Cross-jurisdictional judgments

A question I am pondering now as I work is that of cross-jurisdictional judgments. It is fairly common in a federal system (like the United States or Canada) for there to be some form of recognition by other territorial divisions of the legal judgments or determinations of other divisions.

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...

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...

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.

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....

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 19^th 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 8^th, the Supreme Court’s ruling was June 2^nd) 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.

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.

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.

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.