Amici Curiae: Badgering Counsel, Judicial References and Simian Abolitionism Edition
Supremes Drawn into Securities Fight
The federal government recently pulled the Supreme Court into the middle of its spat with the provinces over whether Ottawa has the power to create a national securities regulator. “In the best courtroom manner, the Harper Conservatives are taking care to ask a question to which they already know the answer: of course Ottawa has the power to establish a national securities regulator,” argues Maclean’s Paul Wells. That conclusion will no doubt please Attorney General Rob Nicholson, who bragged in a statement that “the Government is supported by many of Canada’s foremost constitutional experts.” But Wells notes that the reference raises broader issues: “The Supremes will ﬁnd themselves tempted to draw some sweeping conclusion about the nature of federal responsibility for the economy, and the limits of provincial responsibility.” And that, suggests Wells, is just fine by the Harper government.
Polygamy is still illegal, right?
After a setback at trial which saw charges against two polygamists thrown out, British Columbia Attorney General Michael de Jong has asked the province’s courts whether anti-polygamy provisions in the Criminal Code pass Charter muster. The government is posing two questions that seek to clarify the meaning and constitutionality of s. 293. “I am asking the court for its direction so the justice system, in B.C. and in Canada, can address the serious social harms that can result from the practice of polygamy,” de Jong said in a statement. Federal AG Nicholson chimed in as well, saying that “[t]he prohibition on polygamy is certainly consistent with Canadian values.” Reaction on the blogosphere this week has been surprisingly muted. Beverley Baines of Queens University’s Faculty of Law did, however, tell Law is Cool earlier this year that the government may run into a multitude of Charter problems in defending the provision, including its original religious purpose and a lack scientific evidence demonstrating harm in polygamous relationships. On the other hand, the University of Toronto’s Lorraine E. Weinrib has suggested “[t]he Charter challenge is by no means a slam dunk.”
Mercenaries and their Liabilities
Jeremy Scahill writes in The Nation that “mercenary firm” Blackwater (now known as Xe Services LLC) and its owner, Erik Prince, may yet be liable for war crimes allegedly committed against Iraqi civilians. Last week, U.S. District Court judge T.S. Ellis III rejected a motion by Blackwater’s lawyers to dismiss all five RICO Act and Alien Torts Statute actions launched by Iraqi plaintiffs against Blackwater and Prince. Blackwater’s motion to dismiss was based in part on its reading of the U.S. Alien Tort Statute (ATS), which, says Scahill, “allows for litigation in US courts for violations of fundamental human rights committed overseas by individuals or corporations with a US presence.” Blackwater’s argument that only criminal actions committed in pursuit of a “legitimate ‘military objective’ rather than economic or ideological reasons” could be actionable under the ATS was firmly rejected by Judge Ellis, who wrote that the criteria would create so vague a framework by which to judge war zone conduct that, arguably, “nobody who receives a paycheck would ever be liable for war crimes.” Ellis as well refused to let Blackwater shield itself with executive privilege vis a vis governmental “battlefield decisions”, although he did so on the strength of U.S. government filings which disavow any connection with Blackwater and state that the defendants were not acting as employees when they committed their alleged crimes.
For Michael Ratner of the Centre for Constitutional Rights, which cooperated in filing the plaintiffs’ cases, the real victory lay in the court’s ruling that “violations of war crimes [sic] can be committed by private people or corporations” and that “those who engage in violations of fundamental human rights abroad can be held liable in the U.S.” For the interested, Kenneth Anderson recently outlined some of the arguments for and against corporate liability under the Alien Tort Statue at The Volokh Conspiracy.
Walzerian Torture Waffle
In Character recently interviewed Michael Walzer, political philosopher, Dissent editor, and Osgoodian legal theory favourite/bête noire. This pithy Q&A looks at Walzer’s take on the laws of war from the perspective of citizen, soldier, and, as figured in international law, humanity. Walzer candidly says that his work is used as academic target practice in illustrating philosophical incoherence. While, for example, he may see an unequivocal good in the post-Nuremberg evolution of international law, he can also argue that the “ticking time-bomb scenario” justification for torture is at once notional and persuasive. On the one hand, he asks, isn’t that scenario itself “political science fiction”? On the other hand — and perhaps, in historical context, unfortunately — Walzer disavows the maxim “do justice though the heavens fall.” He asks what we might tell a distressed and threatened citizenry if, given the opportunity, we did not torture.
Thomas, Patron Justice of Counsel
Justice Clarence Thomas, the famously taciturn member of the U.S. Supreme Court, thinks his colleagues on the bench should stop badgering counsel during oral argument and let them speak instead, the AP reports. Thomas, who hasn’t asked a question during oral argument for some four years, said he and the other eight justices almost always know where they stand on a case by reading legal briefs before oral arguments. “So why do you beat up on people if you already know? I don’t know, because I don’t beat up on ’em. I refuse to participate. I don’t like it, so I don’t do it,” Thomas said during an appearance before law students at the University of Alabama. He dismissed the idea that the justices try to use questions to influence the opinions of fellow members of the court. “All nine of us are in the same building,” he said. “If we want to sway each other we know where we are. We don’t need oral arguments to do that.” Ah, but you do need oral argument to make for interesting podcasts.
France Convicts Church of Scientology of Fraud
French judges fined the controversial Church of Scientology a million dollars for fleecing vulnerable followers but stopped short of banning the group from operating in France, the AFP reported. Had it not been for a change in the law (since reversed), AFP noted that the court may well have banned Scientologists from operating whatsoever. France regards Scientology as a cult, not a religion and has prosecuted individual Scientologists before, but this case marks the first time the organisation as a whole has been convicted. The Church of Scientology said it was the victim of a politically-motivated “witchhunt”; its lawyer said the Church planned to appeal. In a related note, Oscar-winning Canadian writer-director Paul Haggis quit the church this week over its stand against gay marriage.
New U.S. Hate Crimes Law May Have Constitutional Problems
President Barack Obama signed a new hate crimes bill into law this week, winning significant praise in the liberal community. The act, named for Matthew Shepard, a gay univeristy student who was murdered in 1998, extends new federal protections to people who are victims of violent crime because of their sexual orientation or gender identity. But Nat Hentoff, writing in Real Clear Politics this summer, is no fan of the new law. In addition to arguing that it fails to pass constitutional muster on First Amendment grounds by punishing a so-called “thought crime”, Hentoff also claims the law “violates the 14th Amendment’s equal protection under the laws for individual Americans by setting up a special collective class of victims whose assailants, when convicted, will be given extra punishment for crimes perceived to be based on gender identity, sexual orientation or disability, among other biases.” (HT: WSJ Law Blog)
UK Family Law: Opportunity Explosion!
In his essay, “The Lion and the Unicorn”, George Orwell paid nuanced tribute to the common sense, phlegm, and essential “privateness of English life.” “The most hateful of all names in an English ear,” said Orwell, “is Nosey Parker.” If once true, it isn’t anymore, although “Nosey Parker” may now be a ministerial title. The state’s recent and controversial confiscation of a newborn child on grounds of familial obesity-propensity is followed by this: the Daily Telegraph reports that parents are being barred from their children’s playgrounds. Watford Borough Council’s state-vetted “play rangers” are the only ones allowed in two borough playgrounds, while parents “must watch from outside a perimeter fence.” While the Council has issued a reply, the UK’s anti-pedophile legislation, Safeguarding Vulnerable Groups Act 2006, with its consonant pedophile database and “barring and vetting” scheme, appears to be producing what one hopes are unintended consequences.The UK’s Criminal Records Bureau, responsible for the October 12 implementation of the “barring and vetting” scheme, has asked the Labour government’s Chief Adviser on the Safety of Children to see whether or not the legislation is narrow enough in scope and “appropriate for real life situations.”
Towards a Simian Abolitionism
On Point‘s Matthew Heller happily reports that Conquest of the Planet of the Ape’s chilling vision looks more remote than ever now that U.S. District Court Judge Richard E. Dorr has ruled that monkeys are not, in fact, service animals as contemplated in the Americans With Disabilities Act (ADA). Plaintiff Debby Rose uses a Bonnet Macaque monkey to help her cope with anxiety and agoraphobia when out in public. The monkey employs sophisticated tricks like “direct look with an open mouth” or “gentle push” to keep bustling passersby from aggravating her owner’s condition. When, oddly, a number of Springfield, Missouri stores, including Wal-Mart, took exception to the presence of her glaring, shoving primate, Rose sued. In dismissing the claim, Judge Dorr said that “the vast majority of [the monkey’s] tasks involve nothing more than providing comfort” and that “an animal that simply provides comfort or reassurance is equivalent to a household pet, and does not qualify as a service animal under the ADA.”