University of Alberta Faculty of Law Blog

Dispatches from Upper Canada: #1

Ontario
your thousand lakes
and plush terrain
beckon
like wild fires to tragedy’s cause

As we drive past Desolation Lake
we reflect on the anguish of beauty
adored and derided
your yin, your yang

behind us, far past the Lake of the Woods
the well of nostalgia dries up rapidly
beneath its beaming mouth
drowning children wail
yet the wind carries their voices to us
as hushed lullabies

are your winding roads
like snakes that feed on chick eggs?
are these jagged rocks
the fangs that crush the hatched chick?

Approaching Wawa
The signpost tells us ‘the best just got better’
the sun salutes our chests with fiery pride
as we ponder the retreating horizon.

(All credit goes to Russ for the title of this post. More to come, on matters of law, poetry, legal education, and whatever).

Ciao, Ubaka

Our friend and co-blogger Ubaka Ogbogu, research associate of the Health Law Institute and occasional blog-poet, is (as I type) motoring with spouse + carload of belongings to the University of Toronto, where he will be pursuing doctoral studies in law.  (An earlier post had Ubaka moving to UBC, but he ended up juggling offers and chose Toronto).  We hope he will continue to send us the occasional dispatch from Hogtown.

"Rawlsekians": Can Rawls be used to advance Libertarian ideas?

The American Conservative has a piece discussing efforts to reconcile Rawls' A Theory of Justice with libertarian ideas (hence "Rawlsekians":  Rawls + Hayek).  The author observes that Rawls' idea that people will prioritize the liberty principle over the difference principle carries some obvious appeal to libertarians, as does the notion of the veil of ignorance (since libertarians assume that their ideas would be adopted as founding principles).  Ultimately, however, the author concludes that the current libertarian flirtation with Rawls is something of a passing fad.

I do not see how Rawls can be reconciled with hard/pure libertarianism.  I do think, however, that where the state has occupied the field, Rawls can be usefully employed to judge the rationale for such occupation.  Is the state merely impeding our ability to pursue our respective notions of the good life?  Or is it seeking to limit the things we do in pursuing our respective notions of the good life in order to ensure that others also have the opportunity to engage in the pursuit? 

This discussion seems to be occuring at a (probably unavoidably) high level of abstraction (as the previous paragraph demonstrates), and so Ubaka Ogbogu and I tried to furnish a more concrete context in our recent essay, published in the latest issue of the Health Law Journal, considering (inter alia) how a medical professional in a hospital or care facility setting ought to respond to a patient's request for a potentially harmful dietary choice.  We conclude that Rawlsian ideas can be applied to justify the refusal of such requests (even if the patient refuses all medically acceptable nourishment), because the patient's liberty is inherently limited by the liberty interests of others who require health care.   (Send me an email if you'd like a pdf).

Just in case some of our regular commentators think I've gone soft ... Ubaka and I also make the point that our analysis presupposes Canada's exclusively public system of health care, and that the answer to our question would otherwise be considerably different:

Its Joe

Barack Obama has picked Joe Biden as his VP running mate! Joe Biden is considered an expert on foreign affairs and is supposed to add some measure of stability to Obama's campaign. I wonder if he will manage to keep the Indian vote after his pronouncement on the contribution of Indians to America:

Black Appeal Denied

I haven't read the court order, but this story suggests that the 7th Circuit denied a rehearing by the original panel and an en banc rehearing also. That would mean, as the story points out, that the only avenue left is an appeal to the Supreme Court of the United States. The odds of that happening are very slim, but we won't know for sure till the cert denied is issued.

Also: The NY Post story referred to is here.

Eww - I have taste!

Amanda Beard doesn't think Michael Phelps is good enough for her:

Let's Get Rid of the Q.C.

The Lawyers Weekly, August 22nd edition, has an interesting piece on the QC designation:  "Queens Counsel appointment: Tribute or Tarnished?"  Unfortunately, there is no electronic link to this story.

While I am not familiar with the designation process or the usual criteria used, I am aware of the accusation that the QC is handed out to favorites, political or otherwise.  This outcome would hardly be surprising given the criteria mentioned in the article ("exceptional merit and contribution...professional integrity and good character" says the BC Attorney General').  As for the latter, surely we shouldnt reward lawyers for acting with integrity and good character, which they are bound to by their professional ethics.  As to merit and contribution, could it be more vague?  How do measure one person's merit and contribution with anothers?

I welcome opposing views, but my own is that this designation should be dispensed with.  It is a misnomer in any event.  No disrespect intended to current recipients. 

Internet with your pillow?

Is was only a matter of time, but it looks like Internet access is coming to an airline near you.

Open Source Case Gets it Right!

There is much buzz the last few days in intellectual property circles about the Jacobsen v. Katzer case handed down by the US Court of Appeals for the Federal Circuit.

The open source concept is an alternative business model of innovation, based on cooperation and collaboration and not competition.  It works like this: intellectual property rights (IPRs) are asserted by the intitial developer of source code and are licensed out to subsequent users and improvers of the code on conditions that they not assert proprietary rights over their contribution to the improvement or adaptation.  I use the example here of source code though the concept has been adapted to various areas of innovation.

Two legal issues have emerged from the open source concept (1) can IPRs be used this way? and (2) what if someone poisons the code with proprietary code? Jacobsen answers the first issue.

The Artistic License n  Jacobsen gave users the right to copy, modify, and distribute software "provided that [the user] insert prominent notice in each changed file stating how and when [the user] changed the file..."; "place [the user's] modifications in the Public Domain or otherwise make them freely available"; "use the modified Package only with [the user's] corporation or organization" The defendant breached these conditions. 

The court characterized the issue as whether these terms of the license are conditions or convenants to the copyright license.  If they are conditions, according to the court, they must be complied with prior to the granting of the license - meaning that if the conditions are breached, there is no permisssion to use, and thus there is infringement.  If they are covenants, then a priori the license is granted (and thus there can be no infringement), and the breach becomes contractual in nature. From a practical point of view, the different is significant.  As the court states "Copyright licenses are designed to support the right to exclude; money damages [in contract] do not support or enforce that right."

The court finds the terms to be conditions, the breach of which amounted to infringement.  The decision seems right on legal and policy grounds.  Legally, both the form of the agreement and the substance of the terms seem predicated on IPRs and thus conditional to the grant of a license. On policy grounds, a contrary holding would inhibit the development of an important source of innovation in society.

 

Former Politicians as Judges

Mr. Morley in the comments stated "It's hard to imagine a finance minister becoming a Supreme Court justice or a former premier becoming GG nowadays."  I was trying to think of which Canadian Supreme Court justice was a former finance minister, but I am at a loss. So I pose the question to our readers - plus who were our last Sup. Ct. justices that were also former politicians.

In the United States, the trend since the 70s has been to appoint career judges. Lewis Powell was the last direct to the Supremes justice, which is interesting in that we seem to have a tradition here of having at least one such Justice (currently Binnie, and before that Sopinka).  CJ Earl Warren was the governor of California, and CJ Salmon P. Chase was Lincoln's Secretary of the Treasury. 

There have even been US Sup. Justices who have resigned (and some who almost resigned) to run for office. CJ John Jay negotiated peace with Britain while on the bench, and then was elected governor of NY. Arthur Goldberg resigned to serve as US ambassador to the UN (and he also later ran for governor of NY). Justices Field and Douglas both contemplated running for president/VP.  In Canada, I am only aware (and this reflects my ignorance) of now BC AG Wally Oppal who resigned from the BC Court of Appeal to run for office, but not of any Sup. Ct. of Canada justices who did the same (or contemplated the same).

Morgentaler saga II

It seems now that the Chief did not vote to give Henry Morgentaler the Order of Canada. This is also interesting in that the Chief decided to speak on the matter. I should confess that I am not as fussed about our judges taking part in seemingly political maters - after all, the Chief is the deputy Governor General and can (and has) become the acting Governor General of Canada. It would seem to me that those who are fussed about this, should repeal the act that allows this before worrying abou whether she sits on an awards committee. The concept of separation of powers is more of an American concept, where the federal and state constititions clearly demarcate the roles of the executive, legislatures, and judiciary. In the UK where (till recently?) the Lord Chancellor was also a cabinet minister, such a doctrine wouldn't work; and here where judges chair royal commissions and are in the chain of command to be her majesty's representative here, similarly, such a doctrine doesn't quite work either.

That being said, this leaves me in odd position of then not knowing quite how to deal with the concept of judicial activism. For if they are truly not meant to be seperate from the politicial sphere then does mean they should pay more or less  deference to politicians? I have had these same qualms in the context of American state judiciaries, where many of the state Supreme Courts are elected directly or indirectly.  Professor Jed Shugerman (Harvard Law and frequent visitor to our school) has commented on the role of elected versus unelected judges in the enactment of Rylands v. Fletcher in the US, which sheds some light on how judges saw their roles.

Arar case to be reheard

This is quite an odd development from the United States Court of Appeals for the Second Circuit, and actually for that matter, for any circuit - in that the Second Circuit has decided that the entire 13 judge court will rehear the case. (HT Bashman) What is odd, is that the Second Circuit order the en banc rehearing without the lawyers for Mr. Arar even asking for it. I have no idea what this means, and the coverage on How Appealing and Volokh (including the linked post from the Center for Individual Rights) indicates that no one really knows how to take this. The Second Circuit could overrule the original decion's affirmation of the dismissal of the lawsuit by the trial judge or they could reaffirm the decision but with better reasoning.

Politicians are scum

Ok that is a very strong title for a post - but I have, generally speaking, over the years come to detest politcians of all stripes. They are condascending, smug, glad-handing, and many of them are stupid but think they are God's gift to mankind. They make a mess of our lives and claim they are doing us a favor. The list of grievances goes on.

The Edwards affair just re-inforces my view even further.

Update: I thought the context of my post was clear - but judging by the comment, probably not. So let me rephrase: Trial lawyers who become politicians and cheat on the wives who are dying of cancer and who are condascending, smug, glad-handing, are stupid but think they are God's gift to mankind, and who make a mess of our lives and claim they are doing us a favor - are scum.

Update2: Ok guys - this post was aimed primarily at Sen. Edwards - the post was not clearly composed.

Medals anyone?

Someone wake me up when we win a medal.

Was World War II Good?

Pat Buchanan is back with a full attack on WWII. In his book a few years ago, A Republic Not an Empire, he argued that the U.S. should have sat out WWII. Now in his latest book, Churchill, Hitler, and "The Unnecessary War": How Britain Lost Its Empire and the West Lost the World, Buchanan argues that Churchill actually caused WWII and relished it. In his magazine, American Conservative, there is a discussion on Buchanan's side.  Meanwhile Christopher Hitchens and Victor David Hansen take on Buchanan in this 5 part Youtube discussion:

Part 1 - Part 2 - Part 3 - Part 4 - Part 5.

Welfare or Protectionism?

Child labor laws aimed at keeping youngsters from working in the coal mines are now being used by jealous musicians to stop an 8-year old child prodigy from playing his guitar. Apparently, the competition is not content with sticking the machinery of the state on the little kid, they are even resorting to death threats.

Chris Rock and Steven Wright

I saw this clip the other day on tv (warning: some foul language):

The hypocrisy in our media

"A male Conservative politician told a long-time Liberal female politician that she should go back to the kitchen where she belongs and bake cookies".  Imagine the media's reaction if that were the real story. The pundits and self-righteous defenders of our values from politicians to public intellectuals would point to the terrible injustice that the Tories had just inflicted on women all over Canada.

Except - the story is actually reveresed. It was a male Liberal who told a female Conservative to go back and make tea. And so the reaction is the usual muted coverage of an insincere apology.

Where was the media?

Thank God for the National Enquirer, otherwise where would we have found out about John Edwards' affair?  Of course, had this been a Republican politician, the mainstream media would have been all over it. I guess this underscores the need for protecting free speech and a free press. In a time when the mainstream can overlook certain stories, sometimes it takes the fringes to expose what we have been ignoring all along.

The Lawyers of Wannsee

On a recent trip to Berlin, I took a day trip to the picturesque borough of Wannsee for a tour of  the notorious #56–58 Am Grossen Wannsee or Haus der Wannsee-Konferenz (House of the Wannsee Conference). This was the location where senior bureaucrats and thugs of the Nazi regime met to discuss the implementation of the directive passed on to Reinhard Heydrich by Hermann Göring to make "all necessary organisational and technical preparations for a comprehensive solution of the Jewish Question". Anyone who follows our Prof. Ted DeCoste's excellent scholarship on this matter, or has seen the excellent HBO movie "Conspiracy" based on the transcripts of this meeting should already be familiar with the nature and significance of this meeting in the scheme of things. Many historians have argued (quite correctly in my view) that the concept of mass genocide as a Final Solution to the Jewish Question was crystallized at this meeting, and that the means of carrying out the genocide was also possibly settled there. These two matters are of course contested, particularly since there is no explicit record of both in the minutes of the meeting, which was extensively doctored by Heydrich and Eichmann.

One thing that struck me on my visit to the Wannsee villa (which is now a memorial and educational site) is that the official position (supported by documentation at the site, and a plaque at the entrance) appears to be that the meeting did not decide the killing of the Jews and the means of doing so. However, as historian Mark Roseman argues in his must-read account titled "The Villa, The Lake, The Meeting: Wannsee and the Final Solution", while no hard and fast proof is present in the minutes (and understandably so), the progression of events in Nazi Germany prior to the Wannsee Conference, the clever use of euphemistic language in the only surviving record, and whatever can be gleaned from post-war testimonies of Nazi perpetrators such as Eichmann support the conclusion that the "participants [at the meeting] knew they were talking about murder" and that, as the minutes reveal, "various possible kinds of solution were discussed."

The other thing that struck me as very deplorable while viewing the documents at the site is the degree of involvement of highly educated (and one would suppose, reasonable) men, majority of them lawyers (see example thumbnail photos below, MORE HERE) , in this shameful event. Not that I was not aware of this before visiting Wannsee - Prof DeCoste has written about this, and there is that scene in Conspiracy where all the lawyers in the room were asked to raise their hands. However, it was a strange experience to stand in a room surrounded by the egregious deeds and legacy of fellow members of the bar. No doubt a grave reminder of the responsibilities placed upon us by our call to the legal profession, and of a need to constantly re-examine the uses and limits of our highly specialized skills.