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The Trial of Hillary Clinton, the Lawyer and Woman

“The episode is one of … America’s most notorious cases of mass hysteria. It has been used in political rhetoric and popular literature as a vivid cautionary tale about the dangers of isolationism, religious extremism, false accusations, and lapses in due process.” No, this is not a future historian’s description of yesterday’s election of the 45th President of the United States, or of his tenure in office, or of America’s choice of an unfit man over a qualified woman as its chief executive.  It is the Wikipedia commentary on the Salem Witch Trials. As mob chants of “lock her up!” resonated through…

Testing for Legal Ethics and Efficacy: You take the test

Recently, a colleague asked me for an example of a bar exam question that tests the candidate’s judgment between being an effective lawyer and being an ethical one.  It has been long since I’ve prepared such a question, so here is a rusty stab at it: Astrid is a first-year lawyer hired recently by R. U. Hurt LLP, an injury law firm with a reputation for obtaining high settlements through zealous trial advocacy.  She is excited because her senior partner Jay Z. has introduced her to his client Brian, who had suffered a bad whiplash injury in a car accident with…

A Science Manual for Canadian Judges. Who knew we all had to read it?

This summer, while researching for a paper on the Canadian law of causation in the age of torts committed in cyberspace, I re-read the Science Manual for Canadian Judges (Manual).  A 2013 project of the Canadian National Judicial Institute, the Manual was intended to fill a much-needed lacuna in our legal system.  Most lawyers are awful scientists.  So the publication received little fanfare and I don’t know many who have read it. Judges are appointed from a pool of senior lawyers.  It stands to reason that most judges possess a poor grasp of scientific principles.  The demographic fact that the last time most…

Originalism as misnamed judicial legacy of the Scalia years – 1986-2016

Yesterday, in The Supreme Battle, Canadian constitutional scholar Adam Dodek described a side of the late Antonin Scalia, that few even in the legal community hardly ever saw: a U.S. Supreme Court justice willing to subject himself to honest intellectual debate among peers, even once with Canada’s former Supreme Court justice and champion of legal pragmatism, Ian Binnie. Dodek nevertheless attributed the lack of success of Canadian legal conservatives to too much inspiration from Scalia, whose strident ideology has found little favour here.  Despite the recent appointment to Canadian courts of jurists reportedly following Scalia’s brand of constitutional fundamentalism, it will take more than that…

From Law Office to lawPod : The Apple-ization of McCarthys

Yesterday’s Globe and Mail reported, in ‘McCarthy Tétrault’s Tracie Crook leading firm’s radical transformation,’ that the day of the partner’s corner office may one day be relegated to history.  By inverting the traditional office, partners will now occupy fish tanks in the middle of the office, surrounded by exchangeable stations in an open concept work space for support staff, junior lawyers and students.  In adopting this model, the firm evidently made a conscious decision to reinvent the law practice as a creative endeavour, rather than a technical one.  The extent to which lawyers are applied philosophers or glorified clerks, or a combination of the…

In search of an evidence-based test for judicial bias

The Canadian principle of judicial bias has remained static for the four decades since the Supreme Court of Canada decision in Committee for Justice v. The National Energy Board.  The Supreme Court’s description of bias is rooted in the 20th-century jurist’s “reasonable man” mythos and emergent mid-century theories about the mind: … the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. … Would he think that it is more likely than not the Decision maker, whether consciously or unconsciously, would not decide…

Drama and Irony in a Canadian Courtroom?

With the nation riveted to news reports from a fraud, breach of trust and bribery trial in an Ottawa courtroom, Canada reaches a milestone in its legal history.  Behold, Canadians as mass spectators of our justice system “get” the role of dramatic irony, the narrative device used by playwrights to exploit the discrepancy between audience knowledge…

Obergefell v. Hodges’ invocation of liberty and due process, instead of substantive equality

The release today of the United States Supreme Court’s decision in Obergefell v. Hodges will today be debated by popular pundits, and in the days and years to come, studied by legal scholars and school children.  Beyond the debate among American conservatives and liberals, the decision of a sharply divided court continues a philosophical debate as old as the American Constitution itself.  What is “liberty” and can the state deprive its citizens of it without due process? The dissenting opinion warned us that the interpretation of liberty in the Due Process provisions of the U.S. 14th Amendment to encompass the right to…