University of Alberta Faculty of Law Blog

Reason TV interview with Rand's biographer

Jennifer Burns who has written a biography of Ayn Rand is being interviewed here on Reason TV:

h/t Josh who will be interviewing Anne C. Heller next week on his blog.

The Most Insignificant US Justice

The Article cited in the piece is David P. Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 U. Chi. L. Rev. 466 (1983). Judge Easterbrook's reply is here.

Question for you Canadian legal historians: who would be Canada's most insignificant justice of the Supreme Court?

Marc Dreier’s downfall

The story of Marc Dreier should serve as a cautionary tale for all lawyers, who let their personal ambitions get in the way of their otherwise gift for the law.

At one stage, he had one of the primo law firms in New York City. I even recall, when one of my classmates told me she had landed there how, excited I was for her. Fast forward a few years later, and it all came tumbling down.  The Canadian connection, of course, is also fascinating, because what would the world be without some Canadian content.

Larry Summers Profiled

Vanity Fair has an excellent profile of economist, former President of Harvard University, and current head of the White House's National Economic Council.

The profile covers his childhood, mariage, education, and, his tenure during the Clinton era. His Harvard presidency is also covered, but the story is more about Summers the person, including his bout with cancer early on.

One tidbit I found fascinating: he is related to Economists and Nobel Laureautes Paul Samuelson and Kenneth Arrow. That is quite the lineage!

Quick Links

That was quick, and DC court revives cell-phone lawsuit. Also, Don't harass a judge just because you don't like his rulings.   If you are an associate at a law firm, you may also not want to start a fire at a 9/11 memorial. Associates should also keep away from insider trading. [only charges have been laid, no guilt has been found yet]

Just how common is insider trading by lawyers? LB has some discussion plus some observations on the nature of the investigations surrounding this last case.

On the other hand, if you are sentenced to community service and you work at a jerk-chicken store, serving the courtroom with a tray of chicken may count as your service.

If you were a woman in 1938 and applied to Walt Disney for a job as a cartoonist, you would have received this reply back (h/t Settle it Now).

Finally, is Yoga a spiritual endeavor, and hence tax-exempt, or a sporting endeavor and hence taxable? Guess which way some cash-strapped states are going.

Malicious Prosecution at SCOTUS

In Canada, we recently had some jurisprudence develop in the area of malicious prosecution. In the US, the rule of prosecutorial immunity has been rock solid in the past. The US Supreme Court, however, will get a chance to examine the question in light some extreme facts. Interestingly enough, for me anyways, is the role reversal of the attorneys arguing the case. On the states' side is Deputy US Solicitor Neal Katyal, who scored a victory last year for Gitmo detainees, while arguing for the wrongly convicted plaintiffs is former US Solicitor Paul Clement, who argued the losing side against Katyal.

Update The Supreme Court just released its judgment Miazga v. Kvello Estate, 2009 SCC 51. I don't have time to review it, but the headnote says it all:

The Action should be dismissed [plaintiff loses]

To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was:  (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect. 

Law Firm Bonuses

It is law firm bonus season in the US. While many are expecting bonus levels to be much lower than prior years, no one expected them to be this ridiculous.

Mike Huckabee

Mike Huckabee, former GOP Presedential nomination candidate, is coming to Calgary on December 6, 2009. Call 403-720-2143 Ext. 3 for tickets.

 

I have no stake in this event nor am I endorsing his line of thinking; I just thought some of our readers may be interested.

Arizona court officers caught snooping

A story from Maricopa County:

Arizona Defense Attorney Joanne Cuccia was in court at the podium arguing on behalf of her client during a sentencing hearing when that client, Antonio Lozano, noticed two detention officers pilfering a document from Cuccia's fies behind her back. The incident, captured on video, interrupted the hearing, enraged defense attorneys and, unbelievably, spurred the Maricopa County Sheriff's Office to defend the officers' actions.

Duty to Rescue

Under the common law, there is no duty to rescue. Even the statutory requirements to rescue are usually reserved for professionals, such as doctors. Eugene Volokh has compiled a list of states that have imposed the duty to rescue statutorily. Are there Canadian equivalents (i.e. I am too lazy to look)?

Hawkins, big bang, and UofA

Congratulations to UofA Physics' Don Page for receiving the Killam Annual Professorship. In addition to being super-smart and winning bets with Stephen Hawking (under whom he did his post-doc), he is an active community member and a devout Christian. I have had the pleasure of meeting Professor Page at an interfaith event, and I can attest to what a wonderful guy he is. Congratulations once again.

Cartman or Walken

Who does a better job of covering Lady Gaga's Poker Face - South Park's Cartman or Christopher Walken? Listen and vote over at Josh Blackman 's blog. 

Also if you are an academic on the job market this year, here are some questions you 'should' ask the recruiting committee. OK - maybe only ask after you have one job in the bag.

Hong Kong Glitters... but it's not all Gold

It is quite easy to see the wealth in Hong Kong -- epic skyscrapers, fancy cars, Central with its Versace, Gucci and Prada. Poverty on the other hand may be a little more hidden away, inside what may appear to be an ordinary apartment block. 

CNN recently went inside: http://www.cnn.com/2009/WORLD/asiapcf/10/28/cage.homes/

If a Bruce Cockburn Falls in a Forest

A fellow blogger has been on my case about posting something interesting.  However, essay season is upon us, so HERE IS A LITTLE EXCERPT FROM A FIRST DRAFT; I cannot speak to the grammar or the veracity of what is contained herein, nor can I assure you that it is interesting.  N.B. If this post seems somewhat reminiscent S. Elgie's brilliant article, it is because my paper will go on to criticize it (hopefully with some merit).

--------------------------

To understand the ends at which an environmental tort judgement is aimed, one must first understand the function of ascribing a monetary value to the harm that a tortfeasor has occasioned. In principle, a judgement functions to place the full social cost on the entity that caused the damages in question.¹ Applied in an environmental context, this is known as the polluter pays principle. Indeed, as ____ Ashford asserts, the “polluter pays principle incorporates a moral judgement by placing responsiblity for cessation of pollution (and for any necessary clean-up) on the polluter.”² A judgement, in effect, internalizes an economic agent's social costs.

The concept of a social costs originates with the economist Arthur Pigou. Although his classic work Wealth and Welfare identified the differences between social and private costs – the former being borne by society and the latter being borne monetarily by a given economic agent – Pigou did not extend his reasoning to tort law; instead, he confined his reasoning to taxation.³ R. Posner, however, notes there Pigou's idea, namely a Pigouvian tax, forms the direct antecedent to the modern economic approach to tort law.⁴

As with the SCC's decision in BC v. Canfor, the economic goal of tort law is to correct for these market externalities. Generally, an externality is a social cost that is not captured in a market transaction.⁵ Stagl has written that “[m]any of the thing individuals care about [...] are not traded in markets [...] missing markets are very common in regard to the services that the environment provides to economic activity.”⁶ In the BC v. Canfor decision, for example, some of the costs not captured by market prices would include the biodiversity lost as trees are cut, the trees' function as a carbon sink, and diminution in the quality of the watershed. Often times, aspects of economic exchanges are not priced and captured within the market – these are a market failures.⁷ As Nobel Laureate Joseph Stiglitz notes, market economies and centrally planned economies have both historically had great trouble dealing with these externalities.⁸

How, then, does a Pigouvian tax (namely, in this case, a tort judgement) function to correct a market externality? Where a cost is not captured in a market, it has a non-market valuation: there exists a latent curve that perhaps “can be teased out through other means.”⁹ As the graph above demonstrates, there is a gap between marginal private cost (MPC) and marginal social cost (MSC). This is known as a marginal external cost – the price of an externality.¹⁰ In the absence of a price for environmentally deleterious behavior, the market will yield an output were the supply and demand curves intersect. However, once a tort suit or tax is in place, the cost of environmental degradation now exists for the producer, shifting the marginal private cost (MPC) up to the marginal social cost (MSC), at least if the tax or tort suit were priced correctly such that the cost to the producer accurately reflects the true social cost of the activity – this was the goal of the majority in BC v. Canfor. Indeed, accurately gauging the marginal external cost of an environmentally deleterious act is the mark at which an economist would aim.¹¹

1Calabresi, 505

2Ashford, 175

3Landes and Posner, p. 6

4Landes and Posner, p. 6

5Ashford 130

6Stagl, p.322

7Davidson 100

8Stiglitz, 517

9hanemann, 38

10Stagl, p. 329

11Stagl, 329

Rand-about

There's a new biography about Ayn Rand, and just in time for Christmas (do Randians celebrate Christmas?). Says the reviewer:

I find it hard to think of Objectivism as very objective at all—it looks more like a rational program retrofitted to a lifelong temperament, a fantasy world created to cancel the nightmare of a terrifying childhood. This is the comedy, the tragedy, and the power of Rand: She built a glorious imaginary empire on that nuclear-grade temperament, then devoted every ounce of her will and intelligence to proving it was all pure reason.

It appears her legacy still generates mixed opinions. But this may be just the beginning of a new resurgence in interest. After all, Atlas Shrugged  the movie is still on track to be released in 2011.

You've got to hide your wig away

The UK is adapting to its new supreme court. Quoth one observer: "One thing to be said against our old system was no one understood how it worked."

A good day for the law. Our very common law.

It's been said that the British Empire, for all its glory, in the end bequeathed the world two lasting goods: the common law and "F*ck off."

Both were prominently on display for your intrepid blogger last month at London's Old Bailey.

"To be clear, Mr. S" began defence counsel, "you didn't only tell my client to 'eff' off, did you? In fact, you told him to 'F*ck off', isn’t that right?"

As I recall, at the witness’s grudging admission, His Lordship, possibly rehearsing his charge to the jury, repeated the phrase as he wrote in his evidence book: “F*ck off.” I daresay Guthrie Featherstone, Q.C. and Prince Philip between them could have spoken the words with more sophistication.

The complainant, you see, parked his car to block access to the accused’s jobsite. The accused told him to ‘sod off, I’m working here’, to which the complainant replied that he didn’t see any work being done. Much “effing”, then fists, ensued.

We didn’t stay for the jury’s decision, opting instead for tea with a Battle of Britain survivor seated with us in the gallery.

Mortimer couldn’t have written it better. All in all, a good day for the law.

East German Humour

"What would happen if the desert became communist? Nothing for a while, and then there would be a sand shortage." Jokes can cut deep

Scribatis Scribandis

http://www.guardian.co.uk/media/2009/oct/13/trafigura-drops-gag-guardian-oil

Two Things

I interrupt my self-imposed silence to make two quick announcements:

1. Congratulations to our co-blogger Ubaka Ogbogu, who is currently pursuing his doctorate at the University of Toronto, on the recent birth of his daughter! All the best to the baby and her parents.

2. A great new blog is that of Josh Blackman (also blogrolled). Check out how he managed to get two Supremes to sign his pocket constitution!