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As I mentioned in my last post, in 2003 and 2010 I published newspaper columns discussing racist names of professional sports teams – columns that still resonate given Douglas Cardinal’s recent failed attempt to enjoin the Cleveland Indian baseball club from using its name and logos in Toronto during the American League Championship series against the Blue Jays. Here is the column first published on September 3, 2010. (Read the 2003 column here.)
In support of the proposed mosque and Muslim community centre near “ground zero” of September, 2001, President Obama noted that freedom of religion was fundamental to U.S. history, values, and law. When critics and the usual gleeful troublemakers characterized this as a further insult to the memory of people who died in the terror attacks, the president said he was not talking about the project’s wisdom; he was remarking on the right of the American Society for Muslim Advancement and the Cordoba Initiative to undertake it. Some accused Obama of backpedalling, but of course he was making a legitimate distinction between law and social niceties. Correspondents to newspapers have put it more plainly: the fact that you have a right to do something doesn’t mean it’s the right thing to do.
American law is particularly alive to this distinction regarding the associated right of free expression. Over the years, however, it has reversed the “it might be your right but it ain’t right” homily, permitting all sorts of nastiness as protected by the First Amendment: in politics and entertainment, you have the right to say pretty well whatever you want, never mind that it’s hurtful and unusually rude. The notorious example is the mock Campari ad in Hustler magazine, a parody relating that Reverend Jerry Falwell’s “first time” was with his mother, drunk in an outhouse: Falwell v. Hustler, 485 U.S. 46 (1988). Then there is what has come to be known as “the Redskins case.”
It is not surprising that the controversy is a child of the 1970s. What remains remarkable is that it has not only survived the cacophony of political correctness since (including the idiot insistence that “I’m entitled to my entitlements” is the same thing as having rights) and particularly that it has survived the increasing sensitivity – and newfound decency – regarding racial stereotyping. Twenty-eight years later, we still have a football team of mostly African-Americans, and notably bereft of North American aboriginals, called the Washington Redskins. Then, of course, there are baseball’s Cleveland Indians and Atlanta Braves, hockey’s Chicago Blackhawks, and so on. It’s no wonder native North Americans have come to feel singled out for public ridicule.
I last wrote here about such commercial stereotyping in 2003, when Colleen Kollar‑Kotelly of the U.S. District Court struck down a ruling by the Trial Trademark and Appeal Board that the mark “Washington Redskins” was unlawfully disparaging under the Lanham Act. Since then, the matter has shuttled between Judge Kotelly’s court and the U.S. Court of Appeals, the upshot being that the complaint was dismissed on the basis of laches: the plaintiffs had sat too long on their right to object – Pro-Football Inc. v. Harjo, 565 F.3d 880 (2009, U.S.C.A, D.C.).
Recently, the U.S. Supreme Court refused to hear a final appeal. Still, while progress has been spotty on the “right thing to do” front, and moribund on the legal front, the battle remains joined. A recent edition of CBC Radio One’s “Revision Quest” renewed the debate in Canada. In 2005, the National Collegiate Athletic Association (NCAA) ruled that, if any of its members use aboriginal imagery or team names, they cannot host NCAA championships. And to get around the laches argument, in 2006 a younger group of plaintiffs filed a new mark-cancellation petition against the Redskins organization. It now becomes active, at the ultimate failure of Harjo.
Often the counterargument in these cases is that the team names and the associated artwork and activities – even the so-called tomahawk chop and woo-woo “war cries” among fans – are homages not insults. And sure enough, though I see “Redskins” as a racist stereotype, as a “European” I don’t feel anything visceral against team names such as Blackhawks, Fighting Sioux, or Braves. But first peoples rightly point out that the bigger, cumulative picture is all monochrome, all martial, the picture you’d get by insisting the New York Yankees could as easily be called the New York Village Bombers while the Giants became the IED Disablers.
This might sound simplistic, but for me it all comes down to Chief Wahoo. As I said in 2003, viscerally I find the logo-man for the Cleveland Indians, deliberately cartoonish with his toothy smile and single-feather headdress, attractive and amusing. But, again, “he’s gotta go, along with the Redskins mark. As one view puts it, Chief Wahoo has become the ‘little red Sambo’ of the 21st century.”
When I am tempted to say it’s all just in fun, I put myself in the other guys’ footwear (whatever that might be): I imagine a team called the New York Israelites, whose logo-man is Rebbe Oyvey. Rebbe Oyvey is a dancing chassid with an ecstatic, otherworldly smile, his eyes closed, his sidelocks and long beard bouncing under his black hat, his long black coat flying around his shins.
Would I find it offensive? Not really. It’s dumb but sort of happy-making. There’s no offensive mens rea. But what if there were also, I don’t know, the New Jersey Cardiologists, featuring a brow-furrowed M.D. and his stethoscope? And the Los Angeles Media and Entertainment Barons and their plot to conquer the world … of baseball, and the Chicago Professors with a similar aim regarding basketball?
Even if there were only the New York Israelites and Rebbe Oyvey, would I find them a heartfelt homage? No. I would find them a caricature that has nothing to do with either Judaism or sport. That would be my right. Seven years later, in 2010, what a shame we have to go to law to make the right thing to do a thing that’s a right.
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Yesterday (October 17, 2016), Douglas Cardinal lost his bid to enjoin the Cleveland Indian baseball club from using its name and logos in Toronto during the American League Championship series against the Blue Jays. In 2003 and 2010, I published columns in The Lawyers Weekly on this controversy over racist sports team names. As some readers of this blawg will not have seen those pieces, I reproduce them here. Sadly, they remain timely. Here is the column first published on October 17, 2003. The 2010 column follows in the next post.
The Houston Honkies. The Pittsburgh Pale Faces. The Oklahoma Ofays. The Washington Whiteys. Surely Colleen Kollar‑Kotelly tried some of these on for size. Which makes it all the more baffling how the U.S. District Court judge overturned a ruling by the Trial Trademark and Appeal Board (TTAB) that the mark “Washington Redskins” was invalid under the Lanham Act.
In 1992, seven native Americans complained to the TTAB about the mark as used by the professional football club headquartered in the District of Columbia. On Sept. 30 Judge Kotelly ruled that there was insufficient evidence for the TTAB to decide (in 1999) that the mark “may disparage native Americans or bring them into contempt or disrepute.”
Probably the judge is right not to rely on judicial notice (her own experience and opinion). But that is no reason to abandon common decency and sense.
It is difficult to know which irony to cite first. There is The Language Police, for instance, Diane Ravitch’s recently-published study of the guidelines educational publishers and governments apply in U.S. textbooks and school testing. Ravitch found “huts” banned as “ethnocentric.” Calling a spade a manual excavating implement, the authorities suggest “small houses” instead.
On similar reasoning, “fanatic” and “extremist” are taboo in favour of “believer” or “follower.” “Soul food” shows bias, and “elf” must replace “fairy” because sometimes “fairy suggests homosexuality.” “Middle East” is Eurocentric and “boys’ night out” sexist.
Yet Judge Kotelly rules that the linguistic evidence is ambiguous on whether “redskin” is derogatory. The TTAB wrongly concentrated on the general public’s purported view, she says, instead of on how the “referenced group,” American first nations, felt about the term. The plaintiffs’ survey sample was too small, the seven plaintiffs did not represent native Americans in general, the dictionary evidence did not explain how the compilers determined what was offensive or racist. And so on.
Her honour does not consider that the Redskins began life as the Boston Braves, or that sports franchises change their names all the time, with no commercial damage. Not long ago, the Washington Bullets basketball team became the Wizards. Some consider even “Braves” offensive. Schools in several U.S. states have stopped using it in sports team names, along with Warriors, Chieftains, and the like – never mind that, unlike “Redskins,” such names pay genuine homage, relying on historical fact. They tend to stereotype less than the Fighting Irish, say, or even Vikings or Trojans. Yet Redskins persists while Braves is banned.
Nor did the district court consider that in 2002 the California Department of Motor Vehicles recalled the vanity licence plates of former Redskins fullback Dale Atkeson. The DMV explained that Atkeson’s 1REDSKN and RDSKN2 plates were “offensive to good taste and decency.” Too bad Redskins lawyer John Paul Reiner didn’t feel the same when he argued before the TTAB that “redskins” was no more offensive than “colored,” as in the National Association for the Advancement of Colored People.
In my own lifetime, in the name of inclusiveness “colored people” evolved into “Negro,” then “black,” and now “African-American.” The fact that the same respect is denied the continent’s first peoples suggests that we are not so civilized as we think. Like an ugly boil, it tells us that racism subsists in our body politic. In this respect, it is hard to credit Judge Kotelly’s companion ruling that the time for native Americans to object was in 1967, when the Washington franchise first registered the mark. That was 36 years ago, when racial segregation was a part of everyday life.
Today’s Canadian Oxford Dictionary takes a descriptive approach to language: it does not prescribe usage as correct or incorrect. However, even it characterizes “redskin” as dated and offensive, just as “colored people” is. And it takes pains to show why we cannot say the same of “Indian,” despite the fact that the term derives from history’s worst navigational boner – made, of course, by a pale face. In a special note the COD explains that while the use of “Indian” has “declined because it is thought to reflect Columbus’s mistaken idea that he had landed in India in 1492, it is common in the usage of many Aboriginal people and embedded in legislation… . It is also the only clear way to distinguish among the three general categories of Aboriginal people (Indians, Inuit, and Metis).”
Of course, the same cannot be said of the Indian trademark used by another sports franchise, the Cleveland Indians baseball club. I’ve always found the team’s logo, the big-toothed, smiling warrior dubbed Chief Wahoo, friendly and fun, but there’s no two ways about it: He’s gotta go, along with the Redskins mark. As one view puts it, Chief Wahoo has become the “little red Sambo” of the 21st century.
Anyway, the real question is why this issue ever got to the courts. Why do we have to go to law, cap in hand, for common decency? Walter Goldbach, the creator of Chief Wahoo in those less inclusive days of 1946 (when Goldbach himself was only 17) has suggested that the Cleveland franchise approach native American artists for a new logo. Vernon Bellecourt, president of the National Coalition on Racism in Sports and Media in the U.S., proposes that the team hold a contest in which the public provides a new name. The Redskins could follow, making it clear that the sports field is where people of all backgrounds put their differences aside in the spirit of fair play and mutual respect.
Doing the right thing could be a golden PR opportunity, if only the moneyed interests would embrace it. If only U.S. law were truly colour blind. They could trademark it across the world.
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Someone rushes into the room and fires a gun at the prof., or stabs at him with a knife. The attacker flees into the corridor.
Given our era of global terrorism and school shootings, Evidence Law profs wouldn’t stage this “crime” in class these days. Up to maybe a couple of decades ago, the idea was to impress law students with how unreliable eyewitnesses can be: everybody has a different narrative, disparate and sometimes wildly inaccurate. And if witnesses get to talking to one another, they can reinforce misconceptions, or cause each other to experience what nobody actually experienced.
I was reminded of this just yesterday (from when I write), melodramatically, as I sat in the waiting room of my ophthalmologist’s office in Yorkville. It was about three in the afternoon on a warm, sunny day, and my eyes stung with dilation drops. The large room was full. I was squinting at Maclean’s, trying to discern how Justin Trudeau is feckless as a feminist, when I heard three loud pops. After ten or fifteen seconds, there were three more loud pops. Looking up from her cellphone, one of the other waitroomers said, “A gun?” We all had wooden half-smiles on our faces. Then a woman we couldn’t see screamed. The cellphone lady left her seat, looking worried now, to see what was happening.
I’ve had to revise these events even as I describe them, never mind that they occurred just a few hours ago. Because of intervening circumstances – talking with eyewitnesses and other “earwitnesses,” hearing and watching broadcast news, reading the newspaper – I thought at first I remembered wrongly: that, in fact, the second volley of shots came after the scream. This doubt arose because the office receptionist had seen a plainclothes policeman approach a car and fire at the shooter. It was she who had screamed, although some of the waitroomers had thought the scream came from the street.
Once the receptionist had told me she saw the officer shoot the shooter, I had imagined that the second volley came from the police officer’s gun. News reports revealed later that both volleys likely were the shooter’s: he fired three times at criminal defence lawyer Randal Barrs, who had just exited his Yorkville office. Hit in the leg (police later said), Barrs crawled back toward the building, when the shooter fired several more rounds.* So, yes, your honour, I’m ninety-something percent sure the scream came after the second volley, as the police approached the gunman in his car.
Soon after the scream, anyway, I imagined we were safe, because I heard the roar of a car, and I assumed the shooter had fled.
Wrong again. True enough, the shooter was by then in a car, just outside my doctor’s building, where he had fled after the first volley. But the roaring vehicle I heard must have been the plainclothes officers using their unmarked cars to box him in. You perhaps saw the resulting configuration of vehicles on the evening news.
But of course, that is conclusory after the fact, without corroboration. What else was notable to this long-toothed legal academic and former barrister is that, with the first three shots, I went into denial, in a split second. Although I’ve lived in Toronto for 43 years and the last couple of decades here have been like inhabiting serial episodes of “Gunsmoke” (yes, it really is a disgrace, all of us at the Bochner Eye Clinic agreed), and although I started my legal career with criminal law, my first thought was, Gun. Then: Nah, not in Yorkville in broad daylight. Must be construction. But my body was thrumming, my breathing shallow with the effort of such wishful thinking. At least a couple of other people in the waiting room felt the same, it turned out, and had the same impression of rationalizing: “Nah. Can’t be. Could be?”
With the second volley we all lost our grip on denial. We began feeling something like mild hilarity, looking at each other with deadened half-smiles, shrugging, creating scenarios, having them altered by what we were told by others who had seen some of the street activity, giggling in disbelief and shock, then reminding each other that, the more we learned, the less amusing it was. We stopped waiting and started roaming, thinking out loud, peering outside. We were never amused, of course, but found ourselves dumbfounded by inexperience of such things in, as one woman reminded us, “Toronto the Good.” Smiling made us feel safe, betraying that reflexive denial. This stuff happens somewhere else, to someone else.
With the scream, it got serious. In fact, just after it, somebody’d had the presence of mind to holler, “Lock the door,” never mind that it was glass. Still, it took us at least five minutes (ignorant that by then the danger had passed) to decide we should probably move away from the windows. Denial, incredulity, shock, assisted by the fact that the window-shades were drawn against the sun. Out of several varieties of fear and wilful ignorance, we hadn’t raised them. Had the receptionist not seen most of what actually happened, our individual surmises were all we had to reckon with, themselves tweaked and twisted again and again as we talked about what we thought had happened, or not.
It was a good lesson, anyway, for all of us, never mind every police officer, barrister, judge, and expert witness. Be skeptical of the circumstantial. Even earwitness accounts can be coloured by our idiosyncratic experiences, physiology, and psychology.
*The good news is that both Mr. Barrs and the shooter survived. The news today is that Mr. Barrs is home from the hospital and recovering in good spirits at his home.
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[Introductory note: In 1929, the “Famous Five” feminist activists (Henrietta Edwards, Nellie McClung, Louise McKinney, Emily Murphy,and Irene Parlby) argued in the Supreme Court of Canada that women were “persons,” as the Canadian
constitution puts it, qualified to sit in the country’s senate. The court disagreed, four judges to one, largely on the basis of what we now call an “originalist” view – that women would not have been viewed as qualified persons in 1867, when the constitution came into force. The Judicial Committee of the Privy Council reversed in favour of the Five. The Lord Chancellor, Viscount Sankey, famously held (Lords Darling, Merrivale, Tomlin, and Sir Lancelot Sanderson concurring): “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. ‘Like all written constitutions it has been subject to development through usage and convention.’ (Canadian Constitutional Studies, Sir Robert Borden (1922), p. 55).’”]
“The Senate’s for Party patrons,”
reads the judgment of the Chief,
“and that excludes all matrons,
So what’s their stewing beef?
While the female might be ‘people,’ historically she’s feeble,
and the law it’s clearly anti-person Nell.”
So the Five packed up their briefs, and this insult of the chief’s,
’cause it Fired ’em up as hot as deepest Hell.
They appealed to that old Darling,
and to Sankey the Lord Chancellor,
The former known for snarling
the latter an ageing bachelor
whom the Five nonetheless seduced, or at least their empathy loosed,
sitting in the glorious Council Privy.
No, not the public loos there, where persons spend a penny fare,
I mean the high Judicial Com-mit-tee!
The Supremes looked to Confederation,
and the Fathers intent originally,
“But what about the mums, then?”
asked the P.C., more correct politically.
“Never mind that we’re five brothers, we’ve all got sisters and mothers –
Like Hen, Nell, Lou, Irene and Emily.
Lords, libbers, vegetarians, we’re each of us homo sapiens
Who understand the law’s a living tree.”
So The Five pitting five against five
proved that men supreme don’t alone survive
as a matter of natural selection.
For we wouldn’t be alive,
or on Senate perquisites thrive,
unless Mum’s the word that helps describe a person.
De minimis non curat lex (“The law does not concern itself with trifles” – an old legal maxim that never goes out of style, even if what we call trivial keeps getting bigger and nastier.)
If it’s true that the law ignores trifles,
Does that include all combat rifles,
Extant throughout the U.S.,
Where de blunderbuss non curat lex,
And the crusty old second amendment,
Is now a religious commandment?
No, the law won’t pursue those with riches,
Not even the worst sons of bitches
Who never pay their tax.
’Cause da middle class non curat lex.
(For one thing, they just can’t afford it,
For two things, the law don’t ignore that.)
The law don’t consume any truffles,
For the partnership hates office scuffles
Over billables lost on long lunches,
’Cause da lex, it non curat fungus,
And it doesn’t drink coffee or tea:
It’s Non-non! to bill time when we wee.
But the lex, it welcomes all troubles,
Your tumbles, your fumbles, your real estate bumbles
Your tussles and grumbles, your bar-room kerfuffles,
All sorrows that might plaintiffs vex,
’Cause da tsuris,* it curat da lex.
*Yiddish for “troubles.”
I recently completed a book – Justice as Nostalgia: A New Theory of Justice as Integral to Culture – promulgating a notion of justice based on an archetypal approach to the social contract, an approach incorporating the conscientious neighbour (a more demanding “reasonable person,” as described in a previous post) and what I call consensus morality from among the educated, engaged public. (See the Justice page.) One chapter offers practical applications of the theory, including the following regarding annual flooding in Manitoba. I would be very interested to hear from readers regarding what their own sense of justice suggests is “right” here.
Come spring and early summer in parts of Manitoba, flooding is an annual problem. In 2011, city council in Brandon decided to divert the Assiniboine River so that a less-populated farming region would be flooded instead of a more urbanized area. In 2014, the city considered taking similar measures (dredging the Whoop and Holler Bend so that part of the river-flow would divert into a southern basin), just after those living in the rural area felt they had recovered from the earlier deliberate flooding.
The diversion is characterized as utilitarian, doing the greatest good for the greatest number. When I have asked friends about it, they immediately see this and think it is a just solution, at least to the extent that governments will “compensate” rural dwellers who have the flooding imposed on them. When I say, “Well, assume that twenty percent of the rural families deliberately had moved to that side of the river to be out of the flood plain,” they generally hold to their position but start to become defensive. Then I ask them, “What if one of those families was yours, and it was your home and livelihood at risk?” Then they get annoyed with me (for snapping away the cloak of invisibility on the farmers’ suffering?), and feel that I am “moralizing,” perhaps suspecting (correctly) that I cannot agree that the diversion is necessarily a just measure, or even that it really works a greater good. Gamely, I press on, “Never mind the damage to the agricultural land and possibly the water table, what about the intangibles, such as the impression among the affected farmers, not to mention rural dwellers generally, that, yet again, the city slickers are pushing the dirty end of the stick on them?” This is the challenge of moral consensus, being able to put yourself in the shoes of the sufferer, staying objective but with a subjective understanding.
Naturally that is what a court would be obliged to do if the farming families brought a constitutional challenge, arguing, for instance, that the measures impose an unfair (unequal) burden on them compared to other communities, particularly those who suffer or do not suffer the flooding according to how nature behaves in the normal course (which of course includes longer-term influences caused by human settlement and exploitation). We can imagine that the court would agree that there had been differential and perhaps even arbitrary treatment, but it also might agree with my friends that the treatment is “demonstrably justified in a free and democratic society,” as the constitution puts it, in permitting authority to over-ride protections accorded by the Charter of Rights and Freedoms.
So do we have yet another hard case in the utilitarian-contractarian debates regarding moral philosophy. In a world of perfect justice, presumably the flood burden would be equally shared. Perhaps the community could agree that compensating the farm-dwellers – in the form of money, help in rebuilding, counselling, etc. – would be a fair exchange for the river diversion. Perhaps their restored properties would put them in a better position materially, and thus be more reasonably “compensatory.” You could say that the contractarian mitigates the utilitarian in this way, in a sort of compromise common in our societies. For example, while the inability of a couple to “get pregnant” in itself presents no compromise to one’s bodily security, and while it must remain a lower priority to serious disease and injury when we allocate health-care resources, we sometimes devote public money to funding in vitro fertilization, albeit for a limited number of trials. Most likely, the greater good, at least in terms of resource-allocation, is in not funding the trials at all. On the other hand, artificial insemination could produce another Einstein, not to mention provide a greater communal sense of sharing the burden of a disability.
In the Assiniboine River case it is hard to know what a moral consensus would be, should authority consult the wider populace. My friends seem to feel that, even if we agreed that it was “more moral” just to permit nature to take its course (and it is by no means clear that we could agree on this), such a decision would be destructively impractical, not to mention fundamentalist-extremist in the moral sphere. Given the weight of history, I remain extremely uncomfortable obliging a non-consenting minority to bear an unequal burden.
Lord Shaw of Dunfermline once remarked that if Res ipsa loquitur weren’t Latin, it would never have been elevated to the lofty heights of legal principle.* Eighty years later, the Supreme Court of Canada agreed, and the historic phrase has been banished from law practice in Canada. The federal Law Reform Commission expressed something of the same view about all Latin in the Criminal Code. In 1991 it encouraged deletion even of terms that had become everyday speech, such as in camera and ex parte. Since then, legal Latin – once the language entire of courts and statutes in the Anglo-Canadian world – has been pretty much ethnically cleansed from legislation and even judgments in many jurisdictions. In 2013, the British Columbia Court of Appeal issued a practice directive requiring lawyers appearing before it to “avoid overly formalistic language such as ‘this Honourable Court,’ ‘hereinafter,’ “heretofore,’ ‘aforesaid,’ or ‘learned.’ Use Latin phrases only when necessary.” Where the word learned is banned, can Latin phrases ever be seen as “necessary?” And “formalistic” is not, uh, formalistic?
Informality can be inclusive, sensible, and pro bono publico. But unilateral injunctions and private hearings will always sound more lopsided, secretive, and dumbed-down than advocacy heard ex parte and in camera. The Latin phrases carry historical and procedural nuance invisible in English. Ex parte motions are certainly unilateral, but generally we seek them in circumstances of great urgency and, occasionally, sharp (unfair) practice. No matter what you do to a technical language, it remains technical to some extent, and while wider access to justice is undoubtedly desirable, we will always require technicians to navigate the law. For better or worse, given its necessary complexity and comprehensiveness, the “people’s law” will always require specialist interpreters and analysts. Picking on Latin as a supposed barrier to justice is a little like calling someone Ms. but still denying her equal pay for equal work.
It surrenders to intellectual laziness, and smacks of the condescension of noblesse oblige. You could argue that such censorship, as political correctness, is yet another symptom of the European guilt-reflex endemic these days, as though correcting historical injustice resides in our own self-effacement, even as we enthuse over multiculturalism – Canadians of European descent being notorious for “I’m sorry,” even regarding our most benign self-expression. On this view, because the colonial imperialism of some of our ancestors caused serious harm, we must be fatally flawed, as with original sin, as though those ancestors had not also built nations that have proved to be the world’s most admired expressions of civil society. It’s a paradoxical, negative, often sanctimonious iteration of elitism or exceptionalism, and shows Quebec to be undoubtedly distinct: Quebeckers generally reject this self-denial as a curative for historical wrongs done to others.
Defensively, bigots glom on to these conspicuous expressions of cultural guilt, turning them back on their subscribers. Rational and empathetic as such impulses of reconciliation might seem, could it be that, paradoxically, they help fuel the irrationality and defensiveness of Donald Trump’s supporters, and maybe even some Brexiters? Many of these folks feel “dissed” by the modern “liberal” ethos of extravagant “inclusiveness,” excluded from it and scorned as others are invited into the expanding tent. They lack the intellectual subtlety to respond more reasonably: if the latest thing is tribalist grievance collection and assertion, they want in.
True enough, the Roman empire fell 1500 years ago, and Latin has had a good run long past that, in our (sacred) Law and our law, never mind that it will always run rich, if mostly unnoticed, in the blood of English and French. Robert Megarry’s Miscellany-at-Law: A Diversion for Lawyers and Others went through seven printings between 1955 and 1981 with its Latin asides and maxims untranslated. Yet in his A Second Miscellany-at-Law, published in 1973, Megarry writes that he has “recognised the accelerating disappearance of the classics as staple of education by inserting in the footnotes translations of those Latin phrases which are not sufficiently well known or explained by the context.” It lately occurs to me that a perfect thumbnail characterization Donald Trump would be compost mentis, but I’m not sure how widely I can share it: to really get the shit-for-brains aspect, you have to know that when someone was mentally fit, law and medicine used to call him compos mentis – again, shorthand for the more complex “The guy’s got his wits about him.”
So Latin itself refuses actually to die. Like dark chocolate versus the Snickers bar, it never quite gives in to populist whim and self-satisfied ignorance. “Foreignisms,” and especially Latin and Greek, can be pompous and obscurantist. But to cleanse them not only eradicates the patina of a history shared by millions of people – the comfort and also the wisdom of experience – but narrows discourse and restricts wit.
As for res ipsa loquitur, it simply suggests that when the dog escapes your fenced yard, somebody must have left the gate open – in the jargon, there’s “a presumption of negligence”: the thing speaks for itself. It makes you wonder if Lord Shaw and our high court would have picked on the maxim if we had translated it, more vulgarly, “Things are looking bad for Junior.”
* Ballard v. North British Railway Co., 1923 S.C. (H.L.), 43 at 56. Literally translated, the phrase reads, “The thing speaks for itself.”
No, it isn’t a poisson d’Avril, which is how they say “April Fool’s Joke” in Quebec. On April 1 the province’s court of appeal held that, in blowing “flutes” during a three-year labour dispute, picketers did not attempt to “intimidate, threaten, impede or otherwise harm or attempt to harm, directly or indirectly, the free movement and work of the applicants as well as their various clients, associates, suppliers and staff, or all other persons wishing to enter or leave the said establishments or to freely undertake their work or activities there.”*
The quoted bit is the meat of an injunction issued from a lower court, against unionized employees locked out by car dealers and automotive repair shops in Saguenay Lac-Saint-Jean. Before legislation ended the dispute, the employers had brought 90 contempt motions. This one, concerning unionist Alexandre Caron, actually stuck – at first.
Caron was fined $950 for (among other things) harming or attempting to harm employees, clients, and suppliers of Automobiles de Royaume, and their work there, by loudly blowing a trumpet and flutes (sometimes during client meetings), intimidating them by photographing them at his employer’s premises from an adjacent property, as well as calling the used-car sales manager a “little fatso” and telling him to get “back in the garage and eat your baloney.”
This sort of cacophony continued for another couple of months, it seems, at up to 100 decibels (apparently with the aid of speechifying over loud-hailers, perhaps as a response to complaints about the “music”), because the employers then managed to get another court order, limiting the noise to 60 decibels. Presumably this was loud enough to protect the unionists’ constitutional right to throw tantrums without unduly impeding business operations. But by then, Caron had been ordered to show cause why he should not be convicted of disobeying the injunction.
On that contempt motion, the judge below found that not only had Caron exercised his collective bargaining rights by blowing a trumpet and flutes, but also a kazoo, whistles, and an “air pump.” (Maybe he attached it to some bagpipes?) “The frequency, duration, repetition and intensity of the noise,” the motion judge held, “reached intolerable levels, making it difficult, nay, impossible, for the applicant’s employees to work” – thereby constituting a contempt by disobedience of the injunction.
But the Court of Appeal has disagreed, two judges to one. “Regarding noise,” Justice Levesque ruled for the majority, the injunction “was ambiguous.” It “made no mention of the applicants’ management or their employees. It referred only to ‘the applicants’ work,’” which comprised “the sale, maintenance or repair of motor vehicles.”
Where the dissent thought the employers were perfectly entitled to get judicial assistance in turning the soundtrack down from fortissimo, the majority held this attempt to preserve their businesses against them, given that the employers had sought the noise-reduction order after Caron was cited for contempt: seeking that second order, the majority said, meant the employers admitted the ambiguity about noise in the original injunction …
Never mind the introduction of loud-hailers, which seem to have allowed the majority to imply that the noise could have increased between the time Caron was cited for contempt and the date when the court issued the noise injunction. The din probably did get louder, all right, though the court does not say what that has to do with whether the previous non-music impeded business unduly. In any event, the majority decided in Caron’s case, there seemed to be “no proof that the noise was meant to impede or limit work” or “proof beyond a reasonable doubt that it intimidated” those still working.
The emphasis is mine, because last year the Supreme Court of Canada made crystal clear that the test for contempt by violation of a court order (here, the injunction) is not whether the accused person intended to thumb his nose at the court. Contempt of a court order occurs when the accused intentionally performs an act the order forbids (or an act contrary to what it demands) – in this case, acting to disrupt the employers’ operations beyond conventional, lawful picketing. What else would Caron have meant to do with his “music”? Whether he thought he acted within the injunction’s terms is irrelevant.
As a society, we seem to have become terrified of peace – of being alone with our own thoughts, or perhaps of the poverty of our materialism, staring at phones instead of the flowers and trees, playing boom-boxes in SUVs instead of listening to the birds and wind, demanding Wi-Fi in wilderness areas instead of letting our minds wander. Fair enough, the contempt remedy is meant to be a last resort, and one can imagine how frustrated the unionists must have become during three years of lock-out. But it is hard to know where the majority judges imagine that distracting but lawful noise ends and intimidation, harm, or impediment begins.
For three years the unionists were already picketing, shouting, filming, slanging off those still working, using mirrors to reflect blinding light into the workplaces, and so on. Nobody was telling Caron that he couldn’t sing “Solidarity Forever” or chant “No justice, no peace or oil changes.” How do ear-splitting flute solos (one imagines screechy plastic recorders rather than silver Yamahas and boxwood Olwells) amount to legitimate collective bargaining, particularly in the face of a court order prohibiting workplace harassment, and more particularly when balanced against the rights and well-being of one’s fellow workers? As the decibel level of modern life increases, when will we pick up a loud-hailer and shout above the din that enough is too much – that, from the invention of the wheel forward, technology has brought us all this way, only to see us turn it into Frankenstein’s flute-playing monster?
*The judgment is in French. The quotations and paraphrasing are from my own translation.
It is such a compelling legal fiction that it has its own celebrated poem, as well as a Latin maxim: Cuius est solum, ejus est usque ad coelum et usque ad inferos, literally, “Whoever holds land holds it all the way to the heavens and all the way to Hell.” As William Empson puts it in “Legal Fiction,” his 1928 poem inspired by the principle, “the law makes long spokes of the short stakes of men.”
The maxim is often said to originate with the 13th-century scholar of Roman law, Accursius, although Yehuda Abramovitch traces it to pre-Christian times among Jews, in contracts for real property. He gives an example of a contract in England, in 1280, conveying lands between Jews “from the depth of the earth to the height of the sky.” Possibly racial prejudice has obscured this Jewish provenance in Anglo-Canadian law.
Since the nineteenth century, at least, the fiction has never enjoyed this extensive application, such that sometimes it is more cautiously styled a presumption. Even in 1870, the English judge George Denman described it as a “technical rule,” albeit while finding a defendant liable in trespass because his horse bit and kicked his landlord’s mare (violated the landlord’s “air rights”) through a fence separating the two properties. Its scope has drastically been whittled down further by technological development – particularly communications infrastructure (utility poles and the like) and aviation.* At this writing, the widespread popularity of “drone” aircraft, now readily accessible to peeping Toms and break-and-enter specialists, has reinvigorated the debate as to “how low you can go” in the insistence on air and attendant privacy rights. Drones do not simply move briefly through air space like passenger jets or satellites (or bullets: see the next paragraph); they customarily hover like their namesake bees.
As early as 1815, Lord Ellenborough proved prescient about these developments in a case asking whether, in nailing a barber’s sign to the side of his premises, Rudd trespassed on Pickering’s land where the sign projected over it:
I once had occasion to rule upon the circuit that a man who, from the outside of a field, discharged a gun into it, so that the shot must have struck the soil, was guilty of breaking and entering it. . . . But I am by no means prepared to say that firing across a field in vacuo, no part of the contents touching it, amounts to a clausum fregit [i.e., a trespass]. Nay, if this board overhanging the plaintiff’s garden be a trespass, it would follow that an aeronaut is liable to an action of trespass at the suit of the occupier of every field over which the balloon passes in the course of his voyage.
Then, too, for some time there have been such considerations as occupier-owned apartments stacked atop one another in multi-storey buildings. How does Blackacre own everything above her when Whiteacre occupies 301, Greenacre 401, and so on?
As for drones, Sir Frederick Pollock proved visionary there, in his 1887 treatise on torts: “At Common Law it would clearly be a trespass to fly over another man’s land at a level within the height of ordinary buildings, and it might be a nuisance to hover over the land even at a greater height.”
Yet the maxim’s claim seems so extravagant – godlike – that Empson was moved to deflate it in his poem, concluding that such a “well fenced out real estate of mind” is, in the end, a mere candle’s shadow lit by human vanity – an arrogant pretext that we really own anything of nature’s empire, that we can just magic up our short stakes into long spokes.
* The statutory minimum cruising altitude generally for “aeroplanes [is] 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane.” Bemusingly, when Manitoba purported to tax airlines for liquor they sold while flying through the province’s airspace, the Supreme Court of Canada shot down the scheme: Manitoba v. Air Canada,  2 SCR 303.
Primary sources for this post (adapted from my forthcoming encyclopedia of legal fictions and presumptions, and constructive, deemed, and implied entities): Yehuda Abramovitch, “The Maxim ‘Cujus Est Solum Ejus Usque Ad Coelum’ as Applied in Aviation,” McGill L.J. 8:4 at 251; Stuart Ball, “The Vertical Extent of Ownership in Land” (1928), U. of Pennsylvania Law Rev., 76:6; Canadian Aviation Regulations; Ellis v. Loftus Iron Co. (1874) L.R. 10 C.P. 214; Pickering v. Rudd (1815), 4 Camp. 219; Troy A. Rule, “Airspace in an Age of Drones,” Boston U. Law Rev. (2015), 95:155 at 155-208.
For more on the Empson poem, see my The Structures of Law and Literature.