Common Law Judging and the Great Tradition
Previously featured on the blog here!
Abstract
Many other books also wrestle with the question this book explores: How do judges decide cases in the American common law? But this is no ordinary law book.
The rules of the common law are grounded in precedent, and yet the disturbing truth is that competing precedents often allow judges to choose from among two or more solutions. So if the rules alone do not decide the cases, which factors prove decisive? This book takes seriously the fact that we do not actually know the answer to that question.
Another surprise is that this uncomfortable insight is a staple of the great tradition of common law writing—from the classic works by Blackstone, Holmes, and Cardozo to the innovative thinking of Duncan Kennedy, Mary Joe Frug, and Patricia Williams. This book moves beyond the usual debates and demonstrates for the first time that these differing accounts can work together to offer a meaningful approach to the challenge of judging.
The different perspectives agree that judges should consider all the facts and circumstances of the cases. As it pursues that method, this book explores the lives of those involved in a few famous contracts cases. It uncovers the thinking of the judges who decided them and what it means to reason under conditions of uncertainty.
Common Law Judging is a rare achievement: it is a book as much for those who want to learn how to do law well as it is for those who simply wonder how law really works. This is an open access book.
Non-Binding No More? Entire Agreement Clauses and the Factual Matrix in Commercial Transactions
Abstract
Are entire agreement (EA) clauses among sophisticated commercial parties enforceable under Canadian common law to exclude reliance on preliminary deal documents in a contractual interpretation dispute? Recent decisions, such as that of the Ontario Court of Appeal in Project Freeway, suggest that the answer is “no”. We posit that a principal source of confusion in the case law is how courts apply the doctrinal requirement to consider contracts “in light of the factual matrix” or “surrounding circumstances”. Our main contribution is to demonstrate that the factual matrix of commercial transactions, fulsomely appreciated, requires honouring EA clauses by not relying on preliminary deal documents such as a letter of intent (LOI) in an interpretation dispute under the parties’ subsequent definitive agreement. To do otherwise overlooks the particular factual matrix of commercial transactions that is characterized by dynamically evolving bargaining, informational, and market environments. For courts to override an EA clause risks imposing an outdated (at best) or non-existent (at worst) commercial reality on the contracting parties. We argue that respecting the parties’ express objective intent by upholding EA clauses is the clearest and most consistent way to apply the foundational principles of Canadian contractual interpretation and respect the factual matrix of commercial transactions.
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