University of Alberta Faculty of Law Blog

Conflicting Rights

Karen Selick explains why conflicting rights means that they are no rights at all. Rex Murphy also chimes in on the case.

Once upon a time, rights were only negative rights, i.e. the right to be free from state violence. Today, too often rights are associated with positive rights, i.e. a right that imposes an obligation on someone else.

This is why I have never been in favor of the so-called human rights commissions, especially in their regulatory agency form. They tend to be in the business of creating positive rights instead of vindicating the negative ones. Rather, at best, I would have something similar to the American Section 1983 civil rights claims vindicated in the courts, where, over time, a proper set of judicial precedents are set outlining these rights. Not only would the courts be forced to deal with the issue of civil rights head on (instead of in a judicial review manner), but human rights or civil rights have always been the bread and butter of judges.

 

Ayn Rand on the Tonight Show (1967)

The folks at Libertarianism.org (more clips can be found there) have found Ayn Rand's first interview by Johnny Carson. Rand is her usual charming self. Carson does a great job too in the interview, which reminds us why he was the master of his craft, a craft that seems devoid today of his natural heir:

 

Leviathan loses, for now

Attorney General of Ontario v. CDN. $46,078.46, 2010 ONSC 3819

[30]  For one government agency to distribute to another property it did not own, without notice to the purported owner of the property or without the sanction of a court order, may strike those agencies as an efficient, uncluttered way in which to collect tax.  But the AGO should understand that such conduct, absent adequate explanatory evidence, will raise questions in the mind of a court about the propriety and legality of such conduct.  Does some statutory basis exist to justify such conduct?  I cannot tell, again because the materials are silent on the point.

There's better - or worse - depending on one's viewpoint. 

Rape by Deception

An Isreali judge has sentenced an Arab man to jail for pretending he was a Jew before having sex with a woman he met on the street. Read the full story here.

I am no criminal lawyer, and no expert in Isreali law, but I wonder how this will play out in a Canadian court. Some questions come to mind:

1. Will a Canadian court convict if it was established that the lie was determinative of the complainant's consent? (h/t to Howie for this question)

2. Putting legal doctrine aside, should deceptive statements trigger culpability for the crime of rape? To put this in stark terms - can one lie to get another to have sex with them?

3. Did the court conflate two different episodes of consent - consent to engage in a relationship with a Jewish man, and consent to the act of sex?

4. Is there something here that calls for a criminal law version of the remoteness doctrine in tort law? Is the consent based on the deceptive statement too remote to trigger culpability based on the act of sex, which she obviously consented to?

Ballsy Move, Mr. Balls

UK Children's Secretary, Mr. Ed Balls, has unveiled plans to spend £400million of taxpayers money putting "the worst families in England" in "sin bins" (which is now the technical term for 24-hour CCTV surveillance and supervision). Interestingly, Mr. Balls is not even innovating here - turns out from this news story that this is already standard practice in the UK - he simply wants to increase funding to the program.

UPDATE: So I did some research on this fascinating story. Turns out the Home Office has a website where you can read all about the sin bin program, which is dubbed the "Family Intervention Project." Here's an excerpt from the website:

"A contract (also known as a behaviour support agreement) is drawn up between the family and key worker which sets out the changes that are expected, the support that will be provided in order to facilitate that change and the consequences if changes are not made, or tasks are not undertaken.

The use of sanctions is an important lever for motivating families to change. Demoting tenancies or gaining possession orders suspended on the basis of compliance with the projects or, for some, the very real prospect of children being taken into care, can provide the wake up call to take the help on offer. Too often these families have been told that action will be taken but is then not followed through, creating a sense among family members that they are untouchable."

Nice.

Is floating the last, best hope for liberty?

Thanks, Moin! 

Freedom-loving individuals dream of escaping an ever-encroaching government and often these dreams consist of utopian schemes that are destined for failure.

 

In the July issue of Reason magazine, Brian Doherty pens a lengthy profile of the interesting Seasteading project, which is another attempt to create a free society - 20,000 Nations Above the Sea: Is floating the last, best hope for liberty?

At the fore of the Seasteading Institute is the grandson of Milton Friedman and son of David Friedman, Patri Friedman.  The Institute's mission is: To further the establishment and growth of permanent, autonomous ocean communities, enabling innovation with new political and social systems.

Doherty on Friedman and what makes this effort unique:

Patri Friedman, who has been sailing around some of the very reefs on which earlier utopias capsized, is well aware of these past failures and says he has learned from them. The Seasteading Institute’s website is as thorough and thoughtful a guide as you’ll find to the foibles and follies of previous attempts to create new and/or floating nations. And there are some important points of departure that Friedman says will make the difference this time around.

First, seasteading does not require anyone to take over existing terrain. That was hopeless; the land’s all claimed by some government or another, even the parts barely above water. And an open rebellion against an existing regime is unlikely to succeed. Seasteaders therefore will make their own “land.”

Second, seasteading is modular. Unlike various floating nations that never got off the drawing board—the “Freedom Ship,” the “Aquarius Project,” and other pipe dreams—the institute’s plan doesn’t require an upfront multimillion-dollar buy-in. Seasteading can start small, and in fact Friedman is sure it will start small, with tiny family-sized platforms called “coaststeads” near the mainland serving both as proof of concept and a laboratory for working out the kinks before community-sized seasteads are ready to sprout in international waters. Friedman figures the cost of such starter sea homes won’t be too out of line with housing costs on land, especially if people are buying in a communal or time-share fashion. In fact, most recent cost estimates for a particular hotel/resort seasteading design came out to roughly $258 per square foot (without factoring in some assembly and deployment costs), which is quite a bit cheaper than the current price of many single family homes in the San Francisco Bay area.

Third, seasteading isn’t just based in libertarian theorizing and hopes. Friedman knows that seasteads will need to have some business hook, and he’s busy working those angles. There’s SurgiCruise, a nascent floating medical tourism company that is seeking venture funding. If Americans will fly to Mexico, India, or Thailand for cheaper medical care free of U.S. regulatory costs, the idea goes, why wouldn’t they sail 12 miles for it? Among the other first-tier business ideas being bruited about with varying levels of intensity are vacation resorts, sin industries, aquaculture, deep-sea marina services, and universal data libraries free of national copyright laws.

Fourth, because the open ocean plus “dynamic geography” allows for experimentation with governance in any form, seasteading shouldn’t appeal only to libertarians. Sure, any seastead that Friedman would want to live in would get as close to anarchism as can be managed. But he thinks a variety of ideologues should be willing to leap on board, from sustainability-oriented environmentalists to members of various intentional communities, religious or philosophical or whatever, that want to shape their own lives in peace without government interference. Such communities might not be individualist in their internal policies, but they fit within the libertarian framework of seasteading itself, which allows for a wide variety of freely chosen social structures.

Below is the "Swimming City" that took the grand prize in a recent seasteading design contest of designers' visions for cities at sea.

 

Mugabe: "Zimbabwe is Mine"

Watch.

Controversial Art

This monument to the War of 1812 was unveiled yesterday in downtown Toronto. Its creator, Vancouver artist Douglas Coupland,  intends it to clear up who won that war.

According to the National Post, the figures are made of styrofoam and steel then blanketed with resin hardcoat. They were made in Calgary and transported to Toronto at an estimated cost of about $500,000.

I'll let the historians debate the War of 1812. And I will leave it up to you, gentle reader, to judge the artistic merits of the monument. Instead, I'd like to focus on how this public art was procured.

The monument was commissioned by the developer of the condominium as a "public art contribution". You may be scratching your head: why would a developer pay $500,000 for public art? Well, because it had to. There are two ways to exact this type of contribution from a developer. The first is to require it as a condition of development approval. In this way the developer is required to return to the community some of its profit. The second is for the community to give the developer a "bonus" for being a good citizen: "our land use regulations permit only 25 floors on this site, but if you decide to contribute, we'll reciprocate by giving you 30 floors. It's up to you."

From a public finance perspective, the case for public art contributions is not strong. The developer should properly bear the burden for goods that specifically benefit its buyers, and for goods that the city must provide because of the development. But public art benefits everybody, and the need for it is not attributable to any specific project. In other words, public art is better funded from public funds.

Which brings up another troubling aspect of this "contribution". Suppose the developer was required instead to make a cash contribution of $500,000. Would the city itself commission the monument? Is this how it would spend the money? Probably not. Consider the recent decision of Edmonton city council to reject a $750,000 proposal for this new entrance sign to the city:

The councillor for the ward in which the sign was to be located argued that the local residents have gone without dinner for years, and didn't need dessert.

On the Nature of Excess

Here is a fascinating account of regulatory excess as told by Arthur Allen in his fantastic book on the controversial history of vaccination (Arthur Allen, “Vaccine: The Controversial Story of Medicine’s Greatest Lifesaver” New York: Norton, 2007). The regulator in question is Martin Friedrich, chief public health officer in 1901 Cleveland. Concluding that vaccination (as he saw it) had become counterproductive:

“he sent a crew of 40 medical students out to disinfect entire districts where smallpox had been reported, using a gas driven fumigator that rendered a house uninhabitable for several days. They sprayed all the houses in the neighborhoods where smallpox had been - “every room, nook and corner of a house, paying special attention to the winter clothing which had been stored away, presumably full of germs.” He put barbed wire and two guards around the smallpox hospital, to make sure people stayed put until they were cured. He shot dogs and cats living in neighborhoods with smallpox cases. On one poignant occasion, he snatched away a dog that a sick child was hiding under the covers. “Almost six months have elapsed since the source [of smallpox] has been exterminated from our midst,” Friedrich told the doctors. “The death blow was dealt by formaldehyde.” (p. 84)

And a good measure of unnecessary violence, I might add. I wouldn’t want this guy around when the avian flu hits.

Why the left and the right is wrong

or so I argue in my column over at the Western Standard's blog.

License to Parent

If you want to see what the state will look like if we go down the slippery slope of my last post on the state and children, then look to the UK where the state has become all controlling and pervasive. Word from the UK (via Overlawyered) is that you cannot take your children to school without a state licence. If the state deems that you are unworthy of this task, the burden of proof is on the parent and not the other way around. This was also my objection to the Canadian story, where the comments accused me of siding with the parents without hearing from the state; the burden should be on the state and not on the parent when it comes to interfering with the family.

UK Gone Bonkers!

Ok so I exagerrated in my previous post when I claimed Canada was now the land of Orwell's 1984. But the UK is truly becoming a totalitarian state (at least if these latest proposals are adopted) that would make the Stazi, KGB, and the NSA combined drool with envy.

Canada = 1984

Its official - we live in a police state, where parents can lose their children if they do not conform to the officially madated beliefs of the state. Whether it is the old Maoist China where millions were sent awat for re-education in the name of the common good, Stalinist Soviet Union, or any of the numeorus thirld world dictatorships that seize people under the guise of the failure to conform, Canada has now officially joined the ranks of these totalitarian fascist regimes. It always starts with most extreme viewpoints - but don't think this is the end. What next? Will the state remove your children if you teach them the global warming is a hoax? Will the state remove your children if you teach them verses from the bible that the annoited believe are hateful? Will we now have inquisitions to see if the children are being taught the right dogma? How can we sit in silence while this injustice takes place. And to those Liberals who applaud today's decision, let me ask you this: what happens tomorrow if the dominant viewpoint changes. Once the machinery of the state for sezing children for parental viewpoints is set in place, the state can now seize your children if you do not subscribe to the new vewpoint.

What is needed a viewpoint-neutral rule that says only if there actual physical harm, can the child be removed. Otherwise, we have opened the door for one of the worst slippery slopes.

Banned

Drew Carey's latest on Reason TV.

The Story of "Jordan": Isn't the State just a Great Parent?

My colleague Moin Yahya posted yesterday on the state's robust self-image as a parent.  And so the Senate thinks that it knows better about how to discipline a child than the parent of the child.  Moreover, Tessier J. of the Quebec Superior Court assumed the power of judicial review (!!!) over parental discipline, overturning a father's decision to punish his 12-year old daughter by withholding permission for her to go on a school trip after she had posted pictures of herself on an online dating site.   Such punishment, said the wise Justice Tessier, "excessive".  It is not the parent's experience with the child that counts, nor (in the case of the 12 year old date-site-cruiser) the parent's concern for a child's safety, that matters.  It is the Senators' experience and Justice Tessier's parental instincts that matter, and their concerns that trump.

While still chilling, this might be less objectionable at some purely instrumental level were the state actually a good parent.  The case of "Jordan", however, shows that the state is, in its divided federal persona, equivalent to a couple of cranky divorced ex-spouses who have "moved on" to new lives and can't agree on who is going to pay for the kid's hockey lessons.  Except, in "Jordan"'s case, the stakes were a little bit higher than PeeWee hockey.

"Jordan" was an aboriginal child who lived on an Indian Reserve at Norway House, Manitoba.  His medical condition required that required hospitalization in Winnipeg in 1999.  Two years later, his physicians and family determined that he could be cared for in a specialized setting closer to his home reserve.  But who pays?  "Not us", proclaimed both levels of government (who couldn't even agree on who would pay for a showerhead).  The inter-jurisdictional blether stopped only when Jordan died, another two years later, still separated from his family, in a Winnipeg hospital.

Nice parenting, Messrs Chretien and Doer.  (It's too bad no-one tried to suspend "Jordan"'s TV privileges.  That, at least, might have attracted Justice Tessier's attention.)

Well, Well, Well...

For some of you who have been following, with "considerable concern", the attempts to use EU internet service providers as piracy police, it may come as good news to know that politicians in the Union still remember their Civil Liberties 101. Or maybe they are just fearful that the "internets", that "series of tubes", will move to Canada. Perhaps they can't resist checking out that new Will.i.am song "I Got It From My Mama"  for zero euro.

Now that I have all my tongue stuck in my cheek, it suffices to applaud the EU parliamentarians for going back to first principles. Governments everywhere need to explore more creative ways of dealing with the piracy problem, and not resort to the age-old "seize and bind" tactics.

Should stop writing now - I have to go "check out" some German black metal. 

More madness in the land of Locke

Ever engaged in illegal downloading - well big brother in the UK will make it a crime to go online by banning you forever! Given that so many government services and for that matter all services are provided online, such as forms and instructions, how the state proposes to service the millions of college kids who will be affected by this ban is beyond me. The British government has truly gone mad!

Do you have the right to vote?

The Canadian Charter of Rights and Freedoms enshrines the right to vote in federal and provincial elections, but nothing beyond that such as municipal elections. The United States Constitution doesn't even guarantee the right to vote in Presidential elections, and does not mention state or municipal elections. Yet most Canadians and Americans take it for granted that would have that right, and don't even consider this question that critical to ponder over.

So consider what would happen if a provincial government (such as ours here in Alberta with its one party state) decided that because of the rise in crime in Edmonton, they were going to abolish the elected municipality structure and impose an appointed form of government! The reaction would be outrage and defiance. This would sound something akin to a move by a thirld-world dictator imposing martial law in the name of law and order. After all, isn't this how most dictators seize power?

So why my  big fuss? It seems that our University got infected with a little bit of anxiety over supposed breakdown of law and order in Lister Hall, one of our student residences.  The University decided that the 40 year old tradition of electing floor co-ordinators (who act as discipline officers and liase with the students on the floor) was causing some of the mayhem that was plaguing the residence. So one day, the University unilaterally anounced that elections would be ended. Within a day, however, the University backed off promising to consult with students before trying their move one more time.

Given that we are:

1. at a time when the world is being faced with choices between freedom and totalitarianism,

2. at a time when we claim that we are abroad promoting peace and freedoms,

3. at a time when there is actually an election under way in Alberta and the possibility of one federally,

4. at a time when the world is watching with excitement at one of the most exciting elections in the United States in recent memory,

5. at a time when the University constantly hosts speakers from around the world talking about their struggle for human rights,

6. at a time when we teach subjects such as human rights law and criminal procedure where we claim that it is preferrable to err on the side of liberty even in the face of rising terror let alone petty crime.

7. at a time when the Israeli Supreme Court stated in the words of Aharon Barak "A democracy must sometimes fight with one arm tied behind its back. Even so, a democracy has the upper hand."

8. at a time when we teach maxims such "Governments are instituted among Men, deriving their just powers from the consent of the governed"

- it therefore seems odd that we should then impart the very opposite message on our students! Perhpas an ideal design would preclude students from voting for their floor leaders, but path dependence would dictate that surely once students received the right to vote, it should only be retracted under the most dire of circumstances.

Would those who made the decision to cancel the Lister elections, for example, be willing to forever forego their right to vote in a municipal election? After all - it is not a constitutionally protected right.

[Full Disclosure: I am the academic counsellor at Lister Hall, and hence I also work for the residence administration. My views here are my personal ones as a student of the law and an alumni of Lister Hall. They are not meant to be critical of any particular individual who may have had a role in the recent events at Lister.]

Debate on Judicial Review - Kerr v. Somin

US law profs Orin Kerr and Ilya Somin have just (I think) completed a fairly robust debate on the proper judicial role where "the People" have happily opted for voting in Big Government.  (With a Bush in the White House and Democrats controlling Congress, this hardly qualifies as a hypothetical scenario.)  The dilemma they explored is a particular concern for conservative libertarian jurists - specifically, whether (as conservative supporters of judicical modesty) they should maintain that judges should refrain from substituting their own policy preferences for those which have been democratically expressed (Orin's view), or whether (as libertarians) they should insist that judges always apply a model of legality privileging individual freedom and limited state interference (Ilya's view).  These are simplifications of their positions (necessitated by a short blog post), and you can read the debate for yourself here.  (Caveat:  my link is to Orin's recent post at the time I made this post.  By the time you read it, Ilya may have responded.)

For what it's worth, I find Ilya's position more appealing.  A meaningful theory of judicial review ought to apply irrespective of the party who calls the shots in the legislature (and, in the US, in the executive).  The point is that there is a normative function served by judicial review.  And, by the way, this is not a purely libertarian argument.  Even if Ilya is incorrect about that function (and, by the way, I do not think he is - judicial review exists in my opinion to constrain legislative and executive power taken at the expense of individual liberties), it still matters not whether the law under review was the product of a democratically expressed popular will.  No matter how you see the function of judicial review, a plausible account for it will apply irrespective of the particular partisan source of the law under review. 

This is not to say that judges should not be modest in their approach to judicial review in the sense that they ought not to be substituting their own policy preferences for those of the legislature where the legislative policy preference falls short of impeding constitutional rights.  Nor, obviously, should they be rewriting constitutions to suit their own policy preferences.

Mass Arrests Anyone?

On the heels of World War II, and at the beginning of the Korean War, it now emerges that J. Edgar Hoover, the long-time serving director of the FBI, wanted President Truman to suspend habeas corpurs and carry out the mass arrest of 12,000 (mostly) Americans suspected of disloyalty. This approach, reminiscent of Nazi Germany's (and for that matter any brutal dictatorship's) approach to dealing with so-called disloyal elements, may seem far-fetched today; but this mentality seems to be quite pervasive at the time. After all, Truman had very little respect for democracy or for that matter the rule of law. He did declare an emergency in 1950, though he never used the powers. 

President Truman did attempt to nationalize the steel mills, however, a move not very different from what Hugo Chavez just recently made in Venezuala and for which many Americans condemned him. Luckily for America, the United States Supreme Court declared Truman's socialist proclivities unconstitutional in the now famous case of Youngstown v. Sawyer. The case contains Justice Jackson's concurrence, which seems to have become the accepted state of the law on the matter.

What is interesting about the case is the speed in which it was decided. The order for nationalization was issued on April 9, 1952.  The steel companies brought the case to the Federal District (trial) court, which issued an injunction on April 30, 1952.  The D.C. Circuit (Appeal Court) stayed the injunction the same day. Bypassing the traditon of letting the Circuit court deciding the matter first, the Supreme Court took the case by granting certiori on May 3, 1952.  Oral arguments were presented on May 12-13, and the opinion of the court was issued on June 2, 1952. This is one of the fastest cases from start to finish ever decided. This is a great lesson for lawyers in record efficiency and speed. Bear in mind there were no computers for searches or typing; yet the case was argued and briefed from start to finish in just over a month.

The case was argued for the steel companies by the legendary John W. Davis. one of the greatest appellate advocates America ever produced.  When he argued the case, he so mesmerized the court, as he normally did, that he was only interrupted for a question once! (more details on the case here) His opponent, the Solicitor General, did not fare as well. The Court, contrary to most observor's expectations, ruled 6-3 that the President lacked the authority, a decision that so riled Truman, that he complained bitterly about the decision for years to come.

John W. Davis, was the legendary lawyer who argued 140 cases before the U.S. Supreme Court, probably the most by any modern day lawyer (Modern day lawyers are like modern day pitchers in that they can't expect to accumulate too many Sup. Ct. arguments just like pitchers can't expect too many wins with the 5 man rotation. So early lawyers like Daniel Webster who supposdely argued 400 cases is like Cy Young with his 511 wins; while Davis is more like the 300 club). He ran for president in 1920 losing to Coolidge, and founded the prestiogous elite firm of Davis Polk & Wardwell. Despite arguing many cases during his term as Solicitor General against Souther laws that kept blacks from voting, his last appearnce at the Supreme Court was not his finest. He argued the case for "seperate but equal" in Brown v. Bd. of Educ., which by all accounts he would have won had the CJ Fred Vinson not died. His replacement Earl Warren ordered a rehearing and the rest is history.

John W. Davis' opponent in Brown was none other the equally legendary trial lawyer and appellate advocate Thurgood Marshall. Marshall, also a United States Solicitor General, argued 32 cases in the Supreme Court winning 29 of them. He also served on the United States Court of Appeals for the Second Circuit, as well as the United States Supreme Court. He replaced Justice Tom C. Clark (uncle of former Attorney General Ramsey Clark). What is interesting is that if you read Brown v. Bd. of Educ., you will notice that in the now controversial footnote 11:

K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., (1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

all the authorities cited follow the citation style of only having the author's last name, except the first reference, which has the author's first two initials. This supposedly was done, rumor has it, to avoid the appearance that Justice Clark was the author of that study.

One final note: Marshall argued 19 cases for the United States at the Supreme Court (winning 14 of them) including (a companion case to) Miranda v. Arizona, where he argued against the requirement of giving Miranda warnings. You can hear Marshall arguning here at minute 23.35.