Daniele Bertolini | Toronto Metropolitan University (original) (raw)
Uploads
Legal Theory/Lawmaking by Daniele Bertolini
Canadian Business Law Journal , 2022
Michael Trebilcock’s article in this issue discusses the past and the future of law and economics... more Michael Trebilcock’s article in this issue discusses the past and the future of law and economics (L&E) in Canada. In this article, I attempt to engage with and expand on Michael’s analysis. I start by discussing the transatlantic differences in the past academic and judicial reception of L&E. I contend that no methodological impediment prevents the civil law legal system from being fully receptive to the insights of economic analysis of law. I then identify three methodological challenges confronting L&E in the future and contend that in each of these respects Michael Trebilcock’s approach to L&E is methodologically more compelling than the current prevailing approach. First, Michael’s work is uniquely characterized by the systematic attempt to incorporate value pluralism into legal economic analysis, thereby enriching, correcting, and refining the analytical insights provided by conventional L&E. Second, Michael properly treats institutional pluralism as endogenous to the L&E analytical framework, thereby appropriately shifting the focus from assessing policy outcomes against idealized efficiency considerations to examining the institutional processes of seeking a desirable matching of available instruments and objectives. Third, while in Michael’s work, empirical analysis plays a role in testing descriptive hypotheses about the behavioral impact of legal rules and doctrines, it does not alone guide the definition of the normative content of the law, thereby avoiding the perils associated with the empirical reductionism emerging in the field.
Homo Oeconomicus. Journal of Behavioral and Institutional Economics, 2019
This article examines James Buchanan's conception of lawmaking, with specific respect to the inst... more This article examines James Buchanan's conception of lawmaking, with specific respect to the institutional features he proposes in order to promote individual liberty. Buchanan's constitutional framework is based on his perception of the nature of lawmaking and the sources of law. This paper argues that Buchanan's often implied assumptions concerning the lawmaking process severely limits the theoretical strength of his constitutional framework and ultimately undermines the effectiveness of the institutional promoters of liberty he proposes. More specifically, Buchanan's rigid legal positivism, combined with his peculiar form of political contractarianism, stifles his view of the sources of law; therefore, he is unable to provide a satisfactory normative account of the complex relationship between the lawmaking process and individual liberty within the constitutional order.
Canadian Journal of Law and Jurisprudence, 2016
24 Southern California Interdisciplinary Law Journal , 2015
This Article presents a systematic analysis of the theory of law as claim through a critical revi... more This Article presents a systematic analysis of the theory of law as
claim through a critical review of Bruno Leoni's work.1 I argue that this philosophical theory provides a useful methodological framework for the
analysis of lawmaking processes. I also demonstrate how Leoni's critique of legislation offers insights into the efficient institutional response to the growing demand for law that has emerged from the increasing complexity of contemporary societies-insights that are particularly relevant in an age characterized by continuing technological changes and profound social mutations. Finally, I contend that the idea of law as claim provides useful guidelines for a critical review of the methodological foundations of the mainstream discipline of law and economics.
Journal Jurisprudence, 2015
Saggio Introduttivo, in "Opere complete di Bruno Leoni-Volume 4," Torino, IBL, 2020
Nelle pagine che seguono si proverà ad articolare i principali capisaldi polemici e i più importa... more Nelle pagine che seguono si proverà ad articolare i principali capisaldi polemici e i più importanti nodi teorici della riflessione leoniana sui temi della teoria generale del diritto. La discussione si articola in due momenti. Si tenta innanzitutto di riassumere e precisare le principali tesi leoniane facendo stretto riferimento agli scritti qui antologizzati (sezioni 2-4); in seguito, si tenta di fornire un bilancio critico dell’impostazione giusfilosofica leoniana enfatizzandone gli elementi di maggiore originalità e fecondità teorica e individuandone i principali limiti e nodi irrisolti (sezioni 5-6). La discussione è organizzata per sezioni come segue: la seconda sezione riassume gli aspetti tecnici della critica leoniana del normativismo kelseniano e le ragioni dell’insoddisfazione di Leoni per le teorie “pure” del diritto; la terza sezione si concentra sulla teoria della pretesa, con cui Leoni si propone di superare i vizi teorici del normativismo di matrice kelseniana; la quarta sezione illustra il collegamento tra la teoria della pretesa e quella delle fonti di produzione giuridica; la quinta e la sesta sezione tentano un bilancio critico dell’impostazione giusfilosofica leoniana esaminando, rispettivamente, gli insegnamenti che possono trarsi dagli scritti sulla teoria della pretesa e i punti di maggiore problematicità o debolezza teorica di tale impostazione.
Contract Law by Daniele Bertolini
Alberta Law Review, 2021
Since Bhasin v. Hyrnew, approaches to good faith in Canadian contract law can be grouped into two... more Since Bhasin v. Hyrnew, approaches to good faith in Canadian contract law can be grouped into two broad categories: restrained and expansionist. Restrained approaches attempt to read and contain Bhasin within the narrow scope traditionally attributed to good faith in the Anglo-Canadian common law tradition; expansionist strategies embrace the idea of good faith as a general principle of the common law of contract. What is often missing in both approaches is a unified and comprehensive explanation of how the general principle of good faith is organized in different transactional contexts. Both approaches overlook the fact that Bhasin conceptualizes good faith as a variable whose meaning is contextual and tied to the relationship or situation within which it is to be applied. In this paper, I develop a framework that can serve as a basis for a systematic understanding of how the good faith principle operates in varying transactional settings. I conceptualize the operation of the good faith principle as a function of the interaction between institutional and transactional variables. Institutional variables encompass the legal reasoning employed by judges in applying the notion of good faith. Transactional variables are the contractual settings within which good faith is applied. I do not claim the proposed framework captures all the relevant variables affecting the scope and functioning of the good faith principle, nor that it explains all instances in which such duties arise. The ultimate goal is to improve the transparency of judicial decision-making and the judicial use of good faith by rendering explicit the factors that most affect the incidence of good faith duties. Two cases that were recently decided by the Supreme Court of Canada demonstrate that by explicitly adhering to the proposed framework, judges can be more transparent about how and why they employ good faith in differing contexts.
University of British Columbia Law Review , 2019
University of Toronto Law Journal, 2017
In Bhasin v Hrynew, the Supreme Court of Canada recognized good faith in contractual performance ... more In Bhasin v Hrynew, the Supreme Court of Canada recognized good faith in contractual
performance to be a ‘general organizing principle’ of the common law of contract. The true impact of Bhasin on the future development of the Canadian contract law remains the subject of considerable debate among legal scholars and practitioners. This article explores Bhasin’s evolutionary impact on the Canadian common law of contract, by providing an institutional understanding of the general organizing principle of good faith in contractual performance. It is contended that Bhasin’s contribution to the common law of contract is institutional rather than substantive – Bhasin fundamentally alters the organization of the sources of contract law by introducing a new law-making mechanism (that is, ‘law-making through good faith’) that is separate from, and potentially supersedes, the traditional doctrine of precedent. To support the central claim that Bhasin’s contribution is institutional rather than substantive, I employ three different kinds of arguments that correspond to three distinct, but closely related, dimensions of the principle of good faith in contractual performance: (a) semantic structure; (b) historical origins; and (c) economic function. Although these three lines of inquiry rest on quite different methodological premises, they converge in supporting the central idea that good faith performance is best understood as an institutional mechanism to allocate lawmaking power rather than a substantive legal principle.
Economic Regulation by Daniele Bertolini
Fordham Environmental Law Review , 2018
Canadian Business Law Journal , 2022
Michael Trebilcock’s article in this issue discusses the past and the future of law and economics... more Michael Trebilcock’s article in this issue discusses the past and the future of law and economics (L&E) in Canada. In this article, I attempt to engage with and expand on Michael’s analysis. I start by discussing the transatlantic differences in the past academic and judicial reception of L&E. I contend that no methodological impediment prevents the civil law legal system from being fully receptive to the insights of economic analysis of law. I then identify three methodological challenges confronting L&E in the future and contend that in each of these respects Michael Trebilcock’s approach to L&E is methodologically more compelling than the current prevailing approach. First, Michael’s work is uniquely characterized by the systematic attempt to incorporate value pluralism into legal economic analysis, thereby enriching, correcting, and refining the analytical insights provided by conventional L&E. Second, Michael properly treats institutional pluralism as endogenous to the L&E analytical framework, thereby appropriately shifting the focus from assessing policy outcomes against idealized efficiency considerations to examining the institutional processes of seeking a desirable matching of available instruments and objectives. Third, while in Michael’s work, empirical analysis plays a role in testing descriptive hypotheses about the behavioral impact of legal rules and doctrines, it does not alone guide the definition of the normative content of the law, thereby avoiding the perils associated with the empirical reductionism emerging in the field.
Homo Oeconomicus. Journal of Behavioral and Institutional Economics, 2019
This article examines James Buchanan's conception of lawmaking, with specific respect to the inst... more This article examines James Buchanan's conception of lawmaking, with specific respect to the institutional features he proposes in order to promote individual liberty. Buchanan's constitutional framework is based on his perception of the nature of lawmaking and the sources of law. This paper argues that Buchanan's often implied assumptions concerning the lawmaking process severely limits the theoretical strength of his constitutional framework and ultimately undermines the effectiveness of the institutional promoters of liberty he proposes. More specifically, Buchanan's rigid legal positivism, combined with his peculiar form of political contractarianism, stifles his view of the sources of law; therefore, he is unable to provide a satisfactory normative account of the complex relationship between the lawmaking process and individual liberty within the constitutional order.
Canadian Journal of Law and Jurisprudence, 2016
24 Southern California Interdisciplinary Law Journal , 2015
This Article presents a systematic analysis of the theory of law as claim through a critical revi... more This Article presents a systematic analysis of the theory of law as
claim through a critical review of Bruno Leoni's work.1 I argue that this philosophical theory provides a useful methodological framework for the
analysis of lawmaking processes. I also demonstrate how Leoni's critique of legislation offers insights into the efficient institutional response to the growing demand for law that has emerged from the increasing complexity of contemporary societies-insights that are particularly relevant in an age characterized by continuing technological changes and profound social mutations. Finally, I contend that the idea of law as claim provides useful guidelines for a critical review of the methodological foundations of the mainstream discipline of law and economics.
Journal Jurisprudence, 2015
Saggio Introduttivo, in "Opere complete di Bruno Leoni-Volume 4," Torino, IBL, 2020
Nelle pagine che seguono si proverà ad articolare i principali capisaldi polemici e i più importa... more Nelle pagine che seguono si proverà ad articolare i principali capisaldi polemici e i più importanti nodi teorici della riflessione leoniana sui temi della teoria generale del diritto. La discussione si articola in due momenti. Si tenta innanzitutto di riassumere e precisare le principali tesi leoniane facendo stretto riferimento agli scritti qui antologizzati (sezioni 2-4); in seguito, si tenta di fornire un bilancio critico dell’impostazione giusfilosofica leoniana enfatizzandone gli elementi di maggiore originalità e fecondità teorica e individuandone i principali limiti e nodi irrisolti (sezioni 5-6). La discussione è organizzata per sezioni come segue: la seconda sezione riassume gli aspetti tecnici della critica leoniana del normativismo kelseniano e le ragioni dell’insoddisfazione di Leoni per le teorie “pure” del diritto; la terza sezione si concentra sulla teoria della pretesa, con cui Leoni si propone di superare i vizi teorici del normativismo di matrice kelseniana; la quarta sezione illustra il collegamento tra la teoria della pretesa e quella delle fonti di produzione giuridica; la quinta e la sesta sezione tentano un bilancio critico dell’impostazione giusfilosofica leoniana esaminando, rispettivamente, gli insegnamenti che possono trarsi dagli scritti sulla teoria della pretesa e i punti di maggiore problematicità o debolezza teorica di tale impostazione.
Alberta Law Review, 2021
Since Bhasin v. Hyrnew, approaches to good faith in Canadian contract law can be grouped into two... more Since Bhasin v. Hyrnew, approaches to good faith in Canadian contract law can be grouped into two broad categories: restrained and expansionist. Restrained approaches attempt to read and contain Bhasin within the narrow scope traditionally attributed to good faith in the Anglo-Canadian common law tradition; expansionist strategies embrace the idea of good faith as a general principle of the common law of contract. What is often missing in both approaches is a unified and comprehensive explanation of how the general principle of good faith is organized in different transactional contexts. Both approaches overlook the fact that Bhasin conceptualizes good faith as a variable whose meaning is contextual and tied to the relationship or situation within which it is to be applied. In this paper, I develop a framework that can serve as a basis for a systematic understanding of how the good faith principle operates in varying transactional settings. I conceptualize the operation of the good faith principle as a function of the interaction between institutional and transactional variables. Institutional variables encompass the legal reasoning employed by judges in applying the notion of good faith. Transactional variables are the contractual settings within which good faith is applied. I do not claim the proposed framework captures all the relevant variables affecting the scope and functioning of the good faith principle, nor that it explains all instances in which such duties arise. The ultimate goal is to improve the transparency of judicial decision-making and the judicial use of good faith by rendering explicit the factors that most affect the incidence of good faith duties. Two cases that were recently decided by the Supreme Court of Canada demonstrate that by explicitly adhering to the proposed framework, judges can be more transparent about how and why they employ good faith in differing contexts.
University of British Columbia Law Review , 2019
University of Toronto Law Journal, 2017
In Bhasin v Hrynew, the Supreme Court of Canada recognized good faith in contractual performance ... more In Bhasin v Hrynew, the Supreme Court of Canada recognized good faith in contractual
performance to be a ‘general organizing principle’ of the common law of contract. The true impact of Bhasin on the future development of the Canadian contract law remains the subject of considerable debate among legal scholars and practitioners. This article explores Bhasin’s evolutionary impact on the Canadian common law of contract, by providing an institutional understanding of the general organizing principle of good faith in contractual performance. It is contended that Bhasin’s contribution to the common law of contract is institutional rather than substantive – Bhasin fundamentally alters the organization of the sources of contract law by introducing a new law-making mechanism (that is, ‘law-making through good faith’) that is separate from, and potentially supersedes, the traditional doctrine of precedent. To support the central claim that Bhasin’s contribution is institutional rather than substantive, I employ three different kinds of arguments that correspond to three distinct, but closely related, dimensions of the principle of good faith in contractual performance: (a) semantic structure; (b) historical origins; and (c) economic function. Although these three lines of inquiry rest on quite different methodological premises, they converge in supporting the central idea that good faith performance is best understood as an institutional mechanism to allocate lawmaking power rather than a substantive legal principle.
Fordham Environmental Law Review , 2018