University of Alberta Faculty of Law Blog

A new low for the Human Rights Commissions?

This story by Ezra Levant points out the great threat that these commissions pose for democracy. The issue is not whether what the MP was saying is false or even offensive, but when a commission gets to tell Parliamentarians what they can say and not say, we are indeed in dire straits. It used to be that when such materials were sent out, we debated the merits of the flyers, commended or condemened the speaker, exposed the idiocy or correctness of the statements - and then the public decided. 

I even wonder if the human rights commission even has jurisidiction over an MP for speech related to parliamentary business. Maybe I am over-reacting!

Here is more on the CHRC.

Gun Rights=Abortion Rights?

Larry Solum at Legal Theory Blog posts a very interesting discussion of a paper by J. Harvie Wilkinson III (United States Court of Appeals for the Fourth Circuit) titled Of Guns, Abortions, and the Unraveling Rule of Law (Virginia Law Review, forthcoming), whose abstract is as follows:

Conservatives across the nation are celebrating. This past Term, in District of Columbia v. Heller, the Supreme Court held for the first time in the nation's history that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms.

I am unable to join in the jubilation. Heller represents a triumph for conservative lawyers. But it also represents a failure - the Court's failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.

In this Essay, I compare Heller to another Supreme Court opinion, Roe v. Wade. The analogy seems unlikely; Roe is the opinion perhaps most disliked by conservatives, while many of those same critics are roundly praising Heller. And yet the comparison is apt. In a number of important ways, the Roe and Heller Courts are guilty of the same sins.

Read Solum's discussion of the paper also for more on this.

The discussion highlights some of the tensions conservatives have with what type of court they want (see here and here for our previous discussions on this)  Orin Kerr at Volokh also discusses a case that exposes the tension between varying groups of conservatives/libertarians on the question of judicial review of legislation.

A longtime Volokh conspirator will be visiting our school next week.  Professor Randy Barnett will be speaking at the law school on exactly what kind of scrutiny the courts should subject government legislation. Professor Randy E. Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. The title of his talk is Scrutiny Land.  In 2004, Professor Barnett appeared before the U.S. Supreme Court to argue the medical cannabis case of Gonzalez v. Raich, 545 U.S. 1 (2005).

Scrutiny Land is the place where liberty is protected by courts against government interference.  In Gonzales v. Raich, the Ninth Circuit denied Angel Raich access to Scrutiny Land and refused to protect her use of marijuana to preserve her life.  In this talk, Angel's lawyer Professor Randy Barnett explains how the Supreme Court's "Glucksberg Two-Step" has narrowed the lanes to Scrutiny Land and thereby weakened the constitutional protections of liberty.

Best way to get Liberty?

Over at the Shotgun,  Marc Emery and Gerry Nicholls are debating the best way to get liberty. One argues by breaking the law and the other by staying within it.

Even polygamists have rights

even in Texas - so rules a Texas Appellate Court (Via Volokh). Over at Volokh, Eugene discusses why the case isn't necessarily over, putting aside an appeal by the state to its Supreme Court.

Pinker on Dignity

I could not resist posting a link to this essay from my new favorite philosopher, Steven Pinker. A must read, if only to see him take on Kass. The arguments canvassed by Pinker should be familiar to anyone who follows our work on the dignity discourse in the law and ethics of biomedicine (I can hit you up with a reading list if you so wish). My favorite paragraph from the piece:

"First, dignity is relative. One doesn't have to be a scientific or moral relativist to notice that ascriptions of dignity vary radically with the time, place, and beholder. In olden days, a glimpse of stocking was looked on as something shocking. We chuckle at the photographs of Victorians in starched collars and wool suits hiking in the woods on a sweltering day, or at the Brahmins and patriarchs of countless societies who consider it beneath their dignity to pick up a dish or play with a child. Thorstein Veblen wrote of a French king who considered it beneath his dignity to move his throne back from the fireplace, and one night roasted to death when his attendant failed to show up. Kass finds other people licking an ice-cream cone to be shamefully undignified; I have no problem with it."

Zimbabwean Election-Rigging

Robert Mugabe's latest attempts to hang onto power in Zimbabwe's forthcoming general election has extended to booting out the foreign media and impounding the opposition leader's helicopter.  All, of course, in an attempt by the old thug to continue the transformation of his country into a despotic economic basket-case.

Tibet

That Tibetans appear, at least to some degree, to be in a state of open (if futile) revolt against the People's Republic of China, is a cause for concern (for the security of individual Tibetans) and for some smug satisfaction (for the timely embarrassment of the totalitarian state which has brutally occupied Tibet for a half-century and which has been given - scandalously and undeservedly - the honour of hosting the Olympic Games in a few short months).

Interestingly, one does not hear (as one usually hears when totalitarian oppression in faraway places hits the news) the usual call in the West for "democracy" in Tibet.  Instead, to the extent the West has anything to say on the issue, it usually invokes the authority (or, more accurately - since he has no actual authority - the name) of an odd duck:  a curious, bespectacled little man who lives as a refugee in India and who goes by several aliases (including a religious hierarchical affectation) but whose real name is Lhamo Dondrub.  He is also the former theocratic ruler of feudal Tibet, who has in more recent times expressed a desire to supress all non-Buddhist faiths operating within Tibet, to fundraise from mass murderers, and who seems to have charmed the yammering Hollywood elites into supporting his restoration over (ahem) "his" already long-suffering people as "Holy Lord, Gentle Glory, Compassionate Ocean of Wisdom" (and Fruitcake Supreme) of Tibet.

On a more serious (i.e. not Dondrub-related) note, I sincerely hope the West does acquire some backbone about objecting to the PRC's oppression of Tibet, its religious freedoms and its civil society (such as it is).  I doubt, however, that it will.  Our demand for cheap consumer goods is just too strong.  And, if somehow Western governments can muster the courage to endure the fallout from its overtaxed citizens who are trying to save a buck (or a Euro) on some toy for the 5th consecutive weekend birthday party that their kids will be attending this month (sigh), I hope it makes the case for democracy in Tibet and concomitantly for freezing the mediaeval nutcases from power (as the West has done with, for example, Mr. Dondrub's counterparts in Afghanistan).  Otherwise, we simply replace a distinctly modern totalitarianism with a Himalayan version of the ayatollahs.  On matters of individual liberty, it's a wash.

Meanwhile, if Canadians wish to support an actual democratic cause affecting China (as we should), there is a fairly obvious cause lurking right under our noses.  Write your MP.

Lawyers in Pakistan Observe "Black Flag Week"

The courage of Pakistan's bar has been the subject of past comments on this blog (as has the assassination of the "democrat" Benazir Bhutto).  Next week, lawyers in Pakistan will carry black flags in demonstrations "for the reinstatement of the judiciary, for the rule of law, and for the return to the Constitution and democracy in Pakistan".  You can read more about it here.

If you go to the Olympics this summer, maybe leave the Camcorder at home

24 municipal inspectors in China's Hubei province have been detained (and many more are being investigated) in respect of the beating death of Wei Wenhua, a construction business executive (and blogger).  His offence was evidently to film a protest by villagers (see above photograph) against the dumping of waste near their homes.  When Wei took out his cellphone to record the protest, the inspectors (the people with the helmets) allegedly turned on him, beating him to death.

There is lots being circulated online within China about this incident, which perhaps explains the Chinese government's prompt response (lots of arrests, and possibly lots more).  The use of violence against citizens by civic employees is, I gather, not uncommon in China (a columnist on Xinhua's website laments that violence is allowed to continue in municipal administrations).

RCMP seeks dirt on Robert Dziekanski

The RCMP is seeking permission to have its members travel - on  your dime and mine - to Poland to investigate fatal tasering victim Robert Dziekanski's criminal and personal history. 

Ummm ... why?

More specifically, how does whatever mud the RCMP dregs up about him in Poland tell us whether its members were justified in tasering Mr. Dziekanski?  Isn't the proper question to be asked whether they acted appropriately, based on what they knew and observed at the time?

Hang onto your hats, folks.  Operation CYA @ YVR is about to go into full throttle, complete with ex post facto rationalizations.

New Inquiry ordered into the death of Zahra Kazemi

Iran's Supreme Court has ordered a new investigation into the death of Canadian citizen Zahra Kazemi, citing a concern that the previous investigation was not competently performed.

Politics or Gender matters?

Does the party of appointment or gender of the judge matter on their voting? James Stribopoulos and myself argued yes in our Osgoode Hall Law Journal paper.  Ben Alarie has been nice enough to run our data using the Andrew Martin and Kevin Quinn non-parametric methodology that Ben and Andrew Green have become famous for (see here and here).

He presents results that seemingly contrasting with ours. I think our two studies are not inherently contradictory, but I should have some thoughts soon, but in the meantime, I leave you to decide.

Pakistan's Lawyers and Legal Positivism

The New York Times this morning has a story on the longstanding tussles between General Musharraf and Pakistan's lawyers.  Their "disappointment" in Musharraf (for whom they had initially held out some hope for fostering decent civil society in Pakistan) turned, the article describes, "into fury [after Musharraf] abolished the Supreme Court and scrapped the Constitution, touching a raw nerve among Pakistan’s lawyers, some with degrees from the best universities abroad and with experience in how other societies had preserved legal rights."

One such degree holder (Harvard, presumably a LL.M.) is quoted as posing this pithy question:  "How do you function as a lawyer when the law is what the general says it is?”

Is this not a serious challenge to legal positivists?  Either these lawyers are acting profoundly "legally" or they are woefully misguided outlaws.  Positivists would presumably argue the latter, since they see law's legitimacy as dependent only upon the presence of certain governmental structures that can posit the law, and not upon (for example) the rule of law.   

I recently tried to make a similar point in the University of Toronto Quarterly in reviewing David Dyzenhaus & Mayo Moran, eds., Calling Power to Account:  Law, Reparations and the Chinese Canadian Head Tax.  At some point, it is difficult to continue to insist on law's amoral quality.  Whether it is the head tax in Canada, or the complete abandonment of the rule of law in Pakistan, or (an easier case) the Nuremberg Laws, at some point - perhaps hard to locate (but probably easier in retrospect to say we have reached it) - such "laws" are not truly "lawful".

Lawyers in Pakistan

Anyone interested in monitoring the repression of lawyers under current emergency rule in Pakistan will want to check out the Pak Lawyer blog.

Is Pakistan's Chief Justice a (gasp) "Judicial Activist"?

Chief Justice to General:  "I think I'll strike the usual order and go for a soup and sandwich instead."

General to Chief Justice:  "You're fired."

In imposing emergency rule in Pakistan yesterday, Gen. Pervez Musharraf also purported to dismiss Pakistan's Chief Justice.  The New York Times reports Musharraf as saying:

"Judicial activism had demoralized the security forces, hurt the fight against terrorism and slowed the spread of democracy. Obstacles are being created in the way of democratic process, I think for vested, personal interests, against the interest of the country.”

(Musharraf was referring to the recent judicial release of 61 persons accused of terrorist activities).

So just what is a "judicial activist"?  Ilya Somin has posted some thoughts on "judicial activism" on The Volokh Conspiracy.  I tend to agree with Ilya that activism is not a helpful label in the constitutional sphere:  one can (while remaining otherwise philosophically coherent) think courts should strike down one parliamentary statute while showing deference towards parliament in considering a second statute.  In other words, one person's judicial activism is another person's judicial common sense.  "Activist", at least in the constitutional field, becomes an adjective for cases we don't like. 

A case like Chaoulli makes this plain:  jurists who had excoriated the Court for decisions such as Re B.C. Motor Vehicle Act were suddenly delighted (as I was) with the Court's decision striking at the heart of exclusive state-provided health care, while those who might have been expected to support a less deferential court were unhappy with the outcome in that case.

Speaking as a private lawyer, it surprises me that the judicial activism debate has been restricted largely to the field of contitutional law where, as Ilya points out, the "activist" epithet is hard to apply in a consistent manner.  In private law, it is much easier to use the term consistently:  pick your norm (corrective justice, instrumental considerations, etc.) and then make your assessment of the case.  (For this reason, I find it mildly irritating when public lawyers make facile remarks about how Donoghue v. Stevenson is an instance of judicial activism - for most private law scholars, and certainly for any private law scholar who views tort law as properly conforming to corrective justice, it is absolutely not an "activist" decision, as we would understand "activism" - that is, in the sense of being inconsistent with fundamental norms that we associate with tort law).

Judicial Appointments

The current Lawyers Weekly has an interesting piece by Jacob Ziegel on judicial appointments. 

No legal academic in Canada has argued more effectively than Jacob for reforms to the disgraceful appointments process.  That said, I differ from Jacob in hoping (probably in vain) for parliamentary review of all section 96 appointments.

Zimbabwe's Other Clerical Face

Just in case previous posts (here and here) might lead you to think that all Zimbabwean bishops are heroic defenders of the Rule of Law:  meet the Anglican Church's man in Harare, Nolbert Kunonga.  He's the full package (see here,  here, and here).

Mugabe checkmates the archbishop

"Will nobody rid me of this turbulent prie ... zzzzzzzzzzzz"

Just to follow up on an earlier post, Dean Percy has drawn my attention to The Economist's take on the former archbishop Ncube of Zimbabwe having fallen victim to Robert Mugabe's honey trap.

Disclosing your Salary, or Doing Your Part for Judicial Independence

The Canadian Superior Court Judges Association (CSCJA) has retained a slick "global" consulting firm to spam ...er, survey lawyers on their salaries.  Seriously.  This is actually happening.

The overall objective, we're told, is to influence the Judicial Compensation and Benefits Commission's forthcoming (May '08) recommendations on pay increases for section 96 judges.  (I swear I'm not making this up.  I will forward the survey email I received to whomever asks nicely).  The stated goal is to bring judicial salaries into conformance with those of "senior practitioners in the private sector" [hmmmmm]. 

If the survey itself has you wondering where judicial decorum went to while your head was turned, the accompanying "endorsement letter" from the President of the Canadian Bar Association won't be much help.  (Again, I honestly am not making this up.  And it does not appear to have been a prank played on the CBA President by someone who stole his letterhead and signature stamp. On its face, this letter actually appears to have been signed and sent in earnest).

But enough of my cynicism.  C'mon, everyone, I have a great idea.  Let's ALL do our part for judicial independence.  Simply fill out and submit a survey form, and help the CSCJA get the best possible information to make its Campaign '08 a roaring success.  And remember:  you have the assurance of the President of the CBA that "figures will be recorded anonymously" and that no names will appear in the compensation database.

On Civil Liberties & the Brute Power of the State

Two initiatives from Britannia making the news rounds:

1. The whole population and every UK visitor should be added to the national DNA database, a senior judge has said.
The present database in England and Wales holds details of 4m people who are guilty or cleared of a crime.

Full story here.

2. Failing to follow a healthy lifestyle could lead to free NHS treatment being denied under the Tory plans.
Patients would be handed "NHS Health Miles Cards" allowing them to earn reward points for losing weight, giving up smoking, receiving immunisations or attending regular health screenings.
But heavy smokers, the obese and binge drinkers who were a drain on the NHS could be denied some routine treatments such as hip replacements until they cleaned up their act.

Full story here.

Thanks to Ted for the heads up on this one. I hope they have "Fruit Juice Miles" for the next time I am in London - would love to have a reference point when I refuse to buy my hard drinking friends a beer.