tag:blogger.com,1999:blog-154474022024-03-07T10:48:29.362-08:00Pith and SubstanceA pseudonymous blog about Canadian law and politics.
This blog should not be relied on as legal advice.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.comBlogger641125tag:blogger.com,1999:blog-15447402.post-22215930005135794352015-01-16T12:34:00.000-08:002015-01-16T12:51:59.376-08:00Bourgoin v. La Compagnie du chemin de fer de Montreal<div dir="ltr" style="text-align: left;" trbidi="on">
The constitutional issue in <a href="http://www.bailii.org/uk/cases/UKPC/1880/1880_8.html">Bourgoin</a> was whether a federally-regulated railway could sell itself to a provincial government without the authorization of a federal statute.<br />
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The answer was "no."<br />
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This result turns a lot on the way that 19th century corporate law differs from that of the present-day. Old-time corporations did not just get the civil rights of persons (which would include selling assets to other persons). They also had to act in accordance with their authorized purposes. Naturally, if the railway was federally-regulated, these purposes had to be provided for by federal statute.</div>
PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com3tag:blogger.com,1999:blog-15447402.post-80219225047553205452014-07-23T17:02:00.001-07:002014-07-23T17:03:38.954-07:00Cushing v. Dupuy<div dir="ltr" style="text-align: left;" trbidi="on">
The enduring issue in <i><a href="http://www.bailii.org/uk/cases/UKPC/1880/1880_22.html">Cushing v. Dupuy</a> </i>concerned whether a provision in the federal <i>Insolvency Act</i> making certain court judgements "final" meant the Judicial Committee could not hear an appeal. The Committee held that the effect of the provision was to exclude an appeal to the JCPC as of right, but did not effect the ability of the Committee to give leave. The rationale was that giving leave was an aspect of the Crown Prerogative, which could only be extinguished by a statute if the statute was explicit. The editor of the Appeal Cases court reports added "<i>quaere, </i>what powers may be possess by the Parliament of <i>Canada </i>so to do", a note that anticipated battles in the twentieth century.<br />
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So far, we have been able to avoid talking about the tricky ontological issues about what the Judicial Committee of the Privy Council <i>really</i> was. We were able to get away with just treating it like the final court of appeal for the Empire, which nineteenth century Canada was very much a part of. In the twentieth century, that gets embarrassing, but no one was worried about that when Britannia still ruled the waves and Gilbert and Sullivan were at the height of their creative powers. Why not have your final court in London? As we will see, the part of Canada least enthusiastic about dying to keep China British -- Quebec -- was even less enthusiastic about having the relative powers of the federal and provincial governments decided by a tribunal located in Ottawa and picked entirely by federal Prime Ministers. But that's all in the future.<br />
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But whatever its merits as an impartial and imperial adjudicator, the Judicial Committee was built on a pile of legal fiction. In theory, litigants did not appeal to the Committee in accordance with some procedure set out in a statute. The legal fiction was rather that the Queen Insurance Company or Madame Belisle, as a subject of Queen (and now Empress) Victoria, was appealing to the batty old Hanoverian herself. And as the descendant and ultimate successor of a Norman bastard with above-average luck and leadership skills, she had the prerogative right to entertain an appeal from one of her subjects that her judges had erred.<br />
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Now nineteenth century Brits were sharp enough to see that leaving deciding the fine points of insolvency law to a grumpy matron from a line of notoriously plodding intellects was not fair either to her or to the contending parties. Shortly before she came to the throne, Parliament had enacted the <a href="http://www.legislation.gov.uk/ukpga/Will4/3-4/41/contents">Judicial Committee Act</a>, which provided that members of the monarch's privy council who had "high judicial office" would constitute a judicial committee, and the monarch could refer matters to them, and they would advise him or her about them. This was already standard practice when colonial appeals were taken to the monarch, and it was already invariably the case that the monarch would just rubber stamp whatever the Committee advised.<br />
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However, some peculiar features arose from this fiction. For example, unlike the House of Lords, which was the final court of appeal for England and Wales, and whose judicial functions were exercised by largely the same people, the Judicial Committee always gave a single set of reasons, without dissent, since it would not be seemly for Her Majesty to receive conflicting advice about what to do. This was all good, since dissents and concurring judgements are really exercises in ego, and confuse lawyers.<br />
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The legal fiction had more controversial consequences in that it implied that any restriction on the jurisdiction of the Judicial Committee was, in legal theory, a restriction on the traditional prerogatives of the Queen. The constitutional battles of the seventeenth century had confirmed that Parliament<i> could </i>curtail Crown prerogatives, but went along with a presumption (remaining to this day) that it would not do so unless it said so expressly.<br />
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Sir Montague Smith reasoned that the <i>Act </i>must have intended to eliminate appeals as of right, but it did not explicitly eliminate the "Queen's" power to give leave. It therefore remained. The Committee gave leave, but it didn't help the appellant, since they ruled against him anyway. Or rather, humbly advised Her Majesty that her colonial court knew what it was talking about. Since the underlying issue was a secured transaction question under the <i>Civil Code, </i>which could only confuse common lawyers, that was a good move.<br />
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PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-74395854581213420582014-07-18T10:34:00.001-07:002014-07-18T10:35:37.383-07:00Valin v. Langlois: Thumbs Up<div dir="ltr" style="text-align: left;" trbidi="on">
Messrs. Bush and Gore were not the first to see the benefits of high-priced legal counsel when fighting over elected office. But the Judicial Committee in the 1870s at least was smarter than the SCOTUS about staying out.<br />
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Valin and Langlois were competing candidates for the riding of Montmorency in a long ago federal election. The 1874 <i>Dominion Controverted Elections Act</i> told such disputing candidates to take their petitions to the provincial superior courts. After losing on the merits, M. Valin complained that the provincial superior court could not have any such jurisdiction, because the "Administration of Justice in the Province, including the Constitution, Maintenance and Organization of Provincial Courts..." was vested in the provinces by section 92 (14) of the <i>BNA Act</i>. Our learned friend, and treasonous secessionist, Mr. Benjamin represented M. Valin before the Committee. He tried to persuade them that the Feds would have to create their own special federal court to hear such petitions, as they could do under s. 101 of the <i>BNA Act</i>.<br />
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The Committee ruled that s. 92 (14) did not agree. If Parliament had legislative authority (as it clearly did over federal election disputes), then it could choose whether to vest adjudicative jurisdiction in the provincial courts or in specially created federal ones. It didn't have to refer federal questions to federal courts.<br />
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This preserved our (almost) unitary judicial system, in which provincially-organized but federally-appointed trial courts are subject to provincial appellate courts and then the Supreme Court of Canada. This is a jolly good thing because it reduces the amount of jurisdictional craziness we have to deal with, and means our Supreme Court has to deal with some real, provincial law issues from time-to-time.<br />
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So thumbs up.<br />
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<b><a href="http://www.bailii.org/uk/cases/UKPC/1879/1879_68.html">Case Comment of <i>Valin v. Langlois</i> (1879), 5 A.C. 115 (J.C.P.C.)</a></b></div>
PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-9452552836180112012014-07-16T11:18:00.000-07:002014-07-16T14:49:01.380-07:00Hobby Lobby: Yes, corporations can have religious beliefs. No, those beliefs aren't necessarily the beliefs of the shareholders.<div dir="ltr" style="text-align: left;" trbidi="on">
The Supreme Court of the United States may be a politicized out-of-touch super-legislature, but it sure knows how to troll the blogosphere. In June, it released two abortion-related decisions. The <a href="http://www.supremecourt.gov/opinions/13pdf/12-1168_6k47.pdf">first</a> was boringly unanimous. But the second, <i><a href="http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf">Hobby Lobby</a>, </i>once again proved that abortion is an intimate decision between a woman, her doctor, talk-show hosts, and bumper-sticker manufacturers.<br />
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99% of Internet commentary on <i>Hobby Lobby </i>is ill-informed tribalist crap, but the case raises genuinely interesting issues. The story is that back in <a href="http://supreme.justia.com/cases/federal/us/494/872/case.html">1990,</a> a conservative Supreme Court held that the free exercise clause of the First Amendment does not give rise to a constitutional right of accommodation for religious minorities whose practices are affected by general laws with secular motivations. That's the rule the bad reactionary people in Quebec want now. It means that believers in traditional American Indian religions cannot take ritual peyote, and, to take the Canadian example that went the other way, <a href="http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/102/index.do">observant Sikhs can't work on construction sites if the only headgear permitted is a construction helmet</a>, <br />
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Nobody in Congress liked that ruling. The religious right didn't like it, because they saw themselves as protecting religious freedom. And liberals didn't like it, because they saw themselves as protecting unpopular religious minorities. So the 1993 <i>Religious Freedom Restoration Act</i> was enacted to near-unanimous support. It required that genuine religious objectors be accommodated when their practices violate general statutes, so long as any compelling purpose of the statute can be met with less restrictive means. It is a compromise. Society can definitely ban human sacrifice, and may be able to tell people to remove their veils to get drivers' licences, but it can't do whatever it wants without a good reason just because it is more convenient for the majority who don't share your wacky cultish belief system.<br />
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Under Obamacare, employers are mandated to provide health insurance to their employees. From a progressive perspective, this is a second-best to having the state provide universal health insurance, but for various historical reasons, that is how it had to be. Of course, this could easily be sidestepped if there were no rules about what "health insurance" must cover. So the Affordable Care Act delegates the power to require that certain preventative services be part of the insurance package. Among those services are birth control, and among the methods of birth control are some that many evangelical Christians believe are equivalent to abortion because they prevent a fertilized zygote from implanting. Of course, this happens all the time and no one organizes a funeral, but nobody says your religious views have to make sense to the Pithlord, who has been known to wonder whether the <a href="https://www.ccel.org/creeds/athanasian.creed.html">Athanasian creed</a> is completely down with the law of non-contradiction.<br />
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Hobby Lobby is a successful arts-and-crafts chain with a fair number of employees. Its shares are held by the Green family, all of whom are committed evangelical Protestants and believe that "morning-after" contraception is abortion and therefore wrong. We don't know what its employees think.<br />
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The five conservative justices held that requiring Hobby Lobby to provide insurance that includes morning-after birth control to its employees violates the corporation's sincere religious belief under <i>RFRA </i>and that in light of a number of accommodations given to churches and religious non-profit organizations (who are themselves legally corporations), the mandate cannot be imposed on it.<br />
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Interestingly, only two of the liberal dissenters objected to the first step in the analysis, which was that Hobby Lobby could have religious beliefs, and it makes sense to attribute to it the religious beliefs of its shareholders. Personally, I think that is the most interesting issue, since the accommodations do seem to create a huge problem for the government's assertion that Obamacare would fall apart if Hobby Lobby does not have to include the morning after pill in its insurance coverage.<br />
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This ought to be a hard case for liberals, which makes Ginsburg's rhetoric and much of the rhetoric in the feminist and liberal blogosphere a bit disturbing. However, some on the right don't even see why it should be hard. Liberals don't take the legal fiction of a distinct corporate person very seriously in other contexts. So why not agree that if the law requires a corporation to do something, this is logically the same as requiring its shareholders to do it? Even a libertarian as fair-minded as <a href="http://www.juliansanchez.com/2014/07/03/a-better-argument-against-hobby-lobby-part-ii-the-better-argument/">Julian Sanchez</a> doesn't really get it.<br />
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<u>Who is the firm?</u><br />
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Legally, a corporation is a person who is not an individual. Alito, for the conservatives, points this out. Since we widely acknowledge that religious colleges or hospitals have religious beliefs, Alito argues that the difference between 'for profit" corporation and a "not-for-profit" one is arbitrary. Kosher butcher shops come up. <br />
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Some corporations, though, are also the legal embodiment of a firm or business. A firm is not a legal fiction. It is a tribe, or community, or team. The corporation in a legal sense is a useful organizing device to bring together investors and employees. Either investors or employees might prefer to take their compensation as fixed claimants on the value produced by the firm or as residual claimants. Generally speaking, it is economically more efficient for a subset of investors (equity investors) to take their compensation as residual claimants because investors are better able to diversify risk that the firm will fail. But employees have more control over whether it will succeed, so this is not always the case. In practice, employees get some of their de facto compensation as residual claimants too, if only in the sense that job security and satisfaction is better when the firm is doing well.<br />
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Progressives differ from libertarians about workplace issues precisely because they are sensitive to the ways in which the firm is both a tribe, and a hierarchical tribe. Sure, when negotiating to enter the firm as an employee, the individual is free to do so or not depending on what is in their advantage. But once inside, the potential for mobility is less, and anyway the employee becomes part of an already-existing social structure that has norms of deference and of reciprocity. <a href="https://www.marxists.org/archive/marx/works/1867-c1/ch06.htm">As Marx put it</a> (anticipating Coase), inside the firm we leave the sphere of market freedom for the sphere of authority.<br />
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<span style="font-family: inherit;"><span style="background-color: white; font-size: 16px; line-height: 24px; text-align: justify; text-indent: 16px;">The consumption of labour-power is completed, as in the case of every other commodity, outside the limits of the market or of the sphere of circulation. Accompanied by Mr. Moneybags and by the possessor of labour-power, we therefore take leave for a time of this noisy sphere, where everything takes place on the surface and in view of all men, and follow them both into the hidden abode of production, on whose threshold there stares us in the face “No admittance except on business.” [....]</span></span></blockquote>
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<span style="line-height: 24px; text-align: justify; text-indent: 1em;"><span style="font-family: inherit;">This sphere that we are deserting, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to himself. The only force that brings them together and puts them in relation with each other, is the selfishness, the gain and the private interests of each. Each looks to himself only, and no one troubles himself about the rest, and just because they do so, do they all, in accordance with the pre-established harmony of things, or under the auspices of an all-shrewd providence, work together to their mutual advantage, for the common weal and in the interest of all.</span></span></blockquote>
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<span style="font-family: inherit;"><span style="line-height: 24px; text-align: justify; text-indent: 1em;">On leaving this sphere of simple circulation or of exchange of commodities, which furnishes the “Free-trader Vulgaris” with his views and ideas, and with the standard by which he judges a society based on capital and wages, we think we can perceive a change in the physiognomy of our dramatis personae. He, who before was the money-owner, now strides in front as capitalist; the possessor of labour-power follows as his labourer. The one with an air of importance, smirking, intent on business; the other, timid and holding back, like one who is bringing his own hide to market and has nothing to expect but — a hiding.</span> </span></blockquote>
Social democrats and progressive liberals disagree with Marx that the wage labour relation is inherently exploitative. But they do agree that it is potentially so, and that the freedom of the employee to quit or never apply for a job in the first place does not fully answer Marx's point. On this, I think their intuition is the intuition of most people in democracies, including even the United States, and is backed up by the transaction cost economics that gives a better picture of industrial organization than Marx was capable of.<br />
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On the social-democratic view, the right of shareholders to a residual claim on the surplus of the firm is just one part of a complex social contract. It is legitimized (to the extent that it is) by corresponding rights and expectations in the workforce. In the United States, this critically includes a right to employer-paid health care. Of course, as an economic matter, this is part of total compensation and therefore reduces the amount of take-home wage the employee would otherwise get. So it is even more, a <i>right </i>of the employee.<br />
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Once seen as a right of an employee -- at least an employee in an enterprise that is not itself religious -- the question of religious freedom seems very different. No liberal has an objection to an employee who thinks the morning after pill is murder refusing to use the coverage. So the issue only comes up when the employee thinks she needs it, and does not believe that God has forbidden it (or, perhaps, has decided to act contrary to what she thinks is God's will -- itself a religious act). In that situation, it seems that the Greens are interfering with her exercise of conscience because they are taking from her (in this one area) a right that American society has considered belongs to the employee.<br />
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In short, <i>for the purposes of exercising options on medical insurance, </i>the corporation is the employee, and not the shareholder. So for that purpose, in the only case that would matter, Hobby Lobby Inc. either disbelieves or accepts the divine wrath associated with post-fertilization pre-implantation birth control. The shareholders have no more right to interfere with that decision than the government. </div>
PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-42405548666166045692014-07-14T11:50:00.000-07:002014-07-14T11:53:23.251-07:00A.G. Quebec v. Queen Insurance Company -- Thumbs up<div dir="ltr" style="text-align: left;" trbidi="on">
Stamp taxes, legitimacy of enactment thereof. Some countries fight world-historic revolutions and found entire civic religions on the iniquity of imposing them without clear constitutional authority. Others relegate these issues to cases so obscure they don't have their own Wikipedia entry. But we got Mounties, Moose and Molson. So there.<br />
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It is sometimes thought that innovation and creativity do not mix with government work. Whatever the merits of this stereotype in the provision of public services, it has never been true at the treasury. Governments from the Tudors to today have been willing to give their right brain all the permission it needs to get freaky when coming up with new sources of revenue, especially revenue that can be characterized as something other than a tax.<br />
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The British North America Act restricted the provincial tax power to "direct taxation" (s. 92(2)). But they were also given power over "Shop, Saloon, Taven, Auctioneer, and other Licences in order to the raising of a Revenue..." (s. 92 (9)). In 1875, the legislature of Quebec got the bright idea of requiring a licence to sell insurance legally in Quebec, the only term of which was that the licensee remit a portion of premiums collected to the provincial fisc.<br />
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The Judicial Committee easily saw that this was in fact a tax, not a licence, and an indirect one. The real difficulty was in the line drawing, which the Committee did not do perfectly.<br />
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<u>Tax, licence: what's the difference?</u><br />
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Quebec's scheme did not provide for any fixed cost for the "licence." All the payments were based on the revenues of the insurance company. Judah Benjamin was once again Quebec's lawyer, and he pointed to other licensing schemes in the Empire in which the amount paid for the licence depended on the amount of business done. The Committee agreed that this was a good approach (important!), but thought there was a big difference between a licence fee based on past experience of the profits or revenues associated with the licence, and a "fee" that just was a share of those profits/revenues.<br />
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As a way of disposing with the particular case, this worked. But the line is inherently subject to manipulation by the government. The Privy Council introduced an important methodological point by saying that when considering what kind of statute constituted a licencing scheme, the judges should look at how other licencing schemes worked at the time. But formalism does seem to rule here. This area cries out for an economic analysis that nineteenth century judges were good at intuitively, but did not have the theoretical arsenal to express. <br />
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We have since moved to the principle that licence fees should be proportionate to the costs imposed on government by the licensing industry. This does cut back on the phrase "in order to raising a Revenue..." since cost-recovery is not really raising a revenue. The solution would depend on looking for actual scarcities that lead to rents that the province should be allowed to use to fund public services. A modern example (although familiar in certain contexts at the time) would be selling a licence to use up some of the assimilative capacity of the environment. There is a finite limit to how much capacity there is, so the government should be able to charge the competitive price and use the resulting revenue.<br />
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<u>Direct vs. indirect taxation</u><br />
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On the question of what constituted "direct taxation", the Committee was prepared to go to social science (which in this case meant Mill's political economy). I hate to bring this up for two reasons:<br />
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<ul>
<li>My law professors told me that using social science was invented in the 1970s by the judges they approved of (Laskin and Dickson). </li>
<li>The direct vs. indirect taxation distinction does not really work as a matter of economics. That's because it is supposed to be about who bears the ultimate incidence of the tax. If it is the same person as the legal payer, then it is a direct tax; otherwise, it is an indirect tax. But the marginal revolution in economics ultimately revealed that this depends on the elasticities of supply and demand, which could change while the legal form of the tax remained the same. The constitutionality of the tax couldn't really depend on changes in preferences and technology that left the law the same. So we got a lot of confusion. The real point should have been to require the provincial governments to be as transparent to their voters as possible about the costs of taxation. That is actually more-or-less what happens, but it would have been better not to bring social science into it.</li>
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Still, the JCPC struck down a law for the first time when that law was well worth striking down. Thumbs up.<br />
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<strong>Case Comment on <a href="http://www.bailii.org/uk/cases/UKPC/1878/1878_33.html">A.G. Quebec v. Queen Insurance Company</a>, (1878) 3. A.C. 1090</strong> </div>
PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-30055339420943695602014-07-10T14:34:00.000-07:002014-07-10T17:21:45.801-07:00Dow v. Black -- Spending Power -- Thumbs Down <div dir="ltr" style="text-align: left;" trbidi="on">
<strong>Case Summary of <em>Dow v. Black, </em></strong><a href="http://www.bailii.org/uk/cases/UKPC/1875/1875_17.html"><strong>[1875] UKPC 17.</strong></a> The origins of the spending power.<br />
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The Pithlord lives in a town that enjoys arguing about municipally-financed infrastructure projects (right now, a bridge and a sewage treatment plant generate most of the passion). Perhaps you do too. James Dow and William T. Black, who made their home in Confederation-era New Brunswick, certainly did. They were on opposite sides of a knock-down municipal battle about whether to subsidize a rail link to Maine.<br />
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The town of Boulton in Maine was willing to put up some of the capital to encourage a private company to build the link, but only if the corresponding New Brunswick parish of St. Stephen would match them. Dow and his supporters saw the benefits in jobs and cross-border shopping opportunities. Black and his cronies saw no reason for local taxpayer to foot the bill for a profit-making white elephant. <br />
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Weeks after New Brunswick became part of the new Dominion of Canada (to considerable controversy), its legislature passed a bill authorizing St. Stephen to borrow money for the project if 2/3 of the ratepayers voted "yes". Bill Black spoke for the motion. Jim Dow against. Bill and his friends got the necessary votes.<br />
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And so it would have ended, had not Jim Dow been a pioneer in trying to reverse political losses to court. He noted that s. 92 (10) of the <a href="http://www.canlii.org/en/ca/const/const1867.html">British North America Act </a> gave authority over railways "extending beyond the Limits of the Province" to the feds. He persuaded the New Brunswick Supreme Court (there is still no Supreme Court of Canada) that this was so. <br />
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Black's lawyer -- the former Secretary of State for the Confederacy, and now a British barrister named <a href="http://en.wikipedia.org/wiki/Judah_P._Benjamin">Judah P. Benjamin</a> argued that railways "extending beyond the Limits of the Province" did not include railways going to other countries. This was a dumb argument, and did not persuade the Privy Council. But they ruled for his client, and provincial authority, anyway. <br />
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The Law Lords distinguished sharply between regulatory authority and spending resources. The Act, they said, "was merely one which enabled the majority of the inhabitants of the parish of St. Stephen to raise by local taxation a subsidy designed to promote a work which they considered for the benefit of their town..." It was the same as if a private association or individual spent private resources for the same purpose.<br />
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This move --approved by conventional opinion to this day -- ultimately dooms classical federalism. Ultimately, subsidizing or penalizing activity is a (perhaps imperfect) substitute for requiring or banning it. If a provincial entity can tax and spend in federal areas, or (more importantly ultimately) a federal entity can tax and spend in provincial areas, then there is really no line between the two, other than the line they negotiate. <br />
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This move rests, moreover, on a fallacy. State resources are not like private resources. They are obtained coercively. The coercion can only be justified because of the purposes the state needs to fulfil. When that state is a federation, the purposes for which each level of government should be able to tax (and therefore spend) should properly be seen to be limited by the constitution. <br />
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I would therefore have dissented. (Except the Privy Council did not allow dissents. And I wasn't born for another century.) Building international railways was not among the proper functions of local governments under the post-Confederation arrangement, and therefore not something the local government (or any other provincial entity) should have been allowed to spend money on.<br />
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<strong>Postscript on municipal taxation</strong>: <em>Dow</em> is the source of the proposition that municipalities can tax their citizens if provincial legislatures authorize them to do so. Bill Black made an interesting argument to the contrary that the Privy Council didn't give a fair shake to. Section 92 (2) gives the provinces power tl make laws in relation to "Direct Taxation within the Province in order to the raising of a Revenue <em>for Provincial Purposes</em>." Contrast this with section 92 (9) referring to "Shop, Saloon, Tavern, Auctioneer and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes." <br />
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A good argument now and a good argument then was that the inclusion of "local or municipal purposes" in section 92 (9) renders their exclusion in 92 (2) meaningful. It would suggest that the BNA Act thought licence revenue should be sufficient for municipal and local government purposes, and therefore that <em>taxation</em> could only be used for provincial purposes. But the Judicial Committee didn't buy it, so if you are a homeowner, you still have to pay property taxes. <br />
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Wikipedia's take on the case is <a href="http://en.wikipedia.org/wiki/Dow_v._Black">here</a>.<br />
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PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-78913263357621245202014-07-09T13:23:00.000-07:002014-07-14T11:52:44.564-07:00L'Union St-Jacques de Montréal v. Dame Julie Bélisle -- Provincial Insolvency Powers -- Thumbs Up<div dir="ltr" style="text-align: left;" trbidi="on">
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Canadian constitutional law starts with a widow's fight for her pension. Consistent with our jurisprudence's lack of a sense of potential movie adaptation rights, she lost.</div>
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As the Pithlord grows older, few phrases evoke more pity or fear into his heart than "actuarial insolvency". As the former firefighters and teachers of Detroit have discovered, a promise to pay a benefit is only as good as the funding available to pay it. Human nature being what it is, error or misfeasance may mean that the funding is not good enough. At that point, someone does not get what they were promised.</div>
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Actuarial insolvency brought down Detroit, it brought down Greece and it could bring down all the western countries, since in a demographic decline, no solution seems likely to pass without the support of physically frail, but politically potent oldsters. The Pithlord imagines a death spiral in which more and more financial demands are placed on the still-fertile, who react by having even fewer kids. Eventually, the forest returns, preferably with some suitable Wagnerian background music.</div>
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Nineteenth century Quebec did not have those kinds of demographic worries, since most people could number their siblings with double digits. It also did not have state-sponsored social security systems, solvent or otherwise. It did have numerous benevolent societies, which collected premiums and then promised pensions and other insurance. L'Union St.-Jacques du Montréal was one such institution. Unfortunately, its actuaries weren't up to snuff, and it ended up owing a number of widows more in pensions than it could afford to pay. Some of the widows agreed to voluntary reduction, but as with Argentina's creditors today, there were hold outs. Julie Bélisle was one. She insisted on being paid what she had been promised. And <a href="http://www.bailii.org/uk/cases/UKPC/1874/1874_53.html">her stuborness started the whole tradition of Canadian constitutional jurisprudence.</a></div>
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The provincial legislature of Quebec (not yet calling itself the National Assembly) responded to the dilemma by restructuring all the pensions. Each of the widows would get $200 as capital, plus a possibility of more if the association got out of its financial difficulties. This was an ad hoc, political solution, but as General Motors and Chrysler taught us, we can't afford to be superior about it.</div>
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But ad hoc political solutions do not always have much legitimacy, and Madame Bélisle did not like the restructuring of her pension one bit. She pointed out that "Bankruptcy and Insolvency" is a matter to which "exclusive Legislative Authority" was given to the federal Parliament by item 21 of section 91 of the then-recent <a href="http://www.canlii.org/en/ca/const/const1867.html">British North America Act, 1867</a>. Only the feds could do what the province had done. She had a powerful argument, since in substance the province was restructuring obligations of an insolvent entity. The association argued that such a private Act (quite common in the 19th century) fit within the class of "Generally all Matters of a merely local or private Nature in the Province" given to the provinces by section 92 (16).</div>
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The Canadian court agreed with the widow, but the Privy Council did not. Certainly, the federal Parliament <i>could</i> have passed a general law dealing with the insolvency of beneficial societies. But it had not. It was therefore open to the province to deal with the sticky situation in a specific case. The Privy Council were conscious of how much of private law is really about priorities when there is not enough to go around, and saw that a rule like the one Madame Bélisle was seeking would have destoryed much of a provincial legislative power:</div>
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Their Lordships are by no means prepared to say that if any such law [as a general insolvency law for associations] had been passed by the Dominion Legislature, it would have been beyond their competency; nor that, if it had been so passed, it would have been within the competency of the provincial legislature afterwards to take a particular association out of the scope of a general law of that kind [...] But no such law every has been passed; and to suggest the possibility of such a law as a reason why the power of the provincial legislature over this local and private association should be in abeyance or altogether taken away, is to make a suggestion which, if followed up to its consequences, would go very far to destroy that power in all cases. </blockquote>
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B´lisle is now a pretty obscure case, even though it was the first and even though the issues in it are still with us. But it is useful for the following points:</div>
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<li> While it has been suggested (most recently in the Tsilhqot’in case, that overlapping jurisdiction is a "modern" problem based on our "more complex" society, courts had to grapple with it from the beginning.</li>
<li> Relatedly, the very earliest case suggested a reluctance to declare provincial laws invalid for entering the federal sphere when the federal Parliament had done nothing inconsistent with what the province was trying to do.</li>
<li>* If the heavily centralist approach of the early domestic courts had prevailed instead of the approach of the Privy Council to respect provincial autonomy and diversity in private law, the country would have looked very different. As Trudeau suggested, Quebec secession would then have been an accomplished fact. </li>
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Wikipedia's account is <a href="http://en.wikipedia.org/wiki/L%27Union_St._Jacques_de_Montreal_v._B%C3%A9lisle">here</a>.<br />
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PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-3430668558732713702014-06-18T10:25:00.000-07:002014-07-10T17:20:59.753-07:00Privy Council Blogging <div dir="ltr" style="text-align: left;" trbidi="on">
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Things have been a bit quiet here. Quiet enough to have driven away all my readers, except the loyal spambots (thanks guys!). This is a common enough tradition in blogging. At some point, the demands of family, work and healthy outdoor activities make even the most opinionated loser wonder about the value of arguing with anonymous people on the Internet about politics. There is a more active Canadian legal blogosphere than back when I started in 2006. So not much comparative value for the Pithlord. Still, and against my better judgment, I am going to try to reboot this thing.<p></p>
Management has decided on a niche marketing strategy. I am going to try to blog all the Canadian constitutional decisions of the Judicial Committee of the Privy Council between Confederation and the abolition of appeals to the throne in 1949. <p></p>
Some spambots and accidental googlers may wonder why I am narrowing the focus of the brand so much. After all, Pith & Substance once wandered over larger terrain, for example by <a href="http://pithandsubstance.blogspot.ca/2007/09/who-is-going-to-win-republican.html">triumpahtly predicting the victory of Fred Thompson in the 2008 Republican primary</A> and <a href="http://pithandsubstance.blogspot.ca/2009/03/ontarios-surprisingly-intelligent.html">presciently expressing optimism about the fiscal responsibility of the Ontario Liberals</a>. Well, you are just going to have to come up with that level of analysis for yourselves from now on, spambots. I have my reasons.<p></p>
The good folks at BAILII have put the JCPC's <a href="http://www.bailii.org/uk/cases/UKPC/">decisions online</a>. However, they are still image documents. I don't complain, but I think the relative availability of SCC cases on the Internet may give a lopsided view of the constitutional development of this country. I don't claim this is a centralist plot to subject provincial autonomy under the jackboot of Ottawa. <p></p>
But just in case, I would like to do my bit to make the cases more accessible to google. I also think that going through them in chronological order shows that the JCPC's jurisprudence was a lot more coherent than it is given credit for. Readers are invited to judge for themselves. <p></p>
If there are any.</div>PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-34445823033014838162011-02-15T17:16:00.000-08:002011-02-15T17:22:12.098-08:00EgyptDemocracy in Egypt is probably a bad idea, for reasons discussed by <a href="http://blogs.discovermagazine.com/gnxp/2011/02/culture-differences-matter-even-within-islam/">Razib Khan.</a> On the other hand, sticking to Mubarak would have been a bad idea too. <br /><br />Who really knows where Egypt’s popular enthusiasms will lead it, but surely it is a good idea for the US to minimize its investment in Egyptian domestic politics, one way or the other. If abandoing Mubarak et al damages “alliances” with Saudi Arabia or Ethiopia, perhaps it is worth asking how much those alliances are worth.<br /><br />No authoritarian (or for that matter democratic) ally of the US could look at the last sixty years and believe that Uncle Sam will be there for them no matter what happens domestically. If you take the Yankee dollar, you have to know it comes with no lifetime guarantee — and if you don’t, the shades of Diem, Marcos and Pahlavi will set you straight.<br /><br />It’s way too late for the US to develop a reputation for greater constancy, and I’m not sure it would be a good thing anyway. While I’m grateful for the relative peace and prosperity American hegemony has brought, I think it is more sustainable in the long run with a lighter touch. Not every regime in the world is going to be pro-American and it is better to plan on how to make that fact unimportant than to try to change it.<br /><br />Of course, the most likely result in Egypt now isn't democracy, but another pro-American military regime with a quasi-constitutional face -- Pakistan on the Nile.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-38648089799894040532011-01-11T10:36:00.001-08:002011-01-11T10:42:27.087-08:00Solomon's Seed?<a href="http://blogs.discovermagazine.com/gnxp/2011/01/the-genetic-affinities-of-ethiopians/#more-8987">Razib</a> looks at the genetic data about Ethiopians and concludes that (1) the Amhara and Tigrayans have a very different ancestry from the Oromo, and (2) "Ethiopians, in particular highland Ethiopians [i.e., the Semitic speakers], seem to me likely an ancient stabilized hybrid population between a population from Arabia, and a local Sub-Saharan population."PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-20904855897981363992011-01-04T14:19:00.001-08:002011-01-04T14:23:41.334-08:00Huckamentum<a href="http://tpmdc.talkingpointsmemo.com/2011/01/dem-pollster-huckabee-is-the-gops-best-bet-in-2012--so-far.php?ref=fpb">Democratic pollster says Huckabee's best bet for Republican nomination in 2012.</a><br /><br />Who called it in 2008? <a href="http://pithandsubstance.blogspot.com/2008/05/crystal-ball-2012.html">Oh yeah.</a> <br /><br />Of course, in light of this blog's past record, Huckabee shouldn't start celebrating <a href="http://pithandsubstance.blogspot.com/2007/09/who-is-going-to-win-republican.html">yet.</a>PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-26320112416586892662010-11-04T16:15:00.000-07:002010-11-04T16:23:22.312-07:00Conservative Domestic Policy Reform in US and CanadaReihan Salaam sets out an attractive domestic agenda for the Republicans <a href="http://www.nationalreview.com/agenda/252414/agenda-items-112th-congress-reihan-salam">here.</a> Everywhere and always the biggest villains are tax expenditures. Next are cost-plus gummint contracts (and disguised cost-plus contracts). The right sometimes views the first as tax cuts and the second as being friendly to business. It needs to realize that tax expenditures are just welfare and cost-plus contracts are corporate welfare.<br /><br />The Pithlord's not against a welfare state, but of course we have problems with affordability, especially in healthcare and moral hazard, especially in income support. A bad way to reform is just to means-test everything, since that effectively makes for punitive marginal tax rates on the working poor. The better way is to impose deductibles and then co-payments, which could be means tested. The welfare state needs to think more like an insurance company.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-24297844762674842972010-11-04T15:32:00.000-07:002010-11-04T15:37:55.307-07:00Universal Health Care Safe With Republican CongressCheck out the Republican <a href="http://www.economist.com/blogs/democracyinamerica/2010/11/health-reform_repeal">proposals.</a> Every single item increases government responsbility for healthcare in the US. <br /><br />The revolution is permanent. There will be much negotiating around the edges. The demographic/cost tsunami will eventually force US politicians, like those in Europe and Canada, to do some unpopular things, although this will be delayed to the last possible moment. But universal healthcare will remain a responsibility of the federal government. Forever. <br /><br />Good thing too in my view, and enough to ensure that Nancy Pelosi's name will last forever. But it doesn't matter how I evaluate it, since it's really none of my business. The point is as a descriptive matter, BHO has achieved what even LBJ couldn't.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-771237489319789662010-10-29T13:13:00.000-07:002010-10-29T13:22:47.640-07:00Why Constitutional Monarchy RocksThere are a lot of Yglesias-haters in the comment box, but I would like to point out that he makes a <a href="http://yglesias.thinkprogress.org/2010/10/the-case-for-a-king/">damn good case for constitutional monarchy.</a><br /><br />There is glamour in power. That's an irreducible fact about human nature. But democratic politicians shouldn't have access to that glamour.<br /><br />Also, for some purposes, we need someone who can make gestures on behalf of the nation. Active politicians can't sensibly do that, because about half the population (give or take) hates their guts.<br /><br />Unfortunately, Yglesias is too sanguine about actual Canadian practice. Liberals don't understand the monarchy, and have spent a lot of time trying to undermine it, so it isn't as unifying as one would hope. Quebec can't really get into it. And first ministers want the glamour, for the very reason they shouldn't have it, so they try to marginalize those in possession of vice-regal authority.<br /><br />The crazy thing is that people who should know better think the vice regents are a bigger threat to democracy than the desire of the Prime Minister's Office to presidentialize our system.<br /><br /><b>Bottom line</b>: You should totally be allowed to call the premier or prime minister "dude."PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-32669835408798293722010-10-13T15:17:00.000-07:002010-10-28T10:32:53.703-07:00Midterm PredictionIn the House, I say Republicans 235, Dems 200.<br /><br />Senate goes 50-50 (counting Lieberman and Sanders as Dems).<br /><br /><b>Update (October 29)</b>: I'm going to have to back out of the 50-50 prediction on the Senate. Can't see the Republicans doing better than 48, counting Murkowski as a Republican. I'll stick with my House prediction.<br /><br />As for a pre-mortem, if these numbers are about right, I disagree with those who think they are all the result of a bad economy. The primary drivers that the Democrats could not control are (a) regression to the mean after two good cycles for the Democrats and (b) the general tendency for the midterm electorate to be more Republican than the presidential year electorate.<br /><br />The other major factor is that conservative America is energized, while it was demoralized in 2006 and to a lesser extent in 2008 (although this is part of "regression to the mean"), while the progressive coalition is at more-or-less ordinary levels of unity and energy. <br /><br />The only way the Democrats could have changed this would have been to govern in a way less likely to anger conservative America. I disagree with those who say this would be impossible, but it would have required not using a once-in-a-generation shot at major legislative change. If the Democrats hadn't pulled off the "stimulus" (mostly liberal wish-list spending) and health care, the conservative base wouldn't be as fired up, and the results would be less one sided. On the other hand, the whole point of political power is to do things, so it may have been a worthwhile choice from the Democratic perspective. <br /><br />I suspect there won't be much legislation in the next two years, but there may not be a huge blowout between the President and the House either. Just a lot of sniping on the edges, as everyone prepares for the real showdown in 2012. In other words, 2006-2008 with the roles reversed.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-56624367187119109332010-09-30T22:04:00.000-07:002010-10-01T09:37:55.798-07:00The Cancon comes home to roost<a href="http://archives.cbc.ca/dossier.asp?page=1&IDDossier=2717&IDClip=13070&s=entrevue">Malcolm X on Front Page Challenge</A> (From Yglesias again.)PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-54210933254153042382010-09-22T16:17:00.000-07:002010-09-23T23:42:14.355-07:00Low Corruption Derives From Weird Extended Family Norms<a href="http://yglesias.thinkprogress.org/2010/09/measuring-individualism/">Yglesias</a> correctly argues that the social-democratic Nordic/libertarian Anglophone dichotomy is less important than what the two types of cultures have in common (relatively low corruption and good governance, lack of loyalty to extended family):<br /><br /><blockquote>I’ve been drawn to the “common cultural attributes” thesis just based on the observation that Nordic pop culture (Max Martin, Stieg Larsson, Ida Maria, Robyn) penetrates the Anglosphere very easily and has done so for a long time (Abba, Aha, Ibsen). It still strikes me that the most plausible mechanism here has to do with corruption and good government rather than individualism per se. I imagine that everyone looks out for his or her own interests, but the question becomes what does that balance with. If you balance it with fairly abstract principles of correct conduct, you get good government and enlightened self-interest. If you balance it with loyalty to extended family groups or long chains of personal connections, then you get corruption. <br /><br />But that’s just ideas I made up.</blockquote><br /><br />Yglesias could read the very unfashionable Frederic W. Maitland. The Teutonic cultures all shared a weird set of inheritance structures, in which <b>both</b> collateral maternal kin and paternal kin could inherit. Lots of stuff follows from that.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-5315795899542992352010-02-04T10:13:00.000-08:002010-02-04T10:17:47.605-08:00Don't Feel Bad, ColbyColby Cosh thinks <a href="http://www2.macleans.ca/2010/01/19/insite-foresight-hindsight/#more-102527">federalism jurisprudence</a> ought to be clearer than it is.<br /><br /><blockquote> You would think that Canadian jurisprudence had developed a clear objective rule for settling even the trickiest “double aspect” issues, wherein both federal and provincial governments can claim that some crumb falls within their respective spheres of constitutional power.<br /><br />You would, apparently, be wrong.</blockquote><br /><br />Actually, though, no one has ever been able to predict how the Supreme Court of Canada would determine federalism cases. It's a mess, and it's been that way since Duplessis was unable to stop St. Laurent from abolishing appeals to the Judicial Committee. Since that time, the Court has been split between the terminally confused and those who never wanted to strike down any legislation, provincial or federal, on division-of-powers grounds -- a position more-or-less adopted by the SCOTUS after the 1930s and defended for Canada by Paul Weiler.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-4076745231897757112009-10-19T10:08:00.000-07:002009-10-19T10:19:14.269-07:00Brilliant Kid-Liberal Wonk on Tribal MotivationsMatt Yglesias <a href="http://yglesias.thinkprogress.org/archives/2009/10/nimbys-messing-with-texas.php">slams down some honesty</a> about what motivates 90% of political bickering -- tribe:<br /><br /><blockquote>What I really wanted to talk about, though, was the rhetorical device of invoking a “Texas developer” as the bad guy in this scenario because it highlights some of the trouble progressive urbanists have in making our arguments. Roughly speaking, people on the political left tend to have a tribal suspicion of business people. And I’ll fully admit that I share it. At the same time, there’s a tribal admiration of the figure of the activist and the organizer. So when you see a dispute that pits a developer in a suit who’s probably a huge jackass against some community activists who probably love farmer’s markets and good music, you want to side with the activists against the jackass. But from the point of view of things progressives are actually trying to accomplish on a policy level, it’s generally desirable to build as densely as is feasible on already-developed parcels. And that’s often what jackass developers are trying to do, and it’s often what local activists are trying to block. The developers are not, of course, out to save the environment, it’s just greed.</blockquote><br /><br />My own feelings are equally irrational, but a bit more complex. Not surprisingly, in school, I never had much in common with the guys who became our local equivalent of Texas developers. In my twenties, I pretty much exclusively hung out with people who liked farmer's markets and "good" (i.e., indy) music. But as a result, I know the organic activist types' faults better, and they are the ones with whom I had roommate disputes, or bad breakups or who owe me money. So frankly they get on my nerves a lot more than developers, who generally seem to be doing something useful with their life. So I admit that before I am in a position to develop a rational and balanced understanding of the merits, I'm against the activists Yglesias instinctively sympathises with.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-70053697954108875072009-07-23T11:07:00.001-07:002009-07-23T11:09:08.788-07:00What Bugs Me About Michael Ignatieff: A Study in The Argument Ad HominemRobin Hanson of <a href="http://www.overcomingbias.com/">"Overcoming Bias"</a> thinks "signalling theory" can tell us something about the left, particularly the wealthy, "post-materialist" left.<br /><br />Signalling theory arises out of a paradox of game theory. It is often in our short-term self-interest to have a reputation for not always acting in our short-term self-interest. If people think my word is my bond (i.e., I will make sacrifices to fulfill my promises), then they will enter into transactions with me that they otherwise wouldn't and I'll be better off. If people think I am vengeful (i.e., I will make sacrifices to punish those who wrong me), they will avoid harming me when they otherwise would, and so on. From an evolutionary standpoint, the future benefit of having a reputation for doing such things is the explanation for why we have apparently unself-interested emotions in the first place. The trouble is that reputations for generosity, fair-dealing, vengefulness and so on are costly to acquire. So we are built (by generations of natural selection) with an aptitude for cheating: we try to get these reputations on the cheap. These mechanisms can be unconscious, and usually are, since if you can't fool yourself you are unlikely to fool anyone else. Other people are endowed by natural selection with a motive to pierce through my signalling strategies: I'm not.<br /><br />Which is where politics comes in beautifully. Political opinions, at least in bourgeois democracies, don't cost us much, if anything. But they can signal (for instance) that we deeply care about the poor, a reputation it is useful to have, without requiring charitable contributions, which can put a dint in one's lifestyle (and therefore other possible status-seeking strategies). The right sees this, if the left does not, and calls on leftists to "do good at your own expense." That's Hanson's theory anyway.<br /><br />Of course, a reputation for compassion is not the only kind of reputation that can be cheaply bought with political opinions. We, especially men, want a reputation for toughness and clear-headedness. We could get this by risking our bodies, but it is more convenient to get it by advocating muscular foreign policies. The left sees this, if the right does not: hence the "chicken hawk" argument which Dick Cheney and George W. Bush never liked very much: "Prove your manliness at your own risk."<br /><br />Neither critique is strictly relevant to policy questions. A social program might still do more good than it offsets in charitable donations, even if advocating it provides cheap psychological benefits, and the same is true of a military intervention. But these critiques at least have the merit of dissolving the aura of virtue (whether soft or hard) that floats around arguments for "doing something".<br /><br />Which gets me to Ignatieff, and the larger tradition of Pearsonian activism he has inherited. What bugs me about him is that he employs the signalling strategies of both the domestic left AND the international right, AND then leverages the contrarianness of doing both simultaneously into a reputation for "thoughtfulness." He's strong but sensitive. That would be appealing if Canada needed a boyfriend, but not if it is seeking a mere adviser to Her Majesty on matters pertaining to the federal government.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-38779960188555020902009-06-19T17:09:00.000-07:002009-06-19T17:17:11.499-07:00Beverley McLachlin or Dick Cheney?The Supreme Court is pretty anxious about its secrets, even long ago ones.<br /><br />The <a href="http://www.theglobeandmail.com/news/national/top-court-orders-clerks-to-keep-quiet/article1188221/">Globe and Mail</a> reports that the Court has sent out an e-mail threatening its former clerks with legal action if they talk to a social scientist doing an institutional study of how the court works. The study would have been anonymous.<br /><br />For reasons discussed by the <a href="http://iectomorph.blogspot.com/2007/01/spot-difference-2.html">Ectomorph</a>, it is unwise to get in a legal battle with the appellate court of last resort. <br /><br />Surely, there's no reason anyone should ever know how really important decisions get made. How did we lose Sunday shopping or legal restrictions on abortion? What happened with patriation anyway? It's none of your damn business.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-92154415384615943332009-06-19T17:06:00.000-07:002009-06-19T17:25:09.952-07:00Thoughts on Binnie on Original IntentScalia and Binnie had a set-to on originalism at some forgotten conference half a decade ago. It can be found in (2004), 23 S.C.L.R. (2d).<br /><br />Binnie acknowledges a heavy debt to his clerk, Patricia McMahon, an academic historian, and I don't think he was just being overly generous.<br /><br />For the most part, it is reasonably sensible and just rejects a cartoon "original intent" school that no serious person supports anymore anyway. Binnie says he can see merit in <i>Scalia's</i> more sophisticated original semantic meaning views. He points out that nineteenth century courts did not look with favour on extrinsic evidence of what politicians thought they were doing when they enacted statutes, including the BNA Act, but of course Scalia hates that more than anybody.<br /><br />Binnie notes that originalism has played a big role in the Canadian courts' interpretation of education rights and s. 96 (which constitutes the federally-appointed superior courts). <br /><br />An originalism that is just about linguistic change won't have much effect on interpretations of a document written in 1982. The only significant change since then is that "sex" now just refers to the act and we would no doubt use "gender" in section 15 if it were written today.<br /><br />Binnie's defence of the Motor Vehicle Act Reference is no good, though. (Perhaps in another post I'll say why._PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-42182090477043544072009-06-19T16:45:00.000-07:002009-06-19T17:06:36.740-07:00People Don't Want a Do-Gooder PresidentEveryone thinks that people that agree with them or are otherwise like them are more moral than people who disagree with them or are different. That's natural selection, baby.<br /><br />Still, we can sort of distinguish between the goody-two-shoes in politics and those with a more direct connection to the dark lord. LBJ and Richard Nixon have their defenders: by any reasonable account, LBJ was the most successful liberal president other than FDR. But even their staunchest supporters would be unsurprised to find out they were on the wrong side of judgment day. Joe Clark and Brian Mulroney had basically the same politics, and Mulroney was certainly more successful, but if Mulroney told you what time it was, you'd double check.<br /><br />Marnie asserted that in 2008, Americans were looking for someone more moral as President than GWB, and that Obama has disappointed them. Anyone who had illusions that Obama was something other than a successful Chicago machine politician because of his professorial demeanour and talents was <a href="http://www.newyorker.com/reporting/2008/07/21/080721fa_fact_lizza?printable=true">mistaken.</a> Obama's a calculating pol, which he has shown in his realist response to the Iranian fracas.<br /><br />But were Americans looking for something else? Something more idealistic? <br /><br />I doubt it. <br /><br />Let's start with his base. Obama was the perfect embodiment of the McGovern coalition of high-status highly-educated cosmopolitan whites and racial/ethnic minorities. Did they love him because he was moralistic? No, they supported him because he was one of them <br /><br />Next he won over the partisan liberals (the "Kossacks") who were initially attracted by John Edwards. This is one of the most tribalist groups in American society, for whom procedural scruples are the clearest sign of weakness of character. They were suspicious of his talk of bipartisanship and his professorial approach to ideas he disagrees with, but eventually decided he was the best they were going to get. THEY weren't looking for Jimmy Carter.<br /><br />But Obama didn't get the whole of the Democratic coalition. In fact, as we may dimly recall, he had a rough ride in the second half of the primary contest. Was that because the other half of the Democratic coalition were looking for greater morality in public life? No, it was because HRC was able to make the white working-class part of the Democratic coalition wonder if this guy had the stones to fight for them. <br /><br />So in the Democratic primary, no one was looking for idealism and niceness, and in fact the reputation for such characteristics was a liability.<br /><br />What about the general election? "Yes, we can" and all that crap? <br /><br />I seriously doubt that anyone not actually enrolled in a liberal arts university bought any of that. Again, it was a liability for Obama that he was putting that "inspirational" stuff forward. However, McCain was not able to capitalize as well as Ms. Clinton, because his Senatorial self-regard is tied up with his image of himself as above the partisan fray. His policy positions are pure moralism. So Obama was able to persuade people that he was old and crazy, and that his vice-presidential nominee was dumb and crazier, and won. <br /><br />Also, there was a financial meltdown.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-15425982699833391472009-06-04T12:09:00.000-07:002009-06-04T12:11:11.100-07:00Obama's Cairo Speech<a href="http://tpmdc.talkingpointsmemo.com/2009/06/obama-delivers-major-address-in-cairo.php?ref=fpb">First rate.</a> As he admits, of course, it's much harder to actually bring about better relations. But a US President is now actually a positive force.PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0tag:blogger.com,1999:blog-15447402.post-13656168243229960372009-06-04T09:37:00.000-07:002009-06-04T09:45:23.650-07:00Reading Judge Sotomayor (II)I'm not sure about <a href="http://berkeley.edu/news/media/releases/2009/05/26_sotomayor.shtml">Judge Sotomayor's</a> future as a quantitative social scientist:<br /><br /><blockquote>While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or <b>even in most</b> cases.</blockquote><br /><br />That seems like a claim that differences in gender and ethnic background explain at least half the variance in decision-making, in other words to an r-sqaured of greater than .5. But she rests it on a mere finding of statistical significance in a minority of cases:<br /><br /><blockquote>The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases.</blockquote>PithLordhttp://www.blogger.com/profile/03856231065567376894noreply@blogger.com0