bob tarantino

Lawyers and Professionalism

Christopher Whelan has published an interesting article about the confluence of "professionalism" and the business realities of practicing law (particularly at large commercially-oriented firms) in the 21st century.  The abstract:

This article outlines the contrasting 'professional' and 'business' visions of legal practice and the lawyer's role in society. It sets out the regulatory 'maze' that had developed in the UK prior to 2007, reflecting the unresolved business/profession dichotomy. In 2007, radical and revolutionary reforms were introduced in the Legal Services Act. The reforms appear to signal an end to professionalism, the final intrusion of the marketplace into legal services, and the victory of the business vision of legal practice. However, I argue that a closer analysis suggests that a new vision of legal practice has been created specifically - and paradoxically - with global law practice in mind. Law should be both a business and a profession because professionalism is good for business! Global law practice has been reconstituted as a hybrid: business and profession.

The article also provides an excellent primer on the recent history of regulatory reform of lawyers in England.

Lawyers in Comics

My new favourite article: Hi Superman, I'm a Lawyer: A Guide to Attorneys (& Other Legal Professionals) Portrayed in American Comic Books: 1910-2007, written by William A. Hilyerd.

The Economics of Authorship

Sci-fi author Robert J. Sawyer provides a quick look at the financial considerations which go into his decisions about whether to serialize an upcoming novel.  He also provides some links to further ruminations on just how lucrative (*cough*) being a fiction writer can be.

"digital adoption will increase, steadily and relentlessly"

The Globe has published a nicely detailed look at the economics of the book publishing industry and the (impending?) incorporation of electronic delivery of books into the publishing model.  As the piece (by James Adams) notes, publishers and authors (and their reps) are still trying to come to terms with the valeu of digital rights and how authors should be recompensed for them.  Buried in the piece, though, was a comment that I found fascinating - because I think it provides at least a glimmer of insight into quite why the book publishing industry is widely perceived to be in such dire peril (see, e.g., here, here, here, here, here and here); here's the excerpt:

Cooke outlined some of the savings, particularly on printing, binding and paper: “You don't have to print and bind, you don't have to pay for paper. The most expensive part of the traditional publishing process? Eliminated. You do not have to warehouse. Eliminated. You do not have to ship hard copies anywhere. Eliminated. You're not going to get returns from the bookseller. Eliminated.”

Why, he wondered, “should an author be taking less money for a product that, to my mind, has got to be more profitable given that all these costs have been eliminated?”

At the same time, Cooke is critical of the heavy discounting currently defining the electronic realm. It's not uncommon for a hardcover with a publisher's suggested list price of $30 or $35 to sell as a $9.99 e-book, a differential of more than 70 per cent. Sometimes it's even as little as $4.99 if the e-book is part of a bundled sale with two or more titles.

“What kind of discount are the Amazons and Shortcovers of this world negotiating from publishers for this to happen?” Cooke asks. “And why are publishers allowing their product to be devalued in this way?”

I think it's fair to summarize that viewpoint as follows: books currently cost $30, so why should an e-book be any less?  Any "savings" made between the costs of printing a physical book and creating a digital version should be realized not by the consumer, but by the publisher, the author and the wholesale/retail distribution chain.  Which is, if I can be permitted some hyperbole, a recipe for disaster.  A good part of the explanation for the death spiral in which the music industry finds itself is that industry's bizarre quasi-religious belief that it simply could not and should not charge less for its product.  Does anyone else remember when you'd traipse down to the local music store hoping to buy a catalogue title on CD and find it was selling for $25?  And then you didn't buy it?  And now "the local music store" no longer exists?  There's a lesson in there somewhere.

If the book publishing industry is fretting that it can't sell enough copies of books at $30 a shot, instead of imagining that people will suddenly be enamoured of buying an e-book at the same price, perhaps the industry should do what every single other industry on the planet does (and what a quick look at an Economics 101 text will reveal): lower the cost of your product, and make whatever adjustments to your business are required in order to make that lower cost a profitable one.  If people weren't willing to pay $30 for a paper version of a book, they certainly aren't going to be willing to pay $30 for a digital version, when they know full well that the costs of "making" the digital version are far less - they're just going to feel like they're getting ripped off.  Remember back when people would complain about having to spend $15 on a CD which they "knew" cost the record company twenty cents to create?  They might not have been exactly correct on the numbers, but there was a rhetorical power to their argument which lead, in time, to the ongoing collapse of the structure of the music industry which prevailed from the late 1970s until the early part of this decade.  A collapse which could have been, if not prevented, at least blunted by observing a fairly simple business maxim: sell things to people at a price they are happy to pay.

"the answer is likely to hinge"

It is heartening to read of the efforts being made to "restore" (perhaps properly rendered as "imbue") an ethic of professionalism to the practice of law:

The story is symptomatic of a worrisome trend – the erosion of professional standards as billings take precedence over the long-term development of proficient, ethical, well-rounded lawyers. With public criticism of the legal profession on the rise, a call for more exacting professional standards has taken on new urgency.

The first task for proponents of the professionalism movement has been defining what they mean. By consensus, it appears to boil down to civility; mentoring; continuing education; maintaining client confidentiality; avoidance of conflicts; and maintaining independence.

“It has to do with the notion that being a lawyer does not mean simply holding a job,” said Ontario Court of Appeal Judge Stephen Goudge, a moving force in the campaign. “This is about being part of a profession that is given a stature and a certain prestige and, in return, includes a significant service component.”

Evidence is mounting that the movement is more than hot air. The Law Society of British Columbia recently became the first regulator to mandate compulsory continuing education for lawyers. Others intend to follow suit, including the Law Society of Upper Canada, which will make extra training compulsory for lawyers in their first two years of practice.

Institutes have also sprung up, such as the Chief Justice of Ontario's Advisory Committee on Professionalism and the University of Toronto's Centre for the Legal Profession.

... Those who are pushing professionalism must come to grips with a business model of law that places a premium on retaining clients. As Cornwell University law school professor Brad Wendel told a U of T symposium on professionalism last week, sharpening your ethical acuity can be difficult when you are “maniacally billing 2,200 hours a year.”

... Notwithstanding the professionalism movement's focus on lofty motives, there is also a defensive undertone to it all. The profession is undeniably under siege.

... The profession is fighting a potent narrative line alleging that the practice of law has declined from a golden age – when lawyer-statesmen operated with a communal sense of honour – into a grubby little trade whose practitioners scrap for the right to gouge clients.

While the effort is admirable, I can't help but envision it as an exercise in pushing a very large boulder up a very steep incline.  Practicing law has always been, in part, a business endeavour, but what is particularly troubling is the privileging of the business component over all other considerations - which, to be clear, is really the only way to account for the mega-firms which lumbered across the terrain over the last thirty years.

As many concerns as that development raises, however, there is a much more erosive factor at work - the same corrosive mentality which prompts a "deep spiralling funk" on the part of Ontario Court of Appeal Judge Stephen Goudge, one which the profession is in danger of completely overlooking.  And it is this latter matter which is much more important for the future of the profession - the public standing of lawyers (see this [pdf] 2003 Ipsos-Reid survey for a sense of how low public trust in lawyers and the judiciary is) is impacted hardly at all by the "work-life" balance maintained by lawyers, how civil they are to one another or whether the bizarre intricacies of conflict interest rules are observed in the types of corporate cases which impact a marginal handful of clients.  Which isn't to say that the foregoing items aren't worthy of attention - but if you want to address the plunging level of public confidence in the profession, if you want to ensure that self-regulation continues, then effort needs to be expended on what actually tends to enrage individual members of the public (the very people, it unfortunately needs to be repeated, whose best interests the profession is charged with protecting): lack of access to legal representation at affordable prices; the perceived coddling of incompetent, untrustworthy and outright criminal lawyers; and the lack of innovation, transparency and accountability in the governance of the profession.

"while noting a jury's verdict reigns supreme"

This is a curious story:

The Canadian military should take a "sober second look" at the continuing affiliation of three "callous" and "cowardly" reservists after they were acquitted yesterday of aggravated assault, a visibly angry judge said after excusing jurors from his courtroom.

"Your behaviour was nothing short of disgraceful," Superior Court Justice Robert Clark thundered.

After retiring Tuesday night, the jury returned late yesterday afternoon and found Ryan Crossman, 23, Ryan Livesey, 23, and Sean Jones, 21, not guilty.

While noting a jury's verdict reigns supreme, Clark said he had also listened as the men testified during the two-week trial.

... "Canada deserves better ... you should be ashamed of yourselves," Clark told the three as they stood silently in front of him.

I say it's curious because the defendants were, as the Star report notes, acquitted of the charges against them.  The comments at the Star website are also expressing a little bit of, shall we say, confusion: "... doesn't their acquittal mean that they were found not guilty of the assault with which they were charged? The judge seems to be saying "Although you got off, I know that you're guilty.""  Now, nobody over here is naive enough to think that court findings are definitive determinations of truth, but, really, if even a judge seems to discount the value of a jury decision, what are the rest of us supposed to be thinking?

Great Moments in Canadian Sentencing 02.26.09

Offered without further comment (because, really, what more could you possibly say?):

The Ontario Court of Appeal has upheld a five-year prison sentence for the instigator of a vicious, racial attack on a disabled, black man.

... “This was a senseless, brutal and racially motivated attack involving gratuitous violence in a public place against two strangers,” said Mr. Justice Karen Weiler, Mr. Justice Michael Moldaver and Mr. Justice Paul Rouleau.

“The physical injuries to the victim, Mr. Pitia, were very serious and the psychological damage to him is severe and continuing. In all the circumstances, even if the appellant should have received slightly more credit for pre-trial custody, the sentence, in our view, was fit.”

... Five of those involved in the attack were ultimately charged. Two were acquitted after a trial, and two others pleaded guilty and were received sentences of fifteen months and twelve months.

... Arguing before the Court of Appeal, defence counsel Tim Breen maintained that Mr. Bradley's sentence was badly out of proportion to those of his accomplices. He noted in particular that one of his client's accomplices had 26 criminal convictions on his record – a total that was not far off Mr. Bradley's total of 43 convictions.

Alright, one comment: forty-three previous chances to get it right, and they still manage not to give the guy a meaningful sentence?

The Transformation of the Legal Journal

The Durham Statement on Open Access to Legal Scholarship (signed by law librarians at some of the largest US law libraries) calls for the transition of all law school legal journals from print to digital publication.  There are a variety of rationales for this (cost savings, shelf room) but the obvious one is that there's simply no need to retain the print version of law journals: most titles are available via online sources (HeinOnline, LexisNexis, etc.) and those online sources are vastly preferable to paper versions for research purposes (searchable, accessible anywhere, etc.) - if you need a paper copy, just print it up at your desk, rather than lugging a small brick over to the photocopier and trying to get the margins correct so things don't cut off 3/4 of the way through the page.

This also follows a "dramatic decline" in the number of paid subscriptions to some law journals.  The Law Librarian Blog posited a number of likely causal factors for the decline, of which online availability is only one: falling alumni subscriptions, lack of relevance to practitioners and declining subscriptions from courts and law firms (which themselves are likely prompted by online availability).  As noted by the Law Librarian Blog, the sheer ubiquity of law journals perhaps plays some role as well: it is absolutely staggering how many law journals are out there, and how many articles are published each year.  There may be a psychological factor at play in some cases: devoting funds to a particular journal can seem almost futile.

Bu the greatest potential in the nascent movement heralded by the Durham Statement is actually buried a bit in the Statement itself:

Additionally, and potentially most importantly, a move toward digital files as the preferred format for legal scholarship will increase access to legal information and knowledge not only to those inside the legal academy and in practice, but to scholars in other disciplines and to international audiences, many of whom do not now have access either to print journals or to commercial databases.

I think that's actually a little bit coy: the goal should be to increase access to everyone outside "the legal academy and practice", not just "scholars" or "international audiences" - laypersons right here in Canada or the US should have free access to journal articles as well.  The unspoken problem with just moving publications to digital formats is that access writ large is not addressed: even if articles are on HeinOnline or LexisNexis, having an academic or firm subscription is still critical in order to get inside the walled garden.  Which is why this statement by Wendy Reynolds at slaw is so critical:

I’d also love to see the functionality of CanLII extended to include secondary literature - either by scraping websites, or by functioning as a permanent repository for this material.

Now that would be revolutionary (for those who aren't familiar with it, CanLII (the Canadian Legal Information Institute) is a website which provides completely free access to Canadian caselaw, statutes and regulations (including powerful search functions and noting up features).  Run by the Federation of Law Societies of Canada, CanLII's goal is "to make Canadian law accessible for free on the Internet".  There are, of course, immense cost, time and copyright issues which would come into play in the endeavour of making journal articles available on CanLII, but hopefully we are moving in that direction.

"little has changed"

This is what happens when you remove any disciplinary measures from the school system:

And as a result, these girls felt bold enough to beat her up.

Last month, Lindsay was sitting at the back of a packed bus when the group began pelting her with pens. One of the bullies then took her chewed gum and stuffed it down Lindsay's shirt. Another ripped open a condom and smeared the spermicide all over Lindsay's face and her new black jacket.

Humiliated, gagging and sobbing, their victim tried to break free. But the girls weren't done.

"They threw me face first against the glass," Lindsay recalls in a small voice. "I kept calling out to the bus driver -- 'Help me, sir, help me please' -- but he didn't even stop. Nobody helped me. I go to school with all these kids on the bus and nobody helped me whatsoever."

As she fought her way to the door, crying and trembling, one of the girls ended the assault by punching Lindsay in the face.

The brilliant part of the story is that the school superintendant truly, honestly, deeply believes that the school board did everything in their power to address this bullying:

Carol Speers, the superintendent of education, insists West Credit has an anti-bullying program and has been very responsive to Lindsay's complaints. They set up a mediation between Lindsay and the mean girls at the end of October, offered her coping strategies, referred her for counselling in November -- which finally came through just this week -- and organized a co-op for her this semester so she can limit her time at West Credit. "It's unfortunate that Lindsay perceives the school wasn't doing anything for her. They've been supporting her as best as they can."

In other words, people commit a crime, and the response of the school system is to blame the victim, marginalize the victim (even going so far as to keep the victim off school property) and do absolutely nothing to those committing the crimes.  And because there are no consequences to the officials and administrators whatsoever for their failures, none of this will change any time soon.  That family should sue everyone, from the board to the superintendant to the teachers to the parents.

Great Moments in Canadian Sentencing 02.25.09

On Thursday, Munro will plead for his freedom at a parole tribunal near Chilliwack, B.C. Munro, 58, first submitted an application for parole more than a decade ago, but withdrew the request in May 1997 after an intense media backlash.

Thursday's hearing will take place at his minimum-security prison, Kwikwexwelhp Healing Village, which puts aboriginal spirituality at the centre of its rehabilitation program. Munro is not aboriginal but has converted to native teachings.

... About 20 minutes earlier, 28-year-old Munro and his brother, Jamie, 21, had walked into George's Bourbon Street restaurant and told everyone to hit the floor.

When Sweet went inside to investigate, he was blasted once in the chest with a shotgun. The father of three was left to bleed to death on the floor for more than an hour as the Emergency Task Force tried to negotiate with the Munro brothers, who reportedly taunted the dying officer, drank and took heroin.

... The younger Munro was released on parole in 1992.

So, commit armed robbery and kill a cop (to say nothing of the spill-over effects on others present at the crime scene), and one of you will be out of jail in around ten years, while the other one gets to hang out in a minimum security "healing village".  If I ever decide to inaugurate a Gardner Award, this one's certainly going to be in the running.

Lawyers and Blogging

The Lawyers Weekly published an article this week by Mark Herrmann entitled "Is blogging worth it?".  Herrmann seeks to answer two questions: Is blogging "worth it"? and Is blogging a worthwhile business development tool?  It's a decent article, and touches on most of the plausible answers to those questions.

However.

Here is the blog at which Herrmann writes: Drug and Legal Device Law.  Take a look at it.  Notice anything?  Notice anything pertinent to the audience of The Lawyers Weekly, which is "the first newspaper for the Canadian legal profession ... serv[ing] the national market with bureaus in Ottawa and Toronto and correspondents across the country"?  Herrmann is a US citizen, writing a blog about US law.  Much love to the good folks at The Lawyers Weekly (who have been gracious enough to publish a couple of things by me in the past), but, seriously, thirty-three million Canadians and we couldn't find one blogging lawyer to write a piece on whether blogs add anything to the practice of Canadian lawyers?

Herrmann notes, "As a result of two years of blogging, I’ve appeared on television shows on CNBC, Bloomberg and C-SPAN. I’ve been interviewed by, and quoted in, The New York Times, The Wall Street Journal and countless regional papers. I’ve been invited to speak at academic symposia, continuing legal education programs and state Bar conventions. A major academic press has approached me about a book deal."  The Canadian blawgosphere is a diverse place, and I can't claim familiarity with everyone who inhabits it and the success they've had blogging, but I can personally guarantee you that setting up a blawg in Canada will produce nothing similar to those results.

Canadian blawggers aren't difficult to find.  Stem Legal maintains a whole list of 'em.  And I certainly don't mean this to be some kind of chauvinist whine about sourcing a Canadian for the article, because the issue is somewhat more subtle than that: Canadian blogging, and by extension Canadian blawgging, is a quite different beast from American blogging/blawgging.  To crib from Clay Shirky, more isn't just bigger, more is different.  The sheer size of the American legal community and audience for legal writing means that blawgging in Canada and the US are inevitably going to be endeavours with radically different results.  It would have been interesting to see what, f'rinstance, David TS Fraser had to say on the topic, or read the insights of the writers of the Hoyes Michalos bankruptcy blog (timely!).  Regrettably, the impression that blogging is blogging is blogging has delivered an informative but perhaps less-than-useful installment.

"the battle lines have been drawn"

The latest installment in Maclean's magazine's ongoing look at the legal profession in Canada is here, and it's an absolute must-read for anyone interested, even marginally, in issues surrounding the future of the legal profession, self-regulation and legal ethics.  Excepts really just won't do it much justice, but here's something worth pondering:

Law societies don’t just restrict other providers; they do it to their own members, too. Lawyers’ ability to advertise, for example, is limited. As noted in the Competition Bureau report, the Law Society of Newfoundland and Labrador forbids its members from advertising discounted prices. Yukon’s law society prohibits lawyers from using photos, logos or symbols, and restricts the size of lawyer advertisements (their restrictions are currently under review). In several provinces, lawyers can’t advertise their fees compared to other lawyers. Not only do such rules hinder the public’s ability to shop around, “they create less incentive for lawyers to be innovative” in the services they offer, says Chris Busuttil, director of advocacy coordination at the Competition Bureau.

This, however, remains my favourite quotation from the piece:

Just like government, law societies work in the public interest, says Derry Millar, treasurer of the Law Society of Upper Canada: “We elect politicians to sit in Parliament, and [they] run programs for the public benefit.”

They sure do.

A variety of works from Wesley Pue, who is cited in the Maclean's article, can be found here - many of them relate to self-regulation, which is really the central locus of the debate; helpfully, Wue provides comparative analyses to other common law jurisdictions (which, it should be noted, with the exception of the US, have been moving away from allowing lawyers to regulate themselves).

Violent Video Game Laws

There's lots of coverage of news that the 9th US Circuit Court of Appeals has struck down California's legislation which tried to restrict the sale of "violent video games" to minors - in the spirit of the media hysteria which accompanied Barack Obama's visit to Ottawa this week, let's try for a Canadian angle, shall we?

Many Canadian provinces have similar legislation in place which seeks to prevent minors from purchasing violent video games, none of which, to my knowledge, have been successfully challenged in court.  There are, however, structural differences in the US and Canadian legislation which are likely material to any potential court consideration.

Here is the text of the original California bill.  Here is the 9th Circuit Court of Appeals decision in Video Software Dealers Association v Schwarzenegger.  Ars Technica has a series of detailed posts covering the bill and the history of judicial action against it (in reverse chronological order) here, here, here and here.

And here is the comparable Ontario regulation (under the Film Classification Act, 2005), which makes it illegal to distribute or exhibit a video game which has been rated "Mature" to anyone under 17 years of age (see section 6(2)) and also illegal to distribute or exhibit a video game which has been rated "Adults Only" to anyone under 18 years of age (see section 6(3)).

The primary distinction between the two pieces of legislation relates to who makes the classification.  In California, it would have been (the bill was never actually enforced due to the court challenges) the government itself making the decision - in Ontario, that task has been delegated to the Entertainment Software Rating Board, which is an industry association.  The California bill contains rather extensive definitions of terms such as "violent video game", "cruel" and "serious physical abuse" which are intended to guide government bureaucrats in making classification decisions; the Ontario regulation defers the entire exercise to the industry association.  Freedom of expression doctrines in Canada and the US are... perhaps not "radically" different, but certainly different enough that making comparative guesses in situations like this is exceedingly difficult - that being said, I would be surprised if a Canadian court concluded that the existing regulations violated the Charter.

Great Moments in Canadian Sentencing 02.20.09

Another innocent victim enjoys the fruits of our criminal justice system:

The body of 37-year-old Kerrianne Parks was discovered in her small Sudbury, Ont., home on the afternoon of Jan. 24, the result of an apparent stabbing.

...Rattray, 44, was charged with second-degree murder. The charge has since been upgraded to first-degree murder. If convicted, Rattray will receive a life sentence.

Parks' death could be the final chapter in Rattray's long and escalating resume of terror. Some question why justice officials didn't stop him when they had the chance. [BT: and just who are these mysterious unnamed "justice officials"?]

... His first conviction resulted from a 1982 Edmonton break-in. During the next 16 years, he amassed more than two dozen other convictions across Canada

... Rattray was sentenced to three months in jail for the assault and one month for "exposing his private person" to the nun.

... In 1998, a Napanee, Ont., woman allowed Rattray to stay in her home. She woke up to find him in her room with a butcher knife, threatening to kill her and demanding the keys to her car. While unlawfully at large in 1999, he befriended a 10-year-old boy while camping and forced the child's hand onto his genitals.

He then "violated a young girl" in 2000, according to the documents. In 2001, he befriended a Regina woman and stabbed her in her bedroom after she rejected his sexual advances. While at large two months later, he assaulted another woman and stole her car. Rattray was locked up for several years and denied early release because he was deemed unsafe. But when his sentence expired, corrections officials had to release him.

Saskatoon police placed him under a "peace bond," requiring Rattray to report his wherabouts. As Rattray has done on dozens of previous occasions, he violated orders imposed by the justice system and fled. He was at large until January, when he was arrested in connection with Parks' death.

It's just so weird how this stuff happens, eh? Completely out of the blue! No one could possibly have predicted it!

U of T Centre for the Legal Profession

Like a big dope, when I wrote this post and queried where the Canadian equivalent of Stanford's Center on the Legal Profession was, I completely managed to overlook the University of Toronto's own Centre for the Legal Profession.  The U of T CLP has lots of good stuff at its website, including this paper by Adam M. Dodek, which surveys academic writing on Canadian legal ethics (which includes lots of jumping-off points for anyone looking to do graduate work in that area).

The U of T CLP is also hosting (on Friday, February 20, 2009 - i.e., today) a Symposium on Lifelong Learning in Professionalism which will be webcast.  (Personally, I think that for purely alliterative purposes it should have been called the symposium on "Lifelong Learning in Lawyering".)

Free Academic Lectures (not as boring as it sounds)

Farhad Manjoo writes about Academic Earth which provides free access to videotaped lectures from premiere academics at prestigious institutions - it currently boasts "fifteen hundred videos from MIT, Stanford, Berkeley, Harvard, Princeton, and Yale".  (I should also note that Oxford launched its own portal at iTunes U, which provides access to lecture and interview podcasts.)  As Manjoo notes, perhaps the best part is that "Academic Earth doesn't require you to participate in weekly discussion sections, chemistry labs, midterms, essays, or final exams".

"we should do so based on facts"

Slate publishes the useful "Five myths about prison growth" which should be required reading.  The lessons for Canada are somewhat oblique since it focuses on US prison numbers, but since much of the Canadian debate on sentencing tends to consist of pointing to the US and shrieking (see, e.g., the Toronto Star's coverage discussed here).  The most relevant bits from the Slate piece:

Myth No. 1: Long sentences drive prison population growth. ... Not only is the absolute amount of time served low, in general, but in many states that amount remained flat over much of the 1990s. So what is actually driving prison population growth? Admissions. Far more offenders who in the past would have received nonprison sentences are being locked up for short stints, driving up the overall population.

Myth No. 2: Low-level drug offenders drive prison population growth. ... Only 20 percent of inmates in prisons (as opposed to jails) are locked up for drug offenses, compared with 50 percent for violent crimes and 20 percent for property offenses ... if we were to release every prisoner currently serving time for a drug charge, our prison population would drop only from 1.6 million to 1.3 million.

Myth No. 3: Technical parole and probation violations drive prison population growth. ... the number of parolees returning to prison is rising only because the number of people out on parole is rising.

Myth No. 4: In the past three decades, we've newly diverged from the rest of the world on punishment. ... if we look back historically at the lockup rate for mental hospitals as well as prisons, we have only just now returned to the combined rates for both kinds of incarceration in the 1950s [emphasis added]. In other words, we're not locking up a greater percentage of the population so much as locking people up in prisons rather than mental hospitals. [BT: and guess what you can correlate "the 1950s" and "the 2000s" with?  Right - lower crime rates.  Why, it's almost as if putting criminals in prison has some kind of bizarre, totally unknowable effect on the crime rate...]

Myth No. 5: The incarceration boom has had no effect on crime levels. ... We have to ask what the crime rate would have been but for a given number of prisoners, and simple population trends cannot answer this. The best numbers available, controlling for a host of challenging statistical problems, suggest that the growth in prison populations contributed to up to 30 percent of the crime drop during the 1990s.

[UPDATE: I had a snarky conclusion to this post which was entirely gratuitous, so I've deleted it.  Suffice it to say it's nice to have these "myths" and the counter-evidence collected in one spot.]

"things we really need"

When, in response to rising crime in Toronto schools, the police suggested putting officers into the schools in order to provide some discipline (since the teachers were obviously unwilling or unable to provide it), there were the usual howls of outrage from the usual suspects:

The idea of police Chief Bill Blair – with police picking up the tab – ran into opposition from a handful of trustees and parents, who felt uniformed, armed officers were no solution to the safety troubles in schools. A panel headed by lawyer Julian Falconer, created in response to the shooting death of Jordan Manners in May 2007, recommended better police-youth interactions, although Falconer has said he opposes armed officers in schools. No officer has been stationed at C.W. Jefferys Collegiate, where Manners was killed.

Trustee Sheila Cary-Meagher, a vocal opponent, said despite the new statistics, armed officers are no solution. "The idea to bring (armed) cops into schools breaks my heart," she said. "It's so against the principle of education.

(As an aside, I think it's sweet that the "idea" of cops in schools "breaks her heart" - the actual commission of violent crime in schools, not so much.)

So, once the adults got around to being adults, they sent in the police.  Mirabile dictu, guess what happened?

The 22 Toronto public high schools assigned a police officer are reporting a drop in suspensions and criminal charges against students...

Funny how that happens...

"Public Interest Responsible Journalism" Defence

The Supreme Court of Canada yesterday heard oral arguments in the Cusson v Quan case (the Ontario Court of Appeal decision can be found here).  My colleague Ron Caza is representing the plaintiff in this matter, and the Court of Appeal decision plays a major role in the dissertation which I'm currently drafting, so I'm going to reserve my comments for the moment (besides which, spending time commenting on oral arguments rather than the final decision is akin to commenting on the planning of the wedding, rather than waiting to see how the wedding itself turns out). 

Suffice it for the moment to say that I'm extremely skeptical about the value or advisability of incorporating into Canadian law a "public interest responsible journalism" defence as the Court of Appeal in this case did - the defence doesn't accomplish nearly as much as its proponents seem to think it does, and could in many ways have results which are inimical to the interests they want to promote (quick hint: any time a court admits that it is moving "away from truth" (see para 141), that's probably a solid indication that what they're doing is a bad idea).  Regrettably, I think the dominant trends in defamation law (including the Supreme Court's own decision in WIC Radio) point towards the adoption by the SCC of the PIRJ defence, or something akin to it.  That being said, it is refreshing to see the level of skepticism raised by the Supreme Court justices, as recounted in the Star story linked to above (e.g., "Judge Louise Charron was skeptical, saying the media have never produced evidence of "libel chill"").

Needless to say, my views on the PIRJ defence are decidedly in the minority amongst commentators.  Howard Knopf comments here, and contributors to The Court offer thoughts here and here.

"the authors played a similar game"

This is a decent example of why it's hard not to love Colby Cosh.

"the most dangerous libel decision in decades"

This is interesting, if disturbing (well, for US readers):

A bedrock principle of libel law is that truth is an absolute defense. If what you say about someone is true, the person cannot win a libel case against you, even if you defame them. The federal appeals court in Boston put a jackhammer to the bedrock this week.

As Robert J. Ambrogi explains in further detail, the US federal Court of Appeals for the 1st Circuit has evidently concluded (in Noonan v Staples) that "even a true statement can be subject to a libel lawsuit if it was said with actual malice".  Yikes.

As I pointed out in Ambrogi's comments, such a decision, if allowed to stand, would have the effect not only of overturning a basic axiom of US defamation law, but will also bring US defamation law much closer to that found in Quebec where a true statement can be defamatory if it was published with intention to injure and there is no public interest in the publication (see Prud'homme v Prud'homme [2002] 4 SCR 663 at paras. 36-37).

UPDATE: Ambrogi has posted a follow-up, which provides lots of links to further comments on the decision.

"the reason is simple"

My favourite thing about this 1,400-word article in the Toronto Star on the Khmer Rouge and their lunatic genocide against the Cambodian people is that it manages not to use the words "communist" or "communism" even once.

UPDATE: We get results!  Today's Star story (from the AP) calls the Khmer Rouge, in the first sentence no less, "ultra-communist".  (I was just kidding about getting results - nobody reads this blog.)

"a perhaps hypertrophied sense of its own importance"

Because he's bunches smarter than me, Paul Wells rather nicely articulates what I've been yammering on about when it comes to newspapers and magazines:

In a lot of cases, I think retrenchment makes good sense: while it may once have been possible to put out a bit-of-everything product that everyone in your market area would pay to read occasionally, in many cases those days are simply gone and they are really not coming back. It’s actually safer (sometimes!) to abandon most of your readers because they have already abandoned you, and fall back to a defensible niche where you can provide unique value to a smaller group that takes a more active interest in a narrower set of topics.

Yes.  As an aside, can I ask who else thinks that Newsweek's plan to re-tool itself so that it has "more photos and opinion" (a story first reported two months ago in the WSJ and then, bizarrely, just picked up this week by the NYT) is completely suicidal?  In what world are you living that it constitutes a logical business plan to think "hey! you know what we should do? compete with all the free opinions and images out there by... wait for it... printing more of it and... wait... steady... charging for it!  guys?"

Taken from the Times story, if this doesn't perfectly encapsulate what is wrong with the people running Newsweek, nothing possibly could:

Editorially, Newsweek’s plan calls for moving in the direction it was already headed — toward not just analysis and commentary, but an opinionated, prescriptive or offbeat take on events.

Nice.  So, watching it's circulation and ad numbers collapse, Newsweek looks at what it's been doing (i.e., offering "an opinionated, prescriptive or offbeat take") and decides that it needs to do more of it.

Interview - Damian Brooks

I like talking to interesting people; I also like reading interviews of interesting people. So, interviews are one of things I’ve long wanted to feature at this blog. This is the first of what will hopefully be a whole bunch.

I don’t remember the exact time I first met Damian Brooks, but it was almost certainly about four or five years ago at a gathering of Toronto-area bloggers. At the time, these affairs (I’m pretty sure this was before I managed to coin the term “blogstravaganza” to describe them) tended to be VRWC congregations at a downtown bar, with the first few minutes of discussion taken up with lots of “I really wouldn’t have guessed that you looked like that. We were conservative political bloggers writing at the tail end of more than a decade of Liberal government and amid the ongoing news coverage of the wars in Afghanistan and Iraq, so there was a bit of an insurrectionist stance at these get-togethers. Mostly, I was just happy to see that there were so many other people who were bald. Damian Brooks was one of them, so we got on famously and have continued to meet up for drinks and lunch over the years.

When I first met him, Damian was blogging mostly about politics (ah, political blogging – does anyone remember laughter?) at Babbling Brooks; subsequently, he started Canada’s biggest and best milblog, The Torch, which rather adroitly describes itself as “a group weblog focusing on the Canadian military”. Over the years The Torch has garnered considerable respect, from readers, Canadian Forces members and journalists, as a source for detailed, considered writing about the Canadian Forces and media coverage thereof.

A couple of years back Brooks mentioned to me that he had been talking to some people at the Department of National Defence about potentially going to Afghanistan as an imbedded blogger; I was surprised to hear about it – not so much that DND was interested, but that Brooks, who has a young family, was willing to go into a war zone… after all, blogging about the military is his hobby, not something he gets paid to do. Things were quiet about that proposal for a while, until in January 2009 I suddenly started seeing posts indicating that Damian was on his way to Kandahar Airfield. All of his posts about that trip are accessible in a list on the right-hand side of The Torch – here is the first one.

BT: Let's start at the end: having come back from Afghanistan and had a chance to digest everything you saw and heard over there, has anything you learned there changed your views from a policy or political perspective?; As an example, did you go there thinking "this is winnable" and come back thinking the same thing or something different?

DB: No, I don't think the experience really changed my big-picture opinions about Afghanistan and the necessity of the mission there. I still think the international community can and should help Afghanistan become a functioning state. Whether or not we will remains an open question - it's about staying power, and I'm not sure we have enough of that throughout the West.

BT: You've had a bit of experience in the CF [Canadian Forces] - at any point (say, when you were up in the helicopter);did you think to yourself "damn, this is something I should have stuck with", or was your reaction more along the lines of "oh my god, I'm glad I got out of this and I couldn't imagine being over here permanently"?

DB: I have little "man, I miss the military" moments all the time. Post 9-11, I had hundreds of little talks with myself about getting back in, either as Reg Force [Regular Force] or as a Reservist. But I've come to the conclusion that I can actually contribute more and maintain a better work/home balance doing what I do.  I get e-mails and phone calls regularly from serving members who say "thanks for saying what we can't." That's pretty gratifying. I couldn't communicate the way I do if I had a DND [Department of National Defence] leash on me. But yes, I do miss certain aspects of it. As a friend of mine says, "The company of soldiers is a tonic to the soul."

BT: Did you get a chance to speak to any of the other journalists you were there with about their craft? If so, what did you pick up from them in terms of writing or reporting? What was your general sense of them - were they individuals who had a particular interest in the military or foreign affairs, or was this just one assignment in a string of assignments for them?

DB: The trip was officially called a Regional Media Familiarization Visit, so I went over with three paid journalists from smaller markets (Barrie, Kingston, Quebec City).  Ian Elliott from the Whig-Standard has the military as one of his regular beats, but this was only part of what all of them do in the way of reporting.  Of course, nobody other than Graeme Smith gets to spend enough time over there to have it become commonplace or "normal."  So it was a big opportunity for them.  We really didn't bump into any of the embedded media other than Darah Hansen from CanWest, who seemed quite nice and very naturally curious - a good thing in a reporter, I suspect.  I wouldn't make nearly as good a reporter as they do, but the CF and this particular mission are something I care deeply about, and something I know a bit more than the average Canadian about - including most journalists.  So I was like Brer Rabbit in the briar patch.  The biggest difference for me is that I realized once again that blogging isn't the same as MSM journalism: it's more subjective, has different conventions, and - this is the big one - there are no editors or producers breathing down your neck as a blogger, telling you what's worthy of a story and what's not.

BT: Do you think your own writing style changed as a result of this trip?  I thought your writing in the two-part "Patrol" posts was brilliant - you had this really detailed, granular approach to the reporting that really conveyed a sense of place.  Blogging generally doesn't lend itself to "reportage"-style writing like that, so was that something you'd been working on?  Are you approaching your writing in a different way now that you've returned?

DB: Thanks for your kind words about my "Patrol" posts - I'm pretty proud of those.  I don't know that I did anything consciously different for those than I would normally.  It's just that most of the time, when I'm sitting at a desk in Canada, I'm not doing primary-source reporting.  I'm generally playing whack-a-mole with the MSM reporting, or adding context to an existing story, or something else that involves building on someone else's work.  So, for me, the big difference between my Afghanistan posts and the rest of my work on the blog isn't so much the style as it is the opportunity to put first-hand experiences forward for a change.

BT: I thought one of the most interesting stories you blogged about was the training work that Kevin Cluett was doing for Afghan prison guards, which afforded readers an opportunity to see a process that's very much "in the background" of what Canadians envision about our mission.  I imagine that one of the primary goals of the military mission is to create the "breathing space" that enables more prosaic programs like the guard-training one to be carried on - did you get a sense from either Cluett or anyone else you spoke with that that goal was being achieved/is achieveable in the short- to medium-term?  Or is there a sense that Cluett's work is very nice but once NATO forces leave it will all be for naught and the on-the-ground results of these sorts of civil society programs are going to disperse really quickly?

DB: Everyone on the ground seems to understand that Afghans will have to be the ones to solve their problems eventually.  As the Deputy Commanding Officer of the Task Force, Col Cade said "Our job is to buy time for the Afghans."  And we're doing that.  But the question is whether or not we're going to be able to buy enough time for their institutions to get set up and functioning at even basic sustainment levels before we leave.  So one of the things a guy like Kevin Cluett is doing is training sharp students of his to become trainers themselves.  There were a couple in the class I watched who were acting as assistant instructors, and when we pull out, they'll have to step in, ready or not.

BT: What were the reactions of those around you when they heard you were taking your trip?  Not immediate family, but co-workers, friends, etc.  Did all of them know about your blogging and the connection of the trip to The Torch?  Were they apprehensive for your safety, excited, interested, think you were nuts, etc.?

DB: I only let a few co-workers know about the trip beforehand.  Due to the restrictions from DND in what I could talk about, it just seemed easier that way.  The reactions when I got back were the full range you'd expect: from "you're nuts" to "wow, that must have been incredible!"  The friends who knew about the trip were apprehensive and worried, but they also know how important the work is to me, and how long and hard I'd been trying to get over there.  But given how stressful it was for everyone who cared about me, I don't think I'll be going back anytime soon.

BT: Did Afghanistan strike you as a place you'd want to travel to again?  I don't mean another trip to visit the CF, I mean, can you ever envision yourself or other people wanting to visit Afghanistan as a destination in itself?  Or does the current state of the country make that seem like a bit of a pipe dream?

DB: It's funny, I was actually telling relatives last night that I'd love to go back one day when the country's more safe for travel and do a bit of hiking in the mountains.  The landscape is beautiful in a very stark sort of way.  But it's going to be quite awhile before that's a realistic proposition, and I might be a bit too old to really rough it by then.

BT: Milblogging really hasn't taken off in Canada to quite the same extent as it has in the States - what are your thoughts on that?  Is it the result of an institutional mindset at the CF, a broader cultural thing among Canadians, or is it just that the numbers aren't there (i.e., in the US you have more citizens in the Armed Forces on a per capita basis)?

DB: I think it's all those things you mentioned plus at least one other: the legal climate.  CF members are far more legally constrained in their speech than their American counterparts.  One of my hopes in setting up the blog in the first place was to be first into the pool, and saying "the water's warm, come on in!"  Unfortunately, it hasn't worked out that way.

BT: Let's talk about blogging in general - you evolved from a sort of general "political" blogger into a milblogger - in terms of your own personal development, do you think that, if the Afghanistan mission were to end tomorrow, would the motivations behind your work on The Torch cease?  In other words, is The Torch a function of concerns arising out of media reporting on Afghanistan, or will it have a life beyond the conflict itself?

DB: No, I can't see the blog winding down with the Afghan mission, whenever that may be.  We talk about the CF because not enough media do in any sort of informed way.  That need isn't going to cease with the end of the Afghan mission; in fact, it might actually increase.  If the MSM stops taking as much of an interest because we're not fighting a shooting war, it will leave a lot of slack for those of us who focus on the CF to pick up.  And it will be especially important at that point.  Remember, part of the reason for the "decade of darkness" that Gen Hillier spoke of was that the Canadian public didn't understand or appreciate what the CF was doing for the country during the Chretien years.  And that ignorance and apathy on the part of the voter is what allowed the Liberals to cut the CF to the bone.  I don't want to see that happen again.

BT: A fair amount of blogging, especially "political" blogging, tends to be reactive: "I read this in the paper and here's why I thought it sucked".  Your trip to Afghanistan was obviously of quite a different nature - adopting a more proactive, forward stance.  Any thoughts on whether that's something you're going to pursue in the future?  Do you have either the inclination or the time to pursue a more journalistic/reportage approach at The Torch?

DB: Unfortunately, I don't have the time to devote to doing a lot of proactive digging, so The Torch is more of a counter-puncher by necessity.  When we can do original reporting, we will.  But the bread and butter of the blog will likely remain rebutting or adding context to MSM pieces.

Outsourcing and Offshoring

The Lawyer's Weekly published an excellent piece about the practices of outsourcing and offshoring legal work, highlighting some of the business and ethical concerns raised.  The Ethical Lawyer blog had a nice post about those issues last year, entitled "Legal offshore outsourcing: An ethical pandora’s box?"

'neither responded to, nor acknowledged"

There's really no fair way to describe this except as a dereliction of duty:

British Columbia Supreme Court Chief Justice Donald Brenner says he has had to cancel some trials in his province because of the Conservative government’s delays in appointing judges to his court.

Meanwhile nine of the 17 judicial appointments advisory committees (JACs) across Canada which vet judicial candidates for the federal Minister of Justice — including the B.C. JAC — have been inoperative since their two-year mandates expired October 31, 2008.

Ensuring the smooth operation of the judicial system is one of the sine qua non criteria of good government.  This seems like an aberrational blip ("there were a large number of retirements and supernumerary elections" from the BC courts last year), but that there are still seven vacancies is troubling.  That there are 34 vacancies on the federal bench is also disturbing.

On a happier note, and buried way, way down in the story is that the absurd hysteria which accompanied the minor tweaking of the Judicial Advisory Committees a couple of years back was, well, absurd hysteria:

Chief Justice Finch praised the work done by the defunct B.C. JAC, notwithstanding fears expressed two years ago by the Canadian Judicial Council that the Harper government’s changes to the committee’s composition had imperiled the JACs’ independence.

“I can only go by the quality of appointments made to our courts out here, and I think they have been overall very, very good,” Chief Justice Finch observed. “In terms of the appointments to our court I would say they have been uniformly excellent. I have absolutely no complaint about the quality of any judge who has been appointed [to the court of appeal] since the committee was revised.”

Expect that to not be mentioned anywhere else.

David Post over at Volokh has a nicely subtle analysis of the Shepard Fairey / Obama Hope Poster dispute (previously discussed here and here).  Post concludes there wouldn't be a finding of infringement, because nothing to which a copyright interest attaches has been copied:

The photographer has no protection for depictions of what the world (including Pres. Obama) actually looks like, but only in the artistic and creative decisions that are given visible expression in the photo. There's certainly some of that in the photo — the background, for example, and perhaps the lighting and exposure that Garcia used. But what Obama looks like, and the tilt of his head, are not protected original elements of the photo, because they do not "owe their origin" to the photographer. And to my eyes, the things that Fairey copied are precisely those, unprotected elements of the photo. He didn't take the background, and he didn't take the lighting - those are the things he changed. What he took was Obama's face, and the tilt of his head — not infringment, to my eyes.

That's an interesting argument - under Canadian copyright law I think the counterargument would be that (assuming Fairey actually copied the Garcia/AP photograph) use of the Barack Obama image contained in the photograph falls afoul of the copyright owner's exclusive right to "produce or reproduce the work or any substantial part thereof in any material form whatever", where "the work" is "the photograph" and cannot be artificially atomized into constituent "parts" (e.g., Obama's face, the background, the lighting, etc.).  In other words, contra Post, the copyright owner does not have copyright solely in the elements of the photo (though he or she may have that as well) but in the totality of the photo, and lifting the "face" portion of the photograph cannot be construed as something apart from lifting the "photograph" itself.

The Decoupling of Journalism Pt 2

A few days ago I wrote this post which argued that, apropos of the current conversation about "the future of the news [delivery industry]", there will likely be a "decoupling" of "journalism", news and the other components of what currently constitutes the "newspaper" (i.e., if you're interested in "news", do you really need a "gardens" or "cars" section delivered to your door?).  Mathew Ingram points to people who are much smarter than me making a somewhat similar point:

As mass journalism markets unbundle and become niche markets, news operations, if they are to survive, will have to join the niche movement rather than fight it. Rather than think in terms of a circulation of, let’s say, 100,000, they should think in terms of 100 niche markets of 1,000 each and form membership communities around those niches.

Mathew also had a nice "link-a-thon" post which collects arguments from all different sides of the discussion (including Clay Shirky, Chris Anderson, Stephen Brill, Walter Isaacson and David Carr), here.  I left the following comment which I'd like to reiterate here:

In reading all of the various arguments, it seems that people are misconstruing what they are actually arguing about - or, perhaps the comment is better rendered as "what they should be arguing about". Kinsley comes close to articulating it, but Shirky is right on when he says in an aside that "if small payment systems won’t save existing publishers in their current form, there might not be a way to save existing publishers in their current form" - unfortunately, he doesn't really follow the point up.

Despite their protestations, one side of the discussion is not arguing in favour of saving "the news", they are arguing in favour of saving "the existing mechanisms by which the news is delivered". Those are two entirely separate arguments. There might be a cogent argument which shows that the "existing mechanisms for delivery" are the only way to provide "the news", but I haven't seen that - instead it's just an unquestioned (if latent) assumption.

As Matthew Gertner plaintively asks, "Can you imagine a world without the well-crafted prose of the Economist or New York Times, without the type of informed journalism that depends on the deployment of trained professionals across the globe? I certainly can’t." Which perfectly illustrates the mindset I'm talking about: why is it that "informed journalism" necessarily requires the Economist or New York Times, with their respective massive cash-eating organizations and physical footprints? If the "news" industry *really* can't imagine a world without them and, to take an example, a giant Times Square headquarters, then it will expire not just because of a creaking infrastructure, but because of a failure of imagination.

Kindle 2 and Reading Books Aloud (Out Loud?)

One of the more enjoyable aspects of following copyright law, particularly over the last, say, twenty years, is that as technology changes we witness extensions or applications of the law which were likely literally unthinkable to previous generations of lawyers.  Take, for example, the new Kindle 2 e-book device and its capability of reading aloud the text of an e-book which is loaded onto it.  We can all be fairly certain that nobody, when drafting or revising the Copyright Act, was thinking "so, d'you think this language will cover a situation where someone invents a device that lets you 'download' a digital version of a book, read it and will even, if you're so inclined, read the book aloud?"  That there now is such a device has prompted a variety of responses:

• the Authors Guild is "studying [the] matter closely"

• Howard Knopf describes the Authors Guild's concerns as a "contender" for "most excessive copyright claim of the year"

• Simon Fodden at slaw looks at the legislation and concludes that while using a Kindle to read a book to an audience would infringe copyright, "there’s the issue of when a reading is a performance and when it’s simply a (licit) private act"

• finally, Canadian sci-fi author Robert J. Sawyer, one of the good folks who has copyrights that would actually be affected by this whole endeavour, has the following, rather well-phrased, observation (which prompts a rather vigorous debate in his comments):

I'm not saying that, ultimately, the right to have text read aloud electronically should be limited; I am saying that the way in which the publishing industry and traditional rights issues are being trampled without consultation -- whether it's Amazon potentially cannibalizing audio-book rights (and the irony that they now own Audible.com is not lost on me) to Google just goin' ahead and digitizing my books, and everyone else's, without so much as a "May I?," is pernicious. The Authors Guild is right to be objecting, and Amazon was wrong to do this without permission; all stakeholders need to be involved in the discussions -- including authors.

Incapacitation

The 2008 Throne Speech of the British Columbia government contained the following statement:

British Columbians want to understand why sentences in their province tend to be shorter than in other provinces for crimes such as homicide, theft, property crimes, fraud, impaired driving and drug possession.

There were some questions raised as to whether the perceptions of British Columbians matched the facts - did sentences in British Columbia "tend to be shorter than in other provinces" for the list of specified crimes?  Well, that should be fairly easy to determine, right?  See what the sentences are in British Columbia for the listed crimes over a specified period of time, see what the sentences are in other provinces for those same crimes over that same period of time, compare. 

Simple, right?

You clearly don't know any criminologists.

Here [pdf] is what the criminologists managed to come up with: 94 pages (!) of tables, charts, graphs, "box scores" (their term) and wording all of which manage to come up with only this "conclusion" (which took five pages of executive summary to get to):

British Columbia in its sentencing does not look dramatically out of line with the portion of the rest of Canada for which we have comparable data.

Of course, in order to get to that "conclusion", they have to work remarkably hard to avoid their initial conclusion (see pages 25-30) that sentences in BC are in fact more lenient.  In order to "get around" this conclusion, which is, as they note, supported by the available data, they start jiggering the data into increasingly implausible and artificial meta-categories of crimes.  So, instead of comparing "homicide" sentences to "homicide" sentences (which would be the obvious point of comparison if you look at the statement from the speech which prompted the entire enquiry), they start comparing the broader category of "offences against the person".  When even that doesn't quite get them where they need to be, they construct new categories of comparison by dividing sentences into those which are longer than 3 months and those which are longer than 6 months.  By that point, the analysis has strayed so far from what the initial statement said that it bears almost no relation to it and serves the useful purpose of being capable of interpretation into whatever conclusion the criminologists are aiming for.

[UPDATE: I think my point in the foregoing paragraph needs to be put more bluntly: on page 28 of the report, the actual "conclusion", based on the plain English reading of the statement from the Throne speech, is reached: "British Columbia offenders sentenced to prison appear to be getting shorter sentences".  There then follows 66 pages of intricate hermeneutics, with the data being re-interpreted, massaged, re-cast and generally diddled until the "correct" conclusion (i.e., "leniency? what're you talking about, leniency?") is reached.]

But what's of more interest is this passage, found on page 8.  The passage only makes sense if you bear in mind that, for many criminologists, they absolutely refuse to countenance the proposal that putting convicted criminals in jail is an effective way to prevent crime.  Here is the passage:

Incapacitation has quite different problems.  Though it is logically true that a person who is incarcerated is not offending in the community, this crime control strategy has its own limitations.  In the first place, incapacitation (as well as deterrence) generally only becomes relevant as a crime control strategy when the proposal is that a sentence be disproportionately harsh.  Second, even if policy makers were willing to violate the requirement of proportionality in sentencing, the problem that is then faced is that of identifying in advance those people who are likely to be, in the future, high rate offenders deserving of sentences based on incapacitation.

Incapacitation is based on a fairly simple notion: there are people who commit crimes; if you put those people in jail, they are separated from the community, and are therefore no longer capable of committing crimes.  Ergo, at the risk of repeating myself, put them in jail, and they won't be committing crimes.

That's a little hard for the writers of this report to accept.  So we end up with this passage, which I'm re-rendering for purposes of discussion:

Incapacitation has quite different problems.  Though it is logically true [A] that a person who is incarcerated is not offending in the community, this crime control strategy has its own limitations [1].  In the first place, incapacitation (as well as deterrence) generally only becomes relevant as a crime control strategy when the proposal is that a sentence be disproportionately harsh [2].  Second, even if policy makers were willing to violate the requirement of proportionality in sentencing [3], the problem that is then faced is that of identifying in advance [4] those people who are likely to be, in the future, high rate offenders deserving of sentences based on incapacitation.

The passage is really quite a remarkable achievement.  In that it makes no sense.  To be snarky, note, as in [A], that when someone tries to dismiss logic from the debate, it's usually never a good sign in favour of their argument.  Oh, I get that logically someone who is incarcerated can't commit another crime, but we're operating here on a totally deeper level than mere "logic". 

Anyways.  The first bizarre element of the argument contained in the passage is that statement [2] simply (a) does not follow from, and (b) has no relationship to, statement [1].  Why are "disproportionately harsh" sentences the only ones which serve to meet the goal of incapacitation?  "Disproportionate" as compared to what?  If someone is incarcerated, they are incapacitated.  Period.  Full stop.  It doesn't matter whether you measure their sentence severity against that of someone else - they just can't commit a crime, regardless of what sentence someone down the hall is serving.  The two concepts have nothing whatsoever to do with each other.

But "proportionality" is only a rhetorical device to cloak their flimsy argument in pleasant-sounding platitudes.  Who doesn't want to be "proportional"?  It sounds so nice, so reasonable.  Let's be "proportional".  Again, however, measuring proportionality has no impact on the question of whether an incarcerated individual is incapacitated for the duration of their incarceration - they are.  Which is why [2] and [3] are nonsensical.

One of my favourites, however, is [4].  I quote: "the problem that is then faced is that of identifying in advance those people who are likely to be, in the future, high rate offenders deserving of sentences based on incapacitation".  Yes.  That does seem like a puzzle.  How could we possibly, out of the millions and millions of people who make up Canadian society, determine who among them will, at some vague unknowable point in the future, become "high rate offenders"?  Troubling.  Oh, wait a second!  I think I've stumbled upon a possible answer!  It's wacky, admittedly, but stay with me here: let's use the criminal justice system to determine who needs to be incapacitated!  Howzabout we use this new-fangled device called a trial to see who has committed crimes and who continues to commit crimes and then... wait for it... put those guys in jail for a good long time. 

Radical, I know; probably too dumb for the brow-furrowed analysts who are into this sort of thing.  But such overly-simplistic thinking might perhaps have saved our judiciary from the idiocy and embarrassment of having to answer for things like this:

Saying his city is plagued by a "ludicrous" trend that sees career criminals released back onto the streets despite dozens of convictions, Vancouver's police chief is calling for a 30-strikes-and-you're-out policy for the worst chronic offenders.

Or this:

At the time of the bank machine robbery, Edwards was under one of three previous lifetime bans from possessing firearms and had been out of jail just four months.

Or this:

A serial rapist who escaped custody and broke into a Toronto librarian's home, sexually assaulting her at knifepoint, has been spared from being declared a dangerous offender.

... Lavallee, 52, suffers from a psychosexual disorder and has raped seven women, mainly older than him at the time. ... He has 40 criminal convictions and has spent more than half his life in jail.

Or this:

He was convicted in June 2006 of aggravated assault, assault with a weapon and eight other charges of confinement and uttering threats for an attack on Misty Franklin, then 24.  Franklin's spinal cord was severed, leaving her paralyzed from the neck down.

The attack came three months after Fontaine was released from a Prince George halfway house, after serving four years for sexual assault and attempted murder in 1999.

He had earlier been convicted of twice assaulting another woman, beating her with a frying pan and stabbing her with kitchen knives.

I could go on.

None of this is complicated.  It's not nearly as complicated as the report is desperate is render it.  It's simple: some people commit crimes; we don't like it when people commit crimes, therefore we should find a way to stop them from doing so.  When people who commit crimes are in jail, they can't commit crimes.  I'll leave it to you to put it all together.

"there should be no doubt about the legality"

Now that's a litigation strategy:

Artist sues Associated Press over Obama image

An artist who created a famous image of Barack Obama before he became president sued The Associated Press on Monday, asking a judge to find that his use of an AP photo in creating the poster did not violate copyright law.

The lawsuit filed in U.S. District Court in Manhattan said street artist Shepard Fairey did not violate the copyright of the April 2006 photograph because he dramatically changed the nature of the image.

The AP has said it is owed credit and compensation for the artist's rendition of the picture, taken by Mannie Garcia on assignment for the AP at the National Press Club in Washington.

I discussed this story earlier here.  Seeking a judicial declaration is an audacious move, but it is a beneficial one not just for the tactical maneuvers which are occuring in the case - it will be nice to have an actual precedent set via court decision, rather than the matter quietly disappearing from public view by means of a negotiated settlement.

'left really with no other option"

An excellent illustration of just how tenuous the grip of "legislation" is on the behaviour of governments:

B.C. Liberals rewrite vaunted balanced-budget law

The B.C. Liberals returned to the legislature Monday to rewrite their championed balanced-budget law to clear the path for a deficit budget next week.

Yes - because when the law says something inconvenient, it's awesome to just, you know, change the law.  It must be nice to have the ability to alter the rules governing the performance of your job as you see fit and when you see fit.

British Association for Canadian Studies Conference

The good folks at the British Association for Canadian Studies were generous enough to accept my proposal for a panel at their Being, Becoming and Belonging: Multiculturalism, Diversity and Social Inclusion in Modern Canada conference, which is taking place here in Oxford at the end of March. My paper is entitled (actually, I suppose that should be rendered as will be entitled - still need to write the damn thing) “Free to deal as he may choose” – Why displacing “freedom of commerce” was a necessary condition to the creation of Canadian multiculturalism.  For a flavour of what it's going to look like, this was the proposal which I submitted.  I'll be presenting on March 30th - hecklers encouraged.

Stop me if you’ve heard this one before: A black man in Montreal walks into a bar and orders a drink; the bartender says, “We don’t serve your kind here, get out.

If you’re waiting for a punch-line, there isn’t one. That’s a true story – actually two true stories, separated by about sixty years. There’s more to the stories, of course – the first time it occurred, in the late 1930s, the Canadian legal system, all the way up to the Supreme Court of Canada, told Fred Christie (and, by extension, all Canadians) that the owners of the bar had every right to refuse to serve him just because they did not like the colour of his skin (in a perfectly Canadian twist, the court decisions also hinged on whether “beer” could be considered “food”). When it happened again in 2003, the Quebec Human Rights Tribunal ordered the owners of the bar in question to pay a total fine of $16,000. How virtually identical cases resulted in such radically different decisions is a function of the institutional mechanisms, legal structures and cultural discourses which were disassembled and then constructed in the intervening years.

Using as frames of reference the Christie case and the Viola Desmond incident in Nova Scotia, this paper briefly explores the Canadian history of how freedom of contract became sublimated to concerns about the deleterious and pervasive effects of discrimination, and describes how only with the advent of the Canadian Charter of Rights and Freedoms was Canadian common law irrevocably wrenched away from permitting discrimination housed under the guise of “freedom of contract”.

Photographs and Privacy

Via the Canadian Privacy Law Blog, news that the European Court of Human Rights has ruled (in Reklos and Davourlis v Greece) that a minor's right to respect for "private life" was violated when a hospital hired a photographer to take pictures of a baby without first obtaining the consent of the parents and then also refusing to give possession of the negatives to the parents. 

The decision itself is available here (only in French).

The press release (in English), which includes a description of the facts of the case, is available here.

The privacy right which was violated is contained in Article 8(1) of the European Convention on Human Rights:

Everyone has the right to respect for his private and family life, his home and his correspondence.

That right is subject to the limits contained in Article 8(2):

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

No similar decision is possible in Canada pursuant to the federal Charter of Rights and Freedoms (which doesn't recognize an explicit right to privacy), but the ECHR decision is very similar to that in the Supreme Court of Canada decision in Aubry v. Éditions Vice‑Versa, [1998] 1 S.C.R. 591, which recognized that the right of privacy accorded pursuant to section 5 of the Quebec Charter of Human Rights and Freedoms includes a right of control over the use of one's image, even if, as in Aubry, that image is photographed in a public place:

The right to one’s image is an element of the right to privacy under s. 5 of the Quebec Charter. If the purpose of the right to privacy is to protect a sphere of individual autonomy, it must include the ability to control the use made of one’s image. There is an infringement of a person’s right to his or her image and, therefore, fault as soon as the image is published without consent and enables the person to be identified.

In Canadian jurisdictions outside Quebec, I'm not aware of any similar decision based on their provincial privacy statutes (the existence and extent of coverage of which varies from province to province) (though certainly the wording of some of the statutes is broad enough to contemplate a similar result), and no similar decision could be made under PIPEDA.

UPDATE: I should probably clarify what it is that is so, to use an imprecise term, radical about the ECHR decision from the standpoint of Canadian law (outside of Quebec): the breach of the privacy right is evidently not predicated on a "commercial use" - in other words, it appears to have been the taking of the photograph itself, and not any subsequent use of the photograph, which violated the privacy right.

Publishing, Promotion and Pain

James Adams, writing in the Globe, has a fun article on the travails of writers sitting helplessly back and watching in mute horror as their publisher fails to properly promote their latest book, while publishers vainly try to explain that they're doing everything they possibly can given budget and time constraints.  (The piece has prompted what I think is safe to describe as open-mouthed astonishment over at Y-Eh!)  Adams nicely captures the frustrations of both writers and publishers as they try to come to grips with (a) a publishing industry in the throes of a major structural realignment, (b) a fragmented marketplace, and (c) seemingly nobody having the faintest clue what to do next.  The comments at the Globe story are well worth a read, with contributions from happy authors, unhappy authors, self-published authors, publishers and the occasionaly grammarian.

The Salmon Arm Salute

Dean Beeby at the CP wrote an excellent, nicely detailed story about the Ontario Film Review Board, focusing on its recent decision regarding the social crudeness of a depiction of someone "flipping the bird".  The OFRB's own (rather informative) website is here.

The board, which classifies all mainstream films in the province, amended its manual so that the rude salute now will help knock a film from a General (G) designation into the Parental Guidance (PG) category.

The gesture, sometimes called “flipping the bird” or simply “the bird,” is rated the equivalent of an animal humping someone's leg, according to the manual's section on assessing the psychological impact of mainstream films.

And the “finger” is now classified as one notch more obnoxious than “a little bit of farting, belching” in the crude behaviours category, in the latest edition of the manual, obtained by The Canadian Press under Ontario's freedom-of-information law.

The gesture, though, is considered less obnoxious than a teenager vomiting and his friend urinating onto bystanders, say the arcane guidelines in the 32-page document.

"I get my news from the Internet"

Dave Kopel, writing in the Rocky Mountain News, ponders the future of a world "without traditional newspapers".  Based on his review of online coverage of a recent Colorado Avalanche hockey game as compared against the coverage provided by the (presumably) paper edition of the local newspapers, Kopel concludes that, absent newspapers, there will be a reduction of the availability of such content and all that will remain are the bland "official" offerings of the hockey organization itself and the less-informative writings of enthusiast amateurs.  Which may well be true, if the assumptions of Kopel's argument hold - but there's reason to think that they don't.

It is somewhat difficult to determine the precise contours of the assumptions behind Kopel's narrative, but they seem to be at least this: without paper editions of "newspapers", "newspapers" as a news delivery mechanism will cease to exist, which will lead to the collapse of the wire services (since no one will be around to purchase their content), which will lead to a collapse of "hard news" being reported since there will be no one around to pay the reporters.  But the first step in that argument is either manifestly incorrect or hasn't yet been proved to satisfaction.

Let's take the Christian Science Monitor, which is about to replace its print edition with an online edition - strictly speaking, it is moving to an "online first" model, where the daily print edition is being replaced not only by an online edition which is updated daily, but also a limited-run weekly print edition.  If I had to bet, it strikes me that that is the model which we will be seeing used most for publications of all kinds, from newspapers to periodicals.  It's just not immediately clear that there is either the need, the demand or the financial wherewithal to retain daily print editions for newspapers.  But abandoning daily print editions doesn't mean "a world without traditional newspapers", it just means a "world without traditional newspapers being printed on paper every day".  Will newspapers need to downsize editorial staff?  Yes.  Will the content they offer be significantly different from their paper edition forebears?  Probably, but as I described here, that's probably a good thing.  But will newspapers as a mechanism for news delivery "disappear"?  No - but their format will be different; not radically different, mind you, since we've been seeing this trend for at least a decade now.  The move towards a more focused approach to the delivery of "hard news" and "Journalism" will be better for those concerned about news and Journalism, and for readers, though of course it will be life-changing for those elements of the traditional newspaper which are ancillary to those core purposes (such as, to take a dumb example, restaurant reviews).

The Decoupling of Journalism

Walter Issacson has written a piece in Time entitled "How to Save Your Newspaper" (ht: Gardner).  It is one more in a long, long, long series of articles from numerous different outlets bemoaning the fate of journalism.  Or, more properly, Journalism (being, for the sake of argument, "groundbreaking investigative projects, searing features, hard-hitting crusades and biting editorials").  It also involves a bit of a bait-and-switch, encapsulated in the first paragraph of the story and also in its larger structure.  Here's the first paragraph:

During the past few months, the crisis in journalism has reached meltdown proportions. It is now possible to contemplate a time when some major cities will no longer have a newspaper and when magazines and network-news operations will employ no more than a handful of reporters.

As noted above, the title of the article implicitly talks about the need to save your local newspaper; but once you get to the final paragraph of the article, you end up with this:

I say this, too, because I love journalism. I think it is valuable and should be valued by its consumers. Charging for content forces discipline on journalists: they must produce things that people actually value. I suspect we will find that this necessity is actually liberating. The need to be valued by readers — serving them first and foremost rather than relying solely on advertising revenue — will allow the media once again to set their compass true to what journalism should always be about.

What's my point?  That Issacson keeps mistakenly eliding the difference between newspapers and Journalism.  We're used to conflating the two because for a long period of history newspapers were the primary medium via which Journalism was communicated.  But to the extent it was ever true that newspapers = Journalism, that era has long since passed into that good night.  Journalism comes at us from many sources: television, periodicals, the internet.  And anyone who thinks a newspaper is Journalism clearly hasn't purchased one recently: your average edition is a gnarly mish-mash of news, op-eds, entertainment reviews, comic strips, product reviews, real estate listings and a dozen other unrelated components with Journalism thrown in occasionally. 

Which isn't a bad thing, of course - I rather liked newspapers, but they just increasingly service a need which is disappearing, namely, a single source provider of all these different things.  What conceivable reason would there be for buying a newspaper to get a sense of what their "entertainment reporter" thinks about the latest release from U2 or last night's concert by Bruce Springsteen?  Anyone can find dozens, even hundreds, of specialized outlets offering the exact same content.  If I want to know what's happening Thursday night next week in my town, why would I check the newspaper?  If I need a review of the latest Toyota, in what possible way is the newspaper necessary to provide me with something that I can't get elsewwhere?

Which means that the newspaper form is likely, at some point, to become obsolete - but its constituent parts will certainly live on via other mechanisms.  It's not that people don't want or need what newspapers offer, it's that they don't want or need to get them in newspapers.  Journalists have been bemoaning the impending doom of investigative journalism (ie Journalism) since at least the late 1970s, and it hasn't gone anywhere - and it's unlikely that it will go away anytime soon.  But it strikes me that the need/desire for "investigative journalism" to be bundled next to the food section which is beside the auto section which is across the page from the sports section and all of which is backed by, say, [insert your favourite useless op-ed columnist here]'s idiotic scribblings, will likely expire rather rapidly.

Lawyer CLE

Shaunna Mireau at slaw has a detailed post about continuing legal education (CLE) for lawyers, and the various approaches (mandatory, advisory, voluntary) adopted in different jurisdictions.  Ontario, for example, opts for a somewhat odd blend of the latter two: CLE is not mandatory, but there is a recommended "minimum" amount, and if you do undertake any CLE you are required to report having taken it - which seems to completely misapprehend the point.

I think many lawyers view CLE requirements as slightly obtuse: impose a requirement, fine, then I'll just attend a couple of lunch seminars at which I'll concentrate mostly on the construction of my dining (do I need an extra plate for the dessert, or can I squeeze it all onto one? do I need to come back and get a drink, or can I balance a can of pop between my pad of paper and plates?), tick off the appropriate box when it comes to reporting time and nobody is really any further ahead in the whole charade.  Which is unfortunate: mandatory CLE is an excellent opportunity to (a) step away from the grind of daily work, (b) enhance your skills and (c) potentially contribute to the development of the profession.

One of the more interesting things I've been studying is the UK's scheme for relicensing and recertification of doctors - in short, every five years doctors will be obliged to demonstrate their continued fitness to retain their medical registration.  That approach would bring howls of protest from lawyers, but, while the UK approach is the product of a particular series of circumstances, it's not an entirely unreasonable demand that society makes on professions.  In order to avoid that result, lawyers should be more prepared to undertake in good faith less intrusive initiatives, which would make the argument for the necessity of the more stringent approach much less convincing.

"undeniable cultural impact"

It's a little surprising that this has taken so long to become a legal matter, though I suspect it's because the AP didn't want to endure the potentially poor optics in the middle of an election:

The Associated Press says it wants credit and compensation for use of a copyright-protected photo in the creation of Shepard Fairey's widely imitated "Hope" campaign poster for Barack Obama. ... Fairey reportedly found the image through an image search on Google.  AP says the photo was taken April 2006 by Manny Garcia, who was on assignment for the wire service, at the National Press Club in Washington, D.C.

Fairey's attorney will be asserting a fair use defence:

"We believe fair use protects Shepard's right to do what he did here," says Fairey's attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. "It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP."

It's worth noting that, under Canadian copyright law, this would likely be an open-and-shut case of infringement: our "fair dealing" concept is simply too restrictive to accommodate the argument (the statutory regime for fair dealing is here and I went into some details about the fair dealing analysis here).  It doesn't strike me that this is a particularly strong case for fair use, either, but at least the argument can be advanced in the US.

Feed Reads 02.04.09

Still cleaning up a whole lotta RSS backlog, so here's some stuff I thought was interesting from way back in 2008:

• "Do 1.3 million people really earn their living from eBay?"  Nope.

• Mathew Ingram on file-sharing and books.

• Mary Abraham asks how "Gen Y" will affect big law firms (plus a follow-up post here).  Correct answer: they won't in any meaningful way.  But the technology associated with their arrival and the economic changes which are coincidentally occurring at the same time have a better chance of doing so.

• Simon Fodden pointed out a wicked-awesome online medieval law resource.

• Mathew Ingram (him again) has a link-rich post on whether comments qualify as "content".

• In the "good intentions" file, I suppose we should add McGill's Centre for Intellectual Property Policy effort at a new Copyright Act wiki (brought to my attention by slaw).  Unless I'm missing something, it appears to have died a rather ignominious death via lack of attention.

• One of slaw's all-time best posts, by Joel Alleyne, takes a look at the myth of the "paperless office".

• Yep, slaw again, this time with a post about the lunatic attempt by Major League Basebell to exercise control over the names and statistics of players.

More to come...

Facebook Friends

The posts at Volokh and at PrawfsBlawg about the "ethics" of law professors (and academics more generally) being "Facebook friends" with their students has prompted long strands of commentary at both sites.  One matter of the debate which seems not to have been articulated is that Facebook is simply a platform for relationships - not a new relationship in and of itself.  To the extent that there are "ethical" or other professional concerns with relationships between professors and students, they apply in exactly the same fashion whether the relationship exists on Facebook or not.  If a friendship or relationship would be inappropriate when taking place in the student lounge, then that same friendship or relationship would inappropriate, and to the exact same extent, if it takes place on Facebook.  I think there's decent reasons for professors and students to preserve their social interactions at some distance, but Facebook has no bearing on that conclusion.

"this course is unique"

Jeremy de Beer offers a look at the kind of innovation which can be unleashed when a motivated prof meets enabling technology.  Looks awesome.  What's particularly interesting is that the course he is offering ("Global Intellectual Property Policy and Social Justice") is a first year course, part of "an innovative curriculum reform at the University of Ottawa" - whereas traditionally first year course offerings are limited to "black letter" law (e.g., contracts, torts, criminal, etc.), it looks like Ottawa is trying to broaden the palette.  It will be interesting to see how that works out (assuming any kind of programmatic review is being undertaken).

Great Moments in Canadian Sentencing 02.04.09

Love it:

Justice of the Peace Vernon Chang Alloy was in a whimsical mood last year when he granted bail to Donovan Sitladeen on serious cocaine-trafficking and gun charges.

"I think I'm going to take a flyer - and I suppose I will hear if I do take the flyer and it blows up in my face," Mr. Alloy said. "But that's why they pay me the little bucks - to take these flyers."

So the physical safety of the community was put at risk because some JP was bored.  Or, more precisely, because some JP was bored and because he faced no meaningful consequences if he got it wrong when he decided to "take a flyer".

Happily, some adult supervision was on hand:

Madam Justice Bonnie Wein of Ontario Superior Court rescinded the bail order on appeal shortly afterward, blasting Mr. Alloy for issuing a mishmash of inappropriate comments and muddled law.

"Even after editing, the reasons remain largely incoherent, filled with ramblings and illogical statements," Judge Wein said in a ruling that remained under a publication ban until recently.

She observed that Mr. Alloy appeared not to understand the legal requirements of a bail hearing.

You don't say.  Here's a quick remedy for situations like this: remove the immunity from liability currently enjoyed by the judicial apparatus.  As in every other area which tort law touches, it will be amazing just how seriously people take their responsibilities to protect the public once they are realize they could be out of pocket for neglecting them.

"pander most cravenly"

Andrew Coyne pens a thoughtful lament for the nation:

I suspect a lot of Canadians might be interested in a party that was all of these things: liberal, democratic, free-market, federalist, with a sensible commitment to equality and environmentalism thrown in for good measure. Yet our political system seems incapable of producing it.

Yep.

Hit by the Bus

Dan Pinnington, over at slaw, has a useful post containing some links with tips on matters to consider if the unthinkable happens and you (in this case, you being a lawyer) "become disabled or pass away unexpectedly".  Unfortunately, most of the tips and hints contained in the links really consist of "big picture" advice - winding down a practice, transferring clients, etc.  They don't take into account the most immediately pressing matters when a lawyer suddenly becomes incapacitated: what do we do about this file/transaction which is occuring right now?

I've thought for a while now that this is a prime function that internal wikis could perform.  The title of this post comes from a thought, admittedly morbid, which sometimes strikes when you're in the middle of a transaction, whether complicated or not: what happens if X gets hit by a bus?  Particularly in a law firm environment, where multiple lawyers are working on a single file, each individual inevitably builds up a collection of "soft" knowledge about the file - impending deadlines, who to call at the client to get instructions about particular matters or obtain particular pieces of information, the exact status of negotiations on a particular agreement, etc.  If one of the lawyers suddenly drops off the file (i.e., gets hit by the proverbial bus), what happens to all that knowledge?  How do the other team members try to re-assemble and take advantage of that knowledge (which might be scattered through various hand-written notes, emails, draft documents or, even more likely, just "held in the head" as it were)?

Internal wikis can try to plug that gap - if all members of the team are disciplined about contributing to the wiki, it can form at least part of a common knowledge repository which all team members can rely on in the event something goes awry.

Choosing a Law School

Olaf, he of The Prairie Wrangler, has options to attend at a slew of law schools, prompting the question(s):

I need to know which one is better.  In particular, would obtaining a degree from one or the other help smooth my transition into furthering my education?  So, if I wanted to apply to Harvard or Oxford three years down the road, would it make any difference whatsoever which of the two Canadian schools I chose?  Conversely, I’ve gotten a bunch of fee waivers from some US top 14 law schools: which would be considered more prestigious/substantial in an international setting: a University of Michigan or Northwestern JD degree, or a University of Toronto Degree?  Would it even make any difference?  And so on.

A flood of comments, including one from me, ensues.  A number of pertinent considerations are raised by a variety of commenters, so for anyone who is in a similar position, i.e., trying to decide amongst which law schools to attend - or graduate schools more generally, it's well worth a gander.

"fielding desperate calls"

One of the consistently amazing things about the ongoing debate in Canada regarding access to justice is the absolute insistence of the organized legal profession that they have virtually no responsibility for addressing the matter - or at least no responsibility which would extend to impinging on the protected privileges of the profession.

This Maclean's story is telling: as the article details, part of the cause of increasing (and increasingly unaffordable) legal fees in Canada is the artificial restriction on the supply of lawyers - as even the Chief Justice of the Supreme Court of Canada has repeatedly stated, the lack of affordable lawyers is an "acute" crisis.  The numbers are restricted by the provincial law societies, who impose the regulations which admit individuals to the practice of law.  One of the mechanisms used to artificially depress the number of lawyers is the number of law students graduating each year: as the Maclean's piece notes, the number of law school places available in Canada on a per capita basis is significantly below the numbers in comparable countries, and worse, the number of places hasn't meaningfully budged in decades.  This is hardly unique to the legal profession - Canadians are now in the throes of a similar healthcare crisis because our governments made the brilliant decision about twenty years ago to drastically limit the number of doctors graduating, evidently not accounting for the fact that populations in industrialized liberal democracies have this bizarre tendency to increase as the years go on.

The response of the profession?  "Pfffffttt - not our problem."  The Law Society of Upper Canada harrumphs that it is "simplistic to think that the high cost of legal services and problems of access to justice can be solved by simply adding more lawyers to the market" - it's a bit unclear who is saying that the problem could be solved by adding more lawyers, but surely the onus is on the Law Society to demonstrate why it would be a bad idea to add more lawyers.

And buried in that last sentence is the core truth of what this is really about: dereliction of duty on the part of the legal profession.  Over at slaw, the point manages to get entirely overlooked:

"controlled entry can make sense (whether or not it’s fair to entrants or the public) to the regulators"

No - controlled entry cannot make sense "whether or not it's fair to entrants or the public".  The entire animating purpose of the legal profession, of any profession, is that it act in the public interest.  If something is "unfair to the public" then it is not a course of action which the "regulators" (i.e., the law societies) are entitled to undertake.  This is not an option - it is an obligation.  The protection and promotion of the public interest is the entire animating principle for the privilege of self-governance accorded to the legal profession.

Section 4.2 of the Law Society Act (Ontario) provides as follows:

In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.

2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.

3. The Society has a duty to protect the public interest.

4. The Society has a duty to act in a timely, open and efficient manner.

5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.

Notice anything missing there?  Right - there's nothing about protecting the market position of current lawyers.  Zero.  Full responsibility for the regulation of the legal profession has been devolved to the profession itself on the condition that it exercise it's responsibilities in accordance with its fundamental duty to protect the public interest.  The public interest is manifestly not being served - every piece of empirical evidence indicates this, the clamour from the public, the judiciary and members of the bar itself keeps increasing and yet... and yet.  The acute crisis continues on.  Obvious and easy solutions, even if only partial solutions, are dismissed out of hand.  At some point this will all catch up with the profession - continued dereliction of duty by the organized bar will be met with the response that the principles of governance in a liberal democracy demand: the privilege of self-regulation will be revoked.

"W[h]ither serious print journalism?"

John Honderich, former publisher of the Toronto Star, wrote a piece on the future of journalism which discusses five options for funding, to borrow his phrase, "serious print journalism".  This matter is very important, fulminates Honderich.  Why, nothing less than the future of democracy rests on it:

In order for all of us to live meaningfully and participate in our community, we must be appropriately informed.

In this regard, the quality of public debate, if not the very quality of life in any community, is a direct function of the quality of media that serve it. Indeed, the functioning of a healthy democracy is predicated on a well-informed populace.

He's right, of course.  The dissemination of accurate information is one of the principal functions of the news media, and the functioning of a healthy democracy is indeed predicated on a well-informed populace.  Which is why I found it so very interesting to read this, also, by chance, published in the Toronto Star on the very same day as Honderich's op-ed column.  "This" is a column written by Gillian Steward, a "Calgary writer and journalist" whose column appears every other week in the Star.  It contained the following statements:

Some of them are political science and economics professors at the University of Calgary, an incubator of sorts for the Reform-style conservatism. And then, of course, there's Preston Manning, the original Reform leader who took the message on the road and came very close to becoming leader of the official opposition. So close that in the 1990s he and his Reformers managed to swing the governing Liberals so far right that they happily slashed social programs to balance the federal books.

... It seems the Harper Conservatives have come full circle since the days Reform angrily took on the Mulroney Conservatives accusing them of being more like Liberals than real conservatives. Not only are they running huge deficits à la Mulroney, they have recognized Quebec as a nation, appointed senators, and scrapped a fixed election date.

Notice anything?  No?  Let's run those paragraphs again:

Some of them are political science and economics professors at the University of Calgary, an incubator of sorts for the Reform-style conservatism. And then, of course, there's Preston Manning, the original Reform leader who took the message on the road and came very close to becoming leader of the official opposition. So close that in the 1990s he and his Reformers managed to swing the governing Liberals so far right that they happily slashed social programs to balance the federal books.

... It seems the Harper Conservatives have come full circle since the days Reform angrily took on the Mulroney Conservatives accusing them of being more like Liberals than real conservatives. Not only are they running huge deficits à la Mulroney, they have recognized Quebec as a nation, appointed senators, and scrapped a fixed election date.

How about now?

Here's some hints:

• Preston Manning didn't just come "very close" to being leader of the official opposition.  He in fact came so very very very close that he was Leader of the Official Opposition from 1997 to 2000.  Among easily-accessible sources which could have been found on the internet to demonstrate this fact one can count this, this or even this.

• Neither the Harper Conservatives nor any other party in the history of Canada have passed a parliamentary motion which "recognized Quebec as a nation".  Steward has, wittingly or un-, confused "Quebec" and "Quebecois".  This is hardly a trivial semantic distinction.  In November 2006 the Parliament of Canada passed a motion which stated "That this House recognize that the Québécois form a nation within a united Canada."  The motion itself specifically used the term "Quebecois" - an ethnocultural term - and not the term "Quebec" - a description of a political administrative unit within the state of Canada.  Stephane Dion, at the time leader of the Official Opposition (see how this all nicely ties together?) specifically stated in the House of Commons that the reason he, a long-time champion of Canadian federalism, would be voting for the motion in good conscience was because it used the term "Quebecois" instead of "Quebec".

These elementary points of recent Canadian history passed by both the writer of the column and her editor.

I read precisely two pieces from the Sunday, February 1, 2009 edition of the Toronto Star.  The first extolled not just the virtue but the necessity of the media providing its audience with accurate information.  The second contained two glaring errors of fact.  What the dozens of other pieces published in that edition contained will remain forever the subject of sheerest speculation.

The former publisher of the Toronto Star seems, rhetorically at least, to understand the importance of publishing accurate information - why doesn't the current one?

[I should note that I sent an email to the public editor of the Star noting the two errors identified in this post and providing references for the correct information.  More than twelve hours later I have not received a response and the online version of the column has not been corrected - presumably they have more important things to do than respond to cranky bloggers.  I will update this post in the event I receive a response or it comes to my attention that the paper published a correction.]

Stanford Center on the Legal Profession

Mitch Kowalski noted that Stanford Law School has recently opened the Stanford Center on the Legal Profession, whose mission includes "research, teaching, programs and public policy initiatives on crucial issues facing the bar" with a focus on "issues of professional responsibility and the structure of legal practice".  As Mitch pertinently asks, "where is the Canadian equivalent?"

Indeed.  Centres such as the Stanford CLS tend to live or die depending on the dedication, enthusiasm and innovation of the faculty members who initiate and staff them.  Which means it's past time to get Jordan Furlong appointed to an academic post somewhere.

UPDATE: Ooops.  "Where is the Canadian equivalent?"  Here: The Centre for the Legal Profession at the University of Toronto Faculty of Law.