Blog

The PM's bread and circuses: more empty calories

Further to Gail's great post on the PM's latest Throne Speech, here's a link to my column connecting the Throne Speech's consumer-coddling to World Food Day (what else?) and the "Right to Know" movement demanding mandatory GMO labeling. Turns out the customer isn't always right!

False Confessions

In my last blog post, I mentioned that I am a big fan of the radio show This American Life. Here’s why: in addition to telling stories you would not hear otherwise, like this episode about babies who were actually switched at birth, they also tell stories you’ve heard already, but maybe didn’t really understand, and they explain these stories in a way other news formats do not or cannot. (If you still don’t understand the financial crisis, check out The Giant Pool of Money and related episodes).

This was the case in the most recent episode on confessions. The longest segment of the show ("Act One") discusses a case of a false confession. I’ve watched other investigative news reports on the problem of false confessions, and although my liberal disposition inclined me to believe theories about false confessions, I was left wondering how they could happen in real life. The TAL episode was the first time I’d heard a step-by-step explanation of exactly how a false confession came about and from the perspective of the police interrogator, no less.

As in other stories on TAL, however, the ultimate punch-line was not the one expected. The context of most news stories or investigative reports on false confessions is usually a wrongful conviction. In the TAL story, the false confessor was released when she stopped cooperating and the rest of the case against her unravelled. But the story does not have a happy ending: as a result of having been charged with murder, the innocent false confessor never regained custody of her children and had difficulty securing a job. For the next nineteen years. This episode was a stark reminder that for many individuals who get caught up in the criminal justice system, the right to be presumed innocent until proven guilty is a right more often honoured in the breach.

Throne Speech: PM as Consumer Crusader?

I am a big fan of the NPR radio show This American Life. The theme of a recent episode was “secret identity”. Ever since Steven Harper was first elected Prime Minister, a number of voices from the left have been chirping about a “secret agenda”. In the days leading up to the throne speech, this secret agenda finally emerged, and Harper’s secret identity revealed as…Ralph Nader?

I am being facetious of course, but the “consumer friendly” initiatives outlined in the throne speech are not ones many of us would expect from a Conservative government that often touts its free market credentials. Whether or not you view these initiatives as reasonable consumer protection measures or unreasonable interference in private business, it’s unclear that they will in fact save consumers money.

(Unfortunately, I didn't get this blog post up quick enough, and Bruce Anderson of CBC's At Issue panel beat me to the Ralph Nader reference - at minute 12).

Charter challenge of BC forfeiture laws

Vancouver lawyer Joseph Arvay is well-known for taking on difficult, potentially ground-breaking Charter challenges, and, sometimes, winning them. Arvay's newest client may seem less sympathetic than his past clients, but arguably the legal principles at issue are just as pressing and as important to the public interest as Arvay's past cases on safe injection sites and freedom of expression: Arvay is challenging British Columbia's Civil Forfeiture Act on behalf of six Hell's Angels. As Arvay himself states in this blog post about his latest Charter challenge, "Some people may not be sympathetic to my clients, but the case has implications for a whole lot of other people...I think it is an important case with important issues."

Future of Law School conference, continued

Folks are still talking about this conference, which is great to see! There was obviously much discussed at the conference that my blog posts did not touch on, including Professor Harry Arthurs' keynote address. Fortunately, Kim Nayyer has written about it  for Slaw.

Failure to communicate?

The Supreme Court of Canada in 2012:

[28]  To recap, the Canadian Supreme Court jurisprudence on a material contribution approach to date may be summarized as follows.  First, while accepting that it might be appropriate in “special circumstances”, the Court has never in fact applied a material contribution to risk test. Cook was analyzed on a reverse onus basis. Snell, Athey, Walker Estate and Resurfice were all resolved on a robust and common sense application of the “but for” test of causation. Nevertheless, the Court has acknowledged the difficulties of proof that multi-tortfeasor cases may pose ― difficulties which in some cases may justify relaxing the requirement of “but for” causation and finding liability on a material contribution to risk approach

Clements v. Clements,  [2012] 2 SCR 181 at para. 28, 2012 SCC 32 (emphasis added).

 

The British Columbia Court of Appeal in July 2013:

[28]     As is clear from Clements, the Supreme Court now employs the phrase “material contribution test” to distinguish ordinary negligence cases like the case at bar, from the exceptional cases typified by Cook v. Lewis  [1951] S.C.R. 830 and Snell v. Farrell  [1990] 2 S.C.R. 311 in which the “but for” test is said to be unworkable.

Hansen v. Sulyma, 2013 BCCA 349 at para. 28.

If para. 28 of Hansen isn't the result of a series of unusual typographical and proof-reading errors then"what [pause] we've got here is [pause] failure [pause] to communicate."

... and, a real problem in the content of all of the leading torts texts, and the content of the tort courses, in Canada.

Many of you have heard versions of the line I've quoted and linked to. Some readers will recall the line. Others will recall the line and will have seen the movie. If you haven't seen it, do.

1Ls should look at the text cited in Hansen and ask themselves what effect that would have on their marks in legal research and writing if they did what the BCCA did.

Reading, writing and critical thinking

Following up on my recent blog posts on the Future of Law School Conference, here is an interesting article, via LinkedIn, describing a recent study on what employers value in university graduates. It seems that the traditional "skills" students are expected to acquire in post-secondary education - an ability to "think creatively and critically" and to "communicate orally and in writing" - are valued more than industry-specific training that can be learned on the job. Back to the future? 

A tree in need is a tree indeed

In the category of memorable judgments, I came across this little gem today: 

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree's behest;
A tree whose battered trunk was prest
Against a Chevy's crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court's decree.
Affirmed. 

See Fisher v Lowe (1983), 122 Mich App 418, 333 NW 2d 67. Oh, and the actual reasons for judgment are contained in the footnotes. 



“It’s a Balancing Act”: Future of Law School Conference, Part 3

In my own research, I argue that we, as a society, could (and should) do a better job balancing economic growth and environmental sustainability. I suggest that corporate boards of directors ought to balance profitability and environmental responsibility. This is based, of course, on the idea of “sustainable development”, the idea that we can balance our needs and those of future generations.

The problems currently faced by law schools and the legal profession are not nearly as dire as the global environmental crisis, but the solutions may similarly be found in balance, rather than absolutes. On Saturday afternoon, Professor William Henderson closed the U of A Faculty of Law's Future of Law School conference with the message that the future of law schools involves balancing the desires of the market against the needs of the collective public good; we ignore one or the other at our peril, even if this does mean that we must cope with indeterminacy. As he explained, we can’t sustain changes in the delivery of legal education if the market (students and the profession) doesn’t buy in; on the other hand, if we use only market barometers, we neglect our role in serving the broader public.

In many ways, the idea of balance is already inherent in much of what we do. As a professor, I must balance my time among research, teaching and service. I also attempt to balance theory and practice, and theory and doctrine in the content of my courses. As new technologies transform the classroom, professors balance innovation and tradition. Law school curricula attempt to strike a balance between substantive and procedural courses, and between large lecture-based courses and smaller seminars and experiential learning opportunities.

Even more fundamentally, law schools balance two seemingly competing identities: academic institution and professional school. Much of the hand-wringing over the future of law school seems to centre on which of these identities we ought to embrace and which we should abandon. But it seems to me that the best way forward is to heed Professor Henderson’s call for balance, and to embrace our split personality and the indeterminacy that comes with it. It may be that balancing these two seemingly contrasting identities is in fact what will allow law schools to adapt to the “unknown unknowns” down the road. Here’s to the future!