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.


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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It is a fact of human nature that we tend to focus on conflict. Journalists and writers know this is their stock in trade, because without conflict there is no story, and nowhere is this more apparent than in discussions of right and wrong. Morality is the conflict-generator, and our sense of injustice is more than willing to weigh in on the legal implications following from these conflicts.

But what, exactly, is our sense of justice, and how is it to be explained?

According to Jonathan Haidt and Jesse Graham, our moral intuitions arise from the interplay between 5 core psychological responses. One of these relates to justice. Unfortunately, it is not quite clear what Haidt and Graham mean by justice, except that they associate it with fairness and rights.

Contrast this with a pair of papers by Paul Robinson, Robert Kurzban, and Owen Jones, who have a narrow examination of justice that pertains to punishment. They argue we have shared intuitions about the justice of punishment, and these arise from evolutionary biology.

It seems to me that these authors are talking about two very different conceptions of justice. Intuitions regarding justice-about-punishment are not the same as the intuitions regarding justice-about-rights.

Unfortunately, it is difficult to reconcile these views, because it isn’t clear where intuitions about punishment (criminal or otherwise) should fit in Haidt and Graham’s schema. This is a strange problem – all the more so because intuitive demands for punishment are studied in Haidt’s early examinations of moral disgust – and it means we are left to wonder whether intuitions about punishment and moral responsibility belong in one of the existing 5 categories or in a supplementary 6th category.

For further reading:


Today BoingBoing points us to a post at The Mouse Trap which references Carlsmith et al. (noted above) and a post at Do You Mind.

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With the arrival of open access, publishers are understandably worried they might be cut out of the process. To demonstrate their contribution, they’ve compared papers before and after copy-editing.

Given that Robert Campbell is President and Publisher of Blackwell, and Edward Wates is Blackwell’s UK Journal Production Director, it should be no surprise the study give a rosy picture of the contributions by their own publishing company.

It may also be no surprise that overwhelming number of errors involve citations – a category of error which might be caused in part by publishers’ insistence upon in-house style guides. (Even so, when that many people with advanced degrees can’t figure out how to format a footnote, citation formats need rethinking.)

The Wates and Campbell paper follows other data-laden but interest-driven attacks that amount to, “Open access: it’s not as good as you think”. See, for example, reports by the Publishing Research Consortium (Do Open Access Articles Have Greater Citation Impact?) and the Association of Learned and Professional Society Publishers (The Facts About Open Access).

These should be taken with a grain of salt – if publishers didn’t think open access posed a big threat, they wouldn’t be hiring PR strategists. A more balanced study can be found over at the open access Digital Library of Information Science and Technology (DLIST):

It observes:

…there was no question that the work of the copy-editors improved the readability of most papers…

It’s remarkable that studies have been conducted on this topic. The value of copy-editing should be obvious. However, I am reminded of a Supreme Court of Canada copyright decision that bugged me because of the way the court characterized copy editing. Their reasoning was that fixes to spelling and grammar didn’t warrant copyright protection because this editing was a “mere mechanical exercise” undertaken “without any skill or judgement”.

This seems off the mark. If good writing didn’t take skill and judgement, we wouldn’t have copy-editors, would we? It would have been better for the court to say some types of skill and judgement attract copyright protection, whereas others do not.

Here’s the court’s final draft, absent my ‘mechanical exercise’:

Even though copy-editing is incidental to authorship, at least inasmuch as copyright is concerned, publishers who say that authors’ manuscripts are made better by editing are right. Author’s drafts are filled with errors and confusions in numbers enough to make a careful reader weep.

They are wrong though, that a world without publishers’ editors necessarily diminishes the quality of scholarly literature, and mistakenly assume open access must take place without copy-editing.

Also, it would be wrong to say that in-house copy-editors are saving scholarship from bad writing. A quick survey of the existing literature in any discipline will turn up a lot of excruciating prose. You can’t blame copy-editors for this – they aren’t supposed to make stylistic changes or re-write swaths of text to make them comprehensible. It is authors’ own fault when their papers are unreadable.

So, here’s a twist: Perhaps readers should be aware of the frailties of an author’s writing. If authors didn’t have publishers’ editing as a safety net, public ridicule in a free market of words might inspire them to learn how to use commas and format footnotes for themselves.

A more realistic suggestion is that authors pick up the tab for fixing their bad writing. There’s no reason for publishers to shift the cost of editing to readers and libraries.

Either way, open access gives authors incentives to be better writers.

How’s that for framing the debate?

(Hat-tip to OptimalScholarship via Peter Suber, for mention of the OA copy editing studies)

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