Tuesday, June 16, 2009
For example, if you get married in Ontario, that marriage is recognized in Quebec, British Columbia, Alberta, and every other province, and depending on a variety of factors, by American states, such as New York and California.
This is not always true, of course. If you get married to someone of the same sex in Ontario, the chances of that marriage being recognized as valid in, say, Iran or perhaps Utah is likely to be negligible. And the opposite can also be true; if you get divorced in Ontario, that divorce will not be recognized in states that do not recognize divorce.
However, in any case, one can say in general that there is a reciprocal agreement between North American territorial divisions to generally accept marriage and divorce decrees, although not those between same-sex couples.
Where I am having trouble is with respect to the effect of those judgments. It's very easy to say that person X and person Y are married in Ontario, and therefore if they move to Hawaii, they'll still be married under the laws of Hawaii. It's also true to say that if they divorce in Hawaii, chances are, this divorce will be recognized when they get back to Ontario.
But what if, while in Hawaii, they created a divorce decree that stated that the issue of alimony would be decided by the court at a later date after both parties have filed information on their respective incomes, and then both parties went back to Ontario?
Would the Ontario Superior Court of Justice give full effect to this judgment, in effect treating it as a judgment of the Ontario Court, and proceed from there (i.e., requiring that the parties file information on their respective incomes and then make an alimony decision)? Would it set the issue aside entirely and conduct its own judgment? Or would it require that the parties go back to Hawaii and litigate the issue at question there?
If it chose the first option, on the basis of which law would it then proceed? Hawaii law, or Ontario law?
This is of course made all the more complicated by the fact that, even within Canada and the United States separately, not all judgments, records, or other determinations are carried over. If, for example, you receive a concealed carry permit for a firearm in Florida, it is not true that all other states would recognize that. They have a public policy concern in doing so, primarily which tends to override the full faith and credit.
The Defense of Marriage Act seeks to prevent same-sex marriages from carrying over from states where they are permitted to states where they are not permitted. Obviously, therefore, the issue is more complicated than it first appears.
The truth of it is, however, I'm not sure exactly what the answer is...
Monday, June 15, 2009
Similarly, ontological inertia is the claim that things which exist will continue existing unless a force acts upon them to counter that existence. Now, this might seem perfectly obvious to you; well and so. Oddly, most people are not so lucky. This is perhaps reinforced by television, where concepts like 'status quo is god' are reinforced again and again to the point where they pervade our cultural psyche. We are trained, essentially, to believe that everything will return to the way it was magically, and things will continue along the way they were.
But, you might cry, I don't think that way!
Well, perhaps you don't. Earlier this week, I overheard a group of people speaking about Iran. One of them mentioned that because Iran was not a democracy, they had no moral legitimacy. Specifically, they argued that since Iran was able to overthrow its monarchy in a revolution in 1979, it should have established a 'democracy' in its place as opposed to a theocratic republic.
It's difficult to establish exactly why the people in question thought this. Perhaps they thought, as many do, that a democracy is the 'default' state of government; and that if you overthrow tyrants and totalitarianists everywhere, magically democracy will appear overnight. However, then they went on to proclaim that since the current Islamic Republic continues, the people must be in favor of it continuing and therefore were guilty of its operation.
This is a more difficult proposition. I have, on various occasions, agreed with it; from a political-science point of view, after all, it makes a great deal of sense. When looking at populations on a large scale, it is an effective view of modelling population behavior.
But it doesn't tell the whole story. In fact, the vast majority of people in Iran could be very unhappy with their government, and yet still have it continue in operation, for a variety of reasons. Firstly, they could agree with the form of government, but disagree with the leader. This argument could be extended to US president George W. Bush, who, during the end of his tenure, had approximately 68% disapproval ratings and yet was not forced from office. In that case, one could argue that they are supporting their system of governance but not the leader by supporting the government.
The second is perhaps more pervasive. If you walk into a room with perhaps 100 people, and ask them how many of them feel comfortable with the ambient temperature, chances are that the majority of them would prefer it hotter or colder, ideally. Perhaps they'd like the lights dimmer, or brighter. When I personally conducted this experiment on a class of students, out of 35 of them, exactly four were satisfied with the ambient environment of the classroom. That means close to 90% disapproved- and yet, of this 90% who disapproved of the ambient environment, not one took steps to alter it. You could argue that the effort required to alter the environment would be significant; but it wasn't that. In fact, the main reason why nobody changed the environment was that it did not cause them sufficient discomfort for them to want to expend the effort at all. Even if it was an effort as simple as walking over to the wall and changing the thermostat, they did not want to exert that effort.
Governments possess a significant amount of ontological inertia. The government exists, but to overthrow the government requires not only that the government be extremely unpopular, but requires that those people who are unhappy with it be willing to exert sufficient effort required to overthrow it- a non-trivial amount of effort, in fact, one that becomes even less trivial in environments where the government is operating to continue its existence, as most do.
The result is that plenty of places on this planet have governments that their people are unhappy with, and those governments continue operating. They may not be the best, but they are, essentially, 'good enough'- and good enough is generally entirely sufficient for most people.
Thursday, September 11, 2008
The Supreme Court of Canada issues its ruling in R. v. L.T.H., unanimously overturning the conviction of a youth with a learning order on the grounds that there are special protections, both constitutional and statutory, in existence to protect young people from waiving their rights without understanding them.
L.T.H., the Court said, waived his right to retain and instruct counsel or to consult with a parent or adult relative in private without actually understanding what the wavier of those rights meant; and as the police went to no great pains to explain these to him, (beyond merely asking "Do you understand?") his confession, elicited after this 'wavier', was inadmissible in a court of law.
The Crown, the Court ruled, must prove beyond a reasonable doubt that the statement was voluntary and that the requirements relating to the taking of statements given by young people had been met.
In further Supreme Court news, the Nova Scotia Court of Appeals judge Thomas Cromwell has been nominated to fill the vacancy. Apparently, Cromwell is a legal centrist and was likely to be suggested by the House committee which was appointed to suggest a list of justices. Not only does Cromwell represent Atlantic Canada by replacing Bastarache, who had just stepped down and came from New Brunswick, but he's also bilingual. Nobody really knows anything about this new judge, and neither do I, so there's not much help there, sadly. Given the Supreme Court's history, however, he's at worst a centrist and more likely to be somewhat left-leaning.
This appointment came a mere two days before the Canadian federal election call, which of course leads some to wonder if in fact it wasn't purely a partisan political appointment.
Which brings up up the next point- the Canadian federal election is scheduled for October 14th, 2008, the day after thanksgiving. There are to be two debates as I understand it, October 1st and October 2nd and I plan to cover them (last election I did a live transcription not of what they were saying, but of what they were saying) .
Let me just say right now that I hate this election. It's like a rat race. No matter who wins, you've still got a rat as Prime Minister. As for who's going to win, it's hard to tell; everybody does polling, but nobody does it well. A popular opinion poll of the country might leave you with the impression that the Liberals and the Conservatives are tied at about 33%, the Bloc has 7%, the NDP has 15%, and the Greens have 7% or so.
However, that was basically what happened last election- and out of 308 seats, the Greens got none, the Bloc got about 50, the Conservatives got about 130, the Liberals got about 95, and the NDP got about 30. Opinion polls fail drastically because they don't tend to take into account the fact that our electoral system is first-past-the-post in each riding. The result is that the Bloc, who poll only 7% nationally, may win 75% of the seats in Quebec (The only area they run candidates) because they can focus their electoral strength, whereas the Greens tend to have it dispersed throughout Canada.
So what's happening is really anybody's race. It's also rather amusing that the Premier of Newfoundland and Labrador, Danny Williams (who is a Conservative) has decided to campaign in this federal election on the platform of ABC- Anything But Conservative, urging Canadians and Newfoundlanders to vote for, well, anybody but the conservatives.
And, of course, I had International Law and National Security and Civil Rights in Wartime.
The former involved a very long discussion about the history of International Law from pre-Greek times to about 1900, and the latter involved....well, I wasn't exactly listening. It was when he started trying to explain the disposition of the US federal appeals circuits that I tuned out.
Problematically, even in law, you can't actually expect any of the students to show up with a background in law or any experience in reading or interpreting cases (or really, any understanding of the structure of the legal system). This results, rather hilariously, in some very odd answers to some rather basic questions as students struggle against the understanding that slowly settles over them like a heavy blanket that they're expected to actually know something by the time they show up at a university...
Wednesday, September 10, 2008
Classes this year include:
"National Security and Civil Liberties in Wartime: The Global War on Terror"
(And two others which are remarkably more boring and unlikely to get any post-time. You have no idea how fascinating public policy analysis from a legal standpoint can bet at 9AM on a Monday morning, for example.)
Perhaps one of the most interesting legal issues in intellectual property of our time is undoubtedly the cases dealing with copyright that arise out of the Recording Industry Association of America (and its counterpart, the Motion Picture Association of America, collectively the Content Industry with their international counterparts) and their constant quest to have file-sharing and music copying made criminal offenses, or at least to raise the civil penalties and lower the standards to such an extent so as to make victory in such cases almost automatic.
I often post on Slashdot, and in fact, it was just today that I traded comments with Ray Beckerman about the issue. Ray Beckerman is a lawyer in New York, and the author of Recording Industry vs the People, a blog about same; in fact, he often defends the recipients of these lawsuits.
I have long disliked the paradigm that surrounds intellectual property as we know it today. At its most basic, intellectual property is not really 'ownership', so much as it is a limited, government-granted monopoly on certain rights. In fact, I believe, this is most closely analogized with real property law- while one might 'own' a piece of land, for example, the rights associated with this 'ownership' more properly exemplify a limited, government-granted monopoly on certain rights for that land. That does not mean the monopolies are the same, just that the principles behind them are the same. I believe, in fact, that the internet and digital distribution of content will necessitate a new and improved mechanism of dealing with title to digital property, if not a new way of thinking of that property, in much the same way as technology demanded an advance in ways of dealing with title to real property.
But I don't believe, unfortunately, that such a battle can be won in the courts. As I told Mr. Beckerman, a law professor once told me (and I believe it was my Administrative Law professor) that clients are happy with lawyers who deliver to them what they desire; shoplifters are happy when their lawyers allow them to escape jail, but that hardly means that the laws against theft are likely to be struck down.
Lawyers have won some great social justice victories in the past century; lawyers won Brown v. Board of Education, lawyers won Griswold v. Connecticut, and lawyers won Roe v. Wade. But in each of those cases, the very fabric of the law itself was being attacked, and defeated- the function of the courts.
If, rather than attacking the fabric of the law itself (which is very hard to do, as the authority to create copyright law is not one that I have seen disputed) one only seeks to defend specific cases under specific circumstances, one cannot hope to win; the best one can hope to do is stem the tide.
Copyright law regarding digital property needs to be reformed; of this I have no doubt. But the Courts cannot assist; the government is entirely within its rights to create copyright legislation at its discretion, within some very wide guidelines. Such a battle must be fought in Congress or the Houses of Parliament- the law-making entities that define the copyright legislation in the first place. That, in turn, means winning hearts and minds. In 1988, the Supreme Court of Canada struck down abortion law in Canada in R. v. Morgentaler. The Court made no bones about the fact that the parliament could come back with another law, one which might meet muster- but Parliament never did so. The Courts are not necessary if the People, and their representatives, can be convinced.
Which is, I think, where the issue tends to fall down. Convincing people is hard, but it seems that simply securing court victories does little good. A lawyer who extricates his client from a shoplifting charge is unlikely to win acclaim from the public; rather, he is likely to be vilified on the grounds that he assisted in a criminal walking free.
And I believe the Content Industry has the upper hand here; they, after all, have got a rather impressive head start in legislatures across the western world, and their viewpoint appears already pervasive in the minds of the public at large.
Perhaps it's time for those who believe in a new paradigm of copyright to change strategies.
Monday, April 7, 2008
That said, the latter does bring up one of my current rants.
I went looking for a decongestant today, because my sinuses are terrible (and when they block up, I get horrible shooting pains in my skull, specifically near my eyes). Now, I know as a rule that when one looks for a decongestant, one looks from a drug called pseudoephedrine. Essentially, pseudoephedrine is a vasoconstrictor (that is it constricts blood vessels) and this allows less fluid to leave the blood stream and slows mucus production significantly, as well as reducing inflamation.
However, pseudoephedrine (you have no idea how annoying it is to type that out every time) is also an important precursor in the creation of methamphetamine. As a result of this, and of the corrispondingly more stringent rules against the sale of pseudoephedrine, drug companies have begun to reformulate decongestants with other, less illicitly useful drugs, primarily phenylephrine.
The problem is, clinically speaking, that phenylephrine hasn't been shown to have any useful effect at all. A variety of studies have shown it to be no more or less effective than a placebo.
Which makes it somewhat troublesome for those of us who just want to get our nasal passages declogged to do so.
Is it reasonable that we restrict the distribution of a known-useful substance in order to prevent it from being used illicitly? This isn't a merely hypothetical question; this question springs up at every level of governance and law, from firearms to narcotics to motor vehicles.
It's probably unlikely someone will die due to their nasal passages being clogged up and unable to be relieved. It's equally well known that people have died from methamphetamines.
The problem is that judging risks and rewards when the numbers are measured in human lives is a very grisly business, and rarely do we accept that perhaps it's better to let a few people die for convenience...
Friday, March 28, 2008
One of the ethical concepts I have the most difficulty grasping is that from Ursula K. LeGuin’s The Ones Who Walk Away from Omelas. For those of you who have not read the story (and are too lazy to do so), it is a short story based on the moral concepts of utilitarianism. Essentially, there is a town that is perfectly happy and perfectly pleasant, with the caveat that this perfection is supported by, and reliant upon, the constant suffering of a single child. To alleviate the child’s suffering would relieve the town of that which magically makes it such a utopian place to be, and as a result, the child remains suffering. When the children of the town are considered old enough to understand, they are brought to see the child, so that they too may understand the foundation upon which their fortune is based; and as a rule, the vast majority of the inhabitants understands and accepts this trade-off; but some do not.
Those are the Ones Who Walk Away From Omelas; they may be children, they may be adults. But either way, at some point in their lives, they realize they cannot accept the suffering of a child in exchange for their own happiness, and so they leave the utopia of Omelas. It is never explained why or to where, merely that “they know where they are going”.
And this is the part of the story, morally speaking, that I cannot comprehend. I can perfectly understand the utilitarianism view- that the child’s suffering maintains the utopia for tens or hundreds of thousands, and as a result, is justified- exitus acta probat, ‘the result validates the deed’.
I could understand if the ones who walked away from Omelas sought to change it, either from within by convincing their fellows to abandon their utopia in the name of justice, or from without through force of arms (not that it would be particularly difficult, as apparently even a kind word is enough to dispel the utopia).
Instead, they merely walk away, never to return. It seems to be as though this is an endemic method of dealing with third party moral quandaries in today’s world. We find China’s human rights record to be abhorrent- and yet we take no overt action. One could argue, indeed, that the situation with China is not similar; we do take action with China over their human rights record. We refrain from full-scale military action because it is not politically or militarily expedient.
However, those who walk away from Omelas appear to have no such concerns. The thought does not appear to enter their minds to take action against Omelas, itself, something they consider unjust- they merely remove themselves from it, in a way, perhaps, attempting to separate the moral responsibility. The responsibility for the child is no longer theirs- they take nothing from the child. Others, indeed, are benefiting from this captive, and not they.
And yet, the sense has always been in my mind, that this is nothing more than a smoke-screen. A tacit acceptance through willful ignorance is still acceptance, but of a less moral character; it is one thing to accept a harm done, knowing full well that you are doing harm but accepting it because the result is important. It is another thing entirely to accept a harm done without complaint because you looked away; that is instead moral cowardice, not strength. The ones who walk away from Omelas pretend that they do not see, in order that they may consider themselves more ‘pure’.
This I cannot accept. I am willing to accept a difference in moral values- so long as you are willing to openly embrace those values, rather than hiding behind them when it becomes convenient to do so.
Tuesday, March 25, 2008
Firstly, there is the just-decided case of Medellin v. Texas, decided March 25th by the Supreme Court of the United States. The Supreme Court held that, despite the International Court of Justice's decision in Case Concerning Avena and Other Mexican Nationals, (which held that based on violations of the Vienna Convention, 51 Mexican nationals were entitled to review and reconsideration of their state-court convictions and sentences), President Bush had no authority to order the state courts to reconsider the sentences.
The Vienna Convention was, in 1969, properly ratified as a treaty of the United States, and by virtue of the Supremacy Clause, (article IV, clause 2) of the US Constitution, became law and binding upon the States and Federal Government. In Missouri v. Holland, the Supreme Court ruled that treaties constituted a separate area of federal jurisdiction, and that therefore the Federal government's treaty powers are greater than that of Congress; that is, that a federal treaty may require compliance in areas that Congress may not legislate, and by virtue of the Supremacy Clause, they are to have full effect.
Medellin then claimed that by virtue of the supremacy clause, the Vienna Convention constitutes binding United States law (by which the State courts are bound), and that the decision in Avena constitutes a binding decision with which the States must comply (in much the same way that compliance with the decisions of the Supreme Court occurs.)
However, the Court appears to conclude that the decision in Avena does not constitute binding law, regardless of whether or not the Vienna Convention constitutes binding law, a decision that is, to some extent, based on a distinction between
"...treaties that automatically have effect as domestic law, and those that -while they constitute international law committments- do not by themselves function as binding federal law."Admittedly, I find the distinction relatively arbitrary, although I do understand how one might come about; for example, the Kyoto Protocol, which (were it ratified, of course) while it might set required targets for signatory states would presumably not be binding domestic law unless a separate law setting targets and methods was passed by Congress (although I admit I am somewhat unclear on Congress's ability to create law that invades the purview of the states where it is doing so to enact a treaty.)
Essentially, the court appears to state that the judgment in Avena does create an obligation on the part of the United States, but that it does not by itself constitute a binding decision upon domestic courts.
Secondly, there is this news item, regarding another incident of a craigslist hoax, and certainly not the first. In short, an individual posted an advertisement on Craigslist that the belongings of the poster's house were free for the taking. Of course, the owner of the property had posted no such ads, and was somewhat surprised, needless to say, by all the visitors making off with his property.
The issues involved are multifold, but I see the issue as bearing an uncanny resemblance to the current spate of mortgage-fraud cases; cases in which a fraud artist goes to a lending institution to issue a charge against a property not his own; he leaves with the money, and the legitimate owners are surprised when the lending institution attempts to foreclose to recoup its loss.
The lending institution, is of course mostly an innocent party; it believed it was correctly issuing the charge and lending the money. The criminal, of course, was the person who fraudulently connected the two groups. However, there is an expectation in the common law that an individual (or group, of course) will perform its due diligence in order to ensure that the consents it receives are valid and legitimate. Where the individual does not, it can be held negligent and responsible. The issue is far more gray where the individual does perform reasonable due diligence and is still blindsided. Of course it is theoretically possible to recover the loss from the fraud artist, who is of course liable, but it practically may be very difficult or impossible.
This leaves everyone in somewhat of a sticky situation....