The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Conflicts of law

Battle to rule the splinternet

By Yves Faguy December 6, 2016 6 December 2016

Battle to rule the splinternet

 

Ever since the world went online, free-speech enthusiasts have worried about national governments legislating the internet, and domestic courts enforcing those laws beyond their territory.

The first signs of this appeared with libel cases. Media companies were especially spooked in 2002 after an Australian court allowed a Melbourne businessman to sue New York publishing company Dow Jones & Co for online defamation. Critics of the ruling at the time declared it a tragedy for free speech, and warned of the demise of the internet and its fragmentation. Before long, media companies adjusted themselves and the internet continued on its path to become the global mass medium of choice.

Still, anxiety over the legal fragmentation of the internet keeps returning to the fore, with national courts now targeting the likes of Google and Facebook.

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Q&A

Q&A with Daniel Martin Katz: The finance of law

By Yves Faguy December 6, 2016 6 December 2016

Q&A with Daniel Martin Katz: The finance of law

Lawyers need to pay more attention to the financial industry, do better at predicting and pricing risk for their clients, and limit their own exposure to swings in the business cycle. Daniel Martin Katz, an associate professor of law at Illinois Tech – Chicago Kent College of Law, sat down with Senior Editor Yves Faguy to discuss some of the lessons fintech offers for the future of law.

CBA National: You say we are beginning to see the financialization of legal services. What do you mean by that?

Daniel Martin Katz: So in one bucket we’re seeing fintech removing meaningless frictions from various types of financial processes, by trying to work around banks – in mortgage underwriting, and peer-to-peer lending, that sort of thing. In the other bucket, there’s what we previously thought of as exotic risks or uncharacterizable risk. With data analytics, we’re able to predict or characterize them. There are aspects of those two branches in law. Financialization [of legal services] deals mostly with the risk part – predicting risk, which is a big thing that enterprise lawyers in particular do for people.

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Freedom of expression and rule of law

Silencing disagreement and promoting understanding of the law

By Yves Faguy December 6, 2016 6 December 2016

 

Commenting on a recent political rally in Alberta where chants of “Lock her up” broke out against Premier Rachel Notley, communications professor Brian Gorman  remarked, "There's an ugly tendency among the extreme right, and I suppose the extreme left as well ... to confuse any disagreement with something that must be eliminated."

Of course, there is absolutely no legal basis for putting Notley in jail. The crowd mimicking the frequent rallying cry at Trump campaign events was there to protest the NDP government’s proposed carbon tax, legally introduced in the province’s legislature for a vote. But the Carleton University professor could have just as easily been referring to the worrying trend on university campuses across North America to shout down controversial figures invited to speak to students.

The latest among these is renowned criminal defence lawyer, Marie Henein, who successfully defended former CBC radio host Jian Ghomeshi at his sexual assault trial. Ghomeshi was acquitted on all counts, but Henein has been the subject of harsh judgment in some quarters for her role in attacking the credibility of key female witnesses who claimed they had been assaulted by him.

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Justice

Provinces move to help remedy long delays in criminal cases

By Yves Faguy December 2, 2016 2 December 2016

 

It hasn't taken long for the Supreme Court's ruling in R. v. Jordan, which reframed the right to a trial in a reasonable time (by setting 18 and 30-month presumptive ceiling on criminal cases), to be felt in our criminal justice system.  It has threatened to derail organized crime cases in Quebec as well as numerous first-degree murder charges across the country, some of which have already being stayed because of unreasonable delay. You can sense the panic coming from provincial governments who are suddenly springing into action.  Yesterday Ontario  announced bail reforms and plans to take steps to unclog the courts by investing $25 million to appoint new judges, hire prosecutors and court staff. Quebec’s Justice Minister, Stéphanie Vallée, followed suit today by promising “tens of millions of dollars” to introduce similar measures, though she did not provide an exact figure.  It appears the top court’s call to action is working.

However, Keenan Sprague writes on Twitter that as laudable as the SCC ruling was, it might carry unintended consequences for the civil justice system.

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Technology and law

What's the big deal with AI anyway?

By Yves Faguy November 21, 2016 21 November 2016

 

Ryan McClead cautions against buying into the artificial intelligence hype that has taken over legal and mainstream media – not because it isn’t real, but because our own conception of AI  is a work in progress:

Google isn't considered AI, but it 'knows' what you're typing as you type, and then it filters a large portion of the web to give you the most relevant pages.  It would have easily been seen as AI twenty years ago.  Siri and Alexa personal assistants respond to voice commands and can return information instantly or actually perform tasks online, but they are considered borderline AI at best these days. Completely self-driving automobiles are still seen as Science Fiction and therefore are solidly in the AI column, but I predict they will NOT widely be considered AI by the time they are commercially available.  AI is a moving target. By the time a technology is commercialized it's no longer considered Artificial Intelligence.  Consequently, we fickle humans are consistently underwhelmed by the promise of AI even as AI fundamentally changes the world around us.

Ajay Agrawal, Joshua Ganz and Avi Goldfarb follow some “simple rules” as economists to make a similar point in the Harvard Business Review.  And just as digital technology in the 1990s helped bring down the cost of distributing information, machine intelligence will lead to a drop in the cost of prediction:

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