University of Toronto Law School Faculty Blog

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

Prof. Ed Morgan - "It's a legal maze for Canadian authorities abroad"

This commentary by Prof. Ed Morgan was first published in The Globe and Mail on May 27, 2009.

Canadians may be surprised to learn a few things about our constitutional law.

First, the military owes no duty toward detainees arrested by us and turned over to a foreign state for custody.

Second, our intelligence service does owe a duty toward prisoners taken into custody by a foreign state and turned over to us for interrogation.

Third, our diplomats are obliged to intervene with a foreign legal system that fails to live up to our domestic standards of punishment.

And fourth, our police are free to comply with a foreign legal system that fails to live up to our domestic standards of search and seizure.

When it comes to the powers of the Canadian government abroad, each new court ruling makes us wonder if the judges took the time to read the last one. How did this confused state of affairs come to be?

DLS Executive Director Judith McCormack - "When poverty becomes respectable"

Judith McCormack is the executive director of Downtown Legal Services, the community legal clinic of the University of Toronto Faculty of Law.

First published in the Toronto Star on May 17, 2009.

As painful as the current economic crisis may be, it does at least provide us with some valuable insights.

Now that the threat of poverty has suddenly landed on the doorsteps of so many ordinary, hard-working people, it forces us to see this particular problem in a new and clear-eyed way. In fact, many of the myths about poverty have gone up in smoke, much like Bernard Madoff's investments.

Try as we might to cling to the outdated idea that poor people are lazy or dependent, we're now face to face with the evidence that layoffs, economic restructuring and market forces can quickly push any of us into dire straits.

We've lost our ability to pretend that poor people are "them." Alas, it turns out they could be us, or our neighbours, friends and relatives.

This uncomfortable revelation has the effect of highlighting the ways in which we normally stigmatize the poor, and the punitive nature of our social policies toward them.

Ed Morgan - "In Yellowknife, language rights go back on the menu"

First published in the Globe and Mail, April 21, 2009.

In taking on the chef who runs the famed Wildcat Cafe, Yellowknife's city council appears to have concocted a recipe for bringing Quebec-style language politics to the Northwest Territories. In the process, it has given us the basis for a constitutional crise du jour.

The iconic eatery in Yellowknife's Old Town sports a log cabin veneer, rough wooden benches and floors, and a pedigree that harks back to the 1930s prospectors who founded it and the miners and bush pilots who made it a frontier landmark. The building was designated a heritage site in the early 1990s and it has been leased out by a municipal committee to licensed operators since reopening as a popular tourist destination in the late 1970s.

Book Launch and Panel Discussion: Parliamentary Democracy in Crisis - Live Webcast

The David Asper Centre for Constitutional Rights will be hosting a book launch for the new book Parliamentary Democracy in Crisis: The Dilemmas, Choices and Future of Parliamentary Government in Canada on Tuesday April 21 at 4:30 pm.

The book launch will include a panel discussion on the future of Canada's democracy: lessons learned and where to we go from here.  This is the third in the series on the topic and celebrates the book that came out of our December 5th event on the Governor General's decision to prorogue Parliament. Panelists include Peter Hogg, Michael Valpy, David Cameron and Barbara Cameron.

The event will be webcast live starting shortly after 4:30 pm.

Click here April 21 at 4:30 to watch the webcast.

Click here to find out more about the event.

Click here to find out more about and purchase the book.

Alarie: Charter Decisions in the McLachlin Era

Andrew Green and I have just posted a new paper on SSRN in which we analyze 105 Charter decisions of the Supreme Court of Canada.  Here's the abstract:

This paper examines how justices on the Supreme Court of Canada voted in Charter appeals between 2000 and 2009. Charter appeals, at least in popular belief (and possibly also in theory), have the greatest potential to reveal voting that is influenced by extra-legal policy preferences. Confining the analysis to the time during which Chief Justice McLachlin has led the Court aids in controlling for the effects of a particular Chief Justice in assessing the roles of ideology and consensus.

Several of the Court's members have exhibited sharply different voting proclivities in s.15 (equality rights) appeals as compared with Charter claims made in the context of criminal law appeals (and, indeed, other Charter appeals). This finding suggests that at least some of the justices on the Court have been influenced by policy preferences on at least some occasions in discrete areas of Charter rights adjudication. On the other hand, it also suggests that judicial policy preferences are richer and significantly more nuanced than can adequately be captured by a simple "right"-"left" or "conservative"-"liberal" characterization of these policy preferences. The paper discusses a number of implications of the analysis and findings.

Here is one of the graphics from the paper, showing estimated ideal points of the justices overall, in equality cases, and in criminal appeals featuring a Charter rights violation.  (The ideal point distributions were calculated using the Martin-Quinn method popularized in the study of the policy preferences of the justices of the US Supreme Court):

It is particularly interesting to note that although Justice Major and Chief Justice McLachlin are both in the centre of the distributions when all Charter appeals are considered together, Justice Major is an accidental centrist in that he is quite amenable to finding Charter rights violations in criminal appeals and disinclined to find in favour of claimants in equality rights appeals.  Chief Justice McLachlin, on the other hand, is firmly planted in the centre with respect to each of the areas we examined.

Follow the download link at this page to access the full-text in pdf (and to have a look at some more revealing graphics).

Prof. Ayelet Shachar's new book, The Birthright Lottery

Prof. Ayelet Shachar's new book, The Birthright Lottery, has been published by Harvard University Press.

From the publisher:

The vast majority of the global population acquires citizenship purely by accidental circumstances of birth. There is little doubt that securing membership status in a given state bequeaths to some a world filled with opportunity and condemns others to a life with little hope. Gaining privileges by such arbitrary criteria as one’s birthplace is discredited in virtually all fields of public life, yet birthright entitlements still dominate our laws when it comes to allotting membership in a state.

In The Birthright Lottery, Ayelet Shachar argues that birthright citizenship in an affluent society can be thought of as a form of property inheritance: that is, a valuable entitlement transmitted by law to a restricted group of recipients under conditions that perpetuate the transfer of this prerogative to their heirs. She deploys this fresh perspective to establish that nations need to expand their membership boundaries beyond outdated notions of blood-and-soil in sculpting the body politic. Located at the intersection of law, economics, and political philosophy, The Birthright Lottery further advocates redistributional obligations on those benefiting from the inheritance of membership, with the aim of ameliorating its most glaring opportunity inequalities.

• See the publisher's web page
• Buy the book on Amazon.com
• Read an exerpt from the book (PDF) 

Michael Trebilcock - "Wind power is a complete disaster"

This commentary was first published in the Financial Post on April 9, 2009.

There is no evidence that industrial wind power is likely to have a significant impact on carbon emissions. The European experience is instructive. Denmark, the world's most wind-intensive nation, with more than 6,000 turbines generating 19% of its electricity, has yet to close a single fossil-fuel plant. It requires 50% more coal-generated electricity to cover wind power's unpredictability, and pollution and carbon dioxide emissions have risen (by 36% in 2006 alone).

Flemming Nissen, the head of development at West Danish generating company ELSAM (one of Denmark's largest energy utilities) tells us that "wind turbines do not reduce carbon dioxide emissions." The German experience is no different. Der Spiegel reports that "Germany's CO2 emissions haven't been reduced by even a single gram," and additional coal-and gas-fired plants have been constructed to ensure reliable delivery.