“In the Best Interests of the Corporation: Interrogating the Economic Imaginary in Business and

Law”

CCCBE, September 16, 2010

Rebecca JohnsonFaculty of Law, University of Victoria

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"The power exerted by a legal regime consists less in the force that it can bring to bear against violators of its rules than in its capacity to persuade people that the world described in its images and categories is the only attainable world in which a sane person would want to live"

Robert Gordon, “Critical Legal Histories”

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The Supreme CourtThe Supreme Court

Opinions at theSupreme Court of Canada

• The publication of opinions• Unanimous decisions• Majority decisions• Different opinions:

– Majority– Dissent– Concurrence

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Non-unanimous reported decisionsof the Supreme Court of Canada, 1982-2008 (31 décembre 2008)

Judge NonUnanimous(nominal)

Taken part in writing

(%)

With the majority

(%)

With concurrence

(Reasons) (%)

With dissent

(Result) (%)

Dissent Total (%)

Average 244,3Total: 6596

33,8 61,0 19,2 17,8 38,0

Iacobucci 420 24,8 72,9 14,3 10,2 26,4

Rothstein 33 24,2 72,7 9,1 18,2 27,3

Binnie 252 26,2 72,2 7,9 19,9 27,8

Le Dain 70 30,0 68,8 24,3 5,7 30,0

Abella 95 34,7 68,4 8,7 22,1 30,8

Cory 397 35,5 68,0 19,4 9,8 31,0

Arbour 108 37,0 67,6 10,2 14,8 32,4

Charron 91 26,4 67,0 8,8 24,3 33,1

Chouinard 86 16,3 65,1 20,9 12,8 34,9

Gonthier 506 17,2 62,6 21,3 12,5 35,2

Major 384 24,7 64,0 14,3 19,5 35,4

Fish 110 29,1 62,7 10,9 24,5 35,4

Estey 107 42,1 61,7 17,8 17,8 37,4

Non-unanimous reported decisionsof the Supreme Court of Canada, 1982-2008 (31 décembre 2008)

Judge NonUnanimous(nominal)

Taken part in writing

(%)

With the majority

(%)

With concurrence

(Reasons) (%)

With dissent

(Result) (%)

Dissent Total (%)

Average 244,3Total: 6596

33,8 61,0 19,2 17,8 38,0

Bastarache 256 41,0 60,9 12,5 26,6 39,1

Dickson 229 39,3 59,4 27,9 12,2 40,5

Beetz 134 22,4 57,5 29,1 11,1 41,6

Deschamps 141 31,9 58,2 11,3 30,5 41,8

Stevenson 70 25,7 57,1 28,8 14,3 42,9

LeBel 196 39,3 56,6 15,8 27,6 43,4

McIntyre 183 37,2 55,8 23,5 16,4 43,7

Sopinka 382 46,1 54,2 25,7 17,3 44,8

Lamer 502 44,5 54,9 29,1 13,4 45,0

La Forest 467 38,8 54,8 30,4 12,0 45,2

McLachlin 578 44,6 54,7 23,4 22,0 45,4

Wilson 249 55,0 40,2 32,1 22,5 59,8

L’Heureux-Dubé 531 42,7 35,6 31,5 28,1 63,3

Distinct Perspectives

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criminal rights criminal rights claimsclaims

court party court party claimsclaims

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“A distinctively human mental capacity that compels us to project our imaginations beyond the ordinary, the expectable, the legitimate – and to involve others in our imaginings.”

“The term, which comes from the Greek, « nous » includes not only the deliberations of the rational mind, but also its appetites and affections. … its beliefs, desires, feelings, hopes, intentions.”

The Noetic Space [1] ?

[1] Anthony G. Amsterdam, and Jerome Bruner, Anthony G. Amsterdam, and Jerome Bruner, Minding the LawMinding the Law (Cambridge: Harvard University Press, 2000) at 237.(Cambridge: Harvard University Press, 2000) at 237.

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The Noetic Space

• Examples: art, philosophy, novel, theater

• Pragmatic space where reason meet the world of the imagination while respecting the limits of lifelikeness

• Thinking which involves « reason » in contact with the affective emotive world

• Imagining new values and exploring novel legal avenues

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Cultures in their very nature are marked by contests for control over conceptions of reality. In any culture, there are both canonical versions of how things really are and should be and countervailing visions about what is alternatively possible. The statutes and conventions and authorities and orthodoxies of a culture are always in a dialectical relationship with contrarian myths, dissenting fictions, and (most important of all) the restless powers of the human imagination … the dialectic between the canonical and imagined is not only inherent in human culture, but gives culture is dynamism and, in some unfathomable way, its unpredictability – its freedom.

Amsterdam & Brunner, Minding the Law

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“Taking from my own experience as a judge of fourteen years’ standing, working closely with my male colleagues on the bench, there are probably whole areas of the law on which there is no uniquely feminine perspective. This is not to say that the development of the law in these areas has not been influenced by the fact that lawyers and judges have all been men. Rather, the principles and the underlying premises are so firmly entrenched and so fundamentally sound that no good would be achieved by attempting to re-invent the wheel, even if the revised version did have a few more spokes in it. I have in mind areas such as the law of contract, the law of real property, and the law applicable to corporations.”

Justice Bertha Wilson “Will Women Judges Make a Difference”

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Supreme Court Cases – 1982-2007 (by Percentage of Dissent within Topic

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HOW DOES LAW IMAGINE BUSINESS?

Peoples v. Wise

BCE v. 1976 Debenture Holders

What does it mean to act ‘in the best interests of the corporation’? Does that mean the interests of the ‘shareholders’? Or of a broader category of ‘stakeholders’? What ARE the interests of the corporation?

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“But we’re getting into motives here. I mean business is business. If you think you might be facing a claim, you would do something to satisfy that claim or to offset it, and you might do it because you thought you were going to be sued or you might do it because you thought it was the wrong thing to do, but the question is whether you do the right thing in the financial analysis, isn’t it?”

Justice McLachlin, hearing for BCE (p. 59-60)

“No set of legal institutions or prescriptions exist apart from the narratives that locate it and give it meaning.”

Robert Cover, “Nomos and Narrative” (1983)

Said, Culture and Imperialism

“the processes of Imperialism occurred beyond the level of economic laws and political decisions … and were manifested at the level of national culture.”

Said, Culture and Imperialism

Said, drawing on Raymond Williams, argued that the 19th century novel participated in creating ‘structures of feeling’ which supported, elaborated, and consolidated the practices of empire.