My latest Sustainability Matters column is online here. In it I highlight a fascinating and innovative new paper by James Hansen and his colleagues on the moral dimensions of climate change, which is available here.
Earlier phases of the Project, including the 2011 conference, at which I also presented, identified the main barrier to sustainable companies as the shareholder primacy model of corporate governance. The cross-jurisdictional analysis undertaken by Project members and presented at the final conference by Andrew Johnston, concluded that, contrary to popular belief, shareholder primacy is not the law in any jurisdiction (the UK comes closest, requiring directors to act in the best interests of shareholders as a whole). The problem is that statutory duties of directors tend to be so vague (in Canada, the duty is to act in “the best interests of the corporation”) that the shareholder primacy norm was able to step in to fill the gap. As Johnston noted, the argument that acting in the best interests of shareholders serves the best interests of society has – or at least had, prior to the 2008 financial crisis – become axiomatic. The crisis was an important moment for critical corporate law scholars, who had questioned the axiom all along but now had compelling evidence that shareholder primacy was a terrible basis for corporate governance. Unfortunately, the norm has proven difficult to shake.
One problem, as identified by Blanaid Clarke and others, is the ongoing lack of diversity among board members. The other problem is supplying an alternative to shareholder primacy. Although conference presenters and attendees differed on the details, all agreed that the alternative has to be a norm of environmental sustainability – environmental primacy, if you will. The arguments for environmental primacy are not theoretical: as opening keynote speaker Cecilie Mauritzen confirmed, the climate change facts are telling us that making this change is, to put it crudely, ‘do or fry’. Most conference-goers also agreed that this norm has to become an express aspect of the purpose of the corporation and of directors’ duties; several presentations on Day 1 of the conference, including my own, focused on how to articulate the corporate purpose and directors’ duties to ensure that profits are subject to sustainability, rather than making sustainability subject to maximizing profits.
Day 2 of the conference made clear that amending the corporate purpose and directors’ duties is only one of several pieces of what Sjåfjell has called the jigsaw puzzle of sustainability. The other pieces, presented by scholars from across Europe and beyond, include law and development, insolvency law, contract law, securities law, tort law, insurance law, human rights law, tax subsidies, public procurement rules, takeover bid rules, accounting rules, auditing practices and credit ratings. As a scholar interested in connecting my work to the problem of sustainability, this can be daunting. But the Sustainable Companies Project demonstrates that we need not do it all on our own: there are other clever, creative and like-minded scholars out there with whom to confer and collaborate. Together, hopefully, we can put together this complex jigsaw puzzle, before it’s too late.
Here is a criminal law hypo: man is unarmed. He acts erratic (because he probably has some mental health issues). Police shoot him and two innocent bystanders. Who should be criminally liable for the inuuries to the two bystanders?
Sometimes the right to earn a living clashes with the regulatory Leviathan.
Case 1: Kid wants to make money for braces, but is told she can beg but can sell her mistletoe:
Case 2: Dude is fishing, and gets arrested for not having a license. Now he is hauled in front of a judge without a lawyer. I get that normal people just pay the fine or get the license, but in a way, dude has a point. After all, where do all these agencies get their authority from? The fiction of democracy? Why not the fiction of King Arthur?
Just how did a reporter manage to report exactly what happened inside Barry Bonds's grand jury session, even though they are closed? Read here how dumb luck helped one reporter get the scoop, and how it led to a more soundproof courtroom being built.
Further to my post of November 26, my colleague Professor Peter Carver discusses the other aspect of TransCanada Chair in Administrative and Regulatory Law Rowland Harrison’s talk “Public Participation in Energy Regulation Proceedings: Balancing Access, Orderliness and Effectiveness”, the Charter challenge to National Energy Board Act amendments dealing with the issue of standing:
The new section 55.2 limits participation in pipeline and other hearings to those “directly affected” by a proposed project and, at the discretion of the National Energy Board, those who have “relevant information or expertise” to offer. The Board has invoked the amendment to refuse standing to numerous applicants with respect to Enbridge’s proposed “Line 9 Project” to reverse and increase the flow of oil in a pipeline running 600 kilometres between Ontario and Montreal.
Two refused applicants, an individual living near the pipeline route and Forest Ethics Advocacy (FEA), a non-profit organization, have filed an application in the Federal Court of Appeal to challenge section 55.2 on constitutional grounds, specifically freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms. This raises a number of interesting issues, including whether freedom of expression provides citizens’ with a right of access to a quasi-judicial public forum. Two streams of section 2(b) jurisprudence come to mind.
One stream deals with the issue of access to public spaces for purposes of expression. In general, the Supreme Court has adopted a liberal approach to this issue, finding that Canadians have a right to engage in expressive activity—such as leafleting, placing posters, or demonstrating—on public property, unless the activity is inconsistent with the usual or historic uses of the property. In one notable decision, Greater Vancouver Transportation Authority v. Canadian Federation of Students, the Court ruled that university students had a right under section 2(b) to buy and place political advertising on the side of Vancouver city buses. More recently, in Canadian Broadcasting Corp. v. Canada (Attorney General), the public areas of courthouses were recognized as places suitable for CBC journalists to conduct interviews, although limits placed on this expressive activity were upheld as justifiable under section 1 of the Charter.
Perhaps a more pertinent stream of cases deals with whether section 2(b) imposes a positive duty on the state to support or facilitate individuals’ expressive activity. In the 2006 case Baier v. Alberta, a teacher raised a section 2(b) challenge to a statutory provision barring teachers from standing for election to school boards. A majority of the Court ruled that freedom of expression does not generally require governments to provide access to public platforms. Rather, the freedom is a “negative right” that prevents the state from denying individuals the opportunity to engage in expression. The challenged law did not prevent teachers from speaking out on educational issues, just from running for a particular public office. In making its ruling, the Court drew on earlier decisions in which it had said that laws defining who could vote in a referendum (Haig v. Canada), and a program that provided funding to support participation in a consultative process by some aboriginal groups, but not others (Native Women’s Assn. of Canada v. Canada) did not infringe the expression rights of the excluded parties.
The issue of standing to participate in legal processes has generally been viewed as a matter of administrative law and civil procedure. By legislating a strict approach to standing in a controversial area such as pipeline approval hearings have become, the federal government has invited more innovative constitutional arguments. The claimants in the “Line 9 Project” case may have an uphill battle in establishing that their claim comes within the parameters of current jurisprudence on freedom of expression. They have, after all, many avenues for expressing their views on the public issues involved. What they don’t have is the opportunity to present those views in the only forum established by government to develop policy on the matter. Should the claimants get over the first hurdle, it could be expected the government would have a problem justifying the violation under section 1 of the Charter. What is the “pressing and substantial objective” that requires excluding interested and affected members of the public from participating in NEB hearings, and was the limit chosen a proportionate and minimally impairing solution?
Canada's information commissioner, Suzanne Legault, recommends in a special report to Parliament that specific controls be placed on instant messaging to preserve government records and respect the access to information law.
The report says access to instant (text) messages sent and received by ministers’ office staff is at particular risk.
“While technology is a powerful tool for innovation, its use must not infringe on the right of Canadians to know what government is doing and to hold it accountable for its decisions,” Legault said in a statement.
Her report investigated the use of wireless devices and instant messaging in 11 federal institutions. It found there were approximately 98,000 BlackBerrys issued and that the instant messages, commonly called "PINs," that are sent and received on those devices are automatically deleted, usually after 30 days.
Fair enough - but what this silly proposal misses is that if one did not use instant messaging, one could simply pick up the phone and talk old-school by voice. After all, most texting is really a way to cut down on banal chatter. Perhaps, the next recommendation would be to tap and tape all government concersations. After all, the government does that anyway for the rest of us, so why should government officials be exempt.
Don't get me wrong - I actually sympathize with the Information Commissioner (disclosure: I worked at the Competition Bureau when Ms. Legault worked there). But sometimes I wonder if these watchdogs have any idea how and why people use technology. She could have simple recommended that any instant messaging be archived permanently, for example. But to ban its use outright is just a non-starter and is probably unenforceable.
It would be even funnier if I had a first year law student next year whose last name is Spartacus. That way when I call on him or her (I normally do a soft-Socratic in first year courses), the whole class could chime in. Knowing my students, a few of them would come up and ask me "is this Spartacus thing on the exam?"
“It pays to cheat, at least in Jhonny Peralta's case” was Fox Sports’ Senior MLB Writer Ken Rosenthal’s opinion, after Peralta signed a four-year, $53 million contract with the St Louis Cardinals. Earlier this year, Peralta, as a Detroit Tiger, was one of thirteen players who took a 50 game suspension for using banned performance enhancing drugs (PEDs). A-Rod was the only player who refused to take the deal. That saga is ongoing.
Rosenthal’s headline implies that Peralta is being rewarded for cheating. But by accepting the suspension, Peralta admitted to using PEDs, so the Cards can’t claim they were tricked or deceived – they clearly think Peralta will be a valuable player without PEDs. And, as Rosenthal acknowledges, Peralta has served his suspension, paying his debt to MLB and its fans, and is entitled to move on. It is interesting to note that most Tigers fans agreed and didn’t seek to punish Peralta when he returned to the Tigers for the post-season. Rosenthal’s concern, shared by others, is that a 50 game suspension will not be enough to deter future PED use if the sting of a suspension is not going to hurt a player’s value going forward.
But why the concern about deterring future PED use? The answer can’t be that it’s cheating – it’s cheating because it’s currently against the rules. The question this baseball fan has been asking herself since the Biogenesis scandal broke is what is the principle behind banning PEDs? I don’t think it can be some vague notion about the purity of the game. Baseball is a multi-billion dollar industry; this is not “raw talent” alone that we’re watching. And that’s okay – it’s not called The Show for nothing. The only principle that seems at all sound is a principle of player safety. But then the question becomes whether a ban is the best way to respect this principle. In a 2004 article, in the British Journal of Sports Medicine, Savulescu, Foddy & Clayton argue in favour of testing for health of professional and Olympic athletes, rather than for PEDs. Perhaps if MLB players understood that their health, not their stats, was the priority, they wouldn’t have the same incentive to take PEDs in the first place.
is meant as a companion to Learned Hand: The Man and the Judge. (Learned was his mother’s maiden name and he chose to be called that, though his full name was Billings Learned Hand.) ...
... [The] book is also intended as an antidote to Gunther’s. [The author] does not say so directly, but to mend Hand’s reputation, she seems to aim in particular at correcting what she considers a major misimpression left by Gunther’s book: that an article of faith of Hand’s—judicial restraint—took him outside the legal mainstream when it came to Brown v. Board of Education, the most important Supreme Court ruling of the twentieth century, and tarnished what he stood for as a judge.
The laws of nuisance and trespass should have no place when it comes to Sriracha! That is my position, and if we need a constitutional amendment for this, then so be it. I mean what am I supposed to put on my food now?
the Panel received over 9,000 letters of comment; and
notwithstanding this level of public participation, the hearing process was completed successfully and on schedule.
These facts were highlighted in a talk last Thursday at the U of A Faculty of Law entitled “Public Participation in Energy Regulation Proceedings: Balancing Access, Orderliness and Effectiveness”. Speaker Rowland Harrison holds the TransCanada Chair in Administrative & Regulatory Law at the Faculty. As a permanent member of the National Energy Board from 1997-2011, Mr Harrison sat on pipeline hearings. He noted that while project proponents always want a faster process, they are well-served by an open process that gives all interested (rather than “directly affected”) parties a chance to express their views – and most proponents know this. He pointed out that “Enbridge did not object to any of the participation rights granted by the [Northern Gateway] Panel.”
The facts about public participation in the Northern Gateway hearing seem to demonstrate two things: First, concern regarding pipeline projects is not limited to so-called environmental activists, but is widespread among the public at large. Second, facilitating pipeline expansion does not necessarily imply restricting public participation; rather, it seems more likely that restricting participation will increase pipeline opposition. As Harrison noted, an inclusive process is required to ensure that pipeline and other energy projects obtain not only regulatory approval, but also the necessary “social licence” to proceed. For this reason, Harrison called for a liberal approach to the new restrictions on public participation that continue as much as possible the Board’s tradition of inclusivity, coupled with a “rigorous” approach to the conduct of the hearing itself.
In his talk and the discussion following, Harrison acknowledged that the reason pipeline hearings attract a high level of public participation has less to do with the pipelines themselves and more to do with the upstream implications for extraction and the downstream implications for continued reliance on fossil fuels. Pipeline hearings are not the best forum for debate regarding these implications, but currently, as Harrison pointed out, they are the only “structured forum” for raising these issues. And these issues need to be raised: governments at all levels and politicians of all parties must start balancing the need to create jobs and wealth in the present with the moral obligation to ensure that future generations have sufficient resources – natural or at least monetary – to create wealth for themselves. Striking the appropriate balance will require a genuine conversation in which both sides of the debate show some willingness to listen to the other.
One my colleagues sent me this link to a classic debate that took place between Bertrand Russell and F.C. Copleston in 1948 about the existence of God:
On January 28, 1948 the British philosophers F.C. Copleston and Bertrand Russell squared off on BBC radio for a debate on the existence of God. Copleston was a Jesuit priest who believed in God. Russell maintained that while he was technically agnostic on the existence of the Judeo-Christian God–just as he was technically agnostic on the existence of the Greek gods Zeus and Poseidon–he was for all intents and purposes an atheist.
The famous debate is divided into two parts: metaphysical and moral. In the metaphysical part, which is presented here, Copleston espouses what is known as the cosmological argument for the existence of God. Elements of the cosmological argument go back at least as far as Plato and Aristotle, who held that the universe required a “prime mover” outside of itself.
Click on the link to read the more about the rest of debate. You can also listen to some of the debate here:
Big news from the past week has been the Law Society of Upper Canada's decision to create a Legal Practice Program (LPP) that will allow students to qualify as lawyers without traditional articles. Ryerson University - with no law faculty - was able to grab the LSUC's attention with a proposed program. At least for the next few years, they'll be running a pilot program designed to mimic legal practice.
There are many interesting angles to examine in this story - but I'll focus on one. Without commenting in any way on whether it's a good idea to have a program of this nature, or even whether Ryerson's program will be a good one, I was impressed with their launch video. It seems clear that they will try to build a program from the ground up and try to use technology as a teaching tool in a way that currently seems beyond the capacity of most law schools (the derogatory reference to "traditional classroom seems to me a clear dig at the universities). Personally, I think every law school should be looking at some of these tools to enhance the classroom experience - even if we don't go quite as far as Ryerson is. And frankly, I think it will happen, eventually.
It's interesting that Ryerson - without the infrastructure and financial obligations (read: Prof. salaries and other objectives to service, like research) - is the school to take this on. I believe all law schools would be well served to keep an eye on what this new entrant to the world of "law teaching" (broadly defined) is doing.
In this free lecture Jeff Rowes will discuss how the theory of constitutional limits on government power works in the real world. Using his own experience as an example, Jeff Rowes, a public-interest lawyer, will describe how he devises, and wins, cases that set liberty-promoting precedents.
Jeff Rowes serves as a senior attorney at the Institute for Justice. His practice focuses on private property rights, free speech, and economic liberty.
Jeff has published opinion pieces in the New York Times, Wall Street Journal, and USA Today.
Date: Monday, November 25, 2013 Time: 12 p.m. - 1 p.m. Location: Room 101, Law Centre, University of Alberta
More than 80 years after they were falsely accused and wrongly convicted in the rapes of a pair of white women in north Alabama, three black men received posthumous pardons on Thursday, essentially absolving the last of the “Scottsboro Boys” of criminal misconduct and closing one of the most notorious chapters of the South’s racial history.
John F. Kennedy’s personal pollster came to Canada with an assumed name, the blessing of the president and a secret objective: help defeat the Diefenbaker Tories.
Canadians might be surprised by the extent to which political events in this country were shaped by the charismatic U.S. leader, famously assassinated 50 years ago this week.
Helping to elect the Pearson Liberals, for starters, who would go on to introduce a new national flag, expand the welfare state and create medicare, the old-age pension system, and the royal commission on bilingualism.
The Liberals got tactical support, with state-of-the-art polling. Diplomatic rockets rained down on their opponents. And in the heat of an election campaign, the opposition leader was invited to the White House as an honoured guest.