Austrian economist Joseph Schumpeter developed the theory of creative destruction to describe how something good, and even much needed, can come out of a tragedy. The theory suggests that some businesses must die and paradigms must be “swept away” in order to make room for new ones that will better survive the future.

This is a concept found in nature. For example, we know that left to their own devices, forests will burn down from time to time to clean out the forest floor and force a renewal. While it might feel heartless to apply the same principle to business, . . . [more]

If popular culture is to be believed, the success of a legal dispute is determined foremost by the calibre and character of one’s legal representative; the ability to deliver an inspiring closing argument is a clear signal that a favorable outcome is forthcoming. The recipe, it would appear, is one part institutional knowledge added to one part intuitiveness sprinkled with a dash of showmanship. (A devil-may-care regard for the truth and facts is optional.) Notwithstanding the oft times sensationalistic portrayal of lawyers in film, novels and the news, the role that legal professionals play in securing satisfactory outcomes for people . . . [more]

Since April, we have been calling for justice leaders of the world to get out of their national cubby holes and come together to share fears, failures, successes, and strategies, just like public health minister are doing. The COVID-19 crisis is too big and too unprecedented to deal with on your own national level. On 20 October, 22 ministers of justice did just that at the Justice for All in a Global Emergency meeting convened by Minister of Justice of Canada, David Lametti (see end for participants). It was a significant moment. For 90 minutes, they shared their experiences in . . . [more]

In March 2020, the Covid-19 pandemic changed our legal world the way no one could have imagined. Our courthouse went from a beehive of litigation activities to a silent graveyard. Practice directives containing emergency measures were issued and activated to deal with the change. Our civil litigation system that historically relied on an in-person process to undertake almost every task – from the filling and service of litigation documents to routine chambers applications and trials – suddenly moved to the online world built on technologies.

The legal profession was forced to adopt technologies to address administration and litigation needs at . . . [more]

Authors’ note: U.S. trade policy may well be affected by the results of the November 3^rd election, which this column was written prior to. 

In February 2020,[1] we took note of the first adopted WTO dispute settlement panel to interpret the GATT 1994 Article XXI national security exception: Russia – Traffic in Transit.[2] Now in Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (“Saudi – IP”),[3] we have a second panel that deals with the defence.

Addressing a complaint by Qatar, the Panel found that it had established a prima facie case that the Kingdom . . . [more]

The Federal Court of Appeal has clarified the Federal Court’s jurisdiction over contractual ownership issues as part of patent proceedings. Ownership of patents is often intertwined with the identification of inventors, assignments of patent rights and license agreements. The Federal Court hears most intellectual property cases in Canada and more certainty on the Court’s jurisdiction in this area is welcome.

As a statutory court, the Federal Court shares jurisdiction with the superior courts in certain areas and has exclusive jurisdiction on other matters. As it relates to intellectual property, the Federal Courts Act, Section 20 identifies areas of exclusive . . . [more]

Peer-review is a widely accepted process in scholarly publishing. It’s seen as a sign of quality and a way to establish legitimacy. There are, however, drawbacks to this process too. It takes time and doesn’t always give consistent results. What benefits do we get from the peer-review process and is it worth the costs? Are the benefits the same for legal information as they are for other disciplines?

Many journals, whether scientific or legal, open access or behind a paywall, use peer-review because it provides status that can help writers with tenure promotion or securing grants and scholarships. There are . . . [more]

Last December was a rare instance where the average Canadians’ attention was briefly captured by a matter of administrative law, thanks to Russian spies and Super Bowl ads. Two months earlier, Britons’ attention was also captured by a matter of administrative law, involving a challenge to the prorogation of parliament by the Queen at the request of Prime Minister Boris Johnson. In that case, R (on the application of Miller) v The Prime Minister, [2019] UKSC 41, on judicial review the UK Supreme Court held that the prorogation had been unlawful.

The loss was significant for the ruling Conservatives. . . . [more]

The 2020 appeals court ruling in York University v. The Canadian Copyright Licensing Agency, declared York’s fair dealing guidelines, which attempted to set out the terms for fairly using articles and chapters in the university’s courses without paying royalty fees, to be other than fair to authors and publishers. The court notes that “York did not justify [its claim to ‘fair dealing’] beyond invoking education as an allowable purpose” (258). In the face of the court’s refusal of York’s blanket appeal to the fair dealing exception to copyright infringement, and now that the case is headed to the . . . [more]

When I was in law school I remember my aunt, a trailblazing female lawyer who was born in 1948, telling me about her bar exam. She told me she took the New York subway to the exam location in the pre-dawn hours and sat on the steps outside the building waiting for it to open, just so that she could not be late. At the time, secure in my knowledge that my bar exam was years away, her caution seemed extreme. But she told me she wasn’t alone on those steps; she shared her silent vigil with a small group . . . [more]

In 2015, Ontario passed legislation aimed at protecting defendants from lawsuits stifling expressions made in the public interest. One aspect of this law is that it allows defendants to successfully bring an expedited motion to dismiss even in circumstances where the plaintiff’s action has substantial merit and there are no valid defences that could reasonably be advanced at trial.

This is known as the “public interest hurdle” analysis and, more exactly, provides that an action will not be dismissed if the plaintiff can show

the harm likely to be or have been suffered by the responding party [plaintiff] as a

I found it challenging recently to be asked if I have any further observations or opinions in relation to open access to the law book environment. The short answer is, “probably not”, but the fault for that is mine. However, given that the significant issues relate almost exclusively to primary legal materials, most of what needs to be argued on that is done elsewhere.

However, I do think that the question of open access in legal information publishing is entirely bound up with other related ones. Open access is part of an innovation debate. Key issues include the . . . [more]