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Archive for the ‘law’ Category

There’s a great discussion going on over at the Empirical Legal Studies blog, where legal scholars are thinking about the merits, problems and functions of law reviews. This forum was prompted by research by Jason Nance and Dylan Steinberg, “The Law Review Article Selection Process: Results from a National Study.” Many of the points apply equally well to scholarshp in Canada.

My thoughts parallel those of Benjamin Barton, who had this to say (in post #5, with emphasis added) on the incongruity of faculty complaints about student editors:

First, there are so many student-edited law reviews that it is not an exaggeration to say that virtually anything a law professor writes that is in English and makes some vague sense can and will be published. This is an enormous comparative advantage for a law faculty member over other disciplines, since a law professor can remain “productive” regardless of whether their work is relevant or even particularly good.

Second, having students edit most of the work means that law professors do not have to. Being a reviewer for a peer-edited journal (let alone being an editor) takes a great deal of time, and is in many ways a relatively thankless pain. The fact that student editors do the bulk of this work is a major benefit for law faculties.

Peer review in the law is an embarrassment to the discipline, and authors are coddled by overworked student editors who are intimidated by faculty. It needs to be fixed, and a look to how things are done in the humanities and social sciences would be a start – just make sure to take the open access path, so everyone can see the results of reform…

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If you have a subscription or google the title of the piece, you can read an interesting New York Times column about Brandon Garrett’s empirical analysis of 200 wrongful convictions.

The study in question is called Judging Innocence, but we have to wait until January to read it in the Columbia Law Review. In the meantime, consider the causes of wrongful convictions:

  1. Eyewitness Misidentification
  2. Unreliable or Limited Science
  3. False Confessions
  4. Forensic Science Fraud or Misconduct
  5. Government Misconduct
  6. Informants or Snitches
  7. Bad Lawyering

(The links above will take you to the Innocence Project in the US. In Canada, we have the Association in Defence of the Wrongfully Convicted.)

According to the study, the most common cause of conviction is eyewitness error. It is responsible for 79% of wrongful convictions. As if that were not astounding enough, false confessions were made by innocent people in 36 – or 18% – of the 200 cases.

This means two of the leading causes of wrongful convictions can be attributed to the frailties of human mind, because the instruments of justice rely on fallible statements by witnesses and the accused. If neurolaw is to make its mark anywhere in the criminal justice system, perhaps it should be in the prevention and correction of wrongful convictions.

(Hat tip goes to the Jonah Leher, for mention of the NYT column)

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The Globe and Mail has a short item on the new logo for certified organic foods in Canada.

org.gif

Here is part of the official statement from the Canadian Food Inspection Agency, with emphasis added:

The Canada organic logo will be permitted for use only on those food products certified as meeting Canadian standards for organic production such as using natural fertilizers and raising animals in conditions that mimic nature as much as possible. Certified products must also contain at least 95 per cent organic ingredients. Following the phase-in period ending in December 2008, it will be mandatory that all organic products be certified for interprovincial and international trade.

Raising animals in conditions that mimic nature as much as possible? That caught my eye, so I looked up the the Organic Products Regulations (which are enabled by the Canada Agricultural Products Act) and found it requires compliance with a set of policies that includes this: Organic Production Systems — General Principles and Management Standards. In that document, not only do we find this regulation is part of a (long overdue) legal effort to stem the use of agricultural antibiotics, but we see this enjoinder

Livestock shall be managed responsibly with care and respect.

That’s encouraging, but it would be more convincing if statements like the following were not included:

Tail docking of pigs is prohibited except to control tail biting and shall be permitted only when all other efforts to eliminate this behaviour have proven unsuccessful.

Beak trimming and de-toeing of birds is prohibited unless all other efforts to control problem behaviour have proven unsuccessful.

The sort of people who buy organic food might just think cutting off bits of animals should be prohibited entirely, especially when its purpose is to prevent behaviours caused by poor living conditions.

Regarding those messy details, I’ll point you in the direction of a book by Peter Singer & Jim Mason: The way we eat: Why our food choices matter (2006). It reveals how the legal and moral issues about food certification are not as black and white as the logo pictured above.

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[ed. note: this post has been changed after initial publication to prevent confusion]

Congratulations, America, your country is one presidential veto away from requiring open access to tax-funded research.

For further information:

I do wonder, though, if arguments framing this as a taxation issue are really what the open access movement needs. It might be the reason that I have heard some scientists pushing open access as just ‘American research for Americans’ – and expressing protectionist resentments about U.S. research falling into the hands of people who didn’t pay for it.

Surely we don’t want jingoism to feed an unhealthy and small-minded attitude that open access should stop at national borders – especially when open access has such potential for international development.

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In a timely news item, following on the heels of my earlier post on misplaced pride in gut feelings, we have the following:

A British Columbia Provincial Court judge ruled last week that Canadian border guards seeking to dismantle and search a vehicle need a warrant to do so. The judgement is already being appealed.

For comment, we have Ron Moran, president of the Custom Excise Union. I’m not sure why a union official feels a critique of Charter jurisprudence to fall under his mandate, but he gives some good sound-bites in his interview with As It Happens, which appears about 10 minutes into the show. He is also quoted in this Globe and Mail article,which includes a lot of Charter- and judge-bashing in the comments by people who have obviously not read the judgement.

If you do read the judgement, R. v. Sekhon 2007 BCPC 0224, it seems clear the judge understands the necessity of border searches but was not impressed by the customs officers behaviour – either at the border or in court – and wanted to send a message:

The Inspectors, to a person, took the view that all borders are Charter-free zones… Canada Border Services Agency officers must somehow be made aware that while individuals seeking to enter or return to Canada have a reduced expectation of privacy from that which they have on the streets of Canada, that such people do in fact have Constitutional rights that must be respected.

Whatever the merits of the case, I mention it here to illustrate how gut feelings – in this case hunches – are routinely considered by border officers to be sufficient grounds for a search. Take the example of Ron Moran, who says in the CBC interview:

The intuition of officers is probably one of their strongest tools, and certainly nobody comes up to us and tells us when they care carrying that type of contraband, so we are left with our intuition and our hunches, unless there is specific intelligence involved.

Gut feelings are the principal mode of investigation for border officers? How reassuring.

While the courts have taken a relaxed view of customs searches since R. v. Simmons 1988 CanLII 12 (S.C.C.), they have yet to approve of gut feelings as a sufficient reason for an detention and search. Quite the opposite is true: In R. v. Jacques, 1996 CanLII 174 (S.C.C.) and later in R. v. Mann, 2004 SCC 52, a majority of Supreme Court of Canada followed the Ontario Court of Appeal in R. v. Simpson, 1993 CanLII 3379 (ON C.A.). As a result, “hunches based on intuition gained by experience” are not good enough.

I wonder how border officials will cope with being denied what they see to be their strongest tool. So far, the Canada Border Services Agency has yet to release a statement beyond that carried by the Globe and Mail article.

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