Larissa M. Katz (University of Toronto – Faculty of Law) & Preston Jordan Lim (Villanova University – Charles Widger School of Law) have posted Justice Russell Brown’s Rule of Law Thought on SSRN. Here is the abstract:
Justice Russell Brown approached private and public law issues through a uniform philosophical framework. This framework is a modern offshoot of what legal historian Richard Risk identified as the “rule of law thought” characteristic of British and Canadian jurists in the late 19th and early 20th centuries. We explore manifestations of this overarching approach in Justice Brown’s private and public law jurisprudence. In the private law realm, the rule of law thought results in an adherence to private law formalism, legal mapmaking, and the distinction between rights and interests. On public law issues, the rule of law thought translates into a strict understanding of the separation of powers, a textualist orientation, and a concern for legal predictability. We also reflect upon a key tension in his work: how to reconcile the discretionary and moral texture of equity with a commitment to legal structure and constraint.