Reflections on competition law and policy in a changing world

Jutta Brunnée (00:04:14):

So good evening, everyone, and welcome to this very special event. The Faculty of Law is really, really thrilled to have this opportunity to partner with Torys LLP, and very grateful to Dany Assaf in particular for hatching this idea, broaching it with us and then bringing us on board, being able to co-host. My name is Jutta Brunnée, I'm the dean of the faculty, and I have the pleasure in that capacity to work with our globally recognized legal scholars, our amazing staff, our changemakers and leaders of the future, and incredible students. And I think a few of, all of those groups are here tonight. And so consider yourself warmly acknowledged. We thank you all for attending and helping us illustrate what makes the faculty so special and also one of the top places to think critically about international law in the world.

Before we begin, I'd like to acknowledge that we are gathering on land that for thousands of years has been the traditional land of the Huron-Wendat, the Seneca, and the Mississaugas of the Credit. Today, this meeting place is still home to many Indigenous people from across Turtle Island, and we are grateful to be able to meet and work on this land.

Let's continue to be mindful of ways in, that we can positively contribute to the path of reconciliation.

Now, we've had a wonderful year at the faculty celebrating the 75th anniversary of the modern Faculty of Law. And it seems hard at this point in the year, we just had a wonderful event three weeks ago at the faculty, it seems hard to top things, but I think we might be able to do just that tonight. And I'm delighted to introduce this event that celebrates one of our faculty legends, Professor Michael J. Trebilcock. His work and his presence as a teacher, a friend, a mentor, a colleague to generations, literally, of students and also faculty colleagues. All of that has had such an extraordinary impact on us and has contributed so much to our faculty and in fact the university.

So we're very lucky to have you here with us in the city tonight, Michael. And we are really, really grateful for your continued engagement, with us, at the law school. A very warm welcome also to Professor William Kovacic, who's a global authority in antitrust law and, among other things, a former Chairman of the Federal Trade Commission in the United States.

And so who better to engage in conversation with Michael Trebilcock at this moment of great uncertainty in the global trading system, in the U.S./Canada relationship, and on and on and on. So thank you also very much for being here tonight.

And last but certainly not least, my great pleasure to introduce our host and moderator, Dany Assaf, a partner here at Torys.

And once again, thank you for getting the ball rolling so we could have this really special evening here. Dany, we're proud to claim him as one of ours. He graduated from the faculty in 1994 and has built, I'm—it’s almost needless to say, a reputation as one of the country's leading, or country's leaders in foreign investment, competition and antitrust law.

He's the co-chair of Tory's Competition and Foreign Investment Review practice. And he advises on, international and domestic clients on all aspects of competition law and foreign investment matters. He has truly, astoundingly broad international business experience advising and helping businesses grow worldwide. And he also sits on the board of the Conference Board of Canada. He is a member of the American Bar Association's Thought Leadership and Antitrust and Academia Task Force, so there is a connection here between the law school and our academic way of doing things and the “real world”, as we like to say. And he is very used to sharing his knowledge with speakers, with members of his industries, his, his way of thinking forward into the future of the industry as well, and lectures to students on competition and foreign investment at universities across Canada.

And I could go on. I will just add maybe one more thing. He's also an award-winning author and he can be regularly heard if you like what you hear tonight: CBC, CTV, and on and on and on. So I'm really delighted, Dany, to turn things over to you for what is bound to be a special evening.

Dany Assaf (05:09:00):

Wonderful. Thank you. Thank you. Thank you, thank you, thank you, Dean. You know, it's a very special occasion here, for me and for all of us. And just to give a little more context of what we're doing and the pleasure of having and honouring one of our very own, and one of the greatest minds in this country on competition policy and beyond, Michael Trebilcock, but also to have Bill Kovacic here, who chairs.

So, this started—just to give you a little sense of how, you know—the beauty of community, let's say, of how this all comes together with our dear connection to the law school and our dear connection to Michael and to academia and our friends in the United States. So I have the pleasure of sitting on this thought leadership task force, which, Bill is the co-chair of. And, of course, being one of the preeminent commentators and thought leaders, one of the prolific writers, in this area and beyond as well, I said, I remember in one meeting, perhaps, I said, “We need to do something in Canada. I'm the only Canadian on this task force—”

William Kovacic (06:15:15):

Something good—

Dany Assaf (06:17:08):

Something good.

[Laughter]

Thank you, Bill, for clarifying.

And honestly, before I could finish my sentence, Bill said “Michael Trebilcock. We need to honour and we need to capture this icon of Canadian academia and thought leadership in competition policy and beyond.” And I said, “Great idea.” And then immediately it came to mind that I had to call my friends at the law school—Josh Morrison, one of my collaborators here at the Future of Law Lab—and then, of course, the Dean, who's now become, I would like to call, a friend as well, in different capacities, dealing with…and again, without hesitation, “This is something we must do, and we must roll it into the university's 75th anniversary as well.” So, we come together with these, with Michael and his over 60 years of contribution, and we don't want to—we only, we only want to think of you as a Canadian. We don't want to think of anything before that.

[Laughter]

He joined the faculty in 1972. 60 years. It's just an extraordinary, extraordinary career. And he's touched so many. And then we think, exactly what is it that we are benefiting today in these tumultuous times?

It's true. And what do you do? What do you do in these times? The refuge, the anchor. We come back, we hang on to what? Substance and wisdom. And we try to think our way through things. And this is what's represented here today. There's a proverb or something out there, many people have heard, it says, “Seek knowledge and youth so you can share it with age.”

And we are here today to benefit from great knowledge and great wisdom from these two wonderful gentlemen, and in particular to be able to capture it for today. And we will continue through our knowledge capture initiative in the American Bar Association and this task force. It’s being recorded so that can be shared and touch even more people across the world.

So, thank you. Welcome. And I'm going to turn it over to these two wonderful minds. And I'm like the, I'm like the winger, with—now, we don't use Wayne Gretzky anymore because of, you know—

[Laughter]

—so we say Connor McDavid and Draisaitl, because I'm from Edmonton. And then you could put any random winger with them and the puck will go in off of them. So that's the hard work.

[Laughter]

Yeah, there's the unknown winger. But yes, I hope I, I hope I can put the puck in the net when required.

Please, Bill.

William Kovacic (08:44:08):

Dany, I'm enormously grateful to you because you're the one who made this possible.

Dany Assaf:

Thank you.

William Kovacic:

This was your vision. And I'm thrilled that we're here. I'm, I'm so thrilled to be here to honour Michael and to, to talk about Michael's invaluable contributions to our field. And, and Dean, thank you. I think it's unmistakably a certifying mark of a great university to honour and respect the people who helped create that greatness.

So, what a tradition to build and carry on for, for UT. It bodes so well for, for a further great future. You know, how do you, how do you situate the work of, of a single person in, in a larger body of work? There have been, there have been wonderful people who worked in the field of competition, regulation and affiliated areas that have taken so much of Michael's professional attention.

They're, they're truly good people. It's a, it's an exceedingly good cohort. But how do you take someone who—my strong claim to you would be, there's none better. There's been none better in my lifetime. And I think a, a bit of pleasure that we can all enjoy is that we saw that happen. I think it was Joni Mitchell who said, “Don't it always seem to go, that you don't know what it's got till it's gone?”

[Laughter]

Dany Assaf:

Wow.

William Kovacic (10:00:00):

She was a legal scholar

[Laughter].

Dany Assaf (10:01:09):

True.

William Kovacic (10:02:07):

But, but she was wrong because it doesn't always go that way. There are times in a lifetime where you see the greatness right in front of you. As Dany suggested, I'm a prisoner of sport. That’s all that I cared about until recently. And, and, and part of the wonderful part of being a fan of sport is that you have a vivid memory of people who are great. And you can talk to your friends and say, “Isn’t it magnificent that we saw this person do this?”

Well, we all got to watch Michael's work, and there was no question about the greatness. There was no later hit-yourself-on-the-forehead realization that, “My God, there goes one of the best who ever lived.” I think we knew that at each step of the way, which is part of the joy of being here. You know, my, my, my strong claim is that there's never been anybody better.

I'm, I'm thinking of an interview that I read of the, the head of the art collection at the Hermitage Museum in Saint Petersburg. And the journalist asked, “Do you have the best collection of art in the world?”

He said, “Well, there are a lot of good ones. I mean, that's hard to say.” And he paused for a moment and said, “I can assure you of one thing. We are not the second.”

[Laughter]

And, and when I think of Michael's work across the field, he is not the second.

[Laughter].

And it's not as though he's further down the list. Nobody surpasses him. And I think we'll get a feeling of that tonight. So, so, Michael, welcome, and thank you for being here with us this evening. We, we thought that we, we'd start with a little bit of a biographical tour, to ask Michael about a couple of highlights that, that led him into this career, led him into the path, into the academy, as we'll see tonight, and so many other paths that created a synapse between the world of theory and practice, in a, in a powerful way.

But, but as you think of your, your personal journey, if you can simply single out a couple of events that really changed your life: that put you in the direction that you pursued over these decades.

Michael Trebilcock (12:14:11):

Well, thank you, Bill, for those excessively flattering remarks.

I… Trying to think of, of a cataclysmic event that turned my career around. I think it was a growing, a growing recognition that in the areas of interest to me, I needed to know some economics. And I studied law in New Zealand. It was a first degree. It was mainly taught by adjuncts. A few choices of courses. So I, I knew, I knew very little law, never mind economics.

[Laughter]

Dany Assaf (13:03:00):

That's it.

Michael Trebilcock (13:06:08):

But I moved to the University of Adelaide in Australia and one way or another was appointed to a government taskforce, to reform consumer protection laws. This was in the 1960s. Well, I'm a commercial lawyer, but I know nothing about how to regulate markets, right? Regulate markets? What are they talking about?

[Laughter]

But I started to read the literature, mainly American literature, and I realized that we couldn't make sensible recommendations—abolishing all creditors’ remedies, putting tight caps on interest rates and so on—without knowing what the economic effects of these proposed measures were. So, I, I and my family, a member of which is Katherine Stemberg and her wonderful husband there, we moved to Canada and I think it was absolutely the best decision. I, and I think the family have remained the—

When we arrived here, competition policy reform was the big issue, right? So it was not consumer protection reform. It was competition policy reform. And very few schools, of those schools at that time even taught competition law. And I was elected vice president of the Consumers Association of Canada, which then a very—

Dany Assaf (14:59:08):

Very.

[Laughter]

Michael Trebilcock (15:00:07):

—prominent organization. And they appointed me to be sort of their lobbyist for, for stronger, more effective competition laws. So, I said, “Okay.”

Who, who else does that?

Dany Assaf (15:18:06):

Yeah.

Michael Trebilcock (15:20:00):

But I started to feel nervous. I knew, you know, no economics. Right? So, in the middle of this endless process of competition policy reform—and I should add in, Bill Kovacic was a wonderful visitor over many roundtables we ran at the University of Toronto. And I have known Bill for thirty or more years.

William Kovacic (15:48:02):

Easily.

Michael Trebilcock (15:52:06):

So, I decided, along with a friend and colleague, to enroll in this one-month immersion course at the University of Rochester organized by Henry Manne. Economics for Law professor. Nineteen, I think, seventy-four.

And then in 1976, I was fortunate to be appointed a Fellow in Law and Economics at the University of Chicago. And we moved there, the whole family, for a year. And I turned myself into a student again. In my early 30s, I audited courses by Ronald Coase, Gary Becker, George Stigler, Milton Friedman, occasionally.

Dany Assaf (16:38:10):

Wow.

Michael Trebilcock (16:39:09):

Occasional appearances. And that was the first cataclysm in my life it, um, it turned my academic life around.

William Kovacic (16:51:15):

You have a fascinating experience in what we would call perhaps the, the world of developing market economies as well. That provided such a direction for your work. Papua New Guinea, can you tell us a bit about that?

Michael Trebilcock (17:11:07):

Yes. This was, I would say, the second turning point in my career, right? I had this University of Chicago immersion, right? You know, markets are almost ever—almost always work, governments almost always fail—

[Laughter]

William Kovacic (17:36:10):

Don't have to know any more than that, do you?

[Laughter]

Dany Assaf (17:37:07):

Yeah.

[Laughter]

That's it, exactly.

Michael Trebilcock (17:40:05):

I think one of my early graduate students said, reminded me, I handed him, when he was writing his thesis, Milton Friedman’s book, Capitalism and Freedom. I said, I think I—he said, I told him, “This is all you need to know.”

[Laughter]

And then Papua New Guinea came along. Papua New Guinea, six years later, 1982, six years after Chicago. Papua New Guinea at that time was a small—population-wise, three million people, island state south of the equator, one of the poorest, most traditional societies on the face of the Earth. And, not economists but anthropologists, Margaret Mead and Bronislaw Malinowski had done some of their most pathbreaking research there.

So, an economist friend of mine who was visiting at the U of T said, “I saw this little ad in The Economist for people, scholars interested in land compensation.” I said, “Well, I don't know nothing about that.”

[Laughter]

He said, “I know how to value properties that the government is expropriating.” So I said, “Let's put in a letter to this research institute.” We had nothing for weeks. And then somebody called me from Papua New Guinea in the middle of the night, said, “We want you out here.”

William Kovacic (19:17:08):

“When can you start?”

[Laughter]

Michael Trebilcock (19:20:11):

So, Jack [inaudible], my friend and I, went out for three weeks, and then they invited me to return for a year, the following year. And that was an earth-shattering experience for me.

William Kovacic (19:33:10):

Was, was it a little bit scary to leave Toronto and, “I'm going to Papua New Guinea?” I don't think there was a UT equivalent—

[Laughter]

—in Papua New Guinea, a much different environment. Was that a bit frightening?

Michael Trebilcock (19:51:00):

It was. And it was a dramatic antidote to the University of Chicago, right? In Papua New Guinea, nothing worked the way—

[Laughter]

—it did in the University of Chicago, people said it should. Right?

[Laughter]

Neither governments nor markets, right?

Dany Assaf (20:09:07):

[Laughter]

Yeah.

Michael Trebilcock (20:12:01):

And I, I was the interim research director of an independent research institute, and I did various studies while I was there. And I traveled widely throughout the country, I drove up from Lae on the North Coast up to Mount Hagen and the Northern Province, and interviewed people along the way, and their plantations, over their kitchen tables.

William Kovacic (20:41:06):

Mind you, this is not paved highway, super expressway, easy traveling.

[Laughter]

A Jeep.

Michael Trebilcock (20:50:12):

It’s kind of a perilous drive. And a Jeep, right? Stopping along the way. So this was my introduction to law and development, and I initiated a program or a course in law and development, and one of my close collaborators over the years, Mariana Prado from Brazil, is here tonight. She and I have co-taught the law and development course for more than 15 years, written two books together, several papers. But it all began with Papua New Guinea. But I never completely lost the Chicago treasures, right?

William Kovacic (21:39:04):

Yes.

Michael Trebilcock (21:40:02):

But I kind of put them in a better perspective. I think as I got older and maybe wiser.

[Laughter]

William Kovacic (21:48:10):

But it's, I think this is, another—and we'll come back more to it, this is the signature Trebilcock feature, which is this ongoing engagement with the larger world. And fellow academics, that's real field work—

[Laughter]

—to go and do, do, do those interviews in the field, over a, over a table and maybe with a candle—

[Laughter]

—to be, to be taking notes, but to actual, actually talk to people about their experience and to see it firsthand. That, that becomes such a, such an unmistakable element of your, of your work.

To come, to come to the University of Toronto. You brought this multidisciplinary perspective with you. To the law school. And maybe to say a bit about the development of a law and economics program here, but multi-disciplinary and its larger orientation, how that took shape at the University.

Michael Trebilcock (22:50:07):

Well, I mentioned the one-month boot camp at the University of Rochester and the year at the University of Chicago. So when I returned from the University of Chicago in 1976, the faculty, at my urging, had hired Rob Prichard, a former—

Dany assaf:

Yes.

Michael Trebilcock:

—student. Just completed his LLM at Yale, and he and I launched the law and economics program together. He, of course, subsequently became my dean, then the President of the University of Toronto. Subsequently I, we, again persuaded the faculty to hire Ron Daniels, former student of mine.

William Kovacic (23:41:00):

Whatever became of him?

[Laughter]

Dany Assaf (23:44:02):

Anybody keep track of him?

[Laughter]

Michael Trebilcock (23:45:07):

He and I ran the program for a number of years. And then when he moved on to become Dean and then later, President of the, of Johns—

Dany Assaf (23:57:09):

Hopkins.

Michael Trebilcock (23:59:06):

And Iacobucci and I ran the law and economics program, and he became my dean.

Dany Assaf (24:06:10):

The Midas touch, there's no doubt.

[Laughter]

I'm waiting for my appointment, but we’ll see.

[Laughter]

But, you know, Michael, it was, it was, I could tell you as a student, too, the impact you had on me personally. And having come from Alberta—as I mentioned, Edmonton Oilers, Alberta—I studied business there, and I came to law school, and I didn't know what competition law was. I, I had no idea.

But I remember those, those weeks we had the law and economics weeks or whatever they, they called them then. And, and your presence on the stage, firstly was so captivating. And the experiences that you brought, they came through: that, you know, the Chicago school, you know, “the markets will figure something out, figure it all out.” And then, you know, your, your development work. And, you know, for me, it brought all these worlds together. And people ask me, “what do you love about this area of practice?” It's, it's the interdisciplinary nature of it. And your curiosity as a human being and as a teacher came through and really lit in me the seed of how I got here as well.

And I think that's reflective of so many, so many students over the decades that have benefited from your, from your scholarship and teaching.

William Kovacic (25:18:02):

It's, it's what one of your, one of your colleagues refers to as your “intellectual pluralism.”

Dany Assaf:

Yes. Yes.

William Kovacic:

Another used the term “ecumenical perspective.” That is, the broad perspective, not simply in philosophy and orientation, the, the broad command of many subjects. But I take it that's what became an exciting part of the experience, is the multidisciplinary point of view at the law school.

 

Michael Trebilcock (25:46:11):

Yes, it wasn't just law and economics. When we launched the law and economics program, we also launched an interdisciplinary program in law—legal theory, legal philosophy, and another program in health law and social policy. These are right—somebody commented two weeks ago we, you know, three weeks ago at a conference, moved legal education into the university, but it was not of the university, into the university, but not of the university. But in the early going, in law and economics, we had all kinds of cross appointments from, from the business school and the economics faculty.

We, we co-taught courses together. We wrote our course together, we—I taught them law, they taught me economics. And right now, I'm starting, Brenda, you—forgive me for mentioning this, where I'm starting, Canada’s leading family law and feminist scholar on the, the appropriate role of private ordering in family relations.

Right? In kind of a freedom of contract [inaudible]. Brenda's a very, very, very close friend of mine for decades. I don't know whether we can pull it off, but why not try, right? I think it's actually an important issue with it.

Dany Assaf (27:23:01):

It is.

Michael Trebilcock (27:23:05):

The partnership life model of marriage gets, gets reconceived, all kinds of intimate relationships where, you know, what is the role? Well.

Dany Assaf (27:35:05):

Yes.

Michael Trebilcock (27:35:11):

You know, private agreements, the nature of these arrangements. I actually think it's an important issue. So let's see where the, Brenda and I can make common cause. Maybe we'll blow away.

[Laughter]

William Kovacic (27:53:02):

To, to, to look ahead a bit. Thought about the future. Isn't this perhaps a necessary foundation for good legal education in the future? That is, a multidisciplinary perspective, a realization that individual policy done–domains are not in watertight compartments, that the, that the successful lawyer of the future is going to have to be a bit of a political scientist, an economist, a sociologist: to have a broad perspective and that, that's the preparation for practice, successfully, in the world ahead.

Michael Trebilcock (28:32:11):

That's my belief, that’s my firm belief, fundamental to my whole certain personal credo. We have a book coming out any day with Ninette, Ninette Kelley and myself and Jeffrey Reitz, the former Chair of the Sociology department. Sociology—

William Kovacic (28:58:12):

Yikes.

[Laughter]

 

Michael Trebilcock (29:01:05):

—on contemporary Canadian immigration policy issues, it turns out that sociologists have a lot to say about whether immigrants do or do not integrate well. And so we enlisted Jeff. Tragically, he passed away three weeks ago, wintering in Mexico City with his wife. He wanted to see the book, and he died suddenly. But, you know, I enjoyed working with him. Tragic that he passed so suddenly.

William Kovacic (29:36:08):

But, but what an illuminating path for a university for the future. That is to, to, to seek to realize the integration of its different capabilities, the bodies of knowledge, to bring them to bear on addressing pressing social problems that if you, if you think what's, what's the way out of the future, what's, where do the solutions to seemingly crippling problems lie?

It seems to me that, that you, you showed us the path.

Michael Trebilcock (30:07:11):

Well, you shouldn't diminish your role in this. You've been a role model to me, in the competition area and as a, sort of maybe uncharacteristic in current times, cosmopolitan, you've traveled the world. Right? You've traveled the world, advised governments all over the world, developed and developing. You know, I like to think I traveled and taught various places, my list is minuscule compared to yours.

William Kovacic (30:40:02):

Um.

Michael Trebilcock (30:40:10):

I know, I'm not supposed to be interfering.

[Laughter]

William Kovacic (30:43:14):

No, we can keep doing. Yeah

[Laughter]

That's fine.

But, but in the, in the, in the sense of influence, it was indeed 30 years ago that I met you first in Venezuela. It was a conference in Caracas. And I think you remember a phase of your academic life when you were a junior person basically known as “Hey, you.”

[Laughter]

I remember two things about the event. One is that you noticed that, when you spoke with Michael and you had one of these nametags, Michael was actually trying to learn your name. And, and in Washington, you noticed when people, speaking to you, there's a style of, sort of, scanning the room to think, “Is there anyone who can help me out more than this person here?”

[Laughter]

And, and their head’s bobbing around, just scanning. And, and you could be talking to him, saying, “Yes, your pants are on fire,” “Yeah. Yeah. Good.”

[Laughter]

When, when these people look at your nametag, they're saying, “Is it really worth my time to talk to this one?” When Michael spoke to you and looked at your name tag, he was trying to learn who you were. And to have a senior established leading figure in the field who showed what field work was worth. Who showed why it was important, who showed why you wanted to do this work. That had just invaluable impact on—

And the room’s filled with people who've had that touch. But, but that was something you pioneered, long ago. And, and one thing that's, one thing that's striking that you can see in the, in the comments, I just wanted to, to, to mention again, is that in this position at the university, you began to build a community. Not just of the academic scholars, but as the dean was saying before, a deep connection to the profession within Canada, across borders, across the world.

In the solarium.

[Laughter]

How did, how did the workshop, how did the workshop start? How did all that—I mean, no one's going to accuse the solarium of being too spacious or having a good climate control system.

[Laughter]

They turn off heat in the summer, and,

Dany Assaf (33:04:06):

And, and cold air during the—

William Kovacic (33:05:13)

—winter, so on the average it was fine.

[Laughter]

But, but, about how, how the, how the, how the workshops developed?

 

Michael Trebilcock (33:17:01):

Yeah. Well, I take only partial credit, I mean, we had a law, law and economics workshop that met every couple of weeks, but also a legal theory workshop met every, met every couple of weeks or legal history workshop that met weekly, constitutional law workshop. I didn't know what I missing, Jutta…

Jutta Brunnée (33:41:09):

That’s good.

William Kovacic (33:46:08):

Good start.

Michael Trebilcock (33:48:04):

We tried to go to each others’, some of each others’ workshops, we tried not to be narrow-minded. And I don’t think over my 50 years on the faculty, the faculty ever divided around… Or developed the serious fault-lines around these competing perspectives, rather, whether it was directive justice or distributive justice or feminism or law and economics, we, I think we were good, close colleagues to one another, which is not always the case when… anyway, when there's a risk of, you know, fragmentation or division, but that, that has not happened at our law school.

Dany Assaf (34:35:04):

Michael, just on that, you know, because there is, as Bill suggested, the complexity of the issues today, necessity is the mother of all invention. And we spent, it feels like, what you're describing in many spheres, we siloed and we specialized. And it worked, because it was, we were, we were, we were on the, on the, on the wings of the integrated thinking of your, of, of your early work and people like you who thought in this integrated way. And now it seems like the complexity issues require this again. As a discipline, how you personally were able to maintain that curiosity but also still be at the thought leadership—I mean, I have the list of all the areas, when you go on his bio, all the areas of, of, of expertise, I mean, you literally can't memorize it. I try to memorize things, you can't memorize it—

William Kovacic (35:26:10):

But, but just for completeness—

Dany Assaf (35:27:15):

Yeah, just for—

William Kovacic (35:29:03)

Just for completeness, here are the areas of mastery. I mean, a, a number of academics, many of us are famous for having quick and shallow minds. It’s glib observations about a lot of things, but no real command of any one. But, but these are the fields in which Michael has put an imprint. It's antitrust. contracts and contract law. Consumer protection. Economic development. Immigration. Regulation. Trade. Institutional foundations of policymaking; equity and fairness in policymaking. I find it a bit depressing to read the list—

Dany Assaf (36:08:11):

It is. It's inspirational. It is.

William Kovacic (36:13:10):

And, and these are not, these are not intermittent tourism developments to selected places.

[Laughter]

To go through the list and to see the wide ripples of the scholarship, it is, it's a bit more like Lake Superior: very big lake, very deep. Very deep, and, and, and breathtaking in its scope. You've suggested a bit about how you moved from area to area, but how did you go about doing this?

That is, we heard the consumer dimension: earlier experience in Australia. The experiences in Canada, competition law, all of the enterprises you were drawn into, how did you expand your field division to do all of this?

Michael Trebilcock (37:07:11):

Well, that's an intimidating question.

[Laughter]

William Kovacic (00:37:13:02):

I want very specific guidelines.

Dany Assaf (37:15:08):

If you want to rank [inaudible] how to.

William Kovacic (37:18:14):

Especially for, for the, the, the junior academics. I mean, it's, it's, it is breathtaking. But how did it happen?

Michael Trebilcock (37:29:06):

Well, the modest answer would be that I'm a dilettante.

[Laughter]

And that I have a short attention span.

William Kovacic (37:38:14):

[scoffs]

Michael Trebilcock (37:40:11):

But I think I can give a more plausible answer than that. I started with consumer protection. Well, then I moved in Canada, when we moved, on to competition policy reform. Well, that's a major dimension of consumer protection, right? Competition policy. I, I was a representative of the Vice President of the Consumers Association of Canada, so moving from consumer protection to competition policy was not a big leap for me. Then writing my book, The Limits of Freedom of Contract. That was my mea culpa from my time at Chicago.

[Laughter]

The limits of freedom of contract, not the virtues of freedom of contract.

[Laughter]

William Kovacic (38:36:03):

You atoned, it’s okay.

[Laughter].

It’s all right.

Michael Trebilcock (38:40:10):

Then, then from competition policy to trade policy. That's an easy move. Right? I happen to believe that trade policy, trade policy is a critical dimension of competition policy. That is international competition. Yeah. Something that I don't—not you, but some of your senior officials seem—

[Laughter]

Dany Assaf (39:12:01):

We haven't noticed, Michael.

[Laughter]

Michael Trebilcock (39:12:14):

—difficult to grasp.

William Kovacic (39:16:10):

Yeah. Yeah.

Michael Trebilcock (39:18:13):

Right? That in a small, a small country, population-wise, like Canada, 40 million people, or my former homeland, New Zealand, five million people at the bottom of the Earth. I mean, the idea that we could ever conceive of becoming self-sufficient and everything is ridiculous, right? So the idea that you can have an effect of competition policy without an effective trade policy for me is complete nonsense, right?

William Kovacic (39:50:13):

And immigration, the mobility of human beings.

Michael Trebilcock (39:54:04):

So now I move on from consumer protection to competition policy. It's a trade policy. And then I move to immigration. Well, if it's good to move goods and services and capital across borders, why not people? Why not people?

You know, I was sitting in the atrium today of the law school, watching the students go by, and I'm just stunned, right? Compared to when I started 50 years ago in 1972, the majority of students there were women and a large percentage were clearly visible minorities. This is a dramatic change from when I started my academic—and for the better. Right? And for the better.

So, you know, if you talk to Europeans about the European Union, they say, “We, we, it's focused on four freedoms,” right? Cross-border movement of goods, cross-border movement of services, cross-border movement of capital. And four, cross-border movement of people. I would actually add a fifth freedom, and that is cross-border movement of ideas, including technological innovations. For me, all of these are connected, right? Goods, services, capital, people and ideas. So, I don't think the choice of focus at the time is totally erratic.

William Kovacic (41:39:15):

Well, and hardly.

And, and again, if you're looking for a path ahead to understand the connections and how crucial they are, would seem to be a necessary foundation for, for getting out of the tunnel, ultimately. I mean, I, I think back of the time in the ‘90s, Michael, when I think there was a view that, you know, trade would not only increase global wealth—it would do that—that economic interdependence would discourage armed conflict, that the countries would see a shared common cause and building an integrated economic framework which might lead to deeper political integration.

And that a benefit of trade, and I, I recall having a conversation with you before, is it one consequence of trade is that if you see something that's nicely done and another place, done by someone you don't know at all, it can be an object. It can be an idea. You don't know them at all. But how can you not respect at a deeper level, the person or the society that did that and created that? That it could be a source of greater empathy and understanding as well.

Where did things go wrong? That is, how did, how, what, where did we turn off the path? And, and maybe it's a larger question, how do we get back on to it?

Michael Trebilcock (43:23:05):

Well, of course, you and I, Will, are sort of ultimate cosmopolitan, right? We've traveled the world. But clearly, a significant percentage of the American population, maybe there, and maybe also the population of many other countries that adopted extreme forms of nationalism, or populism, they clearly don't think like us. Right?

That's the challenge, the…and I, you know, I've taught trade, the trade law seminar for, I think 40 years before I retired. I believe it's just exactly what you described. It wasn't only economically beneficial, mutually beneficial, but it would lead to a, through greater economic interdependence, not independence, greater economic interdependence would lead over time to a more cosmopolitan view of the world, right?

I, I believe that. And I think it was true. You know, I've just written a little piece. Right up to the turn of the 21st century there were people like Thomas Friedman writing the world was flat or, legs of, the olive tree, Peter Singer, a prominent philosopher at Princeton, the world is flat. Francis Fukuyama, the end of history—this is, this is now, this was 25 years ago, right? They all proclaimed what you and I believe: the world is all coming together. So, so the world has fallen apart, I think, in relatively recent years. I, I think of Putin's appropriation of Crimea in 2014, I think of the election of Trump in 2016, I think of the Brexit vote in Britain in 2016—

William Kovacic (45:42:08):

2016 was a vintage year.

Michael Trebilcock (45:45:15):

A bad, bad year.

Dany Assaf (45:47:10):

Boy.

 

Michael Trebilcock (45:48:14):

And, and Xi Jinping, ping, sorry, eliminating term limits, as did Putin, on his tenure in power, about the same time.

William Kovacic (46:04:04):

Such as suggesting, “I'll have a third term,” maybe.

Yeah. Yeah, yeah.

Michael Trebilcock (46:09:05):

So I, I don't have a good explanation of why things that looked so bright at the end, you know—the fall of the Berlin Wall in the late, in the early ‘90s. China takes off. It all seemed to be on course the way you and I believed that should be it. Now, I, I think of myself as being naive.

William Kovacic (46:36:10):

I feel, I feel the same, although, although you, you pointed to something long ago that maybe we've lost sight of. And that's the work that you did on equity. Writing about the fact that in all this process, there are people whose lives are turned upside down and they lose. They're not winning. My childhood was spent in Detroit, Michigan, which used to be called the Motor City.

Michael Trebilcock (47:05:09):

That, is that where you grew up?

William Kovacic (47:06:12):

That's where I grew up.

And if you've been there, you can take a tour through the carcasses of industrial America, the factories that were shuttered. They haven't been torn down. And I occasionally go back there to do things with my high school. And I take the, the unsentimental journey driving by these facilities: places with names like Fisher Body Plant Number 21, which used to be the hub of a thriving industrial complex with well-paying jobs that were a source of enormous economic and social mobility.

It is, it's a, it's a, it's a, it looks like the movie set for a post-apocalyptic film where zombies rule the world and nuclear warfare wiped out the population. And I could see that happening as a child. That is, that is people whose lives are being turned upside down. I'm not sure we kept our eye on the question of equity and the question of fairness, but you saw that a long time ago.

Michael Trebilcock (48:14:09):

Well, maybe not a long time ago, but I did, I think what you have in mind is a book I wrote with some student help that won the—

Dany Assaf (48:29:02):

Donner Prize.

Michael Trebilcock (48:29:15):

The Donner Prize in 2014, called Dealing with Losers. That's what I call the book. The title: Dealing with Losers: The Political Economy of Policy Transitions.

William Kovacic:

Yes.

Michael Trebilcock:

And I argue in that book through various case studies, that the—economics as a discipline has let us down and not taken seriously transition costs associated with policy changes, including trade liberalization.

And I and Sally [inaudible], a former student of mine, did a comparative study of various developed countries, the U.S., Canada and various European countries, as to how much as a percentage of GDP each of these countries spend on social safety net: passive labour market policies like unemployment insurance or active labour market policies like job search and retraining, and in the U.S. then, in 2014 and today, spends less, less of a percentage of GDP on these social safety nets or, or where we call it—I've forgotten the term, you know, a, a springboard, right?

William Kovacic (50:13:08):

Yes. Sure.

Michael Trebilcock (50:15:07):

—than any, any other country that we looked at. So here's a concrete example. In the steel industry, where the argument is, well, we’ve got lots of steel surplus in the world. Steel workers are being laid off in the U.S. Well, it turns out that manufacturing output in the U.S. is roughly the same today as it was 20 or 30 years ago. Output. But employment is down, right? Well, why is employment down? It's 15 to 20% explained by trade. Right? Lower priced imports from 15 or 20%. Well, what explains the over 80%? It's technology and robots and so on. So, can you imagine saying to two steelworkers that are sitting on the right side of me, “Well, you got laid off by trade, here's a big package for you. But you got laid off by technology, so get away.”

Dany Assaf (51:20:14):

Yeah. “Good luck.”

Michael Trebilcock (51:22:01):

“Good luck.” First of all, I would not be able to figure out who got laid off by technology or trade. Secondly, I have no knowledge of the rationale for treating one differently from the other, and they’re both off. They’ve both got families with mortgages, and we should deal with them even-handedly. So I think now, I mean, Canada does better than the U.S in the study that I… we could do better, but I think the U.S is paying a better price for not taking losers seriously. So I mean, people say, “Well, you're an economist, why do you, why do you care about these things?” Well, I do care. And not caring, I think, is a recipe for exactly the disaster that we're witnessing south of the border.

William Kovacic (00:52:23:01):

No doubt.

Dany Assaf (52:24:00):

Yeah.

Well, Michael, as you speak, I think the cost is that, you know, the game board, you know, the compact: you work, you do these things, you will have a productive life, you’ll provide for your family. It's the breaking it down. But it's interesting what you're describing about transitions. And I wonder what your reflections are. You know, the financial crisis: when you said we treat people differently.

As a—as a big picture, people saw the banks being bailed out and then they saw austerity, which came after, you know, your paycheck, whether you're a teacher or you’re working in the public service or elsewhere, they said, “Well, we've run out of money. We need your, your wages need to go down 5%.” And you could see it, what you described, in a lot of the conversations, and that, maybe, is that, you think, a source of some of the resentment that is still lingering and activating a lot of interesting political activity, let's say?

Michael Trebilcock (53:17:08)

Yes, well, I think, I think that's partly the case. But look, you know, I'm a, I'm a proud Canadian. I've been here for than 50 years. I mean, as well as being a cosmopolitan. I think Theresa May, the former British prime minister, when she said, “Citizens of the world are citizens of nowhere,” I think that's total bullshit.

[Laughter]

William Kovacic (53:47:07)

What Michael means to say is “That’s erroneous.”

[Laughter]

Michael Trebilcock (53:52:08):

The, you know, the, the, coming back to the—I’ve lost my train of thought, but proud Canadian, I think we're seeing a commendable reaction by Canadians. We don't, we're not, we're not going to go the same route. We're not going to go there. And we're not going to deport hundreds of thousands of immigrants to God knows where. Right? I don't know what our options are, there, Labrador or Vancouver, we don’t have a Guantanamo Bay.

[Laughter]

Dany Assaf (54:32:00):

Right. Fortunately.

Michael Trebilcock (54:33:13):

But we're not going to do that. Right?

William Kovacic (54:35:14):

Canada never developed much of a colonial empire, did it?

[Laughter]

It’s helpful to have some of these spots where you can—

[Laughter]

Dany Assaf (54:43:00):

We're still trying to reclaim hockey, and it’s not working.

[Laughter]

But the school of—sorry.

William Kovacic (54:49:11):

No, I was, I was thinking that, occurs to me that, you know, one lesson I take from your writing is that if you don't have this attention to equity, you know. Markets are disruptive. I think one of Schumpeter's enduring insights in that little chapter in a fairly dense book, the, the, the extent to which markets do involve turmoil, he uses military imagery to describe what happens.

He talks about bombardments, how new industrial innovations process ideas, just obliterate existing industries and the communities that go with them. And there's nothing pretty about that, and that you don't have a sustainable market economy if you don't have a mechanism for taking account of people who lose. And providing a means of transition, that it is simply not sustainable.

It's, it's hard to imagine the events of 2016, I think, without taking account of the global financial crisis, without taking account of this displacement. I don't think it could have happened. And—I say “we,” I mean, we, we the, we the country to the south, we missed it. We missed it. And, and we are paying for it. And sadly, others who are interdependent with us are paying, too. But it's—

Michael Trebilcock (56:27:08):

Shumpeter talked about creative destruction. And I think it's true that markets and technological innovation engender, engender creative destruction. I think, you know, I think Schumpeter thought that capitalism was not, in the long term, sustainable. You may think that socialism was likely the end point. Well, I don't like that end point. Right? I'm kind of a capitalist freak. You know, I talked about, whatever, capitalism and freedom, and Milton Friedman, it was on to something. But that's not an argument for throwing the losers to the wolves. Right? That's fairly simple, right? And I think the losers often think of us—people like us and the people in this room—

William Kovacic (57:26:09):

The people in this room.

Michael Trebilcock (57:28:03):

Yeah. People in this room are satisfied, urban elites that don't really have an understanding of working-class families’ struggle to, you know, make ends meet and bring up kids and so on.

Dany Assaf:

Provide.

Michael Trebilcock:

And I think there—this is an immodest claim, being born and brought up in a small rural community in New Zealand and living in one now, right, up in Georgian Bay—I stay in touch with the locals, or going out and interviewing people in Papua New Guinea, I, I try and stay in touch, sort of, you know, just ordinary folk. I don't think my neighbors know what I do, up north and I don't go around boasting to them. I ask them how they're doing, their jobs or families, or commiserate with them—

William Kovacic (58:32:14):

They probably hope that you can make something of yourself at some point. This quiet man can get by.

[Laughter]

Michael Trebilcock (58:40:11):

Well, but I think we have to take seriously the, you know, the Trump supporters.

Dany Assaf (58:45:02):

For sure.

Michael Trebilcock (58:46:07):

They feel that folk like us are a self-satisfied, smug urban elite that don't understand, you know, working class families and, and communities that maybe have been badly hit by technology and trade, right, like Detroit.

William Kovacic:

Yes.

Michael Trebilcock:

That we, we don't understand what folk in Detroit have gone through, we don't understand or we don't care. Well, I don't, I don't think that's acceptable.

William Kovacic (59:22:15):

But I think, a couple of things you mentioned, again, shine the light on, on a way to do better. I have academic colleagues who do wonderful work in their offices. They do wonderful work in theory, they do good work in the classroom, but they're not terribly interested in being engaged with this outside world.

And I think a striking element of your life is how you relish that. And I think put you in a position to understand things that elites might not catch. And that, that orientation of connecting the academy to the world of governance, the world of public policy, creating the community that brings people together in the solarium: all of these measures to integrate the work of the university with the larger world is a good antidote to missing what's going on outside.

Dany Assaf (01:00:33:03):

Yes. And, and Michael, and the wisdom of not only understanding, but in your voice to respect—to also genuinely respect the fears and the concerns of others, I think, and this is something I—and we want to have a little bit of time for just a brief Q&A because there's so much to talk about and maybe give the audience to participate a little bit, and also to just take a minute to come back to a little bit where we started as well, on the impact you've had on all of us in the law school, the great people you, you mentioned, whether it's Dean Sharpe or Frank Iacobucci or Ed Iacobucci or Anita Anand, who's gone on to be a minister and now Minister of ISAD, who administers the Competition Act.

William Kovacic (01:01:17:11):

This is an amazing family tree. It’s an astonishing family tree. I mean, one, one, one thought that I, you know—before we, we ask our colleagues in the audience maybe to, to, to pitch in as well, just a couple of things that strike me is that, you know, enduring contributions that show how to live a good academic life and to do this work well, the, the multidisciplinary focus, the intellectual curiosity. Those of you who are Ted Lasso fans, Ted Lasso, one of his precepts is, be, be curious, not judgmental.

Dany Assaf (01:02:01:10):

Yes.

William Kovacic (01:02:02:07):

But the, but the intellectual curiosity, the broad perspective and focus, integration of the disciplines that has to happen if you're going to get good solutions, I mean, the university as an intellectual hub that brings these things together and engages with the outside world, drawing connections across the disciplines. I mean, that's, that's such a powerful theme.

And, and I guess one other thing, realizing that the quality of public institutions, and the design of institutions is indispensable to delivering good policy results. You know, one, one, one acquaintance of mine who's, an engineer—I spent, spent three years with a law firm, and my main, my main client work was for a company then known as McDonnell Douglas. And I spent lots of time with people who build airplanes. And the lament of the engineers is that physicists never really understood what they did: that physicists would lay out the grand concepts and say, “Go make it so.”

[Laughter]

One, one, one, one colleague who worked on the Apollo program said that the, the physics of going to the moon was relatively straightforward. Some, some fancy mathematics, but relatively straightforward. He said the engineering was really hard.

[Laughter]

And, and, I think, I think the, the extent to which maybe the, maybe a bit of a weakness in the academy is we think of the big ideas. The big ideas are, are publishable, after all, especially the paper that says, “Everything you know is wrong.”

[Laughter]

But, but the, but the, the big ideas are the physics and the institutions, well, that's for the clerks. That's— engineers can sort that out. I think what you did, I, I, I think of the work you did with Ed and with so many others, you said, “No, those the engineering is really important, or you're not going to be able to deliver good results.”

Michael Trebilcock (01:04:01:14)

Oh, I do believe that. I mean, I rather crudely divide academics into what I call “attic”: Attic, [points up] attic academics and front-line academics. You know, earlier in my career, I debated whether I wanted to live in an attic or, or the mixed experience of living on the front lines. Right? I've been part of various government forces, mostly in Canada, and often been disappointed at the outcomes. Right? You think, “By God, the political process here stinks,” which it does often. Right? You know, politicians operate in four- or five-year timeframes: any benefits beyond the five years they discount. “Oh, I get a check in the mail.” I think $250 recently, did you–?

Dany Assaf (01:05:12:00):

Yeah, a credit for something recently.

 

Michael Trebilcock (01:05:15:10):

So sending me a check for $250, it makes absolutely no sense, right?

[Laughter]

But, you know, that's politics. So, I'm in various government task forces. Sometimes they're being successful, sometimes they're not. And I then envy the people in the attic. Right? They just write to each other, and they don't have to worry about politics.

For better or worse, I chose the, the opposite strategy. [Turns to William Kovacic] As you did, right? As a former chairman of the FTC, so you, you’re the antithesis of an attic academic.

William Kovacic (01:06:03:04):

That was, that was a big shock for me, which, [inaudible] to me again, I'm thinking about sport, is that you can you can be a sports writer and you're critiquing the players and saying, “Oh, you should have made that pass, or you should have stopped that shot or, or obviously you should have had another plan,” and imagine them stopping the match and saying, “You up there.” “Me?” “Yes, you. Come down, put your skates on, come down here and join us.”

[Laughter]

And, and I found that in going into the FTC, the game is very fast. It's very rough. It's bewildering. The other players are really good.

[Laughter]

It was an instant source of humility. I would sometimes go back and look at things that I'd done from the press box and think, “What was I thinking?”

[Laughter]

Well, but, but, but in thinking again of how you can contribute to a useful debate, I think, I think policymakers get very impatient with us, I mean, academicians who don't think about the world they live in and don't think about what they have to do. And if they see some bit of empathy and understanding, it makes one's substantive ideas a bit more palatable.

Michael Trebilcock (01:07:17:09):

Yeah. Well, I try—you know, I've studied, along with collaborators like Rob Prichard and Rhonda [inaudible] and Ed Iacobucci, I've studied—and have Mariana Prado and the development [inaudible]—the role of design of institutions: legal, political, bureaucratic, and, and what we know or don't know about which kinds of institutional arrangements work well or badly.

I think we—and as lawyers, right, as members of the legal profession, we ought to be centrally concerned with the design of institutions, and not just legal institutions: bureaucratic, political. That's in some sense our comparative advantage.

Dany Assaf:

It is?

Michael Trebilcock:

We don't have anything useful to say about the design of institutions. Who does? But it requires, I think, a broad non-green eyeshade perspective.

Dany Assaf (01:08:15:11):

Yes. Yeah.

Michael Trebilcock (01:08:17:01):

The lawyers broadly, broadly, broadly conceived, so to speak.

Dany Assaf (01:08:23:05):

But it is, it's the foundation of the rule of a person or the rule of law. It’s the institution that survives any particular personality or mindset.

Michael Trebilcock (01:08:31:10):

Right. So we have democratic and rule of law norms and the serious attack on your country. And, and other countries. Well, we should have something as a profession to say about this. Right? We have the dismantling of international institutions. Jutta Brunnée is much more authoritative on this than me. But, you know, basically the World Trade Organization is on the brink of collapse.

Trump has basically torn up the NAFTA Two, as I call it.

Dany Assaf (01:09:05:04):

[Laughs] It essentially is.

William Kovacic (01:09:07:03):

And you queue up the other international organizations, the Organization for Economic Cooperation and Development, the funding for the United Nations, United Nations Commission on Trade and Development. You can walk through Geneva and look at one international institution after another and imagine them having closed up shop.

Dany Assaf:

USAID.

William Kovacic:

USAID. Michael, my, my development work for the better part of the ‘90s was done with the University of Maryland, Mancur Olson, the Center for Institutional Reform and the Informal Sector. Those were USAID-funded projects. And I will not make a case for the wisdom of all of them. Some of them were ill-conceived. Some of them were right on the mark.

Michael Trebilcock (01:09:57:01):

Right. I agree totally.

William Kovacic (01:09:58:11):

And, and, and to see that, to see the enormous benefit that a variety of countries had. And I think in many instances, the people doing the work brought Trebilcock attitude of listening without a preconceived idea of what had to be done and saying, “If you want my opinion, I'll give it to you.” You come, you come to the restaurant, I've got the menu. I'll tell you what's on the menu of choices. You want my opinion about what's good? I'll give it to you, but with a specific context. I think so many recipients of assistance had the benefit of that kind of advice. I mean, that's the kind of guidance you gave when you went abroad. Very carefully done like that.

That organization is extinct. Those programs are gone. And you know better than I how hard it is to build something that works, how easy it is to smash it. And good luck trying to recreate it.

Michael Trebilcock (01:11:04:12):

Well, I’m as depressed as you are.

[Laughter]

I can barely turn on the digital news up at our farm every morning, because it seems to get worse day by, day by day.

But, you know, I remember—maybe we should close on this point. I need, I need something to—

Dany Assaf (01:11:34:00):

Refer to?

Michael Trebilcock (01:11:36:15):

I remember when the Law Society gave me an honorary doctorate, 20 odd years ago, they invited me to speak to the newly embedded lawyers. And I told a story, that time that runs as follows.

It involved a TV interviewer and a fabulous NFL quarterback, Kenny the Snake.

Dany Assaf (01:12:14:01):

Stabler [laughs].

Michael Trebilcock (01:12:15:13):

Kenny the Snake Stabler. Great quarterback, but a notorious free spirit—

[Laughter]

Dany Assaf (01:12:20:13):

I'm a Raiders fan, I remember it very well, by the way—

William Trebilcock:

—which I won’t explain.

Dany Assaf:

Great reference.

Michael Trebilcock (01:12:29:15):

But the interviewer read this quote to Stabler, from novelist Jack London.

“I would rather be ashes than dust. I would rather that my spark burn out in a brilliant blaze, than that I should be stifled by dry rot. I would rather be a superb meteor than a sleepy permanent planet.”

This is the quote from Jack London to Stabler, this free spirit, and the interviewer asks Stabler, “What message do you think London was trying to convey?”

Stabler thought for a minute. He said, “Throw deep.”

[Laughter]

Dany Assaf (01:13:21:14):

That is brilliant. Absolutely brilliant. And he did it. He won a Super Bowl. He won a Super Bowl, Danny the Snake Stabler.

William Kovacic:

Dany, did, did, did—

Michael Trebilcock (01:13:33:04):

And I, I told that story, donkeys’ years ago at an event at the University of Toronto Law School and two or three weeks later, one of my first students there, one of my favorite students (if I had favourites), it was a senior partner at Stikeman’s, one of Canada's most respected corporate lawyers, John Strangeman. He turned up at my office two or three weeks later, unannounced, with a photo, a coloured photo, of Kenny Stabler in throwing mode, with a brass plaque on it, personally autographed by Kenny Stabler, with a brass plaque on the bottom. “Michael: Throw deep.”

[Laughter]

Dany Assaf (01:14:23:03):

That is absolutely brilliant. Wow. Well, how do you top that story? But we do want to take a minute, I know we have, got maybe a minute for a question or two.

Cal, please.

Cal [audience member] (01:14:36:11):

Thank you. Yeah. Hear your, insightful views, as always. I commend you because you were the first one when the Competition Act was passed in 1986 to open up round tables at the University of Toronto. You invited me down as the head of the bureau. You invited subsequent heads of the bureau, and you invited people from the public and private sector and academia.

And it was open, it was direct, but it was always pleasant. And it was it was cordial. The debates were, were wonderful. And it put U of T’s Faculty of Law on the map ahead of other law schools. And I say that as an Osgoode graduate.

[Laughter]

You did wonderful work from the outset of the passage of the Act, before the Act and after the Act was enacted.

I wanted to ask your view today, about 40 years later, of whether you're satisfied with how the competition law in Canada has evolved over the last 40 years, given the passage of the Act, you were very much engaged with right in the mid-‘80s on. Give us your view of that, if you could, please.

Michael Trebilcock (01:15:47:08):

I have to be honest here, Cal. You know, I've been retired for five years. I haven’t, I haven't followed closely the recent round of—

Dany Assaf:

Amendments.

Michael Trebilcock:

—amendments, a bit, but I have tried, tried to stay… I think the, the Act is more or less okay as of now.

You know, one issue that has bothered Bill and me over the years is that many practices—and mergers, for that matter—are now not simply one-jurisdiction transactions. Right? They cross borders or the practices involve, a number of—like the tech titans, right, the EU goes one way, and the U.S. goes the other.

So there's a, I think a pressing issue of, you know, how do we sort out jurisdictional conflicts when the practices in question are inter-jurisdictional. So that's an issue that I don't think we've got well resolved. Bill is ready to talk a bit about some of the—

Dany Assaf (01:17:05:08):

Please, we have the benefit of both of you up here, Bill, it’s—

William Kovacic (01:17:07:14):

But, you know, Cal, it's, it's getting harder and harder. If, if you have this isolationist approach by the United States and it will not play, or it plays on terms that are so idiosyncratic and unsustainable in a broad sense, that you can't possibly imagine it having a useful role in building a consensus, how do you develop that sense of, of community and a sense of better practices, better standards, if the United States will not play?

Yeah, it, it is—and by the way, those organizations that we've talked about, could not have evolved as they did without Canada. Canada was the indispensable foundation for the establishment of the ICN. The ICN was a virtual organization, but real human beings had to do the work. And they did them here. Ottawa. They did the work.

So, you know, Canada was indispensable to that, but, but this other big economy that we're talking about, with its legal apparatus and presence in the field, has to play. It's bad enough that China doesn't play. If you take China out and the United States out, but how do you, how do you, how do you, how do you build the framework?

And I suppose that for, for, for you, myself, Michael, the those, those who are cosmopolitan in their orientation, how do you develop a conversation that reminds those with authority now of what they're walking away from, what the effect will be over the long term in a way that's persuasive, as opposed to lamenting our fate. How do we solve the problems?

How do we go about doing that?

Michael Trebilcock (01:19:04:14):

Just when—you know, one response I have, I'm not sure how plausible it is. It was something I've just written for the Yale Law Journal. I look at the top ten countries in the world, and, and the UN Human Development Index, the UNDP’s Human Development Index, the UN Happiness Index, and the World Bank's Government Effectiveness and Ethics Top Ten. They're all small countries. They're all small, population-wise. They're unpretentious. They, they don't go around bullshitting people, they get on with governing themselves effectively and don't lecture other countries on what they should do.

William Kovacic (01:20:08:01):

Lecture? Other countries?

[Laughter]

Michael Trebilcock (01:20:12:04):

My idea is that, isn’t there room for a coalition of the willing? Smaller countries on issues, issue by issue, whether it’s aid or trade or climate change, to develop plural lateral agreements amongst themselves. But open to additional members, if they want to sign up and make this a—but, but don't depend on any of the past, present or future hegemons to lead the charge. Let's, let’s put the coalition of smaller countries together.

Now, the EU is a kind of an example of that. Right? 27 countries of different sizes and so on. So it's not a totally crazy idea. But that's the best I can do. Sitting up on the east side of Lake Eugenia in Georgian Bay, maybe small is beautiful.

William Kovacic (01:21:26:12):

And, and, and I guess, I'd like to think that data and facts are still worth something. And to point out some of the benefits that have been realized.

Michael Trebilcock (01:21:37:00):

Yes, exactly.

William Kovacic (01:21:37:15):

And to say, “Here's what's coming about as a consequence of it.” And, you know, I, I, I should not put on the shoulders of Canada the burden for solving global problems caused elsewhere. But I think we've seen—and I don't think you have to be a Canadian to be boastful about it, and, Cal and others who’ve participated in this process can, can test my own judgment on this—but I think a special element of the Canadian brand has been one of trustworthiness.

That is, why is the voice disproportionately large for a relatively small population? Not the world's largest economy? Why is it trusted in so many of these international fora? That is a reputation that has been built up over time.

Dany Assaf (01:22:26:11):

Thank you for reminding us—

 

William Kovacic (01:22:27:05):

For people listening. And, and you can verify it, I think, Cal, by looking at the organizations you and I have been involved in. ICN and OECD. Michael, I'm sure you've seen it in a variety of different settings. You know, Canada is a trusted institution that doesn't carry the baggage of a lot of other nations. And out of the potential calamity, there is a real opportunity to play a major leadership role with respect to the jurisdictions you're mentioning, Michael.

Michael Trebilcock (01:22:59:06):

Yeah.

Dany Assaf (01:23:00:07):

That is very high praise. Among other things, Bill was one of the—

William Kovacic (01:23:03:08):

It’s easy to say when it's true. But what else am I going to say here?

[Laughter]

Dany Assaf (01:23:06:02):

—the founders of the International Competition Network. He sat ten years as a director of the capital, the competition, competition authority in the UK, and also instrumental in shaping the Hart-Scott-Rodino Act, which was, you know, the genesis of kind of modern antitrust enforcement. That's, that's very high, high praise from Bill—wasn't your fault—

William Kovacic (01:23:26:06):

No, but it—

Dany Assaf (01:23:27:03):

—it has been foundational and—I don't know, maybe one more question from the audience, right here, please. Boris, please, appreciate it.

Boris [audience member] (01:23:35:00):

Gentlemen, I appreciate the discussion. It's a huge pleasure, Michael, to see you and to grab a, a seat in the first row, as I always would in your lectures, in the classes that you were teaching.

William Kovacic (01:23:48:05):

Boris, nobody sits in the front row.

[Laughter]

Boris:

—with Mariana Prado—well I appreciate—

William Kovacic (01:23:51:08):

Teachers have known that for generations.

[Laughter]

 

Boris (01:23:53:14):

And I'm grateful for the dialogue. There's a saying, and I'm forgetting who’s, who's mentioned it, who's made it famous, “Life is a daring adventure or nothing at all,” and this is what I'm being reminded in hearing, Michael, your story: all the impact that you've made on Canada, internationally and in these unusual times, as we're discussing, there's a lot of need that you have all mentioned, and Michael and Bill, you've highlighted the need for empathy and to better understand what are the causes, what are the reasons of where we are currently? Calvin has asked questions about sort of, where, where are we going? And I'm curious about further deepening that introspective view of—you've also said, systems, systems are really easy to break down, very hard to rebuild.

So a lot of them have been broken down, a lot more, unfortunate, looks like, are next. So that just means new systems are to come. So, what's the best case? What's the worst case for international trade law, policy, competition that we see in, in your folks’ view in the next sort of five to 10 years?

Dany Assaf:

Thank you.

Michael Trebilcock (01:25:04:01):

Well, you say, you ended by asking me and Bill to predict…

William Kovacic (01:25:10:11):

In the classroom, I think this is the moment to say, “We'll get to that later.”

[Laughter]

Or “What do you think?”

Michael Trebilcock (01:25:17:01):

Yeah, the, the evolution of things over the next five or 10 years. When people ask me to forecast anything, like, “What am I having for dinner tonight?”

[Laughter]

I can probably cope with that. But John Kenneth Galbraith, originally a Canadian, the economics professor, once quipped, “Economic forecasting makes astrology look respectable.”

[Laughter]

So I am not about to engage in economic forecasting even five years out, never mind ten. And in the current environment, I'm just—I was suggesting some tentative moves that I think would raise the odds of better outcomes, such as a coalition of the willing of these smaller countries around climate change or aid or trade or whatever. But, you know, there's the, there's a, speculative thinking—

Dany Assaf (01:26:27:10):

Michael, maybe just to put a little bit of a different lens on that kind of question, just maybe to end and, and from both of you, looking ahead. So, you know, really, it comes to this idea of what's the purpose of competition law and policy in our age. You started, Chicago School very much influenced you, and then you had development, and you've seen this world evolve in a different way.

But from the both of you, what would be the things as we rethink what competition law can do for our society, for our people today, and its purpose?

Michael Trebilcock (01:27:04:02):

Bill, that's, that's your question.

[Laughter]

William Kovacic (01:27:08:15):

I, I think that it's, it's helpful to think about projects or undertakings that can have some of the broad favourable effects we've been speaking about. A reason I am interested in public procurement is that I think if competition law can develop better results, you get good economic effects. You often get a good equity payout from that because the chief beneficiary is a good public procurement, certainly at the state municipal level, are, are not wealthy people, they are people with lesser means. If—it's a, it's a system that citizens use daily to measure the effectiveness of their government. And if they see it working well, it increases civic trust, which is a reservoir that can be drawn on to build good government policies and otherwise. If they see it fail, they despair.

So, one thing I can think of is, I can't think about necessarily about the entire broad program, but something that I like to have in the portfolio is this ingredient, but also to think about what, what kinds of policies, promote the, the, the larger objectives. And I'm going to borrow one of your observations, Dany, the, the, the role that good competition policy and advocacy plays in creating opportunities to participate in markets.

I think, across the, the field of our own individual experience, do we all expect to be the best? Perhaps not. I think what we crave is a chance to attempt to offer your best, and that you have a, you have a society that is that is perhaps more prosperous, certainly, in a sense more fulfilled if you feel that you've had a chance to realize the fullest expression of your capabilities without artificial impediments.

And to, to know that you had a chance to play: to play in the match, to do your best. That’s, that's, that's something competition law can do in many ways, is to create that opportunity. And, and I think some of the stories that are so compelling in our field are stories about individuals who got a chance to play. These are stories I use all the time in, in, in my class. I have a class dedicated to people who, who, who would have changed our life had they not had a chance. They are people like Nikola Tesla, who did not create an automobile company and people like Rosalind Franklin, in the laboratory at Kings College London, who takes the photograph that shows Crick and Watson what it really looks like, you know. “Ha! It's a double helix. It's not one strand.”

Any, any number of people in different fields of endeavor who made our life better because they got a chance to play. And they're not all from sports, but, but, but they're, I think competition law on a good day can create those kinds of possibilities.

I mean, one of my favorite stories from my development experience, not nearly as long or deep as Michael’s, but being in Vietnam, going to a community on the border of Lao called Mai Chau. It's originally a rice-growing community. You get there by a Jeep. The houses are all built on stilts, underneath many of the homes are weaving looms. It is a community of weavers. Didn't always used to be that: people made their living basically through the brutally hard work of planning and harvesting rice. Not an easy thing to do. They said, “Join us for a day.” I joined them for a half hour and said, “Can I have a, have a pause here, an intermission?”

[Laughter]

Really, really, really hard work. But, but through reforms that the government of Vietnam had undertaken allowing easier incorporation, creation of small companies, you had communities of people doing weaving: with dyes and colors that exist in only one place in the world. You know, the purples, the blues, the oranges, the yellows that are only available there because the pigments that you need are right there. Local designs that are really distinctive.

And, you know, through an interpreter, okay—my Vietnamese is weak—but through an interpreter, I was doing something of what, what you had blazed a trail for us to do, and doing interviews with some of the women who were doing the work. And they'd said, they’d said, “This has turned out well, this internet thing is, is allow me to post pictures of what I'm doing, I'm able to sell my garments around the world and I used to be planting rice, growing rice. And that was hard work. I had this other person inside of me who was the artist.” And I'm sure through the interpreter, I didn't get it perfectly right. But the interpreter was essentially saying, “I feel a sense of fulfillment because I can do the artistic work that involves making these garments, these articles. That really fulfills me. And oh, by the way, I'm making a lot more money doing that, too.”

[Laughter]

That's the nice market part of it. But, but part of what you could see is that a, a, an economy that allows people in a sense, to realize their fullest talents and potential is in some ways going to be, in a basically a much happier economy and, yes, a bit richer, too.

Dany Assaf (01:32:35:07):

Very, very powerful. And as you articulate that in—

William Kovacic (01:32:39:07):

Competition law can do that.

Dany Assaf (01:32:40:04):

Not only fulfillment, but it's the foundation of freedom. It is such a big aspect of that, as you say. It freed this other personality within this community.

 

William Kovacic (01:32:51:01):

Yeah. I, I realized an early age, as I told you, I was not going to be a national hockey league star athlete. Fortunately, I learned that early—

[Laughter]

Dany Assaf (01:32:59:11):

Unlike the rest of us.

[Laughter]

William Kovacic:

—and got into the world of words.

But it meant a lot to have the opportunity to do other things and to have a chance to play without artificial impediments. Competition policy, on a good day, gives that to a country. Powerful.

Dany Assaf (01:33:18:06):

Optimism. Michael?

Michael Trebilcock (01:33:18:12):

Well, I would add, plus trade policy. Your—

William Kovacic (01:33:22:05):

Trade policy.

Michael Trebilcock (01:33:22:11):

—your woman in, wherever it was, Thailand—

Dany Assaf (01:33:26:07):

Vietnam. Yeah.

Michael Trebilcock (01:33:27:09):

—Vietnam, was selling these, these cloths to North America.

William Kovacic (01:33:32:14):

North America. Yes.

Michael Trebilcock (01:33:33:15):

North America, right, so you need trade policy along with competition policy. Let me close, this is a—I was determined to tell the story even though it's not relevant.

[Laughter]

Dany Assaf (01:33:48:05):

You're amongst family and friends here, please.

Michael Trebilcock (01:33:51:09):

Abba Lerner, who, a famous, somewhat eccentric economist. You would know him: Russian, British, American. Several decades ago. [inaudible] an interviewer was interviewing, interviewing him late in his career, Abba Lerner. He said, “Well, you got this award for that? Well, explain what you got that award for, and then there's award over here. Explain what you did for that,” and so on. And so. And then at the end of the interview, the interviewer rather cheekily asked him, “Do you also play the violin?”

And Lerner replied, “Maybe I do, but I've never tried.”

[Laughter]

Dany Assaf (01:34:43:09):

The power of potential. You never know. You never know where it is, where it resides.

But you just need a chance to play.

William Kovacic (01:34:51:01):

Exactly, though. Well, Dany, I—before you close, I want to thank you for doing this. I mean, in a world of a little bit of gloom, this is good news tonight.

Dany Assaf (01:35:01:08):

It sure is.

William Kovacic (01:35:01:11):

This is really good news. It's good news for what a single person can do. And that's, that by the strongest example, the example of your own life, you've given us a really good idea about how to do this, in the academy. And it's a great night for a great university.

Dany Assaf:

It is.

William Kovacic (01:35:23:13):

You know, this is, this is what a great university does. And to see both of those things at their very best, I feel better than I did a few hours ago. It's the reason, reason I wanted to come.

[Applause]

Dany Assaf (01:35:37:15):

I, I also have to add, it is also a great firm. And Torys and its commitment to supporting these kinds of conversations, supporting the law school. Thank you so much. And the connection that we have, we have two former deans here, Rob Prichard, Frank Iacobucci, so many other graduates in this in this firm. And for it to want to play a key role in not only hosting, promoting and supporting this conversation in every way and obviously, most importantly, honoring Michael as a great Canadian and his contribution to making our society better for his legacy to live on.

And I'm reminded of—there's so many wonderful things to be reminded of, and I'm going to get this wrong—but there's a great quote from, a poet and writer who I love, Khalil Gibran, in The Prophet, he talks about teaching and he says about, about wisdom in teaching, he says, “If, if, if he is truly wise, the teacher, he will not take you to the entrance of the house of his wisdom. He will take you to the threshold of the potential of your own mind.”

And this is what, when you're talking about, you're saying about small countries, what can they do? It's the power of the ideas. It's the teaching that can inspire the great ideas that will propel that next generation to write its best chapter yet. And there's nothing better than having captured all of this and your contribution—a sliver of your contribution, Michael, and your commentary, Bill, on tape for it to live and share with so, so many.

William Kovacic (01:37:12:15):

It’s really great to see that it can be done. And, and knowing it can be done is inspiration.

Dany Assaf (01:37:19:08):

Only with community and great support. So thank you again to everyone. Thank you for making your time, thank you for being here.