Amici Curiae: Ornery Originalism, Judicial Branding, and Autistic Juror Furor Edition

Iacobucci on Historical Redress
“If anything is to be done with the Indian, we must catch him very young,” wrote N.F. Davin in an 1879 report commissioned by the Canadian federal government with the end of emulating the system of American Industrial Schools for natives. Unfortunately, the Canadian government followed Davin’s wretched advice. Slaw’s Omar Ha-Redeye considers the consequences, and their ongoing resolution, in context of a recent speech given by former Supreme Court of Canada Justice Frank Iacobucci. The justice, who served as a federal government negotiator in the talks that led to the 2006 Indian Residential Schools Settlement Agreement, remains scandalized by Canada’s political complicity and moral ignominy in the affair. Ha-Redeye notes Iacobucci’s adamance that one “can never get adequate compensation for the loss of formative years in that kind of setting.” As well, Iacobucci stresses the precedent importance of the redress settlement awarded to those Japanese Canadians held in WWII internment camps: “[I]t was, just like the Japanese-Canadian case, a symbol of saying there was a wrong, and this is an attempt to show we want to try to make amends for that wrong.” Iacobucci relates that the settlement process and consequent prime ministerial apology — “one of the most moving moments he has seen,” according to Ha-Redeye — represent “the most satisfying experience I’ve had in my time as a lawyer.”

British Supremes Ask: Who’s a Jew?
The British Supremes recently took on two questions “as ancient and as complex as Judaism itself,” The New York Times reports: Who, for instance, is a Jew? And who gets to decide? In R (E) v. Governing Body of JFS, the court considers a challenge to a Jewish high school’s admissions policy that prioritizes admission based on whether an applicant is Jewish. The school, which determines one’s Judaism under the Orthodox definition, decided that the plaintiff “M” was not a Jew because his mother converted to Judaism in a progressive, rather than an Orthodox, synagogue. “M” sued after his application for admission was rejected, but he lost at trial. That decision was then overturned in what the Times calls an “explosive decision” of the Court of Appeal. The higher court found that the school engaged in racial discrimination when it dismissed “M”‘s application based on the identity of his mother, notwithstanding the school’s theological motivation. “The motive for the discrimination, whether benign or malign, theological or supremacist, makes it no less and no more unlawful,” Lord Justice Sedley said for the court. “[E]ligibility must depend on faith, however defined, and not on ethnicity.” The Times, however, doesn’t predict whether the Supremes are likely to agree with that line of reasoning.

Constitutional Originalism’s Achilles’ Heel?
In a controversy that obliquely parallels the case of the late Paul de Man, U.S. Supreme Court Justice Antonin Scalia and his judicial philosophy continue to be dogged by a single awkward issue: the import of the originalist stance regarding the Brown v. Board of Education decision in favour of school desegregation. Where the revelation of De Man’s collaboration during the Belgian occupation provoked a crisis of legitimacy in deconstructionist circles, the dilemma here centres on whether or not American constitutional originalism is embarrassingly, perhaps fatally, implicated in Brown. More specifically, could an originalist like Scalia have voted with the majority in Brown and still have claimed to be an originalist? The New York Times’ Adam Liptak reports on a recent, sometimes testy, debate between Scalia and his colleague, Justice Stephen Breyer, a more liberal colleague, that addressed the questions that plague originalist exponents. Did the authors of the Fourteenth Amendment contemplate the desegregation of American schools and, if not, what then for originalist precept? How should one reconcile the decision in Brown with a constructive doctrine that would hold it as wrong? Breyer, says Liptak, asserts that “the specific understandings of those who ratified” the Fourteenth Amendment are to be discounted in light of “the value underlying the language in the Constitution.” Scalia would have none of this, saying that such a construction was a jurisprudential “piece of cake,”a facile “following the ‘values'”. Scalia, says Liptak, “spat out” this last word “as though he had just taken a spoonful of anthrax.” Watch the justices duke it out here.

The Impossible Film: Twelve Angry Autistics
Should high-functioning autistics be able to serve as jurors? The question troubles Scott H. Greenfield, a New York criminal defense lawyer. In his post at Simple Justice, Greenfield responds to an impressively honest piece by an equally troubled autistic woman who enumerates those characteristics of autism that seem inimical to juror eligibility. “My own issues,” she writes, “include a difficulty in comparing nuances and social cues, as well as paying attention without my mind wandering off to other completely unrelated subjects.” Most damningly in this context, though, she admits to difficulty in “discerning truth from fiction.” Greenfield is no less frank in his assessment of the issue. In the case of a high-functioning autistic, he says, any disqualifying symptoms are likely to survive jury selection in that they tend to elude immediate detection and “would never be notable during voir dire.” Greenfield finally arrives at a principled, however unwelcome, conclusion that autistics are necessarily unfit for jury service: “While people with autism should be able to do almost anything that anyone else can do, consistent with their functional abilities, serving as a juror just isn’t one of them. In the balance of rights, the defendant’s must prevail.” While Greenfield’s is a broadly sound categorical judgment, one wonders if the generalizations upon which he bases that judgment unfairly prejudice those autistics who actually possess an abundance of the qualities required of a good juror. What do we do in the case of someone such as Dr. Temple Grandin, for instance? Moreover, could one infer from Greenfield’s thesis that the exclusion line should be moved back even further? To wit, what of Aspergers, whose suspected “sufferers” include the likes of Newton, Einstein, and the father of Pokemon?

Judicial Immunity Revisited
Courts may have repeatedly held since the 14th century that judges have immunity from civil suits, but a pair of Pennsylvania plaintiffs are out to try and change that, The Wall Street Journal reports. The story begins with federal prosecutors filing fraud charges against Mark A. Ciavarella and Michael T. Conahan, judges on the Pennsylvania Court of Common Pleas. The charges allege that the judges sent numerous juveniles to detention centers over several years in exchange for more than $2.6 million in kickbacks. Those juveniles have since filed civil suits seeking monetary damages for violations of their civil rights. Jeffrey M. Shaman, a judicial ethics expert and law professor at DePaul University quoted by the Journal, agrees that the plaintiffs have an uphill battle, but suggests that the doctrine warrants revision: “Absolute immunity should fall away when judges engage in this type of egregious and intentional behavior that causes serious harm.”

Justice Kennedy shall make no request abridging the freedom of the press
Justice Anthony Kennedy, an ardent defender of First Amendment protections, including freedom of the press, provided students at New York’s prestigious Dalton School with an important lesson in journalism this week. The justice’s office, The New York Times reports, insisted on approving any article the student newspaper wanted to run about the speech he gave to students. The court’s public information officer defended the demand, saying it was only made to ensure the quotations attributed to Kennedy were accurate. But Frank D. LoMonte, the executive director of the Student Press Law Center, an independent group that advocates for student press freedoms, would have none of it: “It’s a request that shouldn’t have been made,” he told the Time’s Adam Liptak. “That’s not the teaching of journalism. That’s an exercise in image control.” The story — with “a couple of minor tweaks” — has yet to go to press, but the Times got a hold of it and reports on certain details of the speech.

There is but one Bow Wow
The phrase “bow wow wow, yippie yo, yippie yea” belongs exclusively to funk legend George Clinton, a panel of the U.S. Court of Appeals for the Sixth Circuit affirmed. The court found the use of the phrase in a song by hip-hop and R&B group Public Announcement infringed Clinton’s copyright, the Tennessean reports. Clinton and two other songwriters first penned the phrase in 1982 while writing “Atomic Dog,” one of Clinton’s best-known works. A jury had awarded $89,000 to the plaintiff. Pointing to evidence from “expert musicologists” and the likes of scholars like Harvard’s Skip Gates, Justice Martha Craig Daughtrey noted for the court that “the Bow Wow refrain “is one of the most memorable parts of the song.” No word on what this means for Shad Gregory Moss a.k.a. Bow Wow f.k.a. Lil’ Bow Wow. The case is Bridgeport Music v. UMG.

Actual and Corporate Blindness in the Video Game Biz
If only by definition, one might assume that video games would be off limits to the blind. Not true, says True/Slant’s Paul Tassi, who writes that, “with enough practise,” the blind and visually impaired “can navigate some games by sound cues alone.” Certain game companies, for instance, have incorporated audio tutorials, audio compasses, and voice-overs in their products, and World of Warcraft and Rock Band are particular favourites with the blind gamer crowd. Unfortunately, some game companies, particularly Sony Online Entertainment, are not as enlightened as these others, treating the blind with the invisibility they have, um, traditionally enjoyed, meaning they have done nothing whatever. Thus Sony, reports Tassis, has been hit with a lawsuit under the Americans With Disabilities Act (ADA). Brought by a single blind gamer, Alex Stern, the suit not only “specifies the ways in which other [and doubtless poorer] companies have made their games accessible,” but it alleges that Sony “ignored repeated requests … to come up with reasonable modifications to make them more accessible” and to bring their games into line with the ADA. Although Sony has refrained from comment in the matter, they at least have one up on THQ, the makers of highbrow games like WWE Smackdown. In their response to gamer Brandon Cole’s inquiry as to whether or not THQ could make their games more accessible to the blind, Cole laughs that the company sent him a fantastically obtuse letter “thanking [him] for [his] appreciation of their cutting-edge graphics.”

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