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‘Bonus’ Zoning and the Development Approval Game

Ed Morgan
Monday, August 29, 2011

This commentary was first published in The Lawyers Weekly on August 26, 2011.

What does a property owner do to build a high density condo/retail development on its parcel in Brampton, Ontario - the heartland of suburban sprawl - or to build a low density subdivision on its green field in Markham, Ontario - the capital of 'new urbanist' design? It does what few applicants for a state-issued license would ever think of doing: it makes a deal.

As those in the field well know, deal-making is authorized under section 37 of the Planning Act. What Canadians lightly dub "bonuses", and Americans more darkly label "exactions", have become an integral part of the development approval game. For owners and communities, the game is one of materially high stakes; and for constitutional theorists, the struggle between an individual's rights and the collectivity's needs are as high as the normative stakes can get.

As a starting point, the courts have ensured that no personal gain can be bargained for by officials in a conflict position. Moreover, the Ontario Municipal Board has expressed the view that section 37 bargains must be "commensurate with the additional density or development rights" achieved in the application, and that city officials keep in mind that "the public should receive some tangible benefit." Beyond that, however, just about any deal goes.

The Right Way to Pick Supreme Court Judges

Jacob Ziegel
Monday, August 22, 2011

This commentary by Prof. Emeritus Jacob Ziegel was first published in the National Post on August 19, 2011.

Ian Binnie and Louise Charron announced their intention to retire from the Supreme Court of Canada at the end of August more than three months ago. Yet it was only on Aug. 5 that the Minister of Justice announced the appointment procedure the federal government intended to follow in appointing their successors on the Court.

A starved media fell on the announcement enthusiastically, but failed to ask some relevant questions. Will the proposed selection procedure result in the choice of the best-qualified candidates and, if the answer is no, what would be a better procedure? What role does the Supreme Court of Canada play in Canada’s constitution and what qualities should we look for in appointments to the Supreme Court?

There’s much reason to doubt that the federal government has chosen the procedure best calculated to lead to the appointment of the best qualified candidates. Stripped of all the rhetoric, it seems safe to anticipate that the successful candidates will be those whose assumed legal and constitutional philosophies appeals most to Prime Minister Harper and who meet his criteria of judges “who apply the law and don’t make it.”

Two Myths About Corporate Political Speech

Ian Lee
Wednesday, August 3, 2011

This opinion piece was first published in the Spring/Summer 2011 issue of Nexus magazine.

In the debate about whether political donations and advertising by corporations should be permitted in a democracy, there are two unhelpful but tenacious myths.

One of them is that “there is no such thing as too much speech,” to quote U.S. Supreme Court Justice Antonin Scalia. The other myth is that corporate political involvement is inherently illegitimate, because corporations are merely “artificial persons,” creatures of the state. The first myth is advanced by the supporters of corporate political speech, while the second is put forward by its opponents. Neither is helpful.

If individuals had unlimited time and attention spans, there would indeed be no such thing as too much information. But in the real world, people’s time and attention are scarce resources, and the relative size of the communication budgets devoted to rival arguments can therefore be expected to have an impact on their reception by citizens. That’s just Advertising 101. So there’s a real question whether especially well-financed messages need to be regulated, so that other messages can be heard too.

Who Can Regulate Canadian Securities?

Jacob Ziegel
Monday, July 25, 2011

This commentary by Prof. Jacob Ziegel was first published in the National Post on July 15, 2011.

On April 12 and 13, the Supreme Court of Canada held a two-day hearing on a Reference from the federal government asking the Court to determine the constitutional validity of the proposed Securities Act published by the federal government in May, 2010. The question all the parties to the hearing must now be asking themselves is how the Court is likely to respond to the Reference.

The need for federal securities legislation has been discussed for at least 30 years, yet successive Liberal and Conservative governments refused to bite the bullet. The Harper administration showed greater mettle and became convinced that a national securities regulator was essential for Canada in light of the financial crisis that gripped North America, and much of the rest of the world, in 2007 and 2008. It was also the solution recommended by three federal task forces that were established between 2003 and 2009.

The Law is Too Important to Leave to Politicians

Jacob Ziegel
Friday, May 27, 2011

This commentary by Prof. Emeritus Jacob Ziegel was first published in the National Post on May 26, 2011.

Earlier this month, Justices Ian Binnie and Louise Charron, both from Ontario, announced their intention to retire from the Supreme Court of Canada at the end of the current session of the court. How their successors will be chosen is an as-yet unanswered question. Will Prime Minister Stephen Harper be able to resist the temptation to appoint replacements that will reflect his philosophy as to the role of the judiciary, or will he opt for a more credible and democratic system that has the approval of the country at large?

That Harper should have this unfettered discretion is itself very troubling and again draws attention to a serious lacuna in Canada's constitutional structure. In fact, among countries with a written constitution, Canada is probably alone in failing to provide how the members of its highest court are to be selected. The Supreme Court of Canada Act (which is not entrenched in the Canadian constitution) only mandates a court of nine judges, three of whom must be appointed from Ontario and three from Quebec. Nothing is said about the method of their selection.

The First Sale Doctrine - What Antitrust Law Can (and Cannot) Teach

Ariel Katz
Thursday, May 19, 2011

I have posted a new paper on SSRN.  The paper is based on a presentation that I gave at the Exhaustion and First Sale in IP Conference held at Santa Clara Law School last November.  Here’s the abstract:

The first sale doctrine (or exhaustion) limits the exclusive rights that survive the initial authorized sale of an item protected by such rights.  The first sale doctrine has always been under pressure by owners of intellectual property rights, and courts have never been able to precisely outline its contours, or fully articulate its rationale. Recently, and somewhat counter-intuitively, insights borrowed from modern antitrust law and economics are invoked to provide a seemingly robust theoretical foundation for undermining exhaustion rules or narrowing their scope, and thereby strengthen IP owners’ control over downstream distribution and use of the goods they produce.

Appointing New Judges to the Supreme Court of Canada

Benjamin Alarie
Saturday, May 14, 2011

Justices Binnie and Charron announced on Friday, May 13, 2011 that they would be retiring from the Supreme Court of Canada. In order to better understand the likely effects of this on the implicit policy preferences of the members of the Court, I analyzed all the judgments of the Supreme Court of Canada under Chief Justice McLachlin from 2000 SCC 1 to 2011 SCC 20 using the method of Martin and Quinn (2002) that Andrew Green and I have used extensively in earlier work (see here, here, and here).

The updated estimates of the position of the justices in a linear policy space is illustrated below. With the exception of Justices Fish (more liberal) and Deschamps, Rothstein, and Cromwell (more conservative), the justices are tightly bunched in the middle. The current estimates suggest that Justice Abella is the median justice given the current composition of the Court, with an ideal point of -0.05.

Optimal Panel Size at the Supreme Court of Canada

Benjamin Alarie
Wednesday, May 11, 2011

I have posted a new draft of a paper addressing the optimal size of a panel to hear appeals. It is entitled, "On Optimal Panel Size, with Evidence from the Supreme Court of Canada." It is coauthored work with my colleagues Andrew Green and Ed Iacobucci. Here is the abstract:

The US Supreme Court typically sits en banc. Historically, the House of Lords in the UK sat in panels of five. Its new successor, the UK Supreme Court, now sits in panels of five, seven or nine justices. A similar practice has long been in place at the Supreme Court of Canada, which routinely sits in panels of .five, seven, or nine justices. We develop a formal model of the optimal choice of panel size. The model suggests that in the presence of scarce judicial resources, panel sizes can be deliberately adjusted to improve allocational e.fficiency. Using data from appeals heard by the Supreme Court of Canada from 1984-2005, we uncover evidence that the Court may be using varied panel sizes in a manner consistent with the predictions of our model.

Comments and suggestions are most welcome.

 

Copyright Dogma and the Denied Google Books Settlement

Ariel Katz
Monday, April 11, 2011

Last month Judge Chin denied the proposed Google Books Settlement (the Amended Settlement Agreement, or ASA). While I’m pleased with the outcome, I’m troubled with some aspects of the opinion.

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