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Reform Needed in Selection System for Supreme Court Judges

Jacob Ziegel
Wednesday, September 17, 2008

This commentary was published in the National Post on September 11, 2008.

In the spring of this year, the government established an advisory committee to assess candidates to fill the vacancy left on the Supreme Court of Canada by the resignation of Justice Michel Bastarache. Unfortunately, the committee has fallen victim to infighting between government and opposition. The squabbling has been used as an excuse by the Prime Minister to bypass the committee altogether and to unilaterally nominate Justice Thomas Cromwell of the Nova Scotia Court of Appeal in a clear departure from the selection procedure announced by Justice Minister Rob Nicholls on May 28.

Even so, since the nomination must also run the scrutiny of yet another House of Commons committee -- which cannot be established till after the election-- it is clear that the vacancy on the Supreme Court will not be filled till late this year at the earliest, and probably not till early 2009. As Canada’s most senior court, with a heavy case load and awesome responsibilities, the court surely deserved better treatment. We are also entitled to ask: How could the selection procedure have become so distorted and what can be done to avoid the same thing happening in the future?

New Macleans Ranking of Canadian Law Schools

Benjamin Alarie
Thursday, September 11, 2008

The second annual Macleans ranking of Canadian law schools has been released.  Here are the rankings for the common law schools this year, as compared with last year:

Unreasonable Adoptive Mothers: Adding Insult to Injury

Brenda Cossman
Thursday, August 21, 2008

The Federal Court of Appeal has created a new creature.  She’s called the “reasonable adoptive mother”.  Apparently, this creature shouldn’t be demeaned in any way by the fact that biological mothers get almost four months more employment leave from work than adoptive mothers. 

According to the Court, the ‘reasonable adoptive mother’ would recognize that the “physiological and psychological experience resulting from pregnancy and childbirth make biological mothers more deserving of time with their new babies than adoptive mothers.  She would know that the Canadian government has considered her needs, and given her some time off work and given her some time off, so that she has “in no way been excluded from Canadian society”.  In its words, “the reasonable adoptive mother would not feel demeaned by the granting of the maternity benefits to biological mothers”.

Is Bigger Always Better? On Optimal Panel Size with Evidence from the Supreme Court of Canada

Benjamin Alarie
Wednesday, August 20, 2008

I have recently posted a new paper on SSRN entitled, Is Bigger Always Better? On Optimal Panel Size, with Evidence from the Supreme Court of Canada. It is work coauthored with Andrew Green and Ed Iacobucci.  In the paper we model how panel size should be determined by High Courts that provide for this kind of flexibility (and most do).  Our model supports the following predictions: (a) all else the same, more important appeals should be heard by larger panels; (b) all else the same, very easy and very difficult appeals should be heard by smaller panels; and (c) all else the same, appeals of intermediate difficulty should be heard by the largest panels.  We find that the predictions of our model are borne out by an analysis of the panel assignments at the Supreme Court of Canada from 1984-2005.

 

Substitution and Schumpeterian Effects Over the Lifecycle of Copyrighted Works

Ariel Katz
Monday, August 11, 2008

I have posted a new paper on SSRN.  The paper, titled Substitution and Schumpeterian Effects Over the Lifecycle of Copyrighted Works, develops the following two key insights. First, copyrighted works are affected by two types of competitive forces: substitutive competition and Schumpeterian competition. Second, the relevant magnitude of each of these competitive forces changes at various points over the lifecycle of copyrighted works. The earlier stages of a work's lifecycle are dominated by substitution effects, whereby many other works can function as very close substitutes. As the work develops to a full product, to which many other inputs have been added, it becomes less easily substitutable. This process intensifies as network effects of various kinds secure successful works' market position and render them less vulnerable to competition from close imitations. The competitive threat to which such works may be exposed becomes more Schumpeterian in nature: competition from other works which offer something new, and potentially preferable. Generally, copyright law unequivocally discourages merely substitutive competition, but is much less interested in discouraging Schumpeterian competition. This paper's time-based analysis provides both a justification to this distinction, as well as grounds to evaluating various existing rules and doctrines.

In France, A Quiet Revolution On Rights

Ian Lee
Monday, July 28, 2008

Droit3 France amended its constitution last week with the goal of "modernizing its institutions." Much of the media coverage has focused on the changes that affect the balance of power between the president and the Parliament, but an even more important change has received little notice: a new provision will allow individuals, for the first time, to assert their constitutional rights before French courts, and authorize courts to invalidate unconstitutional laws (New Art. 61-1  and amended Art. 62).

Inviting Trouble: The West May Come to Regret the International Criminal Court's Indictment of Sudanese President Omar al-Bashir

Ed Morgan
Thursday, July 17, 2008

Originally published in the National Post on Wednesday, July 16, 2008

The announcement that an indictment is pending against Sudanese President Omar al-Bashir has been greeted with enthusiasm in Western capitals. But international justice can be fickle. If the new international criminal court (ICC) doesn't show more responsibility than have similar institutions, the tables may soon turn on those applauding the loudest.

First the good news: The ruling clique in Sudan deserves all the condemnation the world can muster. The crimes perpetrated by the Khartoum government and the Janjaweed militia, which acts as its surrogate in the Darfur region, seem to beg for precisely this type of international prosecution. If, as ICC prosecutor Luis Moreno-Ocampo has said, "the decision to start the genocide was taken by Bashir personally," no rational observer should shed a tear over this particular defendant.

Rule Of Law Reform And Development

Wednesday, July 16, 2008

Prof. Michael Trebilcock and former dean Ron Daniels co-authored book "Rule Of Law Reform And Development: Charting the Fragile Path of Progress" has recently been published.
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"This important book addresses a number of key issues regarding the relationship between the rule of law and development. It presents a deep and insightful inquiry into the current orthodoxy that the rule of law is the panacea for the world’s problems. The authors chart the precarious progress of law reforms both in overall terms and in specific policy areas such as the judiciary, the police, tax administration and access to justice, among others. They accept that the rule of law is necessarily tied to the success of development, although they propose a set of procedural values to enlighten this institutional approach. The authors also recognize that states face difficulties in implementing this institutional structures and identify the probable impediments, before proposing a rethink of law reform strategies and offering some conclusions about the role of the international community in the rule of law reform.

Harper Should Seek Release of Khadr

Tuesday, July 15, 2008

Prof. Audrey Macklin has written a commentary in The Calgary Herald arguing that the Canadian government should seek to repatriate Canadian citizen Omar Khadr, currently detained at Guantanamo Bay, to Canada ("Harper should seek release of Khadr," July 12, 2008).

Read the full commentary.

 

Does Independence Matter?

Wednesday, July 9, 2008

Prof. Lorne Sossin has published an essay in the Literary Review of Canada entitled "Does Independence Matter? From Elections Canada to the nuclear watchdog, the Harper government seems to disagree" (July/August 2008). The essay analyzes the implications of the federal government's confrontational relationship with various independent public agencies, from Elections Canada to the Canadian Military Complaints Commission to the Canadian Nuclear Safety Commission.

Read the full essay on the Literary Review of Canada website.

 

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