 (ON S.C.), [1997] 33 O.R. (3d) 604 (General Division). Here again, the court had under consideration the boundaries of the principles relating to communications with represented parties and witnesses. In its conclusions of law, the court echoes the principles stated in MacMillan Bloedel, supra. It advises deference to Law Societies to deal with breaches of codes of conduct and at page 6 of the decision, makes the following statement as to when the court should intervene to remove counsel:

The integrity of the justice system would be ill-served if the court too readily disqualified counsel at the suggestion of adverse parties. An "appearance of impropriety" is not an appropriate test in cases other than those of true conflict of interest, particularly when the appearance is to the eye of the adverse party. I accept the submission of the responding party that Lerner's primary duty was to serve the interests of its client. There are situations in which the public interest will prevail over that duty, but the court should be vigilant against interference with it on all but the strongest grounds. Such grounds do not exist on these facts, and the motion to disqualify counsel must fail. [My--the court's-- emphasis]

Lawyer Disqualification for Abusive Advocacy

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"...[28] On facts unrelated to the issues here, in the matter of Zawadzki v. Matthews Group Ltd. (1998), 18 C.P.C. (4th) 373, [1998] O.J. No. 43, 50 O.T.C. 392, 1998 Cars­well­Ont 197 (Ont. Gen. Div.), the general proposition was put that the court’s discretion to interfere with a party’s choice of counsel is to be exercised with the highest degree of restraint. The proper test for such interference is the probability of real mischief. It is noteworthy that, in that particular case, the allegations centred around the lawyer’s alleged abuse of the advocacy role in an adversarial proceeding, similar to the position of the children’s aid society that the lawyer in this case, out of animosity, might abuse that role to the detriment of the client, for example, by refusing a reasonable or beneficial offer of settlement.

[33] ... However, a similar test to meet the facts in this case can be derived from the Supreme Court of Canada test related to conflictual use of information — would a reasonably informed person be satisfied that historical, extant or future involvement with one litigant personally by a lawyer would cause the lawyer to act in such a way in advocating for a client against that other litigant that the lawyer would jeopardize the position of that client?

[37] In the result, there was no fact or circumstance in existence or reasonably seen to be capable of coming into existence that could cause the lawyer to consider acting contrary to the client’s interests.

[40] Even if one made the assumption, for purposes of the argument, that facts risking conflict could arise, it is clear that the interest of the lawyer is akin to the interest of the client, not to the interest of the children’s aid society. What really has to be asked is what mischief is to be avoided, what is the likelihood of that mischief occurring and how do these considerations weigh against that of maintaining the integrity of the system, the right to counsel of choice and the maintenance of mobility in the system?

[41] The conflict of interest complained of must relate to an identifiable interest of the moving party, either directly — use of information or documents related to that party — or indirectly — the Crown Attorney cases related to administration of justice and delay of trial.

Ontario Proposes to Over rule Hare v. Hare

Ontario Proposes to Over rule Hare v. Hare

by Ted Tjaden on October 29th, 2008

"...Schedule L of Bill 114 in Ontario, if passed, will effectively over-rule the Ontario Court of Appeal decision in Hare v Hare. The Bill will amend the Limitations Act, 2002, by tying the limitation period to the date of default under a demand loan rather than the date of the loan. The Ontario Bar Association [...]Posted in Judicial Decisions, Legal Research, Legislation, Ontario ..."

Thursday, January 22, 2009

Equalization: Valuation of all Assetts

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"...[41] Although the general rule is that all property must be valued and included in the net family property calculation, this court has stated that it does not constitute a reversible error to deal separately with an asset omitted from the equalization calculation where doing so does not ultimately give rise to an error in that calculation. (See Arvai v. Arvai 2001 CanLII 24142 (ON C.A.), (2001), 14 R.F.L. (5th) 223 (Ont. C.A.)).

42] The respondent argues that the trial judge’s treatment of the stock options in this case falls within the parameters of the Arvai exception. The respondent submits that, in effect, what the trial judge did was to exclude the options from the net family property calculation and then, with the benefit of hindsight, determine the value as being the amount ultimately realized from the sale of this excluded property. As a result, the respondent argues, there is no error in the equalization calculation. The trial judge simply excluded an asset from that calculation,
something this court found to be permissible in Arvai. The subsequent equal division of the sale proceeds of this excluded asset, the options, could not therefore result in the equalization calculation being in error.

[43] In Arvai, this court found no reversible error because the size of the equalization payment ordered by the trial judge was essentially the same as the one that would have been ordered had the asset, in that case a truck, been valued at the time of separation and included in the equalization calculation. The issue of the use of hindsight evidence was not an issue before the court.

[44] The situation is quite different in the case at bar and, in my view, the Arvai exception ought not to be extended so far as to cover what the trial judge did here. Here, the trial judge did more than exclude an asset from the equalization calculation and account for it separately. She awarded the respondent one half of the profit generated when the options were ultimately exercised several years after separation. By doing so, she relied exclusively on evidence of what the options were worth when they were exercised. This resulted in an equalization payment well in excess of what it would have been if the options had been included in the equalization calculation and valued at the date of separation. In my view, this approach is inconsistent with the scheme of the Family Law Act, is contrary to established jurisprudence and valuation principles and results in an incorrect equalization calculation..."

Hindsight and EquaURL: lization

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"...[46] The general principle that emerges from both Domglas, supra, and Ford, supra, is that hindsight information is generally inadmissible and cannot be used as part of the process of establishing the value of shares at a particular date. An exception to this principle is that hindsight, or the actual results achieved after the valuation date, maybe compared against the projected or forecasted corporate results made by valuators and used to test the reasonableness of the assumptions made by those valuators.

[47] A similar consensus respecting the use of hindsight emerges in the family law context when the value of a business for equalization purposes is in issue. See: Harry v. Harry reflex, (1987), 9 R.F.L. (3d) 121 (Ont. Dist. Ct.); Woeller v. Woeller reflex, (1988), 15 R.F.L. (3d) 120 (Ont. Dist. Ct.); Martin v. Martin reflex, (1988), 17 R.F.L. (3d) 78 (Ont. H.C.); and Bobyk v. Bobyk Estate reflex, (1993), 13 O.R. (3d) 559, 47 R.F.L. (3d) 310 at para. 33 (Ct. J. (Gen. Div.)). As stated in Harry, supra, at para. 17, “when evaluating the fair market value of a business hindsight is inappropriate.” However, as in the corporate context, “one cannot entirely ignore events which followed [the valuation date] in assessing the fundamental assumptions underpinning the opinions expressed by [the experts].” Woeller, supra at para. 31.

[48] A case that is particularly relevant to the current appeal is Martin, supra. In that case, the court had to determine the fair market value of a parcel of land owned by one of the spouses. At the date of marriage, the land was zoned agricultural. By the valuation date, the land had been re-zoned commercial, but the re-zoning by-law was under appeal to the Ontario Municipal Board and it faced considerable opposition. Notwithstanding this opposition, the appeal was dismissed a year after the valuation date.

[49] At trial, one of the appraisers had valued the land without considering the appeal, while the other appraiser valued the land as if the re-zoning would fail. In his reasons, the trial judge agreed with the second appraisal, noting at para. 15:

A prudent purchaser on [the V-date] would have been buying land of which the rezoning … was the subject of a hotly contested appeal; he would, in effect, have been buying a lawsuit in this regard. There was no knowledge at that time whether the appeal would be successful or unsuccessful. The fact that it proved to be unsuccessful a year after separation cannot be taken into account.

[50] Martin adopts the approach to the use of hindsight information that conforms to the general principle that one must base valuation on the knowledge available at the valuation date. The first appraiser’s reliance on the ultimate outcome of the appeal was unreasonable because a prudent purchaser would not have paid the higher purchase price for commercially zoned land at that time, as he could not be certain he would be able to use the land for commercial purposes.

[51] While other exceptions may evolve from the jurisprudence over time, I would adopt the Ford articulation of the hindsight rule and the exception I have discussed for valuations under the Family Law Act. In both corporate law and family law, where the goal is to determine the fair market value of the business, perfect accuracy is impossible. As Viscount Simon wrote in Gold Coast Selection Trust Ltd. v. Humphrey (Inspector of Taxes), [1948] A.C. 459 at 473 (H.L.), “Valuation is an art, not an exact science. Mathematical certainty is not demanded, nor indeed is it possible.” The valuator must make assumptions as to how a prospective purchaser would have evaluated the business based on the purchaser’s knowledge at the time in question and the amount of risk the purchaser would likely have been willing to assume concerning a lawsuit. Hindsight information is not admissible on the question of whether that assumption was correct but, as indicated in Ford, supra, it can be used to test whether that assumption was reasonable.

Equalization and Hindsight

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"....He submits that by valuing the claim based on Herold J.’s judgment, the trial judge erroneously used a hindsight approach that is at odds with settled jurisprudence which precludes the use of evidence of post-separation events to value, for equalization purposes, contingent assets that form part of the net family property. In support of his position, the husband relies upon the following authorities: Best v. Best, 1999 CanLII 700 (S.C.C.), [1999] 2 S.C.R. 868; Arvelin v. Arvelin, [1996] O.J. No. 412 (Ont. Gen. Div.); Dimoff v. Dimoff, [1999] O.J. No. 599 (Ont. Gen. Div.); and Bobyk v. Bobyk reflex, (1993), 13 O.R. (3d) 559 (Ont. Gen. Div.)...."

[7] For reasons that follow, we find it unnecessary to decide (or reconsider) whether hindsight evidence can be used to value contingent assets of the kind in issue here. On the facts of this case, we are of the view that the proposed expert evidence was largely irrelevant in valuing the husband’s loss of income claim for equalization purposes..."

Limitation Period: Special Circumstances

"...[2] Through inadvertence, plaintiff’s counsel failed to issue a statement of claim
within the limitation period provided under the new Act. On a motion to determine as a
question of law whether the claim was statute-barred, the motion judge applied the
common law doctrine of special circumstances, and to exercise his discretion to extend
the limitation period. The issue raised by this appeal is whether that doctrine continues to
apply under the new Act.

[4] The plaintiff’s lawyer used a tickler system to record upcoming limitation periods
and correctly diarized this action. The lawyer drafted the claim and left instructions for
his assistant to have the claim issued before September 5, 2006. The assistant was away
on vacation the week of September 4, 2006. The lawyer believed the claim had been
issued, but the assistant, believing the six-year limitation period prescribed by the former
Limitations Act, R.S.O. 1990, c. L.15 (the “former Act”), continued to apply, did not
issue the claim before going on vacation.

[5] When the lawyer later learned of the error, he forwarded the draft claim to the
defendant on October 31, 2006 and issued the claim the same day. He advised the
defendant on November 2, 2006 that, through inadvertence, the claim had not been issued
until October 31, 2006. A copy of the issued claim was sent to the defendant on
November 28, 2006 and formally served on January 30, 2007.

The motion judge found that special circumstances existed where there was inadvertence
on the part of the plaintiff’s lawyer and no prejudice to the defendant.

1 These cases are: St Denis v. TD Insurance Home and Auto liberty Insurance Co of Canada (2005), 80 O.R. (3d) 76
(S.C.J.); Doyley v. York Condominium Corp. No. 487 (2006), 82 O.R. (3d) 629 (S.C.J.); Munshaw v. Economical
Mutual Insurance Co. (2007), 84 O.R. (3d) 785 (S.C.J.).


[7] The issue raised by this appeal is whether courts continue to have a discretion
under the new Act to extend a limitation period and allow a claim to be commenced afterthe period has expired by applying the doctrine of special circumstances.

[12] ...following the line of cases that began with Basarsky v. Quinlan, these rules have been interpreted to allow a court to add or substitute a party or to add a cause of action after the expiry of a limitation period where special circumstances exist, unless the change would cause prejudice that could not be compensated for with either costs or an adjournment: see e.g. Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 56 O.R. (3d) 768 (C.A.).

[21] Turning to the interpretation of s. 20 in the context of the common law doctrine of
special circumstances, the requirement in s. 20 that the extension must be “by or under
another Act” clearly precludes any extension that may be granted at common law as
opposed to statute.

[22] However, the extension need not be provided only “by” an Act but can also be
provided “under” an Act. The Rules of Civil Procedure are enacted by the Civil Rules
Committee under the authority of s. 66 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
Although the Rules are permitted to alter the substantive law in matters relating to
practice and procedure, s. 66(3) provides that the Rules may not conflict with an Act.

[23] In accordance with s. 66(3), rules 5.04 and 26.01 must not conflict with the new
Act, or with the former Act. These rules apply to the amendment of pleadings and the
addition of parties at any stage of proceedings. They do not by their terms apply to extend
the statutory limitation periods provided in the new Act, nor could they. But they have
been used for that purpose through the application of the common law doctrine of special

[27] I conclude that s. 20 does not refer to the extension of a limitation period under the
new Act through the application of the common law doctrine of special circumstances to
the Rules of Civil Procedure. Rules 5.04(2) and 26.01 must now be applied giving effect
to the new Act.

[28] In that regard, I add for the sake of completeness that the decision of the motion
judge, which followed a line of cases in the Superior Court where extensions were
granted that did not involve any amendment of or addition to an existing action, was an
error of law even had the doctrine of special circumstances applied. Both the common
law doctrine from Basarsky v. Quinlan and the Rules of Civil Procedure contemplate
only the power to amend or add a claim or party to an existing action. They did not give
the court the authority to allow an action to be commenced after the expiry of a limitation

[29] For these reasons, I would allow the appeal and make an order declaring the action
statute barred, with costs of the motion and of the appeal to the appellant, fixed in the
amount of $5,000, inclusive of G.S.T. and disbursements..."

Wednesday, January 21, 2009

One Post on Posner on Judicial Review

One comment on Posner:

Posted by Warwick Lightfoot

"...I greatly enjoyed Richard Posner's review. What I find interesting is the way that two legal systems based on common law diverged so markedly in the 19th century. In the United Kingdom the legislature, parliament based its authority on its medieval origins as a court, hence the term 'the High Court of Parliament'. In the 17th and 18th centuries it was not absolutely clear where ultimate power was.

The common law courts had asserted their authority. In 18th century colonial cases the courts had asserted their implied right to strike down legislation inconsistent with the vires of the charters and acts setting up colonial governance arrangements. As I understand it there is no evidence of a court actually striking down an act passed by a colonial legislature. By the early 19th century it was clear that in Britain Parliament was supreme and judges did not entertain any conceits about checking the supremacy of Parliament. A doctrine later codified with such brio by A. V. Dicey at the end of the 19th century.

I have never seen a full and coherent account of how the present divergence of constitutional practice between Britain and the United States came about. Other common law jurisdictions even those that consciously modelled their constitutional arrangements on the Westminster Model tended to travel in the direction of judicial review of the sort pioneered by Chief Justice Marshall. It was, moreover, the Judicial Committee of the Privy Council sitting in London staffed by British judges that was often the tribunal that applied this judicial review. The Privy Council tested acts of legislatures from around the British Empire to see whether they were consistent with the Colonial Laws Validity Act, the British North America Act or with a colony or dominion's own constitutional legislation.

When those same judges decided cases in relation to the British Parliament, they systematically applied the doctrine of the supremacy of Parliament right up until the United Kingdom entered the EEC in 1973. It was a judicial restraint of an almost supine character that would have surprised even the strongest opponents of judicial activism. The doctrine was given one of its most vivid expositions just at the point when it was about to fade. In a case relating to a nationalised industry - British Rail - decided in January 1974. Lord Reid declared that 'the idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange to anyone with any knowledge of the history and law of our constitution.' The Judicial Committee of the House of Lords over turned a decision taken unanimously by the Court of Appeal, where the Master of the Rolls Lord Denning had said that the court was not satisfied 'that the procedure of Parliament itself had not been abused and that undue advantage is not taken of it.

The passage of the European Communities Act in 1972, fundamentally changed United Kingdom law and made it inferior to European Union law under the Treaty of Rome. A momentous change swiftly appreciated by Lord Denning a very great judge and an unusually busy judicial wheel by traditional English standards.

In the first case relating to the 1972 Act in March 1974 he recognised the full magnitude of the change: 'The Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.' The House of Lords ultimately struck down a British Act of Parliament in a dispute over fishing rights, but quaintly could not bring itself to bluntly describe what it was doing. So instead the Law Lords said that they were 'disapplying' the act.

Before 1974 there had been occasional chinks in the assertion of doctrine of the supremacy of Parliament. During the First World War the Admiralty Division and eventually the Judicial Committee of the House of Lords, challenged the capacity of Parliament to set aside international law in relation to the property of enemy aliens. In the 1950s in a case relating to action brought by Scottish Nationalists students, who had sought judicial review of the proclamation of Queen Elizabeth II as the second sovereign to carry that name and title, because there had been no previous Scottish monarch of that name. Both the Law Officers in their argument before the court and the Judges accepted that Parliament in Westminster may not have the power to undo undertakings about Scottish institutions such as the Presbyterian character of the Church of Scotland enshrined in Act of Union of 1707 and in that sense the doctrine of the supremacy of Parliament is limited.

I am neither a lawyer nor a historian I have written this to encourage constitutional historians to research and explain how this divergence of judicial behaviour came about. While Blackstone drawing on Sir Edward Coke before him asserted and believed in the merits of the supremacy of Parliament I have never seen how it came to be tested and resolved that the British courts would apply it as they did right up to Lord Reid's baroque assertion of it just as it was about to atrophy.

I would like someone to rehearse the issues in the same way that Richard Posner has done in this elegant review. Or if I have missed the fact that there in an article or monograph setting this out I would be delighted to have it drawn to my attention. And in case there should be any confusion I believe that inherently political and policy matters should be decided by democratic procedures. Courts are not the most appropriate forums for resolving such argument and I generally have a prejudice in favour of judicial restraint, but perhaps in Britain we carried that notion of judicial discretion a little too far..."

Posner on Judicial Review

This is so good I'm quoting the whole thing:

Modesty and Power

Richard A. Posner

Law and Judicial DutyBy Philip Hamburger(Harvard University Press, 704 pp., $49.95)

"...The most momentous, controversial, even frightening power of the federal judiciary--the one in greatest tension with democracy and federalism--is the power to invalidate federal and state statutes that in the opinion of the judges are inconsistent with the federal Constitution. This power, which lawyers call "judicial review," has often been regarded as the invention of a handful of free-wheeling late eighteenth- and early nineteenth-century American lawyers, notably Chief Justice John Marshall, whose opinion in Marbury v. Madison in 1803 is often thought to have created ex nihilo the "American doctrine of judicial review."

The distinguished constitutional scholar Alexander Bickel called the power of judicial review "Marshall's achievement."

For the Constitution does not say that federal courts can invalidate a statute. Article VI, the "supremacy clause," describes the Constitution, along with federal statutes and treaties made under federal authority, as "the supreme Law of the Land," and states that "the Judges in every State shall be bound thereby." But it says nothing about federal judges being empowered to invalidate statutes, whether federal or state. ("Judges in every State" could not include Supreme Court justices, since the Constitution authorized and envisaged the creation of a district--it became the District of Columbia--that would not be part of any state.) In describing federal statutes and treaties as part of the "law of the land," Article VI could be understood simply to be commanding state judges to acknowledge the supremacy of federal law. Article III confers the "judicial Power of the United States" on the Supreme Court and such lower courts as Congress decides to create, and the power expressly includes the power to decide cases arising under the Constitution, as well as under other federal laws and under treaties--but at most this only implies a power to adjudicate constitutional challenges to federal statutes. "Any explicit grant of this power," in Robert Jackson's words, "was omitted ... [the power] was left to lurk in an inference."

John Marshall--commended by Holmes as the "loose constructionist" judge who "start[ed] the working of the Constitution"--argued disarmingly in Marbury that since the Constitution is law, and indeed supreme law, an inconsistent statute, being inferior law, must give way. In his words: "If the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply." He chose to take this approach, in the account that I am summarizing, not under the compulsion of the constitutional text, but because he was a Federalist, and so he wanted the Supreme Court to be able to check the populist impulses of elected legislatures. Marshall thus initiated the "struggle for judicial supremacy" (as Justice Jackson later described it, in a book of that title from which I quoted earlier) that eventually resulted in a secure--an unquestioned--power of judicial review, however tenuous its constitutional pedigree.

The main purpose of Philip Hamburger's book is to counter this account of the rise of judicial review by tracing the history of the practice all the way back to the Middle Ages and ending with the Constitution of 1787. Hamburger is an accomplished and assiduous legal historian, and his book is a work of imposing scholarship. But he is not just an antiquarian. The idea that he has set out to overthrow--that judicial review was invented in order to enhance the power of the Supreme Court--has implications that disturb him. "If judges established their power of review on their own authority," Hamburger remarks, "they would appear to have control over the character and exercise of the power, and this would seem to leave them with an extraordinary discretion over the liberty of their fellow Americans." Hamburger believes deeply in judicial modesty. He argues that what has come to be called judicial review was intended to exemplify rather than to reject judicial modesty, which is why the framers of the Constitution took the power for granted, and so felt no need to talk it up in the constitutional text.

Hamburger's argument pivots on a few key terms. One is the "law of the land. " This phrase in Article VI is of medieval English origin. Originally it referred to the actual, existing law of England, as distinct from either natural law--the law of God, knowable by the exercise of human reason--or "academic" law, constructed by scholars out of the best laws of different countries and the best ideas about what law should be. The early English judges thought it presumptuous for judges either to interpret natural law or to create law. The modest judge interpreted and enforced existing English law, period. The judges were not disrespectful of natural law--they agreed that they were answerable to God, and they took their oath of office with utmost seriousness; but they conceived their divinely imposed duty to be to enforce human law. This conception of the judicial function was transmitted to England's North American colonies, thence to their successors the states, and finally, when the Constitution was written, to the federal government, though of course the relevant "law of the land" in Article VI was American rather than English law.

The next key term is the "office of the judge." Judges derived their concept of judicial duty from the judge's "office," or, as we would be inclined to say, the judge's role, jurisdiction, or "job description." The judge's duty that derived from his "office" was to apply the law of the land to the decision of cases. Deciding cases became distinguished from other tasks that a judge might undertake, such as rendering advice to a legislature, but that would be outside the judge's office. When the judge was deciding actual cases presented to him, he was speaking with the authority of his office, and in that capacity he could nullify even a king's command. Moreover, the duty fell on every judge, however lowly, for the duty "came with" the judicial office. In short, as Hamburger writes, "the evidence reveals the importance of the common law ideals of law and judicial duty. It shows that these two ideals, taken together, required judges to hold unconstitutional acts unlawful."

We also need to understand Parliament as a "court," and the concept of a "customary constitution" as distinct from a written one. Although an English judge could countermand a royal command and invalidate local legislation in the performance of his duty to decide cases on the basis of the law of the land, he could not (despite occasional suggestions otherwise) invalidate acts of Parliament. Parliament, which dated from a time before courts and legislatures were clearly separated, was deemed a court--indeed, the highest court in the land. (Indeed, until recently, a committee of judges in the House of Lords was England's highest court.) Moreover, England's constitution, conceptualized as "the law by which a people simultaneously authorized their government and limited it," was not a single document, like the U.S. Constitution, but a conglomeration of customs, common law and equitable doctrines, and acts of Parliament. When Parliament enacted a statute, this was tantamount to amending the constitution; and a judge could no more countermand an act of Parliament than he could amend the constitution.

It was the fact that English courts could not invalidate acts of Parliament that has given rise to the idea that the "American doctrine of judicial review" represented a break with England. Not so, Hamburger argues. The legislatures of Britain's North American colonies were not supreme courts, like Parliament; they were subordinate bodies--subordinate, in fact, to Parliament. Their enactments thus corresponded to local legislation in England, and so could likewise be challenged as inconsistent with the British constitution--and they were. The Crown actually encouraged the creation of powerful judicial courts in the colonies as a check against the colonial legislators, who were more populist and less loyal to the Crown than the judges.

When the United States was formed, the colonial legislatures became state legislatures and the colonial courts became state courts. The British constitution was not an appropriate model for a state constitution, so most states wrote their own constitutions. Since the judges were already accustomed to using constitutional law as a trump when statutory law was inconsistent with it, they made a smooth transition to treating the written constitution of their state as the supreme law, trumping inconsistent statutes. This made it natural for John Marshall to treat the Constitution as trumping any federal or state statute that was inconsistent with it. So natural was this assumption of authority, on the basis of British, colonial, and state precedents, that there was no felt need to spell it out in the Constitution.

It does seem odd, though that so little of this history is mentioned in Marshall's very long opinion in Marbury. He takes great pains to justify judicial review, and so one might have expected him to refer to the helpful colonial and state history. But the exercise of judicial review of national statutes by a national court was such a large step beyond its exercise by a colonial or state court that maybe the colonial and state experience would not have been terribly persuasive. So maybe the Supreme Court's exercise of judicial review was a Marshallian innovation after all. Hamburger disagrees. He argues that, properly understood, judicial review of statutes, whether federal or state, for conformity to the Constitution is not innovative, awesome, usurpative, or political at all. In fact, it exemplifies judicial modesty, because it requires that judges conform their decisions to the "law of the land, " which simply happens to include the Constitution as well as the subordinate law created by statutes. Marshall argued in Marbury that it would be lawless for judges to disregard the limits that the Constitution placed on legislative and executive power.
Judges had always known, as Hamburger acknowledges, that the scope of a statute, a constitutional provision, or a common law doctrine was often uncertain, and this fact might seem to invite or even to necessitate the exercise of judicial discretion in some cases. But he disagrees, arguing that the judges believed that the mental faculty requisite in a judge was not creativity but discernment. The object to be discerned was the "intent" of the law. "One way or another, intent had to be discerned, for it was the source and measure of the obligation of law." If it could not be discerned, the law imposed no obligation at all. So legislatures and constitutional conventions had better write clearly, because otherwise the judges might treat their enactments as nullities.

Hamburger does not explain what this interpretive methodology, applied to constitutional issues that have arisen since the Constitution was adopted, would yield in the way of a body of constitutional law. Yet he intimates that it would be a smaller body than what we have. Judicial review, as he understands it, was not a judicial innovation the contours of which the inventing judges and their successors had to draw. The power had existed since medieval times. But it was a power grounded in a deferential conception of judicial duty. Judges could not make law; they could only find (that is, discern) it. Precedents did not create law, they clarified or particularized it; and only because "the exposition of law belonged to the office of judgment rather than of will [did] the opinions of the judges in the exercise of their judgment ha[ve] the authority of their office." Fortunately, a constitution of principles would be clearer than one of rules or precedents, because principles "are fixed and immutable." A judge would therefore be able to decide a constitutional case by laying the constitutional text alongside a statutory text alleged to be inconsistent with the former; if comparison revealed that the two texts were inconsistent, the statute, being less authoritative, would be extinguished.

Hamburger argues that this ideal of judicial self-restraint was attainable because the duty to enforce the law of the land, including the constitution, being inherent in the office of the judge, rested on every judge and applied in every case. "The generality of the duty was what gave strength and balance to their constitutional decisions, for it authorized and bound the judges with the same ideals that elevated and confined them in their more mundane decisions. Their duty thus anchored an otherwise extraordinary power within the quotidian exercise of their office, and the result was a judicial power both more authoritative and less dangerous than that which prevails today."

So there were two paths, according to Hamburger, open to John Marshall and his successors. One, the path of deference, was to follow the lead of English judges, colonial judges, and state judges before 1787 (and also future Supreme Court Justice James Iredell, who as a practicing lawyer had sketched the deferential path in an essay published the year before the Constitutional Convention), and simply apply, as they would in any case, the "law of the land, " which merely happened now to include a national constitution. The other path was to acknowledge the vagueness of many constitutional provisions, the difficulty of amending the Constitution, and the high stakes of invalidating statutes, especially federal ones--but, in response to these daunting circumstances, not to throw up one's hands and declare the vague provisions unenforceable (as once suggested by Learned Hand) but instead to embrace a creative, essentially a legislative, role for the Supreme Court in constitutional cases.

In that role the Court would make constitutional law, not find it. Guided by the spirit rather than the letter of the Constitution or even the intent of its makers, the Court would be engaged in continually adapting an old text to modern needs. That was the path in fact taken (though Hamburger, whose history ends in the eighteenth century, is vague on precisely when it was taken), and, as a result, "not unlike kings and Parliament when they claimed to be the final arbiter, American judges have acquired a taste for power above the law."

There are problems with the "two paths" thesis. One is that the fact--if it is a fact--that judges could have taken the first path rather than the second does not prove that the first path is better--or even that it would define a smaller role for the Supreme Court. There is a deep ambiguity in the concept of judicial modesty. Hamburger advocates strict adherence to formal legal doctrines. That is a form of intellectual modesty: no policymaking, no talk of a "living constitution," let the chips fall where they may, fiat iustitia, ruat caelum.

An alternative conception of judicial modesty, first clearly articulated by James Bradley Thayer in the late nineteenth century and embraced by Oliver Wendell Holmes, focuses on the consequences for democracy, liberty, progress, and welfare of too free-wheeling a conception of judicial power to invalidate legislation. It is epitomized in Justice Jackson's warning against turning the Bill of Rights into a suicide pact.

It was one thing for English judges to invalidate borough acts, and colonial American judges to invalidate colonial statutes, and state judges to invalidate state statutes, But it was (and is) quite another thing for courts to invalidate national statutes. That was a power for which there was no precedent when the Constitution was enacted, because English courts could not invalidate acts of Parliament. Marshall and his colleagues might have decided that Congress like Parliament was a kind of "court" whose "decisions" (namely the laws that Congress enacted) could not be overturned by judges.

One wishes that Hamburger had carried his study beyond the Constitutional Convention. Marshall rejected the extreme of consequentialist judicial modesty, as I have just noted; and his explanation of judicial review in Marbury was Hamburgerian minus the history. Yet in fact the Marshall Court invalidated only one federal statute--the one challenged in Marbury itself, a statute that actually expanded the Supreme Court's jurisdiction--while at the same time greatly expanding federal versus state power. Marshall was not modest in Hamburger's sense (remember Holmes's description of Marshall as a loose constructionist who started the Constitution working), but he was modest in the consequentialist sense, if one thinks that striking down federal statutes, other than those that constrain judicial power (such as the one struck down in Marbury), is the most aggressive exercise of that power.

And how realistic is Hamburger's picture of the deferential judge? He acknowledges that his history is one of judicial "ideals" rather than of judicial actualities, but the neglect of actualities weakens his case. He gives too little weight to the fact that judges (most of them, anyway) talk a deferential game even when they are playing a discretionary one. They do this today, and it is understandable why they did it even more emphatically in the period covered by Hamburger's book. For the less secure a judge's authority--and judicial authority was far less secure then than it is in the United States today--the greater his need to represent himself as merely an oracle of the law. He does not decide cases; it is the law, speaking through him, that decides them. Rather than being a "decider," he is merely a "discerner." To criticize a judicial decision is to criticize the law itself.

The idea that law, whether in the thirteenth century or the twenty-first century, is a body of principles and rules that cover the entire landscape of potential legal disputes, so that the judge has only to find the principle or rule that governs the disputes that he is called upon to adjudicate, is (and probably always has been) either a ridiculous pretense or a rhetorical flourish. It is the latter if one thinks it meaningful to describe law in terms such as "justice" or "reasonableness," so that in every case, however uncertain it may seem, the judge has merely to discover the meaning of "justice" or "reasonableness" as it bears on the case. But in a case in which the judge's only guide is "justice" or "reasonableness," inevitably he will be exercising discretion--think, for example, of the variety of judicial interpretations of the term "unreasonable searches and seizures" in the Fourth Amendment to the Constitution.

All this is not to say that judges pay no attention to the language of constitutional provisions, the intent behind them as inferred from the constitutional text and other evidence, the precedents interpreting them, and other orthodox materials of legal interpretation. It is also not to say that judges are undisciplined, or that they fail to take their oath of office seriously--though Hamburger thinks they no longer do: "Eventually there would be little remaining memory of the divine office of judgment ['judges are obliged to judge righteously, upon pain of damnation'] and the obligation to adhere to it, thus leaving these ideals to survive only in a threadbare deference to the outward robes of office."

But often the orthodox materials in a case do not point strongly to one outcome rather than another, and then other factors enter into the decision of the case, such as the judge's worldview, his sense of the consequences of alternative outcomes, his moral and political values, his temperament, and his sensitivity to public opinion. Hamburger does not show that these factors played a smaller role in the decisions in the period covered by his book than they do today, though an even greater effort at concealment was made because (I am speculating) the judges had a less secure position in the system of governance. They had to hide behind "the law": "the law made me do it."

Law and Judicial Duty may seem at least to have answered the question why the Constitution did not create a power of judicial review explicitly. I am not entirely convinced. Remember that Article VI commands the state judges to bow to the "supreme law of the land." Yet according to Hamburger, as we know, the duty to apply the "law of the land" rests on every judge, and therefore on state judges. Since this is a defining aspect of the office of the judge, why did it have to be made explicit, but not the duty of determining the constitutionality of statutes?

Hamburger goes so far as to argue, rather wildly as it seems to me, that because "a common law judge had to decide in accord with the law of the land, he did so with a divine obligation and in imitation of divine judgment, and he thus had to reach far above earthly things in his pursuit of terrestrial law," and therefore "were a human law to restate the duty or to give it human obligation, this law [the Constitution] ... might subvert the understanding that judges were responsible to a higher authority." If this is right, it was an insult to state judges to tell them in Article VI that they had to conform to federal law; they knew it already.

In any event, the power of judicial review that Hamburger considers implicit in the Constitution is not the power that the federal courts have actually been exercising. Ever since the Dred Scott decision in 1857, the Supreme Court has been busy administering the "American doctrine of judicial review" that Hamburger considers not to have been authorized by the Constitution, but to have been the creation of aggressive justices. Thus, rather than demonstrating the legitimacy of American constitutional law, Hamburger has cast doubt on its legitimacy, by showing that the judicial power authorized implicitly by the Constitution was a more limited power. And yet--to return to the distinction between the two concepts of judicial modesty--the modesty that he commends could wreak as much havoc, or more, as could loose constructionists concerned with the consequences of judicial review.

After all, it was the self-proclaimed "modest" judges, in approximately Hamburger's sense--the apostles of "textualism" and "original meaning"--who recently gave us the decision in the Heller case invalidating the D.C. gun-control ordinance on the basis of the Second Amendment to the Constitution. A recent article by J. Harvie Wilkinson, a distinguished conservative federal judge, describes Heller, which has cast a dark pall over gun control throughout the entire United States, as the second coming of Roe v. Wade. Whatever Heller stands for, it is not modesty.

These reservations concerning Hamburgerian judicial modesty to one side, the history that Hamburger has excavated is genuinely fascinating, and it may alter the terms of debate among constitutional theorists, preoccupied as many of them are with origins. Very long and sometimes a little dry, the book is nevertheless a pleasure to read, and that is in part because of the enormous labor that its author poured into it. Clearly it was a labor of love. I mean that almost literally. For it is apparent that Hamburger has fallen in love with the judicial culture that he found in the Anglo-American past, and that he hates the modern judicial culture that is discontinuous with it.

He has internalized the stated values of the judges of a bygone era, and if this seems a little strange, its strangeness is redeemed by the fact that with empathy comes insight. Philip Hamburger has not only greatly enriched legal history, but he has enabled us to see, if not what the judges of old actually thought, let alone what unconscious thoughts and emotions motivated them, then at least how they wished to be seen; and that is an important part of a proper understanding of judicial behavior, ancient and modern..."

Richard A. Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School.