Wednesday, September 5, 2018

Stare Decisis....

Top of the evening everyone...

For reasons that are lost on me, I have been watching some of the political theatre of the nomination hearings for Judge Brett Kavanaugh to the Supreme Court of the United States.  One of the things this distinguished judge has emphasized and re-emphasized has been the binding nature of legal precedent.  The Latin for that is stare decisis, and thus the title of this blog entry.

On the one hand, precedent is important.  It is the utmost in arrogance to ignore over two centuries of jurisprudence to render a decision.  The Supreme Court of the United States has been graced by legal brilliance that is difficult to match.  As well, to adjudicate without consideration of precedent places law in a vacuum.  It will lose a sense of coherence in such a vacuum.

However, there are other considerations that make stare decisis a concern.  For starters, sometimes precedent is wrong.  Two famous cases come to mind.  Both are connected to issues of racism.  Dred Scott vs. Sanford has been called the "Court's greatest self-inflicted wound" by none other than a Chief Justice of that Court.  The other is Plessy vs. Ferguson, which decided that separate but equal was Constitutional.  The latter case suffered a unanimous verdict overturning it with Brown vs. Board of Education.  These two precedents are just horrendously bad decisions.  They needed to go.

Other concerns....while precedent is important, it should not be an anchor.  A court must be able to consider a precedent and overturn it.

Related to that, again, while precedent is important, a judge should never lose his/her ability and obligation to reason.  The Court considers about 100 cases a year.  For the millions of cases that the legal system sees every year, that is a tiny percentage.  That a case makes it to this level means that something in existing law needs to be addressed.  Precedent cannot be binding.

Listening to some of the questions to the judge, one other matter comes to mind.  We were taught in our senior halakhah classes that there are two types of halakhic questions.  The first type has an a priori answer.  Is pork kosher?  No.  The other type of question is far more common.  It involves reconciling two or more competing halakhic issues.  Most legal issues are of the latter type.  As such, the ability to reason and to discount or even overturn precedent is a crucial requirement of a judge.

On a side note, I would like to congratulate Senator Feinstein of California.  Her politics are not mine.  However, she deserves a great deal of credit for asking intelligent and probing questions and for giving Judge Kavanaugh a chance to answer.  Wow....civilized discourse between two people who do not see eye to eye on many issues...who would have thought it was possible??

Have a wonderful evening everyone.

R/SCG

P. S.  One of my readers is a lawyer.  BR...if you wish to respond to this entry, I will add your comments to this blog entry.  Obviously, it can wait until after the bat mitzvah.

Monday, August 13, 2018

We Have a Situation Here....

Top of the evening folks....

I have been following the news on the goings-on at the White House over the last couple of days.  Specifically, we are learning more about the dismissal of a White House staffer.  The dismissal took place in the White House Situation Room.  Apparently, the staffer brought her cell phone into the Situation Room and recorded the conversation between her and White House Chief of Staff General John Kelly, USMC-Ret.

The purpose of the Situation Room is to be able to monitor and respond to worldwide events.  There are representatives from various US intelligence services at work in there on a constant basis.  Despite being military, I do not have the clearance to be in that room.

With respect to General Kelly, the room's purpose is likely not to have conversations about dismissal. It is to monitor and react to events as they happen.  On an aside, the picture of former President Obama and his staff watching the takedown of Osama bin Laden was taken in that room.  To dismiss an employee in there is misuse of the room.  As well, it is likely that no one was paying attention.  This was not a good move.  I hope that General Kelly had the good sense to have someone with him when this conversation took place.

On the other hand, had General Kelly known that the woman had her phone with her and was recording the events in the room, that alone would have been grounds for immediate dismissal.  By immediate, I mean "wow...you have your phone.  This meeting is over.  Go clean out your desk."  It is a flagrant violation of WH security, and therefore national security.  It may well be a felony.  I am sure that the powers that be are checking that even now.

The woman who did this....good riddance, even if the reason is only after the fact.  As for General Kelly, I would strongly urge him in the future to make sure that all HR matters always have a witness and never take place in that environment.

Have a good evening everyone.

R/SCG

Wednesday, June 20, 2018

$13,000,000....

Top of the evening everyone...

It has been a while since I have written.  I do not know why the need to blog has just not been there of late.

On my mind these days....

You are hopefully aware that the City of Toronto has decided to allow open warfare on cyclists and pedestrians.  If you are not aware of this, here is an article: Toronto Takes Action.

People have been getting killed.  When this is reported on our local radio station's website, there is the usual motley crew of voices talking about how it is that cyclists are directly responsible for the problems in the Middle East and so on.  Soon after the cyber-blame is laid, the actual facts of the event become known.

Thank God that the folks at City Hall have realized and responded to the problem.  Mayor Tory has promised to kick in $13,000,000 to solve the safety problems in the city.  Here is that article: Vision Zero Plan.  The money comes from a surplus in the city's 2017 budget.

And no one has complained about this?!

I have the following questions.

1.  If there was a surplus, why did property taxes go up as much as they did?
2.  If there was a surplus, why was that money not refunded to the taxpayers forthwith?
3.  Did it occur to anyone on City Council that if perhaps these steps towards safety, for which the money clearly exists, might have saved a life if they had been taken before people were killed?  Why does it take a death, or deaths as the case may be, to cause the city to realize that safety is a worthwhile investment?

I am confused.

Have a good evening everyone.

R/SCG

Sunday, May 13, 2018

Laws that Do Not Exist...

Top of the afternoon everyone...

When I was but a wee lad, my brother had a subscription to 'Mad' magazine.  This was back in the day when it was still good.  Besides the general stuff that was always in there, e.g. "Spy versus Spy" and "The Lighter Side of...," I only remember a couple of specific things from it.

The first thing I remember was the spoof on the animated film "The Hobbit," set to music.  One of the songs was song to Bob Dylan's "Blowin' in the Wind."  The lyric was 'how many days can a hobbit go on, when he's hungry and tired and hurt."

The other was about laws that do not exist but do not.  I only remember one of those laws, but am happy to add in another.  The one I would like to add is along the lines of...if you are having a really loud cell phone conversation on the bus, we all have the right to listen and comment.

The specific law that I remember is quite relevant in Ontario right now.  We are in the throes of an election right now.  The law from 'Mad' was that politicians were required to eat any campaign signs remaining in place more than three days after the election.  A good law that could be.

Have a great day everyone.  Vote carefully.

R/SCG

Wednesday, April 4, 2018

Safety Blitz...

Top of the evening everyone...

Whenever there is a collision with a bicycle in the city, there is usually some sort of news article on 680 News.  I try to follow the comments after those articles.  Many of the comments state that all would be right in the world if only cyclists had licenses.  It would lead directly to peace on the Korean Peninsula.

I wrote a blog entry about this several years ago: Licensing of Cyclists.

I would like to state for the record that there are cyclists out there who make the rest of us look bad.  I remember a cyclist giving a driver the finger after the cyclist broke three or four traffic laws in the process of cutting the driver off.  That being said, I am neither responsible for nor representative of the transgressions of every cyclist out there.  Similarly, the drivers who get tickets do not represent the drivers who drive safely.  Most drivers and most cyclists attempt to be safe most of the time.

Why am I writing this?  I am writing this because the Toronto Police Service ran a safety blitz over the last two weeks.  During this safety blitz, 6800 tickets were issued for various traffic infractions.  If we assume that this number could be duplicated over each and every two-week period over a year, that would be 176,800 traffic infractions a year.  Based on the 2016 population of the city, that number would represent 6% of the city's people.  Please note that the city's population includes many non-drivers.  It would be far more than 6% of the city's drivers.

Here is the article: Slow Down Toronto.

6800 traffic infractions...I would appreciate it if someone could explain to me how licensing cyclists would bring about citywide sunshine and lollipops.  Licensing drivers has clearly not had that effect.  There is no logic whatsoever in assuming it would work on cyclists any more than it does on drivers.

In the meantime, I remind everyone of the sage wisdom of an admiral I once knew.  He said that selective enforcement yields selective obedience.  Regarding cyclists, drivers, and pedestrians, we all obey the laws that are enforced.  The Highway Safety Act is law throughout the province.  All three groups are stated therein.  Enforce the law.  People will respond.

Have a great evening everyone.

R/SCG


Saturday, March 17, 2018

First Part of Florida Reaction...

Top of the evening everyone.

I have been giving a great deal of thought to what happened at Parkland High School in Florida.  During this process, I have been in contact with two friends.  They are both lawyers.  One of them has politics to the right of mine.  The other is a mother of three.  Her politics are a probably where mine are, or maybe to the left.  She may also be reading this entry.  BR - if you are reading this, please feel free to comment.

One of the things suggested is the possible arming of school teachers.  At first blush, this seems like a good idea.  There is a level of protection at the level where the danger is the most imminent.

You will now see that I spend way too much time with Marines.

The arming of teachers in our schools is fraught with challenges.

1.  Is the job of the teacher offensive or defensive?  That is, should a teacher seek out a shooter or simply defend a section of school?

2.  Whose weapon does a teacher use?  The United States Government does not arm civilians.  Marines never take a weapon home.  A weapon stays in the armory until it is needed for training or for a mission.  It is turned in at the end of that training or mission.  At this point, someone must be in a school to issue the weapon to the teacher.  That person must be a trained shooter, must be able to look and determine whether or not someone is emotionally prepared for the task, and must have the authority to take away a weapon.

3.  Who will certify that the teacher is competent with the weapon?

4.  Will the teachers be given paid time away from school to practice at the range?  Who will certify to the school district that this has happened?

5.  Will the salary of those armed teachers be increased to reflect increased responsibility?  If so, will there be teachers who seek this position merely for the increased salary?

6.  Will there be training in the school for a potential incident?  With teachers armed, the risk is present that one of the teachers might accidentally shoot another teacher, or worse, a student.  The only way to avoid that is to train, and then to train again.

7.  What is the status of the weapon?  Will there be a magazine in the weapon or on the weapon belt? If there is a magazine in the weapon, will there be a round in the chamber?  These are three different weapons conditions based on force protection and level of threat - magazine available, magazine in weapon, and round in chamber.

I do not like the concept of having our schools become armed camps.  That, combined with the real challenges presented above, will tell me that this is a bad idea.

Have a good evening everyone.

R/SCG

Thursday, February 22, 2018

Carrying the Flag...

Top of the evening everyone...

It has been a while since I have written.  Much has happened.  I am still thinking through my response to Florida.

While I am thinking about that though, there was an informal survey on 680 News as to who should carry the Canadian flag at the closing ceremony of this years Olympics.  My initial instinct was the Virtue-Moir duet.  To carry the flag as they retire from professional skating after having brought so much to the country is an entirely appropriate honour.  Plus they are really cute together and the entire country hopes that they might become something more than skating partners.

But there are other folks who might do this also.  How about an athlete who went to the games but did not win a medal?  It would make a bold statement that this country is not just about those who succeed.  This country is also about those who work hard each and every day.  It is about those who try, do not succeed, and try again.

How about one of the coaches?  Those athletes did not just wake up able to do what they do.  They were taught.  They were coached.  Those coaches helped those athletes to reach the level of being able to compete in an international arena.

How about the person who went and made sure that all of the equipment was properly maintained and ready to use each day?  It would make the statement that this country understands that we do not achieve anything without the strong support of many unsung heroes.

How about the parents of one of the athletes?  I have made hundreds of trips up and down Bathurst St to produce the three black belts living in my home.  When we think of parents who had to work, put three meals on the table every day, and make sure that children got to 5:30 AM practices while also making sure that their kids kept their grades up, we should also realize that the success of these athletes started at home.

I offer my congratulations to all of the athletes, those who medaled, and those who did not.  I as well offer my congratulations to their parents, to their coaches, and to the otherwise invisible people who made their success possible.

Good night everyone.

R/SCG