Class activities
January 5
(i) What are rights?
(ii) Why do we have rights?
(iii) Where do rights come from? Do all cultures and traditions have rights?
(iv) Does everybody have rights?
(v) Are rights absolute?
(vi) Are rights a positive and beneficial notion? Should they be abolished?
January 12
- Free speech: a free market in ideas is essential both to democracy and to individual liberty. Government must demonstrate: (i) a compelling interest for censoring, (ii) a close causal connection between the harm that it allegedly causes (government must prove that there is a clear and present danger of harm before it can be suppressed), and (iii) that there is no less restrictive means of protecting its interests.
- Applying CLS deconstruction method, what value position is repressed (silenced) in article 19 of the South African Constitution?
19. (1) Every citizen is free to make political choices, which includes the right -
- to form a political party;
- to participate in the activities of, or recruit members for, a political party; and
- to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any
legislative
body established in terms of the Constitution.
(3) Every adult citizen has the right -
- to vote in elections for any
legislative body established in terms of the
Constitution, and to do so in secret; and - to stand for public office and, if elected, to hold office.
The kinds of legal reasons –appeals to doctrine, precedent, statutory text, and the reasoning by analogy, by which courts bring the doctrine etc. in to contact with the facts of a case- that judges offer in their opinions largely obscure the actual grounds of decision. Legal reasons don't really explain the decisions; legal reasons are often indeterminate, and equally good legal arguments can be given for very different outcomes. What really explains the decision is the judge's commitment to non-legal norms (moral, political, economic).
My colleague Lucas A. (Scot) Powe, Jr. has a pithy way of expressing the idea. He likes to say: "Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice." Why malpractice? Because such a teacher will not equip his or her students to advise clients intelligently about constitutional law issues, since what courts do with these issues, on the realist view, has far more to do with extra-legal political and related considerations than with doctrine.
Kristin Savell’s “The Mother of the Legal
Person” examines how the law assigns meaning to physical bodies especially in
the context of woman as mother. This is a fascinating discussion of the
implication of the law protecting the foetus inside the legal person.
Savell agrees with Ngaire Naffine who has argued that the body of liberal
theory and of criminal law is a bounded, masculine body, but women’s bodies
tend not to be regarded as bounded in a similar manner. This is
illustrated dramatically in stories of how pregnant women are treated by the
law. Ravell’s summary of recent United Kingdom and Canadian case law
supports her conclusion that a pregnant woman who carries a viable foetus is
not a legal person in the sense of a bounded (in control of her body boundaries)
self. Control of her body is assumed by other legal authorities who police the
boundary between self and foetus. She argues convincingly that the law is not
consistent in this regard and there is a danger that recognising the foetus in
law could result in oppressive paternalistic interference with pregnant
women.
How would each of the main theories analyze the decisions in the scenes from Legally Blonde II and Who gets in (Immigration)?
January 19
DALE VS. BOY SCOUTS
The first major challenge to the Boy Scouts of America's right of expressive association was levied by Rutgers student James Dale. The young Dale joined the Boy Scouts of America in 1978 and reached the rank of Eagle Scout ten years later. When he applied to be an assistant scoutmaster in 1989, he was accepted immediately. But when Dale arrived at college, he acknowledged that he was gay. A newspaper published a picture of him at a meeting of the Lesbian and Gay Alliance, and one month later his membership in the Scouts was revoked.
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Photo MTV.com |
Dale asked the Scouts why he had been ejected, and they confirmed it was because of his sexual orientation. He sued the Boy Scouts for violating New Jersey's anti-discrimination law, which prohibits discrimination on the basis of sexual orientation in places of public accommodation. The Boy Scouts answered that their Free Speech rights (expressive association) to bar homosexuals from serving as troop leaders would be affected if the New Jersey anti-discrimination law were applied.
Definition of Place
of Public Accommodation. – Each of the following establishments which
serves the public is a place of public accommodation:
I. Any inn, hotel, motel, or other establishment which provides lodging to
transient guests, other than an establishment located within a building which
contains not more than 5 rooms for rent or hire and which is actually occupied
by the proprietor of such establishment as his residence.
II. Any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or
other facility principally engaged in selling food for consumption on the
premises, including, but not limited to, any such facility located on the
premises of any retail establishment.
III. Any motion picture house, theater, concert hall, sports arena, stadium or
other place of exhibition or entertainment.
US v. Alvarez-Machain
(US S.Ct. 1992)
Dr. Alvarez-Machain,
a citizen and resident of Mexico, was indicted in the US as an accessory to the
kidnapping and murder of a US Drug Enforcement Administration special agent
(Dr. A-M allegedly medicated the agent to allow the kidnappers to torture and
interrogate the agent further). Unable to gain Dr. Alvarez’s presence in the US
through negotiations with Mexico, DEA officials arranged for the kidnapping of
Dr. Alvarez from Mexico to stand trial in the US. Dr. Alvarez claimed that the
US courts lacked jurisdiction to try him because his abduction violated the
US-Mexico extradition treaty.
US-Mexico extradition treaty:
EXTRADITION
Article I
OBLIGATION TO EXTRADITE
The High Contracting Parties undertake to surrender to
each other, subject to the provisions and conditions laid down in the following
articles, all persons against whom the competent authorities of the requesting
Party are proceeding for an offence or who are wanted by the said authorities
for the carrying out of a sentence or detention order.
Article 2
EXTRADITABLE OFFENCES
- Extradition shall be granted in respect of offences punishable
under the laws of the requesting Party and of the requested Party by
deprivation of liberty or under a detention order for a maximum period of
at least six months or by a more severe sentence or order.
Article 11
THE REQUEST AND SUPPORTING DOCUMENTS
2.
The
request for extradition shall be addressed in writing by the Minister of
justice of the requesting Party to the Minister of justice of the requested
Party.
3.
The
request shall be supported by:
a.
The
original or an authenticated copy of the conviction and sentence or detention
order immediately enforceable or of the warrant of arrest or other order having
the same effect and issued in accordance with the procedure laid down in the
law of the requesting Party;
b.
A
statement of the offences for which extradition is requested. The time and
place of their commission, their legal descriptions and a reference to the
relevant legal provisions shall be set out as accurately as possible;
c.
A
copy of the relevant enactments and as accurate a description as possible of
the person claimed, together with any other information which will help to
establish his identity and nationality.
Lopez-Mendoza
Adan Lopez-Mendoza and Elias Sandoval-Sanchez, both Mexican citizens, were ordered deported by an immigration judge in separate proceedings. The orders were issued based upon the INS’ arrest without any cause after which each respondent admitted to Immigration and Naturalization Service (INS) officials that they had entered the country unlawfully. Lopez-Mendoza and Sandoval-Sanchez challenged the orders on grounds that their respective arrests by INS officials were illegal and in violation of the Fourth Amendment.
The Fourth Amendment guarantees the right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to
be seized. According to the Fourth Amendment, if there is an illegal arrest,
the fruit of that illegal arrest should be excluded.
United States v.
Flores-Montano
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When Manuel Flores-Montano approached the U.S.-Mexico border, U.S. Customs inspectors noticed his hand shaking; an inspector tapped Flores-Montano’s gas tank with a screwdriver and noticed that the tank sounded solid; a drug-sniffing dog alerted to the vehicle. After a mechanic began disassembling the car’s fuel tank, inspectors found 37 kilograms of marijuana bricks in the tank. Flores-Montano was charged in federal district court in California for
importing and possessing marijuana with intent to distribute. Flores-Montano
moved to suppress the marijuana finding on Fourth Amendment grounds. He
argued that the search that yielded the marijuana finding was intrusive and
non-routine and therefore required reasonable suspicion (which, he argued,
was not present in his case). |
Please note that under similar circumstances, the district court agreed that the search was non-routine and thus required reasonable suspicion. The government, the court held, failed to prove that reasonable suspicion prompted its search.
South Florida Water Management District v. Miccosukee Tribe
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The Miccosukee Tribe of Indians and the Friends of the Everglades sued the
South Florida Water Management District under the Clean Water Act (CWA) in
federal district court. The suit alleged that the water district violated the
Clean Water Act by releasing pollutants from a pump system without a
discharge elimination system permit. The Clean Water Act prohibits the
"addition of any pollutant... from any point source" without a
specific permit. The water district defended its action by claiming that it
was not actually adding pollutants to the water, but merely transporting
polluted water from one body of water to another, less polluted, body. |
January 26
- Seinfeld Cabin:
- What remedy does Susan’s father have against Kramer?
- What remedy does Susan’s father have against George?
- Seinfeld Laundry
- Suppose the drycleaner takes back his word and does not give Seinfeld the discount. What remedy, if any, does Seinfeld have?
- Friends Rosita
- What remedy does Joey have against Rachel?
- Seinfeld
- Suppose the clerk refuses to give George the social security benefits. What remedy can George pursue?
- Friends (Agent)
- Suppose Joey gets the role in the movie and does not pay anyone any commission. Does Phoebe have a remedy against Joey?
- Seinfeld: Subway (Freeze, police)
- What is the remedy against the guy that chases Kramer?
- Beavis and Butthead: Choked
- Does Butthead have a remedy? What remedy?
- Friends: First episode Rachel leaves her groom in the altar. Does Rachel’s fiancé have a remedy against Rachel? Was there a contract between Rachel and her fiancé?
- The Apprentice:
a. Is there a remedy? What?
February 2
Are Human Rights Universal? Whose Rights are Right? Who should enforce human rights? What is the role of NGOs in the protection and enforcement of human rights? Do you think that the universality of human rights can be reconciled with this recognition of the importance of historical, cultural and religious particularities? If so, how can these two be reconciled? Is the concept of human rights a Western concept? Why? Despite the Western origins of the concept, how can the universal acceptance and enforcement of human rights nonetheless be promoted? Do you think that truly universal human norms can be agreed upon and enforced by all?
Are communities obliged to protect the rights of those who are not community members at the risk of economic or other loss?
February 9
Questions: Potluck
- Why was Potlach forbidden?
- What is a solution proposed by one of the aboriginal leaders regarding the white man’s laws and the Indian laws?
- Why was the Potlatch seen as a threat to European Canadians?
- What has the relationship between European Canadians and Native Canadians been?
- What is the aboriginal concept of property depicted in the documentary?
- What do you think about the Aboriginal claims over land?
- What is the value of Potlatch as a means of recording values, contracts and other legal issues?
- What are the problems of the trial of Aboriginal people depicted in the documentary?
March 16
Choose one of the following questions and write a short reflective essay (2 pages approx.) on them. You can do this in small groups or individually. As usual please include this activity in the portfolio. I will be very glad to have a look at your short essay before you pass in the portfolio. Remember that there is no class on November 4. You should use that time to write this short essay.
- Compare the Universal Declaration with the two international covenants. Compare these to the Canadian Charter of Rights and Freedoms. What are the similarities? What rights are missing from the Charter?
- Explore the concept of human rights by developing and defending your own Bills of Human Rights. In other words, what rights do you think should be included in a truly universal Bill of Human Rights.
- Compare your notion/s of human rights and their protection in the Universal Declaration of Human Rights and/or the Canadian Charter.
- Analyze why we should not have any instrument dealing with human rights.
The below questions are meant to help you and guide you to prepare this activity.
- Do you think that the concept of human rights should include what are commonly referred to as "social and economic rights"?
- Should social and economic rights be legally protected?
- Should the right to life, liberty and security of the person in s.7 of the Canadian Charter include a positive obligation to ensure security of the person through such means as social assistance, or whether s.7 should be limited to the state's negative duty to not act in a way that deprives individuals of the right to security of the person?
- Can there be rights when there is no legal code for enforcing them? What is the basis for saying that all human beings are born free and equal?
- Are communities obliged to protect the rights of those who are not community members at the risk of economic or other loss?
- Does our commitment to human rights place us in opposition to nature? Does nature have rights equivalent to human rights? Is health care a human right?
- Must individuals make personal sacrifices to assure the rights of others?
- Is capital punishment a violation of human rights?
To read the Universal Declaration of Human Rights click here.
To read the International Covenant on Civil and Political Rights click here.
To read the Canadian Charter of Rights and Freedoms click here.