Monday, February 29, 2016

Visualizing Administrative Law: The Case of Lean on Me

Let's face it, the notion of "administrative law" doesn't infuse the ordinary person with a great deal of excitement. That's of course not surprising in the least. Even if most people don't have an inkling as to what administrative law is about, few people become electrified by the notion of anything that might be characterized as "administrative" - notwithstanding that it is attached to law. As soon as one gets an inkling that a great deal of administrative law (at least in its Canadian incarnation) concerns ideas of procedural fairness, the mention of procedure is enough to send most into a somnolent state and cure the worse cases of insomnia. This is likely what faces any number of students who take or are mandated to take a course in administrative law in law school leave alone the general public. 

However reasonable such assumptions, sentiments and/or apprehensions may be, administrative law speaks to incredibly important issues concerning public decision-making. Much of what constitutes government action and decision-making today, for better or worse, takes place not in legislatures or courts, but through administrative agencies, departments, tribunals, boards, arbitrators, officers, and a whole slew of other actors both at home and abroad. Some decision-makers are more tangibly tied to a government and government policy, while others are independent. Their decisions impact on people's lives in countless ways - the acceptance or refusal to grant refugee status, any license, citizenship, parole, a pardon, extradition, a passport, a visa, release from mental health institution, welfare or other forms of income support, as well as worker's compensation. Administrative tribunals adjudicate, among other contests, labour disputes, conflicts concerning intellectual property, and human rights complaints.

The scope of administrative law is quite simply breathtaking. As a law school educator who teaches administrative law, there is no shortage of cases for my class and I to examine. Yet, the focus of an administrative law course (and certainly mine included) can tend to dwell in some measure on how difficult it is, in most cases, to practically challenge the merits of administrative decisions before a reviewing court. In addition, we often look at whether decision-makers followed a fair process in arriving at their decisions. The failure to provide a fair process may result in a court quashing the decision and sending it back.

As with other areas of law, the written word, manifested through court judgments, constitutional provisions, statutes, regulations, guidelines, cannot always (and let's be real, often don't) capture for many the true drama of administrative decision-making and their implications. This is where films and television can play an immensely important role in making visible that which is often invisible or largely unnoticed. After all, we absorb large volumes of information today via audio-visual storytelling. Through such narratives, one can illustrate the dramatic and compelling nature of procedural fairness (or the lack of it), and indeed the importance of due process more generally. 

To give an example of this, I'll discuss here a clip from a film that I recently showed in my own administrative law class as a launching point to discuss the significance of procedural fairness. The film is Lean on Me. Briefly, the film stars Morgan Freeman who plays a disciplinarian principal/educator named Joe Clark (based on a real life individual with the same name). He is recruited to transform a crime-ridden school infiltrated by drug traffickers and infested with chronic violence and chaos. The disorder afflicting the school is apparent in the opening sequence of the film, and for good measure is set to Guns 'N Roses' "Welcome to the Jungle" as seen here:

In order to begin the needed change to alter the failing character of the school, Clark takes a significant and radical step by expelling dozens of errant students, the worst of the worst, as illustrated in the following clip:

The scene (which is the one I screened in class) shows in a short minute or so a number of crucial concerns connected to procedural fairness as they are understood in Canadian law. This is certainly the case even if the context is American in nature. These concerns include the idea of sufficient notice before a decision is taken, disclosure of information which served as the basis for the decision, and the presence/lack of any participatory rights (e.g. a hearing) before the decision is reached. It's obvious from this scene that none of these things were provided to these students, even if we are to assume that they were the miscreants they were alleged to be. The students are constructed as a singularly cancerous contingent that must be expelled to save the remainder. Indeed, this is largely how Clark justifies it at an emergency parent meeting convened the same day as the mass expulsion shown above. 

As part of the course, one of the issues discussed in connection with procedural fairness is the content and level of fairness owed. This will usually be dependent on an assessment of five non-exhaustive factors discussed in a seminal decision by the Supreme Court of Canada - Baker v Canada. Through these five listed factors, courts may assess the content of the duty of fairness and what degree of fairness may be owed to someone impacted by a decision. For example, is someone entitled to a hearing, and if so, what would the hearing look like? Would it be an oral hearing where an individual has the face-to-face opportunity to plead their case or is one's ability to address a decision-maker/executioner limited to written submissions?

The ability to parlay with a decision-maker in person with respect to their decision may be crucial. It offers a chance to the individual to humanize him or herself and forces a decision-maker to contemplate the impact of their decision on a person. In the second clip displayed above, there was clearly no ability to do so. Not too long after the second clip, a student who was expelled in Clark's mass expulsion approaches the latter to ask him to reconsider his expulsion. The following is what transpires:
This impromptu rooftop "hearing", which is more akin to an inquisition, allows the student to plead his case and to secure his re-entry into the school and this discrete community. The scene shows that it has its desired outcome. Rather than being one who is undifferentiated among a mass of drug-dealers or other consumers, the student is able to have his case considered as an individual. It is in stark contrast to the earlier mass expulsion scene. The long-term impact as the film progresses becomes evident as the student turns things around (though with some comical hick ups along the way). The student's ability to seek a hearing is vindicated. 

A larger discussion of Lean On Me is beyond the scope of this post, but in many ways the film raises a number of interesting procedural fairness concerns. The Clark character approaches the larger transformation of the school in rather authoritarian and menacing ways that raise other procedural concerns.

As pedagogical tools, film and television clips highlight a number of administrative law issues which may not be easily contemplated or accessible through a more standard examination of case law and other legal sources. Such visual storytelling can highlight the range of administrative decision-making - from more informal processes to those which resemble trial-like mechanisms warranting a higher level of procedural fairness in accordance with natural justice. This is where decision-making more closely resembles judicial or quasi-judicial adjudication and calls for a greater degree of fairness.  

In coming posts, I shall endeavour to address other depictions of administrative law and decision-making in film and television and their importance, among other things as an educational tool to make these processes more accessible and to highlight the issues they raise.

Sunday, February 21, 2016

Contextual Nationality

The Woman in Gold is an artistically and emotionally stunning film that takes the audience through the personal and legal struggles connected with the painting “Portrait of Adele Bloch-Bauer,” one of Gustav Klimt’s most recognized works. The law involved is well portrayed and doubtless there is much to be said regarding the ways in which the relationship between law and those impacted by it is portrayed. There is, however, a more subtle form of pluralism that is the subject of this post.

Maria Altmann, one of the main characters of the film, is the litigant involved in the flight over “Adele.” Maria was born in Austria to an accomplished and artistic family that also was wealthy and Jewish. Her connection to “Adele” is as poignant as it is simple – the subject of the painting was her very dear aunt.

Throughout the film via flashbacks, the audience is transported to Austria before World War II and sees this world through Maria’s experiences. The audience is introduced to Maria’s family – her sister, her doting parents and uncle and aunt, and, eventually, her husband, Fritz. The audience is drawn into this family and shares its joys – particularly Maria’s powerfully joyous wedding – as well as its deep sorrows – from the internal family sorrow of her aunt’s death to the externally imposed sorrow of an Austria that comes under the authority of the Nazis. Ultimately, her uncle and sister leave Austria before the occupation but Maria and Fritz elect to stay in Vienna with her parents. The film heart achingly portrays the occupation of the Altmann family home by Nazis on trumped up charges and the confiscation of family possessions, including “Adele.” Eventually, Maria and Fritz have an opportunity to escape Vienna, although her parents stay behind and she never sees then again.

There are few flashbacks of Maria in the US other than a scene in which Fritz is attempting to teach her English. In this scene, Maria finds out that her father has died in Austria, severing another connection to her homeland. The severing of Maria’s connection to Austria is reflected in her constant reference to “Austrians” and insisting on speaking in English to a Viennese hotel clerk although he notes that she was born there. However, when she sees her former apartment building and the places she used to visit she is clearly transported to a place with which she has a connection and still identifies.

At the same time, film chronicles the personal journey of Randy, the lawyer son of Maria’s friend, whose family Maria knew in Austria. Randy is reluctantly roped into assisting Maria pursue a claim to “Adele” against the Austrian government on the ground that it was illegally appropriated during the war. Randy initially sees the case through an economic lens – “Adele” was valued at $100 million. Throughout the film, he learns about his family in Austria and their experiences before and during the war. He visits places where his grandfather lived and is exposed to the different trends of thought regarding the war – from denial to suppression of events in order to move forward to desires for open dialogues about actions under the Nazis.

One of the pivotal moments of the film occurs when Randy presents Maria’s claim to before an arbitral panel. The Austrian government claimed that the painting was a national treasure and belonged to and in Austria. Randy’s argument was equally evocative, noting that both he and Maria were Austrian. For him, this is a key personal moment of self-realization that he shared the nationality – and identity – of his grandfather. Regardless his ability to assert this as a matter of law, there was a deeper connection to identity that in this context could not be denied due to place of birth or laws. In short, Randy’s identity shifts throughout the film.

While the panel deliberates, an official from the Austrian government approaches Maria to offer a settlement allowing “Adele” to stay in the country as a national treasure. Maria responds with a reference to her aunt’s Austria (and, presumably, her own) versus the state that exists today and that “Adele” belongs to her Austria. Here we again see the use of nationality in context. For Maria, her aunt lived in a certain version of the country, one before the outrages of the Nazi regime and those who were complicit with it. Her aunt’s nationality was based on the context of a certain time period, one in which she was able to live unimpeded by hate. Similarly, Maria’s nationality was tied to a time and a place – to the state in which she was born but which ceased to exist even though she might be eligible to retain that nationality as a matter of law. Her nationality then became American, as that was the place in which she and Fritz were able to make a home and the context of the bulk of her memories.

There are many lessons from the film. One essential lesson is the existence of what can be termed “contextual nationality,” referring to the idea that nationality is more than a legal construct in strict terms. Rather, it is an identity and experience-based construct that can shift and that can share an intimate connection with time and place. It focuses around a law that is written in experience and identity – sharing a time and a set of values that links one to a nation even if these times and values no longer exist. In some ways, it is contextual nationality that merges the past into the identity of the present by incorporating a greater understanding of the factors that mould constructs of nationality.

Monday, February 15, 2016

Governing cuisine

The film Burnt  is a tale of personal redemption complete with reflection, atonement for past sins, vindication and, ultimately, success. The film takes the audience into the world of elite chefs in London (and to a lesser extent Paris), where family exists in the form of a tight-knit kitchen and where a combination of intense passion, dedication and ego is necessary to produce what can only be described as culinary art. It is a seemingly glamorous world that masks often ugly realities – addiction, broken personal lives, and personality disorders to name the most prominent.

Within this setting, there are many forms of unofficial laws and rules that inform the culinary community and keep it together as a functioning entity while at the same time serving as an educational environment in which chefs are challenged to invent and reinvent themselves while they teach the chefs who work with them. The kitchen is presented – with some great degree of accuracy – as an autocracy in which the head chef is the ultimate source of authority and approval. Chefs with particular specialities are tasked with ensuring the perfection of their jurisdictions and ensuring that those who work under their oversight comply with the rules of their jurisdiction and the larger kitchen. From this point on decreasing power and authority granted to those in the kitchen, and each member of the kitchen is required to know his/her place in the governance structure.

As depicted in the film, in this hierarchy the failure of one level to comply with the requirements of appropriate jurisdiction have disastrous impacts and potentially undermine the kitchen both as an internal matter and among members of the outside communities. There is perhaps no better illustration of this than when there is an (erroneous) encounter with supposed Michelin restaurant reviewers and one of the sous chefs commits a deliberate act of sabotage that completely undermines the integrity of the kitchen to the outside world while also creating turmoil in the accepted strictures of conduct within the members of the kitchen community. In the aftermath there is a good deal of soul searching by the chef, which leads to a reorientation in many of his policies in order to create one unit of functioning and authority where each of the sub-units of jurisdiction work together. When the real Michelin reviewers arrive, the kitchen is able to execute the menu perfectly as a cohesive unit, leading to the advancement of the kitchen’s standing in the culinary community.

As is perhaps expected from most films, Burnt takes audiences on an allegorical adventure, seeing the main character through from failure and self-loathing to success and stability. Beyond this, however, the film provides insights into an often unseen community that functions on a unique governance system based on autocracy on hand but interlocking dependence on the other.