Link Round-Up: Feb. 18, 2016

‘Link Round-Up’ gives you a glimpse into the articles that got the most airtime around the Loom Analytics water cooler this week. Published each Thursday, article topics include access to justice, big data, legal technology, and what’s happening in the Canadian legal landscape.

  • The death of U.S. Supreme Court Justice Antonin Scalia made huge waves in both the justice community and popular media. Justice Scalia died on Saturday, February 13th at age 79. Justice Ruth Bader Ginsburg, remarked that, “Justice Scalia nailed all the weak spots - the ‘applesauce’ and ‘argle bargle’ - and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh.”


    No more than a day after his death, journalists across the U.S. sparked discussion about how Justice Scalia’s absence will affect major cases before the Supreme Court. Adam Liptak, the New York Times’s SCOTUS correspondent, speculates that Justice Scalia’s death may have no effect on Whole Woman’s Health v. Hellerstedt, a major abortion case that challenges Texas’s pregnancy termination restrictions. Although, Liptak notes a 4-4 split, “would be a loss for those groups [pro-choice activists], as the restrictions in Texas would then go into place.”

    Liptak also notes that Justice Scalia’s death may have the biggest impact for Friedrichs v. California Teachers Association, a case concerning mandatory union contributions for public employees: 

    “The likely outcome now is a 4-to-4 split that would leave in place a decision from the federal appeals court in California upholding the mandatory payments. That would be a major victory for the liberal justices and public unions.”

  • However, Tom Goldstein, over on SCOTUSblog, suggests that tie votes will not necessarily be affirmed, but may be reargued instead:

    “I previously wrote that cases in which the Supreme Court is divided four to four after Justice Scalia’s death would be ‘affirmed by an equally divided Court.’  I now believe that is wrong.  There is historical precedent for this circumstance that points to the Court ordering the cases reargued once a new Justice is confirmed.”
  • Back in Ontario, the province passed legislation on Tuesday to legally recognize February as Black History Month. Throughout the month (and in the future, thanks to the newly-passed law), the Ontario government will be celebrating the contributions and achievements of the Black community.
  • Can innocent people be led to believe they committed a crime? The Toronto Star reports on a new study that suggests memories are susceptible to influence under certain questioning tactics. The study, published by University of Bedfordshire’s Julia Shaw and UBC’s Stephen Porter, suggests that false memories can be planted by reassuring participants that their ‘lost recollection’ can be retrieved, and asking them to visualize what that event might’ve been like.

    The study, of course, is conducted differently from a police interrogation. The Star notes the police use the Reid model which often entails aggressive questioning for hours on end. Paul Pearson, a B.C. defence lawyer, argues for the merit of psychological evidence that proves how impressionable human memory can be:
“When we go to court as defence lawyers and try to argue to a judge that we should bring in psychological evidence about the frailty of human memory and false memory syndrome, we’re often met with a great deal of resistance,’ he says. ‘Judges want to be the judges (of whether memories are true).’”

Alberta Judge Mike Dinkel condemned the Reid technique back in 2012 in R. v. Chapple where he pointedly said:

“I denounce the use of this technique in the strongest terms possible and find that its use can lead to overwhelmingly oppressive situations that can render false confessions and cause innocent people to be wrongfully imprisoned.”

On a similar note, another Toronto Star article published this week looks at how the unreliability of memory can factor into the defence’s strategy in criminal trials.