Justice Rothstein proves his Legal Credentials to Queen's Law Students and Faculty Members

Photo by Daniel Chodos

Justice Marshall Rothstein takes questions from the audience during his talk on “Law and Economics in Legal Practice” in Macdonald Hall on November 26, 2007.

Justice Marshall Rothstein is no stranger to public speaking. As a lecturer at the University of Manitoba, a judge of 15 years, and as the inaugural Supreme Court of Canada nominee to brave the federal government's new, more stringent, vetting process, Justice Rothstein is an old hand when it comes to dealing with an audience.

For this reason, Queen's Law was honoured when Justice Rothstein agreed to speak about law and economics to an intimate gathering of students and faculty members hosted by the Visitors' Committee on November 26, 2007. His talk centred on the role of economics in legal debates and decision-making. In particular, he argued for an increase in the use of the law and economics paradigm among legal thinkers, and provided several examples from his days at the Ontario Securities Commission as background material.

"Most lawyers only like to deal with the law," said Justice Rothstein. "They're uncomfortable getting into economics, psychology, statistics and things like that. But that's where the economic cases are decided, and the economic details and concepts help to explain the statute or the regulations that are applicable."

Notwithstanding his fascinating analysis of Canada's transportation and competition industry, it was clear the crowd who came to see Justice Rothstein wanted to hear about his controversial "Harvard Mouse" decision, which he issued as a judge at the Federal Court of Appeal. In this decision, he concluded on behalf of the Court that Canada's Patent Act did not preclude a finding that higher life forms - in this case, the "oncomouse" - could be patented. Though the Supreme Court did not agree with Justice Rothstein when the Commissioner of Patents appealed his decision in 2002, the Court ostensibly adopted his reasons when it offered a way around the decision in a later case. "The Supreme Court wrongly reversed my decision," quipped Justice Rothstein. "But I'm not here to lick my judicial wounds."

After his talk, Justice Rothstein fielded questions from his audience, providing students in attendance with the unique opportunity to witness impromptu legal debates between their professors and a Supreme Court judge. "Justice Rothstein's use of personal anecdotes really illustrated the power of using the tools of law and economics to solve complex legal problems objectively," said Timothy Fish, Law '08, who was among the students in attendance. "His speech provided a rare insight into the thinking processes of a leading legal scholar and judge."

This perspective is hardly surprising. As an approach to legal analysis growing in popularity, law and economics theories may become essential reading for future lawyers. It is hard to imagine a better speaker on the topic than Justice Marshall Rothstein, which made his visit to Queen's Law that much more special.