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Congratulations to Prof. Ernie Weinrib

Mayo Moran
Thursday, May 1, 2008

I'm delighted to report that Professor Ernie Weinrib has been elected a Foreign Honorary Member of the American Academy of Arts and Science.  The American Academy of Arts & Sciences is one of the United State's oldest and most prestigious honorary societies and independent policy research centers.   The current membership includes some 200 Nobel laureates and more than 60 Pulitzer Prize winners.  This election is a fitting tribute to Ernie's foundational work in legal theory and the incredible impact his scholarship has made on the world.  Please join me in congratulating Ernie on this outstanding accomplishment.

Read more.

 

Reasoning in Islamic and Jewish Legal History

Anver Emon
Tuesday, April 29, 2008

My colleague Professor Robert Gibbs (philosophy; dir. Jackman Humanities Institute) and I recently were awarded a grant to begin a 3 year project exploring reasoning in Islamic and Jewish law, and the implications of our findings for a philosophy of law more generally. I'd like to share our general proposal and methodological approach, and invite comments.

Our questions revolve around the general concern of the roles of reason and authority in interpreting and determining law in religious traditions. While the question of authority and reason arises in every legal culture, we propose to focus on these two traditions because of their explicit and extensive reflection on questions of reason, and in specific we will gain a sharper and in some ways more complex purchase on the questions by considering how jurists interwove resources that were intrinsically human, and so would be qualified as rational in their time, with both political and religious authority.

Earl Lipson, et al. v. Her Majesty the Queen, et al.

Benjamin Alarie
Tuesday, April 22, 2008

The Supreme Court of Canada will hear an appeal tomorrow in a case called Lipson v. Canada.  The appeal may prove to be a significant test of the efficacy of the so-called "general anti-avoidance rule" (the "GAAR") in combatting what is perceived to be abusive tax avoidance.

The Lipsons engaged in a series of transactions over two days in 1994 in which they made use of various rules, including the spousal rollover rule (section 73), the spousal attribution rule (section 74.1), and the back-to-back loans rule (subsection 20(3)), to transform what would otherwise have been non-deductible mortgage interest under paragraph 20(1)(c) into, they argue, deductible interest under paragraph 20(1)(c). 

The Lipsons have lost previously at the Tax Court of Canada and at the Federal Court of Appeal.  It is not at all obvious, however, that the Lipsons will lose at the Supreme Court of Canada.

The facts are as follows.

Canadian Law and Economics Association Annual Meeting - Call for Papers

Ariel Katz
Tuesday, April 22, 2008

The next Annual Meeting of the Canadian Law and Economics Association will be held on Sept. 26-27, 2008.  As usual, the meeting will be held at the Faculty of Law, University of Toronto.  More details and Call for Papers here.

 

Upcoming Conference: Developing Aboriginal Economies

Tuesday, April 22, 2008

On May 1, 2008, the University of Toronto Faculty of Law, in partnership with the Rt. Hon. Paul Martin, will be hosting a summit entitled “Developing Aboriginal Economies.”  The summit is a one-day symposium featuring two roundtables with a diverse group of panelists.  The goal of this summit is to provide a forum for new ideas and new approaches to economic development in Aboriginal communities.

Canada’s Aboriginal communities are extremely diverse, and so too is the range of economic challenges facing these communities.  The Faculty of Law recognizes that meeting the challenge of developing Aboriginal economies will require complex and multifaceted solutions.  Thus, the intention of this summit is not simply to generate ideas, but to bring together the parties needed to forge unique and useful coalitions.  With this in mind, our panelists include not only members of the bar and the Academy but also elected officials such as Ontario's Minister of Aboriginal Affairs, business persons, and Aboriginal people in their capacities as leaders, bankers, and heads of corporations.

For more information, including the program and registration, please visit:
http://www.law.utoronto.ca/conferences/aboriginaleconomies.html

 

Suicide Bombings: An Act to Amend the Criminal Code

Ed Morgan
Monday, April 14, 2008

Senator Jerahmiel Grafstein (Lib.) has recently introduced into Parliament a proposed amendment to the anti-terrorism provisions of the Criminal Code, Bill S-210, which is now before the Senate's Legal and Constitutional Affairs Committee. The Bill is a short and straightforward one, which provides:

Section 83.01 of the Criminal Code is amended by adding the following after subsection (1.1):

(1.2) For greater certainty, a suicide bombing comes within paragraphs (a) and (b) of the definition "terrorist activity" in subsection (1).

Although the point seems an obvious one, and, indeed, has been objected to by a number of MP's and senators on the grounds that it defines an act that is already covered by the Code's definition of "terrorist activity", the proposed amendment has merit. Criminal law has a public education and labelling function which will be advanced by this definitional statement. In addition, given that Canadian courts often look to international law and its institutional pronouncements on questions of interpretation, the amendment is necessary in order to avoid the interpretive pitfalls into which international human rights and United Nations bodies have fallen.

My brief to the Senate committee is attached.
Download SuicideBombingS210.pdf

 

Securities Law Needs More Enforcement, Not More Laws

Anita Anand
Monday, March 24, 2008

Originally posted on Lawyers Weekly: http://www.lawyersweekly.ca/index.php?section=article&articleid=640

Many commentators believe that securities law violations are under-enforced and under-prosecuted in Canada. But quite apart from securities regulatory enforcement, what is the role of the criminal law in the enforcement of financial crimes? Criminal prosecutions are necessary not simply as a supplement to the quasi-criminal jurisdiction of securities regulators, but as a first line in the enforcement of financial crimes. But criminal law has been virtually unused for this purpose even though the law on the books is wholly sufficient. This is because its enforcement and application is the “weak link” in the process.

Consider the purposes in Ontario’s Securities Act which are “to provide protection to investors from unfair, improper or fraudulent practices; and to foster fair and efficient capital markets and confidence in capital markets.” In the quasi-criminal context, where the securities commission pursues an enforcement action in provincial court, the commission is bound to adhere to these objectives and, when adjudicating the matter, the provincial court is similarly bound. So the objectives of securities law are generally prospective and preventative for capital markets.

Dunsmuir: Can the Standard of Review be Solved?

Lorne Sossin
Tuesday, March 18, 2008

On Friday, March 7, 2008, the Supreme Court released Dunsmuir v. New Brunswick (2008 SCC 9), a stark reversal of the last decade of administrative law jurisprudence on the issue of the standard of review. This decision seeks to quiet the steady drumbeat of criticism of the Court's Standard of Review jurisprudence while remaining true to the culture of deference. The centrepiece of the judgment is the collapsing of the standard of patent unreasonableness and the standard of reasonableness simpliciter into a single standard of reasonableness. While this move responds to the concern over arcane and artificial distinctions between shades of unreasonableness, it is unlikely to solve the standard of review dilemma, for the reasons explored below [note, a version of this comment was posted under the title "Dunsmuir: Plus ça change" with TheCourt.ca]

Bastarache and Lebel JJ., begin their majority reasons in Dunsmuir by throwing down the following gauntlet:

Collectivizing Rights; Privatizing Taxation: The Unarticulated Function of Copyright Collectives

Ariel Katz
Friday, March 14, 2008

The recent proposal from the Songwriters Association of Canada to fully legalize peer-to-peer file sharing of music by adding a $5 monthly charge to the cost of Internet access (and similar proposals floating south of the border) has brought renewed attention in the role of levies and tariffs collected by copyright collectives in Canada.  I am now beginning a research project that looks at the broader implications of the expansion of collective administration of copyrights and the use of levies and tariffs.  Since the topic is current, I thought I'd use the blog not only for sharing some of my initial thoughts, but hopefully, to solicit some ideas that will help me to shape them.  Therefore, I'm posting below the description of the project and the questions  it seeks to answer.  Comments on or off the blog will be highly appreciated.  Here it is:

Migrating Same Sex Marriages

Brenda Cossman
Wednesday, March 12, 2008

I have just posted a new article on SSRN entitled "Betwixt and Between Recognition: Migrating Same Sex Marriages and the Turn to the Private".   

The paper looks at some parallels  between conflict of laws cases and New York Times wedding annoucements in recognizing same sex marriage. Here is the abstract:

"The paper explores migrating same sex marriages - that is, same-sex marriages or civil unions entered in one jurisdiction that migrate to another and seek recognition, calling upon the private law of conflicts.

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