Law – Page 54 – a sibilant intake of breath

Valdez damages halved

Today, an American court halved the punitive damages being imposed on Exxon for the 1989 Valdez oil spill from US$5 billion to $2.5 billion. Reading about it prompts a number of strands of thinking:

Firstly, it surprises me that punitive damages still have not been assigned. Chances to bemoan the slow pace of litigation in the United States (and all the problems that accompany it) are many. No doubt, a great deal of whatever settlements are reached will go to the hordes of lawyers, photocopiers, and expert witnesses who worked on the case, rather than to the people who suffered from the spill or to the rebuilding (such as is possible) of the affected ecosystems.

The second thought that comes to mind is along the lines of: “Didn’t Exxon earn record profits this year?” They earned US$10.4 billion (£5.6bn) in the second quarter of 2006. While this is a fairly natural response, it is not necessarily a very legitimate one. The damages being considered are meant to address the conduct of the company in 1989, something that is not obviously related to its present financial circumstances. At the same time, the purpose of punitive damages is to encourage a company to exercise greater caution in the future, when engaging in similar activities. Not having captains that swig vodka before heading to the bridge is a good start. Reading about that, one has feels an emotional inclination to wring them for all they are worth.

To what extent would charging Exxon $5 billion instead of $2.5 billion alter the likelihood of future spills? The purpose of such punishments is not revenge, but the inducement of desirable changes in behaviour. No punishment short of utterly bankrupting the company would actually stop them from shipping oil from Alaska to the contiguous 48 states. That said, a big punishments also catch the attention of other big oil firms who have the ability to take action to make such spills less likely, and less severe if they do take place.

A final issue to consider is that of moral hazard. If the penalty is cut in half, after seventeen years in court, it suggests to companies that they can reduce such costs just by spinning things through the legal system for as long as possible. The whole situation is like a test case from my Law and Economics course at UBC with Robert Gateman. Which outcome secures the best mix of equity and efficiency? Which establishes the best incentives for future behaviour?

Of course, I am not one of the judges in the case. I have not examined the relevant facts and laws and, as such, it is impossible to know whether this reduction is warranted or not. My personal sympathies do not lie with oil companies, but they have the same right to be treated with due process under the law as any other entity within society. Hopefully, regardless of the final amount of the penalty, mechanisms have been put into action that will prevent catastrophes like the Valdez spill in the future.

Saddam to be hanged

Reading the news that Saddam Hussein, former president of Iraq, has been sentenced to die by hanging created a ambivalent combination of feelings. On the one hand, he is certainly guilty: if not of the particular atrocity for which he was tried than for crimes against humanity in general. Likewise, launching the Iran-Iraq War probably constituted ‘conspiracy to wage aggressive war’ – the crime for which the subjects tried at Nuremberg were hanged.

Problems with the trial

That said, there are procedural issues that draw the result into question. One major legal problem is the genesis of the Supreme Iraqi Criminal Tribunal (formerly known as the Iraqi Special Tribunal). This body, where Saddam Hussein is on trial, was not established by an elected Iraqi government, but by the Coalition Provisional Authority: a bureaucracy composed of and supported by the occupying army. To say that this is domestic Iraqi justice is therefore somewhat disingenuous.

Other serious problems have been the lack of security for those involved in the trial: including witnesses, judges, and lawyers. By the end of the trial, Saddam Hussein only had one legal representative left: Khalil al-Dulaimi (largely because others were dismissed, though three were killed). The absence of a stable security situation in Iraq, and Baghdad in particular, further reduces the changes of a free and fair trial being conducted, at an internationally certifiable level of due process.

A further problem is the absence of an adequate process of appeal. There is only a ten-day window in which an appeal can be launched, and it is widely expected to end in failure within weeks. Related is the issue that it is over-hasty to execute Saddam Hussein on the basis of one set of allegations, relating to 148 killings in Dujail in 1982, when so many more charges remain to be considered. The importance of being systematic and fair lies in generating an accurate accounting of the various crimes committed by Saddam Hussein and his regime. If the stated objective of the coalition in “drawing a line” under the Saddam era is genuine, such a comprehensive accounting seems like an important step.

Problems with the death sentence, generally

In general, the international community has condemned the sentence of death. The European Union has spoken against it. As have India, Ireland, The Netherlands, and New Zealand. Even Tony Blair said that he is opposed.

Personally, I don’t feel that execution is an option that should be available to any court. As a form of justice, it is little more than crude retribution. While the danger of convicting innocent people does not apply in this case, the general moral and pragmatic position against the death penalty seems very strong to me.

That said, imposing what has become the international consensus upon the Iraqi court carries problems of its own. To grant the new Iraqi governments powers and then circumscribe their usage does not conform to the project upon which the coalition has supposedly embarked. While it is clearly legitimate for outside actors to urge a reconsideration of the death sentence, it would probably be illegitimate to force the hand of the court in any significant way.

Primarily because of the flawed trial process, the insufficient appeal system, and the importance of rigorously cataloging the misdeeds of the former regime, Saddam Hussein should not be put to death.

All that said, I encourage someone to argue the opposite.

On impeachment

In their leader on the midterm elections, The Economist says that: “talk of impeaching Mr Bush is dangerous” but offers no reasoning for the claim. While impeachment is obviously an extreme response, it is one that has been contemplated several times in the last century. It seems to me that a case can be made that wiretapping, torture, the denial of legal rights to American citizens, and the widespread rejection of international law create at least the possibility that this administration is as criminal as that of Richard Nixon. The list certainly makes Bill Clinton’s crime of lying under oath seem reasonably trivial.

Perhaps they mean that talk of impeachment is dangerous to the Democrats, because it risks turning a reversal of the Congressional majority into an opportunity to settle political scores. The Democrats obviously need to become a solid-seeming alternative before the 2008 elections, and too many inquiries and accusations could be a distraction. This is an argument with which I have some sympathy, but if the Democrats are likely to be elected more out of anger directed towards the Republicans than because of their own ideas – as seems to be the case – then it is perhaps exactly such inquiries that they are being elected to conduct.

Let’s just hope that a Democratic congress, if such a thing arises on Tuesday, will be able to generate some better policies, instead of just recriminations.

Midterms and the importance of the Senate

Talking with friends about the upcoming American midterm elections, there seems to be some confusion about the relative impacts of different outcomes. While I am not an expert on American politics, by any means, the following seems to be the gist:

1. Losing the Senate would be a really big deal. The United States Senate is probably the most powerful legislative body in the world. While the power of the President has increased enormously in the 20th century, the Senate still retains critical powers. Article One of the US Constitution requires Senatorial advice and consent before the United States can enter into foreign treaties, and before the President can make important appointments. A President with a hostile Senate has a seriously constrained field of action.

2. As I understand it, the House of Representatives is much less important, when it comes to the overall ability of the executive branch to govern.

3. The Democrats face an uphill battle to gain control of the Senate. Rick Santorum seems likely to lose his seat in Pennsylvania (as Savage Love readers will no doubt cheer). One seat each in Montana and Ohio are leaning towards Democratic challengers. One each in Missouri, Rhode Island, Tennessee, and Virginia could possibly change hands. Finally, the Democrats are defending a vulnerable seat in New Jersey. In order to gain a 50% +1 majority, the Democrats need to swing six seats.

4. Basically, whichever party has the majority in the Senate gets to chair all the committees. This lets them pass along legislation they favour, while forever entrapping legislation they oppose. Many argue that the American Congress (both the House and the Senate) is meant to operate on the basis of consensus. If so, that noble ideal is long lost in contemporary American politics. Controlling committee chairmanships is thus really important.

Those who know more than I do are strongly encouraged to comment. I would love to understand it better myself. With the elections just over two weeks away, and with the composition of the American government rather important for the immediate future of the world, it would be good to have increased understanding.

Republican torture ‘compromise’

Despite the thin rhetoric to the contrary, it is clear that the current American administration tolerates and abets torture, indefinite detention without charge, and other basic violations of human rights. This is an astonishing error on their part. It contradicts international law, including laws that have helped to protect Americans captured by foreign regimes. It significantly diminishes whatever claim to moral superiority the United States can use to help guide regimes entirely dismissive of human rights on to a more acceptable path. Finally, it neglects the very ideals about the respect for the human person that form the basis for the American constitution and the general American consensus on the nature of political ethics.

We can only hope that a saner administration will follow in the wake of this myopic crew.

The mainstream media is reporting on this here, here, here, here, here, and in many other places.

Vancouver’s safe injection site

I was glad to read today that the safe injection site for heroin in Vancouver has received approval from the federal minister of health, Tony Clement, to remain open until December 2007. Safe injection sites represent what I see as the most intelligent approach to dealing with addictive drugs, namely that of harm reduction. Given the enormous amount of harm that arises from activities peripheral to drug use, this is an approach with real promise.

By providing clean facilities and sterile needles, such sites reduce the probabilities of the transmission of infectious disease through intravenous drug use. Given the ever-rising numbers of people with AIDS and Hepatitis C, this is an incontrovertible benefit. Dr. Julio Montaner, director of the B.C. Centre for Excellence in HIV/AIDS has said, of this facility:

The supervised injection site has saved lives, has optimized the use of medical services by entrenched addicts who are sick because of their addiction, has decreased risky behaviors that promote HIV spread, hepatitis C and others, has diminished the inappropriate use of medical resources, has not had a negative impact attracting news users, promoting drug use.

More generally, safe injection sites provide a window for public health authorities into lives that would generally be concealed from them: a glimpse that can only be afforded on the basis that those being helped can be sure they will not be turned over to the police.

Those sites that actually provide addicts with heroin generate additional benefits. Firstly, doing so eliminates the need on the part of addicts to generate funds to sustain a drug habit. Since those funds are likely to be generated in illegal ways, this reduces the amount of crime associated with drug use. Secondly, since distributional channels are often controlled by organized crime, giving addicts means of circumventing them reduces the income and influence of these groups. Given the enormous corrupting power organized crime groups have on governments and police forces, this is most welcome. Such groups are also notoriously violent, and prone to engaging in bloody competition with one another, as well as perpetuating other criminal activities related to the practice or profits of the distribution of illegal drugs. The fact that the Vancouver Police Department has repeatedly expressed support for the safe injection site demonstrates that the arguments about crime reduction have merit. On Clement’s politically risky decision, they supported him “for making a very difficult decision on a complex issue, and for the care with which it has approached it.”

In the end, criminalizing drug use is a strategy where the intuitive appeal falters on the shoals of practical considerations. Countries that have vigorously pursued the enforcement of drug laws – especially the United States – have increased their prison populations while doing little to deal with the underlying issues. Given the reduced life prospects for anyone who has been convicted, as well as the toxic and criminally encouraging environment inside many prisons, such policies generate further harmful knock-on effects.

I am glad that drug policy is an area where Canada has generally been able to steer its own course, subject to the occasional frantic denouncement from across the border. It shows that Canadian values like compassion and pragmatism can be applied successfully even in policy areas that are frequently the source of vitriol and extreme polarization.

Frontier justice

In other depressing news, there are apparently two Americans: Daniel Strauss and Shanti Sellz, who are being charged for transporting three illegal migrants trying to cross the US-Mexico border to a hospital, when they were dying of thirst. They face up to 15 years in prison and $500,000 in fines.

Legally, the case seems quite clear cut. The defence of necessity allows you to break the law when doing so serves some over-riding purpose. Someone with a suspended license can drive their critically injured child to the hospital, then get off the charge of violating the suspension by claiming that is was necessary to avert a far greater evil. Preventing three people from dying in the desert obviously overrides questions about the legality of assisting those attempting to migrate illegally.

What is most ironic is that the people prosecuting this case would almost certainly defend themselves as Christians – given that the prosecution can only be motivated by a desire for political point-scoring, and not being religious in America is politically suicidal. For would not Jesus himself have argued that if you come across a man dying of thirst in the desert, it is your Christian duty to report him to the proper authorities?

It amazes me that neighbouring democratic states with an increasing number of economic and institutional connections can nonetheless completely fail to accord the most basic ethic of due consideration to each other’s citizens. The prosecutors should be ashamed of themselves, and these charges should be summarily dismissed.

PS. Amnesty International has a campaign on this.
It is also being discussed on MetaFilter.

On television licensing

Apparently, the BBC has claimed that anyone who watches video clips from their website online must have a television license, or be liable to prosecution and fine. As a North American, I find the very idea of a television license offensive. Our flat has received a notice that an inspector will be coming at some future point to look for televisions. The letter reads, in part:

Your address is now on our priority list and an Enforcement Officer is planning to visit you shortly. [Emphasis theirs]

My personal inclination would be to refuse to consent to having our premisses searched – despite the fact that we have no televisions – because there is no probable cause under which to search us, and no warrant to do so issued. In the United States, I would expect such a search to be a violation of the Fourth Amendment. In Canada, I would expect it to be a violation of Section 8 of the Charter of Rights and Freedoms. Of course, that intuition is not grounded in any familiarity in British law. I assume that these inspectors do have the legal right to search a flat without consent or a warrant. It couldn’t hurt to issue a verbal refusal, at least.

The idea that the state has the right to search your home on suspicion of owning a television, then fine you if you don’t already have a license seems preposterous. The courts in Canada and the United States have generally considered the searching of a home to be a serious legal action that generally requires a warrant. To do so in order to uphold the fiscal solvency of a public broadcaster seems like a serious confusion of priorities. I understand the need to fund the BBC, but this seems like an unjustifiable imposition.

That is especially true once extended to computers which may or may not be used to watch television programs. In 2004, the Secretary of State ruled in the Television Licensing Regulations that:

“‘Television receiver’ means any apparatus installed or used for the purpose of receiving (whether by means of wireless telegraphy or otherwise) any television programme service, whether or not it is installed or used for any other purpose.”

Using my iBook to watch “The Daily Show” would appear to make it a ‘television receiver’ under this definition. When the BBC chose to put video online, it couldn’t legitimately claim to have thereby unilaterally extended the requirement for television license to all people in the UK with computers capable of viewing the information. If they made headlines available by text message, could they begin taxing anyone with a cellular phone? Can they tax people whose cellular phones can access the internet now?

I do see value in public broadcasting, insofar as it can serve some purposes that the mainstream media does not. That value does not, in my mind, justify the kind of threats that are being made.

Gay marriage back in the news

I wrote previously on an almost identical issue, but that which needs to be said generally needs to be said again.

Apparently Conservatice Canadian Prime Minister Stephen Harper wants to re-open the debate about gay marriage. At present, it is legal for same-sex couples to get married in Canada. This is a good thing for precisely the same reasons that it is good that couples of different races can get married: it is a simple requirement within a just and equitable society. The fact that homosexuality makes some people uncomfortable is no excuse whatsoever for discrimination. Likewise, the existence of certain traditions about what marriage has meant to some people must not preclude a societal definition that is blind to arbitrary factors. Particular churches can decide for themselves what kind of unions they want to bless and what kind of ceremonies they want to host, but under the law there must be equality and the protection of minority rights.

I am entirely confident that we will look back upon this issue in fifty years time the same way we look back on racially segregated schools today. That is to say, we will see it as a matter where governments took an astonishingly long time to accept a policy that is obviously a moral imperative. Canada’s legal history with regards to homosexuality is certainly not a sterling one. As recently as 1967, the Supreme Court of Canada ruled that Everett Klippert could be jailed as a ‘dangerous sexual offender’ simply on the grounds that he was likely to engage in consensual homosexual sex with adults. He was still in prison until 1971: two years after the Trudeau government decriminalized homosexuality. (See the CBC Timeline)

As regards the Harper government, this is indirectly a positive development. His only hope of getting a majority government in the next election is to prove that the Conservatives can be trusted with one. People are rightly distrustful, because of exactly the kind of political currents that have led to this announcement. Now, we just need the Liberals to clean themselves up quite a bit, get a strong new leader, and turn themselves back into the best option Canadians can hope for at the federal level.

Law and uncertainties

Walking home from the third and least well attended bloggers’ gathering, through this city of strangers, I found myself thinking about the law. It has been a frequent topic of contemplation for me, of late. The way in which the common law, especially, tries to marry thought with power is fascinating. Precedents, rules of interpretation, and styles of thinking are all part of a complex and self-referential body that nonetheless manages to produce a high degree of coherence and maintain broad respect. People may not have much faith in lawyers, in particular, but there is a high level of faith in the system in its entirety. The contrast with something as amorphous (and oft derided) as ‘international relations’ is welcome.

The major reason I don’t see the law as an appealing personal option is because of the kind of life it seems to promise: one of perpetual brutal competition. Coming to a place like Oxford both produces a conviction that you are reasonably intelligent and a certainty that you cannot take on the world. Even trying is a major effort in self-sacrifice for what is ultimately largely personal gain. The question to grapple with, then, is that of what you want to achieve and what you feel that you must.

Returning to the matter of the law, the appeal lies in how it promises the possibility of satisfying my two main long-term objectives. The first of those is to secure the requirements of a good life, in terms of friendships, skills, material resources, and the like. The second is to effect some positive change upon a deeply troubled and unjust world. Part of the reason why I’ve felt as though I have been thrashing around a bit here is that, while I feel that I am advancing these aims, I feel as though I am doing so in a glancing and indirect manner.

My thanks to Robert, Ben, and Antonia for interesting conversation at The Bear tonight. In particular, meeting Ben was a welcome experience.