Category Archives: Law

Captured

In a feature that Facebook thinks is great — and will thrill law enforcement and divorce lawyers — every conversation will be captured for posterity, unless users delete specific messages or entire conversations. Do you assume that the people with whom you communicate are saving every text message and IM? You’d better.

Dan Gillmor

Boots

Those who like to believe they have picked themselves up by the bootstraps sometimes forget that they wouldn’t even have boots were it not for the women who came before. Listening to [Sarah] Palin, it’s almost impossible to believe that, as recently as 50 years ago, a woman at Harvard Law School could be asked by Dean Erwin Griswold to justify taking a spot that belonged to a man. In [Ruth Bader] Ginsburg’s lifetime, a woman could be denied a clerkship with Felix Frankfurter just because she was a woman. Only a few decades ago, Ginsburg had to hide her second pregnancy for fear of losing tenure. I don’t have an easy answer to the question of whether real feminists are about prominent lipsticky displays of “girl-power,” but I do know that Ginsburg’s lifetime dedication to achieving quiet, dignified equality made such displays possible.

Dahlia Lithwick

Everyday Feminism

[T]oo many people, and to my dismay, too many young people, see feminism as more a label than a praxis. When I’m teaching Race, Racism and the Law and I talk about the intersection of race, gender and sexual orientation, when we talk about what would be mainstream feminist thought, many students would agree with those ideas , ideals and ideology more broadly. But if you call them feminists, many of them get upset, because they see it as this static label, and they’re not even sure what it means, but a lot of them think it’s bad, even people who would otherwise embrace feminist principles. So that’s probably the biggest challenge: Getting people to understand that there is such a thing as everyday feminism, and that’s what thoughtful people practice. Many of us do feminism all the time, and we should be comfortable acknowledging that. If I asked a class of people “are you a feminist?” half the people would say “no.” But if I said, “do you believe the following things or do the following things?” then I’d see very different results. I mean, if you love and respect and value women, you’re a feminist.

Lolita Buckner Inniss

Alter the Habits

Some online commentators raised the question of whether the library’s Twitter archive could threaten the privacy of users. [Matt] Raymond [the Library of Congress’s director of communications] said that the archive would be available only for scholarly and research purposes. Besides, he added, the vast majority of Twitter messages that would be archived are publicly published on the Web.

“It’s not as if we’re after anything that’s not out there already,” Mr. Raymond said. “People who sign up for Twitter agree to the terms of service.”

Knowing that the Library of Congress will be preserving Twitter messages for posterity could subtly alter the habits of some users, said Paul Saffo, a visiting scholar at Stanford who specializes in technology’s effect on society.

“After all,” Mr. Saffo said, “your indiscretions will be able to be seen by generations and generations of graduate students.”

Steve Lohr

Aside: Doesn’t it seem kind of odd that the issue foremost in people’s minds would be privacy (on Twitter?!) rather than copyright? As in, does Twitter have the right to fork over your tweets en masse to the Library of Congress? Seems pretty clear from their TOS that they do (but do keep in mind that the copyright is still yours; what they have is a non-exclusive license to use your tweets); I’m just surprised that more people didn’t ask that question.

The ability to imagine

Reason is ultimately guided by context.  … To be un-empathetic is to be unable to transpose oneself into an unfamiliar context, and ultimately, develop blind spots (which, even worse, one does not even know they have). The fundamental misunderstanding, I believe, is the confusion between empathy and sympathy. Sympathy is about emotion- feeling sorry for someone who has cancer, for instance. Empathy is about the ability to imagine what it might be like to have lung cancer, and what effect such a state would have on that person’s outlook on the world. The former is lacking in the world, and may or may not have a place in the judicial system. However, the latter is vital and essential to a judicial system that is able to recognize the entirety of the society of which its decisions touch.

—Max Falkoff
in comments on “The Unsung Empathy of Justice Stevens” at Slate

A circle that returns on itself

In the non-Aboriginal tradition, at least until recently, the purpose of historical study has often been the analysis of particular events in an effort to establish what ‘really’ happened as a matter of objective historical truth or, more modestly, to marshal facts in support of a particular interpretation of past events.

While interpretations may vary with the historian, the goal has been to come up with an account that best describes all the events under study. Moreover, underlying the western humanist intellectual tradition in the writing of history is a focus on human beings as the centrepiece of history, including the notion of the march of progress and the inevitability of societal evolution. This historical tradition is also secular and distinguishes what is scientific from what is religious or spiritual, on the assumption that these are two different and separable aspects of the human experience.

The Aboriginal tradition in the recording of history is neither linear nor steeped in the same notions of social progress and evolution. Nor is it usually human-centred in the same way as the western scientific tradition, for it does not assume that human beings are anything more than one — and not necessarily the most important — element of the natural order of the universe. Moreover, the Aboriginal historical tradition is an oral one, involving legends, stories and accounts handed down through the generations in oral form. It is less focused on establishing objective truth and assumes that the teller of the story is so much a part of the event being described that it would be arrogant to presume to classify or categorize the event exactly or for all time.

In the Aboriginal tradition the purpose of repeating oral accounts from the past is broader than the role of written history in western societies. It may be to educate the listener, to communicate aspects of culture, to socialize people into a cultural tradition, or to validate the claims of a particular family to authority and prestige. Those who hear the oral accounts draw their own conclusions from what they have heard, and they do so in the particular context (time, place and situation) of the telling. Thus the meaning to be drawn from an oral account depends on who is telling it, the circumstances in which the account is told, and the interpretation the listener gives to what has been heard.

Oral accounts of the past include a good deal of subjective experience. They are not simply a detached recounting of factual events but, rather, are “facts enmeshed in the stories of a lifetime”. They are also likely to be rooted in particular locations, making reference to particular families and communities. This contributes to a sense that there are many histories, each characterized in part by how a people see themselves, how they define their identity in relation to their environment, and how they express their uniqueness as a people.

Unlike the western scientific tradition, which creates a sense of distance in time between the listener or reader and the events being described, the tendency of Aboriginal perspectives is to create a sense of immediacy by encouraging listeners to imagine that they are participating in the past event being recounted. Ideas about how the universe was created offer a particularly compelling example of differences in approach to interpreting the past. In the western intellectual tradition, the origin of the world, whether in an act of creation or a cosmic big bang, is something that occurred once and for all in a far distant past remote from the present except in a religious or scientific sense. In Aboriginal historical traditions, the
particular creation story of each people, although it finds its origins in the past, also, and more importantly, speaks to the present. It invites listeners to participate in the cycle of creation through their understanding that, as parts of a world that is born, dies and is reborn in the observable cycle of days and seasons, they too are part of a natural order, members of a distinct people who share in that order.

As the example of creation stories has begun to suggest, conceptions of history or visions of the future can be expressed in different ways, which in turn involve different ways of representing time. The first portrays time as an arrow moving from the past into the unknown future; this is a linear perspective. The second portrays time as a circle that returns on itself and repeats fundamental aspects of experience. This is a cyclic point of view.

Report of the Royal Commission on Aboriginal Peoples (1996)
via Delgamuukw v. British Columbia (SCC 1997)

To paraphrase Kanye West, South Dakota doesn’t care about female people.

But fortunately Canada does.

Today is International Women’s Day.

Anyone questioning why we still need a special day to highlight women’s rights need look no further than South Dakota.

Honestly, WTF?

Why men think they should have any say in whether a woman has an abortion is beyond me. If a woman chooses to involve the potential father in the decision, fine. But random politicians need to butt out. It’s so not their business.

For such obvious reasons, most discussion of abortion is focused on threats to Roe v. Wade by right-wing Americans. But I think people sometimes forget that Canadian women didn’t have unfettered access to abortion until 1988. Yes, you read right. 1988.

The decriminalization of abortion in Canada was a consequence of the Charter of Rights and Freedoms coming into effect. Section 7 of the Charter reads:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In R. v. Morgentaler, the Supreme Court of Canada decriminalized abortion by striking down s.251 of the Criminal Code:

Section 251 clearly interferes with a woman’s physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person. A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. The harm to the psychological integrity of women seeking abortions was also clearly established.

Shortly thereafter, in Tremblay v. Daigle (a case where a woman’s ex-boyfriend was trying to prevent her from obtaining an abortion), the SCC ruled that:

A foetus is not included within the term “human being” in the Quebec Charter and, therefore, does not enjoy the right to life conferred by s. 1. … In Anglo-Canadian law, a foetus must be born alive to enjoy rights. In light of the treatment of foetal rights in civil law and, in addition, the consistency to be found in the common law jurisdictions, it would be wrong to interpret the vague provisions of the Quebec Charter as conferring legal personhood upon the foetus.

and:

[T]here is nothing in the Quebec legislation or case law, to support the argument that the father’s interest in a foetus he helped create gives him the right to veto a woman’s decisions in respect of the foetus she is carrying. The lack of legal basis is fatal to this argument.

So, to sum up:

  1. A fetus is not a person.
  2. Men have no say in whether a woman has an abortion or not.
  3. Restrictions on obtaining an abortion are a violation of woman’s right to security of the person.


Happy International Women’s Day!