University of Toronto Law School Faculty Blog

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

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):

Do interveners matter? Under Chief Justice McLachlin the Supreme Court of Canada has allowed an average of 176 interventions per calendar year and interveners have cumulatively made submissions in half of the cases heard by the Court. This level of activity suggests that interveners are doing something. But what is it that they are doing?

In the abstract, there are at least three functions that the practice of intervention might perform. First, hearing from interveners might provide objectively useful information to the Court (i.e., interveners might promote the “accuracy” of the Court’s decision-making). A second possibility is that the practice of intervention allows interveners to provide the “best argument” for certain partisan interests that judges might want to “affiliate” with. A third possibility is that interventions are allowed mainly (if not only) so that intervening parties feel they have had their voices heard by the Court and by the greater public, including Parliament, regardless of the effect on the outcome of the appeal (i.e., the Court might be promoting the “acceptability” of its decisions by allowing for an outlet for expression).

It is disconcerting that until now the effects of interventions on the decision-making of the Supreme Court of Canada have not been systematically explored through empirical analysis. A growing body of literature has examined the role of amicus curiae at the Supreme Court of the United States. To date, however, the related literature in Canada is slim and, to the extent it exists, does not deploy the empirical methods necessary to test independently for the influence of interveners on the decisions of individual judges. This work fills this gap in the existing literature and expands our collective understanding of the consequences of the practice of intervention at Canada’s highest court. We find evidence that interveners matter more than many observers might expect.

This paper builds on a number of other writing projects we have done over the last little while analyzing the decision-making of the justices of the Court, including:

1. Policy Preference Change and Appointments to the Supreme Court of Canada (2009) 47(1) Osgoode Hall Law Journal 1;
2. Charter Decisions in the McLachlin Era: Consensus and Ideology at the Supreme Court of Canada (2009) 47 Supreme Court Law Review (2d) 475; and
3. Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada (2008) 58 University of New Brunswick Law Journal 73.

Profs. Trebilcock and Iacobucci - "Patent protection, the new mother of invention"

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.

Patents are essential to the modern system of innovation. Once produced, information can be transmitted at zero cost. In the absence of patent protection, would-be inventors become vulnerable to competition that would drive the value of their discovery to zero, leaving them with no compensation for the costs of producing that information in the first place. Patent protection allows inventors the benefit of limited competition for a limited time period, giving them an incentive to invest without concern about their innovation's appropriation by others.

Prof. Anita Anand - "Why macro is prudent"

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

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).

Prof. Shachar and The Birthright Lottery are also profiled in the Summer 2009 issue of the Faculty of Law magazine Nexus. Read the Nexus profile (PDF).

Copyright Collectives: Good Solution But for Which Problem?

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. 

I have recently completed a paper that offers a less enthusiastic account of this trend. The paper examines several types of collective administration and argues that with rare exceptions, the various justifications for collective administration are too weak to justify departure from the competitive paradigm that underlies market economies. It suggests that in most cases collusion and rent-seeking mainly drive the formation of copyright collectives, and suspects that only rarely such rent-seeking may be justified as a matter of policy, either as a way to improve the incentives to create socially valuable works or on distributional grounds. 

I presented an earlier draft of the paper at the NYU Engelberg Center's 2007 conference at La Pietra, Florence, and the revised version will appear as a book chapter in a forthcoming book: Working Within the Boundaries of Intellectual Property Law (Harry First, Rochelle Dreyfuss, and Diane Zimmerman, eds., Oxford University Press).  The paper can be freely downloaded from here.

Prof. Ed Morgan: A Terrorist on the Faculty?

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.

Prof. Ed Morgan: "An insidious cultural campaign"

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.

Prof. Mohammad Fadel on Family Pluralism

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. 

Prof. Jacob Ziegel writes: Mike Rosenberg Wins Strosberg Prize

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.

Mike was an excellent law student and will be clerking for Chief Justice McLachlin at the Supreme Court of Canada after he graduates this June. He has a very engaging personality, delights to debate and, according to those who know him, is a joy to teach. It is safe to predict that Mike has a very promising career ahead of him.

Warmest congratulations, Mike.

Jacob Ziegel

Prof. Mohammad Fadel - "President Obama Passes the Muslim Test"

I have written some very brief comments on President Obama’s speech yesterday in Cairo on the web page of patheos.com.  Essentially, I stated that Obama’s speech could genuinely represent an important break from U.S. policy towards the Islamic world in general and the Arab world in particular.  Clearly, one speech cannot change the world, but if Obama follows through with the ideas that he announced in yesterday’s speech, there may be renewed cause for optimism.

Read my full comments at:
http://www.patheos.com/Explore/Additional-Resources/Mohammad-Fadel.html

Mohammad Fadel