Vanessa MacDonnell (University of Ottawa – Common Law Section) has posted The New Self-Defence Law: Progressive Development or Status Quo? ((2014) 92:2 Canadian Bar Review 301) on SSRN.

Here is the abstract:

For more than three decades, feminist law reformers have argued that the law must better account for the different ways that men and women act in self-defence. In R v Lavallee, the Supreme Court agreed. Perhaps it should come as no surprise, then, that when the Conservative government introduced changes to the self-defence provisions in 2011 the amendments would reflect this evolution. In this paper I assess whether the law of self-defence is stronger now that feminist demands for change have been translated into law. In particular, I ask whether the new provision is likely to produce better results for groups whose self-defence claims have not always been dealt with satisfactorily.

Laird C. Kirkpatrick (George Washington University – Law School) has posted § 9:9 Authenticating Email, Social Media, Web Pages, Text Messages, Instant Messaging, Electronic Signatures (5 Federal Evidence 9:9 (4th ed. Thomson/Reuters 2013)) on SSRN.

Here is the abstract:

A particularly difficult evidentiary problem facing courts today is the proper standard for the authentication of electronic evidence or social media, such as emails, web pages, text messages, instant messaging and electronic signatures. This article analyzes the court decisions addressing these issues.

Thanks to Judge Wayne Gorman, we have a little more insight into perceived judicial bias.  It is a difficult issue for any judge.  We like to think of ourselves as fair…and so even though recusal is an option, there is a tendency either not to recuse and or to become defensive. Sitting in judgment of another judge’s decision not to recuse and to insist on presiding is not easy either.

In Mitchell v. Georges, [2014] UKPC 43, December 18, 2014, the applicant successfully appealed to the Judicial Committee of the Privy Council (the Board) obtaining an order that the Commissioner (Georges, a retired High Court Judge) of a Commission of Inquiry “should take no further part in the Commission” because of a reasonable apprehension of bias.

Though this decision involves the application of the reasonable apprehension of bias test to an inquiry, the Board adopts the same test (“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”) that Canadian trial judges utilize when considering such applications.  In addition, and as will be seen, the key issue in this case involved an interim report prepared by the Commission of Inquiry.  Thus, the reasoning of the Board may be useful to trial judges in weighing their language in the context of pre-trial and mid-trial rulings.

 

THE BACKGROUND

In 2003, the government of Saint Vincent and the Grenadines set up an inquiry to consider a failed development project.  At the time of the project the applicant (Mitchell) held the positions of finance minister and Prime Minister.

The Inquiry commenced and indicated to Mitchell that it intended to call him as a witness. However, prior to the interim report being filed, he had not testified.

In the interim report certain comments were made concerning Mitchell’s involvement in and knowledge of the circumstances of the project (including possible fraud).  The Board noted, at paragraph 41, that “the Commissioner’s interim report was replete, as the judge noted, with strong and colourful language” and “that it was true that the Commissioner used the decisive language of a concluded finding.”

 

THE BOARD’S RULING

The Board indicated, at paragraph 33, that it “has reached the conclusion that, contrary to the conclusions of the courts below, the Interim Report was expressed in such terms that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the respondent was biased such that he would not approach the remainder of the Inquiry with an open mind or, put another way, that he would not conduct an impartial Inquiry, so far as the conduct of the appellant is concerned.”

The Board concluded as follows (at paragraphs 44 and 45):

The extracts from the Interim Report set out above strongly support the conclusion that, having regard to the context and all the surrounding circumstances, the fair-minded observer would conclude that there is a real possibility that the respondent had made up his mind by the date of the Interim Report that the appellant was at the heart of the wrongdoing which led to the Project and its collapse and would not be willing to change his mind, so that his final report would not be impartial.

In these circumstances the Board will humbly advise Her Majesty that the appeal should be allowed. The parties should make written submissions on the appropriate form of order and on costs within 21 days of this judgment being handed down. The provisional view of the Board is that, in addition to an order that the appeal be allowed, the only other order which it would be appropriate to make (apart from costs) is a direction that the respondent should take no further part in the Commission. As to costs, it is the provisional view of the Board that the respondent should pay the appellant’s costs before the Board and in the courts below.

When President Bush announced the nomination of Clarence Thomas to the United States Supreme Court, he said that Clarence Thomas was a person who had empathy.  Since then, the term “empathy” in the context of judicial nominees has come under a lot of attack.  But, why?  Properly understood and applied, isn’t the value of empathy something all good judges should have?

The Huffington Post has an interesting article about empathy.  It begins:

“When public policies go into effect, they don’t always seem rooted in empathy and compassion. That’s one reason an educator at the University of San Francisco is making the humanities central to a class she teaches to future public administrators.

According to Kimberly Connor, the director of Interdisciplinary Studies at the university’s Department of Public and Nonprofit Administration, the best way to instill empathy in developing leaders is to not give them a one-size-fits-all blueprint, but rather share a variety of world perspectives and let them resonate naturally. Harnessing the power of the humanities, she includes only one general ethics text in her Leadership Ethics course syllabus, and surrounds it with a variety of classic literature, poetry, comedic videos and even slave narratives. This might seem like an unusual approach to teaching young professionals how to become more empathetic managers, but she says that she is simply teaching what she knows best.

“I’m trained in religious studies — not in management,” Connor told The Huffington Post. Originally hired to help working adult students make the transition to graduate school, she was asked to start teaching the course four years ago, and has found it an opportunity to apply her humanities background.

“Rather than fill up my class with stuff I wasn’t terribly familiar with, I used literary text to prompt my students’ thoughts around moral conduct and creative ways to work at problem solving,” she said. “I wanted them to learn how to tolerate ambiguity, to understand that in order to be moral agents in the world, we’re constantly having to self-interrogate and understand that things are not black and white. We live in a world of many contingencies, especially for people who are public administrators and obliged to so many people in different sectors. They serve the public, but that’s a very abstract obligation.”

One of the first texts explored in Connor’s class is Booker T. Washington’s Up From Slavery, a 19th century autobiographical slave narrative that explores how Washington, born a slave, adapted to the changing world around him, and then created opportunities for others to follow in his footsteps. Without fail, it inspires the students to think beyond themselves and consider the ways they can inspire cooperation, collaboration and social change within their communities”

For the full story, go here.

As reported by the Washington Post, ex-spouses and domain names can lead to litigation.

 “No, really — that’s [Audrey] Dunham v. [Paige] Dunham (C.D. Cal. Jan. 21, 2015), involving the current and past wives of “ventriloquist, producer and stand-up comedian Jeff Dunham” (Hollywood Reporter, Eriq Gardner). From the Complaint:

7. In May, 1994, Defendant married Jeff Dunham, now a renowned ventriloquist, producer, and stand-up comedian. Due to irreconcilable differences, Defendant and Jeff Dunham subsequently divorced.

8. On or about December 25, 2011, Jeff Dunham and Plaintiff were engaged to be married. Defendant was aware of Plaintiff and Plaintiff’s engagement with Jeff Dunham at that time.

9. On or about January 3, 2012, Defendant, without notice to Plaintiff, registered the following domain names through Network Solutions, LLC, a domain name registering company: AudreyDunham.com, AudreyDunham.net, AudreyDunham.us, and AudreyDunham.biz (collectively “Accused Domains”). On information and belief, Defendant concealed her name as the registrant for AudreyDunham.com, AudreyDunham.net, and AudreyDunham.biz domains by employing the services of Perfect Privacy, LLC, a company that specializes in keeping the identities of domain name registrants private. Defendant knew at the time she registered the Accused Domains, that Plaintiff would soon change her name to AUDREY DUNHAM….

12. On or about January 4, 2013, Plaintiff asked Defendant, in writing, to transfer the Accused Domains to Plaintiff and offered to reimburse Defendant for any out-of-pocket expenses associated with transferring the Accused Domains. Defendant refused to transfer the Accused Domains. On or about January 18, 2013, Defendant, through her agent, offered to sell the Accused Domains to Plaintiff in exchange for a payment of tens of thousands of dollars, for each domain name….”

Brandon Parker Ruben has posted Should the Medium Affect the Message? Legal and Ethical Implications of Prosecutors Reading Inmate-Attorney Email (Fordham Law Review, Forthcoming) on SSRN.

Here is the abstract:

The attorney-client privilege protects confidential, legal communications between a party and her attorney from being used against her. It is among American jurisprudence’s most sacrosanct evidentiary principles. Unsurprisingly, federal prosecutors cannot eavesdrop on inmate-attorney visits or phone calls, or read inmate-attorney mail. Courts are currently divided, however, on whether or not the government can be prevented from reading inmate-attorney emails.

This Note explores the incipient body of case law that addresses whether federal prosecutors can read inmates’ legal email.

The forms of attack on judicial independence are often different, but they also often threaten our democracy. Fortunately, most of these ideas among legislative bodies never actually get passed. With some, an argument can be made to either just ignore it or don’t dignify it with comment. Fair Courts has such a piece:

Texas Bill Would Cut Salaries of Judges Who Enforce Same-Sex Marriage Rights

A bill introduced in Texas last week would withhold the pay of any state or local government employee giving out, recognizing, granting, or enforcing same-sex marriage licenses. The bill, filed by Rep. Cecil Bell Jr. (R-Magnolia), states that “[i]f an employee violates this subsection, the employee may not continue to receive a salary, pension, or other employee benefit at the expense of the taxpayers of this State.” This legislation is similar to a bill introduced in South Carolina last month, which prohibited payment of salaries and benefits to government employees recognizing, granting, or enforcing same-sex marriage licenses. Equality Texas legislative specialist Daniel Williams said “Texas [] may not ignore federal law whenever it wants…. Beyond it ignoring federal law, it would actually punish state employees who follow the law.”

David H. Kaye , Frederick R. Bieber and Damir Primorac (respectively, The Pennsylvania State University Dickinson School of Law, Independent, and Primorac & Partners) have posted DNA as Evidence in the Courtroom (Forensic DNA Applications: An Interdisciplinary Perspective 509-25 (Dragan Primorac & Moses Schanfield eds. 2014)) on SSRN.

Here is the abstract:

This paper appears in Forensic DNA Applications: An Interdisciplinary Perspective, a textbook and reference work on forensic molecular biology prepared for the International Society of Applied Biological Sciences. Originally submitted in January 2012, the chapter outlines the legal principles that govern the admissibility of scientific evidence, briefly surveys the history of legal challenges to forensic DNA typing, and simply identifies some current legal issues in the use of the technology in trials.

The title of this post is the title of this interesting new paper by Brandon Garrett now available via SSRN.

Here is the abstract:

Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.”

I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction.

More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.

Elizabeth E. Joh (U.C. Davis School of Law) has posted Should Arrestee DNA Databases Extend to Misdemeanors? (Recent Advances in DNA & Gene Sequences, 2015, Forthcoming) on SSRN.

Here is the abstract:

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court’s 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.