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Federal Judicial Appointments: Nothing Has Changed

Thursday, December 3, 2009

This article first appeared in The Lawyers' Weekly, November 20, 2009.

Some of us entertained a slender hope in 2006 that the Harper administration, after its election into office, could be persuaded not to use federal judicial appointments to feed the patronage mill. After all, as Opposition leader, Harper had fiercely denounced the Liberal party sponsorship scandal in Quebec and had promised to introduce an accountability act if the Conservatives won the next election. In a similar vein, Vic Toews, the future first justice minister in the Harper cabinet, endorsed a 2005 report of the House of Commons Justice Committee criticizing patronage appointments and calling for exclusively merit-based appointments. Toews was deputy chair of the committee.

Do Interventions at the Supreme Court of Canada Make a Difference?

Benjamin Alarie
Monday, November 2, 2009

Andrew Green and I have just posted a draft of a new paper to SSRN, Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance.  This is a work in progress that has been prepared for this Friday's Symposium on Interventions by the Asper Centre here at the Faculty of Law.  Here is the abstract to the draft paper (comments and suggestions are welcome):

Patent Protection, the New Mother of Invention

Michael Trebilcock
Wednesday, September 30, 2009

By Profs. Trebilcock and Iacobucci.

This commentary was first published on the Globe and Mail website on September 22, 2009.

After years of effort, a Toronto startup company called i4i invented an important piece of technology to dramatically enhance software programs, such as Microsoft Word. Recognizing its potential, i4i obtained a U.S. patent to protect, and hopefully prosper from, the invention. The company also began marketing the technology as a separate product that worked with Word. A Texas court ruled last month that in 2003, Microsoft began to bundle i4i's patented technology in its dominant software without i4i's knowledge or consent. The smaller company was successful in establishing willful patent infringement, winning damages for the past and an injunction to protect i4i in the future. Microsoft strongly objects to these remedies, arguing at trial that i4i is analogous to a banker seeking a bailout. This analogy is entirely inapposite, and the remedy the court awarded is entirely appropriate in light of its finding of infringement.

Why Macro is Prudent

Anita Anand
Thursday, September 24, 2009

This commentary was first published in the Financial Post on September 23, 2009.

The G20 leaders meet today in Pittsburgh. While macroprudential regulation is likely to be on the agenda, countries continue to wrestle with how, if at all, this concept fits within existing legal frameworks and indeed whether new regulators or committees will be created in each country. But, taking a step back, what does "macroprudential regulation" mean? Should Canada proceed down this road? If so, how?

Macroprudential regulation focuses on the financial system as a whole, seeking to minimize system-wide distress in order to avoid reductions in aggregate output (GDP). This is unlike microprudential regulation which seeks to minimize distress in individual institutions in order to protect depositors. Macroprudential regulation focuses on common exposures across financial systems and institutions rather than the entity-specific focus of microprudential regulation.

Discussion of Prof. Ayelet Shachar's New Book

Monday, August 17, 2009

As noted in an earlier post, Prof. Ayelet Shachar recently published her latest book, The Birthright Lottery. It has received a considerable amount of attention.

A story on the front page of the "Insight" section of the Saturday Toronto Star ("Born lucky? Then pay for it," May 2, 2009) discussed Prof. Shachar's book and proposals in detail, and concluded that "Shachar has raised the bar on the discussion of equality." Read the full article on the Toronto Star website.

It was also the subject of a feature review by Andrew Coyne in the July/August 2009 issue of the Literary Review of Canada (LRC).

Prof. Shachar's work has also been profiled in the Spring 2009 issue of Edge, the magazine about research at the University of Toronto. Read the Edge profile (PDF).

Copyright Collectives: Good Solution But for Which Problem?

Ariel Katz
Friday, August 14, 2009

With the Public Copyright Consultations moving full steam ahead, various stake-holders raise proposals for expanding the scope of collective administration of copyright.  This trend is not new.  Over the past two decades or so, collective administration of copyright has been touted as a solution to many of the ills of the copyright system and to many of the legal challenges brought about by the encounter between copyrights and the digital realm. It has been viewed as the magic bullet that bridges the unfortunate trade-off between incentive and access; a mechanism that allows both rewarding creators and unfettered access to works. And indeed, while not at all a new phenomenon - music performing rights have been administered collectively in many countries for most of the 20th century - collective administration has recently proliferated across many other areas of copyright, often with enthusiasm. 

A Terrorist on the Faculty?

Ed Morgan
Monday, August 10, 2009

Cross-posted from www.NewMajority.com (first published July 31, 2009)

The Middle East dispute may seem interminable, but its shadow conflict – the one being waged on university campuses – appears every bit as complex and insoluble.

The latest round in Canada involves Hassan Diab, an Ottawa-based lecturer who for a number of years has had a part time appointment teaching Introduction to Sociology at Carleton University’s summer program. French authorities have asked for his extradition from Canada, accusing him of being the Popular Front for the Liberation of Palestine terrorist that blew up a Paris synagogue in 1980. Four people died in the bombing on Rue Copernic, and the incident signaled a wave of attacks against Jewish targets that brought the ongoing Israeli-Arab fight home to European Jews in a startlingly new way.

In November 2007, French authorities, acting on information supplied by German intelligence and gleaned from the files of the old East German Stasi, put out a warrant for the arrest of a Lebanese-born PFLP operative named Hassan Diab. In October 2008, the fugitive was identified as the Ottawa academic and he has been fighting against extradition in the Canadian courts ever since.

An Insidious Cultural Campaign

Ed Morgan
Tuesday, July 21, 2009

This commentary by Prof. Ed Morgan was first published in the National Post on July 2, 2009.

The Dead Sea Scrolls, which are being exhibited this week at the Royal Ontario Museum (ROM), have survived time, weather, sand--and now the political storm caused by protests at their being toured by the Israel Museum, which houses the scrolls in Jerusalem.

Opponents of the exhibit include the Palestinian Minister of Tourism and Canadian solidarity groups supporting the Palestinian cause. They accuse the Israel Museum of having taken the scrolls from the Jordanian Department of Antiquities upon Israel's occupation of East Jerusalem and the West Bank in 1967. Israel's actions are alleged to be contrary to international conventions protecting cultural artifacts and prohibiting their removal.

The ROM is right to stare down the protests.

In the first place, prior to 1967, the part of the West Bank in which the scrolls were discovered was illegally occupied by the Kingdom of Jordan -- an occupation condemned by virtually every existing international organization, including the Arab League and the Palestinian Liberation Organization. If one doesn't like Israel's current possession of the scrolls because of Israel's occupation of the territory from which they come, one cannot possibly like the Jordanian claim any better.

Family Pluralism

Mohammad Fadel
Thursday, July 2, 2009

I have recently posted a draft of a chapter to be published in a forthcoming work on family law pluralism (Marriage and Divorce in a Multicultural Context: Reconsidering the Boundaries of Civil Law and Religion, Joel A. Nichols, ed., Cambridge University Press, Forthcoming 2010) to my ssrn page (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1421978).  Against the background of the controversy engendered by the proposal in Ontario by some Muslims to use the Ontario Arbitration Act to resolve family law disputes among Muslims using binding arbitration, I have attempted to lay out an argument as to why a liberal system of family law - at least one that is committed to a version of political liberalism - is required to recognize at least a limited amount of autonomy within the family, and to that extent, it cannot have a categorical objection to the recognition of binding family law arbitrations, at least to the extent that it would otherwise recognize and enforce private agreements within the family (whether pre-nuptial agreements or separation agreements) of the parties to the arbitration. 

Mike Rosenberg Wins Strosberg Prize

Monday, June 8, 2009

Students and Faculty members will be delighted to learn that Mike Rosenberg, JD III, has won this year's prestigious Harvey Strosberg prize, worth ten thousand dollars, awarded each year for the best student paper on a class action topic. The paper will be published in the Canadian Class Action Law Review under the title of "The Rise and Imminent Fall of Waiver of Tort in Class Proceedings."

The paper began its career as a term paper in the Class Actions course offered by Professors Ziegel and Watson in the spring term of 2008. Mike continued to work on the paper last summer while working at McCarthys, then refined it further while taking Prof Ernest Weinrib's restitution course in the fall 2008 term. The topic is of great practical and theoretical importance in class action proceedings  and is currently being litigated before Canadian courts. The debate will determine whether class members will have a remedy against a defendant whose product is  defective or injurious even though  class members cannot prove that they were individually injured by the defect. The plaintiffs have sought to overcome this difficulty  by arguing that the defendant was unjustly enriched at the expense of class members and should therefore be required to disgorge its ill gotten gain.

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