Features of the Modern Law of Contract – Required Reading

Angela Swan makes a number of thought provoking comments regarding the features of the modern law of contract in her treatise on “Canadian Contract Law”. If anything, the comments should be required reading for the followers of legal print and online publishing in Canada.

Among other things, Angela asserts that recent developments in legal publishing have had a significant impact on substantive law. Specifically she says that the established “principles” of the law of contract have been undermined by two connected developments in the world of legal publishing:

first, by the proliferation of specialized law reports; and,

second, through the use of computers in legal research.

The proliferation of specialized law reports

In Angela’s own words, “The first (development) has been the proliferation of specialized law reports so that, instead of national reports like the Dominion Law Reports, regional ones like the Western Weekly Reports or provincial ones like the Ontario Reports, British Columbia Law Reports, etc., we now have reports on real property, insurance, employment, tort, construction, practice, estates, etc.”

Angela describes this development as a “revolution in publishing” that has created “the balkanization of the law”, with counsel now tending to cite cases decided in the same subject area rather than to the cases that establish the general principles of contract law. Issues of interpretation of contracts are handled in the same fashion, i.e., by subject area.

The use of computererized legal research to find judgments from the same province with very similar facts

According to Angela, computerized legal research has made matters even worse: “The effect of the proliferation of topical law reports has been replicated in a different way by the use of computers in legal research. There the effect has not been so much what can be called the incestuous development of principle – insurance cases only being referred to in other insurance cases; construction cases referring to other construction cases – but the beginnings of a dissolution of a Canadian common law.”

Concern is expressed that the reasons for judgment of many provincial courts now show a preponderance of citations to cases from the same province. The “explosion in the number of cases being made available online”, combined with the comparative ease with which one can find a judgment with exact or similar facts from the same province, undermines or weakens the use of legal arguments on principle. Lost, apparently, are citations to cases from other Canadian jurisdictions that address issues of principle, and thereby lost also is the development of a Canadian common law.

Before and after the revolution

By the choice of language to describe these developments, it is clear that Angela doesn’t approve of them, i.e. “balkanization of the law” and the “dissolution of the common law”.

Is it really a bad thing for judges in insurance cases to consider other insurance cases in reaching a decision, or for judges in construction cases to consider other cases in construction law ? There is no reason to believe that principles are abandoned for that reason alone. If anything, I would have thought that the opposite was true. The law of contracts should not exist independent of the real worlds of insurance and construction. These developments offer an opportunity to test and refine the principles of the law of contract to ensure that they meet contemporary needs.

Similarly, is it really a bad thing for judges in one province to consider other decisions decided by judges in the same province. Again, I think not. It is almost reassuring that this is happening. Judicial decision making is not supposed to take place in isolation.

Simon Chester drew our attention earlier this year to the article in the Harvard Journal of Law and Technology by Katrina Fischer Kuh entitled “Electronically Manufactured Law – Why the shift to electronic research merits attention”. The article identified changes in the research process that are expected to result from an electronic research including a “greater divergence between researchers with regard to the theories and principles identified as potentially applicable to a set of facts”. The factors cited in the article did not reflect Canadian experience but the outcome is the same.

In many posts that appear on this site and others, there are frequent comments to the effect that online access to more judicial decisions can be expected at some point to have a meaningful impact on the substance of the law. Angela Swan appears to have found real change happening now.

Isn’t that a good thing?

Comments

  1. I am very grateful to Gary Rodrigues for bringing the arguments I make in my text to the attention of Slaw’s readers. I justified writing my text on the ground that it is necessary to counteract the tendencies I describe.

    I stand by the deliberately disapproving tone I adopted; both of the developments I describe are unfortunate. These comments and developments were what I had in mind when I made my largely unsuccessful attempts to generate a discussion on Slaw of what good research is or to explore the ideas of Robert Pirsig in Zen and the Art of Motorcycle Maintenance.

    It has to be unfortunate that a provincial court looks only at other decisions from that province or that lawyers engaged in, say, a dispute over a construction contract look only at other construction cases. The balkanization of the law is even more serious than these examples suggest.

    This balkanization contributes, in my opinion, to the very unsatisfactory state of Canadian law with respect to the concept of good faith. There are statements from the Supreme Court and, in particular, from the Ontario Court of Appeal that there is no duty to negotiate in good faith. There are as many, if not more statements (and by the same courts) to the effect that obligations of good faith (or of obligations indistinguishable from a duty of good faith) permeate both the negotiation and the performance of contracts. These two lines of authority exist separately because each feeds off itself and no one notices that they need to be reconciled or brought together. In part, the problem is caused by the fact that in the latter category the phrase “good faith” may not be used—it’s only the result that shows the importance of behaving decently. Computer searching will never achieve or even help to achieve some kind of synthesis because there are no words to search for—one can’t search for results. The only hope is that lawyers and judges will look to texts and papers where the two strands are examined. Barry Reiter and I explored these issues in a paper we published in 1980; I added another in 1985, but we are not often cited now.

    Perhaps researchers on Slaw will offer opinions on the issues Gary and I have raised; I’d like to see a thread as long as the one that I recently generated!