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Appointing New Judges to the Supreme Court of Canada

Benjamin Alarie
Saturday, May 14, 2011

Justices Binnie and Charron announced on Friday, May 13, 2011 that they would be retiring from the Supreme Court of Canada. In order to better understand the likely effects of this on the implicit policy preferences of the members of the Court, I analyzed all the judgments of the Supreme Court of Canada under Chief Justice McLachlin from 2000 SCC 1 to 2011 SCC 20 using the method of Martin and Quinn (2002) that Andrew Green and I have used extensively in earlier work (see here, here, and here).

The updated estimates of the position of the justices in a linear policy space is illustrated below. With the exception of Justices Fish (more liberal) and Deschamps, Rothstein, and Cromwell (more conservative), the justices are tightly bunched in the middle. The current estimates suggest that Justice Abella is the median justice given the current composition of the Court, with an ideal point of -0.05.

Optimal Panel Size at the Supreme Court of Canada

Benjamin Alarie
Wednesday, May 11, 2011

I have posted a new draft of a paper addressing the optimal size of a panel to hear appeals. It is entitled, "On Optimal Panel Size, with Evidence from the Supreme Court of Canada." It is coauthored work with my colleagues Andrew Green and Ed Iacobucci. Here is the abstract:

The US Supreme Court typically sits en banc. Historically, the House of Lords in the UK sat in panels of five. Its new successor, the UK Supreme Court, now sits in panels of five, seven or nine justices. A similar practice has long been in place at the Supreme Court of Canada, which routinely sits in panels of .five, seven, or nine justices. We develop a formal model of the optimal choice of panel size. The model suggests that in the presence of scarce judicial resources, panel sizes can be deliberately adjusted to improve allocational e.fficiency. Using data from appeals heard by the Supreme Court of Canada from 1984-2005, we uncover evidence that the Court may be using varied panel sizes in a manner consistent with the predictions of our model.

Comments and suggestions are most welcome.

 

Copyright Dogma and the Denied Google Books Settlement

Ariel Katz
Monday, April 11, 2011

Last month Judge Chin denied the proposed Google Books Settlement (the Amended Settlement Agreement, or ASA). While I’m pleased with the outcome, I’m troubled with some aspects of the opinion.

Price Discrimination in Income Taxation

Benjamin Alarie
Saturday, March 26, 2011

I have posted a draft of a new working paper on SSRN. It is entitled, "Price Discrimination in Income Taxation: Defending Half-Hearted Anti-Avoidance" and is available for download now. Here is the abstract:

Governments throughout the developed world worry incessantly about the implications of sophisticated tax planning for their tax revenues. And yet the same governments routinely stop short of doing all that they can legally do to combat tax avoidance. Why? One response is that a thick conception of the rule of law constrains governments to adopt only certain kinds of responses to tax avoidance. Another response is that inherent structural limitations in tax administrative capacity or features of the political economy environment constrain the available responses to a subset of those that are possible de jure. Even considered jointly, however, the rule of law and political economy explanations do not provide an adequate account of the observed behavior of governments in the context of anti-avoidance. The main inadequacy is that the accounts fail to provide an explanation of the circumstances that will give rise to aggressive measures countering tax avoidance.

Labour and the Future of the Egyptian Revolution

Mohammad Fadel
Tuesday, March 1, 2011

ForeignPolicy.com’s Middle East Channel published my latest thoughts on Egypt’s labor movement and its role in Egypt’s future democracy.  The essential argument is that if Egyptians want to establish a successful democracy, they must establish a social democracy along the lines of the Scandinavian countries.  After 20 years of structural adjustment in which the gains from liberalization of trade and privatization of state-owned enterprises were limited to a relatively narrow sector of the Egyptian elite and investments in public goods such as education and health steadily declined, democratic stability will require a strong commitment to redistributionist policies.  Recognition of the rights of independent labor unions in Egypt is an essential step toward achieving this necessary social transformation.

 

Political Strikes are Not Illegal Strikes

Brian Langille
Wednesday, February 16, 2011

Last week many newspapers reported on a new development in the protests that have been focussing the world's attention upon Egypt. As the New York Times headline put it, "Protest in Egypt Takes New Turn as Workers Go on Strike". Reporters described how workers in myriad work places had decided to join the protest movement by going on strike. Workers at the Suez Canal, in textile factories, in government departments downed tools, sat in, picketed and otherwise brought normal productive activity to a halt. They did so for the purpose of making common cause with others seeking fundamental political change in their country. 

The Demands of the Egyptian January 25th Youth Movement

Mohammad Fadel
Monday, February 7, 2011

One of the most unexpected features of the ongoing revolution in Egypt, a/k/a "the January 25th Youth Movement," is its leadership, or more precisely, its apparent lack of leadership. Accordingly, some have dubbed it the "Facebook" or "Twitter" or more generically, the "Social Media" revolution.  In my view, however, this is not so much a leaderless revolution as it is one with a diffuse leadership.  Certainly, social media and other internet tools of communication enabled this revolution to organize and to reach critical mass.  This structure has not been able, thus far, to transform itself into a formal political interest group capable of managing the transition to a new regime.  As a result, older, more established political groups in Egypt have been given responsibility to negotiate with the regime.  But, what are the political demands of the January 25th Youth Movement?  I was able to find a communique dated February 4 on YouTube in the name of this movement setting forth its political demands.  While I have no way of confirming its accuracy, it has the air of authenticity and is certainly an articulate formulation of what the demands of the movement are, especially in light of what other media has reported. I have set out a translation of this communication below:

Translation of the Communique of the January 25th Youth

The Arab Demonstrations, the Sub-Prime Mortgage Crisis, and "Black Swans"

Mohammad Fadel
Thursday, February 3, 2011

This commentary was first published on the Foreign Policy magazine website on Feb. 2, 2011.

The nationwide decline in housing prices that began in 2006 was supposed to be, we were told, impossible. Because its impact was limited initially to the sub-prime mortgage market, which was a relatively small part of the overall home-mortgage market, policy makers at the Department of the Treasury and the Federal Reserve assured us that its effects would be contained. That prediction, we now know, turned out to be horribly wrong.    

So, too, the revolutions in Tunisia and Egypt were said to be impossible. Even after the shocking events of Tunisia, pundits were quick to deny their relevance to Egypt. Egypt was a much larger country; its population was less educated, less politically savvy, and too habitually passive to become revolutionary; moreover, Egypt's security service was much larger and tougher than those of Tunisia, and in any event the Egyptian military could be relied upon to come quickly to the aid of the regime in the event of any crisis. Indeed, some pundits were quick to dismiss Tunisians entirely from the Arab world.

Introducing the Canadian Securities Law Portal

Anita Anand
Tuesday, January 25, 2011

For several decades, various expert panels have examined the possibility of creating a national securities regulator in Canada. On May 26, 2010, the Government of Canada tabled for information in Parliament the proposed Canadian Securities Act, which would establish a Canadian securities regulator. The Attorney General of Canada concurrently referred the Act to the Supreme Court of Canada, asking whether the proposed Act is within the legislative authority of the Parliament of Canada. This case is set to be heard in April, 2011.

The newly-formed Canadian Securities Law Portal will serve as a vital hub of information about this complex issue. The Portal will address numerous questions concerning the ongoing battle for jurisdiction to regulate the Canadian securities markets, including: Does the Parliament of Canada have legislative authority to enact the proposed Act? Why is a Canadian Securities Regulator necessary? What legal structure will ultimately govern issuers, intermediaries, self-regulatory organizations, investors and other capital market stakeholders? Would the structure proposed under the Act be effective if implemented? What are its strengths and weaknesses?

Copthorne Holdings Panel Discussion, Thursday, January 27 at 6 p.m.

Benjamin Alarie
Wednesday, January 19, 2011

The Supreme Court of Canada will be hearing Copthorne Holdings Ltd. v. Her Majesty the Queen this coming Friday, January 21 at 9:30 a.m.  The appeal is concerned with interpreting various elements of the "general anti-avoidance rule" ("GAAR") of section 245 of the Income Tax Act.  

To seize the moment presented by the Copthorne Holdings appeal, the Tax Law Society at the Faculty of Law has arranged for an expert panel discussion of the issues raised by the appeal and the implications of the case for the GAAR more generally. The panel discussion will be held on Thursday, January 27 at 6:00 p.m. in the Bennett Lecture Hall at the University of Toronto Faculty of Law, which is located at 78 Queen's Park.

I will introduce the panel and provide some introductory background about the transactions and the judgment at the Federal Court of Appeal giving rise to the appeal to the Supreme Court of Canada.  Following this backgrounder, the discussion will be turned over to the panel members, each of whom will be given 10 minutes to speak, after which there will be an opportunity for questions from the floor. The distinguished panelists include:

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