Apex Courts and the Common Law PDF
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APEX COURTS AND THE COMMON LAW This page intentionally left blank Apex Courts and the Common Law EDITED BY PAUL DALY UNIVERSITY OF TORONTO PRESS Toronto Buffalo London © University of Toronto Press 2019 Toronto Buffalo London utorontopress.com Printed in the U.S.A. ISBN 978-1-4875-0443-4 Printed on acid-free paper with vegetable-based inks. Library and Archives Canada Cataloguing in Publication Title: Apex courts and the common law / edited by Paul Daly. Names: Daly, Paul, 1983– editor. Description: Includes bibliographical references. Identifiers: Canadiana 20190049375 | ISBN 9781487504434 (hardcover) Subjects: LCSH: Constitutional courts. | LCSH: Common law. Classification: LCC K3370 .A64 2019 | DDC 347/.035—dc23 University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario. Funded by the Financé par le Government gouvernement of Canada du Canada Contents Acknowledgments vii Introduction 3 paul daly Part I: Decision Making by Common Law Apex Courts 1 The Role of the Supreme Court of Canada in Shaping the Common Law 25 beverley mclachlin 2 Apex Courts and the Development of the Common Law 36 brice dickson 3 The Common Law, the High Court of Australia, and the United States Supreme Court 66 p eter cane 4 Against All Odds: Numbers Sitting in the UK Supreme Court and Really, Really Important Cases 94 james lee 5 The Reference Jurisdiction of the Supreme Court of Canada 140 carissima mathen vi Contents Part II: Public Law Issues 6 Judicial Review in the American States 169 robert f. williams 7 The Common Law, the Constitution, and the Alien 192 audrey macklin 8 Administrative Law and Rights in the UK House of Lords and Supreme Court 225 jason n.e. varuhas 9 The Continuing Signifi cance of Dr Bonham’s Case 279 han-ru zhou Part III: Common Law Concepts 10 The Development of an Obligation to Perform in Good Faith 303 angela swan and jakub adamski 11 Cause and Courts 342 sandy steel 12 What Is Happening to the Law of Unjust Enrichment? 365 steve hedley 13 The Supreme Court, Fundamental Principles of Property Law, and the Shaping of Aboriginal Title 385 bruce ziff Afterword 405 william b. ewald Contributors 413 Acknowledgments T he papers contained in this collection were initially presented at a con- ference held at the Université de Montréal’s Cyberjustice Laboratory on 27 May 2016. The conference title was “Supreme Courts and the Com- mon Law.” The proceedings have been archived and can be accessed at the following address: http://commonlaw.umontreal.ca/videos/ . T he facilities provided by the Cyberjustice Laboratory and the Centre de recherche en droit public at the Université de Montréal contributed to a memorable event. In particular, the webcasting, which reached a global audience, would not have been possible without their support. My colleague in the Faculté de droit’s Common Law Programme, Mat- thew Harrington, helped a great deal in organizing the conference and conceptualizing this project. F lorian Martin-Bariteau went above and beyond the call of duty in revising and redrafting a funding application that ultimately influenced the content and structure of this collection. I was extremely fortunate to have Sarah Richert as my executive assistant at the time: she took care of travel, accommodation, and nourishing the conference participants. On the day of the conference, Dominique Payette ensured that the event ran smoothly. A part from the in-kind contributions from the Faculté de droit, the Centre de recherche en droit public, and the Cyberjustice Laboratory, the event and this publication were supported by a Connection grant from the Social Sciences and Humanities Research Council of Canada. Further financial support from the Yorke Fund at the University of Cambridge and Queens’ College, Cambridge allowed this book to see the light of day. viii Acknowledgments My editor at the University of Toronto Press, Daniel Quinlan, has been excellent in guiding the project through the production process. The anonymous peer reviewers read the draft manuscript assiduously and provided many thoughtful comments, which the contributors and I have taken on board. I am also indebted to Stephanie Stone for her thoroughly professional copy editing. Breanna Muir has also been invaluable in preparing the book for market. O n a personal level, Marie-France, Liam, Lorna, and Luke have been a source of support and delight throughout the production process. APEX COURTS AND THE COMMON LAW
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