University of Alberta Faculty of Law Blog

Peanuts and Pastors

I like Americans.  I have relatives, friends who are Americans.  I even have a sister who lives in the lovely state of Maine.  I also admire the American value of free expression, in particular their angle on defamation law.  I am baffled and disappointed however, by the response, at least in some quarters, to Jimmy Carter's trip to the Middle East, and Jeremiah Wright's recent comments in the US media.  While Wright may be a crank, I find nothing he said in the past two days objectionable, or without some basis in truth.  Jimmy Carter is a private citizen who, through his foundation, is seeking peace in the Middle East.  Why, when it comes to sensitive matters like foreign policy or race relations, are Americans not more tolerant of differing, albeit controversial, views?   

Wolrd Hunger

why is the world facing food shortages? Why it's the governments fault, of course. John Lott offers has the scoop.

Failure to Google=Negligence?

Plaintiff attempts to serve defendant with papers, but plaintiff claims he couldn't find the defendant, because mailing the complaint to the last known addresses all resulted  in returned mail- what result? If a simple Google search yields a different address than the addresses used for the mailing, chances are the courts are not going to be too impressed, and will probably dismiss the complaint for lack of effective service. See Munster v. Groce, 829 N.E.2d 52 (Ind. App. 2005).  The court noted that they Googled the defendant's name and found another address including a mention in an obituary of a death in the family.

What does this mean for lawyers? It means that Google is now an indispensable tool and that at the very least lawyers should have more skills than Appellate judges and their clerks! What does this mean for Facebook, MySpace, and other such sites? Perhaps lawyers will all have to get Facebook accounts to track possible parties to serve them.

Austria Produces New World Record in Human Depravity

Here's the gist of it: 73-year old man confesses to kidnapping, locking up, and sexually molesting her daughter for 24 years (since age 11), and fathering seven children with her in that time. For a final touch, he incinerated one child's corpse after he died in the same cramped cellar where he held them for 24 years, and adopted 3 of the 6 children in the course of events to live above ground. Wife and adopted kids never had a clue.

Read this atrocious story here, or just turn on your TV and go to any news Network channel.

Who is richer?

Have you ever wondered if Bruce Wayne is richer than Scrooge McDuck? Well ponder no more - Forbes has the the wealthiest 15 fictional characters list here.

Second Round Swami Speaks

Given my colleagues (who shall go unmentioned) who were 4-4 and 5-3 in their first round picks (I went 6-2), it behooves me to let you know who will win in the second round (and why):

Dallas over San Jose  [they looked good aginst the Ducks; San Jose was inconsistent]

Detroit over Colorado [Red Wings are too good]

Rangers over Pittsburgh [the goalie thing]

and, you heard it hear first...

Flyers over Habs [because I said so]

All series will last 6 games.

Brenda Martin, or Lamont/Spencer Revisited

The coverage (particularly by CTV) of the Brenda Martin story has me wondering whether first-world reporters are particularly well-placed to comment on third-world legal cases and criminal justice systems, and whether they in fact lose all sense of dispassion when the accused is a fellow citizen.  The messages regarding Ms. Martin's case over the past few weeks have been to the effect that (1) there is no direct evidence implicating Ms. Martin in Mr. Waage's fraud, (2) that Mr. Waage has said Ms. Martin was not involved in his fraud, and that (3) the Mexican justice system is corrupt or otherwise deficient - otherwise, why take so long to bring her to trial?

Quite aside from the obvious quick answers to each of these messages [(1) lack of direct evidence does not preclude conviction, (2) Mr. Waage is a fraud, so why believe him now?, and (3) two years does not seem like such a long time in a commercial fraud case], what interests me is the overall implication that Ms. Martin cannot be guilty, because she, her friends and her mother say she is not guilty.

My point is not Ms. Martin's guilt or innocence - I simply don't know (although it is also worth pointing out that neither do her friends, her mother, Lisa LaFlamme or anyone else at CTV).  What does interest me is that the media treatment of, and consequent public reaction to, Ms. Martin's case is highly reminiscent of the case of accused (and, it turns out, actual) kidnappers Christine Lamont and David Spencer when they were incarcerated in Brazil.  (Although, it must be said that in the Lamont/Spencer case, there was considerable direct evidence as well as circumstantial evidence which should have given pause to anyone arguing their innocence).  Interestingly, much of the hype (and that is the correct term) for Lamont and Spencer was generated by a then-CBC journalist who is now at CTV.

"Extraordinary" Duty of Care?

I just read a piece in the current issue of the Canadian Medical Association Journal on the much talked about "decision to withdraw or withhold life-sustaining care." This piece focuses on the Samuel Golubchuk case which I gather is like Terry Schiavo but with the family saying no on religious grounds (and getting an injunction to back that up), and some physicians taking it personally. Interestingly, the authors of this piece argue (and I reproduce verbatim):
"First, the considered withholding or withdrawal of life sustaining care is not "murder." Lawyers may make it seem so by exploiting the dubious distinction between acts and omissions — when in truth discontinuing invasive procedures such as tube feeding is both an omission (e.g., discontinuation of care) and an act (e.g., removal of a tube). Wise judges would reject this linguistic charade and bravely adopt an ethical approach to decision-making, which always emphasizes the best interest of the patient. In these circumstances, it is the disease that kills the patient, not the doctor or the treatment."

And...

"...some families will overreach in their demands to preserve life, often because they use fundamentalist religious beliefs or cultural norms to narrowly define the best interest of the patient. In dying, just as in living, no right, including the constitutional freedom to one's religion, is absolute. Requiring caregivers to stand in the way of the natural process of dying by forcing them to impose what, under the circumstances, are extraordinary measures with no foreseeable benefit, should not be accepted by the courts or society at large. Although religion and culture assist in better understanding the context of decision-making, it should not impinge on the rights of others. To make religion a factor in allocating a hospital bed is inequitable, for it privileges religious patients over others who may need care more urgently and whose chance of a favourable outcome may be better."

Needless to say, I find both arguments fascinating for obvious reasons. While both strong arguments, the first one somehow cancels out the second. Or perhaps its just me and my lawyerly linguistic charades. What I mean is that it seems suspect to argue first that it is the disease that kills, and then follow that with a suggestion that we need to consider tradeoffs in our publicly funded health care system (knowing fully well that those tradeoffs can only be procured by the doctor not the disease).

E-File please

The future is here - a lawyer in Kansas who kept filing bankruptcy cases the old fashioned way was finally sanctioned for failing to follow the new e-filing mandates of the bankruptcy courts.

No Lewd Gestures please

A lawyer who made a lewd gesture in court got 90 days in jail! Did I mention, it was in Texas (and the case is under appeal).

Health Insurance Benefits from STD

The CB Cout of Appeal ruled that a man who contracted Herpes after having unprotected sex with three women can his health insurance benefits.  What amazes, or should I say shocks, me most about this story is that the man became paralyzed from the Herpes virus! Yikes! I knew Herpes was bad - but this is really bad!

Harry Potter might die!

Well no - but JK Rowling claims here energy was sapped for a month, because a fan is publishing a book based on her works, and whom she is suing for copyright infringement. Ah how amazing it is that one day she was a humble working mother and now she is a bigwig, she gets to squash her fans all for the mighty dollar - why is she so greedy? Wait a minute, I am sounding like John McCain and the rest of the merry band of socialists.

Vladimir Ilyich McCain

With pronouncements like these, why is McCain running as a Republican? This has to be the absolutely worst crop of candidates in terms of respecting liberty in more than forty years.

Thin illegal in France?

The French legislators with all of their problems with race relations to their now first-lady's nude photo must be very efficient to find time in their busy and onerous schedules to make it illegal to incite hatred against arabs jews nudity by first ladies inefficient and corrupt regulations that have created a permanent underclass thinness! Yup - that is right: thinness is so heinous a crime, that inciting it must be punished.

Do you have a degree in that?

Ever wonder if the guy selling you a bed has a degree in selling beds? Well, it turns out, they are offering a degree in bed-selling in the UK!

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. 

Legal Philosophy at Oxford, 1951

Here's the syllabus for Legal Philosphy as taught at Oxford in 1951.   (The handwritten notation on the right-hand side indicates it was taught by Anthony Woozley (who died last week) and Tony Honore. 

It's a fascinating document, that gives the overall impression that the legal part of "legal philosophy" was taken seriously.  (I teach, for example, both Polemis and Palsgraf in my torts class).  I was also interested to see that Willis's article on statutory interpretation seems to have been instantly recognized as a classic or at least something worthy of serious study at Oxford. 

Scalia on the Law

Once again Justice Antonin Scalia speaks to a group of students and does not disappoint. 

Duke Lacrosse Lawsuit

If you are interested in following the aftermath of the Duke Lacrosse saga, i.e. the lawsuits that have emanated from it, then this website is a great source. Apparently there is some controvery over the website, as WSJ Blogs reports, so stay tuned.

Tories = Trudopia!

The Tories have proved that too they can also succumb to socialist protectionist hysetria as well as any other party. At least when the Liberals used to stop foreign takeovers, and that was a long time ago, they believed in it. Here the Tories exist for sheer opportunistic vote scoring. Oh wait! That is also what the Liberals do best.