“Text Message Preservation”
(Also by Jesse M. Lindmar)
With an average of 193.1 billion text messages sent every month in the United States, the importance and use of text messages in litigation is ever-increasing. As a consequence, the importance of text message preservation for e-discovery is also growing. Understanding how text messages can be preserved and the pitfalls to avoid is essential. While we recommend engaging the services of a digital forensics service provider who is familiar with the complexities of mobile phone forensics, there are certain situations in which the end-user can at least create a preserved, forensically sound copy that a … [more]
“Part-Time Partners and Associates – It Can Work”
One of my closest friends is a senior litigation partner at one of the largest law firms in Australia. She has always worked part-time through an arrangement with her firm where she works more than full-time during hectic trial periods and then will take a few weeks or a month off during the various school holidays. I have always admired her tenacity in making this work despite some pushback from her partners when she first started this arrangement eighteen years ago.
Recently, she remarked to me that flexible work arrangements were now common at the large national and international firms … [more]
“What Part of "No" Don't You Understand, O Gracious Crown?”
In the thesis I’m in the midst of writing, about burdens of proof in litigation between First Nations and the Crown pursuant to s.35(1) of the Constitution Act, 1982, I argue that the Crown invariably takes a position that denies any meaning to the guarantees of Aboriginal and treaty rights in that section, contrary to numerous Supreme Court decisions.
I’ve just come across a statutory example of the same sort of conduct in the Proceedings of the Senate Committee on Aboriginal Peoples, from May 31, 2010, almost two years ago.
In 2088, Parliament amended the Canadian Human Rights Act (… [more]
“The New Mega-Journal”
The scholarly journal is a form of publishing valued for being tradition-bound rather than path-breaking. The Philosophical Transactions of the 1665, which saw the very launch of this genre in England, is not all that far removed from the Philosophical Transactions A and B today (volumes 370 and 367 respectively). Certainly, in the early years, editor Oldenburg may have handled peer review with less formality, the references in an article may have amounted to referring to a letter from a friend, and the cover may have immodestly referred to its content as that of the ingenious. Yet for all of … [more]
“Tablets Tablets Everywhere”
One thing that became obvious at ABA TECHSHOW in Chicago this year was that lawyers are embracing tablet devices like the iPad in great numbers. Some people claimed that iPads even outnumbered laptops at the event. I’m not sure if that claim would have stood up to a head count but it was certainly plausible. The little tablets were everywhere.
So, fine, if you’re thinking about bringing a tablet device into your practice I have some advice for you.
Connectivity
There’s no getting around it – most tablet devices are barely useful without some kind of Internet connectivity. You can’t … [more]
“Connecting the Dots: Justice System Reform and Medical-Legal Partnerships”
Probably the most interesting thing happening in the BC legal world just now is the Justice Reform Initiative launched by the BC government back in early February. The review is chaired by Geoff Cowper, QC, of Fasken Martineau. The terms of reference for the initiative are ambitious. According to the government’s press release: “He [Geoff Cowper] will identify the top issues that are affecting the public’s access to timely justice and what can be done to ensure the efficiencies already underway have the desired impacts while respecting the independence of the judicial system.” The chief justices of the BC … [more]
“The Evolution of LPO”
Prominent in-house lawyers have warned Australian law firms that legal process outsourcing is no passing fad. Speaking at the Australian Corporate Lawyers Conference, Telstra general counsel Sue Laver said LPO in Australia is the “next wave” in legal services and as clients, Australian corporates needed to be actively encouraging firms to take action.
Malisons’ Stephen Jaques announced last month that it would be offering LPO to all clients where appropriate, following a trial run on a discovery project. According to Sue Laver, as a result of the quality of work and cost savings on the discovery project Telstra would now … [more]
“Tracking Down the Brazilian Anencephalic Abortion Case, in English”
I got the heads-up from a Brazilian law librarian colleague about a significant opinion published on April 12, 2012. I decided to use the opinion for a kind of case study in how to find cases in English translation. The Supreme Court of Brazil ruled that pregnant women carrying fetuses with anencephaly can legally abort them. The Court’s press releases describing its votes and reasoning are here and here. They’re in Portuguese, which I can make out since I know Spanish, but Google Translate helps give the gist in English. Also, because abortion is a hot issue worldwide, there … [more]
“Smartphones”
Any Smartphone in a Storm
There is no perfect smartphone for lawyers. In fact, the most important part of the smart phone is probably the phone part, since it enables you to keep in contact with your clients, your office, and other parts of your life. Once you've established that baseline – your phone is a phone – then it becomes a matter of very personal choices. It's not about who has market share, it's all about you. This has always been true for solos and smaller firms, but choice is even emerging at larger law firms. Most of … [more]
“Not All Animals Are Equal”
It’s easy and sometimes entertaining to note the negative or bizarre aspects of the major international law publishers but ultimately it is more interesting to identify areas of achievement. Far from the only one, but one such example is the work and evolution of what is now Bloomsbury Professional, based in the UK but increasingly recognisable around the world.
For me at least, it’s hard not to admire the business and the people involved in it, though I have to admit to a bias, though not an interest, in its favour. I consider a number of the people in … [more]
“Thinking, Fast and Slow: Avoiding Errors of Legal Judgment”
Daniel Kahneman's new book, Thinking, Fast and Slow, synthesizes his life's work as a psychologist. The book is about the systematic errors that limit human judgment.
The six-chapter section on overconfidence is particularly instructive for lawyers in helping them to assist clients to make better decisions and to make better decisions themselves. It appears that excessive optimism and overconfidence are part of the human condition. In fact, an expert's subjective degree of confidence in his or her predictions is irrelevant to the performance of the expert.
Research has shown that, while computers are better than humans at solving problems … [more]
“What Clients Want in Their Lawyer”
For more than 17 years I’ve worked in legal marketing, I’ve been keenly listening to clients about how they choose their lawyer, what irritates them and why they leave. I read surveys, attend public and private panel sessions that profile clients and their preferences, and I interview clients at every opportunity.
If you’re in a business, such as law, which centres on attracting and keeping clients, your marketing — and all other business strategies — must be informed and guided by client preferences. If you’re not understanding, responding and anticipating their needs, you will never reach your full potential. Start … [more]
“We Shape Our Hearing Rooms and Afterwards They Shape Us”
When the discussion turned to rebuilding the British House of Commons in 1943 (after its destruction on May 10, 1941) Winston Churchill in a simple but profound way stated, "We shape our buildings and afterwards our buildings shape us." He had fixed ideas about what the rebuilt House of Commons should look like – exactly like it was before. He was opposed to the semi-circular chamber which was popular in continental Europe and the U.S. (and Toronto City Hall) and in his view was poorly suited to party politics. His theory, based on his own experience, was that changing political … [more]
“Tough Lawyers”
Lawyers probably work in one of the most stressful environments that exist. If they are in private practice, they have the stress of working to provide their clients the information, advice and services that the client is looking for when the client wants it. If they are in-house counsel or in the public sector, they have employers, bosses who want information, advice and strategy when they need it, not on the lawyers’ schedule. As well, lawyering is such that sometimes there does not seem to be any clocks and everything else can be put aside including family, friends and one’s … [more]
“Past Lessons on Legal Project Management?”
Legal Project Management (LPM) has received a major boost downunder with the leading Australian/Asian firm King & Wood Mallesons (KWM) launching a program with the assistance of Edge International. Tony O'Malley, Managing Partner Australia, King & Wood Mallesons and Pam Woldow, Edge International give a convincing 5 minute audio explanation of why it is such a good idea.
If it is true as Shaun Plant says in The New Holy Grail of Legal Practice that “much of the practice of law is not about technical legal detail, but managing projects”, and, as Tony O’Malley has said that “Clients have been … [more]
“Bloomberg Law: The Wheel Turns”
Tectonic plates are shifting in the world of legal information. The sale of the Bureau of National Affairs to Bloomberg surprised me. I worked with BNA a bit back in the pre-Internet days. I was a great fan of U.S. Law Week, a research tool that I felt was much undervalued. I even made a promotional video for them when they began to transition from offering solely a print product into adding a digital platform. Being employee-owned and devoted to high quality editorial content, BNA was easy to like. When Bloomberg came on the scene I saw the shades of … [more]
“How Law Firms #Fail at Social Media”
It’s no longer new or innovative for law firms to use Twitter, Facebook, or LinkedIn as elements of their public web presence. Social media tools have become sufficiently standard that we can probably declare 2012 the year firms finally “buy in.”
While early-adopter firms continue to fine-tune their offerings, what I’m really noticing these days is the critical mass of firms now playing catch-up. Lawyers who used to ask, “What’s the firm across the street doing?” are now wondering “Why aren’t we doing that?” Social media buttons are sprouting all over law firm websites, all over the web. The … [more]
“Pro Bono Meets “Low Bono” at Big BC Law Firms”
In the black and white world of organized pro bono legal services, something is either pro bono or it’s not. Legal services are provided for zero compensation, or they’re not considered pro bono. This absolutist perspective is crude and fully disconnected from the simple translation of pro bono from Latin as “for the good”, but necessary to give relevance and integrity to pro bono as a functional concept. If the concept is stretched to include contingency fees or unpaid bills or reduced rates, then it ceases to have reliable meaning for lawyers and their clients. So for pro bono… [more]
“Behavioural Economics”
What is behavioral economics?
Behaviorial economics studies the effects of insights from psychology on economic decisions.
Daniel Kahneman, a psychologist, was awarded the Nobel prize in economics in 2002, for his work in judgment and decision making. Kahneman's work is the subject of his 2011 book, titled Thinking, Fast and Slow. He is the only non-economist to receive the Nobel prize in economics.
Kahneman in his book refers to intuition as operating automatically and quickly with little or no effort. In contrast, are effortful mental activities demanding attention, including complex computations. Two plus two requires no effort, but 17 … [more]
“Legal Business Development: The Profession Is Changing – Will You Be on the Cutting Edge… or Will You Be Left Behind?”
Innovation… lawyers seldom operate on the cutting edge and certainly not the bleeding edge! That's a given. It's likely in your DNA. Risk averse. But how long will you stay in what once was a perfect business model that is now past its prime? That is the question.
Seth Godin points to the music industry…
The music business was perfect. Radio, record chains, Rolling Stone magazine, the senior prom, limited access to recording studios, the replaceable nature of the LP, the baby boomers… it all added up to a business that seemed perfect, one that could run for ever and
… [more]
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New, in reference to time, could be one day, one week, or a couple of years. In law librarian terms, I still feel new to my job because it is contantly changing. If like me, you are a librarian who didn't go to law school, the Canadian Association of Law Libraries can help you cope with the burden of 'new'.
We have written before about CALL/ACBD's New Law Librarians' Institute. The institute is an intensive, week-long program aimed at developing librarians' skills in the key competencies of law librarianship. The program is an excellent mix of substantive legal topices (constitutional law, torts, contracts, criminal and property law) and skills sessions for the type of research that law librarians deal with on a daily basis. Class size is set at a 25 person maximum and it is an excellent opportunity to make quality contacts among leaders in the field.
Hosted at Western University in London, Ontario, the program runs from May 27 to June 1, 2012. There is still time to register.
Related posts:
A New Law Librarians' Institute? by Karen Sawatzky
New Law Librarians' Institute by Ted Tjaden
New Law Librarians' Institute 2011 by Connie Crosby
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More: in Education & Training or Legal Information: Libraries & Research | from Shaunna Mireau
I'm not a big gamer. I had a blast with Angry Birds for a bit and then lost the lust for launching the anti-pig petards. So when I'm trying to kill time in the absence of wifi, I'll turn to good old solitaire — Klondike by threes, if it's of any interest. I've noticed something odd about the game, whether on my desktop, smart phone or tablet. At least, I think I have. The cards the computer serves up don't seem to be random. I'll have a four face up at the bottom of one of the columns and the next thing I know I'm awash in a sea of useless red fours from the pack. I envisage the game-makers grinning to themselves as they build in a nest of rotten "Easter eggs" designed to frustrate players like me.
 On the other hand, the cards I'm dealt could be random. The thing is, there's no way to tell. Or, to put it more cautiously, there's no way to be 100% certain that the cards are not random. Because, if you think about it, any combination of the 52 cards in a deck is possible, even A, K, Q, J etc. Just as when it comes to the 649 lottery (an obscene $50,000,000 tonight) the numbers 1 – 2 – 3 – 4 – 5 – 6, for example, are no less probable than the numbers you picked. The cards don't know their names and neither do numbers, so they are indifferent, as it were, to human patterns.
So I reckon, in my fumbling way, that when it comes to cards, or indeed any selection of things, it's the process of selection or creating the order that we have to rely on: random is what's left after a certain number of shuffles of the cards.
Now when it comes to gaming, everyone knows about shuffling the deck or throwing dice. But how do you get randomness for other purposes such as computer programming my solitaire or choosing samples of populations for statistics? Turns out it's not all fun and games. And, thanks to random.org, I learn that I'm just the tiniest bit right about my computer-dealt solitaire hands.
Most computer programs needing to come up with randomness rely on programming, or "pseudo-random number generators" (PRNGs). Says random.org:
. . . using [a PRNG] corresponds to someone rolling a die many times and writing down the results. Whenever you ask for a die roll, you get the next on the list. Effectively, the numbers appear random, but they are really predetermined.
(I still don't see how numbers can "appear" random, though. But I'm next to innumerate, so I wouldn't.)
Random.org uses a "true random number generator" (TRNG) instead to produce randomness, specifically atmospheric noise as picked up by a radio and fed to their computer. So when in need of the really random — the best "shuffle" procedure available — the experts turn to nature ("Everything happens for no reason whatsoever"?). Ideally, radioactive decay produces the best source, but not everyone is equipped to hook up such hot stuff, which is why random.org contents itself with static, as it were.
Random.org is an interesting site. It offers you true random numbers in various guises, so the next time your office plays Secret Santa or somesuch, you can promise people that the game wasn't rigged. You can roll graphic dice, you can "quick pick" a lottery number for a Canadian lottery, you can get yourself a random password, or you can listen to "pure" (because random-generated) white noise. And, yes, I can shuffle a deck of cards here, too. Properly.
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More: in Miscellaneous | from Simon Fodden
This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.
Please let us have your recommendations for what we and our readers might like.
Smithsonian.com – Clarence Birdseye, the Man Behind Modern Frozen Food – Jesse Rhodes – This is an interview with author Mark Kurlansky about his new book, Birdseye: The Adventures of a Curious Man. And it starts our focus on eating for this week's recommendations. It also represents our sole Canadian connection this week: Birdseye was in Labrador being shown by Inuit how to fish under the ice when he got the idea for fast frozen food. Of course, it wasn't Canada then, but . . .
Food 52 – Liyna and Anum's Big Feast: Building the Tandoor Oven – Anum & Liyna – In case you feel inspired by inventor Birdseye's story, here's a simple plan with pics for how to construct a tandoor oven and use it to make great naan. You've fixed that chair; you've changed that faucet; now go big — and hot!
ABC Science – Carrots & Night Vision – Dr. Karl – Mother was wrong, it seems. Again. Though they do nothing for your eyes, they do nourish. And the "myth" about night vision played a key role in WWII, it turns out.
NYTimes – A Mathematical Challenge to Obesity – Claudia Dreifus – A conversation with mathematician Carson Chow, who's developed some interesting ways of seeing what's happening to us. (If you're considering dieting, check out his sophisticated NIH online app to learn about how long and how few it will take.) Sad money quote: "There’s no magic bullet on this. You simply have to cut calories and be vigilant for the rest of your life."
The Washington Post – Pica, the compulsion to eat dirt and other oddities, is found in many cultures – Ranit Mishori – And chalk, and coins, and even books. Turns out that eating (low-cal) dirt isn't as abnormal as you might suppose. Still . . .
Serious Eats – Latte Art: How to Draw a Rosetta on Your Coffee – Meister – Though it's supposed to start the day, the latte now appears at any hour. If you've wondered how they get those palm leaves to float on the surface here's your answer. Easier than building a tandoor oven.
Video on TED.com – How to use a paper towel – Joe Smith – Seriously. This guy is worried about the waste of paper towels in public washrooms and has a method to save trees. Impressive. Here in this list because you're going to want to wash after getting BBQ sauce everywhere, right? (And before, too, of course.)
Examiner.com – Small space cabin is 96 square feet – Mark Leevan – And you're going to need a place to do all this building and eating and washing up. I recommend you maintain the concern about the environment and do it all in a small (but lovely) space. There's an article to accompany the slideshow.
Personality and Social Psychology Bulletin – The Challenge of Staying Happier: Testing the Hedonic Adaptation Prevention (HAP) Model – Kennon M. Sheldon & Sonja Lyubomirsky – And for desert, I've got an academic paper. On why events that make us happy gradually lose their potency and what you can do about it. So you can keep that great meal repeating, so to speak. But beware: as the authors say "striving for ever greater happiness may set one on a hedonic treadmill to nowhere." Bon appetit!
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More: in Reading: You might like... | from Administrator
Since it's not sponsored by the regular legal conference outfits, a conference in Toronto next month may have flown under the radar for the Slaw community. The first Symposium on Criminality in the Art and Cultural Property World will be held at Osgoode Hall, 130 Queen Street West, Toronto, on June 15-16, 2012. Next month, Toronto will be the centre of the art-legal world.
The conference is co-chaired by Bonnie Czegledi and Mr. Justice Patrick Healy, Court of Quebec, Criminal and Penal Division, Montréal, formerly Professor Healy from McGill, and the speakers are quite literally, the world's experts: Lawrence M. Kaye and Howard N. Spiegler, from the Art Law Group at Herrick Feinstein LLP, New York; Bonnie Magness-Gardiner, an archaeologist who is now the Program Manager of the Art Theft Program, Federal Bureau of Investigation in DC; Monica S. Dugot, who heads up Restitution at Christie’s, New York; Clarence Epstein, Director of Special Projects and Cultural Affairs, Concordia University; responsible for Canada's Max Stern Art Restitution Project, Montréal; Graham Ospreay, an expert in forensic documents and forgery; Kathryn Minard, of ArtAdvisory.com in Toronto; my old friend and colleague David S. Rose, author of DNA: A Practical Guide (Carswell), Neuberger Rose LLP, Toronto; and the Head of the Art Crime Unit, Netherlands Police Agency, The Netherlands;
Two years ago, Thomson West published a text by Toronto art lawyer, Bonnie Czegledi,entitled Crimes Against Art: International Art and Cultural Heritage Law. This conference stems from that work and her practice.
The jacket copy states:
Author Bonnie Czegledi reviews major art and antiquities crimes from the past century, including heists from the Montreal Museum of Fine Arts and Boston’s Isabella Gardner Museum, looting during World War II and the Iraqi-wars, forgeries committed by Han van Meegeren and the Greenhalgh family, and the underwater salvaging of the RMS Titanic. These and many other cases offer new insight into the motives of thieves, the legal and ethical challenges of recovery and restitution, and the devastating historical and cultural impact of art crime. Czegledi evaluates current international treaties and conventions designed to protect cultural property and offers suggestions to address and prevent art crime − from exercising collective due diligence in buying, selling, loaning, collecting and donating art to reforming legislation and increasing criminal prosecutions. Ultimately, Crimes Against Art is a call-to-action for a collective commitment to protect and preserve cultural property, our most precious non-renewable resource.
Interestingly, Thomson West explored the use of multimedia in promoting the book:
Interview with Bonnie Czegledi on the CBC`s THE CURRENT discussing the Illicit Trafficking of Cultural Property
Listen (runs 8:22)
Matt Galloway of CBC's Metro Morning spoke with Bonnie Czegledi. Listen (runs 6:25)
CBC Radio interview with Bonnie Czegledi
We may think of art crime as no big deal but according to the Association for Research into Crimes against Art, Art crime represents the third highest grossing criminal enterprise worldwide, behind only drugs and arms trafficking. It brings in $2-6 billion per year, most of which goes to fund international organized crime syndicates. First stops for any researcher are Interpol's site and the FBI unit dedicated to art theft. The RCMP didn't have a dedicated unit until 2008, which built on the pioneering work of a single Montreal officer of the Sûreté du Québec, labeled by the tabloids as the Colombo of Art . Not surprisingly, given the wealth of cultural patrimony in Italy, the Carabinieri has devoted significant resources to the fight against art theft.
There are two excellent blogs, that of the Association for Research into Crimes against Art and Derek Fincham's the Illicit Cultural Property blog.
Databases of stolen art are maintained by the FBI, the LAPD and at the Art Loss Register. Interpol's database is blocked off from browsing, as is Scotland Yard's. There are links to national sites at Saztv, Saz's index, and minor sites listed at Museum Security.
This is an area of the law we haven't focused on before, and there is more available worldwide than I would have thought. Most libraries will carry the journal once known as Art and the Law, which has morphed its title and focus to become the Columbia Journal of Law & the Arts. It started off as a monthly publication of Volunteer Lawyers For the Arts, which had published a Newsletter which sought to "report and comment on organizational services and legal issues affecting the rights of artists and the conditions of creative and performing activity". Columbia has a clinical programme devoted to art and the law.
An informative video on art law from a conference in Miami may whet your appetite, and Herrick's newsletters on art law litigation can be found on their website. The CBC has a nice piece from a Canadian perspective here.
Finally, as Sharon Williams has pioneered, we have the international law which protects cultural property in the event of armed conflict. After a slow start, in 1999, Canada added to the Cultural Property Export and Import Act (R.S.C., 1985, c. C-51) provisions to implement the 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict, and in 2005 Canada acceded to the two Protocols to the 1954 Hague Convention. These contain obligations that seek to combat illicit export of cultural property from occupied territories. In November 2005 the Act was amended to allow Canada to implement its obligations concerning illicit traffic in cultural property under both Protocols. As a result, the Act now prohibits Canadian citizens, permanent residents, and stateless persons residing in Canada from illegally exporting cultural property from an occupied territory of a State Party. The Act also now provides for the return of such cultural property to its countries of origin. Canada would, however, benefit from a public guide to this area of the law, as good as the French government's guide available here.
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More: in Miscellaneous or Reading: Recommended or Substantive Law: Foreign Law | from Simon Chester
For those using Google's Custom Search Engine service, a recent post from Google announcing new features will be of interest. By utilizing these instructions, and making a small change to your on-page web code, you can now enable both date and relevancy sorting for your collections.
If you're using any kind of structured data or rich markup — extra classification on "site search" functionality, for example — you can also engage filtering by attribute to restrict the search results even further.
It's great to see that Google hasn't been forgotten their CSE web service. It's easy to use and very flexible. The fact that it's being improved on and moving forward… even better!
[Tip of the hat to Phil Bradley]
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More: in Technology: Internet | from Steven Matthews
A few weeks ago, I wrote about the need for firms to take a stronger look at risk management – in other words, to see risk management as much more than simply compliance with law society and other regulations. I suspect that many firms do not have a formal risk management role within the firm because they don’t believe there is much risk beyond compliance issues or that the role is not robust enough to warrant a special position within the firm.
Both of these viewpoints are incorrect, so let me bulk-up the risk manager’s role to include innovation to soothe the naysayers.
Recently I began tweeting with Stephen Allen who runs the blog Lexfuturus and is also Director of Innovation at international law firm, Berwin Leighton Paisner (BLP).
Director of Innovation at a law firm? I was intrigued.
As Stephen explained, he came from a Magic Circle pedigree before landing some business roles in Orange. He then came back to law when the UK began formally considering ABS and he assisted BLP in re-engineering its relationship with Thames Water. As a result, Thames Water has outsourced all its legal services to BLP for a single annual fee through a BLP entity called Managed Legal Services (MLS). According to the BLP website, “Working with Thames Water and other clients MLS has a proven and cost-effective solution that cuts through debates about the hourly-rate model and outsourcing. The service directly addresses budget concerns and completely aligns the client with its legal provider.”
Stephen remains at BLP looking specifically at what innovations can be put in place to make the firm more profitable and more competitive. It's a role that is distinguished from service improvement – rather, he reviews how BLP delivers services, BLP’s legal products/advice, the way BLP runs the firm itself and the opportunities to create businesses like MLS.
This makes perfect sense, since innovation drives productivity. The world is a fast and unforgiving place. If law firms do not commit to innovation, someone else will – and that innovation may come back to haunt lawyers.
Managing partners in Canada – have I sold you on the Risk Management/Director of Innovation model yet?
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More: in Practice of Law or Practice of Law: Future of Practice or Practice of Law: Practice Management or Technology | from Mitch Kowalski
The International Labour Organization (ILO), the agency of the United Nations that deals with labour issues, is seeking ratification of its eight conventions covering fundamental labour standards by 2015. The ILO Core Conventions are as follows:
- Forced Labour Convention, 1930 (No. 29)
- Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)
- Right to Organize and Collective Bargaining Convention, 1949 (No. 98)
- Equal Remuneration Convention, 1951 (No. 100)
- Abolition of Forced Labour Convention, 1957 (No. 105)
- Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
- Minimum Age Convention, 1973 (No. 138)
- Worst Forms of Child Labour Convention, 1999 (No. 182)
These fundamental labour standards conventions provide the framework within which wages and working conditions are determined in member countries that have ratified the conventions. Unless a convention is passed and ratified by its members, the ILO has no mandate to monitor its application and enforcement.
Ratification of a convention is voluntary; however, the ratification makes the convention a legal obligation. Ratifying countries commit themselves to applying the convention in national law and practice and reporting on its application at regular intervals. In addition, representation and complaint procedures can be initiated against countries for violations of a convention they have ratified.
Since 1959, Canada has ratified the ILO fundamental labour standards conventions except for No. 98 – Right to Organize and Collective Bargaining and No. 138 – Minimum Age.
Why is it important for Canada to ratify all of the ILO fundamental labour standards?
Let's take as an example the ratification of the Maritime Labour Convention. This convention provides broad rights and protections on a wide range of labour topics that affect the world's more than 1.2 million seafaring workers. The new standard consolidates and updates more than 65 international labour standards related to seafarers adopted over the last 80 years.
According to the National Union of Public and General Employees, ratification of the convention allowed Canada to inspect foreign ships arriving in Canadian ports to determine their conformity with modern labour standards that are already being applied on Canadian vessels. Canada’s ratification is especially significant as it is a major port state with key international ports on both the Atlantic and the Pacific Oceans.
Each of the fundamental labour conventions offers its own benefits, but together they offer one of the best: bragging rights, also known as sending a strong message to citizens and other nations that you respect workers' rights. Ratifying the conventions—and enforcing them—also "enables the persons concerned to claim freely and on the basis of equality of opportunity, their fair share of the wealth which they have helped to generate, and to achieve fully their human potential," according to the ILO. That's something to feel pretty good about.
Indeed, it is difficult to believe that a liberal democracy like Canada, whose citizens' already benefit from minimum age protection and the rights to organize and bargain collectively, has not ratified all of the conventions. However, the Convention on the Right to Organize and Collective Bargaining currently stands as the least-ratified of the fundamental labour conventions, so Canada is hardly alone. Perhaps, with the encouragement of the ILO, we will change that by 2015.
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More: in Substantive Law or Substantive Law: Foreign Law or Substantive Law: Legislation | from Yosie Saint-Cyr
Law books tend to lack pictures. As do legal memos, factums . . . and judgments. Though a picture is said to sub for a thousand words, it's not traditional for legal workers to speed things along that way. And neither is it easy, or possible, perhaps, to come up with images that capture the sort of conceptual thinking that law involves. Yet every now and then the image tells the tale, or, at least, an important part of the story, finding its way into judgments.
Some time ago we featured one such judgment, that by U.S. Justice Posner, whose aim was censure and mockery. I recently learned of another opinion using an image, this time simply to make certain facts and terms clear.
In Moreira et al v. Ontario Lottery and Gaming Corp. et al 2012 ONSC 2304 three gamblers sued an Ontario casino because of what they saw as a problem with the way the roulette wheel was operated. Justice Belobaba found it useful to include an annotated photograph of such a wheel as an appendix to the judgment, which, if nothing else, adds a bit of, well, colour to the matter.
 Click on image to enlarge (Not that it wasn't colourful enough without that: the three plaintiffs had spent more than two million dollars playing roulette "betting an average of $1000 per spin." This in a game about which the "Wizard of Odds" says:
If you are looking for a easy to understand and slow paced table game, and are willing to sacrifice on the house edge [5.26%], then you may like roulette. If you want something more stimulating or with a decent return I would suggest looking at other games.)
The house won again, as it happens.
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More: in Miscellaneous or Substantive Law: Judicial Decisions | from Simon Fodden
In the Supreme Court of the United States decision of Kansas v. Marsh Justice Antonin Scalia stated,
It should be noted at the outset that the dissent does not discuss a single case-not one-in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby.
The court was considering the constitutionality of the death penalty in the Kansas, where the statute specifically provided for this punishment where the mitigating and aggravating factors during the sentencing of a murder were of equal weight. The Kansas Supreme Court had found this to be a form of cruel and unusual punishment. After dismissing what Justice Souter described in his dissent as the "risks inherent in capital punishment," the SCOTUS ultimately overturned the Kansas Court's decision and upheld the death penalty.
In the aftermath of the Michael Rafferty trial there is enormous anger and outrage. Even Mr. Justice Thomas A. Heeney concluded his comments at the sentencing this past Tuesday saying,
Only a monster could commit an act of such pure evil. You, sir, are a monster.
The strong swell of emotions has given rise to some calls for restoring the death penalty in Canada. If not for Rafferty, then for people like Paul Bernardo, where there are clear videos that appear to dismiss any doubts about their guilt.
The death penalty was abolished on July 14, 1976 in a close vote of 130 to 124, with certain exceptions retained under the National Defence Act retained which were later removed in 1998. Yet a 2012 Angus Reid public opinion poll indicated that 61% of Canadians supported reinstating the death penalty for murder in Canada, and Prime Minister Harper himself indicated he supported the death penalty in 2011.
The problem with perception that it rarely operates in certainties. And as compelling as a video may appear to be, mistakes can happen in identification. A recent study out of Columbia Law School has just demonstrated that not only can mistakes happen with the death penalty, but that they do.
Sorry, Antonin.
On December 8, 1989, the State of Texas executed Carolos DeLuna for the murder of Wanda Lopez. He consistently professed his innocence, as many on death row do, but also had the name of the man he believed actually committed the crime – Carlos Hernandez. Spanish culture has a word for people who share the first name, tocayos, and the two were referred to as such in their community in Corpus Christi, Texas.
But the two men shared more than just a given name. They were the same height and weight, and were often mistaken as twins. DeLuna was convicted based on the eyewitness testimony of Kevan Baker, who had seen the assault at a gas station which turned into the murder. The problem was that both Hernandez and DeLuna happened to be in the same location, and Baker acknowledged he had trouble distinguishing Hispanic people.
DeLuna was the one that police apprehended. Prosecutors refused to believe that Hernadez even existed, and suggested that DeLuna had simply made him up, even though Hernandez had an extensive criminal record. Forensics were never conducted.
Professor James Liebman recruited a dozen law students four years after the execution, and revealed a mountain of information which seems to demonstrate that DeLuna was innocent as claimed. The Columbia Human Rights Law Review (HRLR) has devoted the entire Issue 3 of Volume 43 of the journal to their findings, which are also detailed on a website, Los Tocayos Carlos.
Liebman details just some of the many things that went wrong with the trial:
There is bad eyewitness identification; an incomplete and imperfect [police] investigation – they spent two hours at the scene that night [and never returned during the day], and they missed all kinds of things or didn’t bring them up at the trial,” including bloody footprints inside the store. There was also ineffective lawyering by court-appointed counsel, possible prosecutorial misconduct – including the suppression of police audio of the manhunt for the killer that suggests the bulk of the 40-minute chase was spent pursuing a man fitting Hernandez’s description, and not De Luna’s – capped off with “not very thorough” post-conviction appeals.
The medieval rabbinical commentator Maimonides stated in Sefer Maitzvot,
It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.
[translated]
That single innocent may have been located. If there's a rooftop in Canada where the lobby for capital punishment can be rebuffed you can expect they'll now be shouting the name of "Carlos DeLuna" at every turn.
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More: in Substantive Law: Foreign Law or Substantive Law: Judicial Decisions | from Omar Ha-Redeye
Toronto will be the first court in Canada which will have a formal policy for the kirpan, a ceremonial dagger worn by observant Sikhs. Other courts in Canada may allow the kirpan, including the Supreme Court of Canada, but do not yet have formal procedures in place.
The arrangement came about through cooperation between The World Sikh Organization of Canada, the Ontario Human Rights Commission, Toronto Police, the Toronto Police Services Board and the Ministry of the Attorney General.
Curtis Rush of the Toronto Star explains,
The policy was developed as a settlement of two separate human rights cases.
The first one involved a Sikh who was to attend a mandatory class trip to the victim/witness assistance program at the Old City Hall courthouse. That student was denied entry because she would not remove her kirpan.
The second instance involved a Sikh man who was summoned for jury duty at the University Ave. courthouse and was allowed to enter with his kirpan in the morning, but denied re-entry after the lunch break.
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More: in Practice of Law: Future of Practice | from Omar Ha-Redeye
Those following the US antitrust litigation against Apple and five of the big publishers in respect of ebook pricing by now will have seen Judge Cote's decision to deny the defendants' motion to dismiss the class action suit by consumers. The Opinion & Order, In Re Electronic Books Antitrust Litigation 11 MD 2293 (DLC) makes for quite interesting reading. I read a PDF of the Opinion last night, and the Opinion's also been uploaded to Scribd.
It's been a long while since I've read one of these, but it's evident from the Opinion that Judge Cote had no difficulty allowing the consumers' antitrust complaint to proceed. At all.
Analysis and review of the ruling abounds this morning. Financial Post via Bloomberg, Thomson Reuters News & Insight give good, non-technical overviews, and good legal commentary, including a blog post from a lawyer-author. (A hat tip to Robert Richards for the latter.)
Now, what will happen in the Quebec litigation?
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More: in Case Comment or Legal Information: Publishing or Substantive Law: Judicial Decisions | from Kim Nayyer
Big data is a hot trending tech issue. Wikipedia defines big data as "a term applied to data sets whose size is beyond the ability of commonly used software tools to capture, manage, and process the data within a tolerable elapsed time. Big data sizes are a constantly moving target currently ranging from a few dozen terabytes to many petabytes of data in a single data set."
The initial issue with big data is the ability to actually work with massive data sets – how to store, search, and manipulate it. But the tools to do that are becoming more sophisticated, and attention is turning to how to take advantage of big data. This McKinsey report entitled Big data: The next frontier for innovation, competition, and productivity is a good summary of the possibilities. There is potential for increased profit margins for retailers, reduced costs for healthcare, product improvements and more.
This all sounds good. Consider for a moment though that big data means massive databases that include huge amounts of customer information. And the information that governments have on us is massive as well. It will be tempting to amass as much data (including personal information) as possible, as the more data is there, the more information that can be learned from it. That flies in the face of privacy principles that say one should only collect the smallest amount of personal information you need for the immediate purpose, and should not keep it for longer than you need it for that purpose.
It is possible to anonymize personal information to avoid the issue, but that is done on a sliding scale – a little anonymization makes it easy to recombine it with other information and figure out who the individuals are – a lot of anonymization makes the data less valuable.
Big data uses that determine generic things like trends and product features are one thing – but it can also be used for targeting individuals for things like advertising and medical treatment. Individuals may welcome or be horrified by that, depending on the use and personal viewpoints.
Another concern is the creeping (and creepy) trend towards industry and government big brother type uses.
It has been pointed out that big data needs to be complemented by "big judgment" . As this Harvard Business Review article entitled Good Data Won't Guarantee Good Decisions points out, "At this very moment, there’s an odds-on chance that someone in your organization is making a poor decision on the basis of information that was enormously expensive to collect." That sentiment may very well apply to poor decisions on the privacy aspects of big data as well.
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More: in Substantive Law or Technology | from David Canton
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This is a listing of a few upcoming events in Canada of interest to lawyers, law students, legal librarians, and others involved in the practice of law.
Clicking on any event in the list below will give you access to more information and to links allowing you to see the full entry and to add the event to your own calendar.
Click this link for a fuller version of the TalkLaw/ParLoi calendar of events and for instructions as to how to add events and calendars to your own calendar.
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May 16, 2012
Kim Nayyer
(US) Ebook Pricing Antitrust Suit (Definitely) Not Dismissed
Those following the US antitrust litigation against Apple and five of the big publishers in respect of ebook pricing by now will have seen Judge Cote's decision to deny the defendants' motion to dismiss the class action suit by consumers. The Opinion & Order, In Re Electronic Books Antitrust Litigation 11 MD 2293 (DLC) makes for quite interesting reading. I read a PDF of the Opinion last night, and the Opinion's also been uploaded to Scribd.
It's been a long while since I've read one of these, but it's evident from the Opinion that Judge Cote had no difficulty allowing the consumers' antitrust complaint to proceed. At all.
Analysis and review of the ruling abounds this morning. Financial Post via Bloomberg, Thomson Reuters News & Insight give good, non-technical overviews, and good legal commentary, including a blog post from a lawyer-author. (A hat tip to Robert Richards for the latter.)
Now, what will happen in the Quebec litigation?
[click on the author's name for more information]
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More: in Case Comment or Legal Information: Publishing or Substantive Law: Judicial Decisions | from Kim Nayyer