Of ‘Landmark’ or ‘Leading’ Cases: Salomon's Challenge

AuthorErnest Lim
Publication Date01 Dec 2014
DOIhttp://doi.org/10.1111/j.1467-6478.2014.00684.x
JOURNAL OF LAW AND SOCIETY
VOLUME 41, NUMBER 4, DECEMBER 2014
ISSN: 0263-323X, pp. 523±50
Of `Landmark' or `Leading' Cases: Salomon's Challenge
Ernest Lim*
This article seeks to question the two dominant conceptions of `land-
mark' or `leading' cases in English legal scholarship, using the House
of Lords decision in Salomon v. Salomon Co Ltd. ± the most famous
case in corporate law ± as a case study. It argues that neither the first
dominant conception of `leading' or `landmark' cases, characterized
by the analysis of the intrinsic merits of a case, nor the second, which
looks at the historical contexts in which cases were decided, appears
sufficient by itself to determine whether a case is landmark or
canonical. Rather, we have to look at how the canonicity of a case is
constructed by subsequent courts. The article seeks to advance the
debate concerning the formation of landmark cases and aims to
challenge certain prevailing views on the canonicity of corporate law's
arguably most significant case.
INTRODUCTION
Scholars from different branches of law have been analysing the `landmark',
`leading' or `canonical'
1
cases in their respective fields. This has been a
source of contention and a subject of fascination: indeed, a central and
abiding research theme in common law scholarship concerns the exami-
nation of such cases. Simpson's Leading Cases in the Common Law
2
is a
523
*Faculty of Law, University of Hong Kong, 10/F, Cheng Yu Tung Tower,
Centennial Campus, Pok Fu Lam Road, Hong Kong
elimwk@hku.hk
Precious debts of gratitude are owed to St Jude Thaddeus for efficacious intercession, to
the three anonymous referees, and to John Lowry, Sarah Worthington, David Kershaw,
Lusina Ho, Marco Wan, Jolene Lin, Peter Chau, Thomas Cheng, and Peng Yin for very
helpful comments on earlier drafts. I would also like to thank Paddy Ireland and Allan
Hutchinson for sending me copies of their book chapters. All errors are mine alone.
1 The terms `canonical', `leading', and `landmark' are used interchangeably in this
article.
2 A.W.B. Simpson, Leading Cases in the Common Law (1995).
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
celebrated instance. Another example is Leading Cases of the Twentieth
Century.
3
More recent scholarship includes a series of four books on
Landmark Cases which contain contributions from scholars in areas such as
equity, tort, contract, and restitution.
4
Two dominant conceptions of `landmark', `leading' or `canonical' cases
are discernible from the schola rly literature. The first is ess entially
characterized by the analysis of the intrinsic merits of a case such as how
well-reasoned or significant a case is on the grounds of precedent, principle,
and rule. The second looks at the historical contexts in which the cases were
decided, in order to understand whether a case is canonical, or whether it can
be (better) explained by contextual variables such as politics, economics, or
culture.
5
But less seems to have been written on canonicity as a material
effect of subsequent and contingent judicial interpretation: that is, on the
vital role played by subsequent courts in constructing the canonicity of
cases.
6
This article fills this gap by using arguably the most significant and
524
3 E. O'Dell (ed.), Leading Cases of the Twentieth Century (2000).
4 C. Mitchell and P. Mitchell (eds.), Landmark Cases in Equity (2012); C. Mitchell
and P. Mitchell (eds.), Landmark Cases in the Law of Tort (2010); C. Mitchell and
P. Mitchell (eds.), Landmark Cases in the Law of Contract (2008); C. Mitchell and
P. Mitchell (eds.), Landmark Cases in the Law of Restitution (2006). On other areas
of law, see, for example, J.R. Macey (ed.), The Iconic Cases in Corporate Law
(2008) and P. Jackson (ed.), O. Hood Phillips' Leading Cases in Constitutional and
Administrative Law (1988).
5 See, for example, R. Danzig, `Hadley v Baxendale: A Study in the Industrialization of
the Law' (1975) 4 J. of Legal Studies 249, at 259±74; Simpson, op. cit., n. 2; S.
Watterson, `Carter v Boehm (1976)' in Mitchell and Mitchell, op. cit. (2008), n. 4, p.
60; D. Ibbetson, `Lamplugh v Brathwaite (1615)' and L. Smith, `Taylor v Plumer
(1815)' in Mitchell and Mitchell, op. cit. (2006), n. 4, pp. 1, 39. See, also, S.
Glazebrook, `What Makes a Leading Case? The Narrow Lens of the Law or a Wider
Perspective' (2010) 41 Victoria University of Wellington Law Rev. 339; J. Phillips,
`Why Legal History Matters' (2010) 41 Victoria University of Wellington Law Rev.
293. For a critical analysis of the different uses of history in legal scholarship, see
R.W. Gordon, `Historicism in Legal Scholarship' (1980) 90 Yale Law J. 1017. For an
overview of historical research in law, see D. Ibbetson, `Historical Research in Law'
in The Oxford Handbook of Legal Studies, eds. M. Tushnet and P. Cane (2005) 863.
6 The role of subsequent courts in extending the influence of cases is only very briefly
mentioned by Danzig, id, p. 276. A work that appears somewhat similar in approach
to this article, but in reality is very different, is D. Ibbetson, `George v Skivington'
(1869)' in Mitchell and Mitchell, op. cit. (2010), n. 4, pp. 84±93. Ibbetson explains
the divergent interpretations of this Court of Exchequer case by subsequent courts
and commentators, and notes that the reasoning in the case was finally vindicated by
a House of Lords decision twenty years later. But the purpose and methodology,
unlike the one in this article, are not to demonstrate how the canonicity of a
particular case is constructed by subsequent courts, and how a case was elevated to a
landmark status not because of its intrinsic merits or historical contexts, but because
of subsequent, contingent judicial reception. Instead, Ibbetson considered the case
`worth revisiting' because it sheds light on the problems concerning the proposition
for which the case stands, and seeks to link them to the problems with the law of
contract at the time the case was decided.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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