University of Alberta Faculty of Law Blog

Niqab v. Balaclava: a postmodern appraisal

N.B. The intent of this article is not to offer an opinion on the merits or demerits of either Niqabs or Balaclavas.

  

There has been a lot of talk of late in Canada about the Niqab; there has been comparatively less about my Balaclava.  There are some who oppose the Niqab and some who support the Niqab; there are few who oppose my Balaclava.  She wears hers for a number of reasons; I wear mine for a number of reasons. There are social issues that relate to the wearing of the Niqab; there are climatological issues that relate to the wearing of the Balaclava. Niqabs come in several colours; Balaclavas do too. She is female; I am male. We are both human.

To avoid ambiguity, I want to make it clear that I am using postmodern as "a style and concept in the arts characterized by... the drawing of attention to conventions." -- http://www.askoxford.com/concise_oed/postmodernism?view=uk

Pullman: "No one has the right to spend their life without being offended."

Phillip Pullman's new book is called The Good Man Jesus and the Scoundrel Christ.  Someone recently asked him whether that title was offensive and here's how he answered the question:

"It was a shocking thing to say and I knew it was a shocking thing to say. But no one has the right to live without being shocked. No one has the right to spend their life without being offended. Nobody has to read this book. Nobody has to pick it up. Nobody has to open it. And if you open it and read it, you don't have to like it. And if you read it and you dislike it, you don't have to remain silent about it. You can write to me, you can complain about it, you can write to the publisher, you can write to the papers, you can write your own book. You can do all those things, but there your rights stop. No one has the right to stop me writing this book. No one has the right to stop it being published, or bought, or sold or read. That's all I have to say on that subject."

Very well put.

ht: Boing Boing

Bill Maher's interview with Hitchens last night

Talking about the Catholic church scandals.

A sad day for freedom of speech? Really?

You've probably heard that David Frum was unceremoniously fired from the American Enterprise Institute (AEI) due to "donor pressure" following his recent column that strongly criticized the Republicans.  Frum said that health-care reform was the G.O.P.'s 'Waterloo' and earlier in the week, he told ABC's Nightline that "Republicans originally thought that Fox worked for us and now we're discovering we work for Fox."  

Over at National Post's Full Comment, Tasha Kheiriddin is apoplectic over the news. In a post this morning she asks if Ann Coulter will now defend Mr. Frum’s right to freely state his opinion.

Freedom of speech does have its limits south of the border, and while they won’t get you hauled before a human rights commission, they could cost you your job.
 
...............

 
If Mr. Frum’s position was indeed terminated due to opposition to his views, then it is a sad day for freedom of speech, and for conservatives who are supposed to value it.  After her censorious travels in Canada, will Ann Coulter defend Mr. Frum’s right to freely state his opinion?  

Listen, I really don't care why Frum isn't with AEI anymore and to what extent his on-going criticism played in his dismissal but Kheiriddin is wrong to tie this to the freedom of speech issue and Coulter's cross-Canada carnival.  Frum can say whatever he wants but he has no "right to freely state his opinion" at AEI, a private institution - in fact, he's freely stating his opinion on his blog as we speak - and expect to retain his cushy +$100,000/year "resident scholar" gig there.  Freedom of speech has nothing to do with it.

Art of the steal

Joshuah Bearman writes an interesting article that reads like a movie pitch in the April issue of Wired Magazine entitled Art of the Steal: On the Trail of the World's Most Ingenious Thief.  It tells of the story of  Gerald Blanchard who has been called "Canada's most sophisticated bank robber and fraud artist." and was released this year after serving less than two years.

Drawing on his encyclopedic knowledge of surveillance and electronics, Blanchard became a criminal mastermind. The star was the heist that transformed him from a successful and experienced thief into a criminal virtuoso.

“Cunning, clever, conniving, and creative,” as one prosecutor would call him, Blanchard eluded the police for years. But eventually he made a mistake. And that mistake would take two officers from the modest police force of Winnipeg, Canada, on a wild ride of high tech capers across Africa, Canada, and Europe. Says Mitch McCormick, one of those Winnipeg investigators, “We had never seen anything like it.”

Duress: Inelastic Demand and Unavailability of Substitutes

A thought occurred to me on Tuesday: maybe elasticity of demand and duress have a close relationship.  I searched the internet for papers on this topic, but found none that addressed my questions, so I decided to write something about it.

This is a FIRST DRAFT, so errors in reasoning, omissions and unaddressed contrary views would be appreciated in the form of comments.  The footnotes could not be pasted into the blog editor, which is unfortunate, because they explained in depth many of the germane issues that would have interrupted the flow of the work.  In their place, I have posted the works cited.

N.B. Prof. Kaplisky: please don't read this.

Introduction

    Price-elasticity of demand and the availability of substitutes are key considerations in understanding common law and statutory responses to duress.  Insulin is the oft cited example of a good that is demanded inelastically.  The price is of insulin does not significantly alter the diabetic's decision whether to purchase insulin; this bears out empirically.  For comparison, orange tennis balls are often described as highly elastic.  That is, if their price increases significantly and green tennis balls are readily available, demand will drop dramatically for orange tennis balls.  In these examples we find the heart of duress: inelastic demand and the unavailability of substitutes.  For the purposes of analysis, I will consider both a situation in which contract is induced by duress and several situations in which crime is induced by duress.

Duress-induced Contract

    Duress in contract formation is potentially voidable and criminal.  Consider a 'mugger' and 'muggee' (for lack of a better word).  In a typical mugging, the good being sold is the right of the muggee not to be stabbed or shot; they are contracting through sale for a right to live.  First, the mugger supplies his good – (or 'bad') – relatively elastically, providing that there are other suitable targets in the area.  The longer the time horizon in which he can mug to meet his needs, the more elastic his supply, providing, in part, that he avoids notoriety.  Second, given that the muggee is not suicidal, the muggee will demand his life virtually inelastically, and there are no substitutes for life.

    Why is such a contract unenforceable?  From an economic perspective, it is not desirable to have people perform contracts which are not mutually beneficial.  Importantly, in the situation described  above, elasticity of demand is low and elasticity of supply is high.  When this occurs, the burden falls mainly on the consumer who has brought no real consideration to the contract.  That is, he already had his life; depriving him of it is not so much a 'good' as a 'bad'.  Moreover, elasticity of demand is also determined by whether the desired good (namely, the avoidance of being stabbed) is a necessity or a luxury.  Indeed, once dead, no utility can be derived from luxury goods: in this sense, life – like a diabetic's need for insulin – is the quintessence of inelastic demand.

    How, then, is it that insulin is not normally purchased under duress, while a muggee's contractual right to life is?  There are two components to this answer: monopoly and short-run effects.  With insulin, there is more than one location from which it can be acquired, and one can plan purchases in advance.  In contrast, the mugger is relying on his monopoly to reap extra profit.  Indeed, price discrimination by monopolists is informed by each consumer group's elasticity of demand.  When willingness to pay can be disguised, perfect price discrimination won't happen.  However, it is hard to conceal the value of one's own life; in this sense, the mugger can price discriminate almost perfectly.  In such a situation, there is very little or no consumer surplus, so the contract is not mutually beneficial.

    If a thug or another mugger were to arrive mid-transaction, the dynamics would change.  They could collude, or they could bargain with the muggee for the right to life (something that could be enforced in this scenario by each mugger or thug).  Also, the thug is offering a substitute: he is a henchman who will thwart would-be muggers for a price.  In effect, he is offering private security services, a real good.  Furthermore, the muggers would have to bargain against each other, effectively saying to the muggee: “Give me some of your money!”  This is because as more sellers enter the market and something closer to perfect competition is arrived at, when one mugger raises his price above the market rate, business will be lost.  

    Yet, it seems more likely that the muggers and thugs would collude, given transaction costs were not made too great by the presence of too many muggers and thugs.  They could collude to keep the price high and not offer private security as a substitute, putting the muggee back in the same position that he faced with one mugger alone, namely, duress.  This is the kind of behaviour envisioned by Adam Smith:

“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”

Duress-induced crime

    One can also considered the defence of duress in a criminal context.  In such a situation, a criminal (hereafter referred to as the 'rogue') forces a victim to commit a crime which the criminal is unable or unwilling to commit himself.  This transaction is also characterized by inelastic demand.  Like the above mugging scenario, the victim here demands his life (or that of a loved one) inelastically.  This can be contrasted with the rogue's supply: he is offering the to not kill in exchange for performance – again, this is probably more of a 'bad' than a 'good'.

    The Criminal Code, at s. 17, offers a defence of compulsion when a victim of duress is forced to commit a crime.  Interestingly, there are a number of crimes for which the defence is not allowed.  These are generally crimes in which the victim also demands his bodily integrity inelastically with no close substitutes: murder, sexual assault, unlawfully causing bodily harm, and others.  The Supreme Court of Canada has held that a defence of duress requires proportionality between the threat and the criminal act. There are a few crimes that do not necessarily involve bodily harm for which the defence is not available: treason, piracy, and arson – perhaps these crimes are ones for which society feels the greatest aversion.

    In R. v. Ruzic, the Supreme Court struck down part of s. 17 of the Criminal Code, finding that it would be contrary to the principles of fundamental justice, pursuant to s. 7 of the Charter.  Lebel J. found that the code was too narrow in not allowing for indirect threats, such as the hostage taking of a loved one.  As A. Gold suggests, the section must be recast in light of the SCC's decision in R. v. Ruzic to allow for threats with a close temporal connection rather than restricting duress to immediate threats.  Indeed, the immediacy requirement has been relaxed across much of the common law world.  In this way, there is still an issue of the availability of substitutes; that is, with more time between the threatened violation of bodily integrity, there are more opportunities for the victim to find substitutes for the rogue's offer of bodily integrity -- the victim can seek public or private security, having the police or a hitman deal with the rogue, rather than carrying out the rogue's plan himself.

    Constraining the scenario to one in which the victim's own health is in question, the defence is still not available if there is a safe avenue of escape.  In R. v.  Hébert, at the Quebec court of appeal, the court ruled that “Une menace de mort à laquelle l'intimé pouvait facilement se soustraire et qu'il pouvait rendre inexécutable au moment de son témoignage ne lui permettait pas d'invoquer l'excuse de contrainte de l'article 17.”  Although Hébert likely valued his life inelastically, he was not allowed the defence for threats received before trial.  He should have sought police protection.  Why? Police protection is a substitute for committing a crime.  When close substitutes are available (in Hébert's case, public protection), the price elasticity of demand increases: our victim no longer needs to make the bad exchange with the rogue.

Conclusion

    From these two foregoing scenarios – namely, crimes and contracts induced by duress – it is evident that inelasticity of demand and the unavailability of substitutes are key ingredients.  In similar fashion, D. Friedman's examples of duress fall under the purview of this approach.  Contrastingly, things that are demanded elastically, such as restaurant meals and foreign travel, appear to be things in which duress is less likely to found.  It strains credulity to imagine duress being found in a situation in which a person were to elect to eat a restaurant at which the proprietor raised prices to unconscionable highs.  Indeed, price-elasticity of demand and the availability of substitutes are key considerations in understanding common law and statutory responses to duress.

Works Cited:

D. Friedman, Law's order: what economics has to do with law and why it matters. (Princeton, N.J.: Princeton University Press, 2000).

A. Gold, The Practitioner's Criminal Code. (Markham: LexisNexis, 2008).

P. Hogg, Constitutional Law of Canada. (Scarborough: Carswell Legal Pubns., 2007).

P. Krugman, R. Wells, and A. Myatt, Microeconomics: Canadian Edition. (New York: Worth Publishers, 2006).

M. McInnes et al., Managing the law: the legal aspects of doing business. (Toronto: Prentice Hall, 2003).

A. Smith, An inquiry into the nature and causes of the wealth of nations. Retrieved from: <http://www.gutenberg.org/etext/3300>.

J. Stiglitz and C. Walsh, Principles of microeconomics. (New York: W.W. Norton, 2005).

C G. Veljanovski, Economic principles of law. (Cambridge: Cambridge University Press, 2007).

Cases Cited:

R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687.

R. v. Hébert, [1989] 1 S.C.R. 233, 49 C.C.C. (3d) 59.

R. v. Hébert , [1986] 3 Q.A.C. 251, 49 C.C.C. (3d) 59.

Statutes Cited:

Criminal Code, R.S.C. 1985, c. C-46.

The Constitution Act, 1982.

Stewart Udall 1920-2010

Stewart Udall, lawyer, congressman and - on a preservationist yardstick - the most successful US Secretary of the Interior - died today.  He came from a family of jurists, most of whom would also enter politics (Washington had - and still has - "oodles of Udalls").  Both his father and uncle were Chief Justices of the Supreme Court in their state (AZ).  His son is a lawyer (and as of 2008 the junior US Senator from NM).  His brother (and former law partner), Congressman Morris Udall, had a fairly serious shot at the Democratic nomination for President in 1976, until Jimmy Carter (via his proxy Detroit mayor Coleman Young) managed, with uncharacteristic skill, to play the race card AND the religious bigotry card all at once.

R. v. Morelli, 2010 SCC 8

Some excepts from the reasons.

From the majority reasons of Fish J (McLachlin C.J. and Binnie, Abella JJ concurring):

[1]  This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure.  And it relates, more particularly, to the search and seizure of personal computers.

[2]  It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer. 

[3]  First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you.  There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created.  The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.

[4]  That is precisely the kind of search that was authorized in this case.  ...

The majority held that the search warrant was improperly obtained, the search was illegal, and the evidence obtained as a result of the search was to be excluded under s.24(2) of the Charter.

Banning Laptops in Class

Now there's a tagline that should garner some attention.  One of Georgetown Law's professors has done this. 

Imagine.  Instead of students trying to create a transcript of their instructor's lecture, they listen, making (as students used to make) occasional notes encapsulating their understanding of a particular point.

Of course, the stakes were lower in those days - the prize was the pedestrian, old "LLB".  (Given that handicap, I'm surprised any of us got jobs.)

Starr vs. Cheney

Kenneth Starr, best known for his investigation into Bill Clinton's various scandals, is among several conservative lawyers that have criticized Liz Cheney and others for their attacks on the lawyers that have represented terrorism suspects.  Here's something you don't see every day - Starr on Countdown tonight agreeing with Olbermann:

Visit msnbc.com for breaking news, world news, and news about the economy

Richard Posner Takes the Stand

http://www.law.com/jsp/article.jsp?id=1202445365806&rss=newswire

Richard Posner took the witness stand on Tuesday.  I was expecting some profound, highly-abstruse stuff. 

As it turns out, he speaks like anyone else:

"It's bothersome. It's not pleasant to be threatened. ... I think about this. I have a job to do. I'm doing the best I can."

Like Clockwork

By way of aldaily, here's an interesting article about weaponizing classical music in England, and other creative forms of social control. While the obligatory "boo" is appropriate about such measures, I can't question a degree of effectiveness. I remember a few years back entertaining a pack of anarchists (over cocktails, of course), and noting that from changing the background music from rock to Bach, the conversation became much more introspective. From "hey, how shall we plot capitalism's demise" to "say, I always thought I was the artistic type. Do you think I ought to study photography?" 

But the point remains. One shouldn't be perverting things of the highest elegance for crude purposes. This is the same justification I give for framing my Income Tax Act rather than studying it.

Anti-Counterfeiting Trade Agreement

Today marked a major leak in the ACTA saga.  Here is a link to Michael Geist's blog (link) .  He pays considerable attention to this issue, so if it interests you, consider checking his blog regularly for developments.