Saturday, August 29, 2009

I said back simply:

...But what is the source of our concern about those forms of tyranny? After all, millions of people live under governments which most Americans would consider tyrannical in Basman's sense, and appear to like it...

Really: there are milliions of people without the rule of law, with arbitrary state treatment, without enforeceable rights of property, without rights of privacy, subject to arbitrary search and seizure, detention and arrest, without rights of habeas corpus, without civil rights and liberty, without due process under law, without equality under law, without the rules of natural justice, and on and on and they like it? Who are these milliions of people?

johnemack said back

Posted by JohnEMack31 of 36 warn tnr respond

A few thoughts on Mr. Basman's critique of my posting. The main difficulty I have with it is that it assumes what needs to be argued. He says "But we can, as do Coyne and Wright, identify liberal ideals and values, set out for example in the American Constitution and the comparable documents of other liberal democracies, which, if heeded, are proof against tyranny." They are certainly proof against certain kinds of tyranny. But what is the source of our concern about those forms of tyranny? After all, millions of people live under governments which most Americans would consider tyrannical in Basman's sense, and appear to like it.

So an important source of our abhorrence for these forms of tyranny would seem to be historically contingent. One of these historical contingencies is religion. I am not sure that Basman and I disagree on the proposition that most of our ethical precepts are historically conditioned. We do not reason about our ethical obligations from a blank slate, and religious injuctions are an important part of what is written there. But it sometimes becomes necessary to question such injunctions -- otherwise ethics and morality would never change. When that happens, we need to employ broader principles, and thinking about them is the job of philosophical ethics.

I used primitive utilitarianism as an example of a set of principles which might help to bridge the gap between theory and praxis, but there are others, such as deontic ethics, preference theory, theological absolutism, etc. But I stand by my broader point that ethical practice is dependent upon ethical theory, that this dependency involves a mechahnism for converting theoretical principles into "rules of thumb" which are analogous to positive law, and that religion is one of the more important of such mechanisms. This is not (necessarily) to claim it is a very good one. But it is possible that all sources of ethical theory rest on foundations which are ultimately arbitrary, whether they are religious or materialistic or something else. If so, Coyne's critique of Wright is as problematical as Wright's own analysis.

I said:

JohnEMack's post #21 provides an entry way to a few thoughts on ideas that Wright and Coyne share. There is no difficult ethical question "Will killing Mr. X result in the greatest good for the greatest number?" And that question bears no substantial relation to the precept "Thou shall not kill." The question is utilitarian. The precept is moral. The codification and application of the precept are ethical and legal.

Religion is not "the source" of ethics or law. To take part of Wright's argument, not disputed by Coyne, religion was, and now in some places and instances may be, an instrumentality for the translation of the accretions of lived experience into guides for life and into legal principles and rules. That is part of a materialist account of law that Coyne and Wright agree on. Historical actuality precedes religious belief.

That said, in societies rendering unto Caesar, secular reasoning is precisely the means of creating law and religious belief has no part to play. Secular reasoning in the creation of law is not problematic as such (or, put differently, not necessarily problematic) though there are lots of examples of tyranny in Caesar-rendering societies. But we can, as do Coyne and Wright, identify liberal ideals and values, set out for example in the American Constitution and the comparable documents of other liberal democracies, which, if heeded, are proof against tyranny.

These ideals and values are hardly flimsy in their content and they are not reducible to "the greatest good for the greatest number". They include notions of the rule of law, equality before the law, due process, freedom from social arbitrariness and cruel and unusual punishment, rights of property, civil liberties, security of the person, privacy and other civil rights and liberties. It is facile to ask "why we should care". We obviously do care and take these ideals and values to be of the utmost importance. There is really no head scratching about their significance.

To get back to Wright and to Coyne, it is wrong headed to say "The problems is that secular reasoning is no more a necessary or a sufficient guarantor of good behaivor than theological reasoning is. And at least religious grounding for such behavior has some historical basis". As they are both materialists, they both say, as noted, experience precedes religion. Theological reasoning flows from the premises of material actuality which then get reified and institutionalized into dogma. (That is, by the way, inherently and necessarily problematic and to be distinguished from secular reasoning.)The "historical basis" is not, as the statement suggests, a proven track record. It is in fact the material conditions that both Wright and Coyne look to which precede, inform and modify religious belief-the ".claim that theology is malleable to social forces" as Coyne puts it agreeing with Wright.

johnemack said:

Posted by JohnEMack21 of 36 warn tnr respond

The relationship between religion and ethics is complex. A religion claiming to be a source of ethics has one very useful feature -- like the civil law, it serves as a mechanism to convert ethical problems into legal dictates. Thus, a difficult ethical question such as "Will killing Mr. X result in the greatest good for the greatest number?" becomes the manageable religious dictate "Thous shalt not kill." Of course, the religious dictate may be arbitrary, or it may stem from a metaphysical theory which will result in ridiculous dictates.

Still, some such source of simplified rules and axioms and rules seems necessary to reduce the infinite complexity of ethical considerations to a manageable set of "rules to live by." This consideration leads to a second difficulty: doing purely secular ethics is at least as problematical as doing theology. If God does not tell us to do the right thing, why should we do the right thing (for that matter, why should we do the right thing because God tells us to -- because we will go to Hell? This is the the logic of the civil law projected on a cosmic background, but at least it is an incentive to good conduct. Purely secular reasons (as opposed to secular incentives) seem flimsy. The greatest good for the greatest number?

Why should we care? Because good behavior is "civilized"? Who is to say, and why should we listen to them? Because there is a categorical imperative? Do we know there is such a thing any more than we know if God exists? And if there is, absent incentives based upon it, why should we care? The problems is that secular reasoning is no more a necessary or a sufficient guarantor of good behaivor than theological reasoning is. And at least religious grounding for such behavior has some historical basis.

Wednesday, August 19, 2009

Civil Action Founded on Contempt--Lying on Discovery

Here's the link:

I can't improve on the decision itself which is not too long.


[1] This was a Chambers application before me by the Plaintiff to declare the Defendant David Faria in contempt of court or, in the alternative, granting summary judgment in favour of the Plaintiff. I dismissed the application for summary judgment orally at the hearing but reserved the issue of contempt.


[2] The issue to be determined is whether Mr. Faria can be held in civil contempt for lying in examinations for discovery.


[3] Mr. Faria was an employee of Security Bancorp Inc. which is a company that is involved in placing and servicing ABM machines (automatic banking machines) which are placed in merchant locations. Mr. Faria was manager of ATM Services. Mr. Faria signed a contract with the Plaintiff confirming he would maintain the confidence of the Plaintiff’s information during the course of his employment and for a period of two years after termination and that he would not use that information for his own benefit or the benefit of others. All contracts for ABM Services were to be the property of the Plaintiff. The Plaintiff alleges that in addition to the contract, Mr. Faria had other fiduciary obligations to the corporation.

[4] The allegation in the Statement of Claim is that Mr. Faria quit his employment taking with him confidential information and converted this information to his own use. It is alleged that he did this by setting up his own company and then having merchants breach their contracts with the Plaintiff and enter into contracts with him.

[5] At examinations for discovery, Mr. Faria referred to Security Bancorp Inc. as “the host” when talking about the operator of an ABM at a particular location. He confirmed that Security Bancorp Inc. was the host for a number of ABM machines referred to in this Statement of Claim. He was asked at examinations for discovery the following questions and gave the following answers:

P. 96, lines 19 to line 21 and P. 97, lines 1 to 3:
Q: Since the time that you ceased to work for Security Bancorp, have you operated as a host for any business?
A: No
Q: And so you would specifically deny having acted as a host for any of the merchants that are described in paragraph 24 of the Statement of Claim; correct?
A. Yes
Q. And you would deny having acted as a host for any of those merchants as described in paragraph 24 of the Statement of Claim prior to your ceasing employment for Security Bancorp; correct?
A. Yes

P. 100, lines 19 to line 24:
Q: You would deny, I take it, that you solicited any business from any of those merchants that are described in paragraph 24 of the Statement of Claim?
A. Before or after?
Q. Either one.
A. I deny that, yes.

P. 101 lines 3, 4 and 5:
Q: Do you or does Davetech act as a host, again to use your term, for any ATMs?
A: No.

[6] Mr. Faria was then asked specifically whether he did any work for a number of specific companies after he stopped working for Security Bancorp on June 15, 2006. He answered “No” to each of those questions.

[7] As a result of those examinations for discovery the Plaintiff obtained an order from a Master in the Court of Queen’s Bench to obtain information from a third party, TNS Smart Networks. That information confirmed that terminals had been set up between May 10, 2006 and June 14, 2006 with David Faria Services at the locations referred to in the examinations for discovery. This information clearly indicated that Mr. Faria had not been truthful in his testimony when he indicated that he had no dealings with these particular businesses and that he had not operated an ABM machine at those locations.


[8] Neither party could provide any cases which deal with the issue of whether lying under oath at examination for discovery is contempt of court. Most cases that deal with this issue deal with it by way of a costs order. The Plaintiff here says however that this is far more serious than simply directing costs as against a party. It puts the entire administration of justice into disrepute. The discovery process is part of the court process and governed by the Rules of Court. The deponent takes an oath to tell the truth.

[9] The Defendant argues that this conduct does not fall under Rule 703 of the Alberta Rules of Court which deals with contempt. The Plaintiff says that the powers for contempt are broad and specifically cites Rule 703 (3) which indicates

... cite in contempt those who disobey the lawful orders of the court or who otherwise display contempt for its process ...

[10] I was able to locate two decisions which refer to this issue. The first is Orphan v. Roulston, 2000 BCSC 1062 (CanLII), 2000 BCSC 1062. In that decision the defendant initially refused to answer questions in discovery and was found in contempt. He later answered the questions but gave false answers. The Plaintiff brought an application to have the Defendant found in contempt for providing false evidence under oath during discovery. The Court refused to find the Defendant in contempt as there was no coercive or public purpose to be served by making a further declaration of contempt. However, in that case the defendant did concede that by providing false evidence in discovery he was in contempt of court. It appeared that the court determined that there was nothing further to be served by making a further declaration of contempt in the facts of that case.

[11] The other relevant decision is that of Arrow-West Equipment Ltd. v. GDT Trading Ltd. 2006 ABQB 762 (CanLII), 2006 ABQB 762. This was a case where the plaintiff applied to have the defendants found in contempt for, amongst other things, having sworn false evidence in their affidavits and confirmed that evidence during cross-examinations on their Affidavits. Acton, J. at para. 26 stated:

...In my view, giving evidence knowing it to be false ... also constitutes contempt of court...

[12] In the result, Acton J. did not find the defendants in contempt as the plaintiffs notice of motion was not sufficient to put the defendants on notice as to any alleged grounds of contempt nor was the contention proven beyond a reasonable doubt.


[13] While it would be extremely rare to find a party in civil contempt for lying in examinations for discovery I am satisfied that this is one of those cases where it is appropriate. The questions asked of Mr. Faria at examination for discovery were clear. Evidence obtained by the plaintiff to dispute those answers was clear. It shows the evidence that Mr. Faria gave was false. What makes this matter one for contempt rather than costs in my view is that the questions and answers deal directly with the main issue. It is not a peripheral issue or something that would not have much bearing on the outcome of the matter. It is the entire point of the lawsuit. Costs in my view would not adequately reflect the courts concern that Mr. Faria has shown contempt for the court process.

[14] I therefore find Mr. Faria to be in contempt of court.

[15] The parties may contact me to arrange a further hearing to deal with the issue of penalty.

Silva v. Griffin

First a few words.

Anderson the Spider Silva is a world class athlete, his sport cage fighting also known as mixed martial arts. He operates at the level of Ali in Ali's prime, and at the analogous levels of say Tiger Woods, Michael Jordan, Lebron James, Kobe Bryant, Michael Phelps and other like truly elite athletes. To watch him is to watch a cobra, poetry in motion, the perfect integration of brilliant athletic intelligence and sheer athletic prowess.

Understand too that Forrest Griffin is no slouch. He is one of the top light heavy weights in the game, having defeated Quentin Rampage Jackson for that belt, losing it to Sugar Rashad Evans, who himself then lost it to Lyoto the Dragon Machida, also a magnificent, brilliant Brazilian fighter, like Anderson, both of them great friends with black belts in Brazilian jiu jitsu.

Note well that Anderson Silva is middle weight champion of the world, who typically fights at his most natural fighting weight of 185 pounds. Here he moved up to 205 pounds to fight the top ranked Griffin. The Spider fought once before at 205 pounds against James the Sandman Irvin, a well respected fighter, and put him away after just over a minute.

Watch how the fight starts with Anderson feeling Griffin out, letting Griffin, renowned for his aggressiveness, come to him; note how he switches from south paw to right handed; note how once he gets going he bobs and weaves, striking like a snake, playing chess with every defensive and offensive parry or thrust; note how he Ali like stands in front of Griffin with his hands down, challenging Griffin to hit him; and note how he totally dominates Griffin for about 4 minutes before he finally puts him away.

Note how he is so superior to Griffin he makes him quit rather than go on, how he, in other words, takes away Griffin's heart.

You will never have seen anything like this. I guarantee it.

And you are welcome.

(Fiddle around with this, scrolling down till you get to the screen. There is nothing you have to pay or join and you don't have to log in.)

Sunday, August 16, 2009

One State Two State

The road to a two-state solution gets more difficult with time. That is not because of the Israelis. Every Israel prime minister except Yitzhak Shamir favored it. It was the essence of the U. N. Partition Plan. Ben Gurion was for it—Sharret and Eshkol and Allon and Golda Meir and Begin and Rabin and Peres and Sharon and Olmert and Netanyahu, too. Had the Arabs accepted a two-state solution after the Six Day War, they would have gotten nearly everything back that they lost.

The solution is imperfect. It won’t meet all demands. The biggest problem for the Palestinians and Arabs outside Palestine is Israel as a Jewish state. But Israel’s Jewishness was written into its very charter by the General Assembly 62 years ago.

National character informed the post-World War I formula for peace after the defeat of the Ottoman Empire. It was bound up with Zionism. The potency of the idea of a Jewish state was clear. So too the map of Europe as race and ethnic based nation states was axiomatic. It has been argued argued that the heart of the matter is not necessarily how to define a state of Palestine. It is, as in a sense its always been, how to define the state of Israel. Why should that be when all around Israel states define themselves as both Arab and Muslim? A one-state solution in historic Palestine west of the Jordan: what peace will there be; what economic progress; what laws and what justice; What science; what kind of class system. Denyng all of this as a nightmare is delusional.

The idea of a bi-national one state of Israelis and Palestinians is old. But let’s face it: it portends an ethnically cleansed Israel; it is the alternative to Israel. It is the repudiation of Israel's existence. In a matter of a few years it would be a Palestinian state with a Jewish minority: Greater Palestine. The Jewish minority in Greater Palestine would be small. Many Jews would prudently emigrate to escape such an outcome. For what reasons do the Israelis have to depend for security and decency upon the democratic talents of the Palestinians?

Palestinians now contest between theocracy and terrorism and secular terrorism. "Palestinian reform" is a joke. Will the jihadists of Hamas really stay their hands? And who will protect the Jews in Greater Palestine from their wrath: an international force? The record of international forces in ethnic cleansing poses a death sentence of death for to be cleansed.

One national state is not being replaced with a post national state but rather with another national state. Palestinian statelessness will be replaced by Jewish statelessness.

Israel is not the world’s latest nation-state. India and Pakistan came into being at the same time as Israel. They, too, were born in violence and in partition, which did not quell the violence. Was the partition of the subcontinent, therefore, a mistake? If it was, why don’t proponents of one statism ask for the dismantling of Pakistan?

The U. N. has many post-colonial nation-states created since the late 1940s, not questioned by their belatedness as nation states. There is no world, really, of individual rights and international law. There is a world in which sovereignty rooted in racial and ethnic identity prevails.

Palestinians espousing one state binationalism are acting on their fondest and most uncompromising dreams. It is their device for defeating Israel and gaining dominion over the entirety of the land, the shrewdest form of the Palestinian rejection of the idea of partition.

Two states is the only admirable answer to the question of Palestine. It does not deny the rights of Israelis or Palestinians. Quite the contrary: it recognizes the claims of both sides. There is no right to a half, the right to Tel Aviv is indeed the right to Nablus and the right to Nablus is indeed the right to Tel Aviv. So the appeal to rights is always a prescription for national frustration, for a one-state solution, for domination, for war.

But the idea of partition, the two-state solution, neither denies nationalisms nor pander to them. It limits the fulfillment of the one only by the fulfillment of the other. It transforms the problem--the sharing of the land--into the solution.

Two buckets were easier carried than one. Is the restoration of Jewish homelessness, and the vindication of Palestinian radicalism, and the intensification of inter-communal violence, really preferable to the creation of two states for two nations?

Wednesday, August 12, 2009

income inequality # 4

And my friend Larry says:

I'm assuming by the "utilitarian argument" you mean Chait's "efficiency" argument, and in any case I definitely agree that the phrase "income redistribution" needs unpacking.

But I think it's important here to stay focused on the theme of economic equality, as distinct from the theme of helping the poor. How we might best do the latter, or how much obligation we have as either individuals or a society to do that is a matter for another discussion. But, for example, it might turn out that the best way to help the poor would be by increasing inequality -- making both the rich and the poor richer, but with the effect that the rich become even more so; similarly, and on the other hand, it might be that the the best way to reduce inequality/increase equality would only be by making the poor even worse off, with the "consolation" that the condition of the rich gets still worse.

To my mind, It's the latter scenario that makes Chait's focus on "caring" about inequality so iniquitous, and it explains why, in this context, as opposed to a context of helping the poor, Chait's television example is so apt, however revealing. I think there's a real moral illness underlying such a pseudo-"caring", though it's widespread certainly, as illustrated by an old peasant joke: A farmer working his field discovers a genie in a bottle, which genie promises to grant the farmer any wish on one condition: that whatever he gives to the farmer he gives double to the farmer's neighbours. The farmer thinks for just a minute, then says "put out one of my eyes."

W. v. Obama

It's quite the oddity, quite the irony really. Bush gets Iraq right, finally. And things start looking up there. Obama gets into power, proclaims his Iraqi demobilization with target dates and what not, and terrorist sectarian flare ups begin. Obama fights a campaign blasting Bush on Iraq and emphasizing Afghanistan as the correct war which must be won, largely to contrast himself first with Hillary and then with McCain, gets elected and then gets trapped by his own campaign rhetoric. He's hopelessly mired in Afghanistan, quagmired really, the way Bush never was, and he has not the political will to do anything concrete or meaningful about it--including admitting that there is nothing to be done but get out. Afghanistan may become Obama's Vietnam, when neither Iraq nor Afghanistan became Bush's Vietnam. The spectre of Jimmy Carter is haunting Obama's foreign policy.

income equality # 3

My Response to Larry:

Wilkinson is a very smart guy and I think in this small exchange was more impressive than Chait who seemed ponderous. That said I am more on Chait’s side on this issue but don’t agree with him that that the utilitarian argument is the best one for “income redistribution”, which phrase itself needs some unpacking.

As to your points:

1. I think to the word “care” is apt in viewing a liberal libertarian spectrum of thought on what I will refer to as income redistribution. Chait misguided his own position by in fact talking about taking from the rich guy and giving it to the poor guy, which then allows you fairly to talk about “forcing”. The social mechanism underlying this debate is taxation and progressive taxation at that. Taxes are the implementation of social policy. And there are two big issues which arise in this debate: progressive taxation—the rich pay more as a matter of marginal rates; and what help hands ought to be given as a matter of social policy. If the metaphysics of liberalism includes proactive government trying to extend warranted helping hands in contrast with that libertarianism which looks to minimize government’s role and leave people to their own devices after the social infrastructure is ensured—roads, security and the like—and minimize thenotion of a commonwealth, then I think caring going to these differences. I make no moral judgment in that distinction as both social visions are normatively defensible, but, rather, than an empirical one.

2(1) Respectfully, I think your second point is not responsive to the real issue, which I tired to give some brief sketching to above, and I blame Chait for getting the discussion off track by making A giving money to B a fulcrum of his arguments.

2(2) Chait also, as I suggested, obscures the issues by arguing that the argument from efficiency is the most compelling one for liberals arguing for income distribution. Nobody wants inefficiency but I can imagine certain social policies that are relatively inefficient but humane and just and consistent with the idea of commonwealth. To exclude that from the range of argument is to distort and emasculate the liberal case.

3/4. There may be some susceptibility to labels in the argument here. True the argument at the highest levels is traceable back to first principles of governance animating specific policies; but the concrete issues are the specifics of particular polices, the balances and compromises those policies entail, their means and effects in relation to their purposes and so on. Otherwise the discussion is rather airy.

5. The television example is ludicrous and is consistent with the distortion of the issue by Chait’s conflation of the personal with the social and political. The issue is not being given money to buy a better television; the issue is social policies helping with the necessaries of life including health care and education and urban renewal for a few.

income inequality # 2

Response from Larry:

Aside from Wilkinson's argument itself (which either isn't online, or which Chait doesn't bother to link to), there are a few peculiarities about Chait's presentation of the issues:

1) First, there's the use of the word "care" as a partisan divider (supposedly, Democrats "care" about inequality, Republicans don't) -- but the real issue isn't who "cares" about economic equality, but rather who would like to *force* economic equality by taking money out of the hands of those with more and giving it to those with less. As for "caring" itself, it's worth pointing out that many studies show Republicans as a group tend to be more charitable than Democrats.

2) And speaking of other people's money, it's interesting that the so-called "efficiency" argument is almost always applied to third parties -- it would be curious, e.g., to see Chait's response to a request for money from, say, me, on the grounds that his income is greater than mine, and hence less "efficiently" spent (as a good liberal, he'd understand that this hand-over wouldn't be close to creating "serious work-incentive effects"). A common thief, in fact, could use such an argument to make a case that he/she is performing an important economic function -- but most people would find something seriously wrong with that picture. In other words, the third-party (not to say god-like) point of view that assumes it can first collect and then "efficiently" distribute all of a society's wealth is deeply flawed, both economically and morally. Such a point of view is also fundamentally different from the simpler sociological observation that extra income tends to be spent on non-essentials, which seems to be Wilkinson's rather obvious point.

3) Continuing the theme of the liberal-Democrat propensity to try to get their hands on other people's money, it's just a bit amusing-ironic to see Chait complain that at least some of the "rich" *will* try to protect themselves from such seizures by even going so far as to forsake their Republicans and infiltrate the Democrats! Guess these aren't the same Democrats that care about economic inequality. Oh, that devious bastard Soros!

4) "Apparently," says Chait, "it's fair to complain about special interests when they subvert the libertarian agenda but not otherwise." No -- it's fair to complain about special interests when they attempt to use the power of the state to further those interests, but not otherwise.

5) "Today," says Chait, in a pitch-perfect rendition of the Envy-monger's Complaint, "that same [low def] television gives me slightly less enjoyment because I realize that I'm missing out on a better picture." No doubt. The remedy, however, is not to try to take money for a new TV from someone else, but rather to earn it. Which is the appropriate remedy to envy-based "care" about economic inequality across the board.

income inequality #1

Chait at TNR:

Mind the Gap

What the right wing really thinks about inequality.

Jonathan Chait, The New Republic Published: Wednesday, August 12, 2009

Should we care about economic inequality? That question is the subtext for most debates in American politics. It just remains below the surface because the party that thinks we shouldn't care about inequality--I'll give you one guess--has an endless string of obfuscations ("death tax," "small business," "tollgate to the middle class") to avoid admitting that it doesn't care about inequality.

There are, however, some real reasons not to care about income inequality, and right-wingers who don't have to run for public office are happy to admit it. A new paper by the Cato Institute's Will Wilkinson, which compiles all the reasons why we shouldn't worry our pretty little heads about inequality, has drawn a lot of attention. It's a usefully honest and relatively persuasive iteration of the belief system that undergirds right-wing thought.

Alas, it still isn't very persuasive. Wilkinson begins by pointing out that, while the gap between how much the rich and the non-rich earn has exploded, the gap between how much the rich and the non-rich consume has remained fairly stable. And that's true. But Wilkinson misunderstands the implications of this fact. "Suppose you made a million dollars last year and put all but $50,000 of it in a shoebox," he writes. (He must have enormous feet.) "Now imagine you lose the box. What good did the $950,000 do you?"

Wilkinson's point--money only has value if you eventually spend it--may be true. Yet most rich people don't put their money in shoeboxes. They invest it so they, their children, or young trophy wives can one day spend even more of it. And, indeed, the gap in wealth (how much money you have) has grown even faster than the gap in income. Meanwhile, the middle class has tried to keep pace with the rich by spending beyond its means, sending average household debt skyrocketing. Tell me why this should make us feel better about inequality?

Wilkinson's most interesting argument holds that material inequality between the rich and the non-rich lags behind the wealth and income gaps. For one thing, he argues that the luxury goods rich people own offer only marginal improvement over the cheap stuff that poor people own. For instance, he compares the luxurious Sub-Zero PRO 48 refrigerator to a standard IKEA fridge. Despite the vast difference in cost ($11,000 vs. $350), he writes, "The lived difference ... is rather smaller than that between having fresh meat and milk and having none." He also notes that rich people have used some of their increased income merely bidding up the price of positional goods, like fancy real estate or elite college tuition, forcing them to buy the same stuff at higher prices. Wilkinson thinks this goes to show that there's "an often narrowing range of experience" between being rich and being poor, so inequality isn't that big a deal.

In fact, Wilkinson is inadvertently bolstering the strongest liberal argument against inequality: it's inefficient. In case you're unfamiliar with this argument--as Wilkinson seems to be; he doesn't rebut or even mention it anywhere in his paper--it runs like this: Taking money from the rich and giving it to the poor helps the latter more than it hurts the former (at least until you create serious work-incentive effects, a point which most liberals think we're not close to). Wilkinson is saying the rich are getting little (in the case of luxury goods like refrigerators) or zero (in the case of real estate and higher tuition) actual benefit from their rising incomes. So why not take some of that income away and use it to buy extremely useful but currently unaffordable things for the non-rich, like, oh, basic medical care?

Watch Chait and Wilkinson face off over the inefficiency of inequality (and check out the rest of the debate here)

One liberal complaint about inequality holds that it increases the political influence of the rich, thereby locking in even more inequality. Wilkinson scoffs at this prospect, pointing to rich voters' support for Barack Obama over John McCain. Oddly, Wilkinson confines his analysis to campaigning and pays no attention to governing. While it's true that many rich people used their money to help bring about Democratic control of Washington, every day brings a new example of the rich using their money to ensure that Democrats pose the least possible harm to their interests. Democrats in Congress have abandoned Obama's sensible call to limit deductions for the top bracket, backed away from an upper-income surtax to pay for health care despite favorable polls, shot down bank nationalization, and on and on.

The deeper problem with Wilkinson's argument is that it assumes the natural correctness of all market-based outcomes. This is a premise you either take on faith or don't, and which undergirds most of his argument. Wilkinson assumes that inequalities arising from the market are inherently fair. Therefore, he asserts that just about the only unjust forms of economic inequality are those that spring from non-market circumstances: "[I]t's not enough to identify a mechanism of rising inequality. An additional argument is required to show that there is some kind of injustice involved."

If such injustices persist, he further argues, it's usually because the American people like it that way. Wilkinson recognizes that some liberals blame "wealthy elites," not public opinion, for the persistence of injustice. But he dismisses this complaint as a "'false consciousness'" argument by liberals "frustrated to find that [their] convictions are in the minority." So we should stop whining. Yet, later on in the same paper, Wilkinson blames the state of education on teachers' unions, and hawkish foreign policy on "special interests that stand to benefit from war." Wait, what about that false-consciousness business? Apparently, it's fair to complain about special interests when they subvert the libertarian agenda but not otherwise.

Wilkinson concludes by asserting that people should only care about their absolute well-being, not their relative well-being. But comparisons are among the best measures we have to gauge our material well-being. Ten years ago, I felt perfectly happy with my low-definition television, because high-definition hadn't come out. Today, that same television gives me slightly less enjoyment because I realize that I'm missing out on a better picture.

"How are a poor, inner-city kid's life chances affected," asks Wilkinson, "by the fact that some Web entrepreneur makes billions of dollars as opposed to just millions?" They're not. But if the Web entrepreneur has to pay a slightly higher tax rate so the inner-city kid can afford to attend a decent college, or so the kid's parents can see a dentist, how are the entrepreneur's life chances affected?

Monday, August 10, 2009

Jasen v. Karassik: Interjurisdictional Agreements

Unmarried parties had a child. born in Ontario and living there with mother. Father living in the U.S. Parties entered 1994 domestic contract dealing with custody and child support and mother moved to vary its terms after filing it with Ontario Court of Justice under s. 35(1) of the Family Law Act. Father defended application and did not argue jurisdiction. Judge awarded higher support and retroactive support. On appeal, award overturned on basis of lack of jurisdiction as the agreement was said to be an "interjurisdictional". Appeal judge said it was a U.S. agreement and the Interjurisdictional Support Orders Act ("ISOA")was a complete code. Mother appealed.

Appeal allowed.

Original judge had jurisdiction. Father living out of Ontario at time of variation application irrelevant to jurisdiction as the father had attorned to the Ontario court. As well there was a real and substantial connection between Ontario and the parties and the subject matter of the application.

The agreement was a domestic contract within the meaning of the Family Law Act and s. 35 of that act refers to the subject matter of the agreement rather than to territorial or jurisdicttional matters. It was a paternity agreement within the meaning of the act. That it had provisions afoul of the Income Tax Act didn't mean that it was not entered into in accord with Ontario internal law as provided by s. 58(a) of the act.

"...[45] The second interpretation of s. 58(a), which is arguably more consistent with the language and purpose of s. 58, is that it provides an alternative ground for upholding a domestic contract that is governed by foreign law. On this view, resort to s. 58(a) is only necessary if the contract is invalid or unenforceable under the foreign law. In that situation, a domestic contract is nonetheless valid and enforceable in Ontario if it is entered into in accordance with Ontario’s internal law: see Mittler v. Mittler reflex, (1987), 17 R.F.L. (3d) 113 (Ont. H.C.), at pp. 129-131; Ghavamshirazi v. Amirsadeghi, 2007 CanLII 62844 (ON S.C.), 2007 CanLII 62844 (Ont. S.C.), at paras. 11-13; James G. McLeod, The Conflict of Laws (Calgary: Carswell, 1983), at p. 386.
[46] It is not necessary in this case to decide which interpretation is correct. For the reasons that follow, I am satisfied that the agreement was “entered into in accordance with Ontario’s internal law”. That conclusion provides a complete answer to the father’s s. 58(a) argument under either interpretation of the section..."

The appeal judge erred in finding the ISOA a complete code. Any Ontario resident can apply either the FLA or the IOSA and proceeding under the former against a non resident requires service ex juris and a showing of a real and substantial conection between Ontario and the subject matter of the application. If the aplicant is successful the IOSA regime can be available for enforcement in the reciprocating jurisdiction.

Friday, August 7, 2009

Stays and Crossclaims

Plaintiff brings action for breach of trust against d1 and d2. Defendants held liable. Plaintiff and d1 settle whereunder d1 pays judgment and takes assignment of claim aginst d2. D2 third party claims against d1 claiming contirnution and indemnity. After d1 pays plainitff under settlement d1 gets an order to continue based on assignment in settlement. Order gets set aside on basis that therwas no assignment in settlement. Plaintiff then makes proper assignment of its claims against d2 to di. and d1 moves amend its defemce to d2's action against him to crossclaim against d2.

Motion granted.

Rule 11.01 stays any proceeding where interest of a party has been transferred by assignment but here does not operate to stay crossclaim. A crossclaim is a separate proceeding from the main claim so rule 11.01 stay did not bar its assertion by d1 against d2.

Children's out of Court Statements

Ward v. Swan, 2009 CanLII 22551 (ON S.C.)

The court gave directions on children's hearsay offered to prove: the truth of thier contents; the chidlren's state of mind; the former via the evidence of the children's lawyer; the latter via the evidence of the childfen's lawyer.

The court contrasts the idea of hearsay exception and the "principled approach" to hearsay, the latter after the court accepts satisfaction of necessity and reliability (R v. Khan, [1990] 2 S.C.R. 531.

State of mind is an exception to hearsay because the statments are no offered as truth of their contents but as evidence of the utterer's state of mind, which is tosay, circumstantial evidence from which the state of mind may be inferred. The exception is not to be a back door for proving truth of contents. This applies to to the child's statements offered by a fact witness and an expert witness including as assessor or a social worker.

On the principled approach, the first hurdle is necessity: that the child cannot testify. Then the statements nust be shown to be reliable. The underlying premise is that the rules of evidene must be applied to family law cases.

The best vehicle for determining these standards is a voir dire.

Necessity can be met when the court is loathe to have the child testify and being traumatized by doing so.

For reliability the onus during the voir dire is on the adducer. The onus requires showing that enough trust can be put in the statements given how they came about or that the fact finder can assess their worth. These are not mutually exclusive. Factors the court takes into account in its approach to these issues include: the surroubding circumstances, timing between the statement and what it describes, method and timing of any recording of the statement, absence of manipulation or suggestion, is the statment responsive to a leading question, is the witness impartial, the witnesses's demeanour, any motive on anyone;s part to fabricate, the child's age, its cognitive abilities, and the content and context of the statement.

Wednesday, August 5, 2009



293. (1) Every one who

(a) practises or enters into or in any manner agrees or consents to practise or enter into

(i) any form of polygamy,


(ii) any kind of conjugal union with more than one person at the same time,whether or not it is by law recognized as a binding form of marriage,


(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Evidence in case of polygamy

(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.R.S., c. C-34, s. 257.

Monday, August 3, 2009

What the Human Rights code of Ontario Empowers

Text of an email to a lawyer I was speaking to concerning Ontario Disability Support Program v. Tranchemontagne, 2009 CanLII 18295 (ON S.C.D.C.)

Live and learn.

You're right.

It seems that under the Human Rights Code tribunals are empowered to effectively override legislation that contravenes the guarantees of the Human Rights Code.

And there does not seem to be the kind of a saving provision that S. 1 of the Charter provides. ___________________________________________________________
Human Rights Code



Act binds Crown

47. (1) This Act binds the Crown and every agency of the Crown. R.S.O. 1990, c. H.19, s. 47 (1).
Act has primacy over other Acts

(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act. R.S.O. 1990, c. H.19, s. 47 (2).
impugned Disability legislation

Eligibility for income support

5. (2) A person is not eligible for income support if,

(a) the person is dependent on or addicted to alcohol, a drug or some other chemically active substance;

(b) the alcohol, drug or other substance has not been authorized by prescription as provided for in the regulations;
Portions of the case

[2] At issue is whether the Social Benefits Tribunal (“the Tribunal”) erred when it concluded that an alcoholic who is disabled exclusively by his or her substance dependence, is entitled to income support under the Ontario Disability Support Program (“ODSP”) instead of under the Ontario Works program (“OW”). The crux of this appeal is whether the Tribunal undertook the correct legal analysis, and arrived at the correct conclusion, in finding that the respondents’ exclusion from eligibility for benefits under the ODSPA was discriminatory contrary to s. 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”).
History of the Proceedings

[16] At the first Tribunal hearings in 2001, both respondents alleged that s. 5(2) of the ODSPA discriminated against them on the basis of their disability, and was therefore contrary to s. 1 of the Code which reads as follows:

1. Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

As a result of the Code’s paramountcy over all other provincial legislation, argued the respondents, the Tribunal was bound to consider whether a particular provision of the ODSPA was in violation of the Code. If found to be discriminatory, s. 5(2) could not be applied to the respondents.

[17] The Tribunal dismissed both appeals. It concluded that it had no jurisdiction to apply the Code to other legislation because to do so would contravene s. 67(2) of the OWA which prohibits the Tribunal from inquiring into or making a decision concerning the constitutional validity or legislative authority of a provision of any provincial Act or regulation. The Tribunal found that although it was within its powers to apply the ODSPA, any alleged legislative violation of the Code was to be adjudicated elsewhere.

19] After seeking and obtaining leave, the respondents appealed the Divisional Court’s decision to the Court of Appeal for Ontario. That court concluded that although it was within the Tribunal’s jurisdiction to determine whether s. 5(2) violated the Code, it should have declined to exercise that jurisdiction, instead deferring to the Ontario Human Rights Commission which, in the circumstances, was a more appropriate forum: Tranchemontagne v. Ontario (Director, Disability Support Program) 2004 CanLII 41165 (ON C.A.), (2004), 72 O.R. (3d) 457.

[20] The respondents appealed to the Supreme Court of Canada. The Supreme Court found that it was presumed to be within the Tribunal’s authority to consider statutes beyond its enabling statute. Accordingly, as a statutory tribunal empowered to decide questions of law, it could apply all law, including the Code, to determine whether or not the respondents were eligible for income support. Although this presumption could be rebutted by a legislative provision authorizing the Tribunal to decline jurisdiction where the Code was in issue, the legislature had not done so. There was, therefore, no basis in law for the Tribunal’s refusal to consider the ODSPA’s validity under the Code. The Supreme Court remitted the respondents’ case to the Tribunal for it to determine whether or not s. 5(2) violates s. 1 of the Code: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII), [2006] 1 S.C.R. 513.

[23] The second issue before the Tribunal was whether the respondents’ rights under s. 1 of the Code had been infringed by the Director’s decision that they were ineligible for ODSP support pursuant to s. 5(2) of the ODSPA simply because they were members of the sole impairment group. It is the Tribunal’s decision regarding this second issue that is appealed to this court and will be discussed in more detail below.

[24] The Tribunal concluded that the respondents were persons with a disability and were entitled to income support under the ODSPA irrespective of s. 5(2). It decided that this section of the ODSPA was discriminatory and inconsistent with the Code.

[105] Adapted for the present human rights context, in a case such as this involving the provision of services pursuant to a government benefit program, the test might read as follows:

1. Has the complainant established a prima facie case demonstrating that the service creates a distinction based on a prohibited ground under the Human Rights Code?

2. Has the respondent established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? Alternatively, has the respondent established a statutory defence under the Code?


[125] In sum, the Tribunal correctly determined that the respondents had established a prima facie case demonstrating that the service under s. 5(2) of the ODSPA creates a distinction based on disability, a prohibited ground under the Code. The respondent did not establish to the Tribunal’s satisfaction, on a balance of probabilities, that this distinction does not create a disadvantage by perpetuating prejudice or stereotyping, nor did it establish a statutory defence under the Code.

My Blistering Correspondence with Jeffrey Toobin


From: Jeffrey Toobin

Subject: no subject To:

Date: Monday, August 3, 2009, 7:22 AM

Thanks so much for your note. I did write a book about Bush v. Gore, Too Close to Call. You may find it of interest.


Jeff Toobin


Great to hear.

I'll definitely check it out.

Sorry for the miss.

I'm feeling sheepish.

Itzik Basman

Wise Words From a Friend in Answer to Someone, Not Me

“…Oh, for heaven's sake, you can no more have a democratic dictatorship than you can have a square circle. These phrases are logically incoherent. That is why so many Marxists have performed zillions of tricky semantic sleight-of-hand now-you-see-it-now-you-don't tricks in a vain effort to try to make the word "dictatorship" not mean, well, dictatorship. The whole thing should be discarded.

Nor is it the case that democracy is incompatible with capitalism (leave 'real' out of it - it's just a dishonest dodge of the logical issues at stake). It is just an historical fact that capitalists invented modern democracy. Democracy everywhere is imperfect in varying degrees, not because capitalists want it that way, but for a reason given by Kant: "Nothing straight has ever been made from the crooked timber of humanity". To think otherwise is sheer, and idiotic, utopianism.

Democracy in your utopian worker's state would be as deeply flawed in its own way as contemporary democracy is in its. As for politics, all politics in a democracy is coalition politics conducted through negotiations, compromises, and deal-making that results in nobody getting everything and nobody losing everything.

I'm a whole-hearted supporter of workers, trade unionists, co-ops, and sundry reformist/leftist NGOs entering the fray in their own interest. Society andpolitics are constantly in motion, and every reform from the left or the right affects both the rate of social change and the direction of change.

It is a tough slog, with no short-cuts, but over the long haul persistent struggle byall the components of the left will transform the world into a much better one for everybody except the tiny minority of the hideously, obscenely, rich. They will eventually vanish as a class, but of course not as persons. The gap between the most and the least well off will be hugely narrowed.

The thing is not to permit fatigue from the struggle to tempt one into utopian illusions…”.

Sunday, August 2, 2009

My Letter to Jeffrey Toobin

Dear Mr. Toobin:

I just finished reading your book The Nine, which I enjoyed quite well. I missed a more in depth analysis of some of the major cases you touched on, but I understand that it was not that kind of a book.

If it's of any interest to you, here is an email I just wrote to a friend of mine--we're both lawyers in Toronto:

...Ben: We had talked about this book (The Nine by Jeffrey Toobin) and I just finished reading it. I agree with Toobin's conclusion and if you don't I guess I don't agree with you as far as SCOTUS is concerned. He says concluding:

"When it comes to the core of the court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor has written, 'It is raraely possible to say with a straight face of a Supreme Court constitutional decision that it was decided incorrectly.' Constituitonal cases, Posner wrote, "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms."

Then, perhaps, bringing some nuance and qualification to Posner's position, Toobin a little lower on the same page--394 in my copy--says, "It is, of course, possible to overstate the flexibility in the meaning of the Constitution. Honorable judges always tether their views to the words of the document, its history, and the precedents, so the justices' freedom to interpret is vast but not absolute."

I'd substitute the word "large" for "vast" and I'd restrict these comments to hard cases, typical of what SCOTUS takes and decides. But I agree with Toobin and with Posner as qualified by Toobin for hard cases.

There seems to be a marked difference in the amount of ideology that gets fed into the decisions of the Canadian Supreme Court, whose results seem much more to be compelled by the applicable law and by law more than by ideology...

One last comment: your section dealing with Bush v Gore was for me the most compelling and the most frustrating. It needs a book of its own to do it "justice", a book that can take in the sweep of the drama of events, the large and small personalities and all the legal twists and turns, maybe something like what Norman Mailer did in the second half of Executioner's Song, "Eastern Voices", the greatest "legal thriller" I have ever read.

That is a book waiting to happen and something I'd love to read.

Itzik Basman

U.S. v. Canadian Supreme Courts

A note to a friend:

...Ben: We had talked about this book (The Nine by Jeffrey Toobin) and I just finished reading it. I agree with Toobin's conclusion and if you don't I guess I don't agree with you as far as SCOTUS is concerned. He says concluding:

" When it comes to the core of the court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor has written, 'It is raraely possible to say with a straight face of a Supreme Court constitutional decision that it was decided incorrectly.' Constituitonal cases, Posner wrote, "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms."

Then, perhaps, bringing some nuance and qualification to Posner's position, Toobin a little lower on the same page--394 in my copy--says, "It is, of course, possible to overstate the flexibility in the meaning of the Constitution. Honorable judges always tether their views to the words of the document, its history, and the precedents, so the justices' freedom to interpret is vast but not absolute."

I'd substitute the word "large" for "vast" and I'd restrict these comments to hard cases, typical of what SCOTUS takes and decides. But I agree with Toobin and with Posner as qualified by Toobin for hard cases.

There seems to be a marked difference in the amount of ideology that gets fed into the decisions of the Canadian Supreme Court, whose results seem to much more to be compelled by the applicable law and by law more than by ideology....

Roper v. Simmons and A.C. v. Manitoba (Director of Child and Family Services)

The decision of SCOTUS in Roper v. Simmons ( provides an interesting contrast with the decision of our Supreme Court in A.C. v. Manitoba (Director of Child and Family Services) In the latter case our court reviewed whether kids under 16 could decide to reject life saving medical procedures--there a blood transfusion--and held they cannot, as I read the majority decision, under any circumstances. The court struggled mightily with whether 16 was arbitrary and Justice Abella tried to say her reasoning compelled the conclusion it was not. (In actuality, as I read the decision, it was arbitrary. The 14 year old applicant's argument was that arbitrariness is answered by a case by case determination rather than by drawing rigid lines. And I noted in a post below, Justice Binnie complained that never once had Justice Abella ever met squarely the applicant's argument.)

SCOTUS in Roper wrestled with whether "...the execution of minors violates the prohibition of 'cruel and unusual punishment' found in the Eighth Amendment and applied to the states through the incorporation doctrine of the 14th Amendment." In holding 5 to 4 that it does so violate the Eighth Amendment the court struggled with the question of whether minors--those under 18--had sufficient culpability to warrant the death penalty. The argument was that adolescents by definition are maturing and developing and it is impossible to distinguish, for the purposes of visiting on them the most awesome of penalties meant only "for the worst of the worst", between enduring characterological traits and transient developmental traits.

The court's majority resolved this issue by resort to its *ability* to divine a national consensus by analyzing states' laws and practices. The consideration given to the tension between what is characterological and what is developmental speaks strongly to the result reached in A.C. SCOTUS's acceptance of the arbitrariness of 18 as a clear bright line was animated by the same impulses that drove the majority in A.C. to reject kids under 16 refusing life saving treatment.

SCOTUS swept any question of the arbitrariness of its bright line of 18 into its finding of a national consensus--(state's counsel argued as had A.C. for an individuated case by case determination for kids between 15 and 17); in A.C., as noted, Justice Abella pretended 16 was not arbitrary when it fact it was.

I repeat my wish posted below that someone provide an analysis of the general constitutionality of states drawing bright lines that in the nature of these things—“you have to draw a line somewhere” as the saying goes--have built in and necessary arbitrariness but can survive constitutional scrutiny.

A.C. v. Manitoba (Director of Child and Family Services) especially calls out for it.