Torontoist asked me to discuss how Canadian libel law would work if Rob Ford wanted to sue the press over the “crack-smoking story” so that is what I did there.

Now here is that GIF of Ford trying to throw a football again!

A frequent request when I do my mock-AMA posts is “why I should write She-Hulk, superhero lawyer” or commentary on legal issues in superhero comics. I will admit I am not terribly interested in the topic, for two reasons:

1.) The law is my job and this is fun and do you really want your job getting mixed into your fun?

2.) It’s a lot less applicable than people think.

Let me explain #2 for a bit because I think it might serve to illuminate. My daily duties as a lawyer are, of course, law-related, but more important in many ways is how I conduct myself as a lawyer – my provincial law society mandates that as counsel I be courteous, honest, and strive to uphold the law. (Matt Murdock, in particular, often violates the second of those mandates.) In American jurisdictions these tenets still exist but generally they are, I am given to understand, much more lax; here they are not. (Some lawyers will threaten you with a complaint to the law society when you make any comment that could be even construed as an insult. These people are pains to work against, to say the least.)

This is to say that although the legal system in Canada and America is adversarial, my experience with it does not lead itself naturally to superhero comics, where by definition the stories have to be very adversarial. She-Hulk’s Enemy Lawyer, by comics convention, has to be ruthless and efficient and probably not very nice, whereas in my practice I routinely give and receive compliments to the other side on their conduct. Law, done well, is the opposite of dramatic. You seek to make your preferred conclusion mundane.

But there is another aspect yet to why I would not want to write a She-Hulk series, which is that the law is fundamentally kind of boring in many ways. Dan Slott’s She-Hulk wasn’t about lawyering, when you get down to it: it was an adventure series using a relentlessly wacky law firm as a setting. Which is fine, it was a good comic, and the reason it was a good comic is because She-Hulk wasn’t doing hours upon hours of reading discovery notes and making a list of evidentiary points for and against her client, or spending hours telling a client how to conduct themselves upon the stand, or writing letters to opposing counsel promising to employ tactics which are thinly veiled legal threats but only if you understand why they’re threats. Super-dramatic courtroom moments are the exception, not the rule – even in court they’re still the exception. Court is frequently very boring to non-involved parties.

Practicing law, if you are doing it properly, is about paying attention to tiny details and assembling your client’s narrative in the best possible light for a judge (or other decision-maker) to assess: in short, it is leaving the actual climax of the story (the decision) to a third party. Which is how the system works, but that’s directly not what you want out of a good comic book adventure story: you want a story where She-Hulk makes her case so staggeringly obviously that holy crap, how could ANYBODY disagree with that? Which isn’t really about law, you see, and more to the point it should usually offer She-Hulk more opportunity to punch things, which is what we all want to read anyway.

So that’s why it’s not gonna happen. When I want to write comics, I want to write holy shit comics. Law is not about holy shit most of the time. Quite the reverse.

People were asking for my opinion on the Rob Ford appeal decision and well, there it is for you.

My weekly TV review is up at Torontoist.

Also, Torontoist asked me to do a legal review of the decision which got Rob Ford kicked out of office, so you can read that too.

The Law Society of Upper Canada is currently considering whether to revise/revamp the articling system or abolish it entirely, and more or less the entire legal profession in Ontario – and by extension Canada, because as goes Ontario, so will eventually the rest of the nation – has an opinion about it.

For those who are not Canadian lawyers or even lawyers elsewhere: articling is a requirement in each of Canada’s provinces (each of which has its own independent law society) in order to join the bar. The basic idea behind articling is: after you graduate law school, you work for ten months for a lawyer, and essentially learn on the job. Law school, you see, does not actually teach you a lot about the daily nuts and bolts of legal work, but rather “how to think like a lawyer.” (Which is actually a thing. We will pause the post here for all of you to get the lawyer jokes out of your system. Trust me as a member of the profession when I say we invented most of them.)

The problem with articling is that there are not enough articling positions to go around – this year, estimates are as low as there being only 80% of graduating students who will find articling positions. And of course, that 20% who don’t find them are then competing with next year’s graduating class, so you have 120% of a graduating class competing for 80% of articling positions. Except, of course, that the problem is that articling positions are decreasing in number and have been for years, so the problem just keeps getting worse. I am in my second year as a lawyer and know of at least one person from my graduating class at Osgoode who still has not found an article. That person’s investment in a law school education (sixty thousand dollars or more) has been, unfortunately, a bad one so far, and he is far from the only one.

I, on the whole, am for the abolishment of articling, as follows:

Proponents of articling argue that practical experience prior to being called to the bar makes for better lawyers, and I would say that this is inarguable. However, the question of whether articling makes for better lawyers overall isn’t a satisfactory answer to the question of whether articling is necessary – after all, no other common-law system in the world still has articling as a requirement for call to the bar. They’ve all abolished it. (I have no idea if Canada has a lower rate of legal malpractice claims than other jurisdictions offhand and Google has not turned anything up yet, but it seems like extremely relevant data.) I think people arguing for the continuance of an additional barrier to the bar that doesn’t exist anywhere else do have an affirmative duty to justify why it should remain, and that argument has not yet been made.

Moreover, I think the overall value of articling is extremely loose – there is no real guarantee that an article will provide serious legal experience worthy of the hassle that getting the article (which, even in an ideal full-employment situation, is still a grueling round of interviews more often than not) represents. (I personally was quite lucky to article with a principal who strongly believed in exposing his articling students to as many different aspects of his practice as possible.) Here, Lee Akazaki argues that the uneven quality of articles is a straw man argument because no article can properly prepare a student for all aspects of law, and the most important thing is to teach lawyers through groupwork and expose them to the demands of professionalism. Which isn’t a terrible argument, but there should exist minimums of exposure to a wide area of legal work. Effectively, this is impossible to regulate. As it stands right now it is already difficult enough for a student to bring a complaint against a principal if necessary (to say nothing of the fact that due to the inherent imbalances in the employer/employee relationship that articling has buried in its very nature).

This is to say nothing of the fact that the articling crisis is most intense outside of large urban centres where the profession is aging fastest. It’s not a surprise that cities attract more lawyers like they do every other type of skilled professional – that’s just urbanization – but articling presents a special problem because if small-town lawyers are to hire articling students, the fact that they are essentially training their competition hits harder than it would a big-city lawyer. (Which is, I think, one of the major reasons articling is in crisis at this point, although I admit this is based at least partly on supposition.) If the entire concept of articling works at cross-purposes for rural lawyers – and I think there is a reasonable argument that it does – then it’s by definition going to be a failed system.

But mostly, it comes down to the question of how many barriers to entry there should be for a new lawyer. Right now articling is simply an additional barrier on top of getting into law school, finishing it and then passing the bar exam (none of which are exactly easy) and so I would argue is effectively redundant. There are other ways to properly introduce students to the actual demands of the profession, the most obvious of which being including a large practical component in the third and final year of law school (which is of dubious value, to say the least, and Paul Campos’ experience being informed by American schools rather than Canadian does not change that much at all).

It’s time for articling to go. I understand why people want it to stick around: you want the best for the profession and it’s a safeguard. But it’s not an effective one, not any longer.

Torontoist asked me to review the OIRPD’s report on police overreaction during the G20 summit here in Toronto, so I did.

Zach Butler, a while back, asked:

So how’s being a lawyer going?

Well. I work here.

The thing about family law that the casual reader may not understand is that in law school, I’m pretty sure there isn’t another branch of law where you will hear more horror stories – many of them from former family lawyers who got out – about the practice of family law. You have to really be dedicated to the idea of practicing in it to want to do it while you’re still in law school, which makes my roundabout way of having become a family lawyer (I certainly never planned on it when I went to law school) all the more odd. I recently attended the Ontario Bar Association’s annual family law conference, and was struck by the age of the participants: I’m not exactly a kid any more but even so, I was still one of the younger lawyers there. Granted, the entire Ontario bar at this point is aging, it seems, but the family law bar is definitely older than many other subsectors of law, and I think young lawyers being scared away from it has something to do with that.

This is not to say that it is not emotional and difficult work. It is, and I had to learn early on to not take it home with me. A lot of people can’t do that – find that line where caring about your client and wanting the best for them stops at where it becomes onerous on your own emotional health. I can do it, though – that’s quite obvious to me at this point. (I’m not sure what that says about me personally.)

Clients can and will lie to you – most of them will do so unwittingly because they have become to believe their narrative so firmly that the points where said narrative is not really true in the classic sense will become lost to them, but every so often you deal with the client who just straight-up lies to you because they’ve realized that, as a lawyer, you actually aren’t allowed to lie on their behalf, as so many people assume is the case. I can not proactively mention details that are pertinent to my client’s case in a proceeding, but I can’t lie about the existence of those details.¹ But the active liars are easier to deal with than the self-convincers, frankly, because the self-convincers are, well. convinced. Most of the time, it is not so great an issue that it can’t be resolved. A lot of people just need their lawyer to tell them “this is how it is” and be a sympathetic but firm voice of reason. But sometimes it is an issue.

Ultimately, I like the work. I don’t know if it’s my life’s work per se, but I’m going to do it for a while because, well, I’m kind of good at it. The emotional thing aside, I quite like the fact that in family law, being somebody’s counsel isn’t just an empty word: I have to talk with my clients about much more than legal strategy because a large part of practicing family law in Ontario is explaining to clients that it doesn’t matter how much they might loathe their ex at this point: if they had kids together (and practically all of our casework involves custody in some way), then the other parent of your children is going to be a part of your life for the next twenty years regardless of how custody and access plays out because, hey, you had kids together, and the province takes the view that, where a parent isn’t abusive, it’s in the best interests of the kids to get to have a relationship with that parent. Which means you’re just going to keep seeing them. Which means part of my job, as a lawyer, is to get clients to accept that and move on – help them get past the emotional pain of the end of a relationship and work them through the five stages as quickly as possible so they can get to “acceptance” for their own sake. I’m not going to do all of their counselling – I’m not a therapist – but I have to be mindful of it. And I quite like the fact that my work is hands-on in that sense.

1. In many ways lawyering is much like being an Aes Sedai in Robert Jordan’s Wheel of Time series. Yes, I said that with a straight face. [↩]

Black Mage: Does Thomas Mulcair have a good shot of winning the next Canadian election? Is it a better/worse shot than any of the other NDP contenders?

I would say yes and I don’t know, respectively. I think Mulcair is perhaps better positioned to leech votes from the centre than any other of the NDP candidates were and he’ll protect the new Quebec base, but the fact that he is from Quebec will be at least a slight negative in the West because they get incredibly pissy about that. I think on balance he was the best choice, not because he of geography or politics, but because he’s a political gut-punch fighter, and that’s what going to be necessary until the next election. But the NDP bench was really deep this time around (due in large part to Jack Layton making sure that it would be), so Mulcair is just the best of a strong lot.

supergp: If you were going to write a big comic crossover event, what would your premise be?

Old DC: Probably something involving most of the major heroes being mind-controlled with Starro or whatever and a few stragglers left to save the day. Probably including Empress, Major Disaster, and Geist the Twilight Man as some of the rebel fringe. (Yes, I know both MD and Geist were supposedly killed in Infinite Crisis. My answer to that is simple: “nuh-uh.”)

New DC: Something that brings back the old DC.

Marvel: Victor Von Doom. Infinity Gauntlet. *drops mic*

JDR: Can you compare Canada to some country(ies) that aren’t the USA?

Well, we’re colder than Botswana, freer than Yemen, less blonde than Sweden, better at parking than Italy, have less Japanese people than Japan, have better McDonald’s than Australia, less jiggly at most times than Brazil, less shaky than Djibouti, less class-riddled than England, have more Tamils working as line cooks than Sri Lanka (seriously, in Toronto Tamils fill the same role that the various Central American immigrants do in American kitchens; one of my former roommates, a sous chef and thoroughly white dude, spoke decent Tamil), easier to pronounce than Kyrgyzstan, less desert-y than the Western Sahara, and our French bears only a slight resemblance to France’s French. How’s that?

Greg Morrow: What is the most important difference between the constitutional laws of Canada and the United States? Not the procedural stuff about how the legislature is constituted, but the substantive stuff about civil rights and limited government power.

Probably the existence of s.1 of the Charter of Rights and Freedoms, the limitations clause. (Which, for the uninitiated, allows the government to pass laws which limit individual rights, so long as those laws are relatively specific and enumerated and that the limitation is justifiable in a free and democratic society.) It prevents a lot of “this absolute principle is clashing with that other absolute principle” confusion that arises whenever rights collide with other rights, which actually happens just about all the time. Of course, I know more than a few Constititional scholars who absolutely loathe the existence of s.1, so who knows.

Der Whelk: Is there an old series or property out there you think deserves and would be a perfect for a big budget re-make?

It’s not so much a remake as it is a continuation or sequel or even logical endpoint: Quantum Leap.

You would still have Scott Bakula as Sam Beckett, clearly having aged in real time from the end of the show, leaping from life to life, his memories continually fogged, and you would still have Al traveling alongside him, guiding him in his tasks, and that would be the first quarter of the movie or so – maybe one or two quick leaps – and then Sam jumps into a timeframe he shouldn’t be able to jump into normally, a time well after his death would have occurred. Something has gone wrong in the quantum stream. Somebody is interfering. Al is completely panicked and Sam is at a loss.

And that’s when he meets a second Leaper – one Al recognizes, not that he can tell Sam this – and although Sam doesn’t quite understand it, suddenly they’re working together to do something he can’t quite understand. The three of them are now leaping together, and every time she reminds him of what’s been happening so he doesn’t lose track. She’s working with slightly more advanced technology than Sam is, but even her advances aren’t enough for her to do what she needs to do, so she has enlisted Sam’s help. Two Leapers, working in tandem across multiple times, can pull it off. There’s no other way.

What has happened? Thanks to the interference of the second Leaper (who is much younger than Sam), Sam has traveled into her timeline. This leaper dies much, much later than Sam will – a century or more later – and this means she and Sam, together, can effect the events necessary for a future Leaper to leap backwards and give her the technology she so desperately needs to return Sam home. And so the present changes the future changes the past changes the present…

…because Sam Beckett’s daughter wants her father back.

So the L.A. City Council voting to require male pornographic actors to use condoms has been getting play from around the internet, including the nigh-mandatory Reason article that thinks it is much funnier than it in fact is. Seriously, reading that post just made me feel bad. You could tell the writer thought they were coming up with really awesome zingers, and sadly the zingers are not that awesome and in fact are sad and predictable.¹

Let’s be clear: this regulation won’t work. It won’t work because there’s no viable enforcement mechanism, which you kind of need in order to enforce municipal regulations.² It won’t work because it’s a local regulation in an industry which is, to an extent, notoriously mobile. (Even were this regulation federal – numerous porn producers already book time in the tropics and shoot multiple features in a row there. There is no reason this practice would not continue and/or expand.) And it won’t work because the performers – both male and female – mostly don’t want to use them, because pornographic sex takes a lot longer than regular sex and, to put it bluntly, there are chafing issues when condoms are used.

But the spirit of the regulation, at least, is welcome. I don’t believe there’s another economic sector that is as large and as under-regulated as porn is, which is the product of a public that is not willing to admit they mostly use porn regularly and equally not willing to stop using it. The result is an industry whose exploitation of young just-off-the-bus girls has become a well-known joke, where worker protection is essentially nonexistent and where HIV flareups are, sadly, not uncommon.³ We should demand a healthier, safer work environment for pornographic actors, because all it will do is make the industry better. (People who worry about whether better treatment of women within the industry could result in less wild porn should consider that some of the raunchiest and craziest pornographers working today are women. I won’t link here, but Google “Burning Angel” or “Ovidie” or even Nina Hartley.)

Plus, as a bonus for pornographers, regulation carries with it official recognition as well, and in an industry where copyright violation has become so endemic that numerous films are produced simply as loss-leaders to get additional longterm money from the shrinking portion of the porn audience that is still willing to pay money for it, official recognition is worth quite a bit.

1. Memo to all writers everywhere: when you use “bratwurst” as a euphemism for “penis,” you’re writing subpar Krusty the Klown material. CUCAMONGA! [↩]
2. Presumably police will not be accidentally wandering on to porn sets on a regular basis. [↩]
3. Many porn companies will talk about their rigorous testing schedules, but the day I trust self-regulation is the day I join the GOP and start ranting about immigunts takin der jerbs. [↩]

Lately, we’ve been hearing a lot about how important it is to keep taxes low on the rich. Not, as we all might suspect, because all the Congressmen saying it have taken somewhere in the neighborhood of five hundred grand in “campaign contributions” from very rich people who generally don’t tend to part with money unless they think they’ll get something out of it; instead, it is because these people are the “job creators” who drive the economy and if they have to spend all their money in taxes then they won’t be able to spend any on creating jobs.

Now, one might…one just might…point out that we’ve been cutting taxes on the rich for the last decade and all we’ve gotten to show for it is a net loss of five million jobs and a small group of very rich people who have gotten much, much richer…but instead, I think we should take all these people at their word. I think that we should treat these people as the job creators they really are, just like the Republicans in Congress say. And to that end, I think we should do exactly what the Republicans insist is the best solution for the economy, the best solution for just about anything. Let’s let the free market handle it.

Specifically, I think we should tie the top income tax rate to the unemployment rate. Say, a baseline tax rate of twenty-five percent, with a baseline unemployment rate of five percent. Every percentage point below that, the top tax rate decreases by thirteen percent (down to a minimum of one percent, a purely token rate.) And of course, every percentage point the unemployment rate goes up above five, the top tax rate increases by thirteen percent (up to a maximum of ninety-nine percent; after all, nobody should be denied the right to make a living.)

Naturally, the specific numbers could be haggled a bit, the tax loopholes closed here and there to make sure that they’re not shirking their duties as job creators, the exact unemployment figures that we use to calculate this tax rate precisely detailed to avoid fraud. But in theory, this should be exactly what the nation’s captains of industry want. They have an incentive to put the nation’s unemployed back to work, we have a way to balance the budget in times of economic stress, and the Republicans get to put their money where their mouth is when it comes to free-market economics and their worship of America’s ultra-wealthy as the people who make America great.

I don’t know why, but something tells me they won’t go for it…

On Twitter, @magiclovehose asks:

Something for the “give me something to write about” list: the legal ramifications of copyright and 3D printers?

The thing about 3D printers is that they directly challenge one of the assumptions upon which copyright law is predicated.

See, right now, in most countries you can’t copyright the design of a utilitarian item. Say I am IKEA and I design a chair. That chair can’t be copyrighted: it’s utilitarian. The point of the chair is to make many more chairs just like it for common use: the idea of the chair is not copyrightable. (The building instructions, on the other hand, can be. Which is a minor reason IKEA does things the way that they do.) However. Say I am not IKEA, but instead I am a humble woodworker. And say I design a chair, but I design it as a work of art: the back of the chair is a gorgeous woodcarving of Jesus and Muhammad Ali fighting aliens. Now it’s not just a simple chair: it’s a personal expression. Therefore, it now attracts copyright.

That’s how the law works for chairs – and other utilitarian items – right now. If you mass-produce it, it’s not copyrightable; it’s utilitarian. (You may be able to patent it, of course, but that’s a different kettle of intellectual property-fish.) But when 3D printing enters the scene, that turns this entire legal scheme on its ear, because 3D printing will eventually render everything mass-producible. I carve my Jesus/Ali/Aliens chair, and then somebody else 3D scans it and suddenly you can torrent the .cad file to make my chair in a 3D printer from half a dozen places on the net.

So what happens at this point? Have I lost copyright in my chair because it’s been mass-produced and therefore my chair has become utilitarian and a piece of non-singular design? Or have the people downloading the file and reproducing my chair in iChair 2015 infringed my copyright in the chair? The answer at this point is “ask again later” because I sure as hell don’t know: thanks to technology we’re once again approaching a problem that copyright systems never anticipated coming. Will iChair’s additional features allowing the user to make sure that design features of customized chairs don’t keep the chair from being used for its traditional “sitting in it” purpose strengthen the utilitarian argument? What if iChair lets you design chairs from scratch and autocorrects you to make sure the chair is viable and won’t fall apart, which essentially means that with enough market penetration no original design will be non-duplicable even without people copying it? (This is the “sooner or later someone else will make a Jesus/Ali/Aliens chair” argument.) Does mass production therefore destroy whatever copyright exists in industrial design, or does it mean that legislatures and/or judiciaries will find new sources of copyright that do not as yet exist?

Like I said: I don’t know. But suspecting that the answer will benefit whoever stands to massively profit from the new industrial design landscape when 3D printing comes around will probably not be entirely inaccurate.

I don’t typically mention the legal blog stuff I do here, but I think my discussion of the Supreme Court of Canada’s recent decision in R. v. J.A. – the “you can’t consent in advance to sexual activity taken place while you sleep” case – would be of interest to my greater readership, so here you go. (Feel free to comment here if you like, of course.)

Since I have graduated from law school and am now working at Wise Law Office, it’s incumbent upon me to mention that Ontario-area readers in need of legal counsel – particularly those in the southern half of Ontario – should consider us, as we are A) quite good and B) quite reasonably priced, and make an effort to keep costs down for our clients.

We don’t take on criminal or immigration matters at present, and specialize in family and employment law issues, but we’ll take most civil matters under consideration. (I am personally hoping for some intellectual property law actions to show up sooner or later.)

Toronto’s papers did not react particularly well to the recent superior court decision striking down prostitution laws, so I wrote about it.

Seeing those pages MGK posted from his reworking of “Civil War” reminded me of the story that was supposedly going to shake up the Marvel Universe forever. (So let’s see…Cap’s alive again, Spider-Man’s secret identity was restored, Iron Man’s brain was literally reset to pre-Civil War status, and the Registration Act was repealed. And most of the people involved were Skrulls anyway. But Black Goliath is still dead!)

But what really irked me at the time was Marvel’s claim that this was a more “realistic” look at how super-heroes would operate in the real world. In the real world, they said, super-heroes would be regulated and controlled. In the real world, there would be an authority governing them. In the real world, things would look like they did in “Civil War”.

Suuuuuure they would. That press conference where Tony Stark announced the Registration Act, and revealed his secret identity to wild applause from the crowd of reporters? Would have gone something like this.

“I’ve revealed my secret identity before, but always in ways I could go back on. This time, there’s no going back. I’m Tony Stark, and I’m Iron Man.”

“Mister Stark…didn’t you just say a few weeks ago that you were retiring from being Iron Man after the stress of your dual identity caused you to get drunk and publicly threaten to kill the Latverian Ambassador?”

“Um, yes, but that was evil magic, not alcoholism that–”

“Have you always been Iron Man? What about the time you claimed you ‘fired’ Iron Man for attacking government agents and murdering a Russian super-hero? Was that a lie too?”

“I think I should wait to speak to my lawyer about–”

“You don’t actually have any super-powers, Mister Stark, yet you’re claiming that the new Super-Hero Registration Act requires you to register because of your possession of the Iron Man armor. What happens if you decide to license or sell the armor? Does the new owner instantly become a law-breaker?”

“Well, these are questions that will be answered by the courts when–”

“As we understand it, you attempted to arrest Captain America for failing to register under the Act before it was even enacted into law. Isn’t that a blatant abuse of your new-found power?”

“This press conference is over.”

Soon, Iron Man would be forced to resign, the law would be tied up in the courts for years before being declared unconstitutional, and the Negative Zone prison would wind up being an expensive and unworkable boondoggle due to the use of shoddy and substandard contractors. Then Blaastar shows up at the United Nations, asking them to condemn America’s invasion of his sovereign territory…