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Some Positive Signs
Prof. Jeffrey Harrison of the University of Florida College of Law asked almost exactly a year ago whether Race, Class and Diversity adversely affects the possibility of tenure for minorities in law.
Prof. Tom W. Bell of Chapman University School of Law responded soon after, providing some refreshing data from the American Association of Law Schools’ (AALS) report, Statistical Report on Law School Faculty and Candidates for Law Faculty Positions (2005-06).
(Although the data is American, there are no comparable figures in Canada).
This chart, using data from Table 13B of the Statistical Report, shows how well women have fared relative to men at landing jobs via the AALS faculty recruitment process:
This chart, using data from Table 13C, shows how well minorities have fared relative to non-minorities:
He then cites the data in Table 13E:
| Candidate Type | Success Rate (%) |
| Minority Women | 18.5 |
| Minority Men | 17.5 |
| Non-Minority Women | 15.0 |
| Non-Minority Men | 11.3 |
Overall, it would appear as if minorities are not discriminated and may even have an advantage in the application process.
The Rest of the Picture
Christine Garton, former student at the University of Pennsylvania Law School, provides an alternate interpretation in the Legal Times,
According to the Association of American Law Schools Statistical Report on Law School Faculty for 2002-2003, fully tenured female law professors make up 25.2 percent of law faculties nationwide and 34.2 percent of the total law faculty count. That’s certainly progress from the 13 percent of female law school professors in 1991. But with that rate of growth — roughly 1 percent a year — it will take another 25 years for women to reach the 50-percent mark.
The trend in recent years of law schools hiring more contract and adjunct faculty has another interesting side-effect: an over-representation of women in non-tenured staff.
Ann Farmer describes this process in The Rocky Road to the Ivory Tower as creating a “pink ghetto.”
She quotes Laura T. Kessler, associate professor at the S.J. Quinney College
of Law at the University of Utah, who describes two types of professors in law:
Good Jobs:
- tenured or tenure-track
- deans, full professors, associate professors, and assistant professors
- prestige, good salaries, job security, power, and greater autonomy
Less Desirable Jobs:
- nontenure-track, contractual positions
- full-time legal writing instructors, clinical professors, and academic support
- lower salaries, less security, less prestige, and less overall job trimmings
Farmer cites statistics that seem to demonstrate that women are disproportionately found in what would be considered “less desirable jobs”:
- 25% of tenured full professors
- 46% of tenure-track assistant professors
- 66% of lecturers and instructors
- 54% of associate deans without professional titles
- 68% of assistant deans without professional titles
Kessler says,
When you look around the room, you see that the ones who don’t get to vote are disproportionately female.
If this is true, minorities may still be getting the job, but not the right kinds. They may also be most susceptible to another trend in legal academia, lateral hiring, when in-house opportunities fail to avail themselves.
Jessie of UCLA Law shares her thoughts on Ms. JD,
Women are filling labor intensive posts in law schools as writing professors and clinical instructors, without the eventual rewards of security and prestige that tenure promises.
… I think this data confirms some negative truths about academic legal hiring: as a women approaching a competitive job market my gender is a blessing only if I exploit it to my advantage by distinguishing myself not just with my work but with my gender.
Garton also quotes Lisa Lerman, a Catholic University Law Professor, on other hiring factors,
Some of the faculty members on the faculty appointments committee are buddies with judges. Instead of looking to the conference for new hires, they’ll ask these judges who are ‘good academic material’ — meaning those that are serving as clerks. In the end, women are at a significant disadvantage because it’s a documented fact that fewer women attain these prestigious clerkships. More and more women are coming into the process without knowing anyone.
Class more important than Race or Gender?
But Harrison complicates the situation even further. He asks whether class-ism is a more important distinguishing factor than race or gender,
…the elitists who control legal education have little interest in actual contact with the world outside their own. White and African American candidates who attended elite schools; can drop the right names; have educated parents; are able to discuss the best restaurants in L.A., New York or Boston; and who can pass a political litmus test will he hired over an African American candidate who cannot check off everything on this list. In seeking diversity the search is on for what seems to be the least diverse candidates possible.
If so, any diversity that does exist would appear superficial; adequate to demonstrate physical inclusiveness, but failing to incorporate divergent perspectives and viewpoints from a broad strata of society.
ABA Blawg Directory
The American Bar Association (ABA) Journal has a directory of blawgs in the U.S.
Although the listings are obviously with an American focus, they do have some valuable resources.
Development of Privacy Law in Canada
Privacy Common Law in Canada
A tort action exists in the U.S. for the invasion of privacy exists in only four situations:
- Unreasonable intrusion
- Appropriation of personality (an intentional economic tort)
- Unreasonable publicity of private info
- Unreasonable placing another in a false light
In addition to the U.S., Germany has recognized a tort for the invasion of privacy. The United Kingdom and Australia however, have not.
There is no such thing as a widespread, generally-recognized action called “Invasion of Privacy” in Canada, but it is covered by a number of different civil actions and legislation, and increasingly recognizes actions for appropriation of personality and inappropriate or unwanted media attention.
Contemplating a Separate Tort for Privacy
In the landmark case in Canada, Motherwell et al. v. Motherwell (1976), a mentally ill defendant harassed her family members through telephone and mail.
This harassment escalated to up to 60 calls a day, until they sued for invasion of privacy and nuisance seeking nominal damages and,
… an interim and a permanent injunction against the Defendant or anyone acting on her behalf enjoining her or anyone else acting on her behalf from contacting, telephoning, writing, visiting or in any other way communicating with the Plaintiffs or their children.
The court reviewed a form of nuisance,
unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.
But they then commented on its inadequacy in addressing privacy issues due to the emergence of newer communications technology. Specifically, they cited a difference where the receiver has no control over the incoming communications,
The rule of stare decisis operates, as it seems to me, to regulate the application of precedents to cases which can be said to fall within a category. When the circumstances of a case do not appear to bring it fairly within an established category, they may lie sufficiently within the concept of a principle that consideration of a new category is warranted…
I think that the interests of our developing jurisprudence would be better served by approaching invasion of privacy by abuse of the telephone system as a new category…
The court also pointed out that the frequency or volume of the communication can itself constitute harassment,
I have pointed out above that in my opinion there may be harassment even although the subject‑matter of the telephone calls would otherwise be agreeable in nature.
Motherwell did not clearly develop the creation of a new tort, despite these contemplations.
Although a claim for invasion of privacy was then dismissed in Capan v. Capan (1980), Hunter v. Southam Inc. (1984) acknowledged in the Supreme Court of Canada a “right to be let alone by other people” independant of “the notion of trespass.”
By 1995, MacKay v. Beulow awarded damages specifically for invasion of privacy in Ontario. Yet Somwar v. McDonald’s in 2006 stated,
In light of the trial decisions listed in this brief survey of Ontario jurisprudence, and the absence of any clear statement on the point by an Ontario appellate court, I conclude that it is not settled law in Ontario that there is no tort of invasion of privacy.
Still, the court cited advancements in technology that allowed the collection and dissmemination of personal information and said,
…the foregoing analysis leads me to conclude that the time has come to recognize invasion of privacy as a tort in its own right. It therefore follows that it is neither plain nor obvious that the plaintiff’s action cannot succeed on the basis that he has not pleaded a reasonable cause of action.
Most of the case law concerning privacy seems to focus on establishing what a ‘‘reasonable expectation of privacy’’ is. The courts appear to be increasingly recognizing its application, but this still varies across jurisdictions.
Melanie C. Samuels and Sara Gregory explain in Privacy issues in the workplace: Employer monitoring of employee technology use,
…no Canadian appellate level court has endorsed a common law tort of invasion of privacy, the existence of such a tort has not been denied.
Rapidly Developing Areas
Because the application of privacy law is so rapidly developing, it is useful to list some sources that monitor and report developments.
There is considerable discussion of the privacy applications in text books for s. 7 of the Charter, “protection of life and liberty,” and s. 8 for “unreasonable search,” including business documents, border searches, and emergency powers.
But publications as recent as 2004 still have not addressed Internet search engines, and issue that will definitely come up in the future.
The Office of the Privacy Commissioner of Canada provides these legislative resources:
- The Privacy Act
- The Personal Information Protection and Electronic Documents Act (PIPEDA)
- PIPEDA Review Discussion Document, Protecting Privacy in an Intrusive World (July 18, 2006)
- Substantially Similar Provincial Legislation
And more legislative resources can be found here.
The Canadian Privacy Law Blog provides an excellent resource for ongoing developments, as does Michael Geist, who circulates a monthly publication, the Canadian Privacy Law Review.
International Concerns
Patricia J. Wilson and Michael Fekete dedicate a chapter to privacy law in Osler, Hoskin & Harcourt LLP’s Doing Business in Canada, which includes concerns over the USA PATRIOT Act.
In response to these concerns, British Columbia ammended its Freedom of Information and Protection of Privacy Act (FOIPPA). Both the federal and provincial privacy commissioners want to enhance protections against sharing of personal information with the U.S.
And this challenge, of protecting Canadian personal data from foreign nations, might prove the most difficult privacy issue of them all.
Free Case Access in U.S.
All Courts of Appeals decisions since 1950 and US Supreme Court decisions from 1754 will soon be available online to the public.
This move should create greater transparency in law and promote access by the general public. A similar move in Canada would be greatly welcomed. (It would also help us link to all the cases we cite that are currently not online).
Blog entry from Justia and the new release follows:
