U.S. Securities Regulation in Comparative Perspective

This seminar will provide an overview of U.S. securities regulation, with the goal of developing students’ understanding of the regulation of the U.S. capital markets from both a doctrinal and policy perspective, and understanding differences and similarities with Canadian market regulation and their respective regulatory structures and approaches.

Particular emphasis will be put on current regulatory issues, such as enforcement approaches, perspectives and initiatives and the relationship between securities law and corporate law. The Sarbanes-Oxley reforms of 2002; regulators’ responses to, and regulatory initiatives introduced in light of, the credit crisis in 2007-2008; concerns about the continuing global competitiveness of the U.S. securities markets; as well as the theme of increasing international cooperation and coordination in regulatory policy making will also be explored.

Topics to be covered include a history of American securities regulation; principles of materiality and on-going disclosure; the regulation of the public offering process; the prospectus system and exemptions from public offering requirements; mergers and acquisitions; the increasing role of shareholder activism, proxy battles and governance oversight; key players in the American enforcement environment; insider trading, manipulation and foreign corruption; debates over securities class actions under Section 10(b) and Rule 10b-5 of the ’34 Act; ESG disclosure issues; new and emerging issues, such as cryptocurrency and the role of public markets; and international cooperation and derivatives. Reading materials will combine theory (law review articles, reports of blue-ribbon commissions) with practice (statutory materials applied to problems distributed in advance).

Legal Values: Artificial Intelligence (Discrimination & Surveillance)

This seminar will explore in depth the many ways in which modern computing systems — including the data they ingest, the decisions made by the folks who develop them, and their myriad and nearly ubiquitous applications — may enable, encourage, or prevent societal
discrimination and surveillance capitalism of various types. Students will learn how algorithms and artificial intelligence (“AI”) systems work, how such algorithms and systems may provide differential treatment and/or outcomes for different populations, and how they may invade privacy and cause other harms to people. Students will also consider the potential legal/regulatory, technical, and social/policy interventions that could ameliorate the harms caused by such algorithms and systems and will weigh the advantages and disadvantaged of each.

At the end of the seminar, students should be able to (i) discuss with colleagues and others the positive and negative consequences of various current AI innovations, and (ii) suggest different approaches to address systemic bias and surveillance capitalism — including legal/regulatory or social/policy changes, as well as technical solutions — and explain why certain of these approaches might or might not work in specific circumstances.

Legal Values: Multiculturalism and Intra-Group Vulnerability

In the last fifty years, we have witnessed a pendulum swing concerning the relationships between the liberal state, the individual, and cultural minorities. The pendulum began to move during the last three decades of the twentieth century, when assimilationist and monocultural nation-state models were contested and increasingly displaced by newer multicultural models. These new models acknowledge the recognition of cultural minority groups as a prerequisite for the ability of their members to equally enjoy their freedoms and rights. But it was not without criticism that this multicultural swing swept the Western developed world. Critical works, which are collectively known as the literature on “minorities within minorities”, have drawn attention to inequalities within cultural minority groups and the way that these groups can oppress their own internal minorities – who might be women, children, LGBTQ+ individuals, members of a lower caste, and other groups of (less powerful) members. This problem of intra-group vulnerability is the focus of the seminar.
The seminar will bridge legal and theoretical materials to inform our understanding of this problem. As key to developing such understanding, as well as considering appropriate resolutions and strategies, we will identify the role of different players (for example state agents, governments, and community leaders) in various systems of oppression, including colonialism, racism, and patriarchy. Classroom time will focus on critically examining theoretical approaches to addressing intra-group vulnerability concerns, considering their application to actual contexts (to a range of religious, immigrant, and Indigenous communities in Canada and other multicultural societies), and detecting zones of uncertainty and disagreement.
Some of the topics covered include the criminalization of polygamy and forced marriage practices, bans and restrictions on Muslim head and face coverings, and the vulnerability of Indigenous women and children to colonial oppression in the context of Indian status removal (under the Indian Act), missing Indigenous women and girls, and the continuous risks of assimilation and other harms for Indigenous children in government care. Other topics focus on the conditions of internal minorities in religious contexts, including the exclusion of 2SLGBTQ+ persons by religious institutions (as in the Trinity Western University case), the protection of children in minority faiths, as well as tensions around religious education and pluralism in schools. These issues will be considered with attention to developments that mark a perceptible retreat from multicultural and diversity-accommodating agendas across the globe – indicating yet another swing in the state-individual-minority relations pendulum.

International Dispute Resolution: International Commercial Arbitration

This seminar will introduce participants to the resolution of international disputes through arbitration, and in particular, the key stages of an international arbitration, including the drafting of arbitration clauses, constitution of the tribunal, managing the arbitral procedure, evidentiary hearings, and finally, the set aside and enforcement of awards. In addition, the seminar will provide particular instruction on key features of international commercial arbitration, including arbitral institutions, investor-state arbitration, and various procedural rules.

Special emphasis is placed on the practical management of complex international arbitral proceedings by counsel. In this regard, the seminar will include particular instruction on client management, maximizing costs and efficiency, arbitrator selection, key advocacy skills, and ethical challenges that can arise in the context of international commercial arbitration.

By the end of the seminar, students should be comfortable with the key legal concepts underpinning the arbitral process and considerations structuring and managing an effective arbitral process.

ICT Colloquium

Climate disruption is attributable to historical and current day modes of production and consumption. Enduring solutions will require significant shifts in how modern societies are governed. Governance, in this context, is unlikely to succeed without attention to related priorities of sustainability, justice, and cohesion. Yet there is ample evidence that many leaders and institutions are unable or unwilling to address the challenge effectively.

This seminar explores legal and policy issues related to efforts to control the causes and respond to the impacts of climate disruption. It approaches the topic from an interdisciplinary perspective that considers law, science, politics, economics, and history. The seminar is concerned with how these perspectives can support pragmatic strategies in different areas of law and policy and at different levels of decision-making.

The seminar has two thematic segments. The first segment will examine the historical, political, economic, and scientific background within which the modern problem of climate disruption has arisen. This segment will also provide a broad survey of the major international legal regimes that have been developed to address the problem.

The second segment will focus on analyzing legal and institutional barriers to pragmatic action towards forestalling climate disruption and mitigating its impact on society. Particular attention will be paid to core societal functions such as food production, land management, water and wastewater infrastructure, energy, transportation, and communications. Students will have the opportunity to do their research in a relevant area.

Indigenous Perspectives and Realities

This course will introduce students to fundamentals of knowledge systems that inform
Indigenous understandings of law, justice, governance and treaties. It is intended to provide students with a deeper understanding and appreciation of the lived experience of Indigenous peoples in Canada. This course is offered as an experiential education opportunity that will assist students in gaining familiarity, in a variety of contexts, with the diversity of Indigenous worldviews, ontologies and epistemologies that frame Indigenous reality. The course will examine major political, educational, economic, legal, and cultural issues facing Indigenous peoples and communities in Canada in both present-day and historical contexts. Course material will be drawn from the Truth and Reconciliation Commission, the Ipperwash Inquiry, the Royal Commission on Aboriginal Peoples, the United Nations Declaration on the Rights of Indigenous Peoples, and Murdered Missing Indigenous Women and Girls Inquiry; as well as other materials that provide insights into the contemporary reality of Indigenous peoples. As the main goal of the course is for students to demonstrate a sound appreciation for the perspectives and realities of Indigenous peoples, students will learn directly from Indigenous peoples through guest speakers and assigned multi-media. Students will be required to participate in land based and experiential activities outside of the law school; there will be a remote option for students to fulfill these requirements remotely. The course will be framed around the concept of ‘place’ (e.g., urban
Toronto) and explore relationships to place from a variety of experiential perspectives (e.g., Indigenous, ally, settler Canadian, newcomer).

Climate Change Law

Climate disruption is attributable to historical and current day modes of production and consumption. Enduring solutions will require significant shifts in how modern societies are governed. Governance, in this context, is unlikely to succeed without attention to related priorities of sustainability, justice, and cohesion. Yet there is ample evidence that many leaders and institutions are unable or unwilling to address the challenge effectively.

This seminar explores legal and policy issues related to efforts to control the causes and respond to the impacts of climate disruption. It approaches the topic from an interdisciplinary perspective that considers law, science, politics, economics, and history. The seminar is concerned with how these perspectives can support pragmatic strategies in different areas of law and policy and at different levels of decision-making.

The seminar has two thematic segments. The first segment will examine the historical, political, economic, and scientific background within which the modern problem of climate disruption has arisen. This segment will also provide a broad survey of the major international legal regimes that have been developed to address the problem.

The second segment will focus on analyzing legal and institutional barriers to pragmatic action towards forestalling climate disruption and mitigating its impact on society. Particular attention will be paid to core societal functions such as food production, land management, water and wastewater infrastructure, energy, transportation, and communications. Students will have the opportunity to do their research in a relevant area.

Comparative Law: Comparative Constitutionalism

The seminar will initiate students into what comparative constitutional law as a field of study looks like. Students will critically explore methodologies for comparison and identify constitutional borrowings, transplants and migrations. The class will interrogate the relationship between constitutionalism, liberalism and democracy across different jurisdictions. It will compare defining structures such as separation of powers and federalism across while also studying specific constitutional rights across jurisdictions with reference to their formal status at law and their valence in society. The seminar will consider the structure and functions of constitutional courts, modes of judicial interpretation and the legitimacy of the function of judicial review. Finally, the seminar will track contemporary or emerging trends in the field. The jurisdictional contexts surveyed in the seminar will be selected both from the global ‘North’ and ‘South.’

Chinese Law

Lawyers, whether working in business, regulation, policymaking, or advocacy, are increasingly likely to come into contact with issues related to China over the course of their careers. Recent tensions, for example involving Huawei Technologies, trade bans on key exports, and the fight against COVID-19 are straining the Canada-China bilateral relationship. This course serves as a foundation for such encounters and aims to expose students to more of what lawyering involves in such contexts. It is an introductory course that addresses how aspects of the Chinese legal system shape China-Canada relations and inform the contemporary practice of law in Canada.

In addition to being of interest to students who would like to learn more about China and Canada-China relations, the class is also relevant for students interested in international relations and the practice of law in the global context.

The course will begin with an overview of Canada-China legal relations and China’s contemporary legal system. It will then examine the political, economic and social environment within which the Chinese legal system operates. Topics covered will include recent diplomatic disputes and their implications for bilateral relations; foreign investor ownership of residential real estate in Canada; cooperation on global issues in areas such as climate change, health and safety (including COVID-19), Arctic sovereignty and food security; gender equality, including sex work and human trafficking; trade and competition issues; key debates in criminal law, including extradition; and current tensions between Hong Kong and mainland China.

Course materials will include readings (all available for download through Moodle), documentaries, and guest speakers with experience working in the sphere of Canada-China relations (via zoom).

No prior knowledge of China or Chinese is required or expected for this course.

Please do not hesitate to reach out to the instructor (MBoittin@osgoode.yorku.ca) for any questions on the course.

Legal Values: Rise of Environmental, Social & Governance Expectations in Business

Society faces complex global challenges—climate change and environmental degradation, social and financial inequality, digital and data security concerns. More than ever before, business is being called upon by multiple stakeholders to be part of the solution to these challenges. The rise of stakeholder capitalism including heightened ESG (Environmental, Social and Governance) expectations is one of the most profound changes for business and its
legal construct that has occurred in decades. Whether business strategy has an opportunity to contribute meaningfully to societal solutions depends in large part on the legal, policy and regulatory framework that is constructed.

In this course, we will examine the evolving legal construct of stakeholder capitalism and develop an understanding of the components of ESG: the E (Environmental); the S (Social); and the G (Governance). We will look in turn at the major legal issues and opportunities that come from these potentially profound changes to business including:

• measurement, disclosure and transparency of corporations,
• the advent of ESG products,
• legal and reputational risk management by major brands,
• burgeoning litigation claims,
• the role of and levers of policy makers, NGOs and regulators both at home and globally, and
• the expectations of multiple stakeholders including employees, consumers, shareholders and the community including Indigenous communities.

To do so, we will invite business and practitioner speakers to supplement the readings and legal teaching with the practical insights of those “on the ground” in this fast-developing space.

There is no doubt that the rise of ESG is changing the needed toolkit of lawyers across multiple disciplines and creating new legal fields and innovative areas of expertise. Combining legal theory with exposure to practical application, the course will assist students to develop the necessary tools to advise on legal issues involving ESG and to prepare for the new career opportunities that are arising.