Thursday, September 11, 2008

So a couple of things today.

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

Back for the school year!

It's been a long time since I posted on here, unfortunately. Oh well. As classes have resumed, I think I can post more actively as I'll have more amusing topics to recite.

Classes this year include:
"Public Law"
"International Law"
"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

Musings about drugs...

I apologize for not updating recently at all. Totally goes against what I've been hoping to do, but with the end of classes (on April 3rd) and my current sinus infection, I've been under the weather with regard to blog posting.

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

The Ones Who Walk Away from Omelas

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

Mexicans and Mortgage Fraud!

Two separate little legal issues today.

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....

Thursday, March 20, 2008

The Problem of Strict Deductionism- Synthesis and and Inductive Logic

Deductive logic is a process whereby general principles may be derived from specific claims. For example- all fish swim in water. All trout are fish. Therefore, all trout swim in water. However, there are difficulties with this method of analysis. It does not permit the analysis or drawing of a conclusion where the specific claims cannot necessarily be drawn; and further, where those claims are of dubious veracity, the accuracy of the general principles drawn is debatable.

Hence the principle of inductive logic, which is based on two essential principles (that expand deductive logic, essentially); firstly, that an attribute of a specific object can be applied to all objects in a specific class (this ice is cold; all ice is therefore cold); and that specific behavior occurs in patterns which will continue to occur (we eat dinner at 6:00 today; we will eat dinner at 6:00 tomorrow.) Obviously, there are problems with inductive logic. Take for example the following inductive claim: “All observed apples are red. Therefore, all apples are red.” Unless one can positively ensure that all apples are red, the claim may actually be false.

Synthesis is the combination of two claims or pieces of information in order to establish new elements. For example, the deductive logical claim “Water freezes below zero degrees. It is below zero degrees. Therefore, water will freeze.”, when added to the claim “There is water here” when synthesized leads to the conclusion that “This water is frozen.”

The problem with a reliance on strict deduction should be obvious at this point, as David Hume argued; it is an inductive logical principle that bread will continue to nourish us from day to day because it has in the past. Deductive logic relies upon the fact that one has total knowledge of the datasets relied upon.

However, in the real world, strict deductionism is a dangerous ploy. The principles of inductive logic and synthesis can be applied to a situation for the purposes of prediction and risk analysis, whereas deduction requires either the narrowing of the dataset to an extreme extent or expansion of knowledge appropriately.

For example, take the argument that “If I take cyanide, I will die.”

In order for deductive logic to agree with this conclusion, one must have total data in this respect about the dataset; one can either accomplish that by leaving the dataset unlimited and increasing knowledge, or by narrowing the dataset and thereby narrowing the amount of knowledge required. Specifically, one could attempt to poison every person with cyanide and thereby claim that “Cyanide kills all humans. I am a human. Therefore, if I take cyanide, I will die.” Obviously, this is not possible. In the alternate, one could take cyanide, and if one dies, the logical issue will be a tautology- taking cyanide will have resulted in one’s death.

For inductive logic to agree with this conclusion, however, the issue is much simpler. One could argue, instead, that “All observed takers of cyanide are dead. Therefore, cyanide kills and humans.” Obviously, there are flaws in the above argument; namely, all people in the past have died. This does not, however, necessarily, establish that people will continue to die, and further, it does not draw the distinction that those dead may have died from something other than cyanide. Indeed, there is a requirement to knowledge the inductive statements to be as specific as possible to ensure accuracy.

The difference, however, is that inductive logic allows for the prediction of behavior of a class without actually measuring the entirety of the class; and therefore allows one to predict the results of an action without actually taking that action. Those who rely on strict deductionism for their conclusions are either lying or disturbed. However, it is not uncommon for individuals to rely on inductive logic for their own behavior and everyday lives and yet to require deductive proof of claims they disagree with when presented to them- an ironically hypocritical point of view.

Tuesday, March 18, 2008

Four Federal By-Elections...

Often, regarding by-elections the question is asked: Does this by-election matter? Does it signal a change in the composition of government; does it signal a change in the will of the electorate? Or is it merely one outgoing member of parliament who is going to be replaced by the successor determined by their party?

There were four ridings up for grabs last night.

In the first one, Willowdale, liberal MP Jim Peterson resigned his seat after many years in the legislature. The liberal party’s suggested successor was Martha Hall Findlay, a long-time liberal and leadership contender, among other things; she was elected with what looks like approximately 60% of the vote (59.3%, if you want to be pedantic.) Before her, in the 2006 federal election, Peterson had won 52% of the vote.

The second riding was Toronto Centre- and here again, the resignation of a liberal (Bill Graham) was followed by the nomination of a major liberal candidate- former Ontario premier, Bob Rae, and again a liberal leadership contender. He too won approximately 60% of the vote (59.2%, specifically), compared to Bill Graham’s 52.2% of the vote in 2006.

The third riding was Vancouver Quadra, opened by the resignation of Stephen Owen. The liberal candidate is not particularly notable to me, one Joyce Murray. Here, Ms. Murray won 36% of the vote compared to 48.84% of the vote by Stephen Owen in the 2006 election. (In the same election, the Marxist-Leninists won 41 votes.)

The fourth, Desnethe-Missinippi-Churchhill River, in Quebec, was seen as perhaps the most tenuous riding of all. Opened by the resignation of Gary Merasty, many pundits reported that the Liberals would have to win not only the other three ridings, (seen as relatively safe) but this riding as well to prevent significant discord in their party. And, in fact, the Conservative candidate Rob Clarke win 47.8% of the vote compared to Joan Beatty with 31.4% of the vote. In 2006, Gary Merasty won the riding with 41.37% of the vote.

It is of course important to note that all of these figures are fairly preliminary, but expected to be accurate.

In the 2006 election, the popular vote fell as follows: 36.27% Conservative, 30.23% Liberal, 10.48% Bloc, and 17.48% NDP followed by approximately 5% of assorted others.

Do these ridings, therefore, mean anything? Willowdale, Toronto Centre, and Vancouver Quadra bucked the trend of the popular vote in 2006, by close to 25% of the total electorate in some cases. It seems fairly self-evident, perhaps, that these ridings therefore are not representative of the total electorate.

How about, therefore, Desnethe-Missinippi-Churchhill River? In 2006, the riding voted 41/41/15 (Lib/Con/NDP), while the prevailing popular vote fell approximately 30/36/17. In 2004, it was 29/37/20, compared to the popular vote of 37/29/15. In both cases, the popular vote was wildly skewed when compared to the popular vote in the specific riding. Obviously, merely comparing popular vote percentages are not the most dramatically effective way of predicting the mood of the electorate.

The issue is further complicated by the fact that the popular vote is not an effective determinant of election victory and seat counts in the Canadian system. Our first-past-the-post system allows for wildly diverging popular vote results when compared to the number of seats won, and the Bloc takes advantage of this the most- by focusing their effort in specific ridings in Quebec, they are able to win a disproportionate number of seats.

Do I think this by-election was an effective predictor of electoral victory in any upcoming federal election? Not in and of itself. However, there were significant concerns in the lead-up to these by-elections that if the Liberals did not win all four seats, the leader of the party, Stephane Dion would face severe criticism within his own party as an ineffective leader. Having won three seats in ‘safe’ Liberal ridings and lost the one seat in an uncertain riding, it is perhaps more likely than ever that he will face the music now.

Unfortunately, despite what he may like to believe, Stephane Dion has not proven himself to be a charismatic leader of the opposition, and has certainly not significantly endeared himself to the electorate- perhaps specifically as a result of not forcing an election sooner. If the state of affairs carries on as it is at the moment, one could perhaps predict a long, slow slide into mediocrity for Dion and his party. They’ve had more than a year at this point to ‘get it together’, and as it stands, they seem to have failed miserably- although his election seems, perhaps, entirely unrelated.

Thursday, March 13, 2008

The Least Dangerous Branch

In the federalist paper #78, Alexander Hamilton in 1788 wrote:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

In doing so, he lays out a view of the tripartite structure of the blossoming United States government; and in doing so he espouses a view of the Court merely as arbiter on a specific issue, with no influence over public policy. As two hundred and twenty further years of policy development have shown, however, this is no truer today than it was in the late 1940s, or, for that matter, the early 19th century. In fact, in the past two hundred years, the Court has demonstrated not only the ability to set, to some extent, public policy, but it has demonstrated that it may set the rules by which other branches of the government may do business- and because it was designed, as Hamilton claims, as the last dangerous branch, it is the one that operates with the fewest checks and balances on the exercise of its authority.

Let us dispose of Hamilton’s last argument first. He writes “It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Technically, of course, this is true. The Court does have an enforcement arm; it is the United States Marshals Service, however it falls under the jurisdiction of the Department of Justice and therefore the executive branch. However, in practice, even when there has been considerable personal animosity between the Court and the Executive, the will of the Court is carried out smoothly. The seminal case is perhaps Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Under President Truman, the United States was involved in the Korean War; there was a strike by the steel workers, which Truman believed would cause a substantial shock to not only the domestic economy but also the wartime economy, and as a result, he invoked the President’s ‘inherent authority to act in response to a national emergency’, and seized the steel plants. The Court rapidly (The seizure was April 8th, the Supreme Court’s ruling was June 2nd) processed the case, and the Supreme Court voted that the seizure of the steel facilities had been illegal. Within minutes, Truman ordered the steel facilities returned- despite considerable personal disagreement with the law and in fact animosity with the justices over this decision. While technically speaking the Court is unable to enforce its judgments against the will of the Executive, in practice, the executive, even when considerably opposed to the judgment, will enforce it. The reasoning is neither complicated nor unusual; as an arbiter of disputes, the Court’s power to order the Executive branch to enforce its dictates falls well within the sphere of influence of the Court, and as such, is a valid exercise of the rule of law. On the other hand, were the executive to refuse to adhere to a Court decision, the Executive would not be enforcing the rule of law- a dangerous path to tread, as there is nothing other than the rule of law that requires the military, for example, to follow the orders of the Executive branch. Without the structures of the rule of law, which are, in fact, supported because most people wish to obey them, the legitimacy of the government crumbles. The Court’s dictates, its force and will, are a function of the legitimacy of government. Their enforcement may depend upon the Executive, but an Executive that did not do so would have no legitimacy as a body.

Hamilton that defines two further arguments; he says

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.”

The former has been dealt with to some extent above. The ‘sword of the community’ only arises out of legitimacy; the Court’s actions are as enforceable as the Executive’s. The Court also has an ability to influence, at least to some extent, the dispensation of the honors- for example, Marbury v. Madison, 5 U.S. 137 (1803), where the Court ruled it had the ability to grant Marbury a remedy for the refusal of Madison to grant him the honors to which he was entitled (although of course it avoided the issue and did not.)

The legislature, Hamilton rights, “Not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.” This subject, of course, is a touchy one. The rights of the populace are enumerated in the first ten amendments to the United States Constitution, but more specifically, the ninth amendment specifies “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In adding this clause (which has seen limited judicial use, admittedly; the Court in U.S. Public Workers v. Mitchell, 330 U.S. 75 (1947) found that “If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.”, prohibiting the government to expand its powers via those amendments but not enumerating other rights that may further restrict granted powers) the Constitutional framers allowed the Court itself to establish the rights of citizens, and specifically to determine to what extent there are to be enforced. In the same vein, by applying the test of these rights to any administrative law dispute brought before it, the Court may prohibit the legislature for impressing duties upon citizens, or regulations.

The Court then has the ability to limit or expand the duties and rights of the citizenry in keeping with the above dicta that non-enumerated rights may also not be infringed; perhaps the best example of this is given in Griswold v. Connecticut, 381 U.S. 479 (1965), where the Supreme Court ruled that certain other, non-enumerated, rights could be found in ‘penumbras’ and ‘emanations’ of specifically enumerated rights. The ability to manage the purse is slightly more complicated, but here too, the Court has influence. In Flast v. Cohen,392 U.S. 83 (1968), the Court ruled that taxpayers had standing to sue the government to prevent an unconstitutional use of their funds, although it upheld to some extent Frothingham v. Mellon in 1923, which concluded that a taxpayer did not have “standing to sue the federal government to prevent expenditures if her only injury is an anticipated increase in taxes.”

The Court also has the ability to influence public policy beyond its ability to restrict the actions of the Executive and to expand or contract the rights and responsibilities of the citizenry as dictated primarily by Congress. The primary method by which the Court may enforce its dicta is via stare decisis- that all lower courts are bound to the judgment of a higher court. In this, a Court’s decision to, for example, dictate a test by which taxpayers may sue in Flast v. Cohen would see a similar test applied by lower courts against other lawsuits of similar nature. In so doing, and because Congress conducts all of its business via legislative bills, the Court may dictate the nature of which bills will be allowed to stand by the court and how, if they are to stand, they must be constructed. In a similar vein, the Court may dictate the actions of the Executive and its agents by throwing out their actions where they do not conform to a specific standard of conduct- perhaps the best known example of this is Miranda v. Arizona, 384 U.S. 436 (1966), which held that criminal suspects must be informed of their rights before being interrogated by police. This lead to the widespread deployment of the “Miranda Warnings”- a significant alteration in police departmental policy, necessitated by the stare decisis that all interrogations not preceded by Miranda warnings would be ignored form the Court.

Further, it is important to note that the Court, unlike the other two branches of government, is relatively unchecked in its exercise of power. There are some jurisdictions in the United States (specifically state courts, as the Constitution declares that all Federal judges must be appointed, for life, although this would not technically prohibit an election, the winner of whom would be appointed) where judges are elected representatives, but this is not true at all in the Federal system and is only true in some of the states, making it generally uncommon. As a rule, judges are not accountable, therefore, to the electorate as the Executive and the Legislature are. Supreme Court judges can be impeached, however, none have successfully been removed from office (and only Samuel Chase, in 1804, ever had an impeachment vote pass the house). In fact, the US Supreme Court has supervisory authority over lower Federal justices- making it much a case of presiding over one’s own house.

Finally, Alexander Hamilton noted that

The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

Perhaps the most reasonable reason to conclude this is because the Court does not have the authority to arbitrarily rule. Rather, Article III of the Constitution gives the Court the authority to decide cases brought before it. In this respect, the Court’s power is significantly weakened- it does not have the authority to overrule a law or procedure or action of another branch of the government unless someone with locus standi (that is, standing to bring the action) brings the case before it for a decision. As a result, it could be said to have the least capacity to annoy or injure them because it has the least capacity to act. While a single court ruling may have the effect of a law in that it significantly influences public policy in a specific direction (Such as Miranda v. Arizona, for example) the Court does not have the ability to enact such rulings at will. Moreover, the court is limited by previous rulings, and lower courts are limited by higher ones- and perhaps more importantly, the composition of the federal Courts and the procedures involved have in fact been altered by Congress in the Judiciary Acts of 1789, 1801, 1802, 1866, 1869, 1891, and 1925. All of the above do serve to severely limit the Court’s authority and ability to act, either positively or negatively.

Hamilton believed the Judiciary to be the least dangerous branch because it was least capable. History has shown this to be a sadly false assumption- the Court has shown itself capable and willing to intrude in almost every sphere of governmental policy and existence. There are more cases brought before the Court than the court can handle- about 7500 petitioners to the United States Supreme Court in 2006, of which it heard approximately 100. Hamilton also believed the judiciary to be the least dangerous branch because it had the most restrictions placed upon it- it had no ability to command the sword, the purse, or the rights. All three of these are also sadly mistaken, and in fact, the very lack of restrictions and oversight placed on the United States federal courts in general and the Supreme Court in specific often has individuals frothing at the mouth over judicial activism. And yet, the Court will endure as an institution- not only because of its necessity, because as a rule, nobody seems to have thought it as doing any worse a job than the other two branches.

Monday, March 10, 2008

Municipal Affairs

Municipal politics in Canada tend to be a tricky situation, all told. This is primarily due to the method by which municipalities originate; they do not have, unlike provinces or the federal government, any constitutional legitimacy. Rather, municipalities are created by enabling legislation passed by the province.

Indeed, this puts municipalities in a very tricky situation- they have no inherent powers of their own. Their only authority derives from the province, and as a result, the province has the ability to (and does) override actions of municipalities when it feels the need to do so.

It also leads to the disturbing trend of 'downloading'- the province offloading responsibility for funding and providing services, like for example, social services or schools, to municipalities. Technically speaking, this is nothing more than a smokescreen; the actual legislative responsibility has not changed. Instead, the provincial legislature, in creating the appearance of an elected third level of municipal government, has attempted to 'mask', to some extent, its involvement in these programs. Of course, as an agent of the provincial government, the municipality is nothing of the sort- there are only two levels of constitutionally defined government.

To digress as to why this is important, it's important to realize that nations are entities, that is they owe no higher allegiance and have an exclusive right to governance inside their sphere. In a federal system (as opposed to a unitary system), sovereignty is divided between an overarching body and numerous lesser political bodies; for example, the United States of America and the individual states or Canada and the individual provinces. There may be some level of overlap, which is always a tricky situation and requires definition by the courts, but strictly speaking, there is no sharing of powers- powers belong to one or the other, unless the sovereign entity has declared itself to be sharing them. The only two groups of sovereign bodies in Canada are the provinces and the federal government- and only those two groups have exclusive right to governance inside their sphere. The municipality only governs under the authority of the provincial government.

What it does allow, however, is for the provincial government to somewhat immunize itself from public fallout. For example; suggest that the Province of Ontario decides to download education to the municipalities. Make no mistake; education is still a provincial responsibility, but as the municipality is a delegate of the province’s authority, the province is still ‘dealing’ with the issue. At this point, the province can strike all taxes pertaining to education, and it is up to the municipalities to both manage education and to institute taxes to provide for it.

With an elected municipal government, this may result in a nasty backlash against the municipality if it is forced to institute property taxes to pay for education, a backlash that may not exist against the province; and if the schools are mismanaged, similarly, the responsibility in the public eye tends to fall upon the municipality.

Actually, however, the municipality only has the power to tax as an agent of the province, and only has the power to act as an agent of the province. Indeed, any backlash directed against it is directed against the province as the two former is nothing more than an agent of the latter. But in the world of realpolitik and public perception, the two cannot be more different.

Realistically speaking, of course, this apparent division of labor only tends to make things worse, as any survivor of Mike Harris’s Ontario government can attest to. But it is one of the most misunderstood concepts in municipal governance these days, and is perhaps over utilized for exactly that reason.

Friday, March 7, 2008

When is gross misconduct wrong?

There is what one might consider a small controversy (and I keep wanting to pronounce that cont-rov-ersy, instead of contro-versey, how I usually pronounce it) around here. A university student (and you can find citations at both the CBC and Slashdot) faces 147 counts of academic misconduct after creating a study group on Facebook.

Normally I would not comment other than to point out that "University politics are so vicious precisely because the stakes are so small.", but in this case I think issue warrants more of a digression.

At issue there generally appear to be two sides, one of which is exemplified in the standard Slashdot groupthink and the other of which tends more toward the CBC's own comment pages. The former is the view that education is pretty much free and people should be able to do whatever they like- including form study groups. Moreover, this group would argue, the university is being totalitarian and overbearing, as usual, and should leave its students alone (after all, they have rights). The latter would argue that they're cheating and youngsters these days need to have their mouths cleaned out with soap and learn the meaning of honesty and integrity.

I find both views to be lacking. There is, to some extent, a public policy objective to be fulfilled in ensuring that students do not graduate from university entirely incompetent in the subject matter with which they have supposedly been educated; would you appreciate it if your doctor was unable to tell the difference between a metacarpal and a metatarsal? (They are the long bones of the hand and of the foot, respectively.) There is also, to a great extent, a public policy objective to be fulfilled in granting freedom of association and expression to students. It is, in many ways, a similar debate that rages about the inclusion of illegally obtained evidence; should evidence, which if entered into the court would cause the subject to be found guilty, entered into the record despite the fact that it was illegally obtained? How about if, without said evidence, the suspect would walk free, despite the evidence clearly indicating beyond a reasonable doubt as to their guilt?

That is the argument from inside the box. However, there is an argument that exists outside the box. Namely, is it wrong to cheat? Is it wrong to lie? I have not answered this above; one can cheat and still graduate an educated student. One can lie, collaborate, or write down the names of the 206 bones in the body in microprint on one's foreskin, and still be a good doctor. One can fail to memorize the list of crucial decisions that led to the establishment of the current views surrounding freedom of speech, and still be a good lawyer. Some of those individuals speaking at the CBC's message boards believe that students should have mandatory ethics courses in first year.

I will point out that back during my own first undergraduate year, I did take professional ethics. Out of three papers, one defended lying and one gross professional misconduct, arguing both were situationally dependent and could often be ethical or even ethically necessary. Both arguments were well received, because they were well supported, ethically, in both cases by essentially the same argument- that a greater good was served by ethically dubious behavior on the small scale.

In fact, the same argument applies here. Even were we to assume that the individual present is guilty of gross academic misconduct (which is itself a dubious accusation) that does not make such an action ethically unfavorable without more argument. In fact, one could argue that if he was providing a service to his peers that served to forward their educations and his own, his action was ethically justified despite being gross academic misconduct.

In this case, I think the issue is nothing more than a tempest in a teapot. There is no real ethical argument to be satisfied and I believe the claim of gross academic misconduct is dubious at best and dishonest and offensive at worst.

However, even as a student of law, I find it somewhat disheartening that the question immediately focused on ideology and semantics (as perhaps polarized as the two may be) rather than examining the basic elements of ethical behavior involved.

Wednesday, March 5, 2008

Medical Basics...

One of the things I find most difficult about studying medicine is the very basics, and it's a topic that I find ill-covered in any of the material that I've studied so far.

Often the text with refer to, for example, O2 stats of a test-case patient. However, the text does not define the normal range of oxygen saturation for a patient, what instrument one would use to measure it, what the results of a decreased O2 saturation would be, and what the clinical indications of decreased O2 saturation are. This leaves me scrambling to either Wikipedia if I'm at my desk or to write it down if I'm not so that I can later look up the specific test and the results, and I feel it's inefficient.

Practically speaking, I am sure one can find a book outlining basic diagnostic tests, how to perform them, what results one should expect, and what it means if one receives a different result. However, I haven't yet found such a book.

Similarly, it seems as though medicine often results in such complications, and it is possible that I simply don't have a sufficient classroom grounding to deal with the basic terms and concepts- there is a great deal of interrelation between psychiatry, examination of a patient, anatomy, basic texts, radiology, and so on.

That said, so far, I have found Clinical Psychiatry (the medical text and field I am studying at the moment) exceptionally helpful. Despite being dense in format, the text is clear and readable, and presents a variety of helpful tables- such as what drugs are indicators for specific psychiatric conditions, and in contrast, what drugs one might use to treat psychiatric conditions.

It has covered the Mini-Mental State Exam in detail (a very basic cognition test) as well as outlining the clinical bases and utilities of a variety of other tests, and beginning to outline treatment regimes, as well as covering the bases of psychiatric illness.

Perhaps oddly, it has done more to make psychiatry 'available' to me than perhaps anything else has.

Saturday, March 1, 2008

The art of mentality

One of the most difficult things about psychiatry, as opposed to surgery, or immunology or, in fact, most medical disciplines, at least to me, is the fact that it's extremely unclear whether someone is actually sick or not, and there's no real way to tell. Drugs can be effective on people who are not necessarily mentally 'ill'; and drugs can not be effective on people who are mentally 'ill'.

Stoudemire's Clinical Psychiatry defines a mental disorder by saying "It is, in fact, impairment of function that distinguishes 'eccentric behavior' from psychiatric illness."

Perhaps this seems self-evident; well and so. The difficulty is that establishing when someone is impaired is also a questionable task. One of the best examples of this is Attention Deficit Hyperactivity Disorder, which may strike as many as 7% of children. However, all sufferers are struck with different severities of symptoms, from the crippling to the almost unnoticeable; and it tends to be more a matter of art than of science in determining how to deal with the issue.

The Diagnostic and Statistical Manual of Mental Disorders (DSM) attempts to clarify the issue, but in my opinion, rarely does. Rather than setting out specific itemizations, the details presented are merely rough guidelines.

Rather, you are left with a wide variety of people, especially Americans, in my experience, who believe they have mental disorders- without necessarily a severe impairment of function, for which they receive pharmaceutical support. Because these pharmaceuticals can alter the biology of 'healthy' people just as well as they can the 'ill', in fact, these people do undergo changes. Of course, it is then up for debate as to whether they are 'healthy' now as opposed to before.

Arguably, the only definition that matters is whether they are more functional after whatever treatment than before. In this respect, it may be that psychiatric treatment is nothing more than a lifestyle choice- albeit an expensive one with possibly drastic side effects.

Wednesday, February 27, 2008

Heroes Happen Here- Microsoft Launch Event

Today I attended the Microsoft “Heroes Happen Here” Launch event for Server 2008, Visual Studio 2008, and SQL Server 2008. In general, it’s what I expected- the usual hour-long continental buffet breakfast, with a partner pavilion. So you grab a glass of juice or coffee, a few baguettes, and circulate the partner pavilion, which you can see here. It literally looks like it’s an aircraft hanger- it’s huge.

Circulating around the partner pavilion is always fun. You generally have a couple of major partners with big booths (In this case, it was Technet, Xbox Arcade, and the Microsoft User Group) and then a handful of smaller booths; Dell is a classic, followed by CDW, MDG, CGI, and so on and so on. And of course, you circulate the booths, they scan your badge so as to send you stuff and that automatically enters you in a draw. I entered for a 250GB external HDD, a Nintendo Wii, two or three Xbox360s, and $500 in giftcards, more or less. You can also pick up stuff if they’re handing out swag. I got a scarf, a shot glass, four pens, and a yo-yo. I’ve had better days, but I’ve also really had worse.

Then there was the keynote- an hour long presentation by the head of Microsoft Canada (and in fact they had the chief-operating officer of Microsoft as a speaker). The usual marketing, mostly.

Unfortunately, I missed the first session (or fortunately, depending on your tolerance for relevant but entirely too shallow goings-over of material) but I did grab lunch. Of course, they give you a lunch ticket, which you trade in for a drink and box with a sandwich, banana, and cookie. Microsoft, however, always provides way too much lunch. As a result, after about half the time is gone, you can go get another lunch or drink if you’re still hungry. I stood around and watched a gentleman from Microsoft play Guitar Hero at the Xbox360 pavilion. I’m not sure if he was on the Xbox platform team or whether he just really loved Guitar Hero, but his freakishly high 86% accuracy on Expert difficulty on an expert song did garner a round of applause.

In two ways, this “Heroes Happen Here” event did things I had never before seen at a Microsoft conference. Firstly, there was the jousting. Yes, I said jousting. An inflatable ring was set up at one side of the hanger, and there were helmets and pillow-ish things. And people got into the ring and whacked at each other with them. Also, the Xbox Arcade was odd. They often have Xboxes at this sort of thing- it is, however, rare that they set them up with 56” LCD TVs, couches, guitars, drum sets, racing wheels and pedals, and it’s rare that they have more than one or two.

The third thing provided was free ice cream at lunch. As much as you wanted while supplies lasted (and they lasted almost the entire hour). That alone would probably have been worth going for. Free, unlimited ice cream!

One of the other things I found interesting was this sign- a sign that’s saying Microsoft is buying green power for this event. Good corporate governance or another sign of the evil menace? You decide.

There are two more sessions in each track today- this one is Security in the Architecture track, and they’re talking about Network Access Protection. Admittedly, I appreciate some of the things Microsoft has done. The latest version of Terminal Services supports remote usage of just a single application as opposed to an entire desktop, for example. Vista has a rebuilt audio stack which I am pleased with. The problem with this sort of seminar is not that; and often, the demos are well done. The problem is that the great majority of Microsoft configuration is done via GUIs. We can all read the options perfectly well. It’s no great architecture mystery as to how to enable NAP, for example. Instead, there is, I feel, more relevance in talking about how to update architecture designs to cope with some of the new technology. Of course, that’s very system dependant, and further, does not make for flashy demos.

They are at this time building the goody-bags; we are supposed to receive a copy of Windows Server 2008 Standard, Windows Visual Studio 2008 Professional, and Windows SQL Server 2008. Perhaps interestingly, when they were demoing Visual Studio 2008, they were using it to write HTML webpages; the last version of Visual Studio I’ve used was six, (So three generations behind: Visual Studio 6, Visual Studio .NET, Visual Studio 2005, Visual Studio 2008) but I was not aware at the time that it could be used as an HTML editor.

The presenter talked about how the ‘split-screen’ (combination WYSIWYG/Code) interface was a new and upcoming thing- I found this ironic, because Dreamweaver MX had an identical interface for maybe five years. However, admittedly, Dreamweaver MX is not a programming IDE; I’m not sure how the programming component works against split-screening. I found it very interesting, however, that the VS2008 IDE integrated its own web-server for doing on-the-spot testing of pages you’re designing. I do plan on slapping VS2008 onto my laptop and testing it extensively; the WS2008 I may keep. I’ve heard exceptionally good things about using WS2003 as a gaming machine, when very tweaked, and I am wondering about using WS2008 in the same manner.

It is interesting that during the demonstration of Windows Server 2008 Core, there is a mouse and in fact a GUI. This may not surprise the wide variety of people who are used to all Windows OSes released in the past ten years. However, one of the things touted about WS2008Core is that it does not have a GUI. Technically, that’s not really true, though. WS2008Core doesn’t have explorer.exe, and the associated garbage that goes with it (Outlook Express, etc, etc, etc). Instead, when you start the system, you get a blinking white command-line-interface over top of the standard blue Windows background. You have a mouse, and using it you can do things like right-click, copy and right-click, paste; if you type ‘notepad blah.txt’, a notepad window will pop up over top of the console that can be used classically.

Even if logging into WS2008 via Terminal Services, you won’t get a desktop, and the OS should be managed through the command line (although you can manage it with a variety of GUI tools loaded onto other systems.) One of the most awkward parts of it is that WS2008 Core doesn’t support the local powershell, which is designed to be an advanced version of the command line that supports things like object-oriented functionality. Rather, you appear to be stuck with the standard Windows Vista/WS2008 command prompt. Admittedly, I have not actually set hands on Windows Server 2008 as of this writing.

The software included was a bit of a let-down, though; Windows Server 2008 Enterprise, 365 day trial and Microsoft Visual Studio 2008 Standard.

However, I'm glad I went anyway.

Monday, February 25, 2008

Microsoft DreamSpark

On February 19th, Microsoft began its DreamSpark program. Essentially, DreamSpark is a program for students- a program that allows students who are interested in development (web development, software development, and game development, although the three of course may overlap) to use Microsoft software, for free, to do so in a non-commercial manner.

Major software, too- Visual Studio 2008 Professional, XNA Game Studio, Microsoft Expression Studio, Windows Server 2003 Standard Edition, SQL Server Developer Edition, and so on, as well as Microsoft VirtualPC (which of course is free for everyone). They claim that the program will expand to incorporate new tools as those tools are released (Windows Server 2008, etc).

Many technical news commentators have, like most of Microsoft’s latest moves (especially towards interoperability) panned the DreamSpark program. There is a lot of sentiment in the development world, especially the professional development world that Microsoft as a corporation engages in unreasonable, unfair, and in many cases, distinctly harmful business practices- and that this is only an extension of those practices. Specifically, they argue, the DreamSpark program encourages students to use Microsoft software, to accord to Microsoft practices and measures, and will therefore ‘lock them in’ to Microsoft technologies (which they will have to buy if they are going to release them commercially).

As a rule, I don’t agree with this view. I do believe that some of Microsoft’s policies are negative for the industry as a whole; I specifically reference the SMB/Samba debacle, where Microsoft’s extensions to the Server Message Block standard were, it is accused, specifically made a ‘moving target’ so as to make it more complicated and difficult for the Samba open-source group to re-implement it as free software. While it might be good business practice, I don’t know, it’s certainly not particularly good for interoperability. However, as a general rule, I do support Microsoft. I use Microsoft Windows. I use Microsoft Office. Both pieces of software, like any software, has flaws. However, both pieces of software have served me effectively and relatively well. I often find Microsoft Windows and Microsoft Office to be better, for me, than their Open-Source equivalents.

In that respect, I fully support this movement by Microsoft. The release of these tools opens the opportunities available to students, and I can only support that. Furthermore, I expect that I will get my hands on these tools because they’re now available for my own interest.

If you’re eligible, check it out; you might find it interesting.

Saturday, February 23, 2008

The Courts, Certiorari, and Public Perception

One of the things I find most aggravating, not only about public policy and the media but about public perception in general, is the seemingly enormous misapprehension the public generally labours under about what the Courts are supposed to do, and how.

One of the most concise examples I have seen fairly recently is this one, regarding the Writ of Certiorari. A little bit of history; the writ of certiorari is one of what are generally known as the prerogative writs, (the primary being Certiorari, Habeus Corpus, Mandamus, Quo Warrento, Prohibition, and Procedendo) which were orders, issued by the Courts in the name of the Crown or Sovereign, commanding one of the sovereign’s statutory delegates (Individuals whose governmental authority derives from a specific section of law) to perform a certain task (or, of course, to refrain from performing a task).

The general history of prerogative writs can be covered elsewhere; suffice it to say that a writ of Certiorari issued by an appeals court commands a lower court to send it a case for review. Courts are broken down in a variety of ways, but one of those ways is via jurisdiction; courts of the first instance are courts in which a petitioner, known as a plaintiff, may file, whereas courts of appeal are courts where a petitioner, known as an appellant, may ask for review of a lower court’s decision.

The way that a court, as a rule, grants this review is by issuing what was often called a writ of certiorari. In the modern day, especially in American courts, the writ is often named something else; a writ of review, leave to appeal, or whatnot. Often, the denial of certiorari is entirely at the discretion of the court one is appealing to. (This is not always the case; there are a variety of areas where an appeal must be granted, of course, but there are always exceptions).

One of the places where laypeople feel so confused is on what conditions a court of appeal tends to issue a writ of certiorari. Often, they believe that the writ is issued because the higher court does not agree with the lower court or has found a flaw in it; conversely, they often generally believe that the denial of a writ of certiorari means that the appeals court agrees with the lower court or believes its judgment to be sound.

This is false in both instances; but to understand why, one has to refer to two elemental judicial principles. Stare Decisis is the Latin maxim “To stand by that which has been decided”, itself akin to the famous “Let sleeping dogs lie”. More practically, a lower court may not overturn the decision of a higher court (if a case similar to one that has been decided by a higher court comes before a lower court, the lower court must obey by the holdings of the higher court; this is called precedent) and that a court of the same level should not, unless there is a good reason, overturn what it has previously held. The second principle is that of deference- that a higher court should not overturn the decision of a court of first instance unless there has been a mistake made- specifically, it should not overturn the decision because it would have ruled a different way, so long as the process by which that judgment was arrived at was legitimate.

As a result, the denial of a writ of certiorari does not mean that a higher court agrees with a lower court; it may simply defer to the judgment of the lower court and decide that there are no substantive grounds for review. In the alternate, the granting of a writ of certiorari does not mean that a higher court disagrees with the lower court. It may simple believe that the process was flawed (but that the outcome was correct) or that review is necessary to standardize, via stare decisis, the judgments of a series of lower courts.

The best example of the latter reason is illustrated in the United States Federal Circuits; there are eleven of them (actually thirteen, but eleven primary geographic ones), and each covers a separate physical area; the first covers the north-east, the second covers the New York area, the third covers the Pennsylvania area, the forth the middle of the east coast, the fifth the south, and so on. As a result, and as a result of the wildly varying public policy and public perception differences between the areas of the circuits, it is relatively common that the circuits differ in opinion. One of the most important reasons for an appeal to the United States Supreme Court is so that the Supreme Court may standardize precedent across all the circuits.

As a result, the denial of certiorari is not exceptionally unusual, and "…imports no expression of opinion upon the merits of the case, as the bar has been told many times." (Missouri v. Jenkins, SCOTUS, 1995) 7500 petitioners, for example, ask the United States Supreme Court for certiorari each year- and the court grants it in only a hundred or so cases. Appeals courts are by necessity smaller than courts of first instance; were they to hear every decision, the process would drag out immeasurably. But they do serve an important purpose and a check against gross error by lower courts.

Thursday, February 21, 2008

Hydrocarbons and the Fischer-Tropsch process- the myth of peak oil

It often bemuses me when environmentalists speak of ‘peak oil’ as the mythical time when our planetary oil reserves will suddenly vanish.

It does this for two reasons. Firstly, the oil reserves ‘available’ vary wildly depending on the current price of oil. For example, the cost of extracting oil from the Athabasca Oil Sands is between $36-40 dollars per barrel for a new operation. Given the historical price of oil, (as seen here, for example; note this does not show the current rise to almost $100 a barrel) one can see that a new operation was only economically viable in the period between about 1973-1985, and of course now, from about 2003 to present.

As the price of oil continues to increase rapidly in a process that shows no immediate signs of slowing or stopping, the economic viability of recovering hydrocarbons through other methods will increase as well; and more oil will become 'unlocked'.

Secondly, consider- what is oil? In its most basic form, oil is a hydrocarbon. A hydrocarbon, of course, is an organic molecule consisting solely of varying amounts of, you guessed it, hydrogen and carbon. Among other things, these two elements are some of the most common in the universe. By mass, the proportion of elements in the galaxy (in parts per million) is 739,000 hydrogen and 4,600 carbon. By mass, approximately 11% of Earth's oceans consist of hydrogen- or about 1.48*10^17 metric tonnes- 148 quadrillion metric tonnes. Carbon appears in a multitude of forms- not only in enormous quantity in the atmosphere as carbon dioxide, but also dissolved in water, in biological entities, and of course in various carbonates (and hydrocarbons) in the Earth's surface.

Consider this- we are concerned about running out of the first and fourth most abundant resources in the universe; a concern that when taken in this light seems somewhat silly.

The difficulty, of course, is that these reserves of hydrogen and carbon are not stored in reserves that are easily converted to hydrocarbons. But note that proviso- easily. As early as the 1920s, Germany, poor in oil, but rich in coal (itself a great source of carbon) had discovered a process (the Fischer-Tropsch process) by which it was possible to create synthetic liquid fuels from other substances.

More importantly, consider global warming- the primary culprit of which, we are told, is carbon dioxide. In fact, many organizations and governments are considering carbon capture as a way to slow or reverse global warming.

It seems inherently obvious, therefore, that the process by which we generate energy, (Fuel+Oxygen -> Heat+Water+Carbon Dioxide, or in other words, Hydrogen+Carbon+Oxygen -> Heat+Hydrogen+Oxygen+Carbon) can be reversed to generate liquid fuels from the byproducts- water and carbon dioxide.

Of course, thermodynamics must take its cut; the energy retrieved from the combustion reaction is extracted primarily in the form of heat, and sufficient energy must be injected into the constituent parts to recreate a feasible liquid fuel. But we have had a free lunch with all the pre-created liquid fuels so far; and power is not, in the grand scheme of things, something the universe lacks for, especially when liquid fuels are used primarily in mobile applications where larger, power-positive generation techniques may be unusable (solar, wind, nuclear; imagine your car covered with solar panels, a nuclear power plant in the trunk, and a large wind turbine on the roof.) However, this is in theory very similar to what proponents of 'hydrogen-powered cars' are trying to accomplish- creation of a new liquid fuel source. In fact, what they really should be doing is figuring out how to make the processes we can use to make more of our current liquid fuel source more efficient.

That is not to say, however, that our current carbon-based economy isn't full of holes- it is. You see, to generate these liquid fuels, power would be required- power that is currently being extracted in great amounts from hydrocarbon fuels, which is obviously a losing prospect when one attempts to use it to create hydrocarbon fuels. For an effective hydrocarbon creation system to come into effect, surface-based power stations would need to convert almost entirely or entirely to a different mechanism- both hydropower and nuclear power are of course key candidates. Fusion, if it ever stops being 'just around the corner' and steps into the main stream (I'm not sure whether to cheer for Bussard or ITER in this respect) will play a key role- both environmentally and technologically.

Wednesday, February 20, 2008

The Difficulties of Writing a Novel...

I've been writing for a long time. It started with role-playing with friends over instant messenger, morphed into fan-fiction, mostly Harry Potter fan-fiction (I am not embarrassed to say; my fan-fiction was often highly commended) and resulted in perhaps a dozen short stories, a poem or two, and half a dozen novels in progress.

Of these, I have tried to spread the writing around- a single science fiction novel, a thriller, a fantasy novel, a drama, and one that can best be defined as essentially vampire teen angst-lit.

The novel that is the furthest along is the science fiction novel. I laid down the idea about a year ago, but I only actually started writing in earnest about eight months ago and took a two month hiatus during December and January; today, I have approximately 45,000 words or so laid down, and the stringent story-planning and outlining has been set down for, I imagine, close to 40,000 more, and, when on my stride, I can write between 2000 and 3000 words an hour, although I rarely sustain this for more than two or three hours at a sitting, as the effort is exhausting and it tends to come apart at the seams- the tone fluctuates and the consistency fades.

One of the most difficult problems I run into while writing is consistency; this is especially true in a science-fiction context. I spend an inordinate amount of time making sure that sizes, ranges, weights, masses, and various other figures given do not conflict with each other and fall inside the realm of possibility or even probability. I similarly attempt to ensure a consistency of context- if a piece of technology does A once, it should continue to do A, and nothing but A, unless a good reason exists for this ability not being shown or referred to previously- especially if it would have been helpful before.

However, this can be crippling at times. For example, the Pride of Albion, a vessel in the novel, is approximately 1100 meters long by 360 meters across the beam and 360 meters in 'height'. What is an acceptable mass for this vessel? First of all, one would have to determine the volume- no small task when the object doesn't exist in the real world or as an accurate 3-D model. Then, one has to determine the density of components that don't exist. It is in some cases possible to base a density off of real-world ships, but various in-universe explanations (like wide-empty spaces) must also be taken into account. The amount of work involved in ensuring that the mass of the vessel, a figure that may only be used once or twice in the book is consistent not only with itself but with the wider universe as portrayed is perhaps an hour, or two- or even more, depending on whether or not one accepts a very rough approximation for volume or attempts to model the figure precisely.

The second leading problem is tone. I often find that it is a struggle to ensure the tone is consistent throughout a work (unless I write it in one sitting, which is possible for shorter works but not for entire novels). Rather, my writing will have a specific tone on one occasion and a slightly different tone on another, depending on my mood; and more importantly and disconcertingly, if I am attempting to force myself to write (generally by giving myself a quota of 1500 words per hour) the tone often tends toward the flat and uninspired, with lots of description but no flair. Attempting to ensure that I am in the same frame of mind that the tone of the story requires is sometimes difficult.

This is specifically important because different novels have, as a rule, different tones. A fantasy novel is told, in my writing, in a different way than a science fiction novel, in much the same way as an academic journal article is written differently from a letter to a friend or colleague.

This is specifically a difficulty, I find, of trying to tell a story over many different sessions; it's not an issue I tend to have with official works, because they have a consistent tone that should be adhered to.

Despite the fact that classes are coming to a crux at the moment, when classes end at the beginning of April I hope to dive back into writing with a vengeance. It's an excellent creative outlet, and the best way to get better is just to do it.

Moral Panics...

Monday evening and Tuesday afternoon, I was writing an essay for Sociology class on racial profiling. During the research phase (and these things never turn out the way you would hope- despite doing an outline and researching sources, during the actual writing phase I ended up referencing almost twice again as many additional sources that I had found to reinforce specific comments) I came across a series of interesting pieces of information that combined and clicked in my head.

Specifically, I was reading an interesting article about 'moral panic', which seems to be more prevalent then ever among today's societies; and how it relates to racial profiling (specifically of Arabs and Muslims.)

The article specifically used as an example school shootings: in it, it called to question the myth that there is an epidemic of violence. Quite the contrary; incidences of youth crime (in the United States) in all aggregate statistical indicators, has dropped by almost 35% in the past twenty years. There is now and always has been a greater chance of being killed by lightning than in an act of school violence.

This follows hot on the heels of a study in which large population segments in the United States, the United Kingdom, and Canada all claimed increasing crime was of vital concern, when in Canada crime is at a thirty year low and in the United Kingdom it is at a fifteen year low and in both cases on a decreasing trend.

In fact, one of these studies pointed out that (and I am quoting from memory, so I may have the figures slightly off) while 4/5 individuals felt that all the Muslim individuals they personally knew were no more or less trustworthy or moral or law-abiding than anyone else, less than 40% felt that Muslims in general were equally as trustworthy, moral, or law-abiding.

A book I sourced for a paper earlier in the year reinforced this- it was entitled The TV Arab, and it studied mainstream television programs over the past ten years. In more than a hundred television programs, the vast majority of Arabs were portrayed as terrorists. In fact, this book was published in 1984; the view is not new.

An article in the 2003 Osgoode Hall Law Journal by Reem Bahdi pointed out the disturbing trend of conflating Arabs and Muslims as the same stereotypical group, while according to the latest census data available at the time of that writing, 60% of Canadian Arabs were Christian, not Muslim. Another source suggested that 35% of Canadian Muslims were not Arab, while a third suggested that globally, the figures were very different- suggesting up to 75% of Muslims may be other ethnicities, specifically East Asian, African, and Eastern European.

Indeed, it quite appears that the situation has every hallmark of a moral panic- a widespread public fear of a certain group or occurrence, often without any logical or reasonable justification for the efforts made to 'crack down' on whatever is supposedly causing the moral panic and to re-establish the 'moral order', whatever that may be, and in doing so, appears to have linked together two groups which appear to be quite different.


Late last night, (it was approximately two thirty AM), I decided that I needed a blog. Now, I have more than one, specifically; however, I thought that one which specifically dealt with my main tracks of interest would be helpful.

Essentially, I am:

A law student.
A medical student.
A political-science student.
An aspiring novelist.
An artifex.
A network engineer.

Hopefully the postings here will reflect that; in that, each category will have its own label (plus main, of course, for posts like this one.)

And so I say to you, begone!