Regulation and the Common Law

On May 10 next, we at U de M are hosting what we hope will be the first in a series of conferences on key concepts of the common law.

To kick off, the conference on May 10, 2013 is Regulation and the Common Law.

Our keynote speaker will be Gillian Metzger, the Stanley H. Fuld Professor of Law at Columbia Law School. The other speakers are identified on the poster for the event and you can find details of the programme here.

Here is the abstract for the conference:

Regulation is pervasive in modern liberal democracies. From dawn to dusk, regulation touches all aspects of the lives of citizens.

Construction of the framework of regulation in common law systems begins at the constitutional level. Different visions of the permissible reach of state regulation have recently been offered by the Supreme Courts of the United States and Canada. In previous decisions, common law courts there and elsewhere have sought to shape the common law in light of constitutional – and, increasingly, international – norms and values, thereby undermining any rigid distinction between public and private in the common law tradition. Attention to public law is thus necessary to understand the relationship between regulation and the common law.

Exploring the common law’s own character is also necessary. A flexible and supple common law can, in principle, respond to new demands for regulatory intervention, though perhaps in a slow and incremental fashion. One may push further and ask whether the regulatory imperatives of modern liberal democracies have changed the common law itself, perhaps by injecting urgency into its genetic make‐up. The common law’s underlying values may be subject to change too. Where laissez‐faire may once have been the dominant organizing principle in the common law tradition, its centrality seems less assured in an era of pervasive regulation.

To focus too closely on the principles, standards and rules of the common law, however, would be to lose sight of the ever‐growing importance of statutes and delegated legislation in modern liberal democracies. Once shunned by courts anxious to guard their prerogatives, parliamentary and executive legislation is now unavoidable. From a tradition in which, if anything, the common law shaped judicial treatment of statutes, it might be said that, now, statutory intervention has come to shape the substance of the common law and the mindset of its practitioners.

We will examine regulation in the context of the common law and the common law in the context of regulation by reference to three broad, overarching themes:

1. Regulation and its framework
2. Regulation and the public/private divide
3. Regulation and the substantive common law

Attendance is free, with lunch included. Contact me at paul dot daly at umontreal dot ca if you want to register.