Category Archives: Law

Kulture Wars go to Court


America is reaping what it has sowed.  People are up in arms about the current Supreme Court overruling the landmark precedent case of Roe V. Wade.  So am I. But, the Supreme Court can do that. Since the previous decision was a Supreme Court decision only the Supreme Court can overrule it. But it can do that and has often overruled previous cases  in the past. This is what the legal doctrine of Stare decisis is all about. That doctrine obligates lower courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts are approached in the same way. Simply put, it binds courts to follow legal precedents set by previous decisions. The prior decision which is called a precedent is binding on lower courts only. However, it does not bind the Supreme Court.


The Supreme Court in Canada and the United States can always overturn a previous decision and when you think about it that is absolutely necessary.  Otherwise the court would be locked  forever when it made a decision. For example, those who now disagree with the decision the court made in the recent Dobbs case where Roe v. Wade was overturned  would have to accept the result forever. That would be highly unacceptable. The fact is sometimes courts make bad decisions that should be reversed.


That does not mean I agree with the recent decision of the US court. In fact, I think it shows what happens when for decades Supreme Court decisions and appointments to the court are determined by politics and ideology and not good reasoning. That has happened to an alarming extent in the US for decades. I hope Canada does not follow suit. And let me be clear, both parties have been guilty of this  egregious offence.  The parties have been trying to turn the court into what John Hanna of the Associated Press called “culture warriors.” That is exactly what these people have been doing.


The most recent example was the farcical confirmation hearings for Joe Biden’s nominee Ketanji Brown Jackson. Ms. Jackson had 3 important characteristics that drove the Republicans crazy:  She was black, a woman, and smart. As a result the conservative Senators dipped into their arsenal of stupid. Senator Cruz and other Republicans came out and insinuated that she was soft on crime and suborning pedophilia. The insinuations were nasty, brutish, and stupid but that did not build caution in her attackers. It was obvious that her Senate foes cared nothing about the truth or her obvious qualifications but cared only about showing off to the Republican base how they would defend “traditional values” like attack dogs.  As Amy Davidson Sorkin said in The New Yorker, “At one point, Republican Senator Ted Cruz suggested that supporting Jackson was comparable to calling for the police to be abolished.” Republican Senator Tom Cotton  said “Judge Jackson has also shown a real interest in helping terrorists.” Cruz was joined by Josh Hawley  in suggesting that she was part of a liberal conspiracy ring supporting a child-trafficking ring.  Representative Marjorie Taylor Greene said the 3 G.O.P. Senators who vote for her were “pro-pedophile.” Senator Marsha asked Jackson to define “woman.” When she did not provide a definition, Cruz asked her how she could expect to  rule on cases involving gender if she did not know what a woman was. Jackson instead said that the woman she admired most in the world, her mother,  who was at the hearing, is a woman. Clearly, she did not need Cruz to help her understand what a woman was.

 When criticisms become so untethered  from reality, it is obvious that the purpose of the charges has nothing to do with an assessment of the candidates and everything to do with scoring points in the Kulture Wars.


This has been going on in the US for decades. As a result, America has the Supreme Court it deserves deserves. Our Canadian system is far from perfect, but at least we haven’t gone there.


Law is weak when a Crime Boss is elected President


When Donald Trump was running for the presidency in the 2016 campaign he came up with a very catchy slogan. He is good at that. He said he would “drain the swamp.” One of the handy things about this slogan was that it could mean different things to different people. The image was graphic. People loved it. Heck, I loved it.

But what actually did it mean? He never did define it. That was smart because people could fill it in as they saw fit. Some of his supporters thought it meant that he would get rid of the Wall Street barons s that ate the lunches of the poor suckers from the working classes in the financial crisis of 2008, when they managed to get the alligator’s share of the federal goodies thrown into the swamp by the government. People lost their houses, while executives from Wall Street got their debts paid because they were too big too fail. It was another case of socialism for the rich and rugged individualism for the suckers. Then Trump, after getting elected, appointed many of the creatures from the Swamp to his cabinet. Obviously that was not what he meant by draining the swamp, he was he was feeding the swamp critters.

Some Trump supporters thought draining the swamp meant that Trump would get rid of the Deep State. Instead Trump tried to turn the government officials into his own private mobsters. He expected them to do his bidding and if they didn’t, like Christopher Wray at the FBI, Trump just fired them. Again he was draining the swamp by tossing out the good guys who were courageously doing their job

Whatever it means to drain the swamp surely it surely means to get rid of the corruption. This was one of Trump’s main promises together with building the big beautiful wall.

In law corruption in politics means essentially a politician using the political office to advance his own personal interests over that of the public he or she is supposed to serve. Sadly, that is precisely what Trump did. That is not surprising except perhaps to his devoted supporters who actually believed him. Fortunately, for Trump these supporters were so devoted to him there is nothing he could do to lose that support. As he himself said, he could kill someone in Times Square and he would not lose support. Similarly, he could be the most corrupt president in recent history and he would not lose support. He had a license to kill and a license to corrupt.

The New York Times editorial board understood this well. They pointed out that Trump was the chief law enforcement officer in the country but the meaning of this all depended on what “law” actually meant. As the board said, about Trump:

“The law is something that applies to his adversaries, not to himself or his friends. He regularly turned to the courts to harass and intimidate employees, critics and contractors. But when it has come to his own perceived advantage — whether he was violating federal fair-housing laws to keep black renters out of his apartment buildings, playing shady games with his tax returns, sexually assaulting women, defrauding students of his “university,” raiding his own charity, buying silence of alleged mistresses on the eve of an election, running his global business empire out of the White House, or thwarting the will of Congress by using foreign aid to advance his re-election — Mr. Trump has always seen the law as just another set of rules to be bent, if not broken.”

In other words, for Trump, the law was his instrument of corruption! It was no check on him, it was his to use as he pleased. He really came to understand this after he escaped impeachment. After that he realized that the law could not stop him. The Senate and House of Representatives could not stop him. They would help him. The vaunted American checks and balances were helpless beside his authority. After all he was the chief law enforcement officer of the country and he was ready for the job.

The law is a mighty weak instrument when the people elect a crime boss to lead it.


Dark Water: Real Monsters



Dark Water is a really good film. It is a monster/horror film, but not but not the kind you might expect. This is a real life horror show with real life monsters,.

The opening scene is dramatic, spooky and menacing. The scene is idyllic at the outset, like so many scenes in so many horror films. In 1975 a group of cavorting teenagers trespass onto property for a classic midnight swim. It’s obviously loads of fun. I have done exactly that type of thing. But just as in any self-respecting horror film you know from the menacing music that something is wrong. Danger lurks and teenagers dressed only in skimpy swimsuits are defenceless before the danger. There must be a monster lurking in that dark water. And there is. But it is not the typical horror film. It is much worse than that.

The water is oily—slimy. This can’t be good. Suddenly the strong deep male voice of authority rousts them up. The kids are forced to leave. And they do. After they leave a small boat softly glides across the pond spraying something over the slick and shiny surface of the water. The boat is marked “containment.”

In time we learn the monster is not supernatural. It is real. It is indeed profoundly menacing and dangerous. It is a chemical monster the result of corporate malfeasance of a high order.

The film was based on an article in the New York Times Magazine by Nathaniel Rich in 2016 titled, The Lawyer who Became DuPont’s Worst Nightmare.” That lawyer was Rob Bilott (Mark Ruffalo). He was a lawyer that typically acted for chemical corporations. He was an environmental lawyer—for the wrong side!

Bilott was persuaded to go to the other side by a friend of the family, a West Virginia dairy farmer Wilbur Tennant (Bill Camp), who was profoundly angered by what happened to his cows. His cows were strangely dying in horrible ways on land he farmed. He was suspicious. Something was wrong. It was a mystery and Bilott was intrigued. Like a relentless detective  on the trail of truth. And the truth is ugly and leads to an astonishingly long drawn out legal battle against a corporate giant and weak government regulators.

Tennant was unable to get help from anyone before Bilott. No veterinary or lawyer would talk to him. DuPont owned the town and the town was grateful for the ownership. People did not want to rock the boat. It got good paying jobs and security. But did it get something else too? Something less benign?

The corporate giant at the heart of the case, DuPont, never admitted liability or wrongdoing, but it did pay hundreds of millions of dollars for harm caused to animals, property, and people as a result of their chemicals ending up in a local stream and drinking water. The chemical central to the case is called PFOA short for perfluorooctanoic acid. It is a chemical that was entirely unregulated.

In the lawsuit Bilott asked for and got an order requiring DuPont to provide all relevant documents to Bilott. But he got more than he bargained for—110,00 pages of documents! He was literally swamped with paper. It took him months to just sift through the papers. Information in those papers did not come out easily.

It took 16 years for the case to wind through the courts, but of course all the resulting lawsuits have not been completed. Far from it in fact. Many of the parties involved died before judgment of the court was delivered, including Wilbur Tennant.

Yet with enormous—no heroic—work Bilott found a story. Sometimes, I am proud to say, lawyers are heroes. This was one of those times. According to Rich’s articles this was the story:

‘‘I started seeing a story,’’ Bilott said. ‘‘I may have been the first one to actually go through them all. It became apparent what was going on: They had known for a long time that this stuff was bad.’’

DuPont used TFOA in its wonder product Teflon. According to Rich, it was the source of about $1 billion in annual profits for DuPont. Worth defending with vigour. And that is what DuPont with the aid of their team of expensive lawyers did. They defended in the American style—with overwhelming force as the Powell doctrine demands.

PFOA, although unregulated at the time had some very interesting properties. According to Rich,

“PFOA’s peculiar chemical structure made it uncannily resistant to degradation. It also bound to plasma proteins in the blood, circulating through each organ in the body.”

 For decades DuPont had been dumping it into their own landfill near Tennant’s property and that in turn drained into a local creek. As Rich explained:

 “By 1990, DuPont had dumped 7,100 tons of PFOA sludge into Dry Run Landfill. DuPont’s scientists understood that the landfill drained into the Tennants’ remaining property, and they tested the water in Dry Run Creek. It contained an extraordinarily high concentration of PFOA.”

The court ordered an independent scientific analysis of Tennant’s claims that the harm was caused by DuPont’s chemicals and that report blamed poor animal husbandry on the part of Tennant instead of the chemicals. But DuPont had not been entirely forthcoming in disclosing information for the scientific panel to make its determination. The fight should have been over here. But Bilott was as relentless as a bulldog with its teeth in a human leg.

Bilott kept digging and as he kept digging he kept finding interesting stuff. Watch the movie or read the article to find the details and they are fascinating. Well worth the read or view. And he discovered a lot of people that were harmed. Horrendous birth defects and worse. An interesting little scene showed an adult person with horrible birth defects who had been shown in a photograph as a young baby in the film. The actual adult man, played himself as a happy-go-lucky gas jockey.

Here is Bilott’s side of the story according to Rich:

‘‘I was irritated,’’ he says.

DuPont was nothing like the corporations he had represented at Taft in the Superfund cases. ‘‘This was a completely different scenario. DuPont had for decades been actively trying to conceal their actions. They knew this stuff was harmful, and they put it in the water anyway. These were bad facts.’’ He had seen what the PFOA-tainted drinking water had done to cattle. What was it doing to the tens of thousands of people in the areas around Parkersburg who drank it daily from their taps? What did the insides of their heads look like? Were their internal organs green?

Tennant’s suit was eventually finalized after 16 years, but this film actually raises a much bigger question. Or even two. I will talk about that in my next blog.

Delgamuukw v. British Columbia


Since the Constitution Act of Canada was enacted in 1982 a number of important cases have gone all the way to the Supreme Court on the issue of Indigenous land claims and rights. Some of those cases bear heavily on the issues that Wet’suwet’en First Nation faces today.

Interestingly, one of those cases was Delgamuukw v. British Columbia which also included the Wet’suwet’en and their neighbours the Gitxsan or Gitksan. I have already commented on the Gitksan people earlier in this blog. See

In fact as I mentioned in that earlier post it was seeing them at  the Gitksan village in BC many years ago that first got me interested in Indigenous issues. Today, the Gitksan are also supporting their neighbours the Wet’suwet’en. It really is a small world.

In the case of Delgamuukw v. British Columbia the Supreme Court recognized traditional governance forms of First Nations including the hereditary chief and clan system on traditional territories. That has become an important issue in the current Wet’suwet’en melee because of the disagreement between 5 of the Chiefs and Councils who have signed Benefits Agreements with the CoastalGasLink and the Hereditary Chiefs who are opposed to their pipeline. The Hereditary Chiefs are arguing in this current case that the Elected Band Councils and their Chiefs are more like municipal councils with jurisdiction only over reserve lands. The Court noted this in the injunction case but did not say whether or not it agreed with this assertion. Whether that claim is right or not is one of the many uncertainties in the current case.

In Delgamuukw v. British Columbia the Supreme Court upset the law as it was until that time. The trial judge had rejected the claim by the Wet’suwet’en and Gitksan that they had an aboriginal right  over traditional  lands in northern B.C. that had never been ceded to the Crown because it could not provide satisfactory evidence to support their claims. The Supreme Court overturned that decision, pointing out that the court should have paid more attention to the oral tradition of the Wet’suwet’en and Gitksan people. In order to do that the Supreme Court acknowledged that the ordinary laws of evidence must be adapted to place oral history on an equal footing with other types of evidence, instead of being classed as hearsay as courts had previously done. This made a huge difference in cases of Indigenous rights because invariably they depended on oral history.

In the Delgamuukw case the court also said, in accordance with the Royal Proclamation of 1763, that aboriginal title to land can only be surrendered to the Crown. Added to that, such land is communally held, not privately as other land. This is also a controversial issue I will comment on later in this blog. To prove that it has Aboriginal title a First Nation must prove by oral history, or otherwise, that the land was exclusively occupied prior to sovereignty.

This case considered the nature of Aboriginal title.  Aboriginal title is a right in land that allows a group to use the land in almost any way deemed fit.  The use need not be an Aboriginal right per se(e.g. the right to hunt).  Title land can be used in many ways, but not in a way that is irreconcilable with the original connection with the land (e.g. cannot strip mine a land that was used as a hunting ground).  Aboriginal title can only be surrendered to the Crown.  In other words, only the federal government can extinguish aboriginal title, not provinces. in the current case the Wet’suwet’en assert that they were never conquered and never ceded their rights in the land to the Crown and that therefore they own it.

What does “Rule of Law” mean in an indigenous context?

The late Mohawk scholar, Patricia Monture-Angus made an important and relevant statement when she said:

“Think about everything that First Nations people have survived in this country: the taking of our land, the taking of our children, residential schools, the current criminal justice system, How was all of this delivered? The answer is simple: through the law.”

The reason for this is that Canadian law often–too often–has been strongly Eurocentric. In other words, it has perceived claims of whites as naturally right and indigenous as naturally wrong-headed or ill-advised. Such law is clearly not just law. That is the reason that so many Indigenous people are suspicious of Canadian law. Frequently in the past Canadian law has been used as an instrument of domination over Indigenous people. The Indian Act is one example, Residential schools another. If you belonged to a group that had been repeatedly subjected to such domination you would likely be suspicious too. As a result when many Indigenous People hear that the Prime Minster expects them to respect the rule of law, it is understandable that they would not consider such an admonition in the same spirit as the rest of us might.

The Supreme Court of Canada has recognized, as many Canadians have not, that Canada was never terra nullius (“nobody’s land”) before European colonization.  Yet often this fact is ignored, particularly in dealing with things like unceded land. Unceded land is land that Indigenous people have not conceded belongs to Canada. They have never given up their claims to it. Significant portions of land have been ceded to Canada by treaties or other agreements. Significant portions of land the Wet’suwet’en First Nation has claimed as its traditional territory is unceded. Some of its land was in fact ceded to Canada. As a result 6 Indian Reserves, as they are called in the Indian Act, have been ceded to Canada.

Since the federal government and the Wet’suwet’en  First Nation have not come to agreement about their land claims, it is an unresolved land claim. It may or not be held to be valid. It is unresolved land claims that pose great problems for resource development in Canada. Unfortunately, those claims can take decades (or even centuries!) to be resolved. Often it seems to me there is no great pressure exerted on the federal government to conclude agreements with First Nations until a potential development, such as a pipeline, logging  enterprise or golf course, is proposed that would impact their land claim. Then it becomes urgent. I really wish people like farmers, pipeline workers, retired lawyers, and others pressed the government to resolve these claims rather than wait for the next crisis. Pressures of urgent developments are never helpful. It would be much better if such agreements were negotiated in advance of development with good faith and diligence. Then it could be done quietly, thoughtfully, without undue pressure.

in this case the pipeline company Coastal GasLink Pipeline Ltd obtained an injunction against the Wet’suwet’en people not to interfere with the construction of their  pipeline and they claim that injunction has not been followed. An injunction is a court order requiring someone, such as Wet’suwet’en First Nation  to do something or, more often, refrain from doing something. A recent study from the Yellowhead Institute at Ryerson University found that when Canadian courts issue injunctions they do so overwhelmingly in favor of corporations against Indigenous claims.  76% of injunction applications filed by corporations were granted while more than 80% of injunction applications applied for by First Nations were refused. Why is that? This pattern is perpetuated with the repeated issuance of injunctions – enforced with violence and threat of lethal force by the RCMP – against the Wet’suwet’en working against the Coastal GasLink project, authorized without the consent of the hereditary chiefs vested with jurisdiction over the decision. We have to be careful with such stats. By themselves they prove nothing. But they are interesting, and they impact what First Nations think about the Canadian judicial system.

As a result it is perhaps not so surprising that Wet’suwet’en people don’t have quite the reverence for judicial injunctions orders that other Canadians have. That doesn’t necessarily make it right, but it does make it understanding.

Rule of Law


The expression “rule of law” has been used many times in this dispute between some Wet’suwet’en people (not all) and the developers of the pipeline and the British Columbia government and the Canadian government and various other interested parties. All sides throw this expression at each other like weapons.

I am a recovering lawyer, so all my life, I have thought it is important to respect law. I still do. A country in which laws are not respected is a country headed towards anarchy. That is what many of us object to about the current President of the United States, Donald Trump. He thinks his country is a place where the laws apply to everyone but himself. His lawyer, Alan Dershowitz, argued in the recent Senate impeachment trial, that anything the President did was permitted by law. He seemed to say, the President by definition could not break the law. But most importantly, there in the United States and here in Canada is what to the people think? Do they respect the rule of law?  I really believe America is demonstrating conspicuously that Americans do not respect the rule of law. Few of his millions of supporters object. As long as it helps Trump win is all that counts. I don’t want Canada to be like that.

To most of us that was an anathema. That is not what law is. Law applies to everyone, even the rulers. The President is not a king.  Therefore the President must obey the law just like the rest of us. This is a fundamental concept to a society that wants to avoid anarchy. Does the same not apply to Wet’suwet’en people and their allies? Does the same apply to Prime Minister Trudeau and Premier John Horgan? I hope so. The same goes for the Canadians who have been roundly criticizing the Wet’suwet’en people and the damage their blockades of trains have been harming the Canadian economy.


But what is the law? That is not as quite as simple as it might seem. Clearly, the law includes the Constitution Act and Canadian Charter of Rights and Freedoms of 1982. It also includes the British North America Act that created the country of Canada in 1967. In fact it includes all laws passed by the Parliament of Canada within its jurisdiction as provided for in the British North America Act. It includes laws of the province of British Columbia pursuant to which permits can be issued to permit the construction of various projects such as pipeoines. It includes the laws of British Columbia that create a court of law and governs the decisions that are made by courts. Then of course there is common law. That is law created by judges interpreting the law. The laws of Canada also include those laws that were adopted by the British Parliament before 1987 but only to the extent that valid Canadian laws have not been enacted to contradict such laws. One of those laws is the Royal Proclamation of 1763. I will be commenting on it because it is relevant. This may surprise some of you, but in recent years there has been a growing recognition among Canadian courts and Canadian people that the law of Canada also includes aboriginal law. When Europeans came to Canada the people that occupied this country had laws too. Those laws are also important. They must also be respected. All of these laws are part of our “rule of law.”

Sometimes laws overlap. Sometimes laws contradict each other. Sometimes purported laws are outside their jurisdiction and hence invalid and not legally binding. Then courts have to determine what is really the law of Canada in the circumstances of any case.

With such a mosaic of laws it is not always easy to determine what is the law. That’s why lawyers are important. I had to say that.

In the Wet’suwet’en matter many laws have become important. It is not necessarily so easy to say what is the law and how should it be enforced.

A friend of mine recently asked me if there were any people who had never been displaced. I had no answer to that question. Frankly I don’t know. I know that strife has been common since time immemorial. Strong people have ousted weaker people. That might be true but what is the significance of that? Is that what law is? The strong can do what they want? Too bad so sad? I know that is a common American attitude. They are not as squeamish as the rest of us.  Many of them think they conquered Indian people, as they call indigenous people, so might is right and that is all there is too it. Canada of course has not conquered the First Nations of Canada. The Wet’suwet’en, for example, were not conquered.

Canada has always prided itself on being a country of law. Really that goes back to at least 1763 when the British monarch proclaimed the Royal Proclamation. Canada and its predecessors always wanted a solid legal foundation for the country.  The Canadian government always recognized that without a solid legal foundation, Canadian society would be built on a shaky foundation. I think that was, and is a good idea. Because Canadians wanted a society based on the rule of law they realized they would have to negotiated with the Indigenous people of Canada to share occupancy of this wonderful country. The could not just impose the laws of the recent arrivals. That has made things very interesting in Canada, but I am proud of our country for taking that approach.

Sometimes the Law is not an Ass—it is much worse than that

Recently Manitoba has been the location of an incident that I should catch international attention for its idiocy.  If it hasn’t  happened yet, I suspect it will. The international media just hasn’t caught on to how stupid we can be.

The incident happened at our esteemed Law Courts in Winnipeg. A Winnipeg lawyer represented an  indigenous person from Ontario who had been arrested and placed in the Winnipeg Remand Centre as a result of breaching a court order that he abstain from alcohol. He had to pay a $20 cash deposit on his bail, which had been granted by the court, in order to get released from the Remand Centre.  He had agreed to the $20 payment thinking that was how much money he had. Unfortunately, the mantas 5¢ short. Since he was from Ontario and had only intermittent access to a phone, he cold not call anyone for help and spent the weekend in jail because he was unable to pay the full amount. No one would let him even though he only owed 5¢.

On Monday morning his lawyer discovered what had happened and returned to court to pay the outstanding amount. In fact, a sympathetic, and reasonable Magistrate, gave his defence lawyer a nickel to pay the outstanding amount. The lawyer got a receipt for the $20. The lawyer thought that this was the end of it. The entire cash required had been paid. Unfortunately, the lawyer did not understand the astounding ignorance of the law.

The following morning the defence lawyer learned that there had been a mistake. It turned out that his client had been 35¢ short. Much more than 5¢! So the hapless client had to stay in jail for the entire night because he could not pay the extra 30¢. So the client was transferred to Milner Ridge Correctional Facility, about 100 km away, because the space in the Remand Centre was needed for incoming prisoners. The defence lawyer had asked that his client remain until the bail was paid., but his request went unheeded—perhaps because the client was indigenous. Its  funny (not) how such incidents happen to them, rather than fine white people. As well the client had no one in the city that he could call for a tiny bit of cash to rectify the mistake.

When the client reached Milner Ridge the lawyer thought he would be released. Unfortunately, Milner Ridge had no facility to electronically access the client’s cash deposit which had been paid in Winnipeg. It was paid but he still could not get out of jail! After all his bail had been paid, so he thought. When the lawyer learned of this he returned to the courthouse and paid the client’s cash deposit himself. The client was returned to Winnipeg and was  released from jail a full week after he had been taken into custody. He stayed in jail for a week because the authorities thought he had not paid the outstanding 35¢ that actually had been paid.

While he was in jail he missed taking his prescription medication, which he needed because of a prior condition related to his addiction to OcyContin and his heart was alternately racing or slowing down. He was in serious jeopardy.

The Winnipeg Free Press reported, “According to Statistics Canada figures for 2016-2017 the average cost to house a prisoner in a provincial institution was $213 a day.” So taxpayers paid more than $1,400 to house this indigenous prisoner  even though he had paid all of his bail after being 35¢ short initially.

The Crown later stayed the charges. This means that the client was an innocent man! Innocent until proven guilty remember.

Charles Dickens said that the law was an ass.  Sometimes, Charles Dickens should have said it was much worse than that.

The Court of Public Opinion


The court of public opinion does not require proof beyond a reasonable doubt. The court of public opinion makes its own evidentiary rules. In the court of public opinion we can consider hearsay, we can hear opinion evidence given by non-experts, we can accept leading questions, and can violate all kinds of other valuable rules of evidence. But all of us sitting in judgement in the court of public opinion should learn from the courts of law. They have some good ideas.

In the court of public opinion we should remember to listen to both sides. We should exclude dubious evidence. We should reject specious arguments. We should make our decisions based on the best evidence we can muster. We should not rely on second hand stories. We should be on guard against bias. We should keep an open mind. We should not base opinions on junk science. We should cross-examine those who testify to us (if we can). We should employ reason in weighing the evidence, rather than faith, emotion, feelings, or instincts. We should not guess or leap to conclusions. We should be diligent. We should do all these things (and more) if we are actually trying to discern the truth. We should try our best to be ideal observers.

Of course if we just want to mouth off none of this is necessary.

Abuse of Power

In my last post I talked about Michael Jackson. I suggested that we did not have enough evidence to convict him. Besides, he was charged and acquitted by a jury that heard all the evidence, all the arguments, and all the irrelevant evidence was excluded. We are not in that position and must remember that.

That does not mean we can’t have our opinions. In a court of law the prosecution has a high standard of proof that it must meet before the judge or jury as the case may be, is entitled to find Jackson guilty. Jackson is entitled to be acquitted unless the evidence proves beyond a reasonable doubt that he was guilty. That is a very high standard. That same standard is not applied in all circumstances. It is much a higher than the standard of proof in a civil case.

That is why even though O.J. Simpson was found not guilty of murder, he was nonetheless successfully sued by his widow’s family for damages for her death in a civil trial. In a civil trial the plaintiff (the one suing) only needs to prove the case against the defendant (such as O.J.) on a balance of probabilities. In other words the plaintiff only has to prove that it was probable or likely that O.J. killed his wife. If it is proved that it was likely that O.J. killed his wife he can be held liable for the damages he caused in a civil suit, even though he was found not guilty on a criminal charge.

I will give you an example. If a son acquires property from his elderly parent without paying fair market value for that property and it is established that the parent was under the influence of the son and subsequently a daughter of the parent alleges that the son used undue influence to get that property without paying for it, the son is required to prove that he did not use undue influence. The son must prove that the parent exercised his or her own free will to make the gift and unless the son can prove that, the son will be required to disgorge the gift. The daughter is not required to prove that the son (her brother) used undue influence over their parent, the son must prove that he did not use undue influence. The onus of proof is on the one who gained the advantage while he was in a position of power over the vulnerable giver. This is as it should be.

This can apply the same way to others who are in a position of power over a vulnerable person. This could include the doctor of the parent, or lawyer, or accountant, or parent, or minister, or employer, or anyone else in a position of superior power over the person who made the ‘gift.’. The law presumes that undue influence was used until the person who benefitted rebuts the presumption and proves otherwise by satisfactory evidence.

This is good law. We can all learn from it. I think it can help us to understand what we might want to think about the Jackson case. Even though we acknowledge that there was insufficient evidence to prove he was guilty beyond a reasonable doubt. That high standard only applies in a criminal trial.

In a civil case sometimes the same principle is applied and might apply to someone like Michael Jackson. If he was in a position of power over a vulnerable person by reason of his wealth, fame, and power he should be forced to prove he did not misuse that power. The onus of proof should be on the powerful person not on the vulnerable person who might have been abused. Michael Jackson might be entitled to an acquittal in a criminal court, but what about the court of public opinion?

Gray Mountain


Gray Mountain, by John Grisham, is in some ways a traditional Grisham novel. He often has great ideas that get you interested right off the bat. This was no exception. A Young Wall Street Lawyer gets laid off after the Financial Crisis of 2008. As a severance perk the firm pays for her health insurance if she agrees to work pro bono for a charity. As a result she finds a job with a Legal Aid firm deep in Virginia. There she discovers Appalachia and all that comes with it, including coal. The coal industry is up to its  old tricks and some employees need legal help in dealing with Big Coal.

Sadly, like most Grisham novels in my opinion, he starts off with a great idea that fizzles because he does not know how to finish it. Grisham is like a good starting pitcher who needs a closer. This book is in that strong tradition. It fizzles  at the end. In the meantime it did provide an entertaining read.

Before it ends, the heroine, Samantha helps a number of indigent people who were getting screwed. The saddest of her cases involves a coal miner who contracts Black Lung disease for which he is entitled to be compensated, but the system, and all embroiled in it, use that system to deny benefits. Samantha in the best tradition of the law tries to get redress. Big Coal resists. As Grisham writes, “coal companies are brilliant when it comes to finding new ways to screw people.”

As Grisham writes:

Chester said, “it’s a favorite trick in the coalfields. A company mines the coal, then goes bankrupt to avoid payments and the reclamation requirements. Sooner or later they usually pop up with another name. Same bad actors, just a new logo.”

“That’s disgusting,” Samantha said.

“No, that’s the law.”

Grisham is nothing if not cynical about lawyers and the law. But in recent years he has also painted the other side of the story, with lawyers like Samantha. There are some good lawyers too. This is what she learns from another lawyer, talking about court rooms, “I love them. It’s the only place where the little guy can go toe-to-toe on a  level field with a big, crooked, corporation. A person with nothing–no money–nothing but a set of facts can file a lawsuit and force a billion dollar company to show up for a fair fight.” That is the majesty of the law.  Even if the fight is not always fair, often it is. Often it brings justice. That is a pretty good thing.

For another client she helps, when no one else will, Samantha realizes this on her way home:

“As she drove away from the Starlight Motel, Samantha realized she had spent the better part of 12 hours aggressively representing Pamela Booker and her children. Had she not stumbled into the clinic that morning, they would be hiding somewhere in the backseat of their car, hungry, cold, hopeless, frightened, and vulnerable.” Again, a pretty good thing.

Sometimes– maybe not often enough, but sometimes–lawyers can be proud of what they do. Damn proud.