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The Canadian legal landscape is changing. Data over the last three decades show a trend toward larger law firms. Many of the country’s most storied ‘big law’ corporate firms have exploded in size and reach. Almost all of these firms maintain offices across the country and satellite offices in key international markets. Other large firms have been subsumed into foreign conglomerates pursuing expansion into the Canadian legal market. These developments have led to an increase in revenues and business opportunities for senior partners at these firms. It has also led to unprecedented challenges for the management of big law firms in Canada. As one of the former managing partners of Heenan Blaikie LLP (Heenan Blaikie), Norman Bacal knows this better than most.
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This article revisits long-standing debates about objective interpretation in the common law system by focusing on a crime novel by Agatha Christie and judicial opinion by the Ontario High Court. Conventions of the crime fiction and judicial opinion genres inform readers’ assumption that the two texts are objectively interpretable. This article challenges this assumption by demonstrating that unreliable narration is often, if not always, a feature of written communication. Judges, like crime fiction writers, are storytellers. While these authors might intend for their stories to be read in certain ways, the potential for interpretive disconnect between unreliable narrators and readers means there can be no essential quality that marks a literary or legal text’s meaning as objective. Taken to heart, this demands that judges try to narrate their decisions more reliably so that readers are able to interpret the texts correctly when it matters most.
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This article challenges traditional approaches to gender difference in prescriptive negotiation analysis. Historically, dispute resolution scholars and practitioners analyzing the determinants of gender have either assumed or concluded that women and men negotiate differently, with so-called “women’s ways” being seen as less effective than “men’s ways” at achieving principled negotiation results. This position has led scholars to offer prescriptive negotiation advice that maps onto two forms of difference feminism: liberal feminist negotiation (translatable as “fix the woman”) and cultural feminist negotiation (translatable as “fix the system around the woman”). This article critiques difference feminist theory for its practical and political implications in principled negotiation. These criticisms suggest that difference feminist theory limits the range of negotiation tools accessible to everyone by reinscribing sex and gender stereotypes, and only allows room for feminist interventions based in minoritizing discourses of female/feminine bargaining identity at the expense of universalizing discourses of human activity. The article then offers an alternative based in postmodern feminism, “protean negotiation,” that aspires to dissolve fixed gender identities for the practical and political benefit of both women and men. This article concludes by suggesting that a form of the classic Negotiator’s Dilemma is reflected in the progressive politics of gender in negotiation where cultural feminism and postmodern feminism suggest a tension between ideological commitments to “identity” and “activity” respectively. These intuitions give rise to a struggle called the “Feminist Negotiator’s Dilemma,” and there may be no way to resolve it. The task for progressive politics should be to accept these competing imperatives and to negotiate their contradictions if feminists are to effectively understand, let alone resist, the limitations of gender difference in negotiation theory and practice.
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In Anglo-American legal discourse, the juridical subject of dispute resolution has traditionally been conceived as a bearer of rights or a bearer of interests: rights, in the model of liberal legalism that regards adjudication (i.e. court and tribunal processes) to be the preferred means of resolving disputes in the adversarial tradition; or interests, in an alternative or complementary model that regards consensual dispute resolution (i.e. negotiated and mediated settlement processes) to be the preferred means of resolving disputes in the non-adversarial tradition. This article explores the ethical implications of reframing the bearer of interests as a bearer of desires. This is more than just semantics. Reconceiving the juridical subject in this way invokes the contemporary tradition of progressive social theory that has centered the concept of desire in its critique of the liberal humanist subject. This critique has yet to be fully explored in the legal scholarship. One of the most productive lines of argument in this tradition is derived from queer theory – in particular, a strand of post-identitarian thinking in queer theory that regards sexual desire as something that is disruptive of ontology regardless of gender or sexual identity. This strand of thinking raises important questions in this context. Is it possible to theorize juridical subjectivity as a form of sexual subjectivity? What follows from such an effort to “queer” the constitution of the juridical subject, independent from its politicized identity as a bearer of rights in liberal legalism? Could this theory teach us something about the ethics of rights and interests-based dispute resolution processes?This paper argues that theorizing about the juridical subject of dispute resolution through the lens of sexual desire encourages us to think about the practice of settlement non-instrumentally, not unlike sexuality itself, which reveals the practice to be immune to the liberal legal imperatives of politicized identity. This is what makes it a fitting analogue for the trope of sexual freedom in queer theory, which opens up a pressing line of criticism about legal policy initiatives that have sought to limit, and in some cases categorically ban the use of consensual dispute resolution altogether. At the same time, however, this theory raises difficult questions about the ethics of sexual desire given the risk that consent to sex and settlement may be induced by coercive force. This helps us to understand the proper role of law – and specifically, the legal doctrine of consent – in regulating the conduct of these practices, or at least to understand it as something deeply fraught with uncertainty.
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