The author examines the current Canadian approach to the recognition of the rights of Aboriginal peoples. The discussion focuses especially on the conceptual and legal problems at the centre of the Supreme Court's cultural discourse. The Court's approach to culture, “cultural distinctiveness” and “cultural rights” does not concord with current anthropological or historical conceptions of culture. With this approach Aboriginal cultural rights tend to appear “frozen in time”. The Court's cultural ideas are based in part on expert testimony (from the perspective of Aboriginal peoples, amongst others), on human rights and on public opinion, but they also have their own inherent logic. They are essentially oriented toward political questions surrounding the sovereignty of the Crown and the claims of indigenous peoples to self-determination. The cultural discourse of the Court is inseparable from the tension between the liberal politics of equality and the specific rights and claims of distinct peoples.

The interrelationship between Halakhah (Jewish law) and Aggadah (Jewish Legend) evokes potent insights, relevant to most disciplines that investigate law as a cultural practice, especially in the present-day Law and Literature field. This contention will be elaborated by proposing the two phased paradigm of literature alongside law. According to this paradigm, after considering the limits and sometimes failures of law, the next step is the attempt to deal with those effectively and to keep striving towards truth and justice within difficult realities. The Halakhah and Aggadah combination reflects the literature alongside law paradigm by creating a dynamic model of interpretation that is derived from a canon that is “both sealed and open”, and from the extensive use of narrative. Thus the Halakhah and Aggadah juxtaposition creates an authentic balance that while being aware to the weakness of law, continuously re-establishes it as a vital effort, characterized by failures and disappointments, but also by vision and achievements.

This paper uses the example of performance-related or bonus pay in large firms to examine two competing orders of constraints on employers: legal restrictions and recommendations set out in management literature. Case law treats bonuses as compensation within a contract of exchange, viewing contract in a narrow, traditional way. In contrast, management literature views bonuses as communication with employees, and its prescriptions relating to pay system design, implementation, and operation reveal a notion of managerial fairness. The paper then inquires whether managerial fairness is derivative from the public law duty of procedural fairness. Differences between managerial and public law fairness (the former imposes more substantive constraints) suggest that, contrary to a mimesis hypothesis, firms, when adopting fair practices,, are not replicating norms developed in the governmental context. Managerial fairness appears to be self-generating within the semi-autonomous social field of firms. Drawing on Teubner's work on autopoiesis, the paper then considers how the legal system can facilitate this self-regulation, while still retaining some ability to intervene.

To systematically and legally regulate the growing number of rural-urban internal migrants, the Beijing municipality of the People's Republic of China, promulgated a series of discriminatory laws and regulations against them centered around individual business operator license applications. Based on fieldwork evidence, this article demonstrates that migrants, a heavily disadvantaged and marginalized social group, have forgone legality and devised creative coping strategies in dealing with the discriminatory legislation. These strategies include direct evasion of the law, collusion with local business entities to avoid the law, and downright corruption. In analyzing the context of these unintended consequences, this article argues that the discriminatory law itself constitutes their vital source. It suggests that the so-called advancement of the rule of law in China actually is accompanied and plagued by the evasion of law, collusion, and corruption, a process full of unintended, paradoxical, and perverse consequences.

U.S. drug policy has, and continues to create tension between the United States and other countries. Using the August 2001 report of the Jamaican Commission on ganja, this paper uses the certification process to highlight some of the tensions inherent in the U.S. federal government's anti-marijuana legalization posture. This paper discusses the likelihood of the U.S. federal government changing the legal landscape for marijuana. It concludes by recommending, as potential solutions to address the tension between the US and its regional neighbours, regionalization of drug control and replacing the drug certification process with the Multilateral Evaluation Mechanism (MEM). The question becomes, is there a policy entrepreneur willing to agitate for a change in the policy environment?

Two years ago, while preparing a one week seminar for law professors at the Université nationale du Rwanda in Butare, I had the occasion to revisit the Arthurs Report on Law and Learning. I remember that my reaction was: how did things change so significantly since the Report was published?

That is why I was very interested to receive my new issue of the Canadian Journal of Law and Society that announced a complete dossier on the Report. After I read the first two articles by esteemed colleagues Roderick A. Macdonald and Constance Backhouse, I was shocked. How could there be such a gap between my perception and theirs? I was nevertheless relieved to see that Andrée Lajoie, in her “comments on the comments”, was as astonished as I was. I then decided to write my own comments in order to reflect a bit more the situation of the Civil Law faculties in Quebec and in particular the vision of the Université du Québec à Montréal (UQAM). I will limit my comments to three topics: the study of law at the undergraduate and graduate levels and the state of legal scholarship.

In September, 1999, the Supreme Court of Canada (SCC) released its decision in R v. Marshall. Donald Marshall Jr., no stranger to Canadian law, had been convicted of catching eels out of season, without a licence, and selling them, contrary to the federal Fisheries Act. He admitted the offences, but appealed his conviction to the Nova Scotia Court of Appeal and then to the SCC on the grounds that the 1760–61 treaties between the Mi'kmaq and the British recognized his right, as a Mi'kmaq, to catch and sell fish, and that this right was protected under the guarantee of Aboriginal and treaty rights in the Canadian constitution. Justice Binnie, writing for the majority of the SCC, overturned the convictions. The Mi'kmaq, he held, did have treaty rights based on the 1760–61 treaties to catch and sell fish, including eels.

The Mi'kmaq were delighted. After many years and many appearances before Canadian judges (R. v. Syliboy, R. v. Issac, and R. v. Simon), it appeared that the courts were finally prepared to recognize what the Mi'kmaq had long believed: that the eighteenth century treaties were the foundation of their relationship with Canada, that the treaties were still in force, and that they guaranteed commercial hunting and fishing rights in their traditional territories.

Using Professor George Fisher's wonderful new book, Plea Bargaining's Triumph as a springboard and roadmap for a journey into plea bargaining's past and present status, this brief essay will attempt to build a theory accounting for the centrality of plea bargaining in today's—and tomorrow's—criminal justice system. By looking back, Fisher illuminates the present, and suggests a future for plea bargaining in the disposition of the cases. His analysis ends with “plea bargaining's triumph;” with its emergence as the single most important (and powerful) factor in the disposition of criminal cases. I will applaud, but qualify his arguments and speculate about “plea bargaining's future.” His looking back, led him to conclude that plea bargaining coopted or caused most criminal justice innovations of the past two decades, and that almost anthropomorphically, it emerged victorious. His understanding of the “causes” of plea bargaining's centrality deserves applause along with qualification; his painting of a picture of plea bargaining “victory” is correct, and is fruitfully linked to a future informed by his understanding of a past.

First, some general ground rules for what I will and will not do in this essay. I will not systematically or exhaustively summarize Fisher's arguments, nor will I referee the disagreements he surfaced with the respect to the work of many major studies of plea bargaining and its history. Suffice it to say that this is a very careful historical study of the origins of plea bargaining, and that it primarily relies on a very detailed and very, very careful analysis of the court records of Middlesex County, Mass., mostly for cases disposed of in the 19th century. Based on these data, and secondary analyses of data from studies of plea bargaining in other jurisdictions, Fisher builds a theory of the growth of plea bargaining that is sometimes original, always engaging, and inevitably provocative. Though I take issue with some of his arguments, he must be lauded for the care and clarity of his presentation, and for the enormous literature he uses to develop and support his case.