A victory for sanity

Yesterday I blogged about a crazy American case where a disturbingly obsessed American prosecutor went after a bunch of teenage girls, seeking to have them jailed as child pornographers for having pictures of themselves in bras. Fortunately the federal court in question isn't as Salemish as he is:

PHILADELPHIA, March 30 (Reuters) - A U.S. judge on Monday barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls caught with sexually suggestive pictures of themselves on their cell phones.

U.S. District Judge James Munley said he was issuing a restraining order on Wyoming County District Attorney George Skumanick ..... [snip]

Witold Walczack, legal director of the ACLU of Pennsylvania, welcomed the legal decision.

"This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting," he said.[snip]

Going too far: Where the Americans go we should fear to tread

Lawyers, Guns and Money is one of my favourite American political blogs. It touches on politics, gender relations and defence and strategic studies issues, all of which are fascinating to me.

There is a recent post entitled "The Police State and the Private" which is a worthwhile read. It addresses in small part the disturbing tendency of American police and prosecutorial authorities to strip away not only rights but basic human dignity from youth simply because they are in school and their elders are downright hysterical about drugs. The fear-based attitude itself is nothing new: the statement of the Norwegian criminologist Nils Christie that schools exist to keep a large and potentially troublesome portion of the population occupied is many decades old, for example. But when taken this far it is insane and verges on child abuse.

"On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen-year-old honor student Savana Redding. "

Fortunately, the court concluded that:

"the school officials violated Savana's Fourth Amendment right to be free from unreasonable search and seizure. The strip search of Savana was neither "justified at its inception," New Jersey v. T.L.O., 469 U.S. 325, 341 (1985), nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, "reasonably related in scope to the circumstances" giving rise to its initiation. Id. Because these constitutional principles were clearly established at the time that middle school officials directed and conducted the search, the school official in charge is not entitled to qualified immunity from suit for the unconstitutional strip search of Savana."

The American blogger aimai nails it in a post on that LGM thread:

The weirdest thing of all to me about these school cases in general and this one in particular is how bizarre it is that almost everyone concerned just assumes that the same tactics appropriate to prisons and armies (both situations in which individual members voluntarily or involuntarily give up their civil rights and can be presumed to be hostile to the rules governing their behavior) are applied to children seeking education in a communal setting.

A school is not a prison. School children are not prisoners. Moroever, the interests of a student are not, and can not be, understood to be different from those of administrators or the administrators want the wrong thing for the children.
[...]
Whatever you think of the kid the correct pedagogical strategy is to create a space in which the school is not a prison, the teachers and staff are not the enemy. And if you can't do that to start with you can't teach the kids. You've already failed.

The same lunacy is found in a case where teenagers took pictures of each other in bra and panties at a slumber party are being threatened with child pornography charges. (For more details please read the post found at Radley Balko's blog, "The Agitator", and the links below.)

Sadly, this is not an uncommon bit of lunacy:

• In one Florida a judge convicted a 17 year old boy and a 16 year old girl of child pornography because they took digital pictures of each other whilst fooling around, a decision that was upheld on appeal. One judge therein spoke of the harm that these pictures could do to these children. ( Frankly, if I was seventeen and told that I had a choice between a lifetime as a convicted criminal labelled as a sexual deviant on the one hand, and the embarassment of somebody seeing me have fumbling teen sex on the other I'd reach for the camera and red face be damned.)
• In Ohio a 15 year old girl is facing felony charges and forced registration as a sex offender for sending pictures of herself to classmates (and charges against the classmates may be pending).
• In Denton, Texas, a 13 year old boy is under arrest for receiving a picture sent by a female teenage classmate and thus having it on his cellphone.

Watch the video regarding the Wyoming, Pennsylvania case. I trust that I'm not the only person who feels uncomfortable with a prosecutor upon being asked "what exactly did she do wrong?" state "that's not the issue before the federal court"? (Please do remember that the United States Supreme Court has held that actual innocence of the crime is not a bar to a valid conviction, absent an underlying constitutional violation.) He is bringing ludicrous charges which will put a young girl in prison for years and label her a sex offender for life for the crime of taking a picture of herself in a bra at a slumber party, tried to blackmail the child into a bogus rehab program and when faced with Constitutional oversight says that the court shouldn't even be involved. He seems profoundly put out by the fact that anything could get in the way of a DA charging somebody, even if the charge is crazy and he should be ashamed of himself. (This does not even address the problems inherent with such programs. Two Pennsylvania judges were recently caught accepting bribes to send innocent teenagers to jail; private prison operators gave them money for every kid that was sent to them. Efforts are being made to clear the children's names, but it does rather beg the question of whether sending children to jail for harmless activity should be permitted at all.)

No-one would argue that "sexting" is a remarkably foolish thing to do; in a worst case scenario it can even lead to tragedy. But placing poor-judgment teenagers into the same category as the vermin who ogle pictures of children is bizarre and destructive.

Our Canadian courts have flaws, and our society has flaws, but our cops, prosecutors and judicial system have not completely taken leave of their senses. They aren't putting children in prison for doofus idiocy yet, nor are these professionals demanding that we do so. For that we should be profoundly grateful, thank them, and very, very wary of any Canadian figure who starts to look longingly south for hideous ideas posing as good ones.

Further reading:

• "The new pornographers: What's more disturbing -- that teens are texting each other naked pictures of themselves, or that it could get them branded as sex offenders for life?" - Tracy Clark-Flory, Salon Magazine, February 20, 2009.
• "Students Sue Prosecutor in Cellphone Photos Case", Sean D. Hamill, New York Times, Marc 25, 2009.
• "`Sexting' teens strike back!", Tracy Clark-Flory, Salon Magazine, March 27, 2009.

Networking Wednesday: March 4, 2009

At the Small Business Centre:
Me on the right, Mr. John Travis, a sales and marketing specialist, on the left.

And I got a lot of compliments on the tie.

Business Social Law No. 12

The person who reschedules a business social event twice is responsible for the tab.

Business Social Law No. 11

The person who cancels a business social event is responsible for rescheduling it.

"Drug Decriminalization in Portugal" - Has it worked?

Drug Decriminalization in Portugal - Online Policy Forum, Cato Institute.

(What is the Cato Institute?)

Friday, April 3, 2009 - 12:00 PM EDT (1600h UDT "Zulu" Time)

From the Cato Institute Website:

Featuring Glenn Greenwald, Attorney and Best-selling Author; with comments by Peter Reuter, Department of Criminology, University of Maryland; moderated by Tim Lynch, Director, Project on Criminal Justice, Cato Institute.

The Cato Institute
1000 Massachusetts Avenue, NW
Washington, DC 20001

Go to this page at the above time to watch the event live.

In 2001, Portugal began a remarkable policy experiment, decriminalizing all drugs, including cocaine and heroin. Some predicted disastrous results—that drug addiction rates would soar and the country would become a haven for "drug tourists." Now that several years have passed, policy experts can study the results. In a new paper for the Cato Institute, attorney and author Glenn Greenwald closely examines the Portugal experiment and concludes that the doomsayers were wrong. There is now a widespread consensus in Portugal that decriminalization has been a success. The debate in Portugal has shifted rather dramatically to minor adjustments in the existing arrangement. There is no real debate about whether drugs should once again be criminalized. Join us for a discussion about Glenn Greenwald's field research in Portugal and what lessons his findings may hold for drug policies in other countries.

[You can] watch this forum live online at Friday, April 3, 2009 at 12 [noon Eastern (Toronto, London, ON) time].

"The first thing we do, let's kill all the lawyers."

It's a fun line, but where does it come from?

The line is from Shakespeare's Henry VI, Part II and comes in Act 4, Scene II from the mouth of Dick the butcher, a follower of the rebel Jack Cade:

CADE: Be brave, then; for your captain is brave, and vows
reformation. There shall be in England seven
halfpenny loaves sold for a penny: the three-hooped
pot; shall have ten hoops and I will make it felony
to drink small beer: all the realm shall be in
common; and in Cheapside shall my palfrey go to
grass: and when I am king, as king I will be,--

ALL: God save your majesty!

CADE: I thank you, good people: there shall be no money;
all shall eat and drink on my score; and I will
apparel them all in one livery, that they may agree
like brothers and worship me their lord.

DICK: The first thing we do, let's kill all the lawyers.

CADE: Nay, that I mean to do. Is not this a lamentable
thing, that of the skin of an innocent lamb should
be made parchment? that parchment, being scribbled
o'er, should undo a man? Some say the bee stings:
but I say, 'tis the bee's wax; for I did but seal
once to a thing, and I was never mine own man
since. [...]

Many lawyers are the first to note that these words are taken from the mouth of a villain in the service of a rebel and stand for the proposition that lawyers must be eliminated if this foul revolution is to take place. Others, to say the least, disagree. Seth Finkelstein, in his post "`The first thing we do, let's kill all the lawyers' - it's a lawyer joke" notes the following:

"The audience must have doubled over in laughter at this. Far from "eliminating those who might stand in the way of a contemplated revolution" or portraying lawyers as "guardians of independent thinking" [as some lawyers have posited], it's offered as the best feature imagined of yet for utopia. It's hilarious. A very rough and simplistic modern translation would be "When I'm the King, there'll be two cars in every garage, and a chicken in every pot" "AND NO LAWYERS". It's a clearly lawyer-bashing joke. This is further supported by the dialogue just afterwards [i.e. the bit about lambskin and wax].
[...]
He might just as well have been describing "shrink-wrap" software licensing agreements today in the last sentence. To understand what Cade is saying here, you have to know that documents of the time were likely parchment, and sealed with wax. So when he says "Some say the bees stings; but I say, 'tis the bee's wax". he's making an ironic comment somewhat akin to "Some men rob you with a six-gun, and some with a fountain pen". And the fact that he himself is an evil man only serves to heighten the irony, not discredit the sentiment - the more evil he is, the more the contrast is apparent."

I'm only in part agreement with Finkelstein here. This exchange is promptly followed by the brief but nightmare farce of the Clerk of Chatham being brought in, accused of being able to read and write and suffering murder as a result as a result of a pseudo-trial. A villain is a villain, and whether the rebels want to kill noble lawyers or nasty ones is rather beside the point so far as the quote is concerned. The "jus' folks" of the rebellion want the lawyers bumped off and the crowd must have loved that bit, if we accept Finkelstein's guess. Shakespeare was a playwright, after all, so playing to the crowd was what he did for his humble living and I doubt that the folks in the crowd liked lawyers any more than the average man today. But one can't avoid the fact that there is definitely an element of "yeah, and look at who wants the lawyers gone: these ignorant, murderous fools" in this scene of the play: Shakespeare wants the laugh from the audience and he also wants to show what a bunch of psychotic cretins this bunch are. Trying to slot the quote into just one category diminishes, I think, our realization that, Great Writer! aside Shakespeare was really good at keeping an audience happy.

I refuse to take sides on this famous quote: being a lawyer is no guarantee of saintliness: some are monsters, and their deaths are not to be mourned. Others are struck down trying to make the world better. Most of us are neither, naturally. Enlisting Shakespeare into a debate is probably not only a fool's errand but also missing the more wonderful point. Shakespeare should be enjoyed as magic, as music, as fun. If I started being overworried about precise facts in Shakespeare then I'd be obliged to dislike Richard III's magnificent rendering of that king as one of the best villains ever in literature, even though Richard was unfairly maligned , certainly was innocent of the crimes of which he is accused .... and I'm pretty darned sure that he didn't murder his nephews.

My recommendation? Sit down and enjoy the play. And if you don't I'll send some witches after you.

Augustine's Law No. XXXVII

"Ninety percent of the time things will turn out worse than you expect. The other 10 percent of the time you had no right to expect so much."

Augustine's Laws, © 1997, Norman R. Augustine.

The Networkers

Camberwell House is a member of The Networkers.

The Networkers is a dynamic group of business entrepreneurs that meets every Friday morning from 6:55 a.m. to 8:30 a.m. The main purpose of the group is to help grow each other's business by providing leads for new business opportunities.

The group is also a support system for small business operators who are often the sole proprietor/only employee of the businesses they own. Members share information such as where they got business cards for a great price, who built their web site, or how to fill out government remittance forms. Of course, members often use the professional services of other group members.

Our group admits only one member per profession so that group members are not competing against one another. Occasionally, we go out in search of people in specific professions that we think will complement our group.

Keep your eye on the blog for profiles and details of Networkers member businesses.

What is "Equity" and how is it different from common law and statutory law?

Defined

Put in a nutshell, it's when the court concerns itself with fairness. More formally, Black's Legal Dictionary defines it as:

Justice administered according to fairness as contrasted with the strictly formulated rules of the common law. [...] A system of jurisprudence collateral to, and in some cases independent of, "law"; the object of which is to render the administration of justice more complete, by affording relief where the courts of law are incompetent [meaning that they do not have the authority, rather than the colloquial definition of `can not by reason of deficiency'!] to give it...

Examples of equitable principles are "estoppel", "constructive trusts", "unjust enrichment" and "rectification". (Please see my blog posts on rectification here, here, here and here for details on rectification. There will be posts later on estoppel, constructive trusts and unjust enrichment.)

Duhaime's legal dictionary (an excellent source of in-depth definitions and explanations) provides an excellent short history of this area of the law, here. In that summary, Duhaime's quotes the famous English jurist and legal commentator Sir William Blackstone when he points out the danger in becoming too attached to equity as a tool of law:

"Law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law, which would make every judge a legislator, and introduce most infinite confusion, as there would be almost as many different rules of action laid down in our courts as there are differences of capacity and sentiment in the human mind." (I Blk. Comm. 62)

I must confess myself in agreement with Blackstone. A system of public, known and predictable law which uses equity as a tool to adjust the system to ensure fair results is far better than an all-over-the-map system based on thousands of individual judge's views of what is "fair" or not.

Common law v. statute law v. equity ... and different courts?

Duhaime's has this to say about the differences:

Equity law developed after the common law to offset the rigid interpretations medieval English judges were giving the common law.

For hundreds of years, there were separate courts in England and its dependents: one for common law and one for equity (aka Chancery) and the decisions of the latter, where they conflicted, prevailed.

It is a matter of legal debate whether or not common law and equity are now "fused." It is certainly common to speak of the "common law" to refer to the entire body of English law, including common law and equity.

While it might be a matter of debate whether or not common law and equity are fused it is important to note that the courts which apply them are: Ontario does not separate its courts of common law and equity. The Superior Court of Justice, the Divisional Court, the Court of Appeal and Canada's Supreme Court are all courts which can and do apply statutory law and common law and equity.

Previously done:
Common law.
Statutory law.

What is "statutory law" and how is it different from equity and common law?

Defined

Statutory law is that body of laws created by legislatures. (Ontario has all statutes, constantly updated, available at its e-laws site.) Such law includes regulations made under the statutes in question if those regulations are properly made pursuant to a valid grant of authority made by the legislature in the statute in question. (This, naturally, does not include that most cherished of tricks of the bureaucracy, "policy", which often represents a de facto law in that persons both individual and corporate must abide by them or else be stymied, but that is for another day.)

Common law v. statute law v. equity ... and different courts?

Duhaime's legal dictionary (an excellent source of in-depth definitions and explanations) has this to say about the differences:

Equity law developed after the common law to offset the rigid interpretations medieval English judges were giving the common law.

For hundreds of years, there were separate courts in England and its dependents: one for common law and one for equity (aka Chancery) and the decisions of the latter, where they conflicted, prevailed.

It is a matter of legal debate whether or not common law and equity are now "fused." It is certainly common to speak of the "common law" to refer to the entire body of English law, including common law and equity.

While it might be a matter of debate whether or not common law and equity are fused it is important to note that the courts are: Ontario does not separate its courts of common law and equity. The Superior Court of Justice, the Divisional Court, the Court of Appeal and Canada's Supreme Court are all courts which can and do apply statutory law and common law and equity.

Previously done: Common law
Coming soon: Equity

"Stand By Me"

When I started this blog a short time ago I had the firm intention to keep it almost entirely professional in scope. Even the brief tangents, I decided, were to be related to the job. I made that decision, though, knowing that sometime I would come across something that just had to be posted even though it had nothing to do with the law or ADR or small business.

Today's the day.



Credit: The Playing For Change Foundation, "building and connecting music/art schools around the world".

Augustine's Law No. XIII

"There are many highly successful businesses... There are also many highly paid executives. The policy is not to intermingle the two."

Augustine's Laws, © 1997, Norman R. Augustine.

What is "the common law" and how is it different from equity and statutory law?

Defined

The "common law" is made up of those principles and "causes of action" relating to the government, property rights and personal rights including physical security which derive their authority solely from usages and customs or from the judgments and decrees of the courts recognizing, affirming and enforcing such usages and customs. It is law which does not rest for its authority on laws or regulations enacted by legislatures, but rather on court-established law. Put alternatively, the courts have said that `X situation gives right to Y cause of action'; there is no specific law passed by parliament or the legislature which mandates that `X situation gives right to Y cause of action'. A court will have found the right and other courts will have accepted it and developed it with legal precedents. Judges examine the facts, check previous cases to see if a principle of the common law applies to them, and then apply such precedents to the those facts, granting judgment based on their view of the strength of the facts and the applicability of the principles.

Common law v. statute law v. equity ... and different courts?

Duhaime's legal dictionary (an excellent source of in-depth definitions and explanations) has this to say about the differences:

Equity law developed after the common law to offset the rigid interpretations medieval English judges were giving the common law.

For hundreds of years, there were separate courts in England and its dependents: one for common law and one for equity (aka Chancery) and the decisions of the latter, where they conflicted, prevailed.

It is a matter of legal debate whether or not common law and equity are now "fused." It is certainly common to speak of the "common law" to refer to the entire body of English law, including common law and equity.

While it might be a matter of debate whether or not common law and equity are fused it is important to note that the courts are: Ontario does not separate its courts of common law and equity. The Superior Court of Justice, the Divisional Court, the Court of Appeal and Canada's Supreme Court are all courts which can and do apply statutory law and common law and equity.

Coming soon:
Equity
Statutory law

"Cause of Action" - What is it?

A cause of action is 'the fact or facts which give a person a right to judicial relief". A right to a judicial relief without any facts backing up does not give rise to a cause of action. Equally, not every fact or situation or problem or loss or negative event gives right to judicial relief. Having a "cause of action" lies in having facts regarding which the law recognizes a right to sue.

A useful example would be this:
I may walk up to you and hold up, say, three fingers. That rather odd act does not, in and of itself, create a "cause of action" because you can't sue me for holding three fingers in the air. If, on the other hand, that was a symbol used by those who once regularly beat you within an inch of your life (and I knew it) then you might have a cause of action in that you now have grounds to sue me for intentional infliction of emotional distress.

Location for The Networkers

If you are going to join us at our 0655h Friday morning breakfasts, welcome! This map will make it easier to get there. We hold these breakfast meetings at One Restaurant, 1 Grosvenor Street, in the ground floor of "The Grosvenor" apartment building. Despite the name the entrance isn't on Grosvenor-facing (i.e.: north) side of the building, which but rather on its south-facing portion of the building, marked with a red "1" on this map:Click on the map (or here) to enlarge the picture!

Free parking is available in the lot visible to the south of the building, and is accessed either from St. James Street (marked with a green "S") or St. George Street (marked with a green "E").

Today's new business phrase: "Imprisoned in the Elevator"

I recently dealt with a software supplier - PCLaw - whose online support is fantastic but whose Ontario training sessions are currently restricted to Toronto and Ottawa. In an exchange of emails with one of their product managers, PC Law's plans for training online and in other centres was detailed for me. I appreciated the rapid and courteous reply.

The exchange did get me pondering about the lead time between the conception of a project/product/service and getting it to market. Many promising ideas either die in the corporate womb or gestate far too long, emerging too late and missing their moment. The film industry's term for this is "development hell", and the software industry's term is "vapourware". Any large organization is at risk for having its projects suffer this fate.

Having dealt at length with both private sector and public sector approval processes, it occurred to me that one specific component of the development process produces a disproportionate share of such delays: approvals and amendments up and down the food chain. As a result, a great idea doesn't make it out the door on time or at all because of this lengthy-to-unending process as each make-it-perfect request has to be reviewed, re-reviewed, approved and re-approved.

The project is imprisoned in the elevator.

It just goes up and down; it never goes out.

PCLaw Tip of the Day

When working past midnight, doing month-end book-keeping, my PCLaw Tip of the Day was this:

(Click on the image for a larger version.)