by Keith Edmund White
Editor-in-Chief I find it stunning that this story hasn't gotten more play in U.S. law blogs, but the West Coast Environmental Law (WCEL) hosted the first twitter moot court. The competition simulated an appeal to the Supreme Court of Canada on the May 2011 Court of Appeal for British Colombia's decision in West Moberly First Nations v. British Columbia. The case, which suspended a coal exploration permit granted to First Coal Corporation in threatened caribou habitat, "is precedent-setting, confirming that the government of British Columbia has an obligation to ensure that incremental intrusions on the habitat of an at-risk species do not, over time, deprive a First Nation of its Treaty rights."
As promised, the results of the 2012 Niagara Competition are below. Congratulations to all the winners, and thank you for all the competitors that made this competition so successful. Furthermore, any competitors with photos or other memories of the competition, shoot your experiences to cuslinexus@gmail.com. And as a competitor myself, who was horrible at networking with everyone, feel free to leave a comment to say hi (or any corrections to the list).
Niagara Cup Winner
University of Windsor
Memorial Awards*
Best Applicant Memorial
University of Western Ontario (6)
Best Respondent Memorial
Creighton University
Runner-Up Applicant Memorials
Queens Faculty of Law (4) and University of Pittsburgh (5)
Runner-Up Respondent Memorial
American University (17)
Individual Oralist Awards
Best Advocate
Gregory Graham, University of Pittsburgh
Runner-Up Advocates
Paul Allen, Creighton, and Alicia Roberts, Pittsburgh University
Third Place
Stacy Edwards, American University
Fourth Place
Reshma Sambre, Michigan State University
Fifth Place
Evgeny Krasnov, Hofstra University School of Law
Team Oralist Awards
Best Applicant
American University
Best Respondent
University of Pittsburgh
Henry T. King Award
Michigan State University
Team Standings
Niagara Cup Runner-Up – University of Western Ontario
Semifinalists – Creighton University and Michigan State University
Quarterfinalists – American University, Case Western Reserve University, University of Pittsburgh, University of the Pacific McGeorge
*Team briefs can be found online here. They are labeled by team numbers which is the number in the parentheses. Creighton--I'm still looking for your number, it will be updated shortly. Furthermore, please send requests to take down any names to cuslinexus@gmail.com.
Sorry for our recent pause from posting. But the Niagara International Moot Court competition, being held in Washington, D.C., has stolen the attention of the blog's staff this week. The competition is sponsored by the Canada United States Law Institute, one of the projects ofthis rich partnershipbetween Case Western Reserve University and the University of Western Ontario.
Law schools from across the United States and Canada have descended upon the American capital to debate a problem focusing on two critical issues: (1) when and how nations can invoke self-defense to defend themselves from unconventional threats, and (2) what role does the Responsibility to Protect doctrine play in international law. This question is particularly relevant as the international community confrontswhat a UN panel has considered Syrian crimes against humanity against their own citizens.
Tonight we’ll know the team winner, team awards for written memorials, and individual speaking awards. But, whatever the results, this competition is an incredible learning opportunity for students, and also showcases the important relationship between the United States and Canada.Special thanksto competition chair (noted arbitration attorney, founder of InvestmentClaims.com, and Columbia Law lecturer)Ian A. Laird, CUSLI board and members who have put on this incredible show, the incredible judges who have spent their Friday and Saturday listening to arguments, and Cox International Law Center director professorMichael Scharfwho crafted such a relevant and nuanced problem.
A quick shout-out to the sponsors: DLA Piper, Fasken Martineau, Baker Hostetler, King & Spalding, Crowell Moring, and the Government of Canada.
And finally, just look at this esteemed panel of judges for the final rounds: Former ICTY judgePatricia M. Wald, current Ombudsperson for Security Council 1267 Sanctions CommitteeKimberly Prost, and former Co-Prosecutor of the Extraordinary Chambers in the Courts of CambodiaRobert Petit. Learn more about the competition here.
During the past few years, the fortunes of one of Canada’s most iconic companies have shifted dramatically downward.Canada’s Research in Motion (“RIM”)—creator of the Blackberry—has entered economic free-fall, risking the outsourcing of one of Canada’s greatest success stories.Canadian law allows the government to block a foreign takeover of RIM; yet, if the government exercises this prerogative could Canada be taking an even greater economic gamble?
The ouster, or seeming resignation from leadership, of the company’s co-CEO founders Mike Lazaridis and Jim Balsillie on January 22 highlights the depths to which the firm has fallen. The move has at least signaled that the board of directors has come to grips with the seriousness of RIM’s current plight, though it is unclear whether this change may be too little, too late. The elevation of former COO Thorsten Heins as CEO has not assuaged the fears of many analysts and others who had hoped for a more radical shakeup and continued change in order to foster new growth and innovation. For now, both Lazaridis and Balsillie will remain on the board of directors with the former also heading, somewhat surprisingly, a committee on innovation. Though continuity seems to be a priority of the board, many predict that without new thinking RIM could fall even further into irrelevance.
Most point to the 2007 Apple iPhone launch as the clear beginning of the slide which has seen the technological giant’s stock price drop from $76 per share in March of 2010 to around $15 at current quotes. This article highlights the cumulative effect of poor products, delayed rollouts, stagnant development, and the underestimation of Apple as a competitor in the smartphone industry as the company’s most egregious blunders.
It didn’t help that amid the errors in trying to move RIM forward, its vaunted strength of network reliability also began to show cracks. Late last year, a major network outage halted the exchange of emails and messages for tens of millions of users. Though seemingly just another example of RIM’s recent ineptitude, there may be other consequences as law firms in the U.S. and Canada may file consumer lawsuits against the company over the loss of service. The potential for a huge settlement remains low, as class-action status is not assured and the damages that can be claimed are limited to those from loss of use. In the recent U.S. Supreme Court case Concepcion v. AT&T, 131 S.Ct. 1740 (2011), the Court held that the Federal Arbitration Act preempts California law regarding the unconscionability of class arbitration waivers of consumer contracts. Essentially, the holding limits damages when consumers sign an agreement in which they agree to settle disputes through arbitration or on an individual basis. Though consumers may still follow through with such suits to obtain favorable judgment on grounds of principle rather than actual damages, adverse decisions against RIM would only serve to further tarnish an image that has already fallen so far.
The outage also hastened some companies to begin offering iPhones and Android powered devices to its employees instead of the usually required Blackberry handsets that once were so heavily synonymous with corporate culture. The security of RIM’s enterprise network had been lauded for years, and only last year the Blackberry Playbook became the first tablet device approved for government use in the U.S., while its handsets had been approved to handle official government email for years. President Obama even received a modified Blackberry that was capable of handling top-secret communications in 2009.
While there is still time for a turnaround, many analysts believe it must happen in the next 12 to 18 months. After that, RIM may be ripe for a hostile takeover bid. But Canada’s Prime Minister rejected such a scenario, maintaining that RIM must “succeed and continue to grow as a Canadian company.” Harper did not elaborate on how he might respond to any potential inquiries for the firm, but Canadian law gives the government broad powers to deny a foreign takeover bid of a certain size if it is not of a net benefit to Canada. The term “net benefit” has yet to be adequately defined, even after Canada’s pledge to clarify the term after rejecting Australian company BHT Billiton’s bid for Canadian fertilizer producer Potash Corp. in 2010.
The Canadian government has more than just a sentimental stake in RIM, as it infused the company with C$34 million in 2000. In any case, the survival of the company and its regaining more than just a modicum of past success seems integral to Canada’s tech industry going forward, even if a foreign takeover of the company is the answer. Some say the most promising scenarios for a takeover have already failed to materialize though, and that prospects for a future deal may hinge on the government being more transparent about its expectations regarding “net benefit” to Canada.
Harper and the rest of the government should get serious about stabilizing RIM and revitalizing its future outlook, and should clarify—or replace—the “net benefit” rule, if only to ensure RIM stays attractive to potential buyers. The government should also be ready to provide close oversight over any potential deals to sell off parts of the company. Such an active approach to saving a stalwart Canadian company would show that the government learned its lesson after the painful winding down of Nortel and recognizes the vast entrepreneurial benefits that flow from RIM to the Canadian business sector. Finally, how will Canada’s experience with RIM impact analogous barriers to foreign investment in the United States?
We'll have to wait and see if the Blackberry empire strikes back.
Will Canadian dollars soon be controlling the U.S. political process? Unlikely—but with the advent of SuperPACs, Canadian businesses are being given a new way to influence U.S. politics. And, with this new tool, comes a natural question: Will Canada follow America’s lead on campaign finance (de)regulation?
First, as an election law novice, I thought it might be helpful to try to figure out the differences between Political Actions Committees (PACs) and SuperPACs (which until now I only knew from the Colbert Report). This CNN report provides a readable—if perhaps swallow—explanation of what the campaign finance impact of SuperPACs on U.S. politics:
In 1907, Congress banned corporate contributions to federal candidates in the wake of the robber baron-era scandals. In 1947, the ban was formally applied to corporate expenditures and extended to cover labor unions.
In 1974, Congress enacted limits on individual contributions to federal candidates and political committees in the wake of the Watergate scandal.
In 2010, the U.S. Supreme Court in the Citizens United case declared the corporate expenditure ban unconstitutional, holding that independent expenditures could not be constitutionally limited in federal elections, and implicitly that corporations could give unlimited amounts to other groups to spend, as long as the expenditures were made independently from the supported candidate. Subsequently, the U.S. Court of Appeals for the D.C. Circuit in the SpeechNow case held that the limits on individual contributions to groups that made independent expenditures were unconstitutional.
Thus was born the super PAC.
Now, the huge impact of this shift to SuperPACs is a bit overstated. As 527 groups could raise unlimited amounts of funds, the key difference being they couldn’t directly advocate for individual candidates. But just ask John Kerry about the Swift Boat adsto see how meaningful that restriction was in the 2004 presidential election.
Now, one interesting aspect of the advent of the SuperPAC is that Canadian owned U.S. subsidiaries can now have their U.S. employees ‘voluntarily’ fund SuperPACs that will push the agenda of foreign owned companies. And, not surprisingly, Canadian companies have taken advantage of this new way to get their voices heard in D.C. From The Canadian Press:
Political action committees affiliated with companies based in the United States but owned by Canadian corporations are pouring money into this year's U.S. House and Senate races.
Fundraising data provided by the website OpenSecrets.org show American subsidiaries of Canadian companies have formed political action committees that so far have given US$163,500 to candidates running in the Congressional elections.
Donations to Republicans were US$89,250, compared with US$74,250 for Democrats.
Political donations from foreigners are banned in the United States. But there is nothing to stop businesses based in the States but owned by foreign companies from forming entities called political action committees, or PACs, which are then funded by donations from their American employees.
These PACS are set up and run by corporations, labour unions, membership organizations or trade associations. They can only solicit contributions from people associated with the connected or sponsoring organization.
U.S. subsidiaries of some of Canada's biggest companies have already formed PACs ahead of the November Congressional vote.
The Canadian parent companies say U.S. employees at their American subsidiaries made contributions of their own volition, with no direction or influence from north of the border.
And with Canadian companies now shifting their money into the U.S. political arena, how long will it be before Canada allows SuperPACs in their political landscape? One very vocal opponent of such a shift is Mount Allison University professor, and head of the school’s Canadian Studies Program, Andrew Nurse:
Superpacs are American. We don't have them in Canada but they could be related to changes that are almost certainly going to be made to the Elections Act in Canada pertaining to political financing. Superpacs deserve attention for two reasons. First, because they stand to subvert democracy; second, because the rationale used to defend them against electoral reform measures illustrates the differences between Canada and the US.
…
So far, I've said that I don't find the arguments for superpacs compelling. Free speech does not require superpacs and no one appears to suffered from censorship before Superpacs emerged on the scene. The argument that superpacs spending is benign is problematic because the people running superpacs don't intend it to be benign. They intend it to have an effect. It also opens up the troubling line of argumentation that constitutionally and legally sets up two sets of campaign contribution rules based on social class. Now, to be clear. I am not arguing for Soviet Communism. What I am suggesting, however, is that Canadians pay some attention to what is going on in the US before we change our electoral financing laws. Our laws are not perfect. But, they have served Canada rather well to this point. There is room for reform but that reform s[h]ould move forward … and into a situation where money supplants democracy, silly arguments that have nothing to do with free speech are mobilized (and accepted) in support of political manipulation, and equal benefit of the law falls by the wayside.
The key difference between Canadian and U.S. defamation law is the burden a “public figure” must meet in order to win a defamation claim. In the U.S., the public figure plaintiff must prove that the defendant acted with “actual malice” (read: a conscious disregard as to assessing the truth of the claim or actual knowledge that the claim was false). In Canada, as Tarantino reviews, there is no public figure test. Instead the CCS has engaged in tests to assess if reputation or free expression should be privileged. From my sense of reading Tarantino’s article, these elaborate balancing tests seem—to me—perplexing vague. Tarantino offers the following proposal:
Where a public figure is present in the matrix of facts giving rise to a claim of defamation, then a modification is called for in how the common law treats that individual as a plaintiff. This proposal seeks to retain the broad contours of the existing tort, with the following modifications:
-Public figure plaintiffs should be entitled to bring—indeed should, subject to the remainder of this proposal, be limited to bringing—an action that seeks to “correct the record”;
-Public figure plaintiffs should be restricted in recovering damages from defendants, except for special damages that the plaintiff can prove and punitive damages in egregious situations (such as publication with malice); -Public figure plaintiffs should bear the burden of proving the falsity of the impugned statement;
-Subject to having made a timely request for a correction, and having demonstrated falsity, a public figure plaintiff should be entitled to a court declaration as to the falsity of the impugned statement and an order that the defendant publish a prompt and relevant correction. Such correction would contain a positive substantive statement incorporating an acknowledgement that the defendant published incorrect and defamatory statements about the plaintiff and would also set out the truth relative to the impugned statement. Failure by the defendant to comply would result in the plaintiff being entitled to receive general and punitive damages; and
-Pre-trial discovery for the modified tort should be limited to the issues of standing, falsity, and, if the plaintiff so pleads, special damages.
Tarantino then reviews how his proposal is different from the Sullivan test, and how it seeks to address the CCS’s Sullivan concerns:
Another concern about this proposed public figure distinction is that it resembles the Sullivan approach rather too closely, which would represent a change in Canadian defamation law precluded by the express rejection in Hill (subsequently reaffirmed in WIC Radio and Grant) of adopting a Sullivan-style approach. Though there is a superficial similarity between Sullivan and this proposal (in that there would be a shifting of the burden of proof to the plaintiff and that fault, falsity, and damages would no longer be presumed and subject to rebuttal by the defendant), this proposal accords with the reasons given by the SCC in rejecting the adoption of Sullivan and, further, actually addresses the concerns raised by it. The fundamental criticism of Sullivan set out in Hill is that the actual malice inquiry shifts the focus of the tort away from determining the truth of the impugned statement and toward an inquiry into the conduct of the defendant, which deprives plaintiffs of an opportunity to establish falsity and increases the costs of litigation by involving parties in extensive (and meddlesome) discoveries about the news reporting process. The most damaging aspect of Sullivan, in the eyes of the SCC, is that potentially false statements of fact are left unrebutted, exacting “a major social cost by deprecating truth in public discourse.” The proposal advanced in this article strives to work in precisely the opposite direction of Sullivan, while retaining the SCC’s avowed goal of expanding the ambit of freedom of the media—toward, rather than away from, determinations of truth and falsity; and away from, rather than toward, complexity and increasing cost in litigation. In this regard, if anything, this proposal demonstrates greater fidelity to the aims of the SCC than the modifications contained in Grant, Cusson, and WIC Radio.
Thus, Tarantino shows the deep common law relationship between Canada and the United States, and how these two bodies of law can inform each other in their ultimate goal: to appropriately balance competing societal values.
Canada was always unique in how it approached regulating its securities market—being the world's only major economy to adopt a provincial approach to securities regulation. And now it stands to become an even greater outlier:with the Canadian Supreme Court’s unanimous decision last December finding a proposal to create a comprehensive federal regulator unconstitutional (Reference re Securities Act). But first, how could the Canadian Supreme Court rule that securities regulation doesn't fall under the federal government's authority?Well, in short, it didn’t—instead it stated knocked down a comprehensive federal opt-in regulator; yet, it did point out federal areas of regulation.From the Financial Post:
Power has shifted with the unanimous decision of the court, which establishes that oversight for the investment industry fits squarely within the “property and civil rights” powers that were assigned to the provinces by the Constitution Act of 1867.
But some industry groups hailed the decision as progress, noting that the Supreme Court’s acknowledgment of federal jurisdiction over such matters as systemic risk pushes the idea of some sort of national regulation further along than in the more than 40 years its has been considered.
Naturally, the decision has not killed plans for federal securities regulation—but it has sure made the project much more complicated. Officially, the Conservative government in Canada has shelved plans for a federal regulator, but just last month Canada's Finance Minister--Jim Flaherty--made clear he hasn't given up on the federal project.
