Tag Archives: law

Ding Dongs

Uncategorized, , , , ,

Rob Ford has been removed from office (or, as many of my friends have written on facebook “ROB FORD HAS BEEN REMOVED FROM OFFICE”). Let me tell you, that makes-a-somma people angry! Say, and this may surprise you, Christie Blatchford.

I haven’t been able to read past the fold, but that’s more than enough. Here’s her headline

Christie Blatchford: 383,501 Torontonians voted for Rob Ford — not one voted for the men behind his ouster

Let’s be clear about what happened in this decision. In fact, let’s let Ivor Tossell do it, because he gives the clearest breakdown of the actual run of events I’ve seen to date:

Rob Ford runs a football foundation. He tirelessly fundraises for it from people he meets, including developers and lobbyists, and lately he did it with city resources. This is against the rules. The city’s integrity commissioner entreated him over and over to follow these rules–another person telling him he can’t do this, can’t to that—but to no avail. And after years of breaking rules that merely put him on the hook for financial penalties, Ford finally broke the rule that cost him his job: He got up in council and argued that he shouldn’t have to pay just such a penalty. Then he voted against parting with the money. That’s a conflict of interest, and some of the finest lawyers in town weren’t able to convince the judge otherwise.

Given this context, the only way of reading Blatchford’s argument, I guess, is that politicians shouldn’t be be removed from office for breaking conflict of interest rules – because it’s undemocratic. This is weird, but common: People have this vision of a democratic system where you elect a supreme ruler for 5 years and dude gets to do whatever the hell he wants. That’s not how it works, nor how it should. Politicians, especially municipal politicians, are elected to do a job. Breaking certain rules are going to get you fired, though apparently gross incompetence and not showing up to work won’t. It seems totally reasonable to me that, where the employer has clear rules about not getting involved in decisions that impact your own finances, losing your job should be a possible consequence.

Lots of people who are happy to see Ford go have nonetheless hedged their glee with the caveat that “this isn’t the way that they want to see him go.” Some of the hand-wringing seems to side with the “it’s anti-democratic” side. Me? I have no qualms about politicians who break the rules getting kicked out of office before their term is up. Others, however, are worried about the potential political fall-out from the decision. No matter the reasons of those whose renditions of “Ding Dong, the Witch is Dead” are sung in slightly hushed tones, their argument is, on the one that  “the law’s the law” and so the judge had little choice but, on the other hand (thanks again, Ivor!): “The law is too crude an implement and deserves to be revisited.”

Again, I am not so sure. As easy as is to attack the lack of discretion the legislation gives the judge – it required him, once he found a breach which did not result from inadvertence, to “declare the seat vacant” –  I am not sure that people have really thought through the alternatives. Many, I suppose, would like to see a law that gave the judge a wider set of penalties to draw from, based on the severity of the offence. The problem, of course, is that people very seldom violate a law like this so egregiously, so blatantly, so audaciously. Which means that, unlike in criminal law, there is very little precedent for a judge to rely on.

If the law had provided room for discretion, the judge would, essentially, have to decide himself what the penalty should be for Ford’s misconduct. Should it have been less because the amount in issue was “only” $3500? Should it have been more because the violation was so brazen, as in cases where “punitive damages” are applied? Should it have been less because it was done so clearly out in the open and not hidden, or does that mean it was brazen and contemptuous of the rules and everyone else’s compliance with them, and should be punished more? Should it have been more, or less, because he got involved in a decision on not paying money he owed, rather than on, say, awarding a contract to himself? These all seem like difficult questions to me, and were the judge had discretion, the answer provided would be fraught with even more political overtones. Can you imagine that anyone would have been happy with this decision if the judge had found Ford guilty and, say, “only” fined him $10000? Or if he had let Ford stay in office, but banned him from running in the next election? What decision could the judge have made in such a situation which would have seemed non-political? The judge himself – the full text of the decision is here – apparently would have liked more wiggle room:

The mandatory removal from office for contravening s. 5(1) of the MCIA is a very blunt instrument and has attracted justified criticism and calls for legislative reform

I am not so sure. Once you accept that courts can remove politicians from office for fraud, it seems to me that a “zero tolerance” approach is the only way to prevent the decision-making process from taking on terrible political proportions. The law is good enough as-is.

To be clear, I do wish that Rob Ford had not been removed from office in this way. Thanks to people like Christie Blatchford, this case will be used to attack  the legal system and to boost  the idea that the left, somehow, does not play fair. It may also, paradoxically, increase Ford’s chance of staying in office. But I also wish that Toronto’s mayor was not such a blustering, arrogant buffoon that he would break fundraising rules for city councillors, violate conflict of interest rules, ignore legal advice, and assume that the rules did not apply to him. It is the fact that he is, and that he did, which ultimately provides the fodder for Blatchford’s thoughtless, incoherent tirade. Not the judge. Not the conflict of interest law. Not the complainants in the case. Once more, Tossell nails it: Rob Ford got himself fired.

As for the meat of the decision, the only defences  Ford had to rely on was that the rules weren’t actually the rules, that he broke them accidentally, or that the amount at issue was “insignificant.” Ford has said he will appeal. The judges rulings on the first two issues seem watertight. Which means, given that they have to rule under the existing law, they could keep Ford in office by deciding that the amount is “insignificant.” But let us be clear: this would be a court saying that, when a city official owes the city $3500, there are no consequences for him voting on whether he has to pay it or not. I imagine that many taxpayers wish they had the same luxury.

But back to Blatchford’s analysis,

Toronto Mayor Rob Ford has been given the boot from office because an opportunistic citizen hired a smart and politically savvy lawyer who found a club of an arcane statute with which to tie the hands of a judge who was willing to play ball.

That’s the short and dirty version of the bombshell that has dropped

She seems to be saying : i. the people who wrote a law allowing city councillors who brazenly, purposefully violate conflict of interest laws were wrong to do so. ii. the people who brought this case to the courts to see if the law had been broken were wrong to do so; iii. the court system was wrong for hearing the case, despite having absolutely no discretion over what cases to hear. Each of these propositions seems wrong to me; I cannot read any further.

Hacking Humanities

Uncategorized, , , , ,

McGill’s very cool, very innovative, very cutely-named Institute for the Public Life of Art and Ideas (IPLAI, i.e. “I play”)  is running a fascinating workshop this Saturday on Thinking Art, which I was lucky to grab a spot in. The session seems akin to the participatory, open-ended unconferences of the barcamp model, displacing the “talking-head parade” which provides the skeleton for most academic conferences. In inviting working artists to interact with university-based scholars, it also promises to draw on the creative possibilities of bringing together different professional communities, much like the very successful launch of HackingHealth last fall (with a shout-out here to fellow Sauvé Scholar Jeeshan Chowdhury, a lead on this project).

In its format, then, the event opens a wide door on the possibilities for productive meetings in a university setting and, more importantly from my perspective, on the relationship between academia and the public. While there was an application process, the sessions – which are animated by such well-knowns as dancer Margie Gillis – are open to anyone who thinks they have something to learn and to teach about the interaction between the arts and the humanities as ways of interacting with and understanding the world.

Which also indicates that nothing is lost in the content, either. When people think of innovation, they often think about tech; the session is built on the idea that imaginative thinking is an important element of responding to our changing world. That theme seems to be integrated into the entire design of the session. The day’s activities include art-making, performance and discussion, but the theme of what art-making and humanities research can offer each other provides an orienting principle. The push against tired, repetitive thinking was at the forefront of the application process, which asked potential participants “In what ways does art think?”

Working through my answer was both intellectually invigorating and painfully humbling:

The difficulty of such a question is that we do not usually understand concepts or categories as themselves capable of thinking. Rather, the metaphor works this way: we think using conceptual objects; thinking is the manipulation of the boxes and bags of thought; it is the climbing on the net of ideas, not the net itself; certainly neither the net nor the nodes can do the thinking; the box cannot unpack itself.

However: when Winston Churchill (of all people!) remarked that “first we shape our buildings, thereafter they shape us” he pointed to the possibilities of art as artifact. The making of art in the world gives ideas substance, and while architecture or painting leaves a concrete residue, all art makes its mark on us. And we are thus manipulated. Put before us, we cannot control how art, too, shifts around the bags and boxes of thought; how it adjusts its weight upon the net. We can hardly avoid it. Even those standing guard against the risk that art  might change them, inevitably adapt in response to each experience of art – and thereby change.

We might say, then, that art thinks by placing our own thought outside us, or before us. It thinks not only by acting as a distorted mirror but forcing us to act as mirrors ourselves. It shapes us just as we shape it. What we put of ourselves into us, it unpacks of itself in us, transformed.

Given that even the application was able to force me to think obliquely to my own habits makes me very optimistic about Saturday’s outcomes. The question, however, is what value such a session could have to a lawyer, or to someone studying legal institutions. They asked me that question, too. Here’s what I said:

I am interested in parallels between the ways that art creates artifacts of thought in the world, which then constrain and shapes our actions, and the way in which law does the same thing. Obviously there are differences. Our experience of law is inherently normative; it not only pushes upon our thoughts, but also places its weight on our conscience. What concerns me more is the dynamic relationship which exists between art as a reflection of our regularities of thought and action, and vice versa. The two obviously exist in an imperfect correspondence, and there is much of ‘culture’ as artifacts of shared, persistent belief which may not fall under the sweep of ‘art.’ Yet I think there is some parallel between art and law, in the factor of deliberate shaping, in the understanding that we can somehow have an impact on thoughts and behaviours which is determinate, or at least delimited. In particular, I am interested in how artists and lawmakers may think of their craft not as forcing us to think or act a certain way, but as providing tools to help others live well.

 

Problem definition, regulatory logics and the incoherence of politics

law, politics, , , , , , , ,

Monday’s schedule included a well-organized forum held at the new Centre for Law in the Contemporary Workplace (I attended by videoconference). The discussions centred on the issues raised by the Supreme Court’s decision in Fraser, especially the extent of the constitutional protection for collective bargaining under the Charter of Rights and Freedoms.

Fraser‘s relevance to my own research derives not only from its focus on freedom of association, but on the Court’s increasing reliance on international labour law. As has become typical of discussions of this issue since the release of the BC Health Services decision, the most controversial comments came from Brian Langille, law professor at the University of Toronto. Without getting into too much detail, Langille’s criticisms (and his indictment of the majority was scathing) reiterated two themes of his recent work. First, he suggested that the court had lost sight or failed to correctly answer the fundamental question: “what is it we are trying to do?” Second, he suggested that the court did a bad job of two forms of derivation, both the transposition of international responsibilities into constitutional commitments and the translation of constitutional principles into constraints on government law-making.

When it comes to international labour law, I think there’s a deep problem with Langille’s approach. His criticisms share a basic premise with formalist approaches to law, namely that rules can be correctly derived from higher-level principles; and that these principles can also help resolve conflicts between rules whose application would be in conflict in specific cases. Now, the original critique of this claim from the critical legal studies movement was that such derivation is non-deterministic: that there is no politically neutral, logically coherent process by which legal conclusions can be drawn regarding the application of principles in specific situations. However, it is not this claim which concerns me – even most “crits” have retreated from this version of the claim – but rather a precondition for its possibility. What bothers me is that in some cases, it is not the interpretations of the principles which are contested, but the principles themselves.

Lawmaking, after all, is a political process. The players and participants in the process want different things. In a review of Bauer, Pool and Dexter’s 1964 study of the political process surrounding antebellum US trade policy,[1] Theodore Lowi notes an important finding:

The outcome depended not upon compromise between the two sides in Congress but upon whose definition of the situation prevailed. If tariff is an instrument of foreign policy and general regulation for international purposes, the anti-protectionists win; if the traditional definition of tariff as an aid to 100,000 individual firms prevails, then the protectionists win.

The advantage of Langille’s framing of the question – “what are we trying to do?” – is helpful insofar as it sets aside debates between formalism and functionalism, and implicitly sides with those who see no divide between principle and policy: both are cast simply as a matter of what the law is meant to do, and how it ‘works’ to accomplish that task. Once the problem has been defined and the successful policy choice promulgated into law, legal adjudication and administration can be made to cohere on the basis of a purposive interpretation of the resulting rules.

Unfortunately, purposive interpretation in international labour law is not so easy. I have spent much of the last week scanning the record of the last ten years of discussions at the ILO’s Governing Body, regarding the reform of standards and supervision processes. These are discussions of process, mind you, not discussions leading to actual international standard-setting. What these discussions reveal is unsurprising: action being taken and rules amended despite the absence of any consensus about problem definition. Without compromise at the level of problem definition – except for an agreement not to agree – the unfortunate result is a set of processes which reflect multiple, often incoherent logics. Each party tries to convert their interest into a principle, but neither principle prevails.

Such conflict of problem definition is just as likely to be reflected in international labour standards. While it is true that the ILO Constitution sets out high-level normative aims, the relevance of international regimes relies on their possession not only of a goal, but also an operative logic, i.e. an understanding of how specific norms will be realized by the policy or standard in question. Reading those Governing Body decisions has made clear to me that the resulting rules or procedures may actually embody conflicting norms which are inherent to the system, not accidental; the high-level aims may be purposefully vague and multivalent; and the resulting institutions may rely on multiple, incoherent logics. What a ‘correct’ derivation from the resulting texts might look like, in this type of situation, is without question a non-deterministic inquiry.


[1] The book is Raymond A. Bauer, Ithiel de Sola Pool, and Lewis A. Dexter, American Business and Public Policy: The Politics of Foreign Trade (New York, Atherton Press, 1963); the review is Theodore Lowi, “American Business, Public Policy, Case-Studies, and Political Theory” (1964) 16:4 World Politics 677

I suppose that’s a profession I would like to be a part of…

law, politics, , , , ,
Even if it is not immediately recognized as such, Law, as it is idealized by the new law student, is the philosophy of state power. Not in the explanatory sense of political science, but quite literally the philosophy which the state itself cleaves to in the exercise of that power. The idealistic among these students will join the ranks of the profession in the hopes that they might take part in contributing to this philosophy their own prejudices, fantasies and ires. But no matter how beneficial the edifice of the law or how lofty one’s principles, a tenuous bargain is involved in entering the walls of law’s empire, and it is one which should not be accepted lightly.
One is of course aware of the role of the professor to, as it were, continually attempt to expose the tears in the wall between the philosophy of the state and philosophy proper, that is, the human philosophy of everyday life. But so too is it the job of the law student. And, if one is fearless in their thinking; if one can escape from the work-a-day practices of the profession which result, if without conspiracy, at distracting from this question; if one is willing to risk, which is not to say sacrifice, the comfort and security of professional certainty and relative class privilege, then so too can this be the role of the working lawyer. The job of the law professor, then, is not just to expose the breach. It is to put the pick in the hands of the profession itself.

Flexibily or Arbitrarily?

law, politics, , , , , ,

How should those charged with applying the law administer it?

From a 2006 article on Latin American approaches to labour inspection, Michael J. Piore and Andrew Schrank hint at a fascinating approach to regulatory decision-making we like to pretend is impossible in Canada:

The flexibility of the Latin model in particular contradicts the image of labor-market regulations as bad for business. A telling example comes from our interviews with inspectors in France, where the Latin model originated but where it is currently under attack for its alleged rigidity. One inspector discussed his approach to the limitations on the use of temporary help and gave as an example the case of a large firm that he knew to rely excessively on temporary employees. He also knew, however, that it had an informal agreement with its unions to periodically move a certain number of temporary workers onto its permanent payroll, and in light of this agreement he simply ignored the temporary-help violations. His reasoning, he explained, was that the goal of the temporary-help restrictions was to expand permanent employment, and he thought he would be unable to obtain more permanent jobs by enforcing the existing regulation than by tolerating the admittedly illegal informal arrangement with the union. The law, he pointed out, is a means, not an end in itself.

My friend Sean is an ardent opponent of laws which are selectively enforced. He uses the example of drug laws which end up being applied so that the aggregate result is obviously racist. So where’s the middle ground? There’s a PhD thesis in there just waiting to be written.

virtuosity

politics, war, , , , , , , , ,

How are we supposed to go on and keep trying at anything when there are things in the world that are so much better than anything we will ever be able to do? And how are we supposed to keep going on, with all the terrible things that we do to each other and the sense of loss that comes with trying to make it better?

When we try, we feel not a sense of satisfaction, but of having done too little. Raoul Wallenberg hands out passports to Jews in Budapest and it is 1944 and it is 1945 and maybe he was a spy for the Americans and he dies in a soviet prison and these thousands of Jewish lives were saved and he hid them in buildings rented out, 20 of them, 30 of them, and they had names like ‘the Swedish Library’ and ‘the Swedish Research Institute’ and they all had giant, oversized Swedish flags hanging out front and it was just this open secret, 10, 20, 25 000 jews with Swedish passports living inside these buildings in Budapest until the Soviet army showed up 6 months later.

He climbs on top of a train, and the police are shooting at him and maybe they are trying to miss. They don’t hit him and he hands out dozens, hundreds of passports to their upstretched hands and then the Germans let them out because you don’t shoot the Swedes, because they are neutral and it just doesn’t make any sense. But if you close your eyes you can kind of imagine it happening, like it says here on wikipedia ‘the Germans and the Arrow Cross were so dumbfounded they let him get away with it.’

And you just kind of realize that you can try all you want to be that good and to make a difference like that and then and then and then.

It’s just not reasonable to be the kind of breathless, sensitive young person who at 14 watches Schindler’s List and then just sits in the kitchen crying  and just kind of chokes through sobbing breaths while his parents stare at him somewhat dumbfounded because maybe you remember that Schindler at the end says ‘I could have done more’ and I, this 14 year old, can’t even talk to them and then my sobbing turns to weeping and I look up at them. It’s awful because I have a hard time even believing it myself, and it’s not that I love who I am now, but I do love who I was then because the whole world was open to him and he could have done anything, he could have ridden a mule across the Andes, become a champion kick boxer, sailed to China and he, I just never thought seriously about anything other than this at the time, says through the tears ‘I should be doing something. I should be doing something and I just don’t know what to do. What if I don’t do enough?’

As if there was some measure. Here is Howard Zinn reminding us that the world is backward, because the wrong people are in jail, and the wrong people are out of it. The United States has almost 3 million people under incarceration, had in 2008 almost 1.5 million adults in prison and 100 000 youth in prison and here’s the other thing – they execute children who’ve probably done terrible things and in many ways they’re not children anymore by the time they get sentenced but the government puts them under sedation and then they give them painkillers and then they put poison into their blood streams and they never wake up. And people say ‘they should have known better’ but that’s just it, they didn’t know better. If they had known better they wouldn’t have done it. And the government poisons these young men and they are broken and we have failed them, even if it’s not your country or mine exactly.

They execute men who grew up sexually abused and burned and ignored and mistreated who have grown up crazy and twisted and dissociated and they do terrible things. But if they are monsters did we make them that way and what’s our duty to them now and if they aren’t monsters then how can we kill them when they are defenceless? And now 62% of Canadians say that they think we should have the death penalty for murder and people think there should be the death penalty for rapists, just for good measure. So in this old video, Michael Ignatieff says in this clinical and detached way that we shouldn’t have the death penalty in Canada because it’s irrevocable like we might make a mistake and how can he be so cold? What makes it so that he can have talked to these people in Iraq and in Kosovo and in Croatia and all he can say is with like, surgical precision as you would say to someone who suggests that maybe the engine needs replacing that ‘well, that seems a pretty rash measure.’ Why can’t he just say with his head tilted that we can’t take it upon ourselves to kill people, to purposefully snuff out their life when they want to live, we can’t do it, because it’s wrong, because it’s wrong, because it’s wrong?

And I know that the answer is the same as the answer to why there are now almost 1 in 100 Americans incarcerated and yet none of them are George Bush or Dick Cheney. Because those of us who engage ourselves in politics just have to accept the political expediency of if you kill 600 000 people in an unnecessary war and hold people without trial and then empower people to torture them, then you get paid $400 a ticket to speak but in California if you shoplift three times you go to jail for life. Thousands and thousands of people are in prison for minor drug-related offences and yes, drugs are horrible for a lot of people, but then how is Tony Blair is a free man?

And you struggle every day with the question ‘what am I supposed to do’ and then you read too much and you watch too many movies and you listen to too much music and you find that you can talk about anything and you can talk at length about the qualities of any of this litany of things. You learn from Bourdieu that taste is a product of class and privilege, and yet you believe that the art, the literature, the music matters – that it is right, that you haven’t just soaked up the preferences of your parents. And yet…

There are these moments in books, where Gatsby’s boat beats on against the current ceaselessly into the past and now, here, in Helen DeWitt, we have this just incredible tour de force, a book that starts strong and almost every page is better and better and reading it makes you want to be better. Because her candidates are not better at, they are simply one after the other better. The hero is the hero by becoming, not by being already.

And next I visit Rod, who’s is really no slouch himself when it comes to just being impressive and prolific and thoughtful, and I am only 90% of the way through her (DeWitt’s) book and – take a breath – it’s called The Last Samurai and I ask Rod ‘what should I read?’ I want to know about the law, I want to understand what it is I am supposed to do and what it has to do with the law and how we can be good and how we can make this place we live better. I am complicit in its shortcomings and we are all complicit in them and we could do so much better than all of this suffering. I am breathless and I am weak. I want to try again. Fail again. Fail better. My question to him is about the law and it is not about the law. It is about practice, what we do, the terrible things that we can do to each other and that we do to each other and the small kindnesses and insights and braveries that can overcome it. I tell him that I have decided to spend some time thinking and I tell him some of the things that I have been thinking about and some of the things that I have been reading. He puts his hands behind his head for a moment and then he chuckles and then he screws up his forehead. He says Hmm and he says this is like a desert island book and he says. I say it’s not like a desert island book, because I have time, and he says before I finish Beethoven’s sonatas. And I say I don’t read music and he says the full collection of Walker Evans and I say I don’t know who that is and he tells me about Walker Evans, who narrated by photograph the death of the American farm. And he says you want something with words. And I say well and he says Paradise Lost and well, I guess I was hoping he would say Kelsen, who could tell me how they pretend the law is supposed to work. Or Bourdieu, who would tell me where the law sits inside everything else. Or some political theorist or legal theorist I hadn’t heard of or some other one that I know about but don’t really know about.

And now I am downloading 33 sonatas on 9 cds and I am looking at Walker Evans and then I finished the Last Samurai and now instead of writing a book about Burma, which is a story that someone else is telling already, I have to write about Job and how we can’t know God’s will and so we can’t presume to know whether anyone deserves what they get, and I have to write about humanitarian intervention because if we are going to demand the impossible then we should demand an impossible that doesn’t require us to drop bombs on people’s heads and I am going to have to write an essay in which I ask and try to answer ‘what makes Dan Deacon work?’ and then I am going to have to spend 33 hours or so trying to listen to Beethoven and I am going to have to read Paradise Lost and I am going to have to try to tie it all together because that’s what being honest about the question ‘what am I supposed to do’ means. It means that I can’t presuppose that any of this stuff doesn’t matter to that question.

I tell Rod about Wallenberg, or that I plan to use Wallenberg in something and he says ‘or who they say he was’. And I say but I don’t want to use Wallenberg, I just want to use what they say about Wallenberg. And he says well, but we should celebrate the story and not the person and I say yes exactly because for me, it is the story that matters, it’s a good story and he says well yes but what if so was Mein Kampf’?

And I think for a tiny second that maybe we need to be sure, that I need to be more sure than just it’s a good story. But then I can’t think of any way to be more sure than that so I say ‘but my story is better’ and he says yes and then he says that’s the right answer.

So I try and commit to writing better stories but I know they’ll never be good enough and it’s almost as if you could die. But you can’t, because, well, then why bother with all that blue and gold?

Swedish Institute for Practical Ethics and Breathlessness and then