Mr. Harper, Strengthen the Diefenbaker Bill of Rights!

Russ Brown blogs about the Ontario Court of Appeal's decision in Authorson #2. In a nutshell, the federal government screwed over some war veterans by not investing their pensions so that they got no interest. The pensioners eventually found out and threatened to sue. The government then enacted the F--k You Veterans Act,* which provided that the federal government would pay no compensation whatever for its screw up and the veterans would get no interest.

The Charter of Rights provides no protection for property rights. However, there is another quasi-constitutional document binding on the federal government, the Diefenbaker Bill of Rights. Section 1(a) recognizes and affirms "the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law." The pensioners tried to argue that the depriviation of their right to compensation offended this section. They lost at the Supreme Court of Canada. Any act of Parliament, by definition, complies with "due process of law."

Russ Brown's comment relates to the aftermath of the SCC decision. Amazingly, an Ontario superior court judge allowed the pensioners to bring an identical lawsuit to the one that had been dismissed. As Brown notes, this is contrary to our system of court hierarchy, and pretending otherwise doesn't really do the pensioners any good.

But the larger, political question is why there hasn't been a bigger backlash against the SCC decsion, comparable to that after the Supreme Court of the United States upheld the expropriation (with compensation) of someone's home for an "integrated development plan" in Kelo. The situation of the veterans seems more outrageous. While the SCC's decision was consistent with the anemic manner in which the Bill of Rights has been interpreted historically, it would have driven Mr. Diefenbaker himself to paroxysms of indignation.

The Bill of Rights is a statutory instrument, and it could be rewritten by a majority in Parliament. The Harper Conservatives could sensibly make it a priority. The key would be to include language that parallels that in the Charter, thereby importing the stronger tests for the protection of property rights. I've made an attempt at drafting below:

1. The Canadian Bill of Rights guarantees the rights and provides for the obligations set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society with a market economy.

Economic Rights and Responsibilities

2. Every person has the right:

(a) To lawfully acquire, use and dispose of private property without unreasonable interference.
(b) To enter into contracts with other willing persons and to have those contracts respected.
(c) To practice any trade or profession.
(d) To associate with other persons for the purposes of commerce or labour relations.

3. The Government must not:

(a) Deprive any person of property except for public use and with full compensation, or for an offence prescribed by law as determined by an unbiased tribunal after a fair hearing.
(b) Interfere with an existing civil right or obligation, including a right or obligation under a contract or collective agreement, except for a public purpose and with full compensation.
(c) Discriminate in the awarding of public employment or contracts on any basis other than obtaining value for the public, and in particular, on the basis of residence or any ground of discrimination prohibited under s. 15 of the Canadian Charter of Rights and Freedoms.
(d) Enact a retroactive law, except a tax measure retroactive to the beginning of the taxation year on which it is introduced.

4. (a)Parliament may expressly declare in an Act of Parliament that the Act shall operate notwithstanding a provision included in this Bill.
(b) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Bill referred to in the declaration.
(c) A declaration made under subsection (a) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(d) Parliament or the legislature of a province may re-enact a declaration made under subsection (a).
(e) Subsection (c) applies in respect of a re-enactment made under subsection (d).

*Actual name of statute may differ. Image of J.G. Diefenbaker CP Staff Photo.

Thoughts on Syl Apps

The Supreme Court of Canada ruled today that parents can't sue child protection workers for negligently taking their children from them. The Court thinks that allowing such a thing would put these workers in a conflict, since their paramount duty should be to the children. This may be the right conclusion. But I have a few thoughts:

*Once again, the whole Anns/Cooper analysis doesn't do any work. Lawyers have to keep the policy considerations going into the second part of the first stage separate from those going into the first part of the second stage, but it's all nonsense. The law would be as certain, and quite a bit clearer, if the court just said it will create new duties of care when it thinks it is a good idea and not when it doesn't. As I understand it, this is roughly the law in England.

*The Supreme Court decided there was no duty "on the pleadings." In other words, without a trial or even affidavit evidence. The Court ruled that there would be no case even if everything the plaintiffs claimed were true. At least formally, that was the issue in the Court of Appeal: the majority didn't necessarily say that parents can sue child protection types in these circumstances, but that there should be a trial to figure this out.

I would have liked to have seen some discussion of this process point. I tend to agree with the SCC that judges should do as much work as early on in the civil process as they can: it isn't fair to either plaintiff or defendant to make everybody put in evidence and have a trial if there is no cause of action anyway. But, of course, if you need evidence to decide something, then you should wait for the evidence.

The implication of the SCC deciding the "duty of care" issue on the pleadings is therefore that it doesn't need evidence. But we are also told that the question of whether to recognize a new duty of care is principally one of policy, and involves questions of expectations, representations and reliance. Dwelling only on policy, it is at least conceivable that child protection experts or law-and-economics experts could give evidence on how allowing actions like this could affect child protection decisions. The alternative seems to be to rely on uninformed judicial intuition, which is really all we get in the decision.

*The first point and the second point are related. If the Court's "duty of care" jurisprudence focused on whether and what kind of evidence would support a new duty of care, it would be less vacuous.

*On the policy issue, I'm not sure the SCC is right. Child protection is so difficult -- everyone agrees -- because mistakes in either direction have tragic consequences. If the authorities don't take kids into care when they should, abuse will likely continue. If the take kids into care when they shouldn't, they destroy families and, in light of the statistics about children in the wardship of the state, make their lives hellish (including creating risks of abuse). Decisions are difficult, but mistakes are symmetrically disastrous.

There is an argument that protection workers making good faith decisions shouldn't be sued in negligence at all. Judges who make protection orders can't be. Police and prosecutors who put people in jail can't be. But if protection workers can be sued for one kind of mistake (not removing a child against its best interests), it should also be possible to sue them for the opposite mistake. Otherwise, you are creating a "safe harbour" in one direction, which is a terrible incentive to create. It is true, however, that a child can still sue for its loss in overzealous protection.

Case Comment on Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38

Jack Layton, Enemy of the Earth?

I received a political message from a mustachioed gentleman responsible for Canada's social democratic party yesterday. In consultative style, it asked me what I thought the highest priority for my elected representatives should be, although it must be admitted that the choices were presented in a persuasive, rather than social-scientific.

One of six or so choices was "Ending Gouging at the Gas Pump." (This along with fighting ATM Fees.) This seems a bit odd, since I thought it widely accepted in progressive circles that higher gas prices are a good thing. Indeed, it is sound left-wing policy to impose a Pigovian tax on carbon consumption. I suppose the lure of populist ignorance about the workings of microeconomics proved a bit too tempting.

Does Dion have the subtlety of touch necessary to exploit this? Probably not.

I've Changed the Template

As you probably noticed. I need to do some fiddling to get the links and comment widgets working. Comment if you wish.

Update: Sorry, DON'T comment unless you can tell me how to get my Haloscan comments back. Jeez.

Tough Guys Negotiate

Those who pay attention to the ephemera of the blogosphere know that Hillary Clinton has been attacking Barack Obama for being willing to meet with "America's enemies." Obama has cannily responded by pointing out that Clinton is just continuing the moronic identity politics of Dick Cheney. Negotiation is just communication with adversaries in non zero sum games. It is not a reward for virtue.

In light of this min-controversy and in service of my overweening ego, I have decided to republish a comment celebrating James Baker I left at Legal Fiction back when it was still active. Apologies for the macho sexism. It's in a good cause:

You know who's an actual tough right-wing-WASP-son-of-a-bitch unlike those faux macho warblogger dweebs? James Baker. That guy could make Dick Cheney his personal bitch anytime he wanted. When the family has a real problem -- an inconvenient body, a court-ordered recount or a no-win war, they call the Bakerman.

And the Bakerman has explained your point, well, Publius. Tough guys talk to their enemies. Every hardass litigator I ever knew loves the without-prejudice settlement discussion almost as much as making a witness cry in cross-examination. Tough guys love to negotiate because they love to explain calmly how solving their problem solves your problem.

Think tankers, interns and other luncheon attenders hate negotiating because they know they don't have the stones to do it.

Serhan and the Trouble With Unjust Enrichment

Having asked for uncorrupted intuitions on the interesting Serhan v. Johnson & Johnson case, I ought to give my own views. Unfortunately, they are a bit unformed (which I suppose is why I find the case interesting -- I'm usually pretty opinionated).

It isn't quite right to say that the absence of harm should always and everywhere foreclose any recovery. It's mostly right, but not totally right.

The most general principle is that plaintiffs should lose. Losses should fall where they may. That's because legal process is expensive, emotionally harmful, and it sometimes just makes things worse. At a first cut at anything, somebody who wants a court to give them someone else's money should have a hard time of it.

But of course if we are to avoid a Hobbesian nightmare world, there have to be exceptions. All of those exceptions come out of one-sided transactions. D and P interacted and either P was harmed or D benefited.

The easiest case is the one Aristotle considers in Book 5 of the Nicomachean Ethics where the harm to P is exactly equal to the benefit to D. Equivalently, we could just consider the situation where what P is seeking is the lesser of the two quantities. It would still seem by our first principle that plaintiffs should usually lose that P ought to show some reason why he should get min (benefit to D, harm to P). Which, if you'll permit the digression, is why the test set out in Pettkus v. Becker is wrong. In words repeated ad nauseum subsequently, the SCC says that once P shows that min (benefit to D, harm to P)>0, then it's D's job to explain why the court shouldn't intervene. Crazy stuff, but I agree that min (benefit to D, harm to P) should be the easiest thing to get.

Let's suppose that harm>benefit, and P wants compensation for harm. That's tort law, and it's a bit harder than just getting the return of money paid by mistake. You usually have to show that D did something wrong, or at least stupid. And that's how it should be because now we have an overall loss we need to stick somebody with.

But what if (benefit)>(harm), and P wants something equal in value to the benefit? That should be even harder to get, because generally (benefit)>(harm) is a good thing we want to encourage. If P gets (harm) and D gets (benefit)-(harm), then we've made Mr. Pareto happy, and when he's happy, everybody's happy. So why screw around with that?

Oddly, the cranky old English law did occasionally screw around with that. If the reason (benefit) exists in the first place is that D used P's property (whether as a result of trespass, detinue, conversion or some breach of trust), then P ought to get the full benefit. That's because the right to property includes the right to its fruits. Even when the use of the property was completely innocent, D may find that P gets everything.

I'm not sure that the facts of Serhan can reasonably be fit into that particular framework. Maybe there's something analogous between using somebody's chronic condition as a way to make money and using their chattel. But maybe not. It's a bit of a stretch, and by our first principle that plaintiffs should usually lose, we shouldn't be allowing stretches for plaintiffs.

The other situation where equity would do funny things is where there's fraud. We discourage negligence as much as we want to when we make it pay for the harm it does. If someone benefits from their negligence only because it still is profitable after the harm has been accoutned for, then there's nothing wrong with that. Fraud's different. It's not cool to benefit from it, even in those circumstances where nobody got hurt.

So I give the Div. Ct a pass, at least on the basis of the stage of the litigation. I suspect that the government would have been the better plaintiff though (whether literally through the civil justice system or through some public law mechanism), and its apparent decision not to act which makes me sympathize a smidgen with the dissent.

"Freedom of Association" Stinks?

Vancouver and the District of North Vancouver face the first summer municipal worker strike since the SCC decided public sector collective bargaining is constitutionally protected. No garbage pickup for who-knows-how-long. So far, fortunately, the weather in Vancouver in July has been more Vancouver than July.

The principal reason for the strike is that CUPE wants a chance to hold up the Olympics.

The Supreme Court preferred to dwell on the social reality of the nineteenth century as described by labour studies profs than the realities of contemporary public sector unionization. The difficulty is that all the reasons for placing some service in the public sector are reasons why they can't be left to a free Wagner Act-style collective bargaining process. If the strike lasts a long time, it will threaten an epidemic. Naturally, the people most at risk are the poor, the sick, the drug addicted. For this reason, since the Canadian public service was unionized at the end of the sixties and beginning of the seventies, every kind of government -- not just right-wing bastards like Harris and Klein, but the labour-dependent NDP and PQ -- have had to step in and legislative alter what free collective bargaining would result in.

Not that this has solved the fundamental problems. It may be hard for those of us born since 1950 to believe, but Canada historically had a first-rate public service -- certainly federally and in many provinces. I suppose to some extent this was a bad thing: America never had a good bureaucracy, but was a more dynamic country in part because men of talent and energy went into business instead.

We no longer have the problem that our best and brightest go into government service. Everywhere, public sector work is synonymous with shoddy work. Public sector unions have made it nearly impossible to fire even disastrous employees, let alone merely substandard ones. Obviously, there are still some talented, motivated people, but everything about the system tends to wear them down.

The solution has been increasing reliance on contracting out. This is imperfect, but that doesn't change the fact that it is the only solution.

I find it hard to imagine that the Red Nine -- living in Ottawa -- aren't at least somewhat aware of this. I know that the sentimentalizing lefty academics are. I guess we just have to be buried in garbage before we do anything about it.

Monday Afternoon Begging: For Non-Lawyers Only

I want to get uncorrupted intuition on this. Comments from anyone who has been to law school are banned.

Manufacture makes a device that provides diagnostic information to people with a chronic condition. Inaccurate information could lead to death or serious injury. Manufacturer markets these in a Canadian province, already knowing that they are defective and inaccurate. Government pays the tab. Fortunately, no one is actually hurt before the manufacturer ultimately fixes the problem. The government is not interested in suing.

Should the manufacturer have to hand over its profits to the user group or should it be allowed to keep them?

We're #7

When you google "Woodrow Lloyd." Pith & Substance comes right after Wikipedia, NUPGE, the Saskatchewan NDP and the CBC archives.

That was a little too easy. It's a shame.

Update: Hey, when you are as posthmously obscure as Woodrow, all publicity is good publicity.

Ethiopian Government Uses Famine as Weapon in Ogaden

So reports The New York Times (HT: Rob Farley). The Times specifically mentions the Canadian-based Ogaden Online, apparently the voice of the secessionist Ogaden National Liberation Front.

Zenawi and the EPRDF are repeating the crimes that the Amhara-dominted Derg government (1974-1991) committed against their own Tigrayan people against the ethnic Somalis of Ogaden. We didn't hear much about "Ogaden" during the reporting of Ethiopia's invasion of Somalia last Christmas, which just shows how imperial policy is necessarily the policy of the clueless against the helpless.

Northrop Frye: Literary Criticism <> Winetasting

Matthew Yglesias, reviewing an ancient Harold Bloom piece on the Harry Potter phenomenon, makes a point Northrop Frye would have liked:

Harold Bloom, writing in The Wall Street Journal seven years ago, showed us a flash of a better approach to sneering at Harry Potter:

The ultimate model for Harry Potter is "Tom Brown's School Days" by Thomas Hughes, published in 1857. The book depicts the Rugby School presided over by the formidable Thomas Arnold, remembered now primarily as the father of Matthew Arnold, the Victorian critic-poet. But Hughes' book, still quite readable, was realism, not fantasy. Rowling has taken "Tom Brown's School Days" and re-seen it in the magical mirror of Tolkein. The resultant blend of a schoolboy ethos with a liberation from the constraints of reality-testing may read oddly to me, but is exactly what millions of children and their parents desire and welcome at this time.

You know what? That's interesting! Unfortunately, instead of continuing in that vein of saying interesting things about the relationship of JK Rowling's books to the English boarding school genre, we get a predictable rant about the sad state of things.

Frye also thought that literary critics should be pointing out connections, not evaluating. And I would have to agree that the Harold Bloom who harangues everyone about the greatness of the canon is not as interesting as the Harold Bloom who came up with the "Anxiety of Influence" theory of how a literary tradition develops in the first place. I suppose the world needs such haranguers, but it's a bit of waste.

Epstein's Takings (2)

Takings mostly sets out Epstein's alternative constitutional property rights doctrine, but it starts and ends with more philosophical musings. The worst part (unfortuantely) is right at the beginning. Epstein identifies what I would consider the least.persuasive.normative.principle ever.

Following Hobbes and Locke, he says the state is justified because -- without it -- we would be in a state of war-of-all-against-all. We're better off in a regime of civil peace. Nothing new there. Epstein gets original when he claims that the surplus caused by going from anarchy to order should be distribute proportionately to the holdings people would have under anarchy:

What can the state demand of the individual citizen whom it both governs and represents? The simplest way to present the problem is to draw two pies...

The first of these pies represents the situation in a world without effecitve government control. Each individual is endowed (according to the natural rights tradition) with certain individual rights. Yet the value of these rights in a state of nature is low because some individuals continually try to take that which by right belongs to others...

The larger pie indicates the gains that are possible from poltical orgainzation. The outer ring represents the total social gains, while the divided lines indicate the proportion of the gain received by each individual member. The implicit normative limit upon the use of political power is that it should preserve the relative entitlements among the members of the group, both in the formation of the social order and in its operation.

In other words if the ratio of the value of a person's entitlements under political organization to the value of their entitlements under a Hobbesian state of nature should be constant. The better off you would do in civil disorder, the better off you should do in a world with government.

There are multiple objections to this principle. It wouldn't be true of a libertarian night watchman state, since that kind of state would put a premium on entrepenurial talent, as opposed to the ability to use weaponry and motivate teenage thugs, which would be more useful in civil disorder. Not that this is an objection to the night watchman state -- the principle itself is just nuts.

If Epstein's book stayed this silly, it wouldn't be worth reviewing. But when Epstein turns to legal doctrine, he grabs ahold of a crucial difficulty with the post-New Deal understanding of property rights...

Perpetual War for Perpetual Pogrom?

I occasionally get in trouble with commenters for being a Kosovo war skeptic (I can't think of any argument against the Iraq war which does not also apply), but Matthew Yglesias has done us all the favour of quoting something official reasonable moderate Tom Friedman said in 1998:

Like it or not, we are at war with the Serbian nation (the Serbs certainly think so), and the stakes have to be very clear: Every week you ravage Kosovo is another decade we will set back your country back by pulverizing you. You want 1950? We can do 1950. You want 1389? We can do 1389 too.

The trouble with humanitarian war is that the psychology of war is the opposite of the psychology of humanitarianism. When you stiffen up the sinews and summon up the blood, you revert to tribal thinking, no matter how civilized you thought you were to begin with.

Is Law Cool?

I wouldn't have thought so. But Omar Ha-Redeye is trying to prove otherwise with his new group blog for Canadian law students. Encourage him!

Tory Judges Exclude Evidence More; Female Judges Better for Divorced Dads

So says this empirical study of the Ontario Court of Appeal by Moin Yahya and James Stribopoulos, titans of the Canadian legal blogosphere. The finding that their Ladyships are more pro-male than their Lordships reflects folk wisdom in the profession. If I had to hazard an explanation for the fact that Tory appointees exclude evidence under s. 24 of the Charter more than Liberal appointees, I'd say it is just a cohort effect: "Tory" judges were appointed earlier, back when the Charter was cooler.

With Friends Like These, Liberty Hardly Needs Enemies

After noting that a number of libertarians, like Ron Paul, thought the Iraq war was not fought in self-defence (for obvious reasons), Randy Barnett makes the preposterous argument:

Other libertarians, however, supported the war in Iraq because they viewed it as part of a larger war of self-defense against Islamic jihadists who were organizationally independent of any government. They viewed radical Islamic fundamentalism as resulting in part from the corrupt dictatorial regimes that inhabit the Middle East, which have effectively repressed indigenous democratic reformers. Although opposed to nation building generally, these libertarians believed that a strategy of fomenting democratic regimes in the Middle East, as was done in Germany and Japan after World War II, might well be the best way to take the fight to the enemy rather than solely trying to ward off the next attack.

Barnett is a subtle man when it comes to contract theory. It is therefore a bit sad that the rebuttal points are so obvious:

1. Overturning the Ba'athist regime couldn't be a war of any kind against Islamic jihadists, since they and it were enemies.

2. "Self-defence" must have some natural limits as a concept if it is to be a genuine limit on when violence is justified. One such limit is that the violence must be directed primarily against the person or persons who are aggressing against you. On Barnett's theory, killing a bunch of people unrelated to the act of aggression will cause a democratic revolution in the Middle East which will reduce the political appeal of the aggressing organizations. Even granting some reasonable probability that this will work, it isn't self-defence. It would be like attacking Tsarist Russia in the hope that it would undermine the possibility of the Bolshevik revolution. Even if the Bolsheviks would be a threat, this is just aggression.

3. The whole thing was a quadruple bank shot with a low prospect of working. It was far more likely that an unprovoked American assault on a Muslim country would increase support for jihadis, as has in fact happened. Democratic reform requires the solution of political problems that Western occupiers are powerless to solve and will likely make worse. Barnett ends with the lame "Bush screwed it up" line. Libertarians are supposed to realize that government policy will be implemented by imperfect bureaucrats. How people who think agriculture bureaucrats are clueless about farming can persuade themselves that unilingual ideologues unfamiliar with the difference between Shi'ite and Sunni will transform a foreign polity is beyond me.

4. Overthrowing the "corrupt dictatorial regimes that inhabit the Middle East" will not necessarily bring about "democratic reform". Whatever repression indigneous democrats face under Mubarak or the Saudi royal family is less than they will under what happens next. We can all take comfort from the end of the corrupt Shah and the repressive Hashemite rulers of Iraq.

5. Democratic reform, even assuming it was possible, would not make the West safer. Democracy means that the people get to decide what policies the state follows. When the people hate you, that's bad.

Update: Gene Healy, actual libertarian, takes Barnett apart here.

Conrad Black -- Yankee Imperialism's Latest Victim

I haven't followed the Black trial as well as I ought. As a matter of civil law, I sympathize with the minority shareholders' position that the personal non-compete covenants were a breach of fiduciary duty. Black was, in substance, selling a corporate asset for his and his associates' personal benefit. However, I can't see how this rises to criminal wrongdoing, especially since the questionable transactions were run by the audit committee. It is possible that his lordship was prosecuted and convicted for being a conceited jerk -- an alarming concept to the Pithlord, who is not without pomposity and self-regard, and cannot be confident that a Chicago jury would like him any more than the Baron of Crossharbour.

Still, I have considerable respect for juries, and unlike the Pithlord, they had to give up their lives and listen to all the evidence. Lord Black was not without competent counsel, and so I might be willing to let the matter rest -- pending appeal, of course -- with the presumption of regularity.

However, the "obstruction of justice" count troubles me on a level that the jury's better grasp of the facts does not soothe. In a suspicion-inducing moment captured on videotape, Lord Black personally removed boxes from Hollinger Inc.'s Toronto headquarters. The Pithlord takes no position on whether this was contrary to the order of Mr. Justice Campbell that no property be removed from the building without the permission of the court-appointed inspector, but it is a reasonable position to take.

The trouble is that -- for various obscure historical reasons -- Canada is a sovereign country. I realize that it is fashionable to emphasize interconnectedness and globalization and so forth, but the violation or non-violation in Toronto of the order of a Canadian judge is not the business of a Chicago jury. Laura Secord did not bravely sell chocolate, nor did Sir John A. down six bottles of whiskey in a single setting for this! While Pith & Substance views talk of military retaliation as premature, someone ought to have a strong word with our southern cousins on this subject.

What about Woodrow Lloyd?

In the course of a Matthew Yglesias thread about the relationship between federalism and socialized medicine, "Michael" states that Tommy Douglas first introduced universal health insurance to Saskatchewan. I imagine 99% of educated Canadians think this is true.

But, of course, Medicare was actually introduced under the premiership of Woodrow Lloyd after a nasty showdown with the province's doctors. Douglas had already moved to federal politics.

History's unfair to the uncharismatic.

Transformation from Status to Contract Hits Snag

The Supreme Court of Canada denied leave in the Doe case I blogged about a week ago.

The Dog Materially Contributed to the Risk of My Homework Being Eaten

A while back, reader David Cheifetz assigned the Pithlord a number of articles on the subject of the Supreme Court's "causation" jurisprudence, and why it sucks. I haven't said anything about it since, so I wanted to get my excuses out there.

If you want to sue someone about a car accident, it isn't enough that you are hurt and that they were driving badly. Their car also has to hit you, and cause your injuries. Most times, we get by with the "but for" test: the injury can only be compensable if it wouldn't have happened without the accident. But there is a more exotic form of legal causation, "material contribution." The theme of the articles Cheifetz sent me is that the "but for" test is just fine, and the Court's varying statements about when other forms of causation should be applied is confusing and confused.

I'm not totally sure. Humans are given intuitions about countefactuals by divine providence or natural selection, but they are very hard to get a more scientific grip on. That means that we can be sensible about what would have happened when the events are the kind of things we have pre-scientific intuitions about, but breaks down when the white lab coats get involved. Sure, there are some forensic experts who don't mind opinionating on what would have happened, but they shouldn't necessarily be trusted.

If it is granted that there is a genuine practical problem here, what is the solution? I'd say it isn't a better verbal formula for what causation really means. It is a more concrete sense of what kind of evidence needs to be called to get to liability in various contexts.

Which gets me out of the uncomfortable world of counterfactuals and into my favourite legal process point. People in general are better at deciding what should be done in particular situations than stating coherently the general principles behind them. Judges are people. So we should expect that they get cases right more often than doctrine. It follows that they might have avoided Mr. Cheifetz's well-founded criticisms by being a bit quieter. The only time it is legitimate to talk about how evidence that doesn't support an inference of "but for" causation should result in liability, is when the court decides that evidence that doesn't support an inference of "but for" should result in liability. Then the facts of the case gives guidance as to what the hell the abstract language is supposed to mean. On the other hand, if there are well-understood reasons to reject liability anyway, doctrinal language is just going to confuse everybody.

So, in Resurfice, there was no need to throw out incomprehensible dicta.There was nothing wrong with zamboni, its design didn't increase the risk of the accident, and that's all that had to be said.

"Duty to Consult"?

If you were going to pick the most important development in the Supreme Court of Canada in the last decade, you could do worse than the proliferation of constitutional duties to consult. The Red Nine have imposed such duties in relation to judicial compensation, land use decisions affecting aboriginals, the secession of Quebec, and now public sector labour legislation.

At the University of Alberta law blog, Peter Carver takes note of this development, and hopes it represents "an intriguing effort to expand the constitutional base for deliberative democracy in Canada." We mix it up in the comments box.

The discussion has helped me figure out what I dislike about these duties. The common law's general attitude to negotiation is to put a veil over the process and be hard line about enforcing the results, so long as everyone's an adult and had a chance to get appropriate advice. Government decision-making, on the other hand, has typically attracted the requirements of a hearing and an unbiased decision maker.

The "duty to consult" is neither fish nor fowl. As Carver puts it, "TThe goal must be to seek a mutually acceptable resolution to the dispute at hand, even if a solution is not found." A unilateral decision isn't excluded, but if it happens the courts may review the attempts at bilateral compromise to determine if they were conducted nicely enough. The trouble is that the negotiations will therefore be conducted with an eye on how a court will interpret them, which is inconsistent with genuine negotiation. Moreover, the whole development is the opposite of trying to create clearly-defined rights in the event of a bargaining impasse, which is how negotiation is actually facilitated.

List of Canadian Blawgs

Vancouver Law Librarian Blog has a very useful, and frequently updated, listhere.

A Night in Which All Cows are Totalitarian

Daniel Larison does the Lord's work by pointing out that Karl Popper's case that Hegel was the father of modern totalitarianism (soon to be revisited by laptop-CN-Tower-bombadier Jonah Goldberg) is not based on Hegel's own actual political views.

One always hesitates to get involved in a fight about interpreting history's most obscure Prussian. But by Hegel's standards, the Philosophy of Right is relatively clear on where he stands politically. Hegel endorses private property, freedom of contract, the autonomy of family life and civil society. Hegel isn't a democrat -- the state should mix democratic, aristocratic and monarchical elements, but he does favour a broadly responsible government. He believes that a politically-involved life is "higher" than existence solely in civil society. In the Phenomenology, he has a penetrating analysis of the French Revolution and how it led to the Terror, while at the same time seeing the way that it led to a conception of universal human rights as a positive development in the self-understanding of Spirit. In other words, there is nothing in Hegel's political views that should offend a fan of Edmund Burke.

It turns out that the objections to Hegel amount to pointing out that he was not a thorough-going 19th century classical liberal (what we would now call a libertarian). To some people, the possibility that the state might exist for more than the preservation of property and freedom of contract amounts to totalitarianism. These are not subtle souls. I suppose the nicest thing you can say is that it is better that doctrinaire personalities gravitate to libertarianism than to Marxism or white nationalism.

Which is not to say that Hegel is without danger. Take Paragraph 345 of Philosophy of Right:

Justice and virtue, wrongdoing, power and vice, talents and their achievements, passions strong and weak, guilt and innocence, grandeur in individual and national life, autonomy, fortune and misfortune of states and individuals, all these have their specific significance and worth in the field of known actuality; therein they are judged and therein they have their partial, though only partial justification. World-history, however, is above the point of view from which these things matter. Each of its stages is the presence of a necessary moment in the Idea of the world mind, and that moment attains its absolute right in that stage. The nation whose life embodies this moment secures its good fortune and fame, and its deeds are brought to fruition.

There is something undeniable here. We don't, in the end, judge the Norman Conquest on whether William's claim to the throne was a legitimate one under Anglo-Saxon law, or a moral one from the point-of-view of the deaths it foreseeably caused. Even less does it makes sense to ask whether modernity and the consequent domination of the West was a good thing. We who ask the question are too much a product of the event to stand outside it. Even the denunciation of Western actions since the fifteenth century as imperialist necessarily presupposes norms and principles that this Western domination made conceivable. In this sense, when we engage in "world history", we necessarily suspend the ordinary ethical way of looking at things.

However, it is critical whether this ethical suspension is retrospective or prospective. If I think my nation embodies a necessary moment in the Idea of the world mind, do I get to ignore justice and virtue? In Hegel's own case, the Owl of Minerva flew only at dusk -- there were to be no more necessary moments, so there was no one to suspend the rules. The days of the heros who founded states were over.

But I think it's fair to point out that the important readers of Hegel -- none more important than Lenin -- read him prospectively. That's the trouble with the Hegelian neoconservatives. They have decided that America embodies the historical moment, and therefore must be kept above any order of right/law or morality. But what they ignore -- like the Leninists before them -- is that they can't know whether this is true yet.

New Dimensions in Parental Choice

Brenda Cossman points to the very interesting Alberta Jane Doe case, currently* seeking leave at the Supreme Court of Canada. Canadian law on the subject of step-parents is a bit unsettled, but if they "stand in the place of a parent" for long enough, they can acquire child support obligations. Ms. Doe wants kids. Her co-habitant, Mr. Doe, does not.** Ms. Doe became artificially inseminated and signed a contract with Mr. Doe according to which he renounces all legal obligations and benefits of fatherhood.

Canadian law, as currently understood, would not give this contract any force. The issue, we are told, is the "best interests of the child. (Except when it is the absolute autonomy of the mother. Canadian law is a bit confused, actually, but it pretends not to be.)

Ms. Doe has argued that this position violates s. 7 of the Charter. So far, she has obtained no support in judicial circles, although her argument surely follows from basic principles of autonomy. There can be no doubt of Ms. Doe's right not to have a legal father for her child if she were willing to live alone. Why shouldn't she be able to have a man in her life? Even the impact on the child's welfare is unclear once we take incentive effects into account. (I realize that our courts hate doing that.)

It is hard not to have a smidgin of sympathy for the position of Alice in Whit Stillman's The Last Days of Disco, although we must in the end admit that Charlotte has the better sense of our fate:

Alice: I’m beginning to think that maybe the old system, of people getting married based on mutual respect and shared aspirations, and slowly, over time, earning each other’s love and admiration, worked the best.

Charlotte: Well, we'll never know.

*Currently being as of May 30. I am too lazy to check to see if leave has since been granted or denied.
**Shouldn't that be Mr. Roe? Ms. Doe doesn't sound like the type to take her spouse's name.

Thoughts on July 4

Tradition dictates that we use the first week of July to reflect on the many bonds that unite Canadians with their neighbour. But I must confess I still find the reasons for starting the country a bit baffling. Why did Washington, Jefferson et al. repudiate their oaths of alleigeance to a sovereign that had, within living memory, saved them from the French?

The argument starts OK:

Prudence, indeed, will dictate that Governments long and established should not be changed for light and transient causes.

But then the signers go and do just that. In the interests of thrift, I quote what I said last year:

I share Yglesias' skepticism that the British Crown in the 18th century was in fact engaged in a long train of abuses and usurpations, with a design to reduce white Protestant American colonists under absolute Despotism. Au contraire. If you read the particulars appended later in the Declaration, they are either not very oppressive at all (like giving Quebec the right to use the Civil Code, or guaranteeing traditional Indian lands), grossly exaggerated ("He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages") or pretty darn vague ("He has refused his Assent to Laws, the most wholesome and necessary for the public good").

Seems like bad reasons for revolution. Anyway, I guess it all turned out OK.

A Belated Review of Epstein's Takings (1)

A couple months ago, I decided to order Richard Epstein's Takings: Private Property and the Power of Eminent Domain, possibly the most important libertarian work of legal theory of the last twenty-five years. Epstein meditates on the Fifth Amendment's "nor shall private property be taken for public use, without just compensation" (the "takings clause"). He rejects the limited reading that American courts (including conservative judges like Rehnquist and Scalia) have given to this clause since the New Deal. In the end, he decides that the US Constitution prohibits most of what the government currently does, including progressive taxation and welfare, although he allows for a bigger role than more stringent libertarians might.

Unfortunately, the radical conclusions may have had counter-productive effects on the protection of property rights. Behind every leftist attack on the legal dimensions of NAFTA and other investment treaties, or on the entrenchment of property rights, and behind a lot of judicial nervousness, is the feeling that if property rights are real, Epstein's conclusions might follow. During his confirmation hearings and before "Long Dong Silver," Jospeh Biden tried to get Clarence Thomas to renounce any support of Epstein's book. One of the criticisms levelled at Janice Rogers Brown when she was considered for a nomination to the federal judiciary by Bush was that she had cited Epstein favourably in a case -- even though she cited him for examples of non-takings, which is rhetorically equivalent to citing Catherine Mackinnon for pickup lines that aren't sexual harrassment.

I am going to break up this review into a number of posts. The next one will explain Epstein's system and why it is (somewhat) redundant.

Government of Laws, Not Men

Bush commutes Scooter Libby's prison term.

Now, finally, both parties are on record as saying that lying under oath is no big deal, provided you are a high government official. Wonderful.

Parental Discretion is Advised

Pith & Substance gets a "PG rating," according to this. Andy gets a "G" ("no bad words were found").

How Should Federations Regulate?

When the Canadian Western Bank decision came out earlier this year, Andy and I disagreed on its merits. The power to regulate banks is given to the federal government by s. 91(15) of the BNA Act, while the power to regulate insurance was found to be provincial in one of the earliest Canadian constitutional cases. The issue that the SCC finally dealt with this year was what regulation applies to a bank selling insurance? The SCC and the Pithlord both think that banks that do this should have to follow provincial insurance regulation, except to the extent the federal government specifically immunizes them. Andy thinks this duplicates already-burdensome regulation unfairly and inefficiently.

There is clearly a bit of tension between two "conservative" biases here. Wariness of excessive centralisation battles with wariness of duplicative regulation. This issue comes up again and again in federations and free trade areas. The classic example is the regulation of publicly-offered securities and corporate governance respectively in the US. Securities regulation is federal with a broad interpretation of "pre-emption" limiting the state role. Corporate governance is governed by state law -- in practice, for national companies principally by Delaware's state law, since most corporate lawyers prefer it. Most people to the right of Ted Kennedy think Delaware corporate law functions better than federal securities law. In Canada, companies can choose between federal and provincial corporate governance regimes -- securities law is provincial. The same kind of people who complain about the incredible complicance costs of Sarbanes-Oxley tend to want a national securities regulator. Similar issues come up in all kinds of regulation. Is a national market best served by a single set of food safety regulations, rules about class actions or pension regulations? The general trend of federations is for an increasing number of these issues to be decided centrally, although Canada is a partial exception (and it is an open question how much further centralisation can go in Europe, given the almost total lack of public support for it). I thought I might use the blog to put together my ill-formed thoughts on first principles.

So what would the ideal federation look like?

I think it is critical at the outset to draw a distnction between voluntary interactions (insurance, purchase of shares, licensing of professionals etc.) and involuntary ones (car accidents, pollution, etc.). Regulating voluntary interactions is necessary to prevent fraud and abuse of asymmetrical information, but such interactions are presumptively beneficial to both sides. Overregulation and protectionism are particular concerns. Given modern technology, voluntary interactions tend to be easily accomplished in different jurisdictions, and regulatory cost is going to be one of the considerations. Inter-jurisdictional competition is generally going to be a good thing when it comes to voluntary interactions.

Involuntary interactions are more likely to be local -- both the victim and doer of the harm are probably in the same place when it happens. When this is true, it should always be the state or province that regulates. However, sometimes (river pollution being the classic example), it is possible to cause the harm in one jurisdiction and feel it in another. Here there is a real danger of externalizing ones's harms through under-regulation.

If everyone substantially affected by a transaction is within the boundaries of the state or province, then by the subsidiarity principle, the province or state should exclusively regulate. The trouble is that this condition almost never applies. At minimum, local regulation creates a barrier to outsiders entering and competing, since they have to learn about the regulation and possibly obtain licensing.

If the regulation is of involuntary transactions, Ottawa would have to authority to change provincial conflict-of-law rules. With genuinely interprovincial or international common pools (the Columbia, the St. Lawrence, persistent pollutants in the atmosphere or oceans), Ottawa would have the power to directly regulate and its regulation should pre-empt provincial regulation (particularly of the receiving province -- the originating province would have no incentive to overregulate, so its rules can apply concurrently). Physical flows of harms across borders should be substantial before a federal role is recognized. Doctrinally, interprovincial and international externalities should be analyzed under the "peace, order and good government" clause, where the caselaw is mostly sensible.

If the regulation is of voluntary transactions, the best solution is to let the parties choose the jurisdiction that regulates them. American corporations do this by deciding where to incorporate. Canada should adopt the same principle as widely as possible -- generalizing the proposals for a "passport" system made in relation to securities legislation.

Here is how it would work. If you want to sell insurance or practice dentistry in Nova Scotia, you could either (a) abide by Nova Scotia's regulatory-licensing regime or (b) abide by some other province's regulatory/licensing regime and disclose which province it was to your customers. Federal authority would extend to providing minimum standards provincial regimes would have to meet to operate inter-provincially. Only other provinces would have standing to challenge whether they met these standards, and the expectation would be that the federal requirements would be loose. Each province could charge the regulated industry what it wanted in fees and could make its own arrangements for extra-provincial enforcement. Compliance with the provincial regime of choice would be a full answer to tort liability, at least if the provincial regime covered the issue. Federal legislation under the Trade and Commerce power would guarantee that anyone who registered and complied with the regime in any province could trade in all the others.

The result would be beneficial regulatory competition. I think even critics would have to concede that every province would have an incentive to keep compliance costs down to attract business (and this would reduce the ultimate cost to the consumer.) Would this cause them to cheat on protection? I doubt it, because it would be relatively easy to keep track of an unusual number of scandals arising out of (say) Manitoba's dentistry rules or PEI's insurance regulation. Such scandals would hurt the reputation of everyone regulated under that jurisdiction. In any event, if things got unusually bad, there would be the possibility of federal minimums intervening.

Undoubtedly, most industries would end up following the rules of a single regulator, as most large corporations in the US follow the governance rules of Delaware. But this would not be the grey uniformity of the centre, but the success of a nimble competitor.

Note: I've rewritten this post somewhat.

Happy 140th, Confederation