Wednesday, July 16, 2008

In which I am glad to have high-speed internets

From the minds who brought you "This Land is Your Land" in 2004:


And another treat:

Passover goes Hip Hop in JibJab's illin'est music video! Just because you don't recognize Jesus as your personal savior doesn't mean you don't recognize phat rhyme when you hear it. L'chaim, G-money!

Tuesday, July 15, 2008


To my huge honour and delight, I have been invited to join the crew at Law Is Cool. I'll still be posting here, but I'll be crossposting anything law-related there as well. If you don't already, I encourage you to read it. And I'm not just saying that out of shameless self-promotion, either. smile_wink

Sunday, July 13, 2008

In which South Dakota neo-cons butcher free speech, proving the NYT wrong


In June 2008, the New York Times published this article: "Unlike Others, U.S. Defends Freedom to Offend in Speech" by Adam Liptak. In the article (which caused a big todo in Canada, since we were mentioned! In the New York Times! Above the fold!), Liptak takes exception to the BC Human Rights Tribunal hearing of a complaint against Maclean's.

My fellow blawgers at Law Is Cool have been more on top of this than I, and have posted some background info. I have been reticent to comment because I'm of two minds on the issue. Not the case, so much, because I think Stein is an Islamophobe and basically a jerk, and I have long despaired of Maclean's practicing fair and balanced journalism, but the issue of hate speech versus censorship is one I find very troubling.

To quote Liptak, "In the United States, that debate has been settled. Under the First Amendment, newspapers and magazines can say what they like about minorities and religions — even false, provocative or hateful things — without legal consequence."

Indeed, the threshold for making speech illegal is that it provokes imminent violence. "Mere advocacy of violence, terrorism or the overthrow of the government is not enough; the words must be meant to and be likely to produce violence or lawlessness right away."

Liptak also quotes Jason Gratl, a lawyer for the British Columbia Civil Liberties Association and the Canadian Association of Journalists: 

“Canadians do not have a cast-iron stomach for offensive speech,” Mr. Gratl said in a telephone interview. “We don’t subscribe to a marketplace of ideas. Americans as a whole are more tough-minded and more prepared for verbal combat.”

Update, South Dakota

Nearly a month after the Liptak article, this particularly disturbing article comes into my RSS feeder: "Telling Doctors What To Think: South Dakota's unbelievable new abortion law", by Emily Bazelon.

Once again, South Dakota anti-choice lobbyists are working to overturn Roe v. Wade by passing a law to seriously limit abortions. Their attempts to outlaw it entirely having failed, they have a new strategy, and it works like this:

Q. How do we convince doctors to tell patients that abortion is murder?

A. Pass a law forcing them to say that abortion is ending the life of a person!

Q. But Roe v. Wade ruled that a fetus is not a "person", so how can we circumvent that?

A. Use the phrase "human being" instead!

Q. What if someone argues that "human being" and "person" mean the same thing?

A. Define it in the legislation! That makes it true!

The truly appalling thing is that the 8th Circuit Court of Appeal ruled that forcing doctors to say:

that "the abortion will terminate the life of a whole, separate, unique, living human being," and that they have "an existing relationship with that unborn human being" that is constitutionally protected. (What does the constitutionally protected part mean? Who knows.)

is not a violation of the right to free speech.

One of these things is not like the other

What South Dakota (and, apparently, the 8th Circuit Court of Appeal) fails to realize is that Tautology is a rhetorical and logical failure, not a legal doctrine to be followed. The narrow-mindedness is underlined by this choice quote:

"The bottom line is if the state Legislature orders a professional to tell the truth, that's not a violation of the First Amendment," said South Dakota Attorney General Larry Long, who is defending the law in court.

Apparently, South Dakota Attorney General Larry Long is unaware that "the truth" is an objective fact, not (a) what he personally believes, nor (b) what the legislatures drafts in the definitions sections of a statute. The appeal to authority is another logical fallacy which runs rampant all over this case.

Doesn't this seem to run counter to Adam Liptak's (and other's) panegyric to the Great American First Amendment? Sure, in America you can say hateful, distasteful, horrible things until your dying breath, and there you are protected by the Constitution. But woe betide doctors who would prefer not to lie to their patients, when the South Dakota legislature has decreed that "abortion is murder" is an Absolute Truth...even when everyone knows it's not.

Friday, July 11, 2008

ICC to charge Sudanese Prez with genocide: no, seriously!

From MSNBC/WaPo, via Opinio Juris:

The chief prosecutor of the Internationals Criminal Court will seek an arrest warrant Monday for Sudanese President Omar Hassan al-Bashir, charging him with genocide and crimes against humanity in the orchestration of a campaign of violence that led to the deaths of hundreds of thousands of civilians in the nation's Darfur region during the past five years...


The violence in Darfur began in February 2003 when two rebel groups attacked Sudan's Islamic government, claiming a pattern of bias against the region's black African tribes. Khartoum organized a local Arab militia, known as the Janjaweed, and conducted a brutal counterinsurgency campaign that has left more than 300,000 people dead and has driven more than 2 million more from their homes. The Bush administration accused the government of genocide.

I guess people are going to have to stop accusing Luis Moreno-Ocampo of pussy-footing around. Of course, there's always a chance the ICC Pre-Trial Chamber won't issue the warrant, but I doubt the prosecutor would go forward on such a contentious issue without a rock-solid case.

There are concerns that this move by the ICC will jeopardize the UN and African Union peacekeepers already in the area, but since the government appears actively hostile to them anyway, I'd say it's not a big enough risk to change anybody's mind in the Hague.

The Beeb offers this overview of the Darfur situation: Q&A: Sudan's Darfur conflict.

Saturday, July 05, 2008

In which the Federal Court surprises me...pleasantly!...with new US deserter decision

U.S. deserter could qualify as refugee: court (CBC)

Joshua Key is one of multiple US military deserters who have come to Canada. Several of them have unsuccessfully claimed refugee status.

I'm of two minds about these cases. On the one hand, I think we regularly deny/deport more deserving claimants. These people just don't rank extremely high on my righteous-indignationometre. On the other hand, the Refugee Board and the courts have refused to consider key legal issues in the cases, such as whether the war in Iraq is illegal and therefore being forced to participate in it would constitute persecution. Instead, these central issues have been brushed off as irrelevant and outside the jurisdiction of refugee law, which I find hypocritical. Under international law, participants in illegal military actions could be prosecuted for participation. Logic suggests that if we would prosecute someone for doing something, then we should not condone his government for forcing him to do that same thing.

Of course, logic and international law...even "law" and international law...are often at odds.

The gist of the ruling:

[Federal Court Justice Robert] Barnes said the board erred “by concluding that refugee protection for military deserters and evaders is only available where the conduct objected to amounts to a war crime, a crime against peace or a crime against humanity."

Citing a case from the U.S. Federal Court of Appeal, Barnes said officially condoned military misconduct could still support a refugee claim, even if it falls short of a war crime.

"The authorities indicate that military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve," Barnes wrote.

Barnes said the board imposed a legal standard that was "too restrictive" on Key, who lives in Saskatchewan.

While I would not be surprised to see this appealed and superior courts to cop out, I am delighted to see this decision conforming with the internationally agreed-upon rules and standards we claim to live by in Canada.

Also via CBC, some of the others:

Also interesting: the House of Commons--yes, that's right, the organ of representative democracy in this country--passed a motion to allow the deserters to remain in Canada. However, it was a non-binding motion, and the government kiboshed it. See this? This is my shocked face.

Friday, July 04, 2008

I'd really appreciate it if you stopped using the term "abortionist" about "doctor"?

Par example:

Abortionist Henry Morgentaler's Order of Canada should be revoked to preserve the dignity of the now-tarnished award, an angry Calgary Roman Catholic Bishop Fred Henry said yesterday. ("Bishop wants honour stripped", Bill Kaufman, Sun Media)


"Order of Canada for abortionist" (headline, Peterborough Examiner)

NOT that it's technically incorrect. Dr. Henry Morgentaler, recent recipient of the Order of Canada, does perform abortions.

But that's not why he's being honoured, per se. It's not like he has the most abortions under his belt, so clearly he should get the award. It's because he fought for women's right to control their own reproductive health. Now, my stance on abortion has been seen by some (radical feminists) as conservative.[1] But I don't think you have to share Morgentaler's cause to admire his courage or integrity.

Also, doesn't "abortionist" sound like some horrifying religion where one actually worships abortions?

So let's try "doctor" shall we, or perhaps even "pro-choice activist" as opposed to a fully loaded term used to denigrate, rather than describe.


[1] I'm pro-choice, however I think that women in equal relationships have an ethical (not legal) duty to inform the father, and that a father who is willing to raise the child should have a chance to make a case for not aborting--a fairly heretical idea to some.

Wednesday, July 02, 2008

In which I have another reason the be peeved at the US "justice" system

Before I even get to the articles there are some problems.

First, clearly, the court could hear Arar's case if it was so inclined. I am willing to admit that there may be a microscopically small range of instances where a government may be justified in screwing someone over on the grounds of national security, but I am awfully tired of the "Aw shucks, there were nuthin' I could do" attitude when they do so. This is not only a criticism of the United States (although they are major offenders). The least you could do is to own the fact that your national security trumped an individual's fundamental rights. If you truly were justified in your actions, the analysis will show that the choice--and it is always a choice--was the correct one (or at least a reasonable one).

Second, "alleged" rendition victim? "Alleged"? Here are some sunglasses, Denver Post--your eyes must be light-sensitive from so many years living in that cave.

Now, here's my concern with the actual substance of the decision: "...Arar, as a foreigner who had not been formally admitted to the U.S., had no constitutional due process rights." (CBC) If you read "constitutional due process rights" to mean "dotting all the i's and crossing all the t's of procedural niceties", then yeah, like it or lump it, these have never been available to non-legal residents of any country. Traditionally, for political reasons, one would try not to mistreat the nationals of other states who were transiting through.

On the other hand, if you read "constitutional due process rights" to mean "not imprison someone, hide them from their own consulate, and then without warning ship them off to a hole in the desert to be tortured and mistreated for months" then generally speaking this is considered dirty pool regardless of the person's nationality.

That's why HUMAN Rights and CIVIL Rights are two different things.

Tuesday, July 01, 2008

Makeover makeover, makeover makeover, MAKEOVER!

I have done a wee little bit of juggling of my layout. You will now find the Caveat Lector, Tags, and Archive at the bottom of the page. Also, I have converted my clumsy link lists into snazzy new blogrolls, except where it's a more-or-less static page. Still toying around with some things though.

In other not-news, I've been looking at the possibility of grad school. Oh, the horror. It'll cost an arm and a leg, and I won't be making that kind of money right out of school. Also, since I'm articling at a small firm, I'm hardly guaranteed a position right out of articling. And as far as hanging up my own slate goes, well, I'd rather be punched in the face.

I figure I should use my articling year to bone up on any other areas of law I'm interested in. Landlord tenant for one, maybe wrongful dismissal, disability. It's not so much the money (although I do need health benefits) as the security, so I know I can start putting away money.

Ideally, if I could just be an RA or a GA or a Law Journal staffer for the rest of my life, that would work out nicely.