University of Alberta Faculty of Law Blog

License to Parent

If you want to see what the state will look like if we go down the slippery slope of my last post on the state and children, then look to the UK where the state has become all controlling and pervasive. Word from the UK (via Overlawyered) is that you cannot take your children to school without a state licence. If the state deems that you are unworthy of this task, the burden of proof is on the parent and not the other way around. This was also my objection to the Canadian story, where the comments accused me of siding with the parents without hearing from the state; the burden should be on the state and not on the parent when it comes to interfering with the family.

UK Gone Bonkers!

Ok so I exagerrated in my previous post when I claimed Canada was now the land of Orwell's 1984. But the UK is truly becoming a totalitarian state (at least if these latest proposals are adopted) that would make the Stazi, KGB, and the NSA combined drool with envy.

Canada = 1984

Its official - we live in a police state, where parents can lose their children if they do not conform to the officially madated beliefs of the state. Whether it is the old Maoist China where millions were sent awat for re-education in the name of the common good, Stalinist Soviet Union, or any of the numeorus thirld world dictatorships that seize people under the guise of the failure to conform, Canada has now officially joined the ranks of these totalitarian fascist regimes. It always starts with most extreme viewpoints - but don't think this is the end. What next? Will the state remove your children if you teach them the global warming is a hoax? Will the state remove your children if you teach them verses from the bible that the annoited believe are hateful? Will we now have inquisitions to see if the children are being taught the right dogma? How can we sit in silence while this injustice takes place. And to those Liberals who applaud today's decision, let me ask you this: what happens tomorrow if the dominant viewpoint changes. Once the machinery of the state for sezing children for parental viewpoints is set in place, the state can now seize your children if you do not subscribe to the new vewpoint.

What is needed a viewpoint-neutral rule that says only if there actual physical harm, can the child be removed. Otherwise, we have opened the door for one of the worst slippery slopes.

Banned

Drew Carey's latest on Reason TV.

The Story of "Jordan": Isn't the State just a Great Parent?

My colleague Moin Yahya posted yesterday on the state's robust self-image as a parent.  And so the Senate thinks that it knows better about how to discipline a child than the parent of the child.  Moreover, Tessier J. of the Quebec Superior Court assumed the power of judicial review (!!!) over parental discipline, overturning a father's decision to punish his 12-year old daughter by withholding permission for her to go on a school trip after she had posted pictures of herself on an online dating site.   Such punishment, said the wise Justice Tessier, "excessive".  It is not the parent's experience with the child that counts, nor (in the case of the 12 year old date-site-cruiser) the parent's concern for a child's safety, that matters.  It is the Senators' experience and Justice Tessier's parental instincts that matter, and their concerns that trump.

While still chilling, this might be less objectionable at some purely instrumental level were the state actually a good parent.  The case of "Jordan", however, shows that the state is, in its divided federal persona, equivalent to a couple of cranky divorced ex-spouses who have "moved on" to new lives and can't agree on who is going to pay for the kid's hockey lessons.  Except, in "Jordan"'s case, the stakes were a little bit higher than PeeWee hockey.

"Jordan" was an aboriginal child who lived on an Indian Reserve at Norway House, Manitoba.  His medical condition required that required hospitalization in Winnipeg in 1999.  Two years later, his physicians and family determined that he could be cared for in a specialized setting closer to his home reserve.  But who pays?  "Not us", proclaimed both levels of government (who couldn't even agree on who would pay for a showerhead).  The inter-jurisdictional blether stopped only when Jordan died, another two years later, still separated from his family, in a Winnipeg hospital.

Nice parenting, Messrs Chretien and Doer.  (It's too bad no-one tried to suspend "Jordan"'s TV privileges.  That, at least, might have attracted Justice Tessier's attention.)

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. 

More madness in the land of Locke

Ever engaged in illegal downloading - well big brother in the UK will make it a crime to go online by banning you forever! Given that so many government services and for that matter all services are provided online, such as forms and instructions, how the state proposes to service the millions of college kids who will be affected by this ban is beyond me. The British government has truly gone mad!

Do you have the right to vote?

The Canadian Charter of Rights and Freedoms enshrines the right to vote in federal and provincial elections, but nothing beyond that such as municipal elections. The United States Constitution doesn't even guarantee the right to vote in Presidential elections, and does not mention state or municipal elections. Yet most Canadians and Americans take it for granted that would have that right, and don't even consider this question that critical to ponder over.

So consider what would happen if a provincial government (such as ours here in Alberta with its one party state) decided that because of the rise in crime in Edmonton, they were going to abolish the elected municipality structure and impose an appointed form of government! The reaction would be outrage and defiance. This would sound something akin to a move by a thirld-world dictator imposing martial law in the name of law and order. After all, isn't this how most dictators seize power?

So why my  big fuss? It seems that our University got infected with a little bit of anxiety over supposed breakdown of law and order in Lister Hall, one of our student residences.  The University decided that the 40 year old tradition of electing floor co-ordinators (who act as discipline officers and liase with the students on the floor) was causing some of the mayhem that was plaguing the residence. So one day, the University unilaterally anounced that elections would be ended. Within a day, however, the University backed off promising to consult with students before trying their move one more time.

Given that we are:

1. at a time when the world is being faced with choices between freedom and totalitarianism,

2. at a time when we claim that we are abroad promoting peace and freedoms,

3. at a time when there is actually an election under way in Alberta and the possibility of one federally,

4. at a time when the world is watching with excitement at one of the most exciting elections in the United States in recent memory,

5. at a time when the University constantly hosts speakers from around the world talking about their struggle for human rights,

6. at a time when we teach subjects such as human rights law and criminal procedure where we claim that it is preferrable to err on the side of liberty even in the face of rising terror let alone petty crime.

7. at a time when the Israeli Supreme Court stated in the words of Aharon Barak "A democracy must sometimes fight with one arm tied behind its back. Even so, a democracy has the upper hand."

8. at a time when we teach maxims such "Governments are instituted among Men, deriving their just powers from the consent of the governed"

- it therefore seems odd that we should then impart the very opposite message on our students! Perhpas an ideal design would preclude students from voting for their floor leaders, but path dependence would dictate that surely once students received the right to vote, it should only be retracted under the most dire of circumstances.

Would those who made the decision to cancel the Lister elections, for example, be willing to forever forego their right to vote in a municipal election? After all - it is not a constitutionally protected right.

[Full Disclosure: I am the academic counsellor at Lister Hall, and hence I also work for the residence administration. My views here are my personal ones as a student of the law and an alumni of Lister Hall. They are not meant to be critical of any particular individual who may have had a role in the recent events at Lister.]

Debate on Judicial Review - Kerr v. Somin

US law profs Orin Kerr and Ilya Somin have just (I think) completed a fairly robust debate on the proper judicial role where "the People" have happily opted for voting in Big Government.  (With a Bush in the White House and Democrats controlling Congress, this hardly qualifies as a hypothetical scenario.)  The dilemma they explored is a particular concern for conservative libertarian jurists - specifically, whether (as conservative supporters of judicical modesty) they should maintain that judges should refrain from substituting their own policy preferences for those which have been democratically expressed (Orin's view), or whether (as libertarians) they should insist that judges always apply a model of legality privileging individual freedom and limited state interference (Ilya's view).  These are simplifications of their positions (necessitated by a short blog post), and you can read the debate for yourself here.  (Caveat:  my link is to Orin's recent post at the time I made this post.  By the time you read it, Ilya may have responded.)

For what it's worth, I find Ilya's position more appealing.  A meaningful theory of judicial review ought to apply irrespective of the party who calls the shots in the legislature (and, in the US, in the executive).  The point is that there is a normative function served by judicial review.  And, by the way, this is not a purely libertarian argument.  Even if Ilya is incorrect about that function (and, by the way, I do not think he is - judicial review exists in my opinion to constrain legislative and executive power taken at the expense of individual liberties), it still matters not whether the law under review was the product of a democratically expressed popular will.  No matter how you see the function of judicial review, a plausible account for it will apply irrespective of the particular partisan source of the law under review. 

This is not to say that judges should not be modest in their approach to judicial review in the sense that they ought not to be substituting their own policy preferences for those of the legislature where the legislative policy preference falls short of impeding constitutional rights.  Nor, obviously, should they be rewriting constitutions to suit their own policy preferences.

Mass Arrests Anyone?

On the heels of World War II, and at the beginning of the Korean War, it now emerges that J. Edgar Hoover, the long-time serving director of the FBI, wanted President Truman to suspend habeas corpurs and carry out the mass arrest of 12,000 (mostly) Americans suspected of disloyalty. This approach, reminiscent of Nazi Germany's (and for that matter any brutal dictatorship's) approach to dealing with so-called disloyal elements, may seem far-fetched today; but this mentality seems to be quite pervasive at the time. After all, Truman had very little respect for democracy or for that matter the rule of law. He did declare an emergency in 1950, though he never used the powers. 

President Truman did attempt to nationalize the steel mills, however, a move not very different from what Hugo Chavez just recently made in Venezuala and for which many Americans condemned him. Luckily for America, the United States Supreme Court declared Truman's socialist proclivities unconstitutional in the now famous case of Youngstown v. Sawyer. The case contains Justice Jackson's concurrence, which seems to have become the accepted state of the law on the matter.

What is interesting about the case is the speed in which it was decided. The order for nationalization was issued on April 9, 1952.  The steel companies brought the case to the Federal District (trial) court, which issued an injunction on April 30, 1952.  The D.C. Circuit (Appeal Court) stayed the injunction the same day. Bypassing the traditon of letting the Circuit court deciding the matter first, the Supreme Court took the case by granting certiori on May 3, 1952.  Oral arguments were presented on May 12-13, and the opinion of the court was issued on June 2, 1952. This is one of the fastest cases from start to finish ever decided. This is a great lesson for lawyers in record efficiency and speed. Bear in mind there were no computers for searches or typing; yet the case was argued and briefed from start to finish in just over a month.

The case was argued for the steel companies by the legendary John W. Davis. one of the greatest appellate advocates America ever produced.  When he argued the case, he so mesmerized the court, as he normally did, that he was only interrupted for a question once! (more details on the case here) His opponent, the Solicitor General, did not fare as well. The Court, contrary to most observor's expectations, ruled 6-3 that the President lacked the authority, a decision that so riled Truman, that he complained bitterly about the decision for years to come.

John W. Davis, was the legendary lawyer who argued 140 cases before the U.S. Supreme Court, probably the most by any modern day lawyer (Modern day lawyers are like modern day pitchers in that they can't expect to accumulate too many Sup. Ct. arguments just like pitchers can't expect too many wins with the 5 man rotation. So early lawyers like Daniel Webster who supposdely argued 400 cases is like Cy Young with his 511 wins; while Davis is more like the 300 club). He ran for president in 1920 losing to Coolidge, and founded the prestiogous elite firm of Davis Polk & Wardwell. Despite arguing many cases during his term as Solicitor General against Souther laws that kept blacks from voting, his last appearnce at the Supreme Court was not his finest. He argued the case for "seperate but equal" in Brown v. Bd. of Educ., which by all accounts he would have won had the CJ Fred Vinson not died. His replacement Earl Warren ordered a rehearing and the rest is history.

John W. Davis' opponent in Brown was none other the equally legendary trial lawyer and appellate advocate Thurgood Marshall. Marshall, also a United States Solicitor General, argued 32 cases in the Supreme Court winning 29 of them. He also served on the United States Court of Appeals for the Second Circuit, as well as the United States Supreme Court. He replaced Justice Tom C. Clark (uncle of former Attorney General Ramsey Clark). What is interesting is that if you read Brown v. Bd. of Educ., you will notice that in the now controversial footnote 11:

K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., (1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

all the authorities cited follow the citation style of only having the author's last name, except the first reference, which has the author's first two initials. This supposedly was done, rumor has it, to avoid the appearance that Justice Clark was the author of that study.

One final note: Marshall argued 19 cases for the United States at the Supreme Court (winning 14 of them) including (a companion case to) Miranda v. Arizona, where he argued against the requirement of giving Miranda warnings. You can hear Marshall arguning here at minute 23.35.

Wolfville 101: Legal? Methods of Protecting Children From Tobacco

If you haven't heard already, the peaceful small town of Wolfville, Nova Scotia will soon become the first municipality in Canada enact a bylaw to ban smoking in vehicles when a child is present.

I could probably come up with several philosophical and legal reasons why such a bylaw is misguided and possibly an unjustifiable intrusion into the private realm of citizens, but I won't go there. Let's just say I am not too unhappy with the goal of the bylaw, which I imagine, is to protect children from secondhand smoke. But I do have a couple of questions:

1. If the goal is as I imagined, will Wolfville councillors enact bylaws to stop smoking in private homes next? Or the evil effects of burgers? I imagine so.

2. Why are governments all over the world so fearful of going against tobacco companies and just banning cigarettes, rather than meddle with individual rights? Wait, the answer to that is that I am probably too naive.

I wonder if they could have done this differently, perhaps by enacting a road safety bylaw that outlaws smoking in cars as a safety issue. Period. Thoughts?

The UK is just nuts

Imagine you are in your room having sex and someone walks in. No big deal, right? Not in the UK, where a man was having sex, the cleaners knocked and he did not answer, so they used the master key to come in and found him in the act. The problem is that he was having sex with his bike; and let me reiterate in private! Now he is convicted and placed on a sex-offender registry! Whatever you think about the sanity of someone who do such a thing, let alone whether a bike can truly give one carnal pleasure, what on the earth is the state doing prosecuting people for the nuttiness in their bedrooms, let alone declaring them deviants?

The worst part is that many Brits and their groupies come over here and lecture us on the evils of America, the inadequacies of Canada, and the superiority of the English legal system (if I have to hear another anglophile law prof. tell me what a terrible Supreme Court we have and what a wonderful House of Lords they have, I will gag) but they seem oblivious to the tyranny that plagues their state. It is akin to a German circa 1936 telling us how inarticulate MacKenzie King was and how eloquent Hitler was.

People's Republic of Maryland

When I lived in Virginia, we used to refer to high-tax over-regulated state of MD as the People's Republic of Maryland. Witness this latest paternalistic cultural revolutioneseque move by the state to imprison parents who have not immunized their children. Some of the parents had actually done so, but the records, as is typical in bureacratic systems, did not reflect this. Of couirse, MD has pursued some of the most anti-market systems that condemns these poor parents to poverty. Now they have to show up to the courthouse for shots or face jail. The judges in MD are notorious for only giving slaps on the wrists to child molesters, but lest an honest parent miss an immunization, the results are draconian.

Flaherty = Trudeau ?

Conservatives love to hate Trudeau because of his vision of a strong central government and a larger role for the state.  But Conservatives will have to confront the reality that Jim Flaherty and this so-called Tory government has been engaged in one of the biggest power grabs against the interests of the Provinces. Soon, the grand payola-master himself will announce his plans for one of the most drastic usurpations of Provincial power: the formation of one single national securities regulator. 

On More British Madness

I like how the former Blair aide makes a distinction between soft and hard paternalism. That concept might just catch on.

This continuing quest by the British health regulators to promote healthy living reminds me of the refrain to the song "Fashionable People" by a Canadian favorite, The Joel Plaskett Emergency. It goes:

"fashionable people doin' questionable things
fashionable, fashionable, fashionable people
fashionable, fashionable, fashionable people"

You can listen to the entire song here.

Meanwhile, I wonder if the time is right now for another article on the continuing saga of the conflicts between public health law and civil liberties. Any takers?

More British madness

The nanny state in the UK wants to force everyone to exercise. Imagine if the state delivered exercise the same way it delivers the mail or manages the fisheries - hmmm, why we would make rowing our national sport: on our buts and going backwards.