University of Toronto Law School Faculty Blog

Congratulations to Prof. Ernie Weinrib

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

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.

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

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

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.

Bill C-10 - When funding becomes Censorship

There is a new censorship kafuffle in town. It’s Bill C-10, which will restrict tax credits to film and television productions deemed offensive and "contrary to public policy" by the Ministry of Heritage. The arts community is rightly up in arms, condemning the Bill as government censorship. But, the government, along with more than a few supporters, insists that this isn’t censorship. Artists are free to make art, they say, just not on the government’s tab.

So, just what is censorship, exactly?

A Malignant Vestige Of 'Tradition'

This commentary was first published in the National Post on December 14, 2007.

The tragic death of Aqsa Parvez has been on my mind incessantly since I heard the news that the Mississauga, Ont., teenager had been killed -- allegedly by her traditionally minded Muslim father. As a professor of Islamic law, I teach my students about its history, doctrines and modes of analysis. We shift back and forth from common law reasoning to Islamic doctrines. We analyze the differences between the values of the Islamic system and our own value commitments.

But then an extreme episode such as the death of Ms. Parvez arises, and we move beyond the academic exercises of the classroom to pangs of outrage and heartbreak.

One hopes that no religion would sanction the killing of a child. And, indeed, the Islamic tradition does not condone the crime Ms. Perez's father is alleged to have committed against his rebellious daughter. But is it possible that there's something in his Muslim faith that influenced him to act so outrageously?

What else do Canada and Israel have in common (copyright related)?

In my latest post I noted that Canada and Israel share a common copyright heritage. Here's a trivia question: What else, copyright related, do Canada and Israel have in common?

Answer below...

What Can Canada Learn from Israel about Copyright Reform?

A bill entitled Bill entitled "An Act to amend the Copyright Act" is likely to be handed down next week.  While the bill itself is probably drafted already, its content will be deliberated in Parliament.   Therefore, Canadian policymakers may wish to consider looking at the new copyright act which the Knesset, the Israeli parliament, passed last month (downloadable here, in Hebrew; English translation now available here).  There are at least two reasons to look at Israel's new act:  one is to consider the approach taken by the Israeli legislators to many copyright issues that are relevant to Canada.  A second reason is that despite the geographic distance, the two countries share a common copyright heritage.  Until last week, Israel's copyright law was principally based on the UK Copyright Act of 1911, the same statute after which Canada's first home-made copyright act was modeled in 1921. 

Why judicial independence matters

co-authored by Adam Dodek and Lorne Sossin

This commentary was first published on the Globe and Mail website on November 23, 2007.

Why should Canadians care about judicial independence? For one, history shows that a strong independent judiciary can be a bulwark against tyranny. Often, the first thing that an aspiring dictator does is attempt to neutralize the independence and effectiveness of the judiciary through harassment or corruption. Robert Mugabe's success to this effect in Zimbabwe is an unfortunate recent case study in the demise of judicial independence and its impact on society. Similarly, in Pakistan, where a stacked Supreme Court ruled yesterday to clear General Pervez Musharraf's path to re-election, Chief Justice Iftikhar Chaudhry and other members of the court had been confined to house arrest.

In Canada, we have been fortunate to have escaped such upheavals. However, we often look to the independence of the judiciary to resolve some of the most divisive and highest-profile issues of the day — through commissions of inquiry, invariably headed by a judge. We need only think of Gomery, Goudge, Arar, Walkerton, Air-India and now, of course, the Mulroney inquiry. In Canada, judicial independence is the collective constitutional capital that we frequently draw against to help bail us out of messy problems; we should not take it for granted.

Canada's New Terrorism Bills: Slow Down and Debate

Canadian Public Safety Minister Stockwell Day tabled new legislation in the House of Commons last Monday to allow British-style special advocates to play a role in security certificate cases that are used to detain and deport non-citizens suspected of involvement in terrorism. The bill responds to the Supreme Court of Canada's decision earlier this year that the existing legislation was unconstitutional.

On Tuesday the government tabled another bill in the Senate to revive investigative hearings and preventive arrests. These Criminal Code powers were introduced after 9/11 but expired in March, 2007 after the government failed to convince Parliament to renew them for three years. The government now proposes to include the powers in the Criminal Code, subject to a some changes and a 5 year renewable sunset.

Ontario 2007 Election

One way to analyze the Ontario election results is in terms of a decisive rejection of constitutional change by Ontarians.

Ontarians generally want their premiers and their governments to focus on the business of governing rather than on constitutional change.  Premier David Peterson was punished at the polls in 1990 in part for focussing on Meech Lake and Canadian unity and Premier Bob Rae often seemed more interested in constitutional issues like Charlottetown than the more mundane issues that capture the Tim Horton's crowd.  Somehow John Tory fell into a similar trap by daring even to raise the issue of funding for faith-based schools.  After the Supreme Court of Canada's 1996 Adler decision, the issue of funding for non-Catholic faith-based schools was transferred from the judicial to the political realm.  Most politicians knew well enough that religion and politics make for an incediary mix (see Bill Davis' extension of funding for Catholic schools in 1984 and Premier McGuinty's experience with Sharia law from 2004 and 2005) and were content to let the issue lie dormant.  Ultimately, Tory was unable to foresee let alone control the firestorm that he had sparked and he was punished at the polls as a result.

The second constitutional lesson from the election was about changing Ontario's electoral system.  This also went down to defeat in flames by almost a 2:1 margin.  I had thought that it would likely garner a majority of votes but nowhere near the 60% in 60% of Ontario's 107 ridings necessary for it to pass.  I was wrong because as a transplanted British Columbian I forgot that Ontarians generally are suspicious of big changes.  And changing the electoral systems is capital "C" constitutional change even if Ontario has no single document that is called The Constitution of Ontario (other provinces like BC do have constitutions . . .).

The most concerning aspect of the election constitutionally was the continued downward trend in voter participation: only about 52.8% of eligible voters bothered to cast a ballot (unoffical Elections Ontario numbers).  At some point, low voter participation risks creating a problem of democratic legitimacy for our electoral system and our governments.  Maybe then Ontarians will be more receptive to the consideration of changes to their constitutional structures.

Brian Leiter Revisits His Canadian Law School Rankings

Professor Brian Leiter, who designed Macleans ranking of Canadian Law Schools, responds to some of the comments about his methodology.  Follow the link: Brian Leiter's Law School Reports: Revisiting the Canadian Law School Rankings.

Lies, Damned Lies and Campaign Promises

Today, as the home stretch of Ontario's election campaign begins, Conservative leader John Tory announced that he will allow a free vote after all on his controversial proposal to extend public funding to faith based schools. Many will seize on the turnaround as evidence of a "broken promise" (Tory has earlier indicated he would not put the proposal to a free vote if elected on October 10th). Perhaps this is an example of Tory having to get cozy in a bed of his making. Much of Tory's campaign has emphasized Premier McGuinty's broken promises, including most notably his "no new taxes" pledge of the 2003 campaign and the Liberal's subsequent decision to impose a new tax (the "health premium").

This all raises the question –What is the nature of integrity, ethics and accountability in political campaigning?

Balanced Climate Policy, Made in Canada?

In a September 25 poll on its website, the Globe and Mail asked Canadians: “In terms of global warming, what approach do you favour? Strict adherence to the Kyoto Protocol? The 'more flexible' approach suggested by Prime Minister Harper? A compromise between those two positions? No action is needed because global warming is not happening?” The about 86000 respondents were almost equally divided between the first three options, with only 5 % opting for “no action.”

But are politicians and media providing the information that would allow Canadians to make these judgments?  Kyoto-bashing has become something of a national sport, a sport that Canadian media have fallen for hook, line and sinker.  The same goes for political slogans touting the need for a “made in Canada solution” or a “balanced approach” to climate change.  Why indeed favour a “flawed treaty”? And why resist such reasonableness as home-made balance?

Improving the Rankings

Ideally rankings should be based on aspects of law school performance that can garner wide acceptance and cannot easily be manipulated.  That is, for a law school to improve its position in the rankings, it should have to actually improve its performance as an institution.  The two main activities of a law school are research and teaching.  Therefore, in measuring the performance of law schools in order to rank them, the goal should be to measure research contributions and teaching effectiveness in an unbiased way.  This is not easy to do.

First, some ideas about improving the measure of "faculty quality." The Maclean's ranking measured "faculty quality" by determining the per capita number of citations to faculty work in the 33 Canadian law reviews found in the Quicklaw journals database.  This was intended to measure the "impact" of the research produced by members of each faculty.  One limitation of this measure is that it ignores important non-Canadian journals.  One way to improve this measure, then, would be to add a list of such journals to the 33 Canadian ones that are already included in the measure.  A (possibly) relatively uncontroversial way of compiling this list of "other journals" would be to include any electronically search-able academic journal that has published at least X articles (say, at least three in order to avoid the especially thin part of the distribution) in it by current faculty members at Canadian law schools.  This would probably not dramatically increase the number of academic journals included in the measure, but would result in a better targeted list of journals to scour for citations.  For example, it would pick up journals like the The New England Journal of Medicine, Oxford Journal of Legal Studies, Philosophy and Public Affairs, American Law and Economics Review, Modern Law Review, Law Quarterly Review, The Journal of Legal Studies, and an undetermined number of others.  I would also exclude self-citations from the measure, since including self-citation rewards self-promotion rather than true scholarly impact.  It might also be desirable to scale citations according to the quality of the journal that the citations appear in, though this would probably be very difficult to do without arousing considerable controversy (for this reason, I would probably avoid trying to do so).  My guess is that this extended list of academic journals would not dramatically affect the ordering of the law schools with respect to faculty quality, but it would at least counter the incentive that measuring only Canadian journals would have on decisions about where to publish one's research (and what to write about).

Why Rankings at All?

In two previous posts, I discussed the recent ranking of Canadian law schools in Maclean's magazine.  Before I make a post with my suggestions for improving the ranking methodology, however, I think it would be helpful to establish the spirit in which I will make these suggestions.  To set the stage, let me explain what I think are some of the legitimate roles of ranking systems.

The appropriate motivation behind constructing a ranking of anything, including law schools, I take it, is to systematically collect and analyze information about an array of elements in a way that provides some output that is meaningful for the users of the ranking.  Various ranking systems with meaningful output exist in other contexts.  ELO ratings in chess provide information about an individual's playing ability (and also information about a chess program's playing ability) by summarizing the relative performance of players in a more telling way that a pure Win-Loss-Draw tabulation.  It can do this because the ELO ranking system takes into account the playing ability of each player's opponents.  The World Golf Rankings provide rankings of golfers based on a player's performance over the past two years in certain golf tournaments.  For the golf rankings the points awarded for any given result is based on a combination of the strength of the tournament's field and its proximity in time (more remote results are given less weight).  Ranking systems are also in use in other sporting contexts, such as tennis, squash, (indeed most, perhaps all, racquet sports), bridge, etc.  There is some consensus, I believe, that in each context in which such rankings are used they are imperfect in that they are not perfect indicators of future performance.  But it does not follow from this that they are useless and should be abandoned.  To the extent that they are well-designed, and collect and summarize information that can be useful in predicting future performance, they are useful.  In a similar way, in the law school context a ranking methodology can be worthwhile if it has the practical effect of consolidating, summarizing, and brokering information about a range of institutions in a way that reduces noise, increases the availability of meaningful information about an institution's results, and predicts (albeit necessarily imperfectly) future results.

Maclean's Law School Rankings: Observations on Methodology

As mentioned in the previous post, the Maclean's ranking of Canadian law schools uses four elements to produce an overall ranking of Canadian law schools.  This ranking is based on:

• Faculty quality (50%)
• Student (more aptly graduate) quality (total of 50%)
  • elite firm hiring (25%)
  • national reach (15%)
  • Supreme Court Clerkship hiring (10%)

At this general level, it is difficult to quibble with the concept of assessing law schools on the basis of performance in faculty research and in teaching outputs.  Taking a closer look at how each of these four components is operationalized and measured, however, suggests a number of important limitations to the rankings.

Maclean's Law School Rankings

The September 24th edition of Maclean's magazine is going to have a feature story in which Canadian law schools are ranked according to a methodology that is "simple, transparent and relies entirely on public data."

Professor Brian Leiter, well known for his ranking of US law schools, was retained by Maclean's to assist in the design of the ranking.  The magazine's website has a brief discussion of the methodology, but the basic story is that 50% of the ranking is given to faculty research quality (as measured by citations of work in Canadian law reviews) and 50% of the ranking is based on student quality.  The student quality measure, in turn, is an amalgam of three measures: (i) "elite firm hiring"; (ii) "national reach" (15%); and (iii) "Supreme Court hiring" (10%).  The methodology seems reasonably sensible, albeit somewhat arbitrary (as any method of ranking law schools is apt to be). 

The key requirements of any such ranking of law schools to my mind are two-fold.  The first surrounds whether the ranking is attempting conceptually to capture the most important and relevant measures of law school performance (in all its facets).  It would not be surprising if reasonable people had different views as to what the "most important and relevant measures of law school performance" are, and I don't purport to know what they ought necessarily to be, though faculty quality and the success of graduates do appear to be quite reasonable selections at a conceptual level.  The second key requirement is whether, as the conceptual measures are operationalized, they are in fact capturing what they are purporting to capture.  I will have more to say about how well the methodology adopted for this ranking satisfies this second requirement in a post soon to follow this one (this evening or tomorrow morning).

The magazine has not provided on its website information on the overall rankings, but has provided information on each of four components going into the overall ranking.  Of course, some rudimentary Excel skills can rapidly convert these sub-indices into an overall ranking given the reported weights.

Without further ado, here are the results for Canada's common law schools.  (Caveat emptor: these are my own hasty calculations.)

UPDATE: I've been told by a reliable source that while these calculations are close, they are not spot on, because the overall ranking uses z-scores for each of the components rather than a weighted average of the ordinal rankings in each.

UPDATE 2: Here are the actually reported rankings:

Adam Sandler and the Politics of Same Sex Marriage

Adam Sandler’s new film I Now Pronounce You Chuck and Larry is causing quite a stir.   In the film, Chuck (Adam Sandler) and Larry (Kevin James) are New York fire fighters (it doesn’t get any more heroic) who enter into a sham gay marriage.  Although the film might not to be everyone's taste (typical Sandler slapstick comedy with lots of homophobic jokes thrown in for good measure), it may tell us alot about the politics of same sex marriage in America.

Why Canadians are right on Kyoto

This article appeared as an Op-Ed piece in the Toronto Star, Feb 4, 2007

As is so often the case, the Canadian public is far ahead of Canada’s politicians (especially those who “lead” by following public opinion polls).  Most Canadians, it seems, want Canada to meet its commitments under the Kyoto Protocol.  Well, they have it right.  They have it right from the standpoint of combating climate change. They have it right from the standpoint of international law. And they have it right from the standpoint of Canada’s standing in the world.

Goliath Wins Again

The David and Goliath story continues; Goliath is still winning.

Little Sister's Bookstore's protracted struggle with Canada Border Services Agency (CBSA) — formerly called Canada Customs — just keeps hitting the wall, thanks in large part to the Supreme Court Of Canada.

In its latest decision the Supreme Court last month refused to award Little Sister's with advance costs to fund its ongoing lawsuit over repeated seizures of its books by border cops.

It's not like the Supreme Court hasn't acknowledged that CBSA discriminates against Little Sister's. The seizures go back 20 years. In 2000 the Supreme Court told the agency in no uncertain terms to stop violating Little Sister's Charter rights by targeting lesbian and gay material. But the court upheld the border cops' censorship regime.

Has Adultery Come Back to Family Law?

Adultery is making a comeback.  It’s not that it ever really went away as a practice.  But, suddenly, everyone is talking about it.  Whether it’s the scarlet letter projected onto Belinda Stronach, named as the other woman in Tie Domi’s divorce, or the Supreme Court of Canada’s ruling in Leskun, it is even sneaking back into family law. 

The divorce revolution, with the move towards no-fault divorce, was supposed to banish adultery from legal relevance.  Couples got married, after a dozen or so years, had affairs, got divorced and remarried.  Adultery not only stopped being an irredeemable sin, but it was no longer to be used as a ground for divorce, or as a consideration in awarding spousal support or deciding child custody.  Like in a Woody Allen film, it increasingly came to be seen as a regrettable but necessary step on the road to serial monogamy.  Adultery lost its sense of moral outrage.   

But, with the push back from the divorce revolution and the culture of easy divorce that it has allegedly fostered, adultery is creeping back into the public mind.

More about income trusts

Two commonly invoked reasons for the new tax on income trust distributions are: (1) to ensure fairness (indeed, the government introduced the new tax as the centrepiece of a "Tax Fairness Plan"); and (2) to prevent impairment of the "competitiveness and productivity" of the Canadian economy that would result from greater recourse to the income trust structure by Canadian companies.

In this online opinion article, I take issue with these justifications for the new tax.

Dealing with Dual Citizenship

Professor Audrey Macklin wrote the following op ed that appeared in the Toronto Star today, titled "Dealing with Dual Citizenship".

Should dual citizens of Canada be entitled to the same treatment as other citizens? Prime Minister Stephen Harper wisely resisted calls to revise existing policy in the midst of the  evacuation of Canadians from Lebanon, but announced his government's intention to review Canadian practice now that the evacuation is nearing completion.

Among those who questioned the evacuation, explicit concerns centred on those Canadians in Lebanon who had been living in that country for many years and had more or less relinquished their physical connection to Canada.   

Some contended that Canada had no duty to evacuate these non-resident Canadians. Others insisted these Canadians at least ought to pay the government for the cost of evacuation.

The TTC Shutdown

The services provided by the Toronto Transit Commission (TTC) were interrupted for almost the entire day yesterday, May 29th.  This was a major headache for the hundreds of thousands of people who travel on the TTC each day, mostly to work and to school.  The city's residents awoke on Monday morning to news that the TTC was not running.  Most scrambled to find alternate means to get to work or school, relying on car pooling, bicycles, or walking.  Let's examine what the collective cost to the city's residents was, versus the stakes that precipitated the interruption.

Too Much 'Truthiness' in Judicial Activism Debate

Truthiness refers to “the quality of stating concepts or facts one wishes or believes to be true, rather than concepts or facts known to be true.”  It is an idea coined and popularized by political satirist Stephen Colbert on the first episode of The Colbert Report.  The American Dialect Society named in the 2005 Word of the Year, and the New York Times declared it one of nine words that captured the spirit of 2005.

Its spirit is surviving well into 2006.

Just look at debates about judicial activism.  Just look at the recent tempest in a teapot around Saskatchewan Conservative MP Maurice Vellacott's criticism of Chief Justice Beverly MacLaughlin.

Room in the Bed for Everyone

A few weeks ago, an odd thing appeared on the New York Times weddings page. There were three wedding announcements, but the same husband appeared in each one. It took a few moments for you to realize that it was actually an ad for the premiere of Big Love, HBO's new drama series on polygamy (which runs on The Movie Network in Ontario).

The series is created and produced by creative and romantic partners Mark V Olsen and Will Scheffer, two gay men who are rather obviously and provocatively riffing on the controversies around same-sex marriage.

The mock announcements nicely demonstrate the connection: the New York Times has been announcing gay and lesbian unions since 2002, two years before same-sex marriages were legal anywhere in the US. A wedding announcement in the New York Times is the ultimate sign of arrival, status writ large - even if there is nothing legal about it. The fake announcement of the three fictitious Big Love marriages played on the same gap between cultural and legal recognition.

Human Rights Reform in Ontario: A Time for Change

For over fifteen years, there has been a growing dissatisfaction with the human rights process in Ontario.  This dissatisfaction has been expressed by members of equity seeking communities, by human rights advocates and by lawyers practicing in the area of human rights. During that time, there have been four government-initiated reviews of human rights enforcement systems in Canada, one specifically directed at the Ontario legislation, one dealing with the very similar federal human rights complaint system, and two reviewing the systems in other provinces. Despite the fact that each of these reviews made very similar recommendations for reform of the human rights complaint process, to date no major reform has been undertaken in Ontario. That is, until now.

The Afghan Apostate Case: Issues of Law and Development

Recent events in the Muslim world have occupied front page news for weeks.  Between the violence generated by the cartoons depicting the Prophet Muhammad, and the recent capital case against the Afghan who converted from Islam to Christianity, questions about the nature and humanity of Islamic law loom large.  Each instance, however, seems to be a symptom of a larger problem: namely, defining what Sharia is and its place in modern constitutional society.