University of Toronto Law School Faculty Blog

Universities and Copyright: Contrast and Compare

Originally posted on Prof. Katz's blog on Feb. 1, 2012.

On Monday evening, Access Copyright and the Universities of Western Ontario and Toronto announced that they have entered into a new licensing deal.  The UofT agreement is available below, and I was told that the terms of the agreement with Western are identical.

Although the joint media release announcing the deal was gleeful, as a UofT Faculty member I am disappointed and concerned.  The agreement is one big step backwards for UofT, and one giant leap for Access Copyright.  Access Copyright could not have hoped for more, and UofT lost an opportunity to stand up, show leadership, and ensure that copyright law will be used for the encouragement of learning and not for suppressing it.

Copthorne Holdings and the Future of the GAAR: January 6, 2012

On December 16, 2011, the Supreme Court of Canada released its much-anticipated decision in Copthorne Holdings Ltd. v. Canada, in which the Court considered the General Anti-Avoidance Rule (GAAR) for the fourth time.

In contrast to its previous GAAR decision in Lipson, the Court arrived at a unanimous decision in Copthorne, applying the GAAR to a number of transactions designed to preserve paid-up capital and redeem shares on a tax-free basis. In order to review the decision and its implications, the University of British Columbia’s National Centre for Business Law and the University of Toronto Faculty of Law are co-sponsoring a symposium on Copthorne Holdings Ltd. and the Future of the GAAR, which will be held at the University of Toronto Faculty of Law on the afternoon of Friday, January 6, 2012. 

Confirmed speakers include Ben Alarie (U of T Law), Hon. Donald G.H. Bowman (FMC Law and former Chief Justice of the Tax Court of Canada), Mark Brender (Osler), Robert Couzin (Couzin Taylor), David Duff (UBC Law), Tim Edgar (Osgoode Hall Law School), Phil Jolie (Canada Revenue Agency), and Deen Olsen (Department of Justice). Space is quite limited. Please go to http://www.copthorne.ca for registration information.

Prof. Ben Alarie on Appointing New Judges to the Supreme Court of Canada

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.

 

If Prime Minister Harper chooses to replace Justices Charron (ideal point of -0.21) and Binnie (ideal point of 0.36) with justices that are more or less consistent with his previous two appointees, Justices Rothstein (ideal point of -0.51) and Cromwell (ideal point of -0.39), then it is likely that the new median justice on the Court will be Justice Cromwell. This suggests that the median of the Court will shift from -0.05 (with Justice Abella as median) in this linear policy space to -0.39 (with Justice Cromwell). 

To those who express worry about the (probably overstated) prospect of the radical politicization of the Court, this analysis should be comforting, both for demonstrating the clustering of the current justices and also for showing that justices appointed by both Liberal and Conservative Prime Ministers are arrayed across the linear policy space. Moreover, it is worth observing that approximately 75% of the appeals decided by the Court under Chief Justice McLachlin have been decided unanimously, demonstrating the collegiality of decision-making at the Supreme Court of Canada. Besides, the policy preferences of justices shift from term to term and are difficult to predict, as Andrew Green and I have shown recently in an article published in the Osgoode Hall Law Journal, Policy Preference Change and Appointments to the Supreme Court of Canada.

 

Labor and the Future of the Egyptian Revolution

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.

Waiting for Godot: Foreign Aid in Haiti, by Kate Mikos and Mariana Prado

By Kate Mikos and Prof. Mariana Prado

Haiti is currently in the headlines again due to the ravages of a cholera epidemic that has hit citizens still reeling from a humanitarian disaster brought on by last year's earthquake, and has been compounded by hurricanes, floods, a problematic election and general unrest. Some Haitians have been pointing their fingers at the UN as the author of their latest misfortune, blaming foreign aid workers or peacekeepers for bringing cholera with them. At the same time, close to the scene, humanitarian workers, staff, doctors and nurses have been calling for more help from abroad as they survey the miserable conditions that Haitian citizens are forced to deal with after they have been "helped".

Frustration and anger are surely heightened by the fact that millions (or billions) of dollars of funding pledged in support of reconstruction is still sitting in the hands of foreign aid entities. One cannot help but think of the famous play by Beckett, Waiting for Godot. In the play, the two main characters try to entertain themselves while waiting for Godot, an acquaintance that never shows up. Despite agreeing at the end that they will no longer wait, neither of them leaves. Similarly, Haiti seems to be expectantly waiting for foreign aid, without knowing when and whether it will come.   

Prof. Jeffrey MacIntosh: "Systemic Fallacy"

The following first appeared in the National Post on November 23, 2010.

SYSTEMIC FALLACY

A national regulator wouldn’t have prevented the credit crisis

By Jeffrey MacIntosh

In its legal argument filed with the Quebec Court of Appeal, the federal government argues that securities regulation can and should address systemic (or economy-wide) risk — and that a national regulator would be better positioned to do this.

This hobgoblin is very much a latter-day addendum to the traditional apologia for securities regulation, which has always focused on investor protection and securities-market efficiency. What gave this new addition legs? Very simply, the credit crisis. The feds’ factum of legal argument states that “reducing systemic risk is an objective more informed by current experience.” Placing the blame for the economic downturn squarely on the shoulders of the securities regulators, the factum states that the crisis “illustrated a gap in regulatory oversight.” Moreover, “the dangers of systemic risk underscore the need for national, if not international regulation.” A national regulator, say the feds, would be better able to co-ordinate its activities with other federal institutions, such as the Bank of Canada and the Office of the Superintendent of Financial Institutions.

In fact, leading up to the credit crisis, securities regulators may well have failed in a number of respects, including failing to ensure the safety of asset (and especially mortgage) backed securities peddled by the investment banks and others; failing to ensure proper disclosure in relation to such securities; failing to police the activities of hedge funds adequately, particularly in relation to the sale of credit-default swaps; and failing to adequately regulate the rating agencies, which lent their imprimatur to the sale of hundreds of billions of dollars worth of ultimately worthless securities. As illustrated by the system-wide ripple effects that followed the collapse of investment banking giants Lehman Brothers and Bear Sterns, these failures played a material role in bringing about the crisis.

Prof. Ben Alarie on taxwiki.ca

An important experiment is beginning in documenting the administration and content of Canadian income tax law.  The experiment is called taxwiki.ca.  What is this experiment, and why is it necessary?

The Office of the Auditor General recently pointed out that there is insufficient accurate guidance being provided to Canadian taxpayers by the Canada Revenue Agency (CRA).  To support this claim, the Auditor General's report highlighted that the interpretation bulletins issued by the CRA are accessed frequently by Canadians (1.5 million times from April 2008 to March 2009) and that, “Most tax auditors and many tax practitioners told us that they begin their research into a legislative interpretation question with Income Tax Interpretation Bulletins as their source of guidance.” 

Obviously, then, the bulletins are an important source of tax information for taxpayers and their advisers.

An Open Letter to Benjamin Netanyahu: Please Stop Whining

Benjamin Netanyahu, I read your Gaza Flotilla speech you made the other day in Jerusalem. It was a bold speech, defiant. You explained that Israel has had no choice, that it acted in self defence—it always does—and you called on the world, accusing it of hypocrisy. I read it, and it saddened me deeply. Well, you may be right about the hypocrisy, but this is hardly new. Hypocrisy has always been, it will likely remain an integral feature of international relations (and surely we have had a fair share of it too). You tried to assertive, vindicating our nation's rights, but frankly, Benjamin Netanyahu, you were just whining.

Watch visitor Prof. Edward Altman and panel discuss the global credit meltdown

On March 3, 2010, the Faculty of Law hosted a discussion on "Current Conditions and Outlook in Global Credit Markets." Professor Edward Altman, of the Stern School of Business, New York University, gave a presentation, followed by a panel discussion with international and Toronto specialists in the field.

You can watch the entire event online, and read Prof. Altman's presentation.

• Watch the presentation and panel discussion
• Read Prof. Altman's presentation

Prof. Altman was also interviewed on BNN television about the current situation in global credit markets.

• Watch the interview on the BNN website

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.