Harry W. Arthurs

Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields.

Globalization is not simply a matter of transnational trade, and of the state, non-state and supra-state legal regimes which facilitate, regulate or resist it; it also involves transnational social, cultural, intellectual and ideological forces. These forces play upon strategically located knowledge-based elites which play an important role in restructuring the legal fields by which public and public and private institutions are constituted. Canadas experience of globalization—unique because of proximity to the United States—has been both exemplified and, in part, shaped by the fate of its knowledge-based elites, including the business community (especially that part of it involved directly or indirectly with transnational corporations), academics and intellectuals, lawyers, artists and other cultural figures, and individuals involved in politics and public administration. Because of the effects of this “globalization of the mind” upon the institutions which all of these elites inhabit, state and non-state legal fields associated with them have been transformed.

Law and Learning in an Era of Globalization

This paper explores the ways in which globalization, as a dominant influence on political economy, makes its presence felt on legal education and research. In particular, it questions whether law schools have maintained agency in the choice to embrace globalization in their curricula, scholarship and general orientation or whether law schools have been forced to bend to the realities of the global economy. While neo-liberal “globalization of the mind” has shifted assumptions about the project of law and entrenched a “new normal” in legal education and scholarship, the McGill curriculum – based on so-called transsystemic legal education – offers the promise of professional and intellectual formation based on law’s radical indeterminacy in an era of globalization, neo-liberalism and law without the state.

The Administrative State Goes to Market (and Cries 'Wee, Wee, Wee' All the Way Home)

† I am grateful for financial support from Osgoode Hall Law School and York University’s SSHRC Small Grants program; for research assistance from Michelle Dagnino, Michael Rutherford, and Emily Lawrence; and for insightful comments from my fellow contributors to this special issue of the University of Toronto Law Journal. 1 I have developed this idea in Without the Law: Administrative Justice and Legal Pluralism in Nineteenth Century England (Toronto: University of Toronto Press, 1985) [Without the Law]. For a somewhat similar account see Peter Lindseth, ‘“Always Embedded” Administration: The Historical Evolution of Administrative Justice as an Aspect of Modern Governance’ (2004) (University of Connecticut School of Law Working Paper Series No. 19), online: Nellco Repository . 2 See generally T.R.S. Allan, ‘The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry?’ (2002) 61 Camb.L.J. 87. 3 Carol Harlow & Richard Rawlings, Law and Administration (London: Butterworths, 1997) at 67. 4 John Willis, ‘The McRuer Report: Lawyers’ Values and Civil Servants’ Values’ (1968) 18 U.T.L.J. 351 [‘McRuer Report’].

The world turned upside down: Are changes in political economy and legal practice transforming legal education and scholarship, or vice versa?

The recent arrival of recruiters from Wall Street for the ® rst time in Canadian law schools, and the initial wooing of Canadian law teachers by leading American law schools, provoked a moral panic. According to the general and legal press, Canada was losing its `best and brightest’ graduates; half of all Supreme Court clerks were accepting Wall Street oþ ers; Canadian law professors were being oþ ered two to ® ve times their salaries to move to the US; and so on. Fairly spectacular consequences ensued. Ontario’s legal profession altered the rules concerning the recruitment of articling students; major Canadian law ® rms upgraded their recruitment and compensation policies; some Canadian law schools signi® cantly improved their salary structures; student fees in some law faculties doubled or trebled; one law school (so far) has replaced the traditional Canadian LL.B. degree with the American J.D.; one (at least) has sought accreditation from the American Bar Association; and it is saidÐ with glee or resignationÐ that the Americanisation and corporatisation of Canadian legal academe is proceeding apace. At ® rst blush, these reactions seem disproportionate to the events which provoked them. As it turned out, Wall Street’s harvest of Canadians amounted to 30 or 40 law graduates per year, many of whom quickly returned to Canada a year or two later after gaining international experience and retiring their student loans; and the mass migration of Canadian law teachers consisted of about 10 people who moved mid-career, and another 20 who had stayed in the US after graduate school because they either (a) failed to ® nd academic jobs in Canada, or (b) succeeded in

The Constitutionalization of Employment Relations: Multiple Models, Pernicious Problems

The constitutionalization of employment relations has been proposed as a possible response to the serious difficulties confronting workers and unions in an era of neo-liberalism and globalization. This article challenges this proposal on two grounds. First, ‘employment’ no longer serves as an appropriate platform for labour policy, and in any event is conceptually inappropriate for constitutionalization. And second, a survey of the multiple meanings and manifestations of ‘constitutionalization’ at the level of the nation state, the global economy and the enterprise reveals that this approach is unlikely to produce positive practical results for workers. Nonetheless, to think about the constitutionalization of employment relations is productive in the sense that it requires engagement with the pernicious problems of articulating a ‘new normal’ — a ‘new normativity’ — that represents a better balance between workers’ interests and those of employers.

The Constitutionalization of Labour Rights

Yes, it’s true: Workers are human; they are not commodities; they are not factors of production. People with an interest in human rights should therefore be as interested in the oppression of workers as they in the oppression of people of colour or women or disabled people. But labour rights and human rights are not easily collapsed into a single category. Labour rights have historically been framed as collective, human rights as individual; labour rights are class-based; human rights claim to be universal in their justification and application. Labour rights have generally been vindicated through economic and political action; human rights have been advanced through cultural and social change and, more recently, through litigation. Labour has tended to assert its rights at the level of the workplace and the nation state; human rights movements in recent years have tended to be trans-national. And a point of some importance: Labour rights have tended to be marginalized in the shaping of the new global economic order, while human rights have been embraced by adherents of the Washington consensus as both a precondition and consequence of global capitalism.

Woe Unto You, Judges: or How Reading Frankfurter and Greene, The Labor Injunction, Ruined Me as a Labour Lawyer and Made Me as an Academic

This article is a contribution to the occasional series dealing with a major book that influenced the author. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, and Geoffrey Bindman.

Every Whichway: New Directions for Canadian Socio-Legal Research

Barely three years ago, as chairman of the SSHRCs Consultative Group on Research and Education in Law, I released a report entitled Law and Learning . This report — in its diagnosis hardly more than a systematic compilation and empirical verification of “what we knew but could not tell” — contained a series of recommendations for the invigoration of Canadian legal scholarship. Several of these recommendations related to the need to diversify the types of legal research being conducted, to strengthen the research community by the development of networks and centres of activity, and to communicate the results of new research endeavours to relevant professional audiences, as well as to the public. For me, therefore, the establishment of the Canadian Law and Society Association and the publication of the Canadian Journal of Law and Society are events of special significance. I am pleased — indeed flattered — to be involved in these new and important enterprises, albeit in a largely symbolic way. My pleasure is only enhanced by being afforded both a platform for pontification (the Editor has absolved me from the obligation to provide footnotes), and a collective script to which I can add what amounts to a postscript to our report.

The commonwealth of lawyers

Wes Pue’s Lawyers’ Empire is more than an outstanding collection of essays on the social and cultural history of lawyers. It is an intellectual provocation to anyone interested in their contemporary role in the legal system. My first response to that provocation was to reflect on its title, which plays off Ronald Dworkin’s justly famous Law’s Empire. Dworkin’s opus explores how a nation’s highest court can and should decide in a principled and coherent fashion what the law is or ought to be. It is a book about high law, capital-L Law. It makes both implicit and explicit claims (mostly conjectural) about the capacity of constitutional adjudication to accomplish social and political transformation. And while it does not argue that the US Supreme Court, at its best, represents a template for all the world’s appellate courts, Law’s Empire is at least open to that interpretation. But Pue has written a very different sort of book. Lawyers’ Empire, of course, is also a book about legal ideas, but not at all about adjudication and with little to say about high law. Rather it seeks to remind us how ideas about lawyering and legal professionalism were invented and deployed by lawyers to advance the ideals and interests of their clients, their communities and themselves. Like Dworkin’s book, Lawyers’ Empire is concerned with law’s role in bringing about social and political transformation. However, Dworkin and Pue have very different approaches: the former proceeds by way of a priori assertions about law’s causes and consequences, the latter by way of close encounters with historical evidence. But the biggest difference is this: Dworkin’s conclusions tend to the categorical and the universal; Pue emphasizes the variety and contingency of legal systems, cultures and professions. Variety and contingency are concepts that, to my mind, sit uneasily with the notion of ‘Empire’. True, Pue offers us a series of portraits—some in sepia, some in living color—of legal professions in countries that were once part of the British imperium. But he does not make the case that the Empire endowed these professions with a set of standard characteristics. On the contrary, he demonstrates that each of them is a product of its own time and place, that each used an invented version of its history (including its imperial history) to establish or embellish its own ‘mythologies’.

Introduction to the symposium in honour of William Twining

William Twining has been (still is, in my view) the most influential figure in British legal education over the last half-century. He is erudite and prolific, of course; his range is impressive and his insights profound; he writes with great style and good humour; he has lectured, consulted and published his way across the academic alphabet from the ANU to Yale (but not, I think, Zimbabwe); his students serve with distinction and profit as judges, lawyers and law teachers in Africa, America, Asia and continental Europe, as well as the United Kingdom. These are all reasons to warrant celebrating William’s achievements in an international journal devoted to the legal profession. But they do not tell us what makes his contributions so compelling, what infuses them with their special energy and insight. In my view, the answer is that William astutely and creatively explores the tensions between the centre and the periphery of legal education and scholarship. I mean ‘periphery’ and ‘centre’ partly in the physical sense. William was born on the periphery of empire, in Kampala, and began his academic career in the late 1950s in Khartoum. One of his students there famously drew his attention to the oddity of incarcerating camels in the zoo of the imperial metropolis. From that early encounter in a colonial classroom ultimately emerged the ‘law in context’ tendency in legal education and scholarship which, not by accident, became most firmly ensconced at Warwick Law School, then a new institution on the periphery of the British legal academy. William himself duly arrived at Warwick after service in other outposts of the imperium – first Dar es Salaam (where, perhaps foolishly, I declined a job offer from the same man that hired him – the brilliant and erratic A.B. Weston) and then Queen’s Belfast (whence he dispatched Pericles in search of a plumber, and sent myself, and my generation of Canadian law teachers, in search of our better angels). With his move to Bentham House – home of the Faculty of Law of University College London – William relocated to the physical centre of English law. In short order, he became the kindly warder at the centre of Blackstone’s Tower, the legal academy’s panopticon. True, he did teach the inmates how to pick oakum (or, as INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION, VOL. 18, NOS. 1–2, MARCH–JULY 2011