University of Toronto Law School Faculty Blog

Prof. Mohammad Fadel on Family Pluralism

2009-07-02T12:02:12-04:00

I have recently posted a draft of a chapter to be published in a forthcoming work on family law pluralism (MARRIAGE AND DIVORCE IN A MULTICULTURAL CONTEXT: RECONSIDERING THE BOUNDARIES OF CIVIL LAW AND RELIGION, Joel A. Nichols, ed., Cambridge University Press, Forthcoming 2010) to my ssrn page (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1421978). Against the background of the controversy engendered by the proposal in Ontario by some Muslims to use the Ontario Arbitration Act to resolve family law disputes among Muslims using binding arbitration, I have attempted to lay out an argument as to why a liberal system of family law - at least one that is committed to a version of political liberalism - is required to recognize at least a limited amount of autonomy within the family, and to that extent, it cannot have a categorical objection to the recognition of binding family law arbitrations, at least to the extent that it would otherwise recognize and enforce private agreements within the family (whether pre-nuptial agreements or separation agreements) of the parties to the arbitration.

At the same time, I try to outline what limits a politically liberal state must place on the internal autonomy of the family, and by extension, the normative limits on the recognition of private arbitration in the context of family law arbitration. After laying out the liberal framework in which private ordering of the family can take place, I then turn to whether Islamic conceptions of the family have a legitimate place in a liberal family order. I argue that Muslims have important reasons to support a system of family law pluralism that are rooted in their own theological and legal commitments, commitments which gave rise to a form of Islamic family law pluralism. I also argue that those Islamic commitments in turn tip the scale in favor of a system of liberal family law pluralism, rather than an alternative form of family law pluralism that, for example, would entail ceding greater regulatory authority over family life to religious institutions. This is largely because of political liberalism's commitment to metaphysical neutrality, a stance which lessens the risk of conflict between legal conceptions of the family and Islamic religious doctrines of the family. Family law pluralism in the Islamic context was largely a result of the existence of disparate (and in some respects, irreconcilable) religious and legal conceptions of the family and the respective roles of men and women within the family. Many of these conceptions could not be admissible in a liberal family order, and to that extent, Islamic family law arbitration would have to be subject to legal review to ensure that the results of Islamic family law arbitration are consistent with public norms. This problem, however, is simply a particular manifestation of the larger dynamic within a liberal system of family law whereby the autonomy of families (and the individuals within families) is both recognized and circumscribed. I argue that within these limits, Islamic religious and legal norms offer rich doctrinal resources out of which religiously committed Muslims can order their family lives in a manner that is both unquestionably Islamic and satisfies the mandatory requirements of a liberal family law. The chapter concludes with the example of Jewish family law arbitration in the State of New York, demonstrating that New York courts have shown competence in supervising Jewish family law arbitrations to insure that their results are compatible with public law, a fact that demonstrates the ability of public courts in a liberal jurisdiction to enforce public norms while respecting the autonomy of religious citizens.

Prof. Jacob Ziegel writes: Mike Rosenberg Wins Strosberg Prize

2009-06-08T10:17:06-04:00

Students and Faculty members will be delighted to learn that Mike Rosenberg, JD III, has won this year's prestigious Harvey Strosberg prize, worth ten thousand dollars, awarded each year for the best student paper on a class action topic. The paper will be published in the Canadian Class Action Law Review under the title of "The Rise and Imminent Fall of Waiver of Tort in Class Proceedings."

The paper began its career as a term paper in the Class Actions course offered by Professors Ziegel and Watson in the spring term of 2008. Mike continued to work on the paper last summer while working at McCarthys, then refined it further while taking Prof Ernest Weinrib's restitution course in the fall 2008 term. The topic is of great practical and theoretical importance in class action proceedings and is currently being litigated before Canadian courts. The debate will determine whether class members will have a remedy against a defendant whose product is defective or injurious even though class members cannot prove that they were individually injured by the defect. The plaintiffs have sought to overcome this difficulty by arguing that the defendant was unjustly enriched at the expense of class members and should therefore be required to disgorge its ill gotten gain.

Mike was an excellent law student and will be clerking for Chief Justice McLachlin at the Supreme Court of Canada after he graduates this June. He has a very engaging personality, delights to debate and, according to those who know him, is a joy to teach. It is safe to predict that Mike has a very promising career ahead of him.

Warmest congratulations, Mike.

Jacob Ziegel

Prof. Mohammad Fadel - "President Obama Passes the Muslim Test"

2009-06-08T10:03:32-04:00

I have written some very brief comments on President Obama’s speech yesterday in Cairo on the web page of patheos.com. Essentially, I stated that Obama’s speech could genuinely represent an important break from U.S. policy towards the Islamic world in general and the Arab world in particular. Clearly, one speech cannot change the world, but if Obama follows through with the ideas that he announced in yesterday’s speech, there may be renewed cause for optimism.

Read my full comments at:
http://www.patheos.com/Explore/Additional-Resources/Mohammad-Fadel.html

Mohammad Fadel

Prof. Ed Morgan - "It's a legal maze for Canadian authorities abroad"

2009-05-29T11:46:44-04:00

This commentary by Prof. Ed Morgan was first published in The Globe and Mail on May 27, 2009.

Canadians may be surprised to learn a few things about our constitutional law.

First, the military owes no duty toward detainees arrested by us and turned over to a foreign state for custody.

Second, our intelligence service does owe a duty toward prisoners taken into custody by a foreign state and turned over to us for interrogation.

Third, our diplomats are obliged to intervene with a foreign legal system that fails to live up to our domestic standards of punishment.

And fourth, our police are free to comply with a foreign legal system that fails to live up to our domestic standards of search and seizure.

When it comes to the powers of the Canadian government abroad, each new court ruling makes us wonder if the judges took the time to read the last one. How did this confused state of affairs come to be?

In the latest case, the Supreme Court of Canada has refused to hear an appeal brought by Amnesty International on behalf of detainees in Afghanistan, confirming a lower court's view that the Canadian military is not restricted by the Charter of Rights and Freedoms when it operates in foreign terrain. The court saw Canadian Forces in Afghanistan as needing more leeway than the Charter allows in dealing with prisoners and in co-operating with our allies.

The point seems directly contrary to last year's Omar Khadr judgment, in which Canadian Security Intelligence Service interrogators in Guantanamo were held to the same standards as Canadian police when they investigate a crime at home. While the court pointed out that Mr. Khadr is a Canadian citizen and the Afghan detainees are not, that doesn't explain why intelligence officers should operate under a set of legal restraints that military officers are free to ignore. The Charter doesn't distinguish between citizen and non-citizen prisoners.

This year also saw the Federal Court of Canada pronounce that diplomats must lobby to support Ronald Smith, a Canadian murderer facing capital punishment in the United States. The ruling sidestepped international standards that give us the option, but not the obligation, to weigh in for a citizen in a foreign jail. Instead, it instructed us that the Charter of Rights has curtailed the government's discretion on whether to intervene in foreign legal proceedings.

The RCMP, by contrast, have no such worries. In the 2007 money-laundering case against Canadian businessman Lawrence Hape, the Supreme Court determined that the Mounties are free from the Charter's prohibition on unreasonable search and seizure when investigating a crime in the Cayman Islands. It's enough that they follow local police, who are at liberty to barge into a suspect's home without a warrant.

What explains this maze of legal contradiction? Everything and nothing.

When Canadian authorities operate abroad, the nation goes with them. From a legal point of view, there are two ways to look at it: They are either defending us collectively against enemies from without, or defending our values by spreading them far and wide.

For many, Canadian officers in Afghanistan or the Cayman Islands are protecting us from the harms of an adverse world. Whether for national security or crime control, Canadian authorities insulate the home front and represent our collective interest in keeping those hostile to us at bay. They have little to do with the Charter of Rights, which dictates how we treat each other, and everything to do with defending “We the People,” to use the U.S. constitutional phrase.

For others, Canadian authorities in Afghanistan or Guantanamo are enforcing the values of our rights-oriented society. Whether the campaign has a military or law-enforcement goal, Canadian officers are out to protect individuals everywhere against the impositions of the state, including themselves. They therefore travel with the Charter of Rights in tow, branching out our norms like a “living tree,” to use the British constitutional phrase.

We are a country with distinct national interests, and a society that values universal rights. There is nothing wrong with attempting to craft a body of law that reflects both sides of that coin. But it behooves our judiciary to at least try to rationalize its approach to the constitutional powers of government.

Litigation at this level ought not read like it was driven by the usual legal spin doctors, or by decision-makers who just go with their gut. If we faced our contradictions squarely, and tried to explain each ruling in terms of the last, we wouldn't just have a more comprehensible law; we would better understand ourselves.

DLS Executive Director Judith McCormack - "When poverty becomes respectable"

2009-05-28T13:56:17-04:00

Judith McCormack is the executive director of Downtown Legal Services, the community legal clinic of the University of Toronto Faculty of Law.

First published in the Toronto Star on May 17, 2009.

As painful as the current economic crisis may be, it does at least provide us with some valuable insights.

Now that the threat of poverty has suddenly landed on the doorsteps of so many ordinary, hard-working people, it forces us to see this particular problem in a new and clear-eyed way. In fact, many of the myths about poverty have gone up in smoke, much like Bernard Madoff's investments.

Try as we might to cling to the outdated idea that poor people are lazy or dependent, we're now face to face with the evidence that layoffs, economic restructuring and market forces can quickly push any of us into dire straits.

We've lost our ability to pretend that poor people are "them." Alas, it turns out they could be us, or our neighbours, friends and relatives.

This uncomfortable revelation has the effect of highlighting the ways in which we normally stigmatize the poor, and the punitive nature of our social policies toward them.

Much as the Great Depression of the 1930s led to a shift of public opinion on poverty, a defining moment is upon us again. Then, as now, the macroeconomic causes of unemployment and homelessness were suddenly visible, undermining the idea that poverty was caused by individual failure or character defects.

The soaring unemployment of the Dirty '30s and the tens of thousands of people on government relief produced a significant change in public consciousness.

It became apparent that the economy was too unpredictable and contingent to make the ability to find a job either a prerequisite for the necessities of life or the primary criterion for social worth.

Poor people, previously considered moral outcasts, began to emerge as fellow human beings who had simply lost the economic lottery.

And attention shifted to social programs to ameliorate the harsh impact of market forces.

This was the climate in which many of our modern social programs had their genesis, including unemployment insurance and family allowances.

Fast forward to 2009.

We now know even more about the complex structural causes of poverty – not only the economic dislocations that eliminate jobs, but other factors such as low minimum wages, systemic discrimination, and the lack of affordable housing.

We know even more about the effects of poverty, the social exclusion that accompanies it and the price tag attached – not just in terms of individual misery, but through the increased costs it creates in the health-care, education and justice systems as well.

And we know even more about the unequal impact of poverty, where the poor include disproportionate numbers of people of colour, the elderly, people with disabilities and single parent families.

But the current economic crisis is a startling reminder that few of us are invulnerable.

With this realization also comes an opportunity for some public soul-searching, as well as a chance to redefine the role of our social programs. The soul-searching has to do with the lingering effects of notions of moral censure and charity that still dominate some of the public debate on poverty.

This has contributed to a situation where homelessness is more of an epidemic than swine flu, and where more than 700,000 people in Canada are forced to use food banks each month – half of them families with children.

At the same time, our social programs have all too often been miscast as frills, boondoggles or handouts to the undeserving.

Now that more and more of us are forced to turn to employment insurance and welfare, those myths are also in some disarray – much like the shrinking programs themselves.

This is a hard way to learn a lesson, but it does at least clear the way for a more sophisticated understanding of the role of social programs, one in which they are closer to the core of what it means to be a society.

Rather than being simply ameliorative, these programs embody a form of social citizenship in which all individuals are entitled to food, clothing, education, health care and full participation in society – not as a matter of altruism or compassion, but because these are rights that flow from the inherent dignity of personhood.

Much the same reasoning applies to the outdated notion that these programs are somehow peripheral to the mainstream.

In fact, they form an essential part of the backbone of a society, something central to the very idea of society itself.

In this sense, intelligent social investment is a fundamental aspect of the social glue that holds us together, a reflection of the essential interconnectedness of people occupying the same turf.

As a result, allowing social programs to deteriorate has implications not just for the individuals who are deprived of them, but for the structural integrity of society as a whole.

Going forward then, this perspective has the potential to inform the development of social policies in a way that is more coherent, knowledgeable and comprehensive.

And there is no better time to develop more enlightened social policies than now – when we think they might apply to us.

Ed Morgan - "In Yellowknife, language rights go back on the menu"

2009-04-21T10:55:16-04:00

First published in the Globe and Mail, April 21, 2009.

In taking on the chef who runs the famed Wildcat Cafe, Yellowknife's city council appears to have concocted a recipe for bringing Quebec-style language politics to the Northwest Territories. In the process, it has given us the basis for a constitutional crise du jour.

The iconic eatery in Yellowknife's Old Town sports a log cabin veneer, rough wooden benches and floors, and a pedigree that harks back to the 1930s prospectors who founded it and the miners and bush pilots who made it a frontier landmark. The building was designated a heritage site in the early 1990s and it has been leased out by a municipal committee to licensed operators since reopening as a popular tourist destination in the late 1970s.

Le Wildcat Cafe, as it's now known, is currently run by a Quebec-born restaurateur. It serves up a northern repertoire of muskox sirloin, caribou burgers and, from personal experience, the best arctic char this side of anywhere. But the great northern food and ambience have been eclipsed by a language feud that brings the Constitution into play. It all turns on the French article "Le," which has been added to the historic name. The Yellowknife council wants it banished.

The chef's argument, as quoted in the news media, is that the council's demand amounts to discrimination. The council contends that it is merely out to do its duty in protecting the heritage of the site and of the region.

If the entire controversy seems to make a mountain out of the smallest mole hill, no one should underestimate the heights of constitutional theory that a certain other jurisdiction's linguistic battles have made us scale. Montrealers, or at least those over 30, will still recall the vanishing possessive on Eaton's stores in the 1980s, mandated by the ruthless Office québécois de la langue française as part of its rooting out of all things English on commercial signs under the infamous Bill 101.

When Quebec's sign law finally made it to the Supreme Court of Canada in 1988, the court had the opportunity to weigh two arguments - one by the challengers, disgruntled shopkeepers who felt unfairly targeted by this early Parti Québécois legislation, and another by the provincial government, which felt the need to preserve what it called the visage linguistique of the province.

Although Quebec's language police and Yellowknife's city council may have seemed a tad overzealous in taking on punctuation marks and definite articles, the underlying question would pose a challenge to any constitutional court. Canada is both a liberal society, sharing universal values and rights, and a distinctive society, with its own heritage and traditions. As the Supreme Court put it, language "is a means by which a people may express its cultural identity. It is also the means by which one expresses one's personal identity and sense of individuality."

The right to use one's chosen language and the authority to preserve the cultural patrimony stack up against each other in a way that makes the contest a tough call. The Supreme Court eventually told the government of Quebec that it could preserve the province's visual francophone heritage by requiring French signage to predominate in any given shop, but that it could not ban other languages altogether. The result is La Maison Egg Roll and other deliciously Canadian names.

Governments at all levels, from municipal to provincial to federal, can and should do their best to preserve the cultural inheritance of Canadians, and they may do so in a way that is appropriate to their particular locale or jurisdiction. But they cannot enforce these policies at the expense of individual freedoms, such as the right to express oneself in the language of one's choice. Some things simply lie too close to the bone of individual liberty to be carved away on the ornamental platter of heritage.

Those Yellowknifers who worry about their territory's history of English-speaking prospectors may have to take a cue from the Supreme Court's 20-year-old ruling on Bill 101. "Le" might not be able to dominate the Wildcat on the café's famous wooden sign, but it cannot be banished altogether from the brochures and menus.

After all, what's sauce for Quebec's goose is sauce for the rest of our gander.

Book Launch and Panel Discussion: Parliamentary Democracy in Crisis - Live Webcast

2009-04-20T11:59:40-04:00

The David Asper Centre for Constitutional Rights will be hosting a book launch for the new book Parliamentary Democracy in Crisis: The Dilemmas, Choices and Future of Parliamentary Government in Canada on Tuesday April 21 at 4:30 pm.

The book launch will include a panel discussion on the future of Canada's democracy: lessons learned and where to we go from here. This is the third in the series on the topic and celebrates the book that came out of our December 5th event on the Governor General's decision to prorogue Parliament. Panelists include Peter Hogg, Michael Valpy, David Cameron and Barbara Cameron.

The event will be webcast live starting shortly after 4:30 pm.

Click here April 21 at 4:30 to watch the webcast.

Click here to find out more about the event.

Click here to find out more about and purchase the book.

Alarie: Charter Decisions in the McLachlin Era

2009-04-16T15:15:01-04:00

Andrew Green and I have just posted a new paper on SSRN in which we analyze 105 Charter decisions of the Supreme Court of Canada. Here's the abstract:

This paper examines how justices on the Supreme Court of Canada voted in Charter appeals between 2000 and 2009. Charter appeals, at least in popular belief (and possibly also in theory), have the greatest potential to reveal voting that is influenced by extra-legal policy preferences. Confining the analysis to the time during which Chief Justice McLachlin has led the Court aids in controlling for the effects of a particular Chief Justice in assessing the roles of ideology and consensus.

Several of the Court's members have exhibited sharply different voting proclivities in s.15 (equality rights) appeals as compared with Charter claims made in the context of criminal law appeals (and, indeed, other Charter appeals). This finding suggests that at least some of the justices on the Court have been influenced by policy preferences on at least some occasions in discrete areas of Charter rights adjudication. On the other hand, it also suggests that judicial policy preferences are richer and significantly more nuanced than can adequately be captured by a simple "right"-"left" or "conservative"-"liberal" characterization of these policy preferences. The paper discusses a number of implications of the analysis and findings.

Here is one of the graphics from the paper, showing estimated ideal points of the justices overall, in equality cases, and in criminal appeals featuring a Charter rights violation. (The ideal point distributions were calculated using the Martin-Quinn method popularized in the study of the policy preferences of the justices of the US Supreme Court):

It is particularly interesting to note that although Justice Major and Chief Justice McLachlin are both in the centre of the distributions when all Charter appeals are considered together, Justice Major is an accidental centrist in that he is quite amenable to finding Charter rights violations in criminal appeals and disinclined to find in favour of claimants in equality rights appeals. Chief Justice McLachlin, on the other hand, is firmly planted in the centre with respect to each of the areas we examined.

Follow the download link at this page to access the full-text in pdf (and to have a look at some more revealing graphics).

Prof. Ayelet Shachar's new book, The Birthright Lottery

2009-04-15T12:21:24-04:00

Prof. Ayelet Shachar's new book, The Birthright Lottery, has been published by Harvard University Press.

From the publisher:

The vast majority of the global population acquires citizenship purely by accidental circumstances of birth. There is little doubt that securing membership status in a given state bequeaths to some a world filled with opportunity and condemns others to a life with little hope. Gaining privileges by such arbitrary criteria as one’s birthplace is discredited in virtually all fields of public life, yet birthright entitlements still dominate our laws when it comes to allotting membership in a state.

In The Birthright Lottery, Ayelet Shachar argues that birthright citizenship in an affluent society can be thought of as a form of property inheritance: that is, a valuable entitlement transmitted by law to a restricted group of recipients under conditions that perpetuate the transfer of this prerogative to their heirs. She deploys this fresh perspective to establish that nations need to expand their membership boundaries beyond outdated notions of blood-and-soil in sculpting the body politic. Located at the intersection of law, economics, and political philosophy, The Birthright Lottery further advocates redistributional obligations on those benefiting from the inheritance of membership, with the aim of ameliorating its most glaring opportunity inequalities.

Michael Trebilcock - "Wind power is a complete disaster"

2009-04-14T15:32:29-04:00

This commentary was first published in the Financial Post on April 9, 2009.

There is no evidence that industrial wind power is likely to have a significant impact on carbon emissions. The European experience is instructive. Denmark, the world's most wind-intensive nation, with more than 6,000 turbines generating 19% of its electricity, has yet to close a single fossil-fuel plant. It requires 50% more coal-generated electricity to cover wind power's unpredictability, and pollution and carbon dioxide emissions have risen (by 36% in 2006 alone).

Flemming Nissen, the head of development at West Danish generating company ELSAM (one of Denmark's largest energy utilities) tells us that "wind turbines do not reduce carbon dioxide emissions." The German experience is no different. Der Spiegel reports that "Germany's CO2 emissions haven't been reduced by even a single gram," and additional coal-and gas-fired plants have been constructed to ensure reliable delivery.

Indeed, recent academic research shows that wind power may actually increase greenhouse gas emissions in some cases, depending on the carbon-intensity of back-up generation required because of its intermittent character. On the negative side of the environmental ledger are adverse impacts of industrial wind turbines on birdlife and other forms of wildlife, farm animals, wetlands and viewsheds.

Industrial wind power is not a viable economic alternative to other energy conservation options. Again, the Danish experience is instructive. Its electricity generation costs are the highest in Europe (15¢/kwh compared to Ontario's current rate of about 6¢). Niels Gram of the Danish Federation of Industries says, "windmills are a mistake and economically make no sense." Aase Madsen , the Chair of Energy Policy in the Danish Parliament, calls it "a terribly expensive disaster."

The U. S. Energy Information Administration reported in 2008, on a dollar per MWh basis, the U. S. government subsidizes wind at $23.34 -- compared to reliable energy sources: natural gas at 25¢; coal at 44¢; hydro at 67¢; and nuclear at $1.59, leading to what some U. S. commentators call "a huge corporate welfare feeding frenzy." The Wall Street Journal advises that "wind generation is the prime example of what can go wrong when the government decides to pick winners."

The Economist magazine notes in a recent editorial, "Wasting Money on Climate Change," that each tonne of emissions avoided due to subsidies to renewable energy such as wind power would cost somewhere between $69 and $137, whereas under a cap-and-trade scheme the price would be less than $15.

Either a carbon tax or a cap-and-trade system creates incentives for consumers and producers on a myriad of margins to reduce energy use and emissions that, as these numbers show, completely overwhelm subsidies to renewables in terms of cost effectiveness.

The Ontario Power Authority advises that wind producers will be paid 13.5¢/ kwh (more than twice what consumers are currently paying), even without accounting for the additional costs of interconnection, transmission and backup generation. As the European experience confirms, this will inevitably lead to a dramatic increase in electricity costs with consequent detrimental effects on business and employment. From this perspective, the government's promise of 55,000 new jobs is a cruel delusion.

A recent detailed analysis (focusing mainly on Spain) finds that for every job created by state-funded support of renewables, particularly wind energy, 2.2 jobs are lost. Each wind industry job created cost almost $2-million in subsidies. Why will the Ontario experience be different?

In debates over climate change, and in particular subsidies to renewable energy, there are two kinds of green. First there are some environmental greens who view the problem as so urgent that all measures that may have some impact on greenhouse gas emissions, whatever their cost or their impact on the economy and employment, should be undertaken immediately.

Then there are the fiscal greens, who, being cool to carbon taxes and cap-and-trade systems that make polluters pay, favour massive public subsidies to themselves for renewable energy projects, whatever their relative impact on greenhouse gas emissions. These two groups are motivated by different kinds of green. The only point of convergence between them is their support for massive subsidies to renewable energy (such as wind turbines).

This unholy alliance of these two kinds of greens (doomsdayers and rent seekers) makes for very effective, if opportunistic, politics (as reflected in the Ontario government's Green Energy Act), just as it makes for lousy public policy: Politicians attempt to pick winners at our expense in a fast-moving technological landscape, instead of creating a socially efficient set of incentives to which we can all respond.

These comments were excerpted from a submission on April 8, 2009 to the Ontario government's legislative committee On Bill 150.