Reviews – Law is Cool http://lawiscool.com The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.6 1338880 Review – The Absolute Violation: Why Torture Must be Prohibited http://lawiscool.com/2010/03/20/review-the-absolute-violation-why-torture-must-be-prohibited/ Sat, 20 Mar 2010 23:53:51 +0000 http://lawiscool.com/?p=2545 Of interest to law students, from Western News:

The Absolute Violation: Why Torture Must be Prohibited
by Richard Matthews
Is torture ever a justifiable means to an end? Richard Matthews tackles that question at a time when we are faced with controversy over numerous reports of state-sponsored torture, even involving our own government.
Drawing from a variety of disciplines such as philosophy, medicine, psychiatry, history, feminism and anthropology, as well as survivor and torturer narratives, Matthews sets out to show how public perception has been skewed, and why there is no moral justification for torture.
“If you study torture closely and carefully, you encounter a sordid mess of personal and institutional corruption, wrongdoing as well as the terrible suffering of the victims and their communities. The medical and psychological literature on the subject is hard to read, but survivor narratives offer a rich and essential but extremely painful set
of insights into what torture is and how it works,” says Matthews.
“One of the merits of informing people about its true horror is that it enables them to avoid the facile and false portrayals of torture that we receive from propagandists and from scholars who, all too often, do not seem to carefully study these sources. Consequently, in public debates the subject is a caricature of torture and has nothing to do with its reality.”
Matthews goes after the heart of the argument, challenging the idea that torture is of any benefit to its users whatsoever. This book is important reading for anyone wanting to better understand the recent trend towards the public acceptance of torture, and those interested in actively countering that trend.
Richard Matthews is an Assistant Professor of Social Justice and Peace Studies program at King’s University College.

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The Life and Times of Ivan C. Rand http://lawiscool.com/2010/01/24/the-life-and-times-of-ivan-c-rand/ Sun, 24 Jan 2010 18:51:47 +0000 http://lawiscool.com/?p=2414 From Volume III, Issue II of Amicus Curiae, Western Law’s Student Paper

Canada was a different place before Trudeaumania swept the nation, and the man we know as Ivan Rand, founding Dean of this law school and former Justice of the Supreme Court of Canada, was a product of his times.  It would be easy to dismiss Dean Rand as an intolerant bigot, but as William Kaplan explained to an audience at Western Law on Nov. 11, [2009,] Rand was complicated character.

“Canadian judicial biography has been, with a few exceptions, mostly uncritical and largely celebratory, written by unabashed admirers,” Kaplan writes in his new book, Canadian Maverick – The Life and Times of Ivan C. Rand. “To my great surprise, this book turned out to be different.”

Ivan Rand was born and raised in the Maritimes and graduated from Harvard Law in 1912. It was his exposure to the American Bill of Rights that, according to Kaplan, differentiated Rand from other Canadian lawyers. And it’s Justice Rand’s decisions as a Justice of the Supreme Court that make his legal legacy so difficult to reconcile with his private views, which have been largely hidden until now.

By 1951, the court in Noble v. Alley assessed a restrictive covenant against selling property in the Grand Bend area to Jews, blacks, or those with “coloured race or blood.” It was Justice Rand who interrupted oral submissions by the respondent saying,“If Albert Einstein and Arthur Rubinstein purchased cottages there, the property values would increase, and the association should be honoured to have them as neighbours.”

Despite his position on restrictive covenants in this case, he was a member of two restrictive clubs that excluded Jews. He defended the right of Communists to hold elected positions, and famously opposed the internment of Japanese citizens, all the while refusing to meet his sister’s Acadian husband for 30 years because of his background.

“It’s this hypocrisy – because he did know better – that ultimately leads me to conclude: first-rate mind, third rate temperament,” said Kaplan, noting that the most influential judges are rarely collegial consensus builders. “Not such a bad combination.”

What, if anything, changed during his lifetime?

Kaplan suggests that Rand’s exposure to Jews in the Palestine Mandate may have led him to develop a more favourable impression of Jews. Rand was impressed by the largely secular, often highly educated and industrious, and was sometimes even disdainful of the religious establishment of the Holy Land. He believed that rational law could resolve all human conflict, and was a social engineer at heart.

Robert Mackay, one of Rand’s colleagues at Western who would eventually succeed him as Dean, recalls Rand’s rants against Jews and people with ethnic names that ended with a vowel: “Rand would declare he had enough of them.”

Yet he continued to donate to Hebrew University in Jerusalem for the rest of his life. A forest in Israel was named after him, and he would tour the country receiving awards.

So what is Rand’s legacy for this school?

Kaplan tellingly notes, “Almost all of his great civil libertarian decisions reversed the actions of state authorities in Quebec.” Mackay explained, “Rand had to decide who he hated more – the French-Canadian Roman Catholics, or Jehovah’s Witnesses.”

Rand believed that ethics could not be taught – either you had them or you didn’t. Western is now known as a pioneer in legal ethics education.

The Ivan Rand window in the Moot Court Room looms menacingly above all those who dare try their hand at advocacy. Rand himself believed that mock trials courts were entertaining, but not educational. He preferred his old 1909 Harvard law texts for the students.

Rand felt that women were good as solicitors but did not have the fortitude for criminal law, a notion that would not bode well for our classes in which women outnumber men , the legal aid clinic, or our struggling criminal law program.

Dean Rand defied utilitarian economics by taking surplus budgets and returning them to the university, much to the chagrin of his staff. He abandoned the administration of the law school only months after its opening to attend to a coal crisis in Cape Breton.

Yet the students loved him.

The Rand formula, where workers pay union dues irrespective of membership, is still one of the hallmark characteristics of Canadian labour law. One of Rand’s recommendations (which was never adopted) was that unions be recognized as legal entities that could sue and be sued [directly, and not through agents]. Another was abolishing picketing altogether.

Overall, Kaplan describes Rand’s own hand at labour relations as nothing less than “disastrous,” with nearly every stakeholder and political party expressing strong criticism. “Reforming labour law,” Kaplan said, “is best done incrementally.”

As our own Dean Holloway acknowledges, “it’s difficult to write fairly about Ivan Rand… What emerges is a picture of a principled man, who thought deeply about the best way to enhance the standards of this profession.”

Kaplan suggests that what makes Rand impressive is his ability to draw bright lines between his public and private life, especially when on the Court. And for a man whose vision in many ways may have been ahead of his time, perhaps that is the most we can ask for.

Cross-posted from Slaw

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Blawg Review #228 http://lawiscool.com/2009/09/07/blawg-review-228/ http://lawiscool.com/2009/09/07/blawg-review-228/#comments Mon, 07 Sep 2009 11:01:42 +0000 http://lawiscool.com/?p=1917 If you’re just starting law school, law blawgs can be your best friend. In addition to this site, here are 99 other blog posts that you should read to help prepare for your adventure.  It won’t help you though if you’re a judge about to be tested.

Most law students want to be in the top 10-15% of their class, and there are career opportunities that depend on that. Ken DeLeon of Top-law-schools.com provides some tips for success in law school, including a handy flowchart on how to prepare for your law school exams. But keep in mind that the end of the billable hour might result in some changes to your legal education, and law students have different learning styles than the rest of the population.

Still applying to law school? An undergraduate degree in physics or math might be your best option to get a solid LSAT score. Remember that these days a law career is considered a risky option, and there are lawyers in Jersey actually working for free. Where else is success defined by more work (even for less pay), and not more recreational or family time?  Larry Ribstein still thinks law school is the cool choice.  But is it really worth it?

On the other hand  you could elect to skip your classes, get intoxicated regularly, sleep with all the members of the opposite sex, gain a reputation as being a total douche bag, and then score a book and movie deal.

Introducing Tucker Max – asshole extraordinaire – a graduate of Duke Law that claims assholes finish first.

An inspiring personality, certainly, and an approach that John Infante of Fearfully Optimistic would definitely disagree with.  It does make you wonder how many Dukes are faking the Daisy to hazard “celebrity bias.”  The Bitter Lawyer has an exclusive interview with Tucker that is, at the very least, amusing.

Then again, “skipping classes, playing basketball, doing cocaine and getting drunk” might help you become President of the United States – but eventually someone might start asking for your law school transcripts.  None of this is likely to come up during the President’s special advice to students tomorrow (Sept. 8).  An open and transparent government, perhaps, but not that open. Reality check: the last refuge of the persecuted crack smoker may not be in law school.

Hey, “Some people snort cocaine, others snort religion,” and the latter is not necessarily better.  The Exit at My Legal Fiction suggests wearing lipstick as a law school study aid, for some very compelling reasons.  If you’re a missionary in Kenya, please don’t vow to go to law school out of religious convictions, unless you’re going to a low-ranking religious-affiliated law school.  Happy Belated Todd, but I won’t be paying $25,000 for dinner any time soon.

Still, your biggest youthful indiscretion might be going to law school itself (and graduating at the bottom of your class hardly precludes success).  If your indiscretions precede law school and include a criminal record, there are some disclosure issues you should considerUsing stolen Social Security Numbers to steal student loans for partying, with  Tucker, Todd, or otherwise, probably isn’t a great idea.  Assistant Deans at law schools?  Not a good idea either.

Robert J. Ambrogi also tells us about Branigan Robertson of Chapman University School of Law, who won $10,000 for this video in the My Inspiration video contest:

These law students are doing better than a lot of lawyers these days. When life gives you lemons (or a recession), you should just make lemonadeDan Markel is asking, what kind of juice are you making?

On the other hand, if you’re looking to avoid personalities like Tucker Max at all costs,  you might be interested in Above the Law’s Douchiest Law School Contest.douchiest law school harvard duke.jpg

No surprise that Harvard and Duke are currently heading the pack as finalists.  Also check out Paul Caron’s review of U.S. News Law School Rankings for Judicial Clerkships, which includes data from Brian Leiter’s rankings. If douchiness turns you off of Yale and clerkships are really important to you, the University of North Dakota might be a good alternative.  However, great credentials don’t always make more satisfied lawyers, because these guys tend to be plagued by that green-eyed monster.

Charon QC’s musings might be useful in determining if a “douchy law school” is worse than a “McDonalds of law schools,” while Dan Slater of the NYTimes suggests just locking the doors to all law schools because there are too few hiring positions. Still having a hard time picking a law school? The iPhone app Law School 100 is free until midnight tonight (Sept. 7). Study aids are becoming more interactive, with West’s new Interactive Case Series now linking to directly to law review articles cited in the case series.

Keep in mind that law school is different than undergrad, and you should probably clean up those social networks you’re on. After all, you wouldn’t want your mom witnessing you pulling a Tucker Max, and some employers might require you to submit your social media for a background check. Social media is also being increasingly being used in the courtroom, and no, the judge doesn’t really want to be your “friend.”  Don’t get rid of that social media entirely though, because “People don’t find lawyers in the phone book… They find them through TV ads or friends or by searching the Internet, including blogs and social networking tools.”

Apparently what clients really want from their lawyer is to “feel the love,” so if someone comes to your office complaining they hurt their “tushy bone,” try not to laugh too hard. Be forewarned though – that volenti non fit injuria doctrine you learn in Torts class also applies to contracting Herpes Simplex I from wrestling, also known as Herpes Gladiatorium.

That’s probably not what Lauren in Law School had in mind when she suggested gladiator games as an alternative to On Campus Interviews (OCIs).  You can get a list of the guys in your university with herpes from the new Campus Gossip site just to be on the safe side.

Although the number of followers you have on Twitter is no sign of of expertise or influence, it might land you a job (or lose it) with a firm or get you published, even if Perz Hilton decides to sue you for defamation. No “love” (or wrestling) for him, sorry.  Some people do take Twitter seriously, perhaps too seriously.

Eric Goldman’s interview with David Lat highlights the importance of students networking during a crisis.  Dennis Jansen also thinks that networking with your peers might be useful, but consists of more than “beaming your peers with business cards or mass-adding people on Facebook and LinkedIn.” As popular as WordPress may be for blogs, it just might not be for your law firm, and you even might be held liable for content on your site to a tune of $32.4 million.

The Law Society or State Bar is probably not going to like it if you steal other people’s Twitter content and pass it off as your own, like Melina Beninghoff did . Stealing content doesn’t take brilliance, and it barely takes effort.  What is clever is coming up with this CraigsList listing from Los Angeles.  But is stolen content any worse than fake content?

Today is also Labour (sic) Day in Canada and the U.S.  That’s the Canadian spelling, because Labour Day did originate in Canada in 1872 with the Trade Unions Act, which legalized unions.  The United States followed in 1882 with informal observance in New York City, and by 1894 it was observed by 23 states through legislation. Still, it was the American President Lincoln, not a Canadian, who said in December 1881,

It is assumed that labor is available only in connection with capital; that nobody labors unless somebody else, owning capital, somehow by the use of it induces him to labor…

Labor is prior to and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not existed.

Although most Canadian law schools start the day after Labour Day, many Americans start a week or two earlier. According to Blawg Review 122 it seems that in Dublin they start as late as October, but it might just be that everyone (students and profs) are recovering from prolonged hang-overs.

Labour relations are highly relevant for this edition of Blawg Review, since law professors at the University of California are considering a walk-out despite having the “best public education in the world.” Perhaps they could use this list of 24 alternative mediation dispute resolution sites to read.

Maybe they should just settle this all over a beer. Then again, those Canadian brewers are at it again with their trade-mark litigation! Next time someone tells you “I Am Canadian,” you might want to do your due diligence.

The big thing up here in Canada right now is Copyright Consultation Reform. Although over-reaching legislation is great for the lawyers, it does little for end-users of copyright material.  If you’re one of those folks with a keen attention for cyberspace cases, this new blog following the 10 most important U.S. cases will probably be of interest.

But the big thing about Canada in the U.S. right now seems to be our healthcare system, which we’re rather partial to, despite what they mights say (Ignore those pesky suits).  Send us your gladiators with herpes, and your perdurable impetus. All that talk over at Volokh about a “lottery system” can only be described as nonsense.

(At 1:53 Glenn Beck repeats lottery libel, and at 3:21 yells at a caller to get off his phone, “you little pinhead,” for not listening to the “facts.”  The remix is even funnier.)

Although she acknowledges that healthcare reform is needed, Althouse has 10 things she hates about it.  Change is always hard due to “status quo bias.” Madeleine Begun Kane has a limerick she wrote just for the spats over healthcare in the U.S. (watch your pinkies!):

“Majority rule is just great,”
Said Gregg in the drilling debate.
“You’ve got 51 votes,
Then you win.” Check his quotes.
Yet 51 Dem votes don’t rate.

Seeking medical treatment is probably the first thing you should do after a car accident, irrespective of whether it occurs in Canada or the U.S.  Passen Law provides 9 other things you should do, including, of course, getting an experienced personal injury lawyer.

Another thing we have in Canada absent in the U.S. is a prohibition against the death penalty.  Perhaps the fact that 45% of wrongful convictions in capital cases are based on jailhouse snitches has something to do with it.  Mark Bennett of Defending People points out the interesting observation that a Texan executioner appears to be committing murder by that state’s law,

…would you participate in a death penalty trial, knowing that, for the rest of your life, with the turn of a tide of public opinion you could be prosecuted for making what you believed to be the right decision? You may be betting your life.

Do you think that employment contract with the State would protect you?  Don’t count on it, as Jeffery I. Gordon mentions that most contracts are too brittle to withstand scrutiny, even if those FirstDrafter clauses look like they can do the job.

On the other hand, if your employment contract follows an affirmative action plan that is not remedial and narrowly tailored for past discrimination, it may constitute unlawful discrimination.  We’re still not sure if a stripper constitutes an employee or an independent contractor in Employment Law class.

More guys in that class would probably express their anticipation for seeing Jessica Alba as the stripper-law student Nancy Callahan in the upcoming Sin City 2 if they weren’t concerned about objectifying women.

Don’t lose any sleep over it, unless you’ve sexually assaulted employees and are settling for $1.72 million.  Be careful though – the risk of contracting gladiator herpes (and sins) rises exponentially when wrestling with strippers.  You could also get robbed or raped.

Personally, I would be okay with any affirmative action that sought to get everyone but Tucker Max and any potential douches into my law school.  Nancy Callahan might get a pass, as long as she doesn’t hook up with Tucker while she’s there.


Special thanks to David Shulman for editing on this piece.


That’s it for this week’s edition! Remember: Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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Michael Yadegari Gets In The Mind of Israel http://lawiscool.com/2009/07/13/michael-yadegari-gets-in-the-mind-of-israel/ Mon, 13 Jul 2009 10:59:16 +0000 http://lawiscool.com/?p=1776 Michael YadegariI’m doing a law program in Israel right now with an interesting guy – Michael Yadegari, a Persian-Jewish law student from Los Angeles who did this program last year.

He is currently a JD/MBA student at Chapman University in Orange, CA and President of the Jewish Law Students Association and founder of Chabad at Chapman.

He spent his time here putting together a documentary, In the Mind of Israel, a non-partisan compilation of first-hand accounts about why Israelis, both Jews and Arabs, live in their country.

The video presents a vast diversity of perspectives and positions, representing a diversity of opinions that we rarely see outside of Israel. He interviews ordinary Israelis, members of parliament, soldiers, law professors, and students.

There are some political implications of the film, including options towards a peace process.   Those interviewed express controversial views from across the political spectrum, and helps highlights some of the enormous challenges Israel has within itself in determining what course of action to take for the future.  It includes some pretty strong statements, including,

The Arabic (sic) needs to die.

Others claim that Israeli politicians use the Palestinian issue for their own ends, and are not really interested in resolving the problem at all.  One Arab truck driver emphasizes that they already live together, and collective cooperation towards a solution is certainly possible.

Israel is not a monolithic country, but this film does help give a glimpse into the very complicated minds of those who live there.  Perhaps even more important than an international audience seeing this would be for Israelis themselves to talk to each other and resolve their differences, educate one another about misunderstandings, and move beyond the historical obstacles that have hindered progress thus far.

You can purchase a copy of the film here.

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AdviceScene Offers Free Legal Info from Practicing Lawyers http://lawiscool.com/2009/05/02/advicescene-offers-free-legal-info-from-practicing-lawyers/ Sat, 02 May 2009 16:54:27 +0000 http://lawiscool.com/?p=1580 LawIsCool has recently begun a partnership with AdviceScene.com. The site is an online forum that provides resources to both lawyers and members of the lay public.

advice sceneFounded earlier this year by Nancy Kinney, an entrepreneur with a law background, AdviceScene aims to provide a “fully moderated, social networking community linking lawyers and the public to provide a free and democratic exchange of legal information.”

A key difference between other legal forums and AdviceScene is that AdviceScene provides legal information from actual practicing lawyers; answers don’t come from anonymous sources.

According to Kinney:

“The site offers lawyers a credible method to join the online world of public discussion on legal matters in a manner that conforms to their professional code of ethics.”

The site also assists lawyers that want to contribute legal information online by providing FREE marketing services such as a free lawyer directory, free banner ad, free profile in the monthly newsletter, and soon free website templates, including free search engine optimization (SEO) and hosting.

As an added bonus, AdviceScene Enterprises Inc. donates 5% of gross advertising revenues to pro bono legal services societies.

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Interview with the Author of “Life Without Lawyers” http://lawiscool.com/2009/01/12/interview-with-the-author-of-life-without-lawyers/ http://lawiscool.com/2009/01/12/interview-with-the-author-of-life-without-lawyers/#comments Tue, 13 Jan 2009 03:34:20 +0000 http://lawiscool.com/?p=1267 Law schools on both sides of the border are graduating more lawyers than ever before. What effect will the influx of lawyers have on the profession and on the litigation culture in the United States and Canada? Has litigation become America’s national sport? Has frivolous litigation reached crisis levels?

Philip K. Howard (src: CommonGood.org)I spoke with Philip K. Howard, best-selling author of the new book, Life Without Lawyers: Liberating America from Too Much Law, to find answers to these questions, and to find out what can be done to bring common sense back into the courtroom.

Howard is himself a lawyer and legal reform activist; he is the founder and chair of Common Good, a “nonprofit, nonpartisan legal reform coalition dedicated to restoring common sense to America.” He also contributes to the New York Times and the Wall Street Journal.

* * *

To begin our interview, I asked Howard what his motivation was for writing the book. He told me that he’s been thinking about this problem for over 15 years now. He comes from a city planning background, and was interested in the way social structures change the way people behave in their daily lives.

Since the beginning of the industrial revolution, Howard says, but especially since the 1960s, we’ve created legal structures that have skewed people’s choices and pushed aside common sense. People no longer have freedom in their daily choices.  A “legal self-consciousness” has descended upon society like a “heavy lead blanket,” stifling even simple choices that people make in their day to day life.  People go through the day thinking about self protection from litigation.

Interestingly, the problem is not in itself caused by too much litigation:

“Not that many people bring frivolous claims. When they do bring frivolous claims, they don’t generally win. But the trouble is that the system of justice allows people to bring those claims, and allows the plaintiffs to maintain them for years. The result is that nobody trusts justice. Because they don’t trust justice, they don’t feel free to do their jobs properly.”

The result, Howard says, of the legal self-consciousness is that health care costs more; kids aren’t allowed to go outside and play even in the midst of an obesity epidemic; teachers can’t maintain control of the classrooms; managers can’t be honest with their workers; and governments can’t toss out bureaucrats who aren’t doing their jobs because of iron-clad tenure and a fear of wrongful dismissal claims.

The legal self-consciousness has profoundly changed public schools in America. Howard explains that over 40% of high school teachers in America say that they spend at least half their time trying to maintain discipline, which means half their time isn’t spent teaching.  Teachers have lost control of the classroom, for fear that they’ll be “dragged through a hearing by an angry parent.”

According to a poll conducted by Common Good, 82% of teachers say they practice “defensive teaching” – their decisions are motivated by a desire to avoid legal challenges. The administration is paralyzed as well. This chart demonstrates the nightmare of bureaucratic hoops that an administrator must jump through in order to fire a teacher that everyone agrees is inept.

Health care has also been transformed. Over 90% of doctors say that they order tests that aren’t clinically needed, partly for fear of negligence claims.  It’s difficult to quantify these “defensive medicine costs,” but Howard says that they’re probably in the $100 billion dollar range, a figure that has been cited elsewhere. That doesn’t even take into account other inefficiencies. Howard points out that doctors are reluctant to communicate with their patients and suggest treatments for common maladies by email, because in 1 out of 100 cases, it would have been better to see the patient. Ultimately, people don’t get proper care because of fear of the few.

This, Howard says, is one of the overriding problems with American legal structures – they cater to the lowest common denominator, and “as a result, the common good is harmed.” A system that caters to everyone sounds good in theory, but in practice, it becomes over inclusive and can’t work when resources are scarce.

I asked Howard to what extent civil procedure rules play a role in creating these problems, since those can be reformed with relative ease.  Howard replied that the problem goes far beyond procedural rules. The roots extend much deeper into our legal philosophy.

For instance, there is a myth that the judiciary ought to be completely neutral, and must avoid making value judgments.

Howard argues that judges must be impartial, but that doesn’t mean they should be neutral; they should be much more assertive in the trial process. That’s because “the notion of letting everybody have their day in court has become letting everybody have their decade in court. It doesn’t matter whether the claim is valid or not.”

Law, he says, is not about avoiding value judgments. It’s about asserting them on behalf of society. When somebody sues for $54 million because they’ve lost a pair of pants, the court should be able to say, immediately, that “at best you’ve got a claim for $200 in small claims court. Case dismissed without prejudice to re-file in small claims.”

The pants case is an example of “process run amok.”

“When process is so neutral that judges sit on their hands and don’t make obvious value judgments that correspond to the reasonable values of the society around them, then justice basically favours whoever is in the wrong.”

A liable defendant can waste a court’s time advancing even the most absurd legal arguments ad infinitum all the way to the Supreme Court. Conversely, an “extortive plaintiff who thinks he can get a million dollars after finding a fly in the water” can pursue the claim for years, clogging up the system to the detriment of worthy plaintiffs that ought to get their just compensation.

Ultimately, Howard says that excessive neutrality fuels distrust in the judicial system, which in turn leads to paralysis and a loss of freedom.

Common Good conducted a survey which asked how many Americans would “trust the system of justice if someone brought a baseless claim against them.” Only 16% said they would trust the system. Freedom is lost because whenever people are dealing with others, they will have an overriding sense of caution – a fear of a claim being brought against them, whether it be legitimate or frivolous.

I also pondered to what extent law schools were to blame for the litigation culture. Howard agreed that law schools were certainly worthy of blame for pumping the system full of lawyers. More lawyers means more litigation. But he said they were also to blame for creating presumptions and frames of reference – “that people should be allowed to sue for anything and that’s the highest form of justice.”

I asked what Philip Howard thought of apology legislation, currently being touted in Ontario as a way to reduce litigation. His feeling was that apology legislation was a step in the right direction, but that the problem is so large that the impact will be minuscule.

The problem in America, he says, is not with doctors feeling like they will be found liable when they make a mistake and say sorry. It’s with doctors feeling like they’re going to be sued even when they’ve done nothing wrong at all.

Finally, I asked whether Howard had any specific solutions to help inject some common sense back into the legal system. His book is full of them, but he was willing to provide a couple of interesting examples.

For one, we no longer know what constitutes a “reasonable risk.” People have no guidance on whether their behaviour is reasonable, or else risky enough that it might draw litigation.  Howard proposes risk commissions that could set clear standards for what constitutes reasonable risk. Such commissions could be set up in a wide range of fields, from medicine, to discipline, to environmental protection.

The whole idea of providing social services as a matter of right, he says, also needs to be reconsidered:  where resources are scarce, we need to have officials with the authority to deny things in order to balance all interests. The problem with the current approach to social services, he says, is that it “encourages people to bang the table in order to get everything that they can just for themselves heedless of the effect on all others.”

Howard tells me that his organization, Common Good, has broad-based support for numerous proposals. He has built coalitions across the political spectrum for legal structural reform.

The appetite for change, he says, is definitely there.

* * *

Life Without Lawyers (src: CommonGood.org)Life Without Lawyers, which hit the shelves today, has been called “2009’s most needed book on public affairs” by the Washington Post’s George Will. Stuart Taylor, of the National Journal Magazine, says that it “brims with insights into how ‘rights’ that were created to prevent ‘unfairness by those in authority’ are now ‘guaranteeing unfairness to the common good.'”

The book can be purchased here.

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Saddam Hussein’s Dysfunctional House of War http://lawiscool.com/2008/12/19/saddam-husseins-dysfunctional-house-of-war/ http://lawiscool.com/2008/12/19/saddam-husseins-dysfunctional-house-of-war/#comments Fri, 19 Dec 2008 12:16:32 +0000 http://lawiscool.com/?p=1203 House of Saddam.  Although I only caught a few episodes, here are my preliminary thoughts on the series.

Accurate Information in the Fog of War

Alex Homes, one of the researchers for the series, shares the difficulty in finding accurate information on Saddam’s life.

Sally and I started by reading all the biographies that had been written over the years. The first thing that struck us was how the accounts of Saddam changed over time. Fuad Matar’s biography, written in 1981 and containing extensive face to face interviews with Saddam, could not be more different that those written by Western journalists after the 1991 invasion of Kuwait. Finding incontrovertible facts was going to be a problem.

The context in which this series is written is essentially crucial, as the American electorate still struggles with a highly controversial conflict that they are still uncertain over why they are there. The infamous 2003 USA Today poll indicated that 70% believed Saddam was behind 9-11.

What We Won’t Hear Much Of

Biographical entries that will likely be glossed over or omitted from the series include how the CIA helped put Saddam in power in the first place, and helped him create lists of names for his mass graves,

In 1959, there was a failed assassination attempt on Qasim. The failed assassin was none other than a young Saddam Hussein. In 1963, a CIA-organized coup did successfully assassinate Qasim and Saddam’s Ba’ath Party came to power for the first time. Saddam returned from exile in Egypt and took up the key post as head of Iraq’s secret service. The CIA then provided the new pliant, Iraqi regime with the names of thousands of communists, and other leftist activists and organizers. Thousands of these supporters of Qasim and his policies were soon dead in a rampage of mass murder carried out by the CIA’s close friends in Iraq.

They will probably also overlook that the American administration helped arm Saddam with WMDs, and disregard the remarks by (Canadian born) U.S. ambassador April Glaspie, the State Department, and Assistant Secretary of State John Kelly over the Kuwaiti invasion.

America’s complicity in Saddam’s crimes will clearly be ignored, and of course the entire Iran-contra affair probably won’t even get a peep.

These inner corners of American politics, and how this knowledge affected the psyche and perspectives of Saddam, will be deliberately omitted.

As a reult, the series will eventually go down in history as a well-designed propaganda piece for an  illegal war that destabilized the world for decades.

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Walking in the Other Person’s Steel Toed Boots http://lawiscool.com/2008/12/14/walking-in-the-other-person%e2%80%99s-steel-toed-boots/ http://lawiscool.com/2008/12/14/walking-in-the-other-person%e2%80%99s-steel-toed-boots/#comments Sun, 14 Dec 2008 17:42:31 +0000 http://lawiscool.com/?p=1182

Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering.
Master Yoda, P.C., C.J.C.

In this award-winning 2006 film produced in cooperation with the CBC, Steel Toes tells the story of a neo-Nazi living in Montreal. He viciously attacks an Indian immigrant without provocation, mistaking him for a Muslim, with serious injuries that resulted in death.

He is frustrated, angry with the millions of immigrants who come to Canada and reproduce in large numbers. They supposedly take jobs away from working-class whites like him and are changing his white way of life in Canada.

The young man, who stopped his education in high school,  is forced to confront his racial ideology within himself, discovering that if he takes the stand with his racial rhetoric he will likely never be released.

But another man is also on trial in this film – the Jewish lawyer assigned to defend him, despite having his client tell him to his face,

In an ideal world we would have you eliminated.

But his client’s paradox is that he also says,

In this world, I need you more than anyone.

Derided by his Jewish family and friends as a super liberal humanist Jew, the lawyer also struggles with advocating on behalf of someone who despises the multi-racial society – it’s multicultural, the lawyer corrects him – which they live in.

His friends ask him if he has forgotten what his people have gone through, what his family has gone through. But it is actually his family that provides him with the conviction to move ahead.

He thinks back to his childhood and his father telling him that he should give people a chance, especially those who want you dead. When the son responds that it sounds “soft,” the father replies that it is the toughest thing of all to do,

Soft? It’s the hardest kind of right there is. Otherwise the killing won’t stop. Somebody has to stop the killing and that’s you and that’s me. “Thou shalt not kill.” It’s the basis of our entire civilization.

You don’t have to have the slightest interest in practicing criminal law to enjoy this movie, which is essentially about compassion for someone who is different. The neo-Nazi overcoming his guilt and prejudice towards the accented immigrant, the lawyer overcoming his anger towards the criminal, and even the victim who forgives his killer before he dies.

But it’s the transformational ability of advocacy that really makes a difference in the story.  The young man finally comes to the realization that the Jewish lawyer who so selflessly helps him at the expense of risking his career, family and personal life could hardly be a devil.

Only by overcoming this fear and hatred can the young man accept the possibility of rehabilitation, and eagerly seek to re-educate himself by reading new materials and embracing new ideas.

It’s an inspiring story and a reminder of the reasons why we love and uphold the justice system.

Cross-posted from Slaw

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The Legal Intersection Between Sexuality and Race http://lawiscool.com/2008/10/30/the-legal-intersection-between-sexuality-and-race/ http://lawiscool.com/2008/10/30/the-legal-intersection-between-sexuality-and-race/#comments Fri, 31 Oct 2008 03:01:21 +0000 http://lawiscool.com/?p=992 What do Sikh immigrants to B.C. almost a century ago have to do with gay issues?

Everything. Or, maybe nothing.

On Oct. 24, 2008 I saw a film, Rex vs Singh, a 20-min. short film on a legal case from B.C. in 1915.

The event was hosted by Standing Against Queer Discrimination (SAQD) as part of a film festival at the University of Western Ontario.

One of the film-makers, John Greyson, introduced the film and answered questions.

A New City with Big Problems

Vancouver was a new city at this time, but was still Canada’s most multicultural city with a few pockets of Chinese, Japanese and Sikh communities.  In 1907 riots ensued, destroying Chinese and Japanese neighborhoods,  while the rioters sang ‘White Canada Forever.’

In 1914, a year before the case of Rex v. Singh, the Komagata Maru tried to dock in Vancouver.  It resulted in a split within the Sikh community, and increased xenophobia by the rest of the population.

Discrimination Under a Different Name

The men in this case were entrapped by the police and accused of sodomy, which was of course illegal.  Apparently this was part of a routine process of discrimination in a series of legal cases stretching back to the 1800’s.  The film mentions over a dozen cases between 1905-1930.

But not necessary because these people were gay.   In an interview earlier in the year Greyson said,

Were the men having sex? Or were they just entrapped? We don’t even know what the verdict was in this case —that part of the story has never been uncovered. There is so much about it that is unknowable, that is mysterious. This is a video about fragments of a story —the more we try to answer them, the more they fall apart.

Homophobia was used to persecute these minorities because they had full rights as British citizens, and could not be targeted using techniques more routinely used for harassing minorities.  Immigration laws were deliberately designed to limit the number of Sikh women arriving in Canada, to discourage permanent settlement as much as possible.

Vancouver historian, Gordon Brent Ingram, who researched the case and also appeared in the film, said,

Certain white people in Vancouver were not happy about this. The early ‘city fathers’ of Vancouver were all white and often quite racist. They didn’t want Indo-Canadians becoming a significant demographic group in Vancouver, and by sexually harassing them they hoped to make these men feel unwelcome.

The film brings to life a transcript from the actual case, as the officer describes his tactics of tricking the accused as being “necessary.”  But the accused responded they knew he was a detective, and did not attempt any sexual impropriety.

A witness also claims one of the Sikh men asked him to participate in sexual activities, but could not explain how this could have happened when informed that the man did not speak English.

The outcome of these cases are unknown, but similar cases in California resulted in sentances of 5-7 years.

What’s the Relevance Today?

The point is not whether or not these individuals really were gay.  When intolerant elements of Canadian society were unable to persecute ethnic minorities using institutionalized discrimination, they resorted to other legal techniques to accomplish the same purpose.

Some reporters are attributing the recent Tory win to their ethnic strategy, which has given them 10 ridings in the GTA and Vancouver that have significant populations of ethnic minorities. Ruby Dhalla of Brampton-Springdale, a riding with one of the highest Sikh concentrations in Canada, won by a mere 1,000 votes, down from 8,000 in 2006.

Interestingly enough, the new Conservative Minister of Minister of Citizenship and Immigration, Jason Kenney, has himself made disparaging remarks dismissing them in 2000 saying they were,

…overheated Sikhs using the race card, which they so often do when their credentials are being questioned.

Family values, crime and taxes are issues supposedly resonating in these communities.  “Family values” is often used as code for anti-homosexual policy.

What all these ethnic communities should realize, and often do, is that issues of discrimination cross boundaries of ethnicity, religion, race and sexuality.  Advocacy therefore requires support for others who don’t necessary share your beliefs, culture, lifestyle or identity.

The case of Rex vs Singh is yet another reminder of this lesson.

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Website Review: TheBillableHour.com http://lawiscool.com/2008/10/16/website-review-thebillablehourcom/ Thu, 16 Oct 2008 15:39:42 +0000 http://lawiscool.com/?p=962

For most of us, succeeding at getting into law school is a long and arduous path, riddled with onerous tasks like resume-updating, LSAT writing and hunting down references from years past. It usually entails a great deal of misery suffered by the individuals undertaking the endeavour as well as the dear friends and family members who have to put up with our whining.

In some cases, friends and family members become more wrapped up in the process than the applicants themselves. Speaking from personal experience, my mother was one such individual. When I first mentioned that I “might consider taking the LSAT and applying to law school,” I didn’t know what I was getting myself into.

Little did I know that I’d be answering questions like, “So how’s law school going?” and “What was your last LSAT score?” at family functions and get-togethers after the news spread that “Thomas is going to law school!” The heat was on. I figured I’d better follow through with my plans otherwise I’d have to respond, “Not so great, but my career in the grocery industry is going swimmingly!”

Upon mentioning my legal aspirations, the gifts started pouring in, ranging from a “hilarious” lawyer calendar to a library of Grishams and law school prep books. Had only my loved ones known about TheBillableHour.com, the swag would have been even sweeter.

With tons of law and law school related gifts, ranging from goofy greeting cards to law school survival kits, TheBillableHour.com is one-stop shopping for the aspiring legal professional, legal professional, and all of the poor saps that have to put up with legal professionals, including those ever-so-enthusiastic and proud mothers and fathers out there. The site has so much to offer, in fact, that I had to cut back on my usual rambling just so I can fit a fraction of it into this blog post.

A rundown:

  • Watches & Clocks
  • Greeting Cards
  • Music & Videos
  • Accessories
  • Office Supplies
  • Games & Books
  • Survival Kits
  • And of course, gift certificates
  • All of which are orderable through a secure server and will be delivered to your door

The quality of the products runs the gamut from thoughtful and practical to a bit goofy and seemingly pointless, but it’s all in the name of wholesome legal fun. The wide array of options available for greeting cards is my personal favourite. They’re generally corny (their creators must be lawyers) but humorous and fully customizable, giving the sender the option of inserting their own witty print on the inside, and TheBillableHour.com is even kind enough to deliver them to the recipient for you. For your browsing pleasure, the cards are organized into a broad range of categories for any occasion a lawyer ought to celebrate (except perhaps very, very early retirement).

A review of the site wouldn’t be complete without mention of its namesake, of course. TheBillableHour.com offers watches and clocks, which vary in their quality/price to be fitted for the fresh-out-of-school lawyer starting a modest little firm or the high-level legal executive. For a “light-hearted take on the concept of the billable hour,” they feature dials that are divided into tenths of an hour for smooth billing purposes.

It’s worth noting that the site isn’t all fun and games. It also features a resources section with links to books, articles and much more to aid you in all of your legal endeavours.

I could easily go on for pages mentioning highlights of the site but, for the sake of your precious time and my grades, it’s best I stop now. In the very least, TheBillableHour.com is worth the browsing time, so check it out for yourself!

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