The Lawyers Weekly - November 12, 2010

Email us at: tlw@lexisnexis.ca

JEFFREY
MILLER

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.

Dear Editors,

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.

Sincerely, Chris Bentley Attorney General of Ontario

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Shareholder votes: do they really count?

OPINION

CAROL
HANSELL

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.