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Freud said a police officer is someone who has displaced his criminal
urges. Given a less developed super
ego, the theory goes, a surgeon might
have been a slasher. Maclean’s journalist Nancy Macdonald seems to
feel the same way about Judge
Richard Posner relative to businessman Conrad Black.
Off the Record last spotted Justice Posner on the road to Damascus, or Marshall Fields, as we put it
at the time: in January, we observed
that his Honour—senior judge on
the Seventh Circuit Court of
Appeals, law professor and relentless scholar, founder of the law and
economics movement and proponent of Economic Man (that perpetually self-aggrandizing fellow
who views even his family as objects
of cost-benefit analysis) — had
become a Keynesian. Suddenly,
this aging U. of Chicago Reagan-omicist had stopped rebelling
against his socialist parents to
revolt against Alan Greenspan and
become an Obama stimulationist.
This was not big news in Canada. As Macdonald points out in
“Judging the judge in Conrad
Black’s appeal” (Maclean’s, Aug.
30), Posner was virtually unknown
crime and then take steps to avoid
confirming the suspicion is the
equivalent of intending to commit
the crime.” And, in what is more
remarkably and typically Posnerian
than his judicial intemperance, he
pedantically defends ostriches
against this metaphor and gives a
law-school hypothetical of what the
instruction covers. The belief that
scared ostriches bury their heads in
the sand, he writes, “is pure legend
and a canard on a very distinguished bird.” He provides a supporting link to the website of the
Zoological Society of San Diego,
and quotes an entry there
explaining that when “an ostrich
senses danger and cannot run
away, it flops to the ground and
remains still, with its head and
neck flat on the ground in front of
it.” The sandy colour of its head and
neck cause a trompe l’oeil, such
that it only seems to be burying its
head in the sand.
His hypothetical posits that you
rent a house to people you think are
“a drug gang,” and you avoid driving past the house so as not to
confirm your suspicion.
As we mentioned here in January, as part of his law and economics efficiency drive, Posner once
suggested that, rather than resort
to adoption for their unwanted
children, mothers should sell them
on the open market. He used similar cost-benefit analysis to say black
See Miller Page 24
Re, “Government budget-slashing cuts into legal aid,”
The Lawyers Weekly, Oct. 29.
PHOTO COURTESY OF HARVARD UNIVERSITY PRESS RYAN REMIORZ / THE CANADIAN PRESS
Justice Posner (l) headed up the appeals panel in Conrad Black’s (r) case.
here until he headed up the
appeals panel on U.S. v. Black.
Canadian journalists then took
note of a bull-nosed judicial style
that has made Posner notorious in
the U.S., particularly his impa-
tience with counsel during oral
argument. Apparently unaware
that litigation lawyers find such
truculence an occupational haz-
ard, reporters thought it astonish-
ing that Posner would character-
ize as “ridiculous” (twice) a
so-called non-compete agreement
under which Black and his co-
defendants received US$5.5 mil-
lion not to set up a rival news-
paper in Mammoth Lake,
Calif. — population 7,093. Never
mind that the defence itself said it
was really a tax avoidance ploy.
Attorney General of Ontario
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Shareholder votes: do they really count?
The voting results at shareholder meetings mean more today
than they ever have. Shareholders
are more engaged, they are entitled
to vote on a broader range of issues
and voting results are, in most
cases, a matter of public record.
Curiously, though, there is no way
of knowing how accurate the voting results are. Various features
and flaws of the proxy voting system mean that votes cast may be
diluted, discounted or discarded.
Some shareholders may never
even receive their materials and so
will have no opportunity to vote.
In most cases, neither the issuer
nor the investor will know that
this has happened.
This is not just a Canadian
problem. The U.S. proxy voting
system is very similar to the Can-
adian system and suffers from
most of the same issues. The U.S.
Securities and Exchange Commis-
sion is currently engaged in an
extensive review of that system.
The Lindenauer Center for Cor-
porate Governance (Tuck School
of Business at Darmouth Univer-
sity) has produced studies of the
proxy voting systems in Italy and
Sweden that raise issues of con-
cern and is currently looking at the
U.S. and U.K. systems. The global
nature of capital flows means that
problems with the proxy voting
system are also global. Accord-
ingly, how issuers and investors in
different jurisdictions communi-
cate with one another must be
considered in determining
whether shareholders really have
meaningful access to their voting
rights. The International Corpor-
ate Governance Network has had
cross border proxy voting issues on
its radar screen for some time.
ENGLISH / FRENCH
of Property in Canada
Common Law - Civil Law
EACH ENTRY HAS:
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