Law is Cool

Employers are prevented in Canada from refusing to hire someone on a number of discriminatory grounds unless they directly relate to the job requirements. These categories include race, religion, gender, or political affiliation.

But what about lifestyle habits? Can employers refuse to hire someone based on the fact that they smoke, concluding that this individual in the long-term will have more sick days, and will have a shorter life expectancy?

Smokers Need Not Apply

It might seem strange, but that’s what is happening in Florida. Sarasota County officials announced that they will no longer hire smokers, who place a burden on taxpayers through health insurance.

The Supreme Court of Florida upheld a similar ban in 1995, when North Miami refused to hire smokers in The City of North Miami v. Kurtz.

Michelle Tyler describes the issues around the case in the Georgetown Law Journal,

…all prospective city employees to sign an affidavit stating that they had refrained from using tobacco products for the prior year.

…the city’s interest in reducing the burden on taxpayers is not only legitimate, but also compelling enough to override the individual’s privacy right, whether considered a fundamental right or merely a protected interest. This holding extends the Grusendorf rule that bona fide job requirements may override a privacy interest in smoking while off duty.

The heavy public costs associated with a smoking workforce support the court’s holding that the city had established a compelling interest sufficient to satisfy a strict scrutiny analysis. Health and productivity costs associated with smoking and borne by the employer are significant. Smokers more often suffer from chronic illnesses and are more susceptible than nonsmokers to acute health conditions. They incur more medical costs, require more hospitalizations, and visit physicians more often than nonsmokers. Productivity costs related to smoking include higher absenteeism; an injury rate double the nonsmoking rate due to loss of attention, coughing, and similar distractions; and lost time in the workday due to “cigarette breaks.” Together, these costs amount to significant losses to employers. For example, in 1992, Banc One reported that each smoking employee costs the company up to $1,100 more annually than its nonsmoking employees. Additionally, when an employer eliminates smoking on company premises, the company decreases structural maintenance and cleaning costs and derives savings from the reduced strain on heating and cooling systems which filter fewer smoke particles.

But could this happen in Canada?

The Canadian Council for Tobacco Control does cite Kurtz on their website.

Where Do we Stop?

The Soapboxblog raises the slippery-slope argument,

…ought we not then exercise this premise for private sector employers who wish to not employ individuals who are overweight?

Maybe said employers wish not to employ individuals with diabetes, a history of high cholesterol, a history of high blood pressure, genetic predisposition to breast cancer or cervical cancer, etc. or, as is more abundantly obvious, individuals who eat their weight in trans-fatty goods on a daily basis.

Maybe those same employers wish not to employ workers who lead “high-risk” lifestyles too. Come to think of it, the aforementioned list might just as well serve as a precursor for the latter argument as well; that being the healthier workforce argument.

And What About the Poor Farmers?

Even more compelling is the plight of tobacco farmers in Ontario, who are hitting tough times. Discrimination against smokers in the workplace would only make the farmers’ financial situation worse.

But tobacco farmers are putting their blame squarely on Conservative MP, Diane Finley. They are joined by residents in Caledonia, who are concerned that Aboriginal land claims will make their property value plummet.

Finley is the Minister of Citizenship and Immigration, and despite the anti-immigration (and potentially discriminatory) orientation of Bill C-50, her residents are not pleased.

What’s interesting is that members of her riding in Haldimand—Norfolk are seem to be taking it out on her gender,

When she runs again, I am going to have a sign on my lawn that says `Never ever vote for this woman again.’

So while the right of smokers to be hired may be scrupulously upheld, advances of women in the workplace (and politics) may take second place.

Hillary would not be pleased.

The video is hard to turn away from. A sobbing 16-year-old sits in her bedroom and, staring into a camera, says she has been raped.

This is how CNN covers a story of a 16-year old that posted a video on YouTube after the state attorney in Orange County, Florida dropper her case of being raped.

They then go on to warn of the dangers of divulging too much personal information online, and tout the benefits of a counselling service that would probably be more effective. The problem is that the CNN reporter probably did not even bother to read case transcript, available free from the Orange County Clerk of Courts. Instead, the real story broke on The Smoking Gun, which related how the young girl changed her story of a consensual relationship after the case was dismissed, and had cited personal grievances and a break-up as the reason for the complaint. The case sheet itself leads with,

Due to the consensual nature of the sex encounter… I’m using prosecutorial discretion and am not filing the case…

Commentators on the case have wondered if the accused now has a case against her for libel and slander. Others have wondered how a small website could conduct a more thorough investigation than a multi-million dollar international news agency.  The power and importance of small media web outlets are only beginning to be felt.

Warren Winkler, chief justice of the Ontario Court of Appeal, raises the issue in today’s Star of the problem of access in our justice system due to rising costs and lengthening delays.

He identifies measures already taken to address this, specifically small claims courts, simplified procedures in the Superior Court of Justice and flexible civil litigation case management.

Also applicable but overlooked by Winkler are administrative tribunals, similarly designed to reduce cost and provide quick resolutions to disputes.

But Winkler also proposes reforms to focus litigation so that it is “proportionate to the monetary value, complexity and social impact of the lawsuit.”

Winkler said,

From a systemic perspective, we must keep our legal processes simple and reduce the number of mandatory steps in each lawsuit that drain resources without adding much value. Cases with serious financial and emotional impact (e.g. employment and family) may well require special procedures to reduce litigation costs and expedite resolution, regardless of the amount at issue. Moreover, there is nothing more effective in the court system than a “day of reckoning.” A fair and just system of justice requires a courtroom, a judge and a non-adjournment policy. The certainty of an early trial date will produce fairer settlements or timely adjudication, and prove to be less costly to litigants.

If I have a theme for this week, I guess it would be “implied constitutional principles.” Following up on the California gay marriage ruling, I have another post today, this time from much closer to home.

The Supreme Court of Canada this morning issued a landmark decision on sentencing under the Youth Criminal Justice Act (YCJA). Before I get into the constitutional (and political) implications of SCC’s decision in R. v. D.B., 2008 SCC 25, I’ll start with a bit of background.

The Harper government campaigned on a promise of amending the YCJA to impose tougher sentences on youth. In particular, the Conservatives seem to have taken issue with the Supreme Court’s decision in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 that deterrence and denunciation are not goals of sentencing applicable to youth.

Instead, the court ruled that youth sentences must be aimed at “rehabilitating and reintegrating young persons into society … by holding young persons accountable through the imposition of meaningful sanctions related to the harm done” (para 4).

Beyond the government’s desire to make deterrence a a principle of youth sentencing, the Conservatives have also been trying to implement automatic adult sentences for youth convicted of violent crimes or repeat offences.

Today’s ruling in R. v. D.B. will throw a monkey wrench into Harper’s plans. Allow me to explain.

When sentencing youth under the YCJA for so-called “presumptive offences” (e.g. manslaughter), the onus was on the youth to prove why they shouldn’t be treated as an adult. D.B. was charged with manslaughter, and he brought a Charter application claiming that these reverse onus provisions of the YCJA were unconstitutional and should be struck down. The Supreme Court, by a narrow 5-4 margin agreed with him.

So the reverse onus provisions are now unconstitutional. It sounds like a rather unimportant decision that will not have a particularly large practical impact on youth criminal justice in general.

But here’s where it gets interesting.

In coming to its decision, the Supreme Court recognized a new principle of fundamental justice: an implied constitutional principle.

According to Abella J., who wrote for the majority, it is a “principle of fundamental justice that young people are entitled to a presumption of diminished moral culpability” (para 70).

Justice Abella also wrote (at para 68) that:

… a broad consensus reflecting society’s values and interests exists, namely that the principle of a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought to operate.”

Since a new principle of fundamental justice has been implied into our constitution, the courts are now empowered to strike down legislation that violates it. Whatever attempts the government makes to amend the YCJA, they will now have to be consistent with the notion that young people have diminished moral culpability.

Conservative criticism of the decision has been swift and harsh. Check out Colby Cosh’s comments in the National Post Blog, where he says that the Supreme Court:

“… gave a command performance in the role … [of] a gang of aggressive fanatics determined to push the pace of social “progress” to a sprint, thwart the parliamentary balancing of public interests, and permanently enshrine every liberal legislative mistake of the past.”

Snappy!

This morning the California Supreme Court ruled that the state’s laws restricting marriage to heterosexual couples were unconstitutional. Following a close 4-3 decision, California has become just the second state in America (after Massachusetts) to legalize gay marriage .

The lengthy (174 page!) decision entitled “In re Marriage Cases” represented a consolidated appeal from 6 cases. You can read the full text of the decision here.

Californian homosexual couples were already entitled to virtually all of the same benefits available to straight married couples under the Domestic Partnership Act. The court, however, determined that the language and statutes governing “domestic partnerships” did not go far enough. The definition of marriage in California would no longer exclude homosexual couples.

At p. 120, George C.J. (Kennard, Werdegar, Moreno JJ. concurring) wrote:

… [W]e determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.

In an interesting dissenting opinion (for fans of the “legitimacy of judicial review” debate), Baxter J. wrote that the majority had engaged in “legal jujitsu” and had been overzealous in interpreting the constitution. He was of the view that there was nothing implicit or explicit in the constitution which allowed the recognition of marriage between a same-sex couple. Therefore, he wrote, the majority had erred in viewing the progressive changes made by the legislatures in recognizing domestic unions as creating an implicit constitutional principle that marriage should extend to homosexual couples.

At p. 5 of the dissent, Baxter writes:

Recent years have seen the development of an intense debate about same-sex marriage. Advocates of this cause have had real success in the marketplace of ideas, gaining attention and considerable public support. Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should, in civil parlance, include the legal unions of same-sex partners.

But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.

In any event, gays and lesbians in California have won a significant civil rights victory today in California. Following the 30 day suspension period, they will be legally allowed to marry in California.

Conservative groups must now petition for an amendment to the state constitution if they wish to challenge the court’s decision. According to the New York Times, these conservative groups have already gathered over a million signatures supporting a constitutional ban on gay marriage. The initiative will likely be put to the voters in November. Interestingly, despite vetoing two attempts by the legislature to recognize gay marriage, Gov. Schwarzenegger has said that he will not support the constitutional ban initiative.

The following piece has been reproduced with the permission of the author. Law is Cool does not necessarily advocate or promote the views contained within.

(more…)

We’ve all been waiting for this since forever.

The understandably busy articling students from Osgoode Hall make time to debate Mark Steyn on TVO.

A point of note: the poster of the videos introduces them as “sock puppets.” However, they are 3 of the 5 law students that produced the original research leading to the complaint against Maclean’s magazine, and the President of the CIC simply filed it on their behalf. Any assertion to the contrary is simply erroneous.

Mark Steyn Part 1

Mark Steyn Part 2

Mark Steyn Part 3

Mark Steyn Part 4

Mark Steyn Part 5

Mark Steyn Part 6

Mark Steyn Part 7

Updates: Welcome back to the thousands of Steyn fans that have returned to this site. We’ll get to your moderated comments in due time, possible within days or weeks. Our small team of full-time law students can hardly keep up with that horde. And as we’ve said before, we can’t speak on their behalf - we’re glad that they’re speaking for themselves, but we cannot answer any specific questions because we do not have the answers.

We’re finding that many of the comments are by the same posters, using different names and (fake) email addresses, but from the same computer. Some are even having a dialogue with themselves.  These comments will be given a lower priority as we sort through them all.

Congratulations on finishing your year, and remember the best is yet to come.

Creating a Legal Storm

US Supreme Court Justice, Antonin Scalia, made his first major television appearance this week on 60 Minutes.

Previously he has severely restricted media access, especially in his court, citing his,

First Amendment right not to speak on the radio or television when I do not wish to do so.

In 2004, he even had his security guards erase a recording of a speech he had made in Mississippi.

Scalia is a known controversial figure on the Supreme Court, going by the name Nino in reference to the storms he creates. He is often remembered for his objection to the Roe v. Wade ruling that allowed abortion in the U.S. in 1973.

He told 60 Minutes,

You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change

Smartest Man on Supreme Court of US

Ed Lazarus, author of Closed Chambers, was interviewed by Brian Lamb in 1998,

LAMB: Who’s the smartest member of the Supreme Court now? Mr. LAZARUS: Oh, I don’t whether I could–you know, I don’t know what their IQ scores are. I will say this that–that Justice Scalia is a enormously powerful in–in–intellect. And he has a very powerful writing style. And he’s very sure of himself. And those factors combine to make him extraordinarily influential. He has a–a very steadfast view, although as I point out in the book, he–he’s not always consistent. But–but he puts forward a powerful ideology, and he’s–he’s quick as can be. And–and that makes him very influential.

Support for Torture

Perhaps Scalia’s greatest contemporary controversy is his recent support for the use of torture. In the 60 Minutes interview he stated,

STAHL: If someone’s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person — if you listen to the expression “cruel and unusual punishment,” doesn’t that apply?

SCALIA: No. To the contrary. You think — Has anybody ever referred to torture as punishment? I don’t think so.

STAHL: Well I think if you’re in custody, and you have a policeman who’s taken you into custody–

SCALIA: And you say he’s punishing you? What’s he punishing you for? … When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?

Scalia’s ideas are infiltrating the Canada as well. At a conference in Ottawa last year, Scalia repeated these comments on a panel on terrorism and torture said,

Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’

The statement was in reference to Scalia’s comments on the show,

Jack Bauer saved Los Angeles. … He saved hundreds of thousands of lives. …Are you going to convict Jack Bauer?. Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so. ..So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.

And earlier this year, Scalia told the BBC,

You can’t come in smugly and with great self satisfaction and say ‘Oh it’s torture, and therefore it’s no good.’

You can’t?

Article 2 of the UN Convention Against Torture states,

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Ali on Think Progress cites Human Rights First, who point out torture raises other constitutional questions besides 8th Amendment violations:

[I]t seems Justice Scalia has forgotten about the 5th Amendment’s guarantee of due process. Furthermore, a court holding a witness in contempt for refusing to cooperate with a judicial proceeding is, in fact, quite different than an interrogator resorting to physical abuse when a prisoner refuses to talk.

Anne Applebaum dispels The Torture Myth in the Washington Post,

Just for a moment, let’s pretend that there is no moral, legal or constitutional problem with torture. Let’s also imagine a clear-cut case: a terrorist who knows where bombs are about to explode in Iraq. To stop him, it seems that a wide range of Americans would be prepared to endorse “cruel and unusual” methods.

She thinks people like Scalia should stick to their fictional television, and avoid making judgments on subjects they know nothing about.

Applebaum interviews an array of military specialists who say that torture simply doesn’t work, and would provide faulty intelligence,

Aside from its immorality and its illegality, says Herrington, torture is simply “not a good way to get information.” In his experience, nine out of 10 people can be persuaded to talk with no “stress methods” at all, let alone cruel and unusual ones. Asked whether that would be true of religiously motivated fanatics, he says that the “batting average” might be lower: “perhaps six out of ten.” And if you beat up the remaining four? “They’ll just tell you anything to get you to stop.”

Canadians are “idiots”

Scalia’s ideological basis is grounded in an “originalist” and “textualist” interpretation of the Constitution. He condemns judicial activism that introduces flexibility into the Constitution to allow for changing times and values.

Canada adopts the opposite approach, and a need for a broad and liberal reading of the Constitution to change with the times is Constitutionally entrenched.

Such flexibility has allowed for same-sex marriage in Canada, but also allowed women to sit in the Senate in Edwards v. Canada (Attorney General), also known as the Persons case, because women were finally legally deemed to be people too.

Privy Council cited Sir Robert Borden in Canadian Constitutional Studies in the Persons case,

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention.

The danger in adopting Scalia’s rigid approach instead is openly apparent. NPR interviewed him yesterday and said,

By this logic, if capital punishment was constitutional in 1791, it would be constitutional today. Theoretically, this means that putting people in stocks in the public square, a punishment used in 1791, is also constitutional.

His response was,

I would say that may be very stupid, but it’s not unconstitutional, if indeed it was a punishment that was at that time accepted.

But a stupid argument is probably better than being called an idiot, which is what Scalia does for those who disagree with his Constitutional interpretation,

People who believe the Constitution would break if it didn’t change with society are “idiots.”

Publicity for Money, Or Avoiding Being Demonized?

All of this recent publicity for someone who has so strongly shunned and even attacked the media seems strange.

But the Law Times reports that his current media blitz is part of a recent (subsidized) strategy to improve his his image,

My kids have been working on me to get out and do more public appearances. They think it makes it harder to demonize you — and I agree.

It’s also probably no coincidence that on Monday he released his book, Making Your Case: The Art of Persuading Judges.

Adam Cohen claims in the New York Times that Scalia’s many antics, which also include obscene gestures and refusing recusal (due to conflict of interest), are bring disrepute to the highest legal institution in the most powerful country on Earth.

Cohen says,

More than any modern justice, Justice Scalia seems intent on presenting himself to the world as an outspoken champion of conservative values. But conservatives are people who believe in respecting and preserving existing institutions. There is nothing conservative about diminishing a great institution like the Supreme Court by making inflammatory and partisan off-the-bench statements and ignoring the rules of ethical judging.

And if you’re looking to avoid being demonized by the media and the public, being the poster boy for Abu Ghraib probably isn’t the best way to do it.

A parody of the Nigerian e-mail frauds in reference to the Conservative Elections Scandal, Courtesy of Calgary Grit:

From: Conservative Headquarters
To: Conservative Candidates
Date: December 2, 2005
Subject: Urgent Request

Dearest Candidate,

Good morning, how are you and your family? I hope fine. Please, I am sorry to bother you with our problem.

Please know that it’s not by mistake I am contacting you but by the special grace of God. Let my start by introducing myself. I am writing from Stephen Harper’s Conservative Party with this urgent request from Party Headquarters.

Now is the time for all good men to come to our aid.

The Conservative Party has an extra ONE MILLION TWO HUNDRED THOUSAND DOLLARS in its bank account which is ordained to be used for TV advertising just before the January 23, 2006 election. But the Evil Chief Electoral Officer and his Satanic henchman, the Commissioner of Canada Elections, are watching us closely and are not permitting us to spend more than our puny $ 18.3 million limit.

Rules cannot be allowed to stop us from our destiny. Your campaign is identified as one which is not spending the limit. We will be switching our spending to your account by transferring $ 40,000 to your election bank account. But first you must give me a wire transfer form so that I can take the money out of your account as soon as it send you the money. I promise not to take more than I put in. Trust me.

After I use your bank account for this in and out transfer, you may claim 60% back from Elections Canada. This means you will get $ 24,000 and all you will have to do is let me use your bank account for one minute.

I assure you this is all legal. No one will suspect that this spending in not really for your campaign. And you can use the $ 24,000 anyway you wish.

Expecting your soonest response.

Stephen Harper Campaign Team
Conservative HQ, Ottawa*

*Dramatization of evidence use to obtain Criminal Code warrant to search Conservative Headquarters.
———–

Would you respond to this email? 67 CONSERVATIVE CANDIDATES IN THE 2006 ELECTION DID CLAIMING MORE THAN $ 750,000 IN TAXPAYER SUBSIDIES!

Help us bring real accountability to Canadian politics. We say, “if someone breaks the law, they should go to jail”. We mean it, whether it is a former Liberal who steals from the government or our party, or a Conservative trying to steal from you. Send your cheque to the Calgary Nosehill Liberals - Accountability Fund at 108, 5211 - MacLeod Trail SW, Calgary, Alberta T2H 0J3.

Maximum donation is $1,100 (less any other donation made to a Federal Liberal Association). Tax receipt will be issued.

h/t Raymond Reid of York University

An interesting commentary:

Don’t believe the hype

Twenty years ago the classic Hip Hop group, Public Enemy, said in their hit song,

Some media is the whack
You believe it’s true, it blows me through the roof
Suckers, liars get me a shovel
Some writers I know are damn devils
For them I say don’t believe the hype
Yo Chuck, they must be on a pipe, right?
Their pens and pads I’ll snatch
‘Cause I’ve had it
I’m not an addict fiendin’ for static
I’ll see their tape recorder and grab it
No, you can’t have it back silly rabbit
I’m going’ to my media assassin
Harry Allen, I gotta ask him
Yo Harry, you’re a writer, are we that type?
Don’t believe the hype

It seems we’re facing a similar hype in our generation, but one of a different enemy of the public, the terrorist threat.

At least that’s what John Mueller, Professor of Political Science at Ohio State University, would argue.

Dispelling Terrorist Myths

It started with a piece in 2006 in Foreign Affairs, entitled, Is There Still a Terrorist Threat?: The Myth of the Omnipresent Enemy, published by the Council on Foreign Relations.

Mueller is the author of a 2004 book called The Remnants of War, which claimed since the fall of the Soviet Union warfare is actually obsolete. He argues that problems such as terrorism that the world currently faces are actually forms of civil disorder best dealt with by policing methods.

Mueller attributes in Foreign Affairs a lot of the panic around terrorism to baseless hype,

[I]f it is so easy to pull off an attack and if terrorists are so demonically competent, why have they not done it?…

…One reasonable explanation is that almost no terrorists exist in the United States and few have the means or the inclination to strike from abroad. But this explanation is rarely offered….

…If al Qaeda operatives are as determined and inventive as assumed, they should be here by now. If they are not yet here, they must not be trying very hard or must be far less dedicated, diabolical, and competent than the common image would suggest.

Mueller confirms what rarely heard experts have always been saying - Al Qaeda represents not a specific terrorist entity engaging in direct operational planning, but rather an ideological basis and “support group” for copycats that it would otherwise spawn.

Loren Colemen, author of The Copycat Effect, said,

…research shows potential terrorists become aroused by media presentations of terrorism, accept the violence as justified, and become tomorrow’s suicide bombers.
Contagion terrorism, unfortunately, makes compelling sense when we understand the simple but deadly psychology of the copycat effect. The global attention and blanket media coverage given the 7/7 London terrorist attacks will actually help create tomorrow’s suicide bombers who will feel fully legitimized in their future murder-suicides.

But even the fear of copycats, here at home or abroad, seems disproportionate to the actual threat.

Counting Down Those Freed

Earlier this month, charges were stayed against more of the accused Toronto 18.

Tony Carson of Carsons Posts said,

And that’s the problem: we get the great fanfare of the arrest and nothing much else — except the slow dribble of release announcements. The Toronto 18, at the time, sounded like they needed medical help more than they needed incarceration but we have been simply left to ponder what they were really thinking — and a year later we still don’t know, only that the Toronto 18 are now the Toronto 15 soon to be what? the Toronto 12 … 7… 3… 0?

Actually, we’re already down to 11.

Thomas Walkom of The Star explains the implications,

Seven of the original 18 have had their charges stayed – which, in simple English, means the government now admits it never had any real evidence against them.

Those remaining in jail are hoping, at the very least, to get out on bail.

One of the lawyers, Anser Farooq, is calling for a public inquiry as to why an innocent person was kept behind bars for 18 months in solitary confinement.

Terrorism Will Just Fade Away, Unless…

Even if we concede that any of the remaining 11 are guilty of some crime, Mueller provides some important context in an article yesterday in the Ottawa Citizen, Terror Without the Terrorists,

All of these rather hapless, even pathetic, people, should of course be considered to be potentially dangerous. From time to time they may be able to coalesce enough to carry out acts of terrorist violence, and policing efforts to stop them before they can do so are fully justified. But the notion that they present an existential threat to just about anybody seems at least as fanciful as some of their schemes, and any notion that these characters could come up with nuclear weapons seems far fetched in the extreme.

Mueller bases his conclusions on Marc Sageman (we’ve quoted him before), author of Leaderless Jihad, and a former intelligence officer with access to classified materials,

The threat presented by these individuals is likely, concludes Sageman, simply to fade away in time. Unless, of course, the United States overreacts and does something to enhance their numbers, prestige, and determination — something that is, needless to say, entirely possible.

This overreaction may have already occurred. But if has not, a drastic shift in policy is needed immediately.

The Best Choice is Proportionality

Proportionality is also required for domestic operations, and community agencies are now calling that the remaining 11 of the Toronto 18 be reevaluated for reasonable bail terms and conditions of solitary confinement.

Mueller is author of his own new book on the subject, Overblown, which argues that the terrorist threat is deliberately exaggerated by politicians and the military industry, who in turn fuel the fear that spreads terrorism.

And this might be why the Sageman solution, which “offers a ray of hope,” may be ignored by politicians to instead economically support the dominant military industry in Canada, a sector that admittedly does add thousands of jobs and millions of dollars to the Canadian economy.

But is that a choice that Canadians, if informed on the subject, are really willing to pay?

Sometimes when you’re studying for law exams, you’ll do everything you can to avoid actually reading the text.

Most of us law students are entering final exam period over the next few weeks.

There will be a considerable slow down during this period. You can expect a few more sporadic posts, but we’ll pick things back up in the summer.

More importantly, we’re looking for new talented and qualified first-year Canadian law students for the 2008-2009 year to join our team. The benefits are immeasurable, and include valuable networking opportunities and informal nation-wide mentoring. Some of us have received job offers an other opportunities through this site.

Contact us at admin[at]lawiscool[dot]com for more information.

And good luck to everyone in their upcoming exams.

Yesterday, Hillary Clinton scored a massive double digit victory over Barack Obama in the Pennsylvania primary!

Except she didn’t.

I’m not saying this because the spread between Clinton and Obama was actually 9.3% (which if I remember math class correctly rounds down to 9% instead of up to 10%).

Nor am I saying this because Pennsylvania was natural Clinton territory and even just a few months back Clinton was running 20 points above Obama:

That’s just trivia.

The real issue is in terms of the numbers game Clinton’s victory didn’t mean anything. Right now the U.S. Democratic presidential campaign is just that: a numbers game. The magic number is 2,024 – that’s the number of delegates needed to clinch the Democratic nomination. Barrack Obama has 1,719 delegates and Hillary Clinton has 1,586 delegates. So how did Clinton’s big surge change the numbers? She got net 12 delegates.

Twelve.

After all the hoopla, the media, the tens of millions of dollars spent she got only 12 net delegates from the primary. For comparison, the last state that voted was Kansas. I don’t remember hearing a lot about Kansas in the news. But Obama got net 14 delegates there. So basically if you take the two states that voted in April, Obama came out two delegates ahead.

That’s not an overwhelming victory for Obama. But look at the total delegate score above. Obama doesn’t need overwhelming victories anymore. Given that delegates are allocated proportionally Clinton is not going to be able to make up that ground.

But what about superdelegates? What about that slew of elected Democratic politicians and party apparatchiks that make up about a fifth of the votes in the convention at Denver? Can’t Clinton use them to win the nomination? Well, right now there are only 259 uncommitted superdelegates. That means that if the uncommitted superdelegates go 3-to-1 for Clinton she’s still losing. Okay, but what if Hillary wins 3-to-1 and maybe peels off some of Obama’s current superdelegats? It’s just as unrealistic as her winning through the states. Here’s a chart from blogger and chef Ezra Klein that shows the movement of superdelegates for Obama and Clinton:

So to wrap it up, Obama has won more states and more votes and it is realistically impossible for Clinton to win the nomination. I should mention though, that some disagree: