Book Review: “New Law, New Rules” by George Beaton

[Originally posted, with a few editorial changes, at Canadian Lawyer]

New Law, New Rules, by its very nature, shows how much the practice of law has changed. It is dubbed “a conversation about the future of the legal services industry,” and while Australian consultant George Beaton is billed as the author, it’s really a collaboration from dozens of lawyers, professors and analysts from around the English-speaking world.

The logistics of putting something like this together even ten years ago would have been daunting. However, Beaton and his collaborators compiled enough material for a book after months of stimulating debates and discussions carried out over their blogs, twitter feeds and other social media platforms.

The result is a rather informative and thought-provoking e-book that should make every lawyer reconsider how they’re running their practices. The past decade-and-a-half has seen many alternatives to the traditional law firm arise – virtual firms, where much of the work is done outside of a central office; firms using fixed fees, as an alternative to the traditional billable hour; even companies like LegalZoom (co-founded by Robert Shapiro, best known for his position on O.J. Simpson’s “dream team”) which prepare forms and some online guidance for people who wish to represent themselves.

Beaton uses the term “NewLaw” to describe these developments, and notes that a “NewLaw” firm – Axiom Law, whose employees work remotely to keep overhead low – is on pace to become the world’s largest law firm by 2018 – even though the company would bristle at the phrase “law firm.”

New Law, New Rules explains how companies like Axiom are much more reliant upon technology than the traditional firm, which may be more likely to balk at the cost. And they’ve thrown out the traditional partnership model, instead relying upon outside investors and shareholders. (In Britain, where new legislation has opened the doors to outside ownership of law firms, commentators have invoked the name of that country’s largest supermarket chain to discuss the rise of “Tesco Law.”)

And yet, if the NewLaw business model was so obviously superior to the way traditional “BigLaw” firms are run, the latter would have been run out of town years ago. But the law firm as we’ve always known it isn’t going away any time soon – in fact, several of the contributors to New Law, New Rules passionately defend the “old-fashioned” model.

The larger firms still continue to attract the top graduates from the most highly regarded law schools, and they still have the resources to navigate the most complex international transactions. And after the Great Recession, they’ve proven to be a safe haven for those who aren’t sure they want to try out a newer, more innovative but less established legal service provider.

Still, there’s no doubt that things have changed more in the past few years than they did in the previous few decades. It’s reflected in my own practice – I do quite a bit of my own legal work from my home office or on the road, and the internet has opened a wealth of affordable (or even free) legal resources that let me access texts, journal articles and case law without having to open a book. It used to be that only the larger firms had the largest law libraries; now, the playing field has been leveled.

At the same time, I’ve been reluctant to adopt other NewLaw practices, such as flat fees. I can estimate how much it may cost to handle a hotly contested divorce from start to finish, but until the matter is well under way, I can’t say how cooperative the other party will be, or whether there will be a dramatic change to the parties’ living arrangements (say, a child decided to leave Mom’s house and move in with Dad).

I intend to be in this business for a long time, so I have to do a lot of thinking about how I’m going to conduct my practice in the years to come. New Law, New Rules, available in electronic formats only, from retailers including Amazon and Smashwords, can be a hard, buzzword-heavy read at times, but it helped me see which way the winds are blowing.

Book Review: “The Disaster Artist” by Greg Sestero and Tom Bissell

[originally posted at Blogcritics]

When Greg Sestero was trying to make it as an actor, his friend Tommy Wiseau asked him how to earn a Screen Actors Guild membership. Sestero responded that he could gain admission to the actors’ union by being the principal actor in a TV commercial.

Wiseau, naturally, decided to produce, write, direct and star in a bizarre “advertisement” for his company, Street Fashions USA, in which he dressed as a Shakespeare character and asked, “To be or not to be, that is the question.” When Sestero saw the commercial, he quickly realized that it was an homage to his own role in the B-movie Retro Puppet Master. “When it ended I wondered if Tommy’s commercial had sent the SAG people deep into their application’s fine-print jungle,” writes Sestero, “searching for something, anything, to prevent this Shakespearean denim peddler from joining their ranks.”

A few years later, of course, Wiseau went from making his own TV commercial to producing, writing, directing and starring in his own feature film, The Room, which he thought would make him a superstar. And it did, in a way. Eleven years after its release, The Room is still packing them in at midnight screenings around the world, where audiences partake in rituals like throwing plastic spoons at the screen (don’t ask) and screaming their favorite lines.

Sestero co-starred as “Mark,” who is having an affair with the irresistibly seductive girlfriend of Wiseau’s pure-hearted, successful and saintly character, “Johnny.” But he met Wiseau years earlier in his San Francisco acting class, and struck up a turbulent but genuine friendship with the mysterious, lumpen, strangely-accented, middle-aged man who wanted to become the next great thespian. That friendship, and the making of the greatest cult movie of our generation, is recounted in The Disaster Artist, co-written with Tom Bissell.

The chapters in The Disaster Artist alternate between explaining how Sestero met and became close to Wiseau, and describing the chaotic making of his dream project. And no matter how crazy you think it was on the set of The Room, you have no idea until you read this book. At least three Directors of Photography took turns shooting the film. Cast members came and went almost on a daily basis. And the simplest scenes took hours and even days to film, largely because of Wiseau’s inability to remember the dialogue he wrote. Fittingly, the book includes a behind-the-scenes photo of Zsolt, the Hungarian-born sound man, sitting at his equipment with his head in his hands.

The Disaster Artist at least provides some clues as to how The Room could possibly have cost $6 million to produce — not 47 Ronin money, of course, but a staggering amount considering what ended up on screen. For one thing, Wiseau inexplicably decided to buy 35mm and HD cameras — equipment that is usually leased even by the major studios, because of its staggering cost and impending obsolescence — on which the movie was shot simultaneously. This required two different crews, but the equipment supplier was at least grateful enough to let Wiseau shoot much of his movie — including the famed “rooftop” scenes — in its parking lot. (As production dragged on for months, alas, even they came to regret their generosity.)

Later, Sestero would find out that his friend owned prime real estate in San Francisco, where the rooftop scenes could have been filmed for far less money, and would have looked much more convincing. But such common sense was in short supply on the set of The Room. For one of the few scenes that didn’t make it into the movie, the crew were forced to construct an unconvincing “alley” set in the parking lot, even though a real alley was just a few feet away.

The chapters about the making of The Room are shocking and hilarious. But the rest of the book, while also very funny, is strangely touching.

Sestero isn’t really sure why he was drawn to Wiseau, but there’s no doubt about what attracted this strange, foreign, odd-looking aspiring star to his young friend. Sestero worked as a model in Italy before trying his hand at acting, and Wiseau undoubtedly saw in his friend everything he wanted to be — young, handsome, vibrant and social. When Sestero was taken on by a prominent agent and started earning some small roles, Wiseau’s longing for stardom got greater at every step.

In The Disaster Artist, Wiseau comes across as socially inept and just plain weird at every turn. (Early in the book, when Sestero and his friend seem to be hitting it off with some attractive young women, Wiseau inexplicably asks, “so, what do you do besides drink?”) But he was also capable of tremendous generosity, such as letting Sestero stay in his Los Angeles apartment while trying to get his acting career going, and taking him on memorable adventures such as a trip to the spot where James Dean was killed.

Late in production of The Room, Sestero has an epiphany about what his friend was looking for:

A few nights later we filmed Johnny’s birthday party scene on the new rooftop. Tommy’s line in this scene was to say, “Hey, everybody! I have an announcement to make. We’re expecting!” After this everyone was supposed to file up to him and shake his hand. …


I thought about how sad this party scene really was. Having all of Johnny’s closest friends and future wife gather together to celebrate his birthday – with a child on the way, no less – was Tommy’s dream life. But it was a dream life in line with what he thought an American would want. After all, Johnny’s life in The Room doesn’t quite resemble anyone’s idea of a perfect life: working in a bank, not getting your promotion, living in a crappy condo, having a future mother-in-law all up in your business. Johnny’s life was everything Tommy had no chance of having, on the one hand, but it was also what few people would actually want for themselves, were they lucky enough to design their lives. Tommy didn’t know what he didn’t know about the dreams of others.

The reason The Room has become such a cult phenomenon is because of its sincerity. Tommy Wiseau really thought he was making a masterpiece, and its story of betrayal and heartbreak obviously comes from his own experience. Anyone can make a bad movie, but the truly great bad movies — Plan 9 From Outer Space, Birdemic, The Room — are the ones their filmmakers didn’t realize were so bad. And even today, as audiences around the world laugh at the most serious scenes, it’s not quite clear whether Wiseau knows they’re laughing at him.

Apparently, however, Wiseau signed off on his friend writing The Disaster Artist, despite the book’s often unflattering portrait of him. Maybe, after all these years, he’s in on the joke more than we thought.

Book review: “Rise of the Warrior Cop” by Radley Balko

[originally posted at Canadian Lawyer]

The next thing [Cheye] Calvo remembers is the sound of his mother-in- law screaming. He ran to the window and saw heavily armed men clad in black rushing his front door. Next came the explosion. He’d later learn that this was when the police blew open his front door. Then there was gunfire. Then boots stomping the floor. Then more gunfire. Calvo, still in his boxers, screamed, “I’m upstairs, please don’t shoot!” He was instructed to walk downstairs with his hands in the air, the muzzles of two guns pointed directly at him. He still didn’t know it was the police. He described what happened next at a Cato Institute forum six weeks later. “At the bottom of the stairs, they bound my hands, pulled me across the living room, and forced me to kneel on the floor in front of my broken door. I thought it was a home invasion. I was fearful that I was about to be executed.” I later asked Calvo what might have happened if he’d had a gun in his home for self-defense. His answer: “I’d be dead.” In another interview, he would add, “The worst thing I could have done was defend my home.”

Calvo’s mother-in-law was face-down on the kitchen floor, the tomato-artichoke sauce she was preparing still sitting on the stove. Her first scream came when one of the SWAT officers pointed his gun at her from the other side of the window. The police department would later argue that her scream gave them the authority to enter the home without knocking, announcing themselves, and waiting for someone to let them in.

Rather than obeying the SWAT team demands to “get down” as they rushed in, Georgia Porter simply froze with fear. They pried the spoon from her hand, put a gun to her head, and shoved her to the floor. They asked, “Where are they? Where are they?” She had no idea what they were talking about. She told them to look in the basement. She would later tell the Washington Post, “If somebody puts a gun to your head and asks you a question, you better come up with an answer. Then I shut my eyes. Oh, God, I thought they were going to shoot me next.”

Calvo’s dogs Payton and Chase were dead by the time Calvo was escorted to the kitchen. Payton had been shot in the face almost as soon as the police entered the home. One bullet went all the way through him and lodged in a radiator, missing Porter by only a couple of feet. Chase ran. The cops shot him once, from the back, then chased him into the living room and shot him again.

Even after they realized they had just mistakenly raided the mayor’s house, the officers didn’t apologize to Calvo or Porter. Instead, they told Calvo that they were both “parties of interest” and that they should consider themselves lucky they weren’t arrested. Calvo in particular, they said, was still under suspicion because when armed men blew open his door, killed his dogs, and pointed their guns at him and his-mother-in-law, he hadn’t responded “in a typical manner.”

Such stories are far too common, unfortunately, and no one does a better job keeping track of them than libertarian journalist Radley Balko.  Writing for the Huffington Post after several years at Reason, Balko has chronicled dozens of nightmarish stories about prosecutorial abuse and dangerous – and often deadly – overreaction by police forces.  And now he has written what might be the most important book of the year.

The American Bill of Rights contains a provision against the quartering of military personnel in civilian households – a reaction to the stationing of British soldiers in American cities, a grievance which led to the American revolution.  But you’d hardly know it today, when you see the equipment, gear and tactics used by SWAT teams even in medium-sized American communities.

Indeed, SWAT teams have become so ubiquitous it’s hard to believe they’re a relatively recent invention.  Following the Watts riots in 1965, soon-to-be Los Angeles police chief Darryl Gates created the country’s first Special Weapons and Tactics force, quickly using it high-profile confrontations against radical groups like the Black Panthers and Symbionese Liberation Army – with the media in tow.

Gates figures heavily in Balko’s narrative – he was ahead of his time in acquiring surplus armored personnel carriers (disingenuously marked “Rescue Vehicle”) for the LAPD.  But even he refrained from many of the tactics commonly used today.

Meanwhile, the Supreme Court of the United States (under Chief Justice Earl Warren) was issuing consistently liberal decisions – most notably Miranda – which extended the rights of the accused.  With crime becoming a more important issue for voters during that turbulent era, the Nixon Administration seized an opportunity to crack down against perhaps the most easily demonized class then and now – illicit drug users.  The age of paramilitary-style assaults in the service of civilian law enforcement had begun.

The “War on Drugs” escalated in the eighties, and police tactics became increasingly aggressive – not just against gangs and drug traffickers, but against people keeping small skins of marijuana for their own use.  On paper,  “no-knock” raids, in which police burst into a home without having to knock and announce their presence, were only allowed after strict scrutiny by a judge.  In practice, police requests for no-knock warrants were rubber-stamped by the courts.  SWAT teams, meanwhile, began showing up in smaller cities, then the suburbs, and even rural areas.

Crime in America has dramatically declined since the early 1990s, but police tactics have only gotten more aggressive, aided by a series of court decisons that have neutered the Fourth Amendment (which is supposed to guard against unreasonable search and seizure).  Some would argue a clear cause and effect, but Balko convincingly argues that the fall in violent crime has occurred despite the militarization of police, not because of it.

Indeed, aggressive police raids – where doors are kicked in, machine guns are held to civilians’ heads and houses are completely ransacked – create a backlash against the police and against the legal system in general – especially when these tactics are used against “crimes” as mundane as raiding poker games, checking high school students’ lockers for drugs, and even cracking down on unlicensed hairdressers.

Balko notes that a backlash against police militarization has been building in recent years, a promising development undermined by the fact that American politicians tend to be outraged by this kind of thing when the other party controls the White House.  His main proposal for reform is ending the costly, unworkable and devastating “War on Drugs”, but he acknowledges that this is extremely unlikely – though with a few states voting to legalize the weed entirely, who knows?

In the alternative, Balko suggests more community policing, having SWAT team members wear video cameras, and curtailing the practice of civil asset forfeiture (in which property is seized from people accused of drug-related offences, and which in practice has become a serious revenue stream for federal, state and municipal governments.)

But this is just an American phenomenon, right?  To a much greater extent than in Canada, yes.  But ask the family of Sammy Yatim how quickly our own police officers reach for their weapons.

Book review: “Wrong Side of the Law” by Edward Butts

[Originally published on]

As of this writing, American fugitive Edward Snowden – on the lam after releasing details of the National Security Agency’s domestic and international spying programs – is stuck in the international transit area of Moscow’s Sheremetyevo airport.  100 years ago, Snowden might have had an easier time escaping the clutches of the U.S. justice system – he could have just hopped over the sparsely populated, largely unguarded border with Canada and found a nice spot to hide out.

(Of course, 100 years ago people would have said, “internet? What is this sorcery?”  But you see my point.)

During the old West days, many American outlaws fled north, where they faced potential capture by the North West Mounted Police, but that was better than a lynch mob.  And in Alberta and British Columbia, there were still plenty of banks to rob and livestock to steal.

The notorious “Dutch Henry,” a staple of newspapers and pulp magazines from the period, was a particularly handy with a “running iron” – which could be used to change the brands on cattle and horses – and made a good living driving them from Montana to Western Canada.  The Newton Boys, portrayed by Matthew McConaughey and Ethan Hawke in a 1998 movie, pulled off a daring bank robbery in downtown Toronto.

Mind you, Canada produced enough outlaws on its own without having to import them from the United States.  And sometimes, it even went the other way around – a Nova Scotia boy named Charles Nelson would go on to become “Sam Kelly” of Butch Cassidy’s legendary Wild Bunch.  As his colleagues were jailed or arrested, Nelson/Kelly – tried of running from authorities in Canada, the United States and Mexico – turned himself in, settled in Saskatchewan after his release, and actually reached old age.  (His neighbours couldn’t help noticing how many mysterious American strangers kept visiting his ranch, though.)

There are many more long-forgotten Canadian crime stories where these came from, and Edward Butts’s very entertaining Wrong Side of the Law will surprise many readers who didn’t know this peaceful country had such a rich criminal history.

There’s the “polka dot gang,” named for the polka-dot bandannas they used to hide their faces, who terrorized southern Ontario banks – and became a media sensation – in the forties.  Perhaps the most compelling chapter is about Lucien Rivard, a Montreal hoodlum whose audacious escape from prison was a huge embarrassment to the federal and Quebec governments – especially when opposition politicians started asking embarrassing questions about his alleged ties to officials in the government of Lester Pearson.  Federal justice minister Guy Favreau was forced to resign, and Rivard was named “Canadian newsmaker of the year” in 1965.

And yet, in 2013, you could probably ask 100 random people on a Canadian street, and none of them would have any idea who Lucien Rivard was.  Perhaps it’s because we don’t have Hollywood at our disposal, or maybe we just think too highly of ourselves to acknowledge our own outlaws and gangsters, but these tales just haven’t penetrated our historical memory the way they would in the United States or many other countries.

That’s too bad, because if more Canadians knew about these colorful and fascinating figures, they might be more interested in their country’s allegedly “boring” history.  Wrong Side of the Law is a very good place to start.

Book Review – Without Honour: The True Story of the Shafia Family and the Kingston Canal Murders by Rob Tripp

[Originally posted at Canadian Lawyer]

“My children did a lot of cruelty toward me.”
– Mohammad Shafia, testifying at his trial for murdering his first wife and three daughters

His daughters’ “cruelty” manifested itself in several ways: wearing revealing and immodest clothing, dating boys, and refusing to follow his strict orders. And for that, they had to die.

In June, 2009, a Nissan Sentra was found at the bottom of the Rideau Canal near Kingston, Ont. The bodies of teenagers Zainab, Sahar, and Geeti Shafia, and 50 year-old Rona Amir Mohammad, were trapped inside.

Mohammad Shafia, a prosperous Montreal businessman originally from Afghanistan, insisted one of his daughters had taken the car without permission, and crashed into the canal by accident. His second wife and his 20 year-old son backed him up. But investigators were immediately skeptical, especially after it became clear another, larger vehicle had pushed the little Nissan into the canal.

Moreover, the older Shafias’ behaviour on that tragic night made little sense. In particular, they couldn’t satisfactorily explain why son Hamed drove home from Kingston in their Lexus SUV, reported a fender-bender in a Montreal parking lot, and returned in the family minivan the next day.

The damage to the Lexus perfectly matched debris remaining at the crime scene, and despite their heated denials, Mohammad Shafia, Hamed Shafia, and Tooba Mohammad Yahya were arrested and charged with first-degree murder and conspiracy to commit murder. The trial, and the events leading up to it, are covered in investigative reporter Rob Tripp’s riveting Without Honour: The True Story of the Shafia Family and the Kingston Canal Murders.

Tripp, whose reporting on the Shafia case earned him two National Newspaper Award nominations, begins the story in Afghanistan, where Mohammad Shafia married Rona just before the Red Army invaded. As the country descended into brutal war against the Soviet Union, and then total anarchy after the Russians left, Shafia moved his family to Pakistan, Dubai, Australia, and finally Canada, where he became a successful property developer.

Before leaving Afghanistan, the still-childless Mohammad took a second wife, Tooba, who gave birth to all of the Shafia children. But Rona would play at least as large a role in raising them, and would accompany the family to Canada — officially as a domestic servant, to get around Canada’s laws against polygamy.

Rona was treated little better than a servant in Canada — her passport was taken away to keep her from leaving for another country, and Mohammad and Tooba made it very clear they could have her deported back to war-torn Afghanistan if she didn’t play along. Meanwhile, as teenagers Zainab, Sahar, and Geeti entered adolescence, they openly rebelled against their father’s strict household rules. Eventually, the “humiliation” became too much for their parents and loyal older brother to bear.

Unsurprisingly, considering the subject matter, media coverage of the Shafia murders was controversial, with newspapers and television networks varying in the attention paid to the perpetrators’ (and victims’) religion and culture. Tripp, for his part, reports that Mohammad Shafia was a devout Muslim when it suited his purposes, and that his actions arguably had more to do with his upbringing than his faith:

He did not attend mosque and he did not read the Qur’an daily, as had Rona.
He knew only what he had seen growing up in Afghanistan, that women were the property of men and should be obedient, passive and chaste. In his household, the girls had been ordered not to associate with boys until they had completed their studies. Shafia saw no offence in calling his daughters “prostitutes” and “whores” when it was clear that they had ignored that rule. He was prepared to accept the consequences of his deeds, and he exhorted his son and wife to follow him.

Shafia was so brazen about his desire to punish his children that he mused about it on the telephone with horrified relatives, who later testified against him at trial. They felt it was their duty as devout Muslims to testify against him in court.

Mohammad and Tooba actually testified in their own defence, and did themselves few favours with self-serving and contradictory answers that are almost painful to read. But their lawyers did raise a very strong point — despite all the evidence linking their parents and brother to their deaths, investigators were unable to conclusively determine how the Shafia girls died in the first place. The bodies’ positions in the car, and the absence of any escape attempt, suggest they were killed before the Nissan was pushed into the canal. But how this was done remains a mystery.

Nevertheless, the parties were convicted and sentenced to lengthy prison sentences. The case may not be closed for quite some time, however, as they promptly appealed the verdict. The cultural and religious issues that arose during the investigation and trial, not to mention questions surrounding the way the victims died, will give appellate justices much to consider.

Eventually, a revised and updated edition of Without Honour may be necessary. For now, though, it is a detailed, damning, and thought-provoking chronicle of one of the saddest criminal cases in recent Canadian history.

Book Review: Charlie and the Angels: The Outlaws, the Hells Angels and the Sixty Years War

[originally posted at Canadian Lawyer]

A one-percenter is the one of a hundred of us who has given up on society and the politician’s one-way laws.
This is why we look repulsive.
We are saying we don’t want to be like you or look like you.
So stay out of our face.
God forgives, Outlaws don’t

– The “Outlaws’ Creed”
Pop quiz: name the world’s largest outlaw motorcycle gang.

I suspect most of you answered “Hells Angels,” the notorious California-based organization that more or less invented outlaw biker culture as we know it. But you would be wrong.

The Outlaws, founded in Illinois in the early 1950s, actually has more members around the world than their better-known rivals. But they’ve made a point of maintaining a lower profile than the Angels — to the extent tough-looking guys on Harley-Davidson bikes, wearing a skull-and-crossbones named “Charlie” on their backs, can keep any kind of lower profile — and maybe that’s part of the reason they’ve become so big.

That, and the fact they’ve proven they aren’t afraid to take on the Hells Angels, or other outlaw biker gangs, on their own turf. For decades, the Angels and the Outlaws have been locked in a brutal, worldwide battle for territory — win a city, state, or country and the gang controls the drug trade, prostitution, and other organized criminal activities.

The bloody rivalry is described, in riveting detail, in Charlie and the Angels: The Outlaws, the Hells Angels and the Sixty Years War by Alex Caine. Caine hasn’t just studied the one-percenter lifestyle — he claims to have lived it, as an undercover operative for police forces in Canada and around the world (“Alex Caine,” needless to say, is a pseudonym).

Legend has it the newly formed Outlaws sent messengers to the Hells Angels in the 1950s, proposing an alliance. The Angels allegedly beat the tar out of the Outlaw ambassadors and sent them back home with a two-word response I probably can’t repeat here. The rivalry got worse during the turbulent ’60s, and except for a short-lived truce brokered at the infamous Sturgis biker rally in 1984, it’s been total war ever since.

The most fascinating parts of Charlie and the Angels describe the network of support clubs and prospects set up to cultivate full-patch Outlaw members. The third-largest American biker gang, the Bandidos, is closely allied to the Outlaws (and often do much of their dirtiest work for them). Both the Outlaws and the Hells Angels sponsor smaller clubs, usually in cities that are just starting to open up to outlaw biker culture, which have different names but wear the same colors as their parent organizations — black-and-white for Outlaws, red-and-white for Angels.

In North America, police forces have infiltrated the Outlaws and rival gangs, often straddling the line between merely reporting on criminal activities and actually encouraging them. Interestingly, Caine notes in Germany and other European nations dealing with the biker threat, such undercover operations aren’t allowed — leaving the police with little to do until after the Angels or Outlaws do something illegal (the Dutch, in a move that even the most jaded satirist couldn’t dream up, actually built a clubhouse for the Hells Angels when they showed up in the 1970s).

Charlie and the Angels is a somewhat disjointed work that skips around the world, and back and forth in time, giving the impression that many of its chapters were initially written as stand-alone articles. But it is rare for someone to infiltrate this mysterious, often romanticized world, and live to tell about it. That alone makes the book well worth reading.

Caine admits to a kind of grudging respect for the Outlaws, for how the club has been able to survive and thrive for so long. “If drugs became legal tomorrow, that would be the end of the Hells Angels,” he writes, “but I’m convinced the Outlaws would survive. If the Outlaws lost everything, the houses, the cars, the money, they would get on their bikes and tear up a stretch of highway, looking to see what was over the hill.”

Book review: A Cruel Arithmetic: Inside the Case Against Polygamy by Craig Jones

[Originally posted at Canadian Lawyer]

When s. 293 of the Criminal Code of Canada was referred to the British Columbia Supreme Court, I wrote that I believed the law was clearly unconstitutional in its current form:

If this case was about legal recognition of polygamy — with massive implications for family law and even immigration policy — it would be much more challenging.

At issue, however, is whether a polygamy should be a criminal offence. Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.

Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults. I would be very surprised if the B.C. Supreme Court — and, ultimately, the Supreme Court of Canada — does not find that the section is overly broad and therefore unconstitutional.

The Supreme Court of B.C., of course, did uphold the constitutionality of s. 293. (This is why you shouldn’t take my stock market or fantasy football predictions, either.) But the debate isn’t over, and the anti-criminalization arguments summarized in my blog post will still be forcefully made by religious and pro-polyamory activists.

Craig Jones, who represented the British Columbia Department of Justice in the Polygamy Reference, could not disagree with these arguments more strongly. A longtime civil libertarian, Jones was confident the constitutionality of s. 293 would be upheld, but he initially did not personally take a strong position against the practice.

By the time the matter made it to court, however, he was convinced polygamy is an inherently harmful practice that should not be tolerated in a modern society. He explains his evolution, and the case against polygamy, in his fascinating book A Cruel Arithmetic: Inside the Case Against Polygamy.

In a polygamous society like Bountiful, B.C. — a mysterious, secretive colony populated by members of the Fundamentalist Church of Latter-Day Saints, the breakaway Mormon sect which practises “plural marriage” — this “cruel arithmetic” inevitably manifests itself in two ways. Every time a man takes an additional wife (polyandry, the taking of multiple husbands by a woman, is almost unknown) another man in the community is left with no one to marry. And as the adult females are married off, younger and younger wives are taken. The results: child trafficking, sexual exploitation of minors, and “lost boys,” who are marginalized and even expelled from their homes:According to Jones, it is not enough for the state to take action against only “bad” polygamy involving young children or coercion and abuse:

Again and again, the discussion circled back to the fact that academic writers seemed to consider only harm arising in polygamous marriages, not polygamous societies [emphasis added]. The focus was entirely on how to accommodate polygamous unions while minimizing or addressing possible harms to co-wives and children. The commentators concluded that banning polygamy was unconstitutional because the law could be written to apply only to “bad” polygamy, or the state could simply scrutinize polygamous marriages looking for abuse and crimes. But the “cruel arithmetic” effect on the targeting of girls, like the increased criminality of men in the polygynous society, would be felt everywhere, and this was so even if every polygynous marriage was harmless, egalitarian, and restricted to fully consenting adults.

One of Jones’s expert witnesses, Dr. Joe Henrich, forcefully made the case that a “nontrivial” increase in polygamy would result in higher rates of crime and anti-social behaviour from the growing number of unmarried males (this has been the experience in China, where the “one-child” policy has led to an imbalance in the number of males and females).

But surely if polygamy were decriminalized, very few Canadians would take up the practice, right? Jones isn’t willing to take that risk. He devotes a lengthy chapter to the findings of historians and evolutionary psychologists, who note monogamous societies are a relatively new development. And, of course, there are still many nations where polygamy is legal and/or widespread, and it’s not hard to believe immigrants from these societies would be attracted to Canada — multiple wives in tow.

A Cruel Arithmetic makes a very strong case against polygamy, but does it make a strong case for criminalizing the practice? I find Jones’ arguments compelling (as did the British Columbia Supreme Court, obviously) but I still believe consenting adults have an inalienable right to enter into whatever arrangements they want.

Indeed, adults can enter into polyamorous relationships, provided they don’t go through anything like a marriage ceremony. Once the relationship becomes a “marriage,” though, it becomes a crime. As the distinction between even monogamous marriage and common-law relationships becomes less clear, I believe this becomes increasingly hard to justify. Even Jones has a difficult time pulling it off, in my opinion:

There may be harms that attached to some “polyamorous” relationships that weren’t marriages. But in my view, there was something about marriage, about the invocation of some external authority with (even notional) powers of enforcement, that permitted polygamy “take” a spread. . . . Who knows, if polyamory really does take off, and if it caused the same problems as polygamy, perhaps the law would have to be changed to accommodate that new reality. But line drawing, as we would urge the Court, is Parliament’s business, and when dealing with a spectrum of risks and harms the line has to be drawn somewhere.

Jones puts forward evidence that polygamy leads to societal harms that justify infringement upon some individual rights. But we have to be careful about where that line of thinking can lead us (would an abortion ban be justifiable if social science research showed harm arising from a declining birth rate?).

There’s also the fact Canada has tolerated the practice of polygamy in Bountiful for decades. There might be a Criminal Code section that makes polygamy a criminal offence, but it hasn’t stopped a polygamous community of 1,000 people from developing in the B.C. interior. We’ve known what’s been going on there for years, but nothing was done about it. And the longer it takes, the harder it becomes to suddenly start prosecuting it.

Moreover, Canadians know the anti-polygamy law is almost never enforced, but that certainly hasn’t led to many more “plural marriages.” If anything, the existence of Bountiful — a closed, cultish community that feels like a throwback to the 19th century — has probably made polygamy less attractive to mainstream Canadians. Who wants to live like those guys?

The case against officially recognizing polygamous unions, however, is much more strong (if anything, A Cruel Arithmetic is useful for rebutting the argument made by anti-gay-marriage activists, that recognizing same-sex marriage will lead to a slippery slope toward officially sanctioning polygamy). We can respectfully disagree as to whether it should be a crime, but we can agree that polygamy is a very troubling practice.

More importantly, A Cruel Arithmetic describes this major Canadian constitutional argument in more detail than I’ve seen in any other book. The duelling lawyers and their personalities, the clashes within the civil service, the preparation and cross-examination of witnesses — it’s all here. And it is absolutely riveting, especially when Jones describes the dismantling of dubious “expert” witnesses trying to make the case that polygamy is not so harmful. I’d go so far as to say every law student should read it, and many practising lawyers could learn a lot from it, too. I certainly did.

Book review: “From the Closet to the Altar”

[Originally posted at Canadian Lawyer]

In 1957, a prominent American group denounced homosexuality as “socially heretical or deviant,” and determined that laws against it posed no constitutional problems. That organization: the American Civil Liberties Union. For years thereafter, “sodomy” was a criminal offence in every state.

In 2012, the president of the United States spoke out in favor of same-sex marriage, and his party endorsed it in its official platform. Gay marriage is legal in six states and Washington, D.C., and many other American states have allowed “civil unions” — marriage in all but name — for same-sex couples. One of the year’s biggest controversies came when the president of a fast-food restaurant chain reaffirmed his company’s support for anti-gay-marriage groups, leading to boycotts (and counter-boycotts) across the country.

Gays and lesbians in the United States have come a long way in a short time (yet are still well behind Canada and many other nations). But with progress, there has been a massive backlash from conservative, religious Americans, who consider homosexuality sinful and officially recognized same-sex unions as a threat to the institution of marriage itself.

While the Democratic Party has become more accommodating of same-sex marriage, most of the Republican Party (with a few surprising exceptions like Dick Cheney) is adamantly opposed. While some states have legalized same-sex marriage, even more have adopted constitutional amendments defining marriage as between a man and a woman. While gay-rights activists have had some success in state courts and legislatures, voters have shot down the idea of same-sex marriage every time it has been put to a popular referendum — even in progressive California.

In this engrossing book, Harvard law professor Michael J. Klarman tells the history of the legal and political campaigns for same-sex marriage. But he also examines the tactics used by some gay-rights activists and organizations in pressing for equal marriage, and whether the resulting backlash has slowed progress toward gay and lesbian equality in other key areas.

The idea that gay and lesbian couples should be allowed to legally marry, with all of the state-sponsored benefits flowing therefrom, seemed like fantasy just 20 years ago. Gay Americans only began leaving the closet and demanding equality in the ’60s and ’70s, and during the ’80s and early ’90s they focused their attention on pressing issues like non-discrimination laws and the fight against AIDS.

That’s why a 1993 Hawaii Supreme Court decision, Baehr v. Lewin, caused an uproar. Baehrheld that the limitation of marriage to a man and a woman was discriminatory, and as a result Hawaii became the first jurisdiction in the world where same-sex marriages were officially recognized. The backlash was almost instantaneous, as even liberal Hawaiians were not ready to take this massive step forward. After years of legal and political wrangling, the state constitution was amended to limit marriage to opposite-sex couples. Other states made similar moves, and prominent gay-rights organizations (who had not supported the Baehr litigation, correctly determining it would be too much too soon) feared they were worse off than when they started.

The floodgates had opened, however. State courts in Vermont and Massachusetts also ruled that bans on same-sex marriage were unconstitutional, though the Green Mountain State ultimately settled on civil unions. Then came other New England states. Then came California. All the while, as ordinary Americans got to know more of their gay and lesbian neighbours, friends, and relatives, support for same-sex marriage continued to grow. Support for civil unions, once a radical idea in its own right, became a fallback position for conservatives (even Rush Limbaugh!) who continued to oppose gay marriage. Earlier this year, President Barack Obama finally determined that it was the right time to come out publicly in support of marriage equality — a development Klarman deemed unlikely before the next election.

Still, it continued to be two steps forward, one step back for the marriage equality movement. Voters in Maine and California chose to amend their state constitutions to ban gay marriage in response to controversial court rulings. Three Iowan supreme court judges who ruled a same-sex marriage ban unconstitutional were recalled. There is no doubt which way things are going, especially considering that younger Americans overwhelmingly support giving gays and lesbians the right to marry, but the fight isn’t close to over yet.

There is no doubt that Klarman supports same-sex marriage, but to his credit, Klarman resists the temptation to demonize its opponents. From the Closet to the Altar makes its points clearly and dispassionately, and is all the more persuasive as a result. Republicans who broke with their party to support same-sex marriage, such as the New York state legislators who voted with the Democrats to legalize it, are given their due, and divisions within the gay-rights movement are discussed in great detail.

Indeed, the point of From the Closet to the Altar is to determine whether gay and lesbian Americans are better off today, after years of emphasizing same-sex marriage, than they would have been if more incremental change had been sought. He determined that, on balance, they are — but that some serious setbacks have come about:

“On balance, litigation has probably advanced the cause of gay marriage more than it has retarded it. But such litigation has also probably impeded the realization of other objectives of the gay rights movement, and it has had significant collateral effects on politics. Because of the litigation, U.S. Senate candidates have lost their bids, state judges have lost their jobs, and the outcome of a presidential election may have been affected, which in turn has influenced the composition of the U.S. Supreme Court.”

Heading into the 2012 elections, voters in Maryland and Washington will decide whether same-sex marriage will become legal in their respective states. The people of Maine may soon revisit their decision to ban it, too. This issue isn’t going away, and From the Closet to the Altar is essential reading for anyone who wants to catch up on the subject heading into polling season.

This November, Americans will choose between Obama, who supports the right of gays and lesbians to marry, and challenger Mitt Romney, who does not. It’s not an issue Romney and the Republicans are keen to bring up on the campaign trail, however. A few years ago, it was an effective wedge issue. Now, it’s almost an embarrassment. And that should tell you which side has the momentum.

Review: “You Can’t Read This Book” by Nick Cohen

(Originally posted, in slightly different form, at Canadian Lawyer)

Britain’s plaintiff-friendly libel laws are so infamous, they’ve even inspired a gag on South Park.  In the notorious “Trapped in the Closet” episode, young Stan Marsh – thought to be the reincarnation of Scientology founder L. Ron Hubbard – announces that the “religion” is a giant scam.  Scientologist Tom Cruise, furious at this gross insult to his faith, declares, “I’ll sue you – in England!
The real-life punchine: “Trapped in the Closet” did not air on British television, because of the very real possibility that Cruise would successfully sue any broadcaster who tried.
A 2002 Vanity Fair article about a legendary New York restaurant, Elaine’s, was neither written by a Brit nor published in Britain, but that didn’t stop film director Roman Polanski from successfully suing the magazine for an allegedly defamatory anecdote included in the piece. (Supposedly, he was trying to pick up women at Elaine’s shortly after the murder of his wife, Sharon Tate. A jury found that this was devastating to Polanski’s reputation, which had been completely unsullied until the magazine came out.)
And then there’s Saudi banker Khalid bin Mahfouz, who used the British courts to sue American author Rachel Ehrenfeld over allegations in her book about terrorism financing – which had never been published in Britain.  Or Holocaust-denying “historian” David Irving, who sued U.S. author Deborah Lipstadt for being labeled a Holocaust denier in one of her American-published  books.  Irving lost (in a court battle recounted in Lipstadt’s excellent book History on Trial) but it’s damning enough that the British legal system allowed him to think he had a case.
When it comes to the issue of defamation, Britain’s court system is overwhelmingly tilted toward plaintiffs, and in practice, these plaintiffs are usually much more wealthy and powerful than those who offended them so.  Things hit rock bottom when corporations and football stars started obtaining “super-injuctions” which not only prevent anyone from spreading the allegedly slanderous allegations, but even revealing the existence of the injunction itself.

In You Can’t Read This Book, Nick Cohen, a columnist for Britain’s Guardian and Observer newspapers, identifies today’s major threats to freedom of expression.  The British legal system, which affects defendants all over the world (like Ehrenfeld, whose connection to the UK was that a few British people bought her book through Amazon) is just one.  The idea that religious believers have a “right not to be offended” is another.
When the Ayatollah Khomeini issued his 1988 fatwa calling for the murder of Salman Rushdie, the Western media and literati – with a few dishonourable exceptions – rushed to his defence.  By 2006, when the Danish newspaper Jyllands-Posten came under fire for publishing cartoons of Mohammed, something had changed.  While the cartoonists were placed until armed guard, and angry mobs around the world attacked anything that even looked Danish, the consensus seemed to be that Jyllands-Posten – and, by extension, Denmark – had been asking for it.
The internet is hailed as a magnificent tool for fighting censorship and government or corporate control, and Cohen concedes that, in some cases, it’s worked.  Any Briton who wants to watch “Trapped in the Closet” or read about Roman Polanski’s dating adventures can easily find it online.
That’s a double-edged sword, of course: radicals and would-be censors have been adept at using the internet as well.  For example, the story of the “blasphemous” Danish cartoons went viral, with more embellishments added the further it spread.
Moreever, Cohen makes a point that internet enthusiasts tend to forget: the web is available to the oppressors, too.  Democracy activists may use Facebook and YouTube to spread their message, but dictators can use the same services to mass their supporters in response.  The loathsome governments of Belarus and Iran use the web to track dissidents. China has built the world’s most advanced internet “firewall,” with the help of Western technology companies.  Google withdrew from China rather than censor its search results.  Its competitors have not.
I take issue with Cohen’s condemnation of the U.S. Supreme Court’s Citizens United decision – which, people tend to forget, came about after a political documentary wasn’t allowed to air on television.  It’s too bad Canada didn’t rate so much as a mention, either, despite our own wrangling over the issues raised in You Can’t Read This Book.  (Among Canadian media outlets, for example, only Ezra Levant’s Western Standard magazine published the Danish Mohammed cartoons – and promptly found itself on the wrong end of a human-rights complaint.  I hear Levant doesn’t like to talk about it much.)
Otherwise, there is little to criticize about his important, enlightening and often infuriating book, which illustrates how freedom of expression remains under sustained attack in what should be the freest era in human history.  I recommend that you read You Can’t Read This Book while you still can, especially before the British legal system gets its hands on it.

Review – The Church of Scientology: A History of a New Religion by Hugh B. Urban

[A version of this review originally appeared at]
An academic history of the Church of Scientology might not seem relevant to lawyers, unless you’re familiar with the controversial movement’s use of the justice system against its many detractors. Founder L. Ron Hubbard explained his legal philosophy in 1955: “The purpose of the [lawsuit] is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway . . . will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly.”
(I wish I could say I’ve never dealt with lawyers who subscribe to this line of thinking, but that’s another column.)The reclusive Hubbard died in 1986, but Scientology critics should still brace themselves for long, difficult, and expensive defamation actions brought by the organization. Time magazine and its parent company spent millions of dollars in legal fees defending its 1991 cover story “The Thriving Cult of Greed and Power.”  Church lawyers have demanded that Google remove anti-Scientology web sites from its search results. Most notoriously, the venerable Cult Awareness Network was forced into bankruptcy after years of litigation against Scientology — and then its name was purchased by a Scientologist who started up a Hubbard-friendly “New Cult Awareness Network.”
The organization really devoted its energies to a long, brutal legal battle with the Internal Revenue Service, trying to restore its designation as a tax-exempt religious organization. In The Church of Scientology: A History of a New Religion, Ohio State University religious studies professor Hugh Urban notes that Hubbard initially made no effort to claim he had founded a religion, and in fact made several comments disparaging religious belief. Dianetics, the founding text of Scientology (which initially appeared, fittingly enough, as an article in Astounding Science Fiction magazine), was subtitled “The Modern Science of Mental Health,” and the “religion angle” (Hubbard’s words, not mine) was only approached when the IRS started sniffing around.

Suddenly, Scientology buildings were adorned with an eight-pointed cross, Scientologists were sporting clerical collars, and a book of Scientology rites was hastily produced. The U.S. government remained suspicious, however, and things only got worse after “Operation Snow White,” an elaborate intelligence-gathering operation in which Scientologists infiltrated the IRS, was uncovered in 1977.

In 1993, however, Scientology and the American government reached a settlement, in which the church dropped several legal actions in exchange for official recognition as a tax-exempt religion. Now the organization is fighting the same battle in other countries, including Canada.

Urban’s book raises many thought-provoking questions about the distinction (if any) between a religion and a cult, and why some faiths are officially exempted from the tax system while others are not. Paradoxically, the United States Constitution forbids promotion of religion by the state, yet the state’s revenue agency has the power to determine what is “really” a religion and what is not.

He also illustrates how in recent years, the tables have been turned on Scientology, which now finds itself under attack from decentralized “anonymous” members who organize through the Internet. The church itself has launched many copyright-infringement lawsuits against web sites on which confidential “scriptures” — including the ones about evil intergalactic ruler “Xenu,” famously satirized on South Park — have been posted, but it is practically impossible to stop the viral spread of anti-Scientology material on the web.

The author shies away from taking a clear position on whether, in his opinion, Scientology truly deserves its official recognition. Indeed, Urban tries to remain neutral as to the benefits and/or harm caused by the organization and its practices, and whether its followers and leaders are sincere as to whether Scientology is really a system of religious belief. (The question of whether religious organizations deserve tax-exempt status at all is largely ignored.)

Urban’s history of this controversial movement is a good starting point for authors and academics who wish to review the legal, moral, and theological issues surrounding Scientology. But it might have been an even better book had he not decided to pull so many punches.

Unfortunately, when the subject is Scientology, it’s hard to say whether the author was trying to be fair or whether he wanted to avoid being sued.