University of Alberta Faculty of Law Blog

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).

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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!

4'33"

An interesting debate is underway in Ottawa, and its significance is hard to overstate.

http://www.canada.com/news/Human+Rights+Commission+challenged+over+investigative+powers/2069087/story.html

The entirety of the questioning of Ezra Levant and Mark Steyn has been posted to Youtube, so one can check it out if one is so inclined. Regardless of the their political inclinations, they both have a significant grievance with the Canadian Human Rights Commission which has investigated them: Levant famously reprinted the Danish cartoons depicting Mohammed in his now no-longer-in-print Western Standard, while Steyn's MacLean's article on tolerance landed him in hot water with the commission.

As an aside, the free speech debate even came up at U of A Law last year, when a clever and hilarious double entendre by the women's rugby team landed them in hot water with person(s) on the Faculty.

In Ottawa, R. v. Keegstra, [1990] 3 S.C.R. 697, has found its way into the debate, and it is worth examining the minority's judgement. It is also important to note that the questioning yesterday dealt with two different kinds of hate provisions, namely, those of the Criminal Code and those of s. 13 of the Canadian Human Rights Act, the former of which were the primary focus of Keegstra and the latter of which were the primary focus of yesterday's discussion.

In her dissent in Keegstra, McLachlin J. writes the following at para. 230:

“I turn then to the question of whether the expression here at issue falls within the sphere of conduct protected by the guarantee of freedom of expression in the Charter. As this Court has repeatedly affirmed, the content of a statement cannot deprive it of the protection accorded by s. 2(b), no matter how offensive it may be. The content of Mr. Keegstra's statements was offensive and demeaning in the extreme; nevertheless, on the principles affirmed by this Court, that alone would appear not to deprive them of the protection guaranteed by the Charter.”

In addressing the arguments of the Crown, McLachlin notes that Keegstra's comments did not fulfill the requirement of violence that would bring them under the purview of the Criminal Code, that the scope of s. 2(b) should not be diminished by s. 15, and that the Criminal Code's hate speech provisions did not operate to advance Canada's multiculturalism pursuant to s. 27 of the Charter. With regard to s. 27, she writes what I think is the most important argument that can be made for free speech: “cut[ting] back the protection afforded by s. 2(b) risks undercutting the fundamental freedom with no guarantee of a tangible benefit in return.” Her arguments are lucid and important.

Indeed, it seems that her reading of s. 2(b) conforms in some way with John Stuart Mill's argument in his essay On Liberty:

“The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise.” [emphasis added]

What, then, would we do with all this free speech?

“I have nothing to say and I am saying it and that is poetry.” – John Cage

What, then, might one do if one were inclined towards censorship?

http://en.wikipedia.org/wiki/File:Natgeo_censorship.jpg

Surviving Hong Kong

It has been over a month now since I first arrived in Hong Kong and I now feel modestly capable of imparting a little Hong Kong knowledge. First off, if you are planning to come to Hong Kong in August or September you will require a Hong Kong survival kit. A couple of items that should seriously be considered for inclusion are:

1) high SPF broad spectrum sun screen; 

2) a small towel that travels well and dries quickly (you will be using it on your brow often); 

3) hand sanitizer; 

4) a large bottle for water; and 

5) good noise cancelling headphones.   

Second, for those out there that imagine Hong Kong as some loud, busy, highly commercialized place, you are partially right but mostly wrong (like I was). Hong Kong is a diverse place where it is quite easy to be immersed in whatever you chose, whether that is beautiful beach, nature hikes or Starbucks coffee, all made highly accessible through public transport. Hong Kong itself is made up of well over two hundred islands, Hong Kong Island, and a portion of the mainland which make it easy to "get out of Hong Kong" so to speak. As Hong Kong's Tourism Board says, "Live the excitement. Love the tranquility." 

Harper Gets by With a Little Help from Yo-Yo Ma

Well, if it has not been taken down from Youtube by tomorrow morning, you really ought to see Steven Harper's performance.  I am sure we will all be hearing about this. 

From a musical perspective, he sings with reasonable rhythmic and melodic accuracy, so although one might suggest that he is not a good singer, the fundamentals are least present.  The biggest disappointment, however, was the audience: they were clapping on beats 1 and 3, rather than the back-beat.

http://www.cbc.ca/arts/story/2009/10/03/harper-piano.html

http://en.wikipedia.org/wiki/Beat_(music)#Backbeat