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My daily work includes writing a book on judicial notice, the doctrine whereby courts and administrative tribunals accept certain matters as “factual” (because they’re notorious or subject to ready verification) although they are not put forward according to the rules of evidence. Courts have noticed, for example, that the floors in banks can be slippery when it snows, and that older people generally have a harder time finding work. While the book is only about a third completed and the doctrine dates from the middle ages, I’m certain that a case decided just last month provides the most remarkable example: The Gospel of the Flying Spaghetti Monster.
Stephen Cavanaugh has argued before the United States District Court that officials at the Nebraska State Penitentiary, where he is an inmate,* violate his constitutional right to religious expression: the prison has refused to let him practise Pastafarianism, more formally known as FSMism and the Church of the Flying Spaghetti Monster.
The Abraham and Moses of Pastafarianism is Bobby Henderson, who founded the church in 2005, when he was 25, in an open letter to the Kansas Board of Education. As a sort of rear-guard assault on the teaching of “intelligent design” in Kansas schools, the letter proposes that the curriculum should include Pastafarianism as well. Given that intelligent design purports to be scientific despite the absence of verifiable evidence to support it (as opposed, say, to the Darwinian theory of evolution or Newtonian theory of gravity), the argument goes that one such theory is as good as another, and therefore deserves equal time.
Pastafarianism, Henderson explains, is “today’s fastest-growing carbohydrate-based religion,” and he notes that it serves to dispel “such malicious myths as Evolution (only a theory), science (only a lot of theories), and whether we’re really descended from apes (fact: Humans share 95 percent of their DNA with chimpanzees, but they share 99.9 percent with Pirates!).” Its creed holds that the universe is ruled by the Flying Spaghetti Monster (the FSM of FSMism), whose sovereignty is acknowledged by believers who, inter alia, “pirate-speak” while wearing Long John Silver costumes, eat a great deal of spaghetti (also styled as taking communion), and celebrate noodlecentric holidays such as Pastover and Ramen Dan.
So much for ritual. As for the science validating the doctrine (in the vein of intelligent design), apparently it is more than an article of faith that gravity is caused by the Monster’s pushing down on us with His Noodly Appendages, and that global warming is caused by the “decreasing number of pirates on the high seas.”
District Court Judge John M. Gerrard has proved to be the Doubting Thomas in all this, ruling that Pastafarianism is not a religion “within the meaning of the relevant federal statutes and constitutional jurisprudence.” Rather, it constitutes “a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education.” Nor does the penitentiary “substantially burden” Cavanaugh in the “exercise” of Pastafarianism, the purported encumbrance apparently being denial of his right to wear religious costume, said pirate gear.
Over the years, courts have taken judicial notice that beer is “not necessarily hurtful, any more than the use of lemonade or ice-cream” (Beebe v. The State, 6 Ind. 501, 519 (1855)), and that “it has never been said” that tobacco’s “preparation and manufacture into cigars were dangerous to the public health” (Jacobs’s Case, 98, N.Y. 98, 113 (1885). As well, there was a time when judges would have noticed without supporting evidence, accurately and soberly, that racial discrimination was lawful, extending even to human slavery. So perhaps applying the doctrine here is not as strange as it first appears. Explicitly stating that he does not pass judgment on the sincerity of Cavanaugh’s belief, Judge Gerrard takes judicial notice of its foundational document, The Gospel of the Flying Spaghetti Monster, which was not entered formally into evidence:
The Court has considered whether it is appropriate to consider this text, given the procedural posture of this case. But the Court finds that it is judicially noticeable – the contents of the book are capable of certain verification, … and Cavanaugh’s complaint expressly refers to the text as a basis for his claims. … Given Cavanaugh’s reliance on the book, the Court views judicial notice of it as effectively the same as taking judicial notice of the Bible. …
… and, presumably, of Charles Darwin’s On the Origin of Species.
* Cavanaugh is serving two to four years for attempted first-degree assault with a hatchet, and one to two years, consecutive, on a weapons conviction related to the hatchet.
“It is therefore with a great deal of trepidation that I find that the Gold Seal case was wrongly decided.”
Provincial Court Judge Ronald LeBlanc might well feel trepidatious. His honour sits on the lowest law court in New Brunswick, and Gold Seal is a Supreme Court of Canada decision that has stood as settled law since 1921.
In R. v. Comeau, LeBlanc J. boldly goes where no provincial court judge has gone before, at least not in active memory. On April 29, Comeau struck down the subsection in New Brunswick’s Liquor Control Act (LCA) that prohibited anyone to “have or keep liquor, not purchased” from the province’s Liquor Corporation. LeBlanc J. reasons there that the prohibition violates section 121 of the Constitution Act, 1867: “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” And sure enough, as purported constitutional violations go, the LCA prohibition walks like a lame duck. The trouble is, higher authority, which is to say Gold Seal, says it doesn’t talk like one.
It all started when Gerard Comeau made a booze run to La neighbouring belle province, then motored home to Campbellton, N.B., with 15 cases of beer, 1500 ml. of whiskey (two bottles) and 1.5 litres of liqueur, all of it apparently much dearer if you buy it locally through “the Corporation.” The LCA provision permitted “liquor not in excess of one bottle or beer not in excess of twelve pints purchased” in another province or territory, even if you received it as a gift. Then again, apparently the N.B. police look the other way for trafficking (across staid lines, you might say) in four cases of Quebec beer or less. So, for New Brunswick drinkers, Gold Seal was already overturned, more or less, de facto if not de jure.
It must be said, too, that Justice LeBlanc’s decision is remarkable for more than its hierarchical chutzpah, however trepidatious. It is well written (which sadly is not a given in these documents, and excepting the judge’s multiple mistakings of “regards” for “regard,” although probably that settled rule has been overturned de facto, as well), and it provides a thoroughgoing, highly readable history of Canadian constitutional history. It would serve well in high school history and first-year law classes.*
As both the press and LeBlanc J. note, his decision, if it stands, could have far-reaching consequences regarding interprovincial trade. In Comeau, the judge points out that Gold Seal is the foundation of “marketing boards such as for wheat, eggs, milk and poultry, provincial liquor,” as well as federal trade barriers and other regulation of every sort of interprovincial trade. But of course there’s the rub.
His honour puts the dilemma plainly, himself: “ The current state of the law in Canada on the meaning and effect of section 121 of the Constitution Act, 1867 is clear and unambiguous: section 121 prohibits the establishment of customs duties affecting inter-provincial trade in the products of any province in Canada. The principle of vertical stare decisis [that is, the rule that courts generally must follow legal precedent, and especially decisions of courts above them in rank] mandates that I follow that law and not deviate from it unless an exception is warranted.”
The exception that Justice LeBlanc says permits him to “overturn” the current state of law is new evidence: “if the evidence that was presented before me at this trial had been brought to the attention of the justices of the Supreme Court of Canada in their deliberations on the meaning of section 121, particularly when the Gold Seal case was decided in 1921, the result would have been different.”
Gold Seal does seem to torture the syntax of s. 121 and its context in the nation’s foundational document, designed to establish a commonwealth of mutually supportive regions. It holds that in specifying that goods should “be admitted free” province to province, the fathers of Confederation meant “free of duties and other charges,” not free trade. And through the testimony of experts on Canadian constitutional history, albeit nearly a century after Gold Seal, Mr. Comeau (represented by the Canadian Constitution Foundation) argued convincingly that this is too narrow an interpretation, biased toward provincial self-interest.
Another notable quality of Judge LeBlanc’s decision is that, while it seems to be extravagantly revisionist and activist, in fact it is an unusual Canadian example of judicial originalism – of closely reading the text and historical setting of the constitution to determine what its writers intended. Generally Canadian constitutional law adheres to Lord Sankey’s dictum – in the famous case holding that “persons” entitled to sit in the Senate includes women – that the constitution is “a living tree capable of growth and expansion within its natural limits.” But that was on an appeal from the Supreme Court of Canada to the Judicial Committee of the British Privy Council – from the country’s highest appellate court to the Commonwealth’s highest. Provincial Court Judge LeBlanc quotes Lord Sankey, yet bases his decision to “overturn” Gold Seal on what defence experts in 2016 tell him the Fathers must have intended 149 years ago: a confederation in which each part of the country contributes its resources to the good, and coherence, of the federated whole. So it would appear that, legally speaking, “trepidation” means setting the cat among the pigeons.
*For further perspective on this case, from an historian, see Chris Moore’s blog. Chris has me coming down harder than I think I did here on LeBlanc J., but he adds welcome expertise on the historical evidence.
The effusiveness surrounding the death of Prince, the pop music star otherwise known as Prince Rogers Nelson and the hieroglyph formerly known as Love Symbol #2, has included some asides about his litigiousness. In protecting his intellectual property, he was at least as aggressive as the Disney Corporation, and complained bitterly that his contract with Warner Music was a form of indentured servitude – making his case partly by performing with the word Slave inscribed on his cheek and by changing his name to that hieroglyph. The damage to Warner remains debatable, while the tactics forced thousands of innocent parties, including Prince’s admirers, to utter the mouthful “the artist formerly known as Prince” every time they wanted to “reference” the musician. But Prince’s most significant legal legacy could well be a lawsuit launched not by him, but by a small-town mom, against Prince’s efforts to protect his copyright.
In early 2007, Stephanie Lenz posted a 29-second video of her young children dancing in her kitchen in Gallitzin, Pennsylvania, to a recording of Prince’s “Let’s Go Crazy.” The sound is terrible, the song hardly audible. However, Universal Music Corporation, the gatekeeper of the day for Prince’s published music, sent YouTube a “takedown notification,” a communication which apparently does not presage a physical attack but is a term of art these days for a demand that the purportedly offending posting be removed.
Lenz countered that the video was fair use, YouTube put it back up, and, backed by the Electronic Frontier Foundation,* Lenz sued Universal under that part of the U.S. Code comprising the Digital Millennium Copyright Act – specifically, the section which provides that, if you falsely allege copyright infringement (the section says “knowingly or materially misrepresents … that material or activity is infringing”), you are “liable for any damages.” She argued that the video’s use of Prince’s song was so minimal or incidental as to be “non-infringing,” as intellectual property law puts it.
Late last year, the U.S. Court of Appeals for the Ninth Circuit ruled that Lenz’s claim should proceed to trial, dismissing Universal’s motion to scrap it as being without substance. The court reaffirmed that, under U.S. law, “fair use” of copyrighted material means authorized use; it is not an exemption for an otherwise infringing use.
More significantly, the court added that, before so much as sending a takedown notice, let alone instigating more drastic measures such as suing for infringement, copyright holders are obliged to consider whether the use is fair at law. In Lenz’s case, that is, Universal should not have sent the takedown notification reflexively, without trying to work out, in good faith, whether her video made fair use of “Let’s Go Crazy.” Universal contends that its protocols for copyright oversight ensure such good faith enforcement.
So now a trial court must decide if that is the case with the “dancing baby video.” As the appeals court puts it, Lenz’s
claim boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA [(the digital copyright legislation)] by declining to first evaluate whether the content qualifies as fair use. We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.
*A big thank you to my savvy friend and loyal blog follower Donna Jez for asking, “Who’s financing her case?”
The Supreme Court of Canada has given the Liberal government until June 6 to amend the Criminal Code so that “physician-assisted death” is legal in specified circumstances. Yet some Senate members have threatened to delay the amendment’s passage. While this looks like a potential contempt of court, some of the senators might argue that it is the House of Commons, or at least those MPs who seek to pass the existing bill into law, acting contemptuously toward the high court’s order.
Given that the government has promised a free vote on the bill, no Liberal “whipping” is possible. Whipping wouldn’t help in any event. When the Liberals sat in opposition, leader Justin Trudeau extravagantly (if fecklessly) cocked a snook at the Senate as a poor man’s House of Lords (packed by successive governments with their toadies and bagpersons) by transubstantiating Liberal senators into Independents outside his control. In any event, the so-called Liberal leader in the upper chamber, James Cowan, told the Globe and Mail that Bill C-14 does not reflect the Supreme Court’s criteria – that the procedure could be granted to “a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition … that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
The bill requires that applicants for such procedures be 18, that their death be “reasonably foreseeable,” and that their request for assistance be in writing. Two medical practitioners must certify that the medical condition meets the bill’s criteria.
Senator Cowan believes the bill is overly restrictive, particularly because it excludes too many possible applicants, and because “reasonably foreseeable” is imprecise. (He served on the parliamentary committee appointed by the government to advise on how the bill should be drafted. The recommendations suggested that people in the early, “competent” stages of mental impairment be permitted to request medically-induced death should they decline to a certain point, and that in certain instances of extreme suffering such assistance should be available to minors.) While he told the Globe’s Laura Stone that “it’s not the end of the world if the bill doesn’t pass” by June 6, he could argue that, insofar as it does not substantially track the court’s ruling (in his view), it would be the Commons in breach of the deadline order.
It is of course a grave matter, fundamentally unconstitutional and a threat to the rule of law, for Parliament to snub the nation’s highest court. Should the delay be caused by unelected senators frustrating the will of legislators chosen by the electorate, the insult is yet graver. But if the deadline passes without legislation in place, no matter which house might be said to commit the contempt, the problem is sanction. The high court possesses inherent power to punish for such offences (by sundry means, including fines and imprisonment), but in this case, to punish whom? The parliamentarians who actively delay the bill? The entire Senate or Commons? Both houses? How?
Lawmakers are not above the law, and the court already has extended the deadline for them once (by six months, after a change in government). Directors and officers are liable for contempts by their corporations, as are union leaders where the contempts are organized. Arguably, house leaders, including cabinet ministers and prime ministers, could be liable for contempts if disobedience of court orders is party policy, more or less. (Where the contempt is clearly by individual choice, the courts do not act against the collective.) If Parliament misses this second deadline, we probably won’t see Cowan or the PM dining on Her Majesty’s jailhouse bologna until they “purge their contempt.” But what message would this delinquency send about the rule of law – among those meant to give it life and husband it?
What’s surprising about the documents exposing tax shelters in Panama is that so many people seem surprised. Tax shelters as Satan’s bank account are a staple of popular culture – in novels by Scott Turow and John Grisham, for example, the films based on them, and Sarah Caudwell’s The Sirens Sang of Murder, about tax havens in the Channel Islands. The latter comic mystery novel is particularly apt in that it mentions the lawsuit that makes these shenanigans legal in many instances, The Duke of Westminster’s Case. There, the Judicial Committee of the House of Lords distinguishes tax avoidance – which is legal and euphemized as “tax planning” – from tax evasion, which is illegal but in certain circles rationalized as … tax planning. As Lord Tomlin puts it:
Every man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts [(legislation)] is less than it otherwise would be. If he succeeds in ordering them so as to secure this result, then, however unappreciative the Commissioners of Inland Revenue or his fellow tax-payers may be of his ingenuity, he cannot be compelled to pay an increased tax.
Such “ordering” is avoidance. It is true, of course, that if you’re setting up corporations, and in many cases, corporations within corporations, to “shelter” your wealth offshore, hiding the principal shareholder (often, the lawyer who creates the company will be identified as its director), there’s a better than even chance that you are slinking into the far territory of evasion. What the news media miss about this is that, where we can identify the tax-evading owners (or owners who are using the corporations to launder funds or hide money obtained illegally), we have a legal remedy: we can “pierce the corporate veil” and pursue the owners personally, for civil as well as criminal remedies.
True enough, Panama (or Liechtenstein or Jersey or the Caymans…) is a bit of a schlep just to avoid a few hundred bucks in tax. Even if the sheltering corporation is perfectly lawful, a really solid citizen would not engage in what has become known as “aggressive avoidance” of this sort. Aggressive avoiders are probably not paying their way at home, never mind that they “order their affairs” lawfully (more or less) to remit less tax. Thus do we suddenly hear politicians – the same politicians who take money from high rollers for lobbying opportunities at “dinners” (see also) – say that they are thinking about making such “aggression” a species of (unlawful) evasion. Don’t hold your breath. People who pay lawyers and accountants big money so as to avoid tax enjoy the means to keep on keepin’ on avoidin’, never mind – and often because of – political machinations. Thus Warren Buffett’s purported bafflement about having a lower tax rate than his secretary. The tax lawyer’s motto might as well be, When a loophole closes, a crack opens.
What we’re really looking at here – what really has the news media and public fulminating, though mostly the outrage is more reflexive than thoughtful – is the gap between law and justice. That is, tax avoidance might be lawful, but to the extent that it places a disproportionate burden on other taxpayers, it’s unjust. Consider “How a couple with a net worth of $10 million and annual income of $215,000 can pay $0 in income tax,” while middle-class taxpayers in Canada can be “tithed” for as much as 33 per cent of their income.
Even some lawyers forget that, in Nazi Germany, the United States as late as the 1960s, and apartheid-era South Africa, homicidal racism was lawful. Tax avoidance might be legal, but where it verges on evasion, particularly evasion of social responsibility, it is at least unethical and anti-social, and can be immoral. Justice melds morality and ethics onto law, demanding that the individual contribute to the community according to that individual’s abilities. Ordinary taxpayers understand that paying their fair share includes taking advantage of legitimate deductions and shelters, such as tax-free savings plans and, to assist national economic development, lower taxation rates on certain investment income such as dividends and capital gains. What angers them is their neighbours cadging a free ride when they can afford the fare.
The last antecedent rule of comma use. The name alone could put you to sleep before you learn what it is, like it did in grade eight. But go get a coffee: ignorance in this case is not somnolent bliss. Consider: which would you confess – I love eating children and books, or I love eating, children, and books? And are you talking TO children in the second case, or saying you like them? At law, construing commas can prove costly – most recently that Avondale Lockhart goes to prison for at least ten years.
That’s what the U.S. Supreme Court said, six judges to two, on March 1. Before them was a section of the U.S. Code increasing prison sentences for sex offenders with prior convictions “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
Lockhart had pleaded guilty to possessing illegal pornography. He had a previous conviction for first-degree sexual abuse of his 53-year-old girlfriend, but said he was not subject to the increased prison term because the earlier conviction did not involve a minor or ward. He argued that the last phrase of the section, “or abusive sexual conduct involving a minor or ward,” applied to the everything in the section – that it was triggered only if you had previous convictions involving the young or the incompetent. And the series qualifier rule of grammar supports this: the final phrase in a series with commas refers back to everything before it.
The court disagreed, ruling that, by virtue of the last antecedent rule, the last comma before the last clause means that clause stands apart from the others: “minor or ward” applies only to that bit after the second comma, such that Lockhart’s prior conviction, for abusing an adult, triggers the “enhanced” term of imprisonment.
On first reading the majority opinion, you wonder if the spirit of Justice Scalia lives on, bending grammar and syntax to a foregone conclusion. But it is written by Sonia Sotomayor, of the court’s left wing, concurred in by the demonstrably liberal Ruth Bader-Ginsburg, and on second and third thought, it seems that their reading is as strong as Lockhart’s – but not that he should serve the extra time.
There is law in Canada that supports the majority view. Most notorious is the “million-dollar comma case,” in which the Canadian Radio and Telecommunications Commission considered on what terms Rogers Communications could use Bell Aliant’s utility poles. Their agreement said it was “effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.” Wanting to charge more money as soon as possible, Bell argued that the last phrase meant it could terminate the agreement at any time, on a year’s notice. Rogers said that the series qualifier rule applied (the last phrase modified everything), such that Bell could terminate only after five years. The CRTC ruled in Rogers’ favour. On appeal, however, it relied on the French version of the provision, which had no comma before the “unless and until terminated” bit, meaning that the termination clause applied only after five years. The last antecedent rule won the day, at last, but – and this is important – only after the second comma was dropped.
A couple of years later, the Alberta Court of Queen’s Bench considered a contingency fee agreement between a lawyer and client, who happened to be the lawyer’s assistant and who handled these sorts of agreements constantly. Alberta court rule 616 said that all such agreements (whereby lawyers get a percentage of damages in successful lawsuits) must specify the lawyer’s “maximum fee payable, or the maximum rate calculated, after deducting disbursements.” Yep, two commas again. The province’s law society interpreted the rule to mean that, no matter whether the client opted for the maximum fee or the maximum rate payable, disbursements (office expenses and other costs that aren’t legal work per se) were to be deducted before the fee was calculated. That is, “after deducting disbursements” applied to the whole series of clauses.
But the court interpreted the rule as though there were no second comma: the client was responsible to pay the lawyer 35% of his maximum fee, including disbursements. While it was arguable that the series qualifier rule applied, Justice Mason said, the client-protection policy behind the rule, the agreement, and the client’s understanding of it suggested different, such that the ambiguity was to be construed in her favour. Justice Mason noted, “Had Rule 616 been phrased: ‘… a contingency fee agreement must contain a statement about the fee payable after deducting disbursements or the maximum rate calculated after deducting disbursements,’ this case would likely not be before me.”
This is more or less what the dissent holds (reasonably) in the Lockhart – given that either the series qualifier or last antecedent rule might apply, the clause is too ambiguous to be interpreted against the offender.
In each of these cases, more careful drafting would have prevented undue expense, lost court time, and perhaps an unreasonably harsh prison sentence. If Congress had in fact wanted to impose a mandatory minimum sentence for any repeat sexual assault, on any person, it could have said so clearly: “The enhanced sentence applies where the offender has been convicted of a crime relating to sexual abuse or aggravated sexual abuse on any person.” No comma necessary.
Marie Henein is well known to Toronto lawyers for her surgical skill at cross-examination on criminal defence files. Now, R. v. Ghomeshi has made her notorious for that ability across the country, and maybe internationally. Lawyers find themselves putting up a bulldog defence for Henein herself at dinner parties: “What do you mean, she abused the complainants? That’s condescending. This is the era of equality rights. We take sexual assault seriously, but we also accept that educated young women can handle hard questions, particularly when they have counsel, as these women do. Why isn’t their evidence to be tested like everybody else’s? In thousands of emails ignoring warnings that communicating about the trial was improper, a couple of the witnesses revealed a determination to “get” Ghomeshi. Are we to convict him on their complaints and his Facebook page alone? Changes to the Criminal Code and common law regulate cross-examination in these cases, promoting fairness to complainants. Part of Crown counsel’s job is to assure that defence cross-examination is proper.”
This “Henein defence” is premised, of course, on everyone’s right to be presumed innocent, a first principle of constitutional law in civilized countries. The presumption founds the right to make full answer and defence. But in sexual assault cases, public indignation regularly overcomes reason as in a lynch mob, and we hear this clamour to tip the balance of interests towards the prosecution. As others have noted, the Ghomeshi verdict doesn’t say “he didn’t do it,” it says the complaints weren’t proved beyond a reasonable doubt. The tumult over this recalls my experience with John Mortimer’s “Rumpole and the Honourable Member.”
I used to teach the story, which appears in the first collection of Rumpole’s fictional memoirs (“Rumpole of the Bailey,” 1978), at law schools, in my law and literature course. The story’s main focus is an allegation of rape by a young party worker in the office of the middle-aged accused, a married Labour MP. The evidence is equivocal and Rumpole’s theory is that there was no assault: the complainant wants to “get” the candidate for jilting her as a lover. My course syllabus included the story so that we could discuss Rumpole as an instance of the archetype of the lawyer as ironic champion, as well as his role in law as theatre, but also to promote a lively discussion of evidence law and the tensions it navigates.
Unfortunately, outrage overwhelmed reason. Several students were angered, like the fiancée of Rumpole’s son in the story, because of the way that Rumpole cross-examines the complainant. I was frustrated because I thought upper-year law students should understand, or come to see, that if we are truly equal before the law, the complainant’s evidence needed to be tested just like anyone else’s, occasionally these complaints are made vengefully, etc. (see paragraph one).
The story should have been pedagogically useful in that way. It puts forward, with wry intelligence and verve, the “Henein defence” in each of its details. The House of Lords of the day (and the law in Canada then) said that the accused in rape cases was not guilty if he had an “honest belief” the complainant consented, no matter how moronic or self-serving that belief was. Rumpole is appropriately disgusted by this, remarking, “There are very few women among the judges of the House of Lords.” But when his future daughter-in-law attacks his cross-examination as archaic (in the precise terms that Henein has been attacked), he asks, “Is it archaic to believe in some sort of equality of the sexes. … Give you equal pay, certainly. Let you be all-in wrestlers and Lord Chancellor. By all means! … But you’re asking women witnesses to be more equal than any other witnesses!”
This should not be as provocative as it has come to sound. On the other hand, the most effective part of Rumpole’s cross-examination is indefensible, and likely would not be permitted under Canadian law as it has existed for the last 24 years. With debatable relevance, he questions the complainant on her sexual history, and, certainly irrelevantly, on an abortion years in the past.
In class I had hoped to point out how and why we no longer permit this, but I have stopped teaching the story. Where I had meant to suggest how law evolves with the wider culture, and how it must maintain a balance of interests as it progresses (how Rumpole is both right and wrong, as we all are individually and communally, and how the law’s progress reflects that), indignation blocked thought and conversation. Youthful prejudgment and popular prejudice stood blind to centuries of cultural development.
Does it really need saying that law students, particularly, and civil society generally should confront these issues from all perspectives, to consider not just how the system operates, but also how the law evolves and how it might still improve? Are today’s young adults – our law students, soon to be guiding others through life’s most challenging moments – too sensitive to moot discomfiting issues, too already-knowing to have their preconceptions challenged and perhaps reconsidered? Has our notion of critical thinking become so cramped with anxiety that universities and post-graduate professional schools are no longer venues for the airing of complex problems? Are they all trade schools, now, or do they remain socializing institutions, guiding youth into thoughtful adulthood, when we act not on impulse and popular prejudice, but on all the evidence?
Among the civilized and sober, justice is not a matter of reflexive self-assertion, of taking a side on presumption and planting a flag there in righteous indignation. Justice tests the evidence with a steady gaze.
At heart, legal history is the biography of the Seven Deadly Sins. It’s all about blasphemy, thieving, adultery, coveting, murder – the assertion of the personal id over the communal superego. But generally you wouldn’t know this from the bloodless analytics of historians. It takes the popular arts to remind us that law is integral to human culture, to the flesh and blood of society as a collective of individual life experience – another ritualized belief system in a world of sex, thugs, and rocky shoals.
Consider the hundreds of murder, poacher, drunkard, and “bedtrick” (rapist disguised as lover) ballads, the more modern paeans to Bonnie and Clyde and “Hurricane” Carter, the novels of Dickens, Walter Scott, and Sarah Caudwell, historically sensitive TV dramas such as “Kavanagh, Q.C.,” “Rumpole of the Bailey” … and, sure enough, “Downton Abbey.” Actually, especially “Downton Abbey,” the globally popular, twenty-first century iteration of “Upstairs, Downstairs,” set this time between the sinking of the Titanic in 1912 and British property law reforms of 1925.
Nothing has made the general public more aware of the increasingly sclerotic history of Anglo-American feudalism, particularly in its modern, classist vestiges. Almost miraculously, the show has caused the law of fee tail, a persistent and now obscure holdover of medieval property law, to feature on Twitter and pop culture blogs. Even a proposed law has been named after the show, following the bill’s introduction in the House of Lords in 2013. Ralph Palmer, 12th Baron Lucas, proposed the Equality Titles Bill, nicknamed the “Downton Abbey law” given that it would have permitted female descendants to inherit peerages. This addressed the core issue early in the TV series – that because Lord Grantham had three daughters but no son, a third cousin he’d never met, and not one of his own children or grandchildren, stood to inherit his title and associated entail (his property rights connected with Downton). Mind you, while the bill was accorded two readings and royal assent, it died in committee.
Coincidentally with the bill’s death, and during “Downton’s” fourth season, in “real life” the three daughters of the Earl of Northesk saw their father’s title go to their eighth cousin, a man they and their father had never met. The heir is 14 years older than the earl would have been (he died at 55) and has no direct descendant, while, when title passed, the earl’s daughters were 23, 26, and 30.
Probably many “Downton” acolytes normally would scoff at the law as an incomprehensible tool of plutocracy. Now they sit enthralled over plot-lines driven by the obscurities of primogeniture and other legal challenges for women and their families in the first quarter of the twentieth century, when abortion and homosexuality were serious crimes (whether you were upstairs – as with Lady Edith – or downstairs, as with Thomas the footman), “illegitimacy” was not only scandalous but socially and financially ruinous, racism against blacks and Jews was du rigueur and mostly legal, mental illness was hidden away in shame (as with Mrs. Hughes’s sister), and you could be hanged for murder – a particular problem if you were wrongfully accused, as with Bates the valet.
Most of this mirrors problems in North America at the time, less entrenched, perhaps, but exacerbated by the legacy of slavery. Wider public appreciation of that awaits a new series, “Upton Mansion,” let’s call it. “Upton” could chronicle the life and times of a John D. Rockefeller sort, John D.’s life having spanned the Civil War through Prohibition to the rise of Adolph Hitler. There are at least six seasons in the saga, John D.’s father having been a bigamist and adulterer, and his grandson Nelson, the business kingpin, vice-president under Gerald Ford, and New York governor, having died at 71 in flagrante delicto (credible rumour has it) with his 25-year-old assistant, when adultery was still a matter of “fault” under matrimonial law. Seize the day, Hollywood, and rescue legal history from the historians!
Conservative judges like to say that they’re not activists; they defer to the legislator. Their interest is legal, political, and social conservation: preserving the will of the people. Yet the career of Antonin Scalia, who died on February 13, demonstrates that the most conservative judges are spectacularly more disruptive, to use the modern jargon, than any “social engineer” from the judicial left.
Consider Scalia’s most notorious judgment, District of Columbia v. Heller . His biographer, Bruce Allen Murphy, tells us that Scalia J. considered this opinion, for a five-to-four majority, his “judicial magnum opus.” To stem rampant gun crime, the district had amended its Firearms Control Regulation Act to ban handguns from its jurisdiction. D.C. resident Dick Heller objected, tasking the U.S. Supreme Court with interpreting the Second Amendment to the U.S. constitution: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Any reasonable, grammatical reading of this provision takes the second clause as dependent on the first. A middle school student of average intelligence would read the amendment to say that, to protect their democratic interests, Americans have a constitutional right to an armed militia.
Scalia J., however, was an ardent gun enthusiast and hunter, and his trademark “original meaning” approach to jurisprudence worked – in its literally conservative way – backwards. You choose the result you want, then scour dictionaries, legislation, and law treatises of the legislation’s era to cobble together bits and bobs that support your reading, on the bizarre pretext that this demonstrates how voters would understand the statute. Here, Scalia J. said the business about the militia was simply a “prefatory” clause, and the subsequent “operative clause” did not depend on it. The militia was just one reason Americans could keep and bear arms. The right was unqualified, never mind how reckless that would have seemed in 1791, when the amendment took effect, let alone how lunatic it is in an age of Kalashnikovs and rocket-launchers.
This is not to say that looking to the original understanding of legislation – and particularly of a constitution – is unhelpful. Such an approach is an important tool in statutory interpretation, and when used dispassionately, without an agenda, it really can help curb judicial ADHD amid the fruit of the living constitutional tree. Conservative activism such as Scalia’s, however, can be at least as pernicious: it tends to stunt the tree in a sort of zombie state, a living death.
Musicology provides an interesting case study of this. In their 1991 essay “Law, Music and Other Performing Arts,” J. M. Balkin and Sanford Levinson do not mention Scalia J., and refer only in passing to “originalist” jurisprudence, but they use Beethoven’s first piano concerto to illustrate similarities between interpreting law and interpreting music. The pianist Charles Rosen, they explain, has argued that a particular note in the concerto should be an F-sharp, even though Beethoven has written it as an F-natural. The piano was evolving in Beethoven’s time, but when he composed the piece there was no higher note on the keyboard than the F-natural. “To be sure,” the authors write,
Beethoven might have written “aspirationally” and composed what, though impossible under current [i.e., existing] conditions, could nonetheless be aspired to under some future imagined state. Thus Rosen writes of a piano sonata in which Beethoven “asks for a successive crescendo and diminuendo on a single sustained note,” even though “the instrument that can realize this has not yet been invented.” But at least this suggests that Beethoven was capable of envisioning the possibility of radical transformation regarding piano design and wanted to signify an intention should those possibilities ever be realized. What, then, does the performer do with the F-natural, where Beethoven appears instead to have acquiesced to the limits of the instrument?
…[T]he expansion of the keyboard happened only shortly after the composition of the first concerto; high F-sharps soon were available to both composers and performers, as exemplified by Beethoven’s own use of this note in a number of subsequent compositions, including … a cadenza meant to be performed as part of the first concerto. He did not, however, return to the initial composition and physically change the notation of the earlier F-natural, in spite of an announced intention, in Rosen’s words, “of revising his early works in order to make use of the extended range.” What, then, is a performer to do when she comes to the measure in question? Should she feel bound by the “plain meaning” of the written score, which displays the F-natural, or ignore it and play what Rosen, a gifted pianist, calls the “obviously” preferable F-sharp?
A true originalist would say that if the performer is interested in an “authentic” performance, the answer is clear. Once the expanded keyboard was available, Beethoven wrote music using the F-sharp, including a cadenza for the concerto in question. He likely added the note to older works, but not to this concerto. Therefore, a performer acting “legally” should play the F-natural, not what sounds “better” to her modern ear. While the higher note might “do justice” to the piece and its modern audience, such justice ultimately is the domain of the larger public – the commonwealth of serious scholars, musicians, and listeners, not the individual interpreter. This is true originalism, as contrasted with dictatorial political activism disguised as conservative respect for democratic principles, twisting interpretation to a desired end. Aspirational justice is a matter of evolution for the legislator and the people, building consensus, working with the constitution as a living document, singing with the times.