University of Alberta Faculty of Law Blog

Political Correctness

reigns supreme at the University of Toronto. As a graduate of that University, I am sad to see the PC forces triumph over Hart House, a place I spent much time using the facilities.

Euro-Excellence v Kraft Canada

Euro-Excellence v Kraft Canada revolves around an attempt to use copyright law to prevent grey marketing, but its broader interest is in way in which the various opinions address policy considerations in the context of statutory interpretation.  Bastarache J. faced the policy issues head-on, while Abella J. stuck to a more narrowly textual approach.  Both these approaches have their own merits and the two opinions provide an interesting contrast.  The weakest opinion, in my view, was the majority decision of Rothstein J., which seems to be policy analysis in the guise of textual analysis.  The result combines the weaknesses, not the strengths, of  both the 'pure' approaches.

Re: Why Do Men Make More

Re: Moin's post - very interesting stuff. Would have thought that haggling is not something men do very well or at all. Going to the market was always more fun with my Dad than my Mom, simply because it was over on time and we could get away from the unbearable heat. My Mom once beat the price for a pound of beef down to 10% of the original quoted price.

Are lawyers rats?

Yes, says a former bay street lawyer. Scandalous and libelous responds a lawyer and instructor at Osgoode Hall. The truth, I suspect, is somewhere in the middle. Lawyers get a bit too sensitive sometimes about criticisms levelled at them. Oddly enough, they call for lawyers to be willing to take on unpopular causes even if it means facing criticism and the wrath of society. Then, they turn around and cry foul when they do face such criticisms. Lawyers can't have it both ways. Either do your job properly selflessly, as you claim to be doing, and damn the consequences; or get out of the business. But we can't insist that we are the champions of freedom and civilization and not be prepared to bear the consequences. Just like those who march and call for democracy around the world are prepared to suffer the consequences (from slight reprimands to prison), so should lawyers (and judges) be prepared to face harsh critique and scandalous stories every once in a while. But the story in Macleans was not even about the causes we champion, but rather a culture of insularity that we have created about ourselves.

If lawyers get so smug and act like they are the only group in society who can do no wrong, then we too will lose our way. It is no accident that the general public has a low opinion of us, and it is not all media generated. I was at a BBQ the other day for one of my former student's bar calls.  At the BBQ were several clients of my former student's principal. They all complained about lawyers who over-billed them without any value in the past, before they found my former student's principal (and my student also) with whom they were more than satisfied. An old neighbor of mine complained about how his lawyers never gave him any service when he was buying his house. A friend of mine complained about his lawyer never returned phone calls and dropped a ball on a breach of contract case he was handling. And the list goes on.

So yes, there are a ton of great lawyers, but we should recognize that there are bad ones too and not be so defensive about it. Obviously the story is meant to be sensational; that is what sells. But simply attacking MacLeans for running the story will not make the problem disappear. That is our job to do.

Judicial appointments and judicial decisions: what should the link be?

Looks like faculty Blog guru and mover and shaker Moin Yahya continues to make quite a splash with his research surveying ideological bias on Ontario’s Court of Appeal. For peets sake, the piece, co-written with James Stribopoulos, hasn’t even been published yet in the Osgoode Hall Law Journal and it’s getting repeated media citations!

Today, it’s court critic Lorne Gunter who mentions the article in his National Post column. For the political scientist in all of us, it won’t come as a surprise that there’s bias on the bench, but kudos to Moin and James for taking the time to grind out some research to back up the proposition that gender and party affiliation are linked to case outcomes.

Gunter uses Moin’s research to try to take away some of the heat generated by the Conservatives’ February changes to the composition of judicial advisory councils. I saw some of this heat first hand at a party in March when an earnest UBC law student cornered me and held me captive for a half-hour lecture on how the Conservatives were messing with judicial independence and the rule of law by adding police representatives to judicial advisory councils. Don’t know what I did to deserve that treatment other than get introduced at the party as a poli sci constitution guy.

Anyway, Gunter implies that Canadians can’t complain about Conservative appointment partisanship when Liberals have already honed that art. What's good for the goose is good for the gander, but that's hardly a rock solid justification for continuing the practice. Political scientists are likely to see in the column yet another opportunity to talk about the appointments process, but, of course, Moin’s research forces us to confront the fact that even without partisanship in appointments, who judges are still affects how they judge.

Why do men make more?

Because they ask!  Links to full study available here.

Friday Poetry: The Coming

born

somewhere
        with blood without fragrance 

verminous birth,        welcomed with acid doses of scorn

nearby the carcass of crystal waters
flows from Koko shores in jagged leaps

black death comes to watery town
takes the fish and fauna
leaves the lumps and lupus
lupus and lumps

            perfect rhymes for jaded waders

dusk
glow-fades on the blooming tar

lips slung over stained teeth    contemplate    baby steps into sunset    facing the naked west

the will-been-to arrives…

More on NBA referee gambling scandal

Justin Wolfers, professor at the Wharton School at the University of Pennsylvania, has a fascinating op-ed in the NY Times today about the NBA referree gambling scandal. As many have argued before with respect to gambling and other consensual "vice" crimes, he suggests that the best way to deter gambling-inspired game manipulation is to legalize and regulate sports betting. I think he's right, but I'm betting that neither NBA Commissioner David Stern nor governments will take him up on his suggestion.

NBA Ref on the take?

For years, basketball players complained about the quality of refreeing in the NBA. Now they get to say "told you so".

Brian Mulroney default judgment

I am no expert on Ontario's rules of civil procedure, but this story about a default judgment strikes me as odd. I would have thought that the case could have been dismissed on jurisidictional or forums non conveniens grounds.  So I suppose the plaintiff has to try to enforce this judgment in Quebec, and then have Mr. Mulroney collaterally attack the jurisidction of the Ontario court. I suppose he could also appeal in Ontario. Unless, I suppose the plaintiff could have argued that there was some connection to the incident in Ontario. 

What I am really interested in from the story is: are we seeing more and more forum shopping accross Canada for favorable verdicts? This is the norm in the U.S.  But Canadian lawyers I speak to tell me it is not as common here. If this does change, we may need some sort of choice of law and rules of jurisidction that apply to sort this mess out.  On the other hand, there is something to competitve federalism. Delaware is the U.S. state of incorporation for most large corporations, because it has managed to create an optimal set of rules for shareholders and managers alike.  In Canada, our rules tend to be uniform accross the country, and in fact, the push seems to be for more uniformity not less.

More on the Lindsay Lohan saga

OMG - I wish I could make this stuff up - read the interview with the three upstanding gentlemen who were in the car with the mean girl herself.

According to the three dudes, first, she commandeers the GMC from its owner who is in the front seat.  Then she drives over the foot of one of the GMC owner’s friends.  Then she drives like a maniac chasing her assistant.  Then when she gets confronted by the cops, she tries to blame it on the “black kid” (her words)! When the cops don’t buy that story and arrest her, she screams at the two guys in the car (including the guy she tried to blame) pleading with them to vouch for her story. Watch the 4 part interview. Watch the ending too, when the guy who got run over vents!

Of Citizenship

Two days ago, I acquired Canadian citizenship after swearing an oath of loyalty and allegiance to Canada and the Queen Elizabeth, among other things. I rather enjoyed the ceremony, which took about 20 minutes to complete, after a 2-hour processing time wait that almost made me lose my newly acquired values of respect, patience and compassion.

As things stand, I am now a dual citizen of Canada and Nigeria. How long I'll continue to enjoy this double honour remains unclear, especially since the conservative government is considering reviewing the laws on dual citizenship following the Lebanon Rescue Boomerang. I do hope resident dual citizens like me are grandfathered by any laws that change the status quo. If not, I suppose one will then have to choose which country to sever ties with. Here's some of the factors that will influence that decision.

For Nigeria:
1. Born there, all my family reside there.
2. The color of the passport (green).
3. Why would anyone not want to have intimate knowledge of this, and the circumstances leading to this? (At least, for sake of conversation).
4. To change this nonsense.
5. To avoid the stress of getting a visa just to experience this.

For Canada
1. Compassion, peace, security, tolerance, etc.
2. The color of the passport (black).
3. To join the liberal party and then vote against it (thank Goodness for the secret ballot).
4. The Charter of Rights and Freedoms.
5. This and this and this.

iPhone can save lives?

So says this post on the WSJ blog.  A doctor demonstrates how he can use his iPhone to check patients records while in surgery. Watch the demo:

No word yet on when the iPhone will be here in Canada. 

Canadians stingy tippers

It is now official: Canadians are lousy tippers.  Missing from the story is the following:

• Law Professors: (100% of Canadians leave nothing).

What about Smith?

Apparently, our enlightened state has decided that if you wish to move here, you must change your name. No word on whether the Smiths and Wongs of the world will have to do the same.

Doctor in LA not indicted

Tom Kirkendall has been following the saga of Dr. Anna Pou who was being threatened with prosecution for the last few years (when was Hurricane Katrina?)  Today, the news says that a grand jury refused to indict her. The Attorney General, I suppose, could try to convene another grand jury (if LA law allows that) or just let this matter drop. Medical ethics and criminal law sometimes should stay away from each other.

Lindsay Lohan in Trouble Again

Just when you thought there were would be no more bad girls out there, the mean girl herself is busted for drunk driving and other odd charges.  I am not sure what the law in California says for these matters, but where I once used to prosecute (as an intern) misdemeanors, the judiciary did not take too kindly too repeat offenders, especially when the first set of charges were still pending. I had a case once involving a guy who was busted for smoking pot while he was awaiting his first charge for smoking pot. His lawyer's excuse was that he worked as a cook in [name of restaurant chain deleted] and that all the cooks there smoked dope. It gave me a new meaning for hash browns!

No Injury Suits - Fraud?

Pithlord commenting on my post:

The Divisional Court hints that the class can only succeed if it proves fraud or conspiracy; negligence won't be enough.

This suggests an intentional misrepresentation type of action. In that case, there might be a claim for restitution. But I am not sure what the ramifications of this are. I am curious, though, as to what happened in this case: settle or is still in litigation/discovery?

Boneheaded politicians

We love to poke fun at how stupid our politicians can be sometimes (all the time?).  But in Belgium, this guy makes our dudes look wise.

Hitchens on Black

Yikes! Christopher Hitchens is having schadenfreude over Black's fate.