University of Alberta Faculty of Law Blog

Holiday Break

The holidasys are upon us, so expect blogging to be light for the next week or so. In the meantime, enjoy the break, and we will resume in the new year.

Sowell on Bork

From the archive, Thomas Sowell presents his views supporting the unsuccessful nomination of the late Judge Robert Bork.  After his formal presentation, he presents some interesting observations on the role of the state and how that has impacted minorities in the US. A short clip is below: 

The full presentation can be seen in this longer clip (which starts at minute 56):

 

If you have the time, watching the entire 2 hours in this previous clip is quite instructive. Many of today's legal controversies are addressed by the various presenters.

OK for Crown to Screen Juries

The Supremes have ruled that it is ok for the crown to screen jurors for criminal convictions but they must share their results with defense counsel. Sounds about right.

In three cases, the first and second were written by Justice Moldaver and the third by Justice Karakatsanis, the Supreme Court expressed some concern about the practice but not enough to overturn the convictions.

Justice Moldaver got his chance, however, to continue his style of equal admonition. Reading his two judgments one could easily figure out that defence counsel were to blame for what happened. At one point, he even states:

First, jury selection is not a game and it should not be approached as though it were.  Winning and losing are concepts that ought not to be associated with it.  The process is not governed by the strictures of the adversarial model, nor should it be, in my view.  The idea at the end of the day is not to obtain a jury that is partial to one side or the other.  We are looking for jurors who are eligible, impartial, representative and competent.  The jury does not belong to the parties; it belongs to the people. 

Prior to his elevation to the Supreme Court, Justice Moldaver had been on the Ontario Court of Appeal and his nomination raised some concerns at the time:

Moldaver is known for his outspoken opinions on the Charter of Rights and  Freedoms and the performance of Canada’s defence lawyers — who he took to task  in a 2006 speech, accusing them of slowing down cases using unnecessary Charter  motions concerning how police collect evidence. Part of the speech also  hypothesized that part of the motivation for lawyers to do so was to earn higher  fees.

Burstein said that Moldaver has always been an “ardent defender of  the factually innocent,” but that recently he has developed a more “distinct  ideology.”

“We have long disagreed with his view that defence counsel  are to blame for long trials and are comforted by the reports showing that we do  not control the length of criminal cases,” he says. “Hopefully, we will now see  a return to his earlier way of thinking about criminal justice and the Charter.

I too have always wondered if our legal culture, especially the American, over-emphasizes procedure over substance. Perhaps, Justice Moldaver may be able to shape a jurisprudence that reverses the focus.

I should say that I was not necessarily one of those concerned. After reading comments like this one from the previous story:

Bruce Ryder of York University’s Osgoode Law School said both judges will do a  good job, but the appointments were “disappointing.”

“The Ontario Court  of Appeal is the best court in the country and it is jammed packed with stellar  jurists and I think the government could have done a lot better,” he said.

I thought, wow - well, good on the PM for choosing these two.

Got Milk?

If you have always lamented at the relatively high prices of dairy (and the small size of eggs) in Canada, you are not alone. If you ever wondered why, you should know that our supply management system that curtails production effectively keeping prices high is to blame. If you ever tried to find a politician who was willing to take on this sacred cow, no pun intended, good luck.

The main answer these politicians give to justify the supply management system has to do with the Americans subsidizing their milk producers, which is why milk is so cheap in the US. This, they say, would allow American farmers to unfairly compete with Canadian farmers. Sure, I say, and I also say so what? If Amercian taxpayers want to give us cheap milk, who am I to complain? They already give us free defense and cheap drugs.

Anyway, it turns out that in the middle of the fiscal cliff that faces the United States (and you thought the Mayans were wrong), Americans may actually lose their subsidies, thereby driving milk prices up to $7/gallon. If this happens, will Canada finally have a reason to abandom supply management?

Fired for being irresistible

In Iowa, you can be fired for being too good looking. The story starts by noting:

An Iowa court ruled Friday in favour of a dentist who fired his assistant because he was attracted to her.

The all-male Iowa Supreme Court ruled unanimously that James Knight, 53, was justified in sacking Melissa Nelson after 10 years, even though she'd been a good employee and had never flirted with her boss.

Knight, who found Nelson to be "irresistible," fired her in 2009 at the behest of his wife and pastor.

She filed a discrimination lawsuit, alleging she would never have been fired if she was man. A district court agreed, but the Iowa Supreme Court overturned that ruling Friday.

Cam's Top 10 Discs of 2012: Part 1

The moment we have all been waiting for...

Before I announce my favourite disc of 2012, I would like to throw out a few honourable mentions.

First, Kendrick Lamar - Good Kid, m.A.A.d. City. Not my type of music, generally, so it couldn't crack the Top 10. Still, solid record. Second, The Vaccines - The Vaccines Come of Age. I love these guys, and their first disc was killer. Unfortunately, their second effort just did not quite do it for me and it didn't make the Top 10!

OK... without further delay...

#1. Damien Jurado - Maraqopa.

Damien has been producing music out of Seattle since 1995. He reminds me a bit of Elliot Smith in his sensibility and in his songwriting. I love this disc because I can put it on in the morning, afternoon, or evening and enjoy it equally. It is unassuming but creative and confident. I highly recommend checking out Maraqopa and Damien's back catalogue; it's all good.

Happy Holidays!

 

Cam's Top 10 Discs of 2012: Part 9

#2. Jake Bugg - Jake Bugg

So, this is as close to Bieber-fever as I get. Music these days is a singles driven enterprise that is either fueled by, or competing with, reality TV and manufactured "stars". Frustrating, yes. Catostrophic, no. Why? Because every so often artists come along that remind me that there is still a ton of original creativity out there. Jake Bugg takes the #2 spot this year mainly because he is doing it the old-fashioned way - word of mouth. Anyone see him open for Noel Gallagher and Snow Patrol? He was awesoem! His CD is solid all the way through, yet not spectacular; however, I believe he has something spectacular to give at some point. 

Supreme Court Rules on Wearing Niqab While Giving Testimony

In a split decision, the Supreme Court of Canada decided today that a witness can wear a niqab while testifying, unless doing so would compromise the accused's right to a fair trial.  The interesting decision reveals three very different approaches to the problem.  Abella J., writing in dissent, effectively concluded that little was gained by making a woman remove a niqab - and a great deal could be lost.  She found that an order of this sort should almost never be made.  LeBel and Fish J., writing a concurring opinion, went in the other direction, saying that seeing a witness's face was of crucial importance, and that no witness should be allowed to testify with a facial covering.

Not surprisingly, the majority opinion split the middle, holding that it was necessary to weigh each case on its own merits.  Still, early speculation is that the ruling will tend towards the niqab being removed in most instances, as judges are likely to side with the right of the accused to a fair trial in borderline cases.  This has downsides - as it provides an additional impediment to Muslim women who wish to report crime, as testifying against an accused will require great courage, and a willingness to compromise one's religious beliefs.

Bork Remembered

Judge Robert Bork, whose nomination to the Supreme Court was rejected by the Senate, and forever on lent his name to the term 'Borked' passed away yesterday. The tributes are all over the web. 

1. The WSJ opinion page remembers the wisdom of Bork.

2. Two legal scholars at NRO remember him.

3. John Yoo chimes in on the originalism of Bork.

4. Walter Olson discusses the smear tactics used against him at the Senate hearings, while Podhoretz talks about why he generated so much hate.

Fake Eagle

So it seems that my previous post about the snatching eagle most likely is fake. Thanks to Bruce and JIm for pointing that out in the comments. 

Cam's Top 10 Discs of 2012: Part 8

#3. The Tallest Man on Earth - There's No Leaving Now

By now it is probably no secret that I am a big fan of the modern folk/singer-songwriter types. If it is not clear, well, it will be by the time my Top 3 are revealed! First up, The Tallest Man on Earth. This guy from Sweden finger picks a bit like Nick Drake and has a voice that is reminiscent of early Dylan. Still, he is not like either of these guys in his delivery or content, making it fresh. Enjoy!

 

Dogs Driving

So pigs haven't yet learnt to fly, but apparently dogs can now drive:

and see this demonstration:

Other than the obvious issues of dogs driving with humans who seem less qualified than Porter, there are many legal issues associated with this.

Would the various traffic acts apply to these drivers? How would the search and seizure powers of the police interact when they stop a dog speeding, especially if there is a passenger in the car with them. Could the passenger blame the dog for the drugs found in the car? What if the passenger was a cat - could the dog be charged with attempted kidnapping? 

Eagle Tries to Steal Kid

A golden eagle attempts to steal a young child in Montreal (warning - some foul language):

For more animal antics, see this link.

Linguistics in Action

We all have unique speech patterns, it seems. So if you set up an anonymous twitter account to start commenting on an ongoing case, you should be wary of those forensic linguists who can put two and two together. Case in point:

A typical New Orleans scandal involving a landfill and federal allegations of bribery completely imploded recently, when a forensic linguist analyzed a series of online comments. The longest-serving U.S. Attorney in the Department of Justice has resigned, and a federal investigator has rushed to Louisiana to investigate a case with a final plot turn worthy of Guy de Maupassant. 

Read the whole story in the New Yorker's story titled Master of the Sock Puppets.

Judicial Benchslaps etc.

Benchslap is a great term! It refers to judges gone wild - that is with their language. Mostly, it is in writing but sometimes orally. Josh Blackman reviews the top 8 benchslaps of 2012.

On another note, Judge Kozinski who features in Josh's list, is interviewed in this ATL post. 

In other news, apropos of nothing related to this post's title, consider the following scenario. A judge retires in Texas and decides he would love to go to Hawaii and help other judges with their caseload? Sounds like everyone's dream. Living here in cold Edmonton, I always wonder if they need a law professor to teach contracts in Hawaii. So, it is very admirable when a judge retired in Hawaii and decided to move to Texas to help out! (h/t How Appealing).

 

Judge Friendly

Judge Friendly is considered one of the greatest judges in American history. A recent biography of his prompted an event at the George Washington law School. I have re-embedded the video of the event, which Orin Kerr has in the prior link:

 

I would recommend you watch the whole event, if you have the time. Judge Randolph (who starts around the 48 minute mark) calls this one of the best judicial biographies that he has read. As a former student of Judge Randolph, I can say that would be a ringing endorsement for the book. 

Cam's Top Ten Discs of 2012: Part 7

#4. Django Django - Django Django (Waveforms)

Perhaps I like them because they are Scottish (and one of the band members is related to a frontman from The Beta Band). Perhaps I enjoy the African and/or Middle Eastern inspired melodies. Whatever the reason, I definitely dig this disc and it has been on repeat for the last month.

 

Newtown's Aftermath

The debates over what to do post-Newtown have begun. The left and the right are all ready with their positions, so 2013 could be an interesting year on many levels.  In the clip below David Kopel, one of America's foremost experts on the second amendment debates former Democratic presidential nomination candidate Howard Dean on CNBC. While the clip is not long, it summarizes the main issues that we can expect to keep hearing about:

In the clip, Dean refers to the Australia experience. This article explains some of that experience, while this article refutes the claim that the Australian plan worked.

Worker's Compensation Down Under

In Australia, apparently there is no limit on what can be covered by worker's compensation benefits, as long as the person is on a business trip.

Cam's Top Ten Discs of 2012: Part 6

#5. Howler - America Give Up

Not too much to say about this disc. A pretty straight forward guitar-riff based effort. Think The Strokes, Arctic Monkeys, etc. Still, enjoyable from start to finish.