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Posts Tagged ‘roundtable summary’

On November 2, Dr. Jennifer Schulz joined us to discuss “A Feminist Approach to Torts Law”. Sporting a very fashionable FLF t-shirt, Dr. Schulz encouraged the group of students in attendance to approach the law critically. This is of particular importance in mandatory courses, where many professors will unconsciously teach from a perspective of liberalism, a perspective that treats the law as objective and neutral, even where inequalities are rampant. Although torts law may be presented as fundamentally objective, Dr. Schulz challenged us to think about ways in which torts law can benefit from feminist analysis.

A first and perhaps obvious example is the notion of the “reasonable person”. Professors and students may accept this standard as simple – the standard is simply reasonableness. We may all assume that our perspective on what is reasonable is the same, in reality, the opposite is true. This notion is sharpened when we consider that the “reasonable person” is just the “reasonable man”, the “bloke on the Clapham bus” from England. This standard was changed to reflect modern day political correctness, but has the way it is applied really changed? Feminist scholars have critiqued this approach, and we learned that two lines of thought have emerged in the literature. One approach recommends accepting that men and women do view the world differently and it might be useful to take about care in a positive way, rather than a negative duty to not to harm. The other approach is more radical as it questions the efficacy of relying on objective standards, and calls for focusing on the actual tortious event and how someone with that person’s experiences would react in the circumstances. This approach recognizes that nothing is actually objective, even if we apply that label to the standards we use, and challenges an approach that allows for conflating the reasonable person with a normative standard of behaviour. As the student discussion suggested, taking this kind of subjective approach may be beneficial to balance out the racist, classist and sexist attitudes a person faces as soon as they enter a courtroom.

Dr. Schulz also highlighted the area of damages as another aspect of torts law that can benefit from feminist perspective. The principle of compensation (putting a person back to where they would have been had the tortious event not occurred) can actually perpetuate inequality. A thought-provoking example is that of lost future wages. Because pay inequity remains rampant, the damage awards women receive for lost earnings reflect this economic inequality. Damage awards are therefore structured along discriminatory lines. We learned that, to this day, courts routinely take a percentage off a damage award for contingencies to account for women bearing and raising children. 7 percent is routinely knocked off of the damage awards women receive simply because women shoulder a disproportionate burden for child bearing and rearing in society. 

Another topic in torts that cries out for feminist critique is the treatment of mothers. The case of Dobson v Dobson, where the Supreme Court held that a mother does not owe a duty of care to her fetus, is one example. While this case is heralded as a feminist victory, the result also meant that a mother who gave birth to a disabled son as a result of her negligence was unable to collect insurance money to help her raise her child. The tension in this case is clearly worthy of further discussion. Finally, Dr. Schulz pointed to so-called “wrongful birth” cases and noted that there is judicial reluctance to ever call the birth of a child damages or harm, therefore they don’t want to compensate for these damages or harm. Yet, the burden for child raising falls disproportionately on women, thus this is another very gendered example of not acknowledging women’s damages in the way that men’s would be.

The lunch-hour discussion wrapped up with some very thoughtful comments and questions from students in attendance. Certainly, there is much to consider around the notion of standard of care. Why not utilize a concept of actual care? As Dr. Schulz posited, why do we obsess over compensatory principles to “equalize” a person, when the law could actually care about an individual and seek to help them as much as possible in a given case. I think I can speak for all in attendance in saying that we left the room challenged and encouraged to approach doctrinal law courses with a critical perspective and to ask the difficult questions, beyond facts, ratio and holding: who does this decision benefit? Who is the law really helping? What is the actual result of this? Is it really true that this is neutral?

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Dayna Steinfeld is co-chair of the Feminsit Legal Forum.

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Feminism and Law in Today’s World Roundtable

A Summary by Brad Findlater

The first roundtable of the academic year took place over lunch on Monday October 3rd with Robson Hall’s dean Dr. Lorna Turnbull. The discussion was slightly delayed, but for good reason, as more chairs were needed to accommodate for the excellent showing of students and faculty. Dr. Turnbull began by opening the floor up to anyone who would like to share why it is they are interested feminism and its intersection with the law. The conversation flowed quickly and naturally, as students gave stories of what brought them to the roundtable discussion.

 Dr. Turnbull began by declaring that she was proud to call herself a feminist dean, but cautioned that although she brings certain types of views to her job, she is no different than other dean. She made it clear that every person has a perspective that is shaped by their background and experience; being a feminist should not be improperly labelled as something out of the norm.

The crux of the roundtable was this idea that the systems that are in place today are largely created by people and groups that were/are not marginalized. The legal system in particular was set up without asking: the woman question – how will this setup and structure affect women as a group. Dr Turnbull went on to say that this is not only the case for women but for all marginalized groups. The challenge for the legal community as a whole now is to start asking these questions and take into account and incorporate how to understand these inherent disadvantages. The disadvantages intersect with one another which can make for a much more complex and inter-dimensional problem.

These comments stimulated some discussion on the classroom dynamic and how it can be difficult to ask these sort of questions and get people to open their mind up to challenge the default viewpoints. There was a general feeling of agreement among the group that the responsibility does not only rest with the governments and policy makers, but with law schools and students in particular to help create this open environment. The first step, Dr Turnbull said, was to acknowledge that everyone is going to have a different idea of how to get there, so be willing to listen and challenge others to think outside the box.

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Brad Findlater is keepin’ it real in 3rd year at Robson Hall.

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On Thursday, March 24th, Dr. Emma Cunliffe from UBC’s Faculty of Law led us in a fascinating discussion around evidence law and how feminism can help us re-conceptualize the law of evidence. The discussion starting with thought-provoking questions around the Rhodes case (more widely known as the “Justice Dewar Decision”): what knowledge gets into the justice system? How? And once its in, how does it get negotiated?

While evidence can be simply understood as a system of law with a set of rules, Dr. Cunliffe challenged us to think of evidence as proof, or more specifically, the logic, rationality and sources of information judges use in coming to their decisions. Too often, law students take findings of fact as just that – fact. But where does this information come from? Who does it exclude? And what does a court do with it? These questions are sometimes neglected as we learn the rules and tests that make up the substantive learning of evidence law, but they are important questions to interrogate as we consider how law is made, and on what terms.

Dr. Cunliffe noted that feminism has quite famously influenced rules of evidence, with one example being the Lavallee case. But as our discussion showed, feminism can also help us understand knowledge and the politics of knowledge. An example here is the work that feminists have done in Canada to enlarge the concept of reasonableness through the use of expert evidence. Yet the very notion of reasonableness leads to questions of common sense. Our discussion pondered what common sense means in law and the impact that it has on the trier of fact, while recognizing that there must be some notion of common sense in our legal system to ensure functionality. But common sense can also be equated with stereotypes. The point was raised that common sense notions of what makes a witness believable often fails to account for cultural differences, an example being that in some cultures it is rude to look people directly in the eye, but in Western society, this is thought to make someone look “shifty” or untrustworthy.

What feminism and substantive equality demand is that we challenge what is reasonable and rational at the point where inferences are drawn in decision making. This means that we must question the operation of common sense, even in places where it is not always visible.

With these ideas in mind, our discussion turned to the work Dr. Cunliffe has done on mothers who have been wrongly convicted of killing their children. The question here is if these cases have informed our understanding of what can go wrong in the same way that other miscarriages of justice have. It appears that the cases of wrongly convicted mothers are often chalked up to one “rogue” expert (a Charles Smith, or other equivalent), but this reasoning fails to account for how knowledge is used in this trials. Often, stereotypical reasoning is drawn upon by these experts, and these things make sense to a jury. They are common sense. They draw on stereotypical understandings of families. Feminism can operate here to enlarge our sense of how people behave and what is reasonable.

The discussion wrapped up with many important questions. In particular, we questioned the role of science. Where social framework evidence can be useful in expanding notions of reasonableness, it is considered “soft” science and less credence may be given. However, forensic science is often considered infallible, even where it is not. While judges are often not skeptical enough, some of the fault falls to lawyers to. After all, lawyers are also situated within their own sociological contexts, and more likely than not, will engage in their own processes of inference and reasoning as they determine what information is important and relevant to a case. Our role in how knowledge enters the legal system is a crucial one. The roundtable with Dr. Cunliffe helped highlight the need to not just learn and understand the substantive law in our doctrinal courses, but to go further and question and challenge it.

*Dayna Steinfeld is exactly 3 weeks from being done her second year of law at Robson Hall. Not that she’s counting. As co-chair of the FLF for this academic year, she was thrilled to wrap up the year with such a stimulating discussion.

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Advocate and human rights consultant Céleste McKay has worked extensively in the field of indigenous rights, both nationally and internationally. Her remarks at Thursday’s roundtable were focused on the United Nations Declaration on the Rights of Indigenous Peoples, with special attention paid to those provisions pertaining to indigenous women (She also brought along pocket-size copies of the Declaration- very handy!).  Céleste called the Declaration an historic achievement for human rights, and said that it is the culmination of decades of work for a large and diverse group of activists. Adopted by the UN in 2007, she noted Canada’s inconsistent attitude toward the Declaration, having supported its development, then opposed its adoption, finally issuing a statement of ‘support’ for it in late 2010 (though, so far, Canada has not officially adopted it).

Céleste highlighted some of the most pressing issues facing indigenous women in Canada and around the world, particularly economic marginalization and the difficulties posed by outdated and racist colonial legislation. Of fundamental importance to fighting the multiple forms of oppression experienced by indigenous women is the understanding that the human rights recognized in the Declaration are indivisible and interdependent. She spoke of the challenge to non-indigenous people to think carefully about the rights of indigenous women, in respect to land rights, rape as a weapon of war and (in Canada particularly) the state of marital and property law for indigenous women.

The roundtable wrapped up with an engaging and lively group discussion, covering a broad range of topics from access to justice and legal education, the role of feminism in indigenous rights, as well as proposed bill C-3 and possible changes to indigenous identity policy.

* Eli Mitchell is a first year law student. She is a frequent contributor to the FLF blog.

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On Thursday Nov. 25, Bev Froese from the Public Interest Law Center ran our final roundtable event for the 2010 calendar year.

 

Bev’s presentation focused on the 2004 Human Rights Complaint on behalf of women inmates regarding the alleged discrimination based on sex, race and disability at the hands of the Portage Correctional Facility. The case had two main issues. First, women’s unique needs were not being met by the prison facility. Secondly, women were not being treated equal to male prisoners in other Manitoba facilities.

 

Almost immediately the question arises: What is Equality?   Is it treating everyone the same?? Or treating people differently to reach the same outcome?? Can it be both??

 

One of the most obvious violations taking place surrounded the need for women to have pre-natal vitamins available to them within the prison. This is a unique need that only women require, so although these vitamins are not offered to any prisoner in Manitoba regardless of their sex it becomes quite clear that the outcome of this decision is one of sexual discrimination.

 

Portage Correctional also has no ramp or elevator access for disabled individuals to access the facility which is clearly discrimination. There were also issues surrounding the lack of mental disability programming and the ways in which the staff dealt with inmates who suffered from various addictions or mental disabilities. One of the racial discrimination arguments against the facility rested quite heavily on the lack of cultural workers and cultural support being offered to the inmates.

 

Ultimately a settlement was reached through mediation which allows for the Women’s Program Advisory Committee to improve the short term and keep an eye on the long term goals and needs of the inmates. There will be a new prison facility built in the near future that should address the physical needs of inmates. The agreement also promised to develop specialized programs for women, increase support for aboriginal women and increase the availability of sacred spaces.

 

The roundtable finished with a short discussion about confronting myths around equality in an effort to normalize the ideas and take substantive equality out of a “special” category and into everyday life.

So how do we draw attention to the special needs of groups of individuals without having the rest of society feel that the group is getting special attention or benefiting unfairly at everyone else’s expense??

Just some food for thought…

*Jocelyn Turnbull is a second-year student at Robson Hall. She spent her summer working for the Manitoba Bar Association.

 

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