Monday, November 1, 2010

Communities of Hope

In a previous posting on this blog, I discussed the idea of creating communities – and perhaps alternate realities – through the internet, using the film Julie and Julia as a frame. This posting will continue to discuss the idea of creating community through media, albeit in quite a different form and purpose.

On August 5, 2010, a goldmine collapsed in Copiapo, Chile. Those miners who were close to the entrance of the mine escaped, however, when the dust settled, 33 miners were missing inside the bowels of the mine. Over the next 17 days, rescuers worked to find any signs of life from these trapped miners, and the world began to pay attention to what might easily have been expected to result in a massive tragedy. Indeed, as time passed doubtless many domestic and international viewers of television and readers of the news prepared themselves for the worst. When resolve began to break down a bit, President Sebastian PiƱera of Chile insisted that the rescue efforts continue – at the end of the 17 days, his resolve was rewarded with a note sent to the surface from the miners stating that all 33 were alive. Ultimately, all 33 miners had been eating lunch in a protected capsule – designed to function as a place of safe haven during mine collapses or disasters – during the collapse, and had survived. Indeed, news from below the ground indicated that the miners were, overall, in better health than expected, although they were starting to run low on food and water after 17 days without outside supplies.

With this news, the international media and the international community were captivated by the tale of these miners and their fates. Updates on the conditions of the miners and the projected time frame for their rescue were nearly daily features in the international news, and certainly the story gripped Chile domestically. Over the next 52 days, the world watched in awe as small holes were drilled deep in the ground to provide the trapped miners with food, water, medical supplies, and other materials, as well as to provide the miners and their families/loved ones access to each other via video camera. Several countries sent experts to Chile in order to assist the miners with maintaining the mental fortitude needed to survive the ordeal – including those from NASA who train astronauts. At the same time, experts from a variety of countries ranging from Austria to the US went to Chile to advise on and oversee the planning and implementation of the daring rescue plan which would be necessary to free the miners.

While these practical – albeit truly amazing – elements were being tended to, the media, particularly television and internet news media outlets, were busy with a very different type of construction. As viewers from around the world began to learn of the situation at the mine they also began to engage with the miners and their plight on a more personal level. It was possible for one to encounter daily updates on the miners regardless of the language one spoke or where one was located. As an entity, the international viewing public saw the grainy images of the miners from deep below the ground and began to view the miners as more than abstract parts of the news. Viewers heard of the incredible plans to rescue the miners, that is true, but they also heard about the medical needs of the miners, what foods they were being sent, how they kept themselves active, and the details of their families. By the time the miners were freed from their underground captivity, viewers around the world knew the names of the miners’ family members, and the touching stories associated with them, from children born while their fathers were trapped in the mine to the more scandalous story of Yonni Barrios, who, it was discovered, had a long time mistress as well as a long-time wife. Within the community forged by the miners, each person had a task or function, and through the media the international community began to see the miners in this same light, as the leader or the doctor or the engineer.

More than an abstract story of a group rescued from peril after a few days at the most, the story of the Chilean miners began to resonate more deeply with viewers around the world, who developed an affinity for these men, their families, the rescue workers who were seeking to save them, and even the president who refused to give up on them when it seemed likely that they were dead.

Especially after the announcement that their rescue would come over two months ahead of schedule, the miners became an extended part of communities around the world about whom the community worried and yet for whom the community was extremely hopefully. This was to become especially true during the 24-hour period between late night on October 12, 2010 and late night on October 13, 2010, when the rescue of the mine workers began and ended. The press, television leading the way, built up to this event for several days, dissecting the science of the rescue attempt, the persons involved, and the families waiting so anxiously above ground. In the hours immediately before the rescue attempt started it seemed that even seasoned news reporters were drawn into the story, expressing both explicit and implicit concern for the miners and rescuers. Once the rescue began, it drew television viewers ranging from average citizens across the world to political leaders to Pope Benedict XVI. Coverage ranged from live television coverage to internet feed to personal postings on social media sites.

When the miners began to emerge from the ground it was to more than their eagerly waiting families – it was to the citizens of the world. In this sense, the ongoing story of the Chilean miners, from what was expected to be heartbreak at the beginning of the story to amazement and elation at the end, created a community. Although the story culminated in the rescue of the last miner and the pulling to safety of the last rescue worker, this community was created in more than a moment. Rather, it was created within the span of months, when the humanity of the miners and their situation became clear to those with access to media the world over. The customs of this community were relatively simple – hoping for the best for the miners and feeling for the miners, their families, community, and country. In essence, the law of this community was simple as well: do not give up hope. At the very moment when the rescue was to begin, for instance, some discussion was had as to the risks of the rescue effort to the miners but there was no negativity per se even on the part of the media.

From the Chilean miner example we see how modern forms of media, particularly television, can move the viewing public beyond its role as a passive recipient of the media’s message and craft a large, heterogeneous community of perhaps even unlikely members who are strangers to each other. It would be impossible for every member of this community to meet and celebrate the freedom of the miners, and it would be equally impossible for the miners to meet and thank every member of this community, yet this reality does not take away from the community itself. Instead, it reinforces the ability of media to craft a community that might ultimately be short lived but still forms a bond that would not be possible without the existence of media to act as the formative venue for the community.

Thursday, October 28, 2010

Cultures of Impunity

Photo supplied to the Toronto Star

In most of our postings, we delve into representations and constructions of law through popular cultural mediums and the connections that might be drawn between the two. Every now and again however, it helps to consider the practices and norms of state actors in their enforcement of the law and what it tells us about certain facets of legal culture.

Based on several legal errors that transpired at trial, a panel of the British Columbia Court of Appeal recently acquitted Ivan Henry of having raped or sexually assaulted eight women in the early 1980s. Henry has served 26 years in jail. One of these errors involved the admission of a photograph where Henry resisted participation in a police line up and was seen restrained by the guards. The trial judge instructed the jury that this could be taken as "consciousness of guilt."

The image (provided above although a larger image can be seen by clicking on it) itself is striking in the way that at least two of the cops appear to be smiling as they are forcibly restraining Henry and in the way that several individuals in the line up appear to be smiling along with what is transpiring (perhaps plain-clothed policemen). Given all the smiling faces, one might mistake the scene for something out of a comedy sketch or film, rather than a true moment that transpired amidst a criminal investigation.

The image itself presents a snapshot in time of the permissive culture of police aggression that existed (at the very least) at that time and in that place where it was taken. It was one where police officers could be so brazen as to laugh so mockingly - as though the exercise were one big joke. This impunity was indeed legitimized by the trial court by allowing it into evidence and indicating that it was evidence of a consciousness of guilt. The purpose of a line up is to allow witnesses to properly identify a suspect amidst a number of individuals who may have some resemblance to the suspect. As one can imagine, much of that is lost when uniformed police officers, as part of this line up, restrain an individual and thus clearly signal who the main suspect is.

Monday, October 18, 2010

The Norms of Restaurant Success

Who might have thought a television channel exclusively dedicated to "food" could have become such a hit. Yet, for the past ten years, the Food Network (FN) has done just that. It features a number of shows highlighting three themes. The first theme is what one would naturally expect from such a network, cooking shows. A second and also popular group of shows could be classified as competition-oriented programming, pitting (up and coming and/or established) chefs against one another for a designated prize - money (Chopped), a position at a prominent restaurant (Hell's Kitchen), or some other coveted prize - prestige (Iron Chef America), or a combination of all three and/or other rewards (Top Chef).

Then comes a third category (which is the subject of this blog posting) - programs aimed at advising restaurant owners and their staffs in how to become successful and sustainable businesses. Three key exemplars of this repertoire, Chef Gordon Ramsay's long-running Kitchen Nightmares, Restaurant Makeover, and the more recent FN show, The Opener with Chef David Adjey. The temporal context of Kitchen Nightmares and Restaurant Makeover is one where an existing restaurant is failing to produce profits for a whole host of reasons. The Opener, as the title suggests, takes place as the restaurant is about to open and a number of critical problems are identified and addressed.

Notwithstanding the different restaurants, styles of the particular hosts or the general tone of the shows, there are some common, if not fundamental lessons they seem eager to teach owners of new restaurants or failing ones. The lessons might be framed essentially as rules for success and the proper management of restaurants. Here are some of them in no particular order of importance.

#1 - Maximize seating capacity. In almost every episode of The Opener, Chef Adjey calculates how much income each seat might generate, ranging from one day to a full year. When owners are confronted with the potential revenue they could be earning by adding another table that seats for example four individuals - owners suddenly become more motivated to make better use of their space. This is particularly so, when the restaurants in question need to generate income and break out of the red - restaurants that are about to open spend a lot of money before and around the time of opening while hoping to generate business and income to balance or preferably to exceed their expenses.

# 2 - Less is more - institute a focused and concise menu. A consistent theme amongst the shows mentioned above is the need to focus the menu to fewer items which can be mastered and be delivered consistently by the chefs and kitchen staff. Bigger menus with a greater diversity of options require restaurants to keep many ingredients stocked and available when necessary. As a consequence, many purchase frozen and canned items rather than using freshly purchased produce. This leads us to two other interrelated rules (see # 3).

# 3 - Buy and cook with fresh ingredients. The reason for this is obvious - it results ostensibly in better tasting and better quality food. Furthermore, owners are suggested to buy local and establish a rapport with local growers and sellers. The idea that one is selling preparations made with ingredients from local producers tends to sell well amongst patrons who are only too happy to support the local economy beyond just the restaurant.

# 4 - Establish a chain of command in the kitchen and accountability. In some restaurants, there is sometimes a desire to have two chefs running the kitchen simultaneously. The message of these shows is that without a clear chain of command, orders prepared and sent from the kitchen can be sketchy with limited quality control exercised by a single, head chef. Furthermore, without necessary controls and authority, chaos and consequently delays ensue along with customer dissatisfaction. By the end of each episode, owners are strongly veered toward identifying one individual as the head chef and the other having to step in line.

There are of course a whole host of other rules, both explicit and implied that form part of the rules of success that I need not go into here. The point of course is that, like with anything else, rules form an integral part of many endeavors and the instructive chefs on these shows (like Ramsay and Adjey) play a significant role in projecting these out into the stream of consciousness and set a normative standard.

Wednesday, October 6, 2010

Media of Judgment

Over two and a half years ago, the media told the stunning story of the downfall of Eliot Spitzer, then the Governor of the State of New York. Indeed, media, it could easily be argued, was instrumental in the outcome of the story itself.

In 2006, Spitzer, a Democrat and then State Attorney General, was elected Governor in a landslide victory that brought together Democratic and Republican voters alike. Prior to the election, media was used by the Spitzer campaign to craft his image as a uniting force for the state, regardless of political persuasion, and as a force for inclusion – Spitzer himself is Jewish and his running mate (and future Governor of New York) David Patterson is African American and also legally blind. Spitzer’s inauguration was a grand and well-orchestrated event that was again told as an even grander story by the media, featuring Spitzer’s beautiful and accomplished wife, Silda Wall Spitzer, a respected human rights lawyer, and their three teenaged daughters.

In the months that followed, there were the expected quarrels between Spitzer and the New York State Legislature, however the media continued to tout Spitzer’s image as a rising political star with the potential to become the nation’s first Jewish president. Indeed, one of the last – and most poignant – images from Spitzer’s governorship was of Spitzer and his wife walking through the White House on the way to a reception, looking as if they could easily occupy the White House themselves.

However, early 2008 saw a change the media’s portrayal of Spitzer. On one shocking day in late winter, the media began to present a different story, that of Spitzer as a man who patronized a high-priced prostitution ring on numerous occasions even when, as Attorney General, he was actively prosecuting other prostitution rings. Initially, there was uncertainty as to whether Spitzer would resign his office. In the space of a week, however, the media’s reports grew increasingly salacious, featuring details of Spitzer’s alleged trysts, as well as the allegation that he paid for the transportation of a favored prostitute from New York to Washington, D.C. while he was there for business. Ultimately, this allegation proved the most damning for Spitzer since, if established, it would have constituted a violation of the U.S. Mann Act, and thus would have shifted the potential venue for criminal charges from state courts to federal courts. After this allegation surfaced, Spitzer called a press conference in which he announced his resignation from office. Throughout the series of press conferences that led to Spitzer’s resignation the indelible image that the media captured was that a of Silda Wall Spitzer, looking thin, pained, and thoroughly tormented, standing next to her husband.

Following Spitzer’s resignation, the form of media attention shifted slowly from television to largely print, however the attention itself did not recede for quite some time. Spitzer himself was quite honest to the media in terms of the state of his family – which has remained intact – and entered life as a private citizen. Recently, however, Spitzer – who was a voracious critic of Wall Street during his tenure as Attorney General – slowly stepped into the public eye again. The first stage of his reemergence was a column which he writes for an internet site in which he primarily addresses issues related to the economy and his Wall Street insights. The second, and far more public, stage of his reemergence occurred when CNN announced that Spitzer would team with noted conservative journalist Kathleen Parker to create a new talk show airing during CNN’s prime time schedule. This program, Parker Spitzer, began to air this week.

There are many notable topics to come from Parker Spitzer, and doubtless they will be the subject of future blog postings. What I would like to focus on in this posting is the role of the media as a force for both condemnation and rehabilitation in a way that forms its own quasi-legal cycle.

Despite its veneration of Spitzer during the 2006 election cycle, the media turned on him quickly at the hint of a scandal. He no longer fit the image crafted for him; he had broken the rules which both he and the media had created for himself, or at least for his image. Instead, he became vulnerable and criminal, although interestingly the criminality in the media cycle tended to focus more on the impurity of his actions – and on the titillating details of them – than on the legal criminality of his actions at the state and federal level. The swiftness of Spitzer’s political downfall was attributable in large part to the media, which, certainly within New York State, was perpetually focused on Spitzer and continued to publish stories about his alleged conduct in an increasingly condemnatory way. Indeed, not only did the media scrutiny of Spitzer indict him before the public, it also indicted his preferred prostitute, who became analogous to a co-conspirator.

While the US Attorney decided not to prosecute Spitzer and no state legal proceedings were brought, Spitzer was still prosecuted in the media for months after his resignation. Eventually the media focus shifted away from Spitzer and it seemed that he would be relegated to the life of a private citizen, largely forgotten in the way that those convicted of notable crimes frequently become forgotten after they disappear into the confines of prison.

However, much as a conviction is not the end of the relationship between the person convicted and the justice system, this is not the end of the story of the relationship between Eliot Spitzer and the media. Initially, Spitzer’s reengagement with the media came in the form of an internet column. This was an important step, but it was not that visible. The latest step is, however, very public, and involves Spitzer working with the very same media that condemned him in order to rehabilitate himself and also to continue bringing attention to issues which were important to him as Attorney General and Governor. The media, in this instance, can be seen as granting an appeal, since there is no guarantee that Parker Spitzer will be a successful television program, or that the program will change the public’s perception of Spitzer. What Parker Spitzer will do is give Spitzer the opportunity to make his case directly to the public and use the same media that condemned him as a way to rehabilitate himself.

Information on Parker Spitzer is available at

Friday, September 10, 2010

The Darker Corners of Children's Songs

There are some things that just catch you off guard at the times you least suspect it. A little background first. Some relatives visited India earlier this year and brought back for my daughter some "educational" DVDs containing nursery rhymes that were sung by an adult Indian female vocalist and danced to by young Indian children. The DVD in question was "Preeti Sagar's Nursery Rhymes: 69 All Time Favourite Rhymes." The DVD includes a number of well-known songs like Jack & Jill. But it was the inclusion of one other particular song that left my wife and I speechless and has me writing now.

The song in question is called "Ten Little Nigger Boys." No, I didn't misspell it and your eyes are reading this correctly. Furthermore, I confess I have never heard of this song before it appeared on one of the menu screens for the DVD. The experience becomes even more surreal and jarring when you see the singer (Purbi Joshi) sing (or perhaps lip "sync") the song with a big silly grin, as though the words being sung/mimed (and one in particular) are vocalized without a hint of discomfort or shame - apparently the experience was reserved for my spouse and I, and I imagine anyone else who might have found this somewhat disconcerting. At worst, the inclusion of the song smacks of blatant racism and the propagation of a derogatory slur that has no historically positive meaning, particularly when used by non-Blacks to refer to Black people. At best, it demonstrates a stunning lack of judgment about the appropriateness of teaching such words to young children.

In trying to look up the history of this song, I discovered that it was the original title of an Agatha Christie novel published in 1939. In subsequent editions, the novel was renamed Ten Little Indians and subsequently And Then There Were None. The adoption of the final title reflects normative changes in the acceptability of using terms like the n-word or Indians, in the manner in which they were used. However, the history appears to go back even further. According to an article written by Tiffany M.B. Anderson, the song in question has its roots in the American south near the end or after the Civil War. The song was used both in minstrel shows for White adult audiences and as a song for White children (the lyrics can be found in the link to Anderson's article above). As she explains:
When performed as a minstrel song, Ten Little Niggers serves as entertainment; when used as a nursery rhyme, Ten Little Niggers operates as education. Ten Little Niggers not only taught a child to count down from ten, it also presented the racial construction of the black population as ‘niggers’ with equal importance. Caricatures accompanied the reprinting of the song in the nursery rhyme books.
I highly recommend Anderson's article to get a sense of how the song was constructed and was intended to demonize and portray African-American males in particular as designated social and personal threats.[1] But more disconcerting is the inclusion of this song over a century later in a new format being sung to children all the while perpetuating a recognized racial term as acceptable.

Despite the existence of the freedom of expression, various societies, operating through political and legal branches of government have put into place particular liabilities and punishments for engaging in certain types of speech - e.g. hate speech, defamation, sedition, incitement to commit a crime. Concurrent with the norms of the state are the many socio-legal norms that govern or influence individual conduct and interpersonal relations. Even where state norms may not prohibit the utterance of certain words, the norms or rules of everyday life and society may strongly discourage it. A breach of such norms may result in economic and/or social repercussions (although sometimes only temporarily) for the individuals who speak them.

Within North American culture and others situated in the Global North, the utterance of the n-word is considered (more often than not) to be taboo, particularly amongst those who are not Black and if used in public and to refer to someone of African descent (although some non-African-Americans clearly have few inhibitions about this). [2] Although the word has been appropriated by many African-Americans, there is considerable debate about the advisability of even their using the word - ranging from comedian Chris Rock who has deployed the word extensively in his repertoire (as with other African-American comics like Eddie Murphy and Richard Pryor), to the NAACP holding a funeral to scholars such as Harvard Law Professor Randall Kennedy. Yet, notwithstanding the appropriation by some, if not many African-Americans of the word at one time or another, it is widely accepted that the use of the n-word in public by non-African-Americans breaches widely accepted socio-legal norms against openly uttering the word. Some might describe these particular socio-legal norms as mere political correctness.

I'll refrain from attempting to extrapolate or generalize anything about Indian society as a whole, based solely on Sagar's or the production company's decision to include the song. There is clearly a different normative vision reflected here about deploying a song with a racially-charged history which uses such a patently loaded and derogatory term. The producers of the DVD have issued a product into the children's market that includes a song which effectively legitimizes and celebrates (through joyful singing) the use of an unquestionably offensive word associated with a substantial segment of the world's ethnic population. This is particularly so when used by those who do not belong to that group that the term has been applied. It also suggests an assumption, on the part of the producers, at least, that there is or will be an acceptability by consumers of this product about hearing and digesting this song for consumption - an assumption which is also troubling.

It was in 1969 that the International Convention on the Elimination of all Forms of Racial Discrimination entered into force. Amongst its many pertinent provisions, Article 7 has something particularly relevant to add to our discussion here. Namely,
States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical [sic] groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.
The DVD in question is at the very least, a potential source of education, culture and information for the children who view it, both in India and abroad. The song in question here however doesn't combat prejudices but merely fuels them and indeed propagates and perpetuates a racially discriminatory term while happily introducing it to small children. While the DVD is produced by a private company and not a government, the principles articulated in the Convention ought to be internalized by members of civil society if it is to have its desired effect. The interpretation and enforcement of legal norms relies in many ways on civil society's participation and compliance with such norms as the power of states extends only so far. Significant power lies in the everyday citizen, musician and/or corporate leader to act responsibly.

[1] Such demonization has also transpired within films like Birth of a Nation.
[2) There are of course the notable examples of Michael Richards (who played Kramer on Seinfeld) who exploded into an n-word laced tirade against some hecklers at a comedy club; Dr. Laura Schlesinger repeating the word on her syndicated radio program while trying to make a philosophical point about the double standards surrounding the use of the n-word; or an Australian magistrate who expounded that the n-word amongst other derogatory terms was not offensive to reasonable people.

Saturday, July 3, 2010

A Few Good Norms

In any given social setting and/or encounter, a number of norms regulate, govern or otherwise influence human conduct. Depending on the circumstance, these may include the laws of the state but may also entail the customary rules and norms of everyday society. This is in essence one of the central teachings of legal pluralism. In some circumstances, the norms of the state may move in lockstep with the rules of everyday life, while in other situations they may clash, leading one to decide which normative path to follow at any given moment.

A number of films and television programs focus on state-centric law or legal disputes contested in courts of law. However, even within these legal courtroom-centric dramas lies a number of interesting stories about how customary rules (that is non-state norms) have an influence or impact on the conduct and behavior of the characters in the story. As one illustration of this, I shall focus here on the film, A Few Good Men, (AFGM) starring Tom Cruise, Jack Nicholson, Demi Moore, Kiefer Sutherland, and Kevin Bacon. Written by Aaron Sorkin, and based on his play of the same name, AFGM focuses on the trial of two marines who are subjected to a court-martial for the administering of an unlawful disciplinary action called a Code Red against a fellow marine, William T. Santiago, which led to his unexpected and unplanned death. Although illegal, Code Reds are deemed to be socially acceptable at least within the marine corps in Guantanamo Bay. Indeed according to the story, these can involve a number of actions, including the shaving of an errant marine's head to physical beatings. Such actions transpire when the target of the Code Red has committed some (perceived) breach of the customary rules or codes that other soldiers subscribe to.

In AFGM, Santiago does not live up to the standards of the other marines on the base. Due to personal health conditions he cannot perform many of the physical tasks as quickly or at the same level as his colleagues. Furthermore he is consistently late for meetings and his barracks are often or at times in disarray. The consequence of this is that he becomes ostracized amongst his peers. In order to secure a transfer, he defies the chain of command and writes to a number of non-base officials and politicians conveying his problems on the base. In exchange for his transfer, he is willing to provide information about an illegal shooting by one of the members of his corps and higher ranking soldier, Lance Corporal Harold Dawson. Information about Santiago's letters and requests reach the desk of the base commander, Colonel Nathan Jessep, played by Jack Nicholson. In Jessep's view, Santiago violated a number of rules, including the breaking of the chain of command and the failure to perform to the standards of other marines. As the story unfolds, we learn that Jessep orders Lieutenant Jonathan Kendrick (played by Kiefer Sutherland) to "train" Santiago by administering a Code Red. This is despite the fact that Jessep has received a memorandum from a superior officer indicating that such actions are not to be tolerated. Jessep states that Code Reds form a necessary part of close infantry combat training, particularly in a hostile zone where Cuban soldiers are so close by, and thus ignores the memorandum. Kendrick then orders Dawson and another private, Downey, to perform the Code Red.

As part of the trial strategy for Dawson and Downey's joint defense, Lieutenant Daniel Kaffee (played by Tom Cruise) mounts a defense whereby they argue that the defendants were ordered by Kendrick to perform a Code Red on Santiago, even though this was told only to Dawson in a manner that was and meant to be clandestine and given moments after Kendrick formally ordered the remainder of the unit to leave Santiago alone. As those who have seen the film and its dramatic climax, Kaffee is able to secure from Jessep an admission from the witness chair that he gave the order to perform the Code Red on Santiago. Throughout much of the film, the prosecution's position, buttressed by statements supplied by Jessep and Kendrick, are that Dawson and Downey acted without any such authorization.

AFGM presents a number of interesting issues related to law (including the interrelationship between law and resistance which I shall be tackling in part in a paper later this year), but what I shall focus on here is its exposition of the customary rules (particularly within the marine corps at Guantanamo Bay) and their impact on the conduct of Dawson and Downey.

To be sure, a central aspect of the defense's case was the fact of Dawson and Downey being ordered to perform the Code Red. Yet, what we learn in the midst of Dawson and Downey's interviews with Kaffee and other defense counsel, is their belief that their actions were correct as Santiago violated the customary norms that the marines subscribed to - that is - loyalty to "unit, corps, God, country." Because Santiago stepped outside the chain of command and was threatening to report Dawson's shooting incident without first approaching Dawson, Santiago broke the code. Thus for Dawson and Downey, the Code Red was a legitimate practice amongst the unit which received further legitimacy when ordered by Kendrick.

As part of the defense strategy, the goal was to demonstrate that Code Reds occurred as a matter of regular and accepted practice and as part of the normative legal framework that operated on the base. In order to demonstrate this, Kaffee calls Corporal Jeffrey Barnes (played by Noah Wyle). Barnes testifies that he was the recipient of a Code Red himself when during assault drills, his gun slipped out of his hands, because he failed to apply resin on his hands as they were taught.[1] On cross-examination, Captain Jack Ross, the lead prosecutor (played by Kevin Bacon) attempts to identify the official legal source that justifies the practice of Code Reds. amongst marines on the base. Ross hands Barnes the Marine Outline for Recruit Training and subsequently a Standard Operating Procedures manual for Barnes' company at Guantanamo Bay. In both cases, Barnes informs Ross and the court that neither book speaks to or describes Code Reds or any other form of disciplinary procedure that they are expected to perform. Their brief exchange that follows is worth noting:


Corporal Barnes, I'm a Marine. Is there no book, no manual or pamphlet, no set of orders or regulations that lets me know that as a marine one of my duties is to perform Code Reds?


No sir. No book sir.


No further questions.

In this brief exchange, Ross attempts to make the point that where not explicitly authorized by legal authorities, Code Reds clearly stand outside of any regular normative framework and therefore completely invalid. What follows is Kaffee's argument through re-direct:


Corporal, would you turn to the page in this book that says where the mess hall is?


(Laughs) Lieutenant Kaffee, that's not in the book, sir.


(Feigning perplexity) You mean to say that in all your time at Gitmo, you've never had a meal?


No sir. Three squares a day, sir.


I don't understand. How did you know where the mess hall was if it's not in this book?


Well, I guess I just followed the crowd at chow time sir.


No more questions.
The intent of the passage is to reveal that notwithstanding the absence of explicit directions that Code Reds are part of the official standard operating procedure, they are still part of the (informal) code of conduct at the United States marine base in Guantanamo Bay - just as natural as eating and finding the mess hall without having it specified in a book. So internalized is it that it is something expected by soldiers to occur if they fall short of expectations, like turning up late at meeting or keeping their barracks in disarray.

This was a brief example of how the rules of legal normativity that fall outside the norms issued by the state can have a substantial impact on the conduct of others within a particular social field. However as mentioned at the beginning of this posting, customary rules that fall outside of those set by state authorities may clash not only with those of the state but with other normative principles. At the end of the film, Dawson and Downey are acquitted of conspiracy to commit murder but are convicted of the fictitious charge of conduct unbecoming a United States Marine (rather than conduct unbecoming an officer) and are dishonourably discharged. Thus the laws of the state as applied by a jury deem their actions invalid (although legitimate at the base).

However this customary norm may also conflict with another customary norm that governs marine ideology. After their verdicts are read out, Downey professes through a haze of confusion and dismay that since Jessep admitted giving the order, they did nothing wrong in administering the Code Red. Dawson then advises Downey that they did do something wrong (even if they followed orders). "We were supposed to fight for people who couldn't fight for themselves. We were supposed to fight for Willie." Although the message comes off in a rather tacky way, and the realization rather belated, a customary rule is not completely accepted or unexamined. They may be trumped, at least in certain circumstances. It's not necessarily clear that Dawson believed that Code Reds might not be appropriate in other cases, but in Santiago's a clearly physically weaker individual, the application of the Code Red shouldn't have been rendered.

AFGM provides a number of interesting perspectives on law, one of those as this posting has tried to illustrate is the exposition of legal pluralism. The point of legal pluralism is not to suggest that the norms of every day life and society are necessarily better or more important than those of the state or that the latter are rendered meaningless by the sometimes greater pertinence of such customary rules in certain social fields. It is merely to recognize empirically that a wide variety of norms not rooted in the state have tremendous purchase, meaning and impact in everyday life. AFGM is just one illustration of this and particularly that following this particular norm in this specific context had tragic results.

[1] During Barnes' testimony on direct examination, Kaffee asks Barnes why Santiago wasn't subjected to a Code Red considering all the foul ups that he committed. Barnes testified that it was because Dawson ordered the others not to touch Santiago. This was in an effort to show that Dawson was not predisposed to committing a Code Red but for the order by Kendrick. Of course, the court is not privy to the fact that Dawson's compliance with Kendrick's order was in part willing because of Santiago's defiance of the chain of command as discussed above.

Further Reading

Daniel Jutras, "The Legal Dimensions of Everyday Life" (2001) 16 C.J.L.S. 45.

Roderick A. Macdonald, "Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism" (1998) 15 Ariz. J. Int'l & Comp. L. 69.

Martha-Marie Kleinhans & Roderick A. Macdonald, “What is a Critical Legal Pluralism?” (1997) 12 C.J.L.S. 25

Wednesday, March 17, 2010

The Legal Narratives of a National Anthem: Part I - "In all of us command"

Like other forms of popular culture, songs have the power to confer recognition and legitimacy to certain ideas, concepts and even classes of people. Equally, through modes of exclusion, they have the power to render some (or many) invisible. In this post and others to follow, I want to examine how such processes of inclusion/exclusion (intended or not) have taken place in the context of the Canadian national anthem.

Over the past few weeks there had been some talk about altering the lyrics of the English version of the Canadian national anthem (although it should be noted it's not the first time that appeals have been made to revise the lyrics).

The lyrics are as follows:

O Canada!
Our home and native land!
True patriot love in all thy sons command.

With glowing hearts we see thee rise,
The True North strong and free!

From far and wide,
O Canada, we stand on guard for thee.

God keep our land glorious and free!
O Canada, we stand on guard for thee.

O Canada, we stand on guard for thee.

In the government's recent Throne Speech two weeks ago, there was a proposal to consider altering the line "True patriot love in all thy sons command" to a more gender-neutral wording. A Parliamentary committee would have been assigned the task of examining the issue. Two possible alterations were as follows: "True patriot love thou dost in us command" (from the original 1908 version penned by Robert Stanley Weir) or "True patriot love in all of us command" (a later articulation and my personal preference of the two). While some were rather ecstatic about this proposed change, many others were significantly unenthusiastic about any such alteration. The latter won out. Due to an "outpouring of opposition" the government decided to scrap plans to even examine the idea.

Undoubtedly, those who voiced objection to the changes latched on to two notions - the maintenance of tradition and the need to counteract what would be perceived to be political correctness run amok (the usual arguments that are used to challenge any progressive change). Of course this extolling of tradition is usually rather selective - the original version of "O Canada" written by a lawyer, Robert Stanley Weir did not include the words "in thy sons command" but rather "thou dost in us command" which was later changed to the version now sung as part of the national anthem (see Senator Vivienne Poy's speech).

For reasons that I shall explain below, I believe that a proposed change to the lyrics would not only be welcome in that it would be inclusive of at least half the population of this country and sung across the country in a variety of events, it would also be in conformity with the spirit of the values espoused in the Canadian Charter of Rights and Freedoms, in particular sections 15 and 28.

Section 15(1) of the Charter states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Just to underscore the greater importance that equality between men and women are to receive under the Charter, s.28 states that: "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons."

"O Canada" became the official national anthem in 1980 through the passage of the National Anthem Act, [N-2]. Through section 2 of the Act, "the words and music of the set out in the schedule, are designated as the national anthem of Canada." Therefore, in addition to being an important symbol of Canadian identity, it is given official status by the state through an act of Parliament. Contrary to a statement on the government's Canadian Heritage website, it is not just the melody that is set by the Act, but the lyrics as well.

The lyric "in all thy sons command" is, in a rather obvious fashion, gender specific. It formally excludes the "daughters" of the nation - including but not limited to those daughters who fight, bleed and die for it in the military, serve it through public service, and those who compete on behalf of it on the international stage in sporting events - most recently in the 2010 Winter Olympic Games in Vancouver.

The exclusion is far from abstract. As one female Canadian doctor wrote to Senator Vivienne Poy (as the latter was trying to push through an amendment to the anthem in 2002), "I remember vividly my reaction on my first day of school when "O Canada!" was sung, and I knew immediately that, as a girl, I did not count for anything in Canada."

If the National Anthem Act proclaims the words and music of "O Canada" as the country's national anthem, there is a reasonable question whether the formal inclusion of one sex through the reference to sons, but the exclusion of the other, its daughters, deprives Canadian women of their right to equal protection and equal benefit on account of discrimination based on sex.

The benefit in question is the right to be included, to be visible as part of the national narrative embodied within the song - a song sung on a daily basis throughout the land that presently keeps women invisible while the nation reaps the benefit of the work so many millions of women render to it daily. As Canadian Senator Nancy Ruth argues (paraphrasing another): "Language is the power of the ruling class to define reality in its own terms to make invisible all others!"

The lyric in question is not only an anachronism from the point of view of the Charter and the concept of equality, the forced invisibility and exclusion of women in the anthem is dissonant when juxtaposed against the resounding accomplishments that Canadian women have brought to their country, both within government and in civil society. On the latter point, it is worth mentioning that amidst the national celebrations that emerged on account of the success of Canadian athletes who won medals at the Vancouver Olympic Games, the majority (at least of the Gold medals) were won by women.

Tradition is neither immutable nor is it immune from alteration. For example, the country has seen tremendous and important changes to the concept of marriage within the confines of the law. The gender-based narrative of exclusion embedded within the national anthem is similarly subject to and indeed is sorely in need of change and reformulation to conform with current thinking and legal norms on equality.

One of the main purposes of a national anthem is to instill a sense of patriotism and national unification around a particular symbol. By excluding one half of the population, the English version of the anthem, through the explicit exclusion of "daughters", undermines the very sense of patriotism and unity it is supposed to instill.

Tuesday, March 9, 2010

Beautiful Norms

Standards or norms of beauty are generated within and by civil society. These norms can have an overwhelming impact on many facets of our lives - sometimes with rather discriminatory and exclusionary results. This is particularly so when beauty is filtered through the rubric of skin tone and racial features. As Shankar Vedantam notes, "these factors regularly determine who gets hired, who gets convicted and who gets elected." Vedantam's New York Times commentary came following U.S. Senate majority leader, Harry Reid's ill-advised comments about President Obama's electability amongst White American voters on the basis of his lighter skin and absence of a particular African-American dialect.

Norms of beauty as filtered through fairer skin tones set normative standards about who is deemed acceptable and worthy of positive attention - e.g. as a romantic partner, as an employee, as a friend. How are these norms conveyed?

Values that extol the "superior" value of lighter skin tones are not the monopoly of any particular community. However, given my own "membership" within the South Asian community, I shall highlight some examples where the value of such prized skin tones are explicitly and unabashedly endorsed and serve as socio-legal norms.

The first are in matrimonial web sites where partners search for mates on the basis of either wide open criteria or restrictive ones. As one article by Achal Mehra in Little India notes, numerous Indians who post profiles on such sites characterize/advertise themselves as fair-skinned or "wheatish".

An examination of Bharat Matrimony determined that 57% of the profiles were self-classified as fair or very fair and another 33% as wheatish or wheatish brown.
The figures may seem incongruent in a community that hardly fits into the fair skinned spectrum on the global scale, but it underscores the widespread affinity for fair skin tone in a nation that has witnessed exploding demand for skin lightening creams in recent years. It is reflected in even the complexion choices that websites like Bharat Matrimony offer users, four of which — very fair, fair, wheatish, wheatish brown — are skewed to the white end of the spectrum and just one — dark — to the black tone., another prominent matrimonial Indian website, likewise, offers users four complexion choices, three on the light end — very fair, fair, wheatish — and just one dark.
These normative values on lighter skin tones are reinforced through commercial products and television/films. On the commercial front are the widely purchased Fair and Lovely (F&L) and Fair and Handsome (F&H) skin lightening products. F&L produces creams for both males and females while F&H largely focuses on the male side of the equation. But merely seeing information on their websites doesn't convey their purported value or message until one views the commercials advertising their effects and social benefits.

For example, in one F&L advert, a female vocalist and teacher provides music lessons to young girls. Her singing and demeanour are made to appear subdued as she is hoping to draw the attention of her male neighbour who is ignoring her. The scene cuts to the young lady in front of her mirror disconcerted about her "dark" skin. After her mother comforts her, she applies F&L and as the commercial's male narrator explains, no other skin cream reproduces F&L's results. After fully lightened our already fair singer is now much fairer. Her singing suddenly draws the attention of her neglectful and youthful male neighbour who suddenly discovers the singer in her lighter avatar.

The commercial touches upon several messages. Lighter skin produces heightened confidence. Heightened confidence in turn leads to enhanced artistic professional performance. Enhanced professional skill then draws in the romantic male interest who suddenly is enraptured by her much lighter pigmentation. There are of course a couple of other added messages. First, parents ought to encourage their daughters' attractiveness through the use of such products. Second, through the presence of several young female students, their counterparts watching on television are encouraged to watch as their elder engages in this type of conduct as though it were to be modeled.

F&L has also rolled out a similar commercial for its male skin lightening products. In its ad, a "dark" complexioned stunt man performs a death defying stunt on a motor cycle. As he takes off the helmet, the director yells cut. The main lead and light-skinned actor then steps in and the director yells action allowing him to finish the scene. Following the shoot, the stunt man coincidentally receives a text about F&L cream for men and is suddenly transformed. After completing another stunt scene, the stunt man once again removes his helmet with the director yelling "cut". The director suddenly notices an attractive and handsome man and yells action coaxing the stunt man to continue the scene with the displaced older fair-skinned actor fuming at his sudden and unceremonious exclusion. The scene then cuts to the stunt man having transitioned into a big-time film star with a beautiful and fair-skinned starlet accompanying him at a red-carpeted event.

As with its female counterpart linked above, F&L endorses fairness as a norm to live by in order to access improved career prospects, and enhanced visibility which leads to greater professional and economic opportunities as well as romantic ones.

Not to be outdone, F&H has a similar type of commercial that encourages men to purchase their product. The commercial features top-grossing Indian film star Shah Rukh Khan who in essence coaxes a "darker-skinned" (essentially obvious applied face makeup) young twenty-something to apply some F&H in order to get the fair-skinned and attractive female love interest. Having taken Shah Rukh's advice by applying the facial cream, he is confident, dressed better and approached by the ad's attractive female heroine. Although F&H's message is limited to the romantic realm, it's principal boost comes from the name value brought by one of India's top named screen actors.

Skin tone is also encoded with other socio-legal meanings that are gendered. In films, the fairer one's skin tone, the closer the analogy to virginal purity and marital worth, whereas the darker the skin tone - the closer the analogy to female promiscuity. During one segment from NDTV's "We the People" program, Prahlad Kakkar, a commercial director and producer, expressed it in the following blunt terms (starting at 3:38):

If you saw a dark and a fair [skinned] girl side by side who were equally attractive - the dark girl would represent eroticism where you would like to take her to the first hotel room that you could find. And the fair girl you'd like to take home to mommy...This is a very deep-rooted bias. My biases are towards people who can deliver a performance. And that is my only criteria. And sometimes I have to fight tooth and nail for that because [clients] turn around and say "she's a little dark." I say "so?"
Thus both fair-skinned and dark-skinned Indian women within this paradigm are considered commodities. The fairer-skinned women are considered of greater worth as marital partners, while their darker-skinned counterparts as sexual objects. Hence the emphasis on the lighter shades on the matrimonial websites.

It is useful perhaps at this stage to acknowledge that norms of beauty (like other norms) are not digested and accepted uncritically. While many may purchase products like F&L or F&H, and not an unsubstantial number, there are others who do not. Note the model and actress, Deepal Shaw who spoke in the earlier NDTV segment linked above. She is an individual who seemed to have been considered "darker" and thus typecasted as result of it in the role of the "sexy woman". Noticing that she was being typecasted, she states that she consciously took a two year break and when she returned she insisted that she be allowed to play more diverse roles. When questioned by the show's host Barkha Dutt about why she would want to play the role of the "sweet" girl - normally set aside for "fairer" actresses, Shaw asserted: "It's not that I want to be sweet. I am also sweet. I am also sexy. I am also sensuous. I am every character [that] I want to portray." Although I am not familiar enough with Hindi films, and thus cannot say whether Shaw has been successful in capturing these more "diverse" roles, nevertheless her statement of intent suggests an important and conscious effort in challenging norms of beauty and acceptability that stress lighter skin tones.

As suggested earlier, norms of beauty, particularly with respect to preferences of skin tone are not the monopoly of any one community or culture. My attempt in this post was not to cover all of them in one writing. There are of course other numerous examples of intra-cultural as well as cross-cultural/interracial notions of beauty and sexual attraction that have been discussed and explored in scholarly writings and examined in popular culture. See for example, Spike Lee's Jungle Fever. In subsequent posts, I shall return to this idea of standards of beauty serving as normative standards against which humans are expected to conform to.


Achal Mehra, "Fair and Ugly" Little India (10 Feb 2010), online:

Achal Mehra, "Mirror, Mirror on the Wall" Little India (10 February 2010), online:

Shankar Vedantam, "Shades of Prejudice" New York Times (18 January 2010), online:

Saturday, March 6, 2010

Legal Narratives of Identification - The Curious Case of Children's Storybooks

It should hardly come as any surprise that children's storybooks are rich sources of legal normativity and sources for legal analysis (see for example, the scholarship of Desmond Manderson and Shauna Van Praagh). In a previous posting, I touched upon the linkages between certain children's stories and their emphasis on breaking norms when doing so would be justified in order to stop a greater harm from being perpetrated.

In this post, I want to switch gears and address another series of considerations that have cropped up as I have been reading a host of children's books to my daughter. Given her rather young age, my spouse and I have devoted a considerable amount of time to reading my daughter books that emphasize identification and characterization as a central theme. A key example of this is the Usbourne "touchy-feely" picture book collection - particularly, the That's Not My Baby series. This series of picture books are aimed at developing the sensory and language awareness of infants and toddlers.

In these particular books, the narrative is a simple one, a little mouse goes out in search of a baby it identifies with and calls its own. With each baby it comes across, the mouse identifies something that a baby is wearing or possesses that distinguishes it from the baby it is searching for. Each item that is identified by text has a particular texture that the child who is being read the book can touch and associate with - e.g. "That's not my baby, her teddy [bear] is too fluffy"; "That's not my baby, her blanket is too silky"; "That's not my baby, her mittens are too fuzzy."

While the primary objective of this book (and others) as previously stated is to develop a child's sensory and language awareness, I argue that this development can have considerable implications later in life when we consider issues of identification of objects and people who are associated with such objects within the litigation process. These books help to train children to more acutely identify individuals and the objects they are wearing or possess, rather than simply latching on to more simple and base characterizations rooted in racial categories. When one looks to the sample pages of That's not my baby, one notes that the author, Fiona Watt avoids having the mouse identify the baby in question by skin colour, but looks to other identifying objects and/or textures that identify them as being distinguishable from the baby the mouse is searching for. This is not to suggest that identifying an individual's ethnic background is altogether invalid if coupled with other identifiable characteristics - however when race becomes the sole identifying feature, there may be a higher propensity for inaccurate identifications and worse, in the context of criminal prosecutions, such identifications may lead to wrongful convictions.

The need for greater accuracy in identifications was highlighted to me in one of the more poignant moments I experienced during my law school education. During criminal procedure, my professor wanted to sensitize the class to the fallibility of human perception with respect to witness identification and its ramifications on the rights of the accused. During one class, an individual who had been sitting amongst us for a certain duration of the lecture (but who was clearly someone no one likely recognized as part of our class prior to that day), got up and walked down the middle aisle that separates the classroom. The individual gave the professor a manila envelope, shook his hand, and then exited the classroom. From the time the individual stood up, walked to the front of the class and then left, roughly 10 to 15 seconds had probably elapsed. The envelope contained sheets of paper that were passed out to us. Each sheet contained a series of questions aimed at determining the extent of our ability to identify particular identifying features about this person, including their ethnic background, gender, what they were wearing, etc. The one thing we could all identify was that this person was African-American. Most correctly identified him as a male, although one or two didn't. As to this gentleman's other identifying features and details about what he was wearing, we were far from unanimous or correct.

This gentleman's experience with wrongful identifications was however far from academic. His name was Neil Miller. Some years prior, he had been wrongfully identified by a rape survivor and was convicted on the basis of her false identification which was also assisted with some improper influence by law enforcement. Thanks to subsequent DNA testing, Miller was freed but not before enduring several years of life in prison which took its toll on him.

Eyewitness and victim testimony are not going to go away, nor should they be expected to. But as my classroom experience perhaps demonstrates, misidentifying an individual can have serious ramifications on the liberty of another. Part of this is rooted in the poor training (if any) many of us have (including myself) in identifying critical details about others we may see rather quickly that move beyond the "basics" of race and gender (and in the case of the latter - at least one of my fellow colleagues in class identified Mr. Miller as a woman).

While identifying details may not come naturally to many of us, it can be cultivated. Perhaps by actively training individuals from a very young age to be observant and critical in their observations and maintain this skill into adulthood, we may be able to foster their capacities to provide more detailed and accurate identifications when called upon to do so.

It is worth noting that the development of this skill is not just relevant or important to individuals identifying suspects in a police line-up followed by testimony in court. It may be useful when a person is required to provide critical identifying information or characteristics in helping to find an abducted child or assisting law enforcement in tracking a wanted criminal.

Thursday, February 25, 2010

Ineffective Assistance of Coaching

Dutch long-track speed skater Sven Kramer had another gold medal within his grasp in the 10,000-metre race this week. However an error by his coach led Kramer to an unfortunate disqualification. Each race involves two skaters, one of whom starts in the inner lane and the other on the outer lane. After each lap, the skaters switch lanes. As Kramer had switched from the inner lane to the outer (he had already been skating for an extensive period during this race), his coach Gerard Kemkers, momentarily confused, quickly and wrongly told Kramer to move back into the inner lane. Kramer did so and continued to race. After finishing (and otherwise winning) the race, Kramer was informed by Kemkers that he was disqualified and the reasons why.

Kramer was naturally upset and Kemkers, upon realizing his mistake, was devastated by his own error. It's worth noting that Kramer is a renowned champion at long-track speed skating and was primed to win the gold medal, barring any other mishap that might have happened notwithstanding Kemkers' faulty advice.

The application of the rules in sporting events can be quick and it can be harsh and in some cases perhaps excessively punitive. Where athletes commit a serious error due to their own negligence resulting in a disqualification, the decision will likely be considered 'legitimate'. However, where, as here the decision to change lanes was the result of the coach's improper advice, a complete disqualification seems less than fair or appropriate.

Although the rules that normally apply in the state-based legal system may or may not fit so neatly for various reasons within the sporting context not the least of which include the types of interests that are stake, both systems arguably share certain common features such as basic procedural and adjudicative fairness (or at least pay lip service to it). Take for example the instance of a criminal trial where a defendant is convicted in no small part due to failures on the part of his/her counsel to provide adequate representation. On appeal, if the defendant can demonstrate that his/her trial counsel was incompetent and the errors committed on account of such incompetence resulted in a miscarriage of justice, the conviction will be overturned and a new trial will be ordered. Proving incompetence however is a rather difficult task in practice. As a Supreme Court of Canada decision in one case attests, there is a

a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.
Returning to Kramer and Kemkers for a moment, athletes are like litigants in the legal process seeking to acquire a positive result. A sporting event can be like a trial or a hearing, some are long and drawn out, others short and brief. In all cases, they seek to get to the "promised land" through the assistance of "counsel" - the analogue for which in the sporting context is the "coach" or "trainer". A bond is built - one of trust. Like legal counsel, the coach/trainer helps to guide the athlete through their expertise of the process including both technical requirements and/or artistic nuances (as the case may be). Furthermore, as in litigation, the coach or trainer plots out certain strategies and tactics, some will work and some may not. Ultimately, in following such predetermined strategies and tactics an athlete like a client cannot thereafter claim that the result was unjust solely on the basis that a reasonable strategy failed to achieve the aims it set out to achieve.

However, what happens or ought to happen when a coach offers a rather sudden and quick yet unreasonable bit of advice which the athlete has little time to reflect on, but because of the established relationship of trust decides to follow it in the heat of the moment and in so doing culminates in a patently adverse and unfair outcome for the athlete?

Kemkers, it should be noted, has worked with Kramer on numerous occasions and through this relationship Kramer has won numerous competitions. Kemkers is himself a former Olympic bronze medalist in speed skating. His experience thus makes the error that much more unreasonable and below the standard expected of someone of his caliber and expertise. Furthermore, given his record in helping Kramer and his experience of the sport as a former speed skater, Kramer had little reason to doubt Kemkers' advice in the heat of the moment.

Assuming Kramer's disqualification was unjust and extreme under the circumstances, what are the alternatives? In the appellate litigation context, when a criminal defendant is able to successfully demonstrate that his/her trial counsel was ineffective, the remedy is normally to order a new trial. Except where it might conflict with other rules, one remedy might have been to allow Kramer to skate the whole race again, and perhaps alone. After all, another country's skater shouldn't be forced to re-race 10,000 metres just because Kemkers made an error. If this remedy would be considered reasonable, Kramer would likely deserve at least some time to recuperate physically before racing the 10,000 metres.

Given that Kramer completed the entire race, another alternative might have been to simply penalize him with a time deduction, rather than a complete disqualification. This might have cost Kramer the gold medal but may have kept him in medal contention depending on the extent of the time deduction.

All said and done, Kramer has stated that he has moved on and will retain Kemkers as his coach in light of their otherwise successful history together and the medals their collaboration has given rise to. Still, one cannot help but think that rules relating to such particular errors ought to be reconsidered to produce more just and equitable results.


Raf Casert, "Sven Kramer Lane Change Error Loses Him Gold Medal" Huffington Post (24 February 2010), online:

Raf Casert, "Sven Kramer Keeps Coach After Devastating Gaffe" Huffington Post (24 February 2010), online:

Michael Dew, "Ineffective assistance of counsel as a contributing cause of wrongful conviction" (19 November 2006), online:

R. v. G.D.B., 2000 S.C.C. 22, [2000] 1 S.C.R. 520.

Announcing Identity

My previous blog post, Citizenship of Sport, focused on the choices made by athletes regarding their construct of nationality and the associated ability to compete in the Olympic games. After watching the first ten days of the Vancouver Olympics television coverage, I have been struck by the ways in which the media – particularly sports announcers – has constructed the identities of athletes in a variety of ways. For the purposes of this article, the media coverage discussed is from NBC.

During the first three completed figure skating events – men’s figure skating, pairs figure skating, and ice dancing – the announcers highlighted the personal stories of the athletes. As the audience, we learned of the injuries suffered by some athletes, the family dynamics of others, the marital status of still others, and even saw childhood pictures of others. We saw their performances, heard the critiques of announcers, and could easily feel the tension and joy or sadness of these athletes when their scores were announced. And yet, throughout all of these stories, the emphasis was placed first on identifying the athletes as people and humanizing them through the explanation of their personal lives, particularly the struggles they endured for the their sport and their dreams of being Olympic athletes.

Through the medium of television announcers as intermediaries, the social laws and norms of dedicated athletes punctuated the norms of the viewing public. It would perhaps be difficult for viewers to imagine volitionally living in a separate dormitory from one’s spouse and sharing meals in a communal dining hall, yet the story of Shen and Zhao, who do this on a daily basis in order to comply with the laws of their training system, made it understandable, if not indeed praiseworthy for their dedication. Interestingly, what was not emphasized in the process of storytelling by the media was nationality of the athletes involved in the skating events. Certainly, nationality was mentioned, but it was not the paramount identifier; instead, names and stories were. These athletes were identified and defined to the viewers through their personalities and struggles, and we supported them out of solidarity or sympathy, not necessarily nationality. In many ways, this can be seen as an outgrowth of the idea of citizenship of sport in that it validates the athletes’ identities as skaters first because of the sacrifices which these athletes made for their sport.

In sharp contrast, the announcers covering the cross-country skiing events have largely identified the nationality of the athletes before mentioning their names. Indeed, during these broadcasts it has not been uncommon to hear a reference to the country for which the athlete competed as the identifier, with little personal information made available to the audience. Of the information made available, much focused on the athletes’ injuries either before or during the competition and not on the deeply personal and compelling stories of the athletes themselves. Often, the focus of information was on the history of the athletes’ countries successes and failures within the particular competition and even against other countries in the competition. The sense of identity for the athletes, at least from the point of view of the audience, thus was shifted to their country, making it easier in a sense for the audience to decide on a favorite athlete due to national allegiance. This method of identity conveyance is also arguably a way to downplay the agency of the skiers as individual athletes, emphasizing instead their identity as part of a larger state apparatus and history in the Olympic games.

While some of this difference in identity transmission could be attributed to the personal announcing styles of the sportscasters for each event, I would argue that there is more to discuss in this difference. Certainly, there is a way to view this difference as an outgrowth of the duality of the Olympics themselves; athletes compete in their individual capacities for their countries, thus there is an allegiance to both the athlete and the country on the part of the audience. In conjunction with the idea of citizenship of state, however, one can view this difference as emblematic of the dichotomy of understanding of the relationship between athlete and citizenship. The method of conveying identity used in the figure skating example clearly supports the conception of an athlete as an individual (or pair) who has dedicated himself to his selected sport to the point where the sport is a method of identity. In this situation, the choice of competing for another country is understandable. However, the method of conveying identity used in the cross-country skiing example clearly supports the idea of state-based citizenship as the defining force in an athlete’s identity and drive, with the idea of being a skier as secondary to that of being a citizen of a particular country.

Thus, we see a more subtle way in which citizenship of sport is introduced to the viewing public through the medium of sports announcers. It is through this medium that the audience also understands and interacts with the laws and norms of a sport which requires a level of dedication and sacrifice that would be outside the realm of traditionally accepted norms in mainstream society.

Tuesday, February 23, 2010

The Unbearable Lightness of Sis/Bro

John and Sinead Kerr; Photo: Reuters

Okay, this post is going to have to be a little delicate in nature. On our sensibilities, and...on our stomachs.

On Tuesday (February 23, 2010), the big story was the well-deserved gold medal victory of Canada's own Tessa Virtue and Scott Moir, the previous night at the 2010 Winter Olympic Games in Vancouver. Or perhaps it was even the silver medal finish of Meryl Davis and Charlie White. Right?

Not so much if you read some of Wednesday's Facebook status messages of individuals who were dismayed upon recently discovering that more than a few ice dancing pairs were comprised of siblings (this did not include any of the medalists). Yes, that's right, brothers and sisters doing the tango and/or other close-quarter ballroom-style dances on ice. Just how close? Take a look at the image above.

Before I proceed any further, let me be absolutely clear. I am in no way suggesting that any sibling-comprised ice dancing pairs are in any way, shape, or form actually involved or otherwise engaged in any type of romantic relationship on or off ice. They are merely acting/simulating a role that suggests a passionate and romantic relationship for the purposes of the performance solely.

Notwithstanding the discomfort it may give to people to see two siblings simulating a romantic couple in a passionate dance, present company most certainly included, I think it is worth stressing a couple of positive things about these dancers.

Like all other ice dancers, they have to train for rather long hours and devote a great deal of time, effort and hard work to perfect their art. Add to that, as siblings they may have to pretend or simulate a romantic relationship requiring them to forget that they're siblings during their ice dance performance - and perhaps just as challenging or more so - to get other people to forget it as well. Some sibling ice dance pairs might tell alternative stories that lead them away from the more romantic narratives traditionally associated with performances in an ice dance competition. See the Wall Street Journal article by Geoffrey A. Fowler for more of these dancers' perspectives on this and the narrative strategies they employ.

Furthermore, from the perspective of critical legal pluralism, such ice dance pairs are (intended or not) challenging the normative expectations of (at least probably a fair portion of) the viewing public that frowns upon the notion that such pairs should even try and simulate a romantic aesthetic on ice. More than just an act of resistance (if at all), they are advancing an alternative vision of legal normativity within the context of ice dancing competitions - one that demonstrates that siblings can skate together in an artistic manner while hinting at a romantic interplay between two characters rather than as the dancers themselves.

Still, this goes up against some rather powerful norms against siblings engaging in such representations. Let's leave aside for the moment any state-based norms that might prohibit such performances (I know of none) - this post is more about legal normativity in the legal pluralistic sense that recognizes the impact of non-state or societal norms (as legal norms) on human conduct. One non-state legal norm in question might be articulated as follows: "Thou shall not portray within an artistic medium a character in a romantic relationship if your character's lover is played by your real-life sibling."

There is probably more than one good reason why sibling actors for example do not play romantic roles opposite one another. Apart from the mental (and emotional) acrobatics it would take for an actor to forget that they are kissing their sibling in a manner that most, in like circumstances, would find revolting, there would likely be a commercial backlash that would come in the form of a boycott at the very least.

The analogy of romanticism in ice dancing to screen acting may seem like an unfair one. After all, ice dancers aren't kissing during their performance (at least in none of the few that I have seen). Yet, the "problem" has more to do with the substance (two siblings portraying non-familial romantic partners) than the form in which that simulated romantic relationship expresses itself (through kissing or close contact dancing). One form - kissing - might stimulate more revulsion than say two siblings doing the tango on ice, but perhaps it's more a matter of degree.

Legal norms emerge from within a particular cultural space. Some are distinctly reflective of a particular time and jurisdictional mindset, while others are more transcendent. Time will tell whether the ice dancers that are the subjects of this post are on their way to changing legal normativity by refusing to succumb to the types of norms suggested above. For now, I think more than a few people are thankful that Virtue and Moir aren't siblings.


Geoffrey A. Fowler, "That's Your Sister?" Wall Street Journal (19 February 2010), online:

Roderick A. MacDonald, "Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism" (1998) 15 Arizona Journal of International and Comparative Law 69.

Image: Photo of John and Sinead Kerr; Photo by: Reuters.

Saturday, February 20, 2010

Citizenship of Sport

The Vancouver Winter Olympic games have raised many interesting issues, which will be discussed in a series of blog posts. The first matter which I would like to focus on, due primarily to its cross-cutting nature, is the relationship between citizenship and sport which has been manifested during the Vancouver games.

Traditionally, the Olympic games are considered showcases of both national pride and the unity that is shared by athletes regardless of their nationality or beliefs. This duality was apparent during the Opening Ceremonies, when athletes processed as part of national contingents and later collectively took the Olympian’s creed, which cuts across nationality to stress the shared beliefs and goals of those talented athletes who are able to call themselves Olympians. A touching demonstration of the universality of the Olympic spirit were the arm bands worn by athletes from all nationalities in order to honor Nodar Kumaritashvili, the Georgian luger who died during a practice run prior to the Opening Ceremonies.

In addition to these public and non-controversial manifestations of the universality of athletics, the Vancouver games – and the athletes who have participated in them - have also highlighted the more controversial idea of citizenship of sport, by which I mean the athlete’s identity as an athlete trumping his or her identity as a citizen or national of a particular state. During the Opening Ceremonies, there were a remarkable number of athletes who were competing for states not usually associated with winter sports. The stories of these athletes were noteworthy in that some are dual nationals and, while they learned their sport in one country of their citizenship, they nevertheless chose to represent the other country of their citizenship as Olympians.

As the games unfolded during week one, other stories of citizenship of sport have emerged. Some continue to reflect the dichotomy of dual nationals and their choice of state to represent. Others, however, are more unusual. Yuko Kavaguti is part of the pairs ice skating team of Kavaguti and Smirnov of Russia. Japanese by birth and ethnicity, Yuko had a dream to be an Olympian and reached out to a famed Russian figure skating coach as a teenager in order to pursue that dream. However, the Japanese pairs figure skating program could not provide Yuko with the support or training she needed to pursue her goal and so she moved to Russia to train, became a Russian citizen and competed for Russia at Vancouver. In the process, she was required to renounce her Japanese citizenship and change her name to sound somewhat more Russian. She did all of this because she is, I would argue, a citizen of sport.

Similarly, Allison Reed is a fifteen year-old ice dancer who, along with her partner Otar Japaridze, is competing as part of the Georgian Olympic team at Vancouver. On the surface, there is nothing unusual about this. However, Allison is an American, who still resides in the US and only recently received Georgian citizenship as well. Her two older siblings are also ice dancers and compete for Japan, which is understandable given that their mother is Japanese. Allison, however, competes for Georgia because her ice dancing partner is Georgian.

This phenomenon of switching nationalities is not unique to the Olympic games, however it is particularly noteworthy, and arguably glaring, in the Olympic context. By drawing attention to these examples and to the concept of citizenship of sport I in no way wish to reflect on the propriety of citizenship of sport, other than to assert that it is likely easier to condemn the decisions made by athletes than to try to understand them. My purpose in writing this posting is to propose the existence of the concept of citizenship of sport and to suggest that it is likely to continue on in athletic competitions, especially as interactions between athletes and geography become more common, since, for example, many athletes compete and train in other countries than their country of nationality or citizenship. Citizenship of sport implies a new conception of societal belonging, replacing the traditional emphasis on nationality and national identity with the idea of being a skier, figure skater, or other athlete. It reflects the effort and dedication which athletes put into perfecting their craft, and asserts that the ability to display a life’s work of dedication and, typically, self-sacrifice should not be bounded by national rules and selection processes which might deny the athlete the opportunity to compete and pursue his/her dreams.

Certainly, nationality and citizenship are very personal considerations for anyone, particularly those who grew up dreaming that they would have the chance to compete for their country on a grand international scale such as the Olympic games. Citizenship of sport is no less personal, in that it encompasses the devotion of athletes to their sports and their desire to showcase that devotion, talent and sacrifice to the world. In the majority of cases, traditional concepts of citizenship and nationality co-exist with citizenship of sport to the benefit of the athlete and his/her country. However, it is important to acknowledge the existence of citizenship of sport and that it exists in a separate – though often intersecting – plane than traditional notions of citizenship and nationality.

For information on the athletes mentioned above, see: