1 00:00:00,740 --> 00:00:04,880 The battle for Ontario's Disability Accessibility laws. 2 00:00:04,880 --> 00:00:10,190 Lessons learned about law, lawyering, legal education and scholarship. 3 00:00:10,190 --> 00:00:12,370 David Lepofsky, Chair. 4 00:00:12,370 --> 00:00:17,170 Accessibility for Ontarians with Disabilities Act Alliance. 5 00:00:17,170 --> 00:00:20,455 Delivered at the Osgoode Hall Law School January 6 00:00:20,455 --> 00:00:24,320 29, 2014 as a Roy McMurtry Clinical Fellow. 7 00:00:26,100 --> 00:00:29,350 >> Good afternoon everybody, it's, it's, it's 8 00:00:29,350 --> 00:00:32,770 it's a tremendous opportunity for me to spend 9 00:00:32,770 --> 00:00:35,188 a month at Osgoode Hall Law School's, Roy 10 00:00:35,188 --> 00:00:38,160 McMurtry Clinical Fellow, and it, it, it, it's 11 00:00:38,160 --> 00:00:43,260 especially humbling to be able to speak at a faculty seminar at my old alma 12 00:00:43,260 --> 00:00:48,710 mater where I had such a wonderful time back in the 70s learning to be a lawyer. 13 00:00:50,900 --> 00:00:56,710 I wanna dedicate the lecture series that I'm giving while here to Roy McMurtry. 14 00:00:57,790 --> 00:01:02,120 As the attorney general who I knew, both first 15 00:01:02,120 --> 00:01:06,950 by name and then working in his ministry he defined 16 00:01:06,950 --> 00:01:08,910 what was the attorney general for me for the 17 00:01:08,910 --> 00:01:12,950 first nine years that I studied and then practiced law. 18 00:01:12,950 --> 00:01:15,230 And then became later the, the Court of Appeal 19 00:01:15,230 --> 00:01:19,800 Chief Justice, an embodied justice in what he did. 20 00:01:19,800 --> 00:01:21,710 He is a paradigm of public service. 21 00:01:21,710 --> 00:01:23,780 He is the role model of public service for me. 22 00:01:24,900 --> 00:01:29,330 It is especially meaningful for me to have a fellowship that's named after him. 23 00:01:30,450 --> 00:01:33,840 I will try to live up to that honor. 24 00:01:33,840 --> 00:01:37,150 While I work by day for the Government, I'm speaking in my personal capacity. 25 00:01:37,150 --> 00:01:38,942 I'm supposed to say that, so I just did. 26 00:01:38,942 --> 00:01:40,925 >> [LAUGH]. 27 00:01:40,925 --> 00:01:46,710 >> [COUGH] Every once in awhile the accessibility gods look down on me and say 28 00:01:47,990 --> 00:01:53,010 okay, today, you deserve to have something handed to you that will help the battle. 29 00:01:54,220 --> 00:01:56,070 It happened today. 30 00:01:56,070 --> 00:01:58,690 In fact it started a couple of days ago, I got a call a couple of 31 00:01:58,690 --> 00:02:00,200 days ago from a reporter I know at 32 00:02:00,200 --> 00:02:02,600 the Toronto Star saying that they were going to 33 00:02:02,600 --> 00:02:07,560 do a story about a woman in a wheelchair who trying to take a one hour bus on a 34 00:02:07,560 --> 00:02:14,780 well known inner city bus line it turned out into be a four hour ordeal. 35 00:02:14,780 --> 00:02:18,120 With broken down accessibility equipment, sounded 36 00:02:18,120 --> 00:02:21,400 like possibly staff who aren't properly trained 37 00:02:21,400 --> 00:02:25,640 in how to use it, improper follow-up, and eventually, being left having to 38 00:02:25,640 --> 00:02:30,720 sit for a long stretch outside, stuck on the accessibility equipment that wasn't 39 00:02:30,720 --> 00:02:37,640 working, or whatever, in the freezing cold, while needing to go to the bathroom. 40 00:02:37,640 --> 00:02:39,320 Not the usual ride on an inner 41 00:02:39,320 --> 00:02:43,440 city bus that people without disabilities would expect. 42 00:02:43,440 --> 00:02:48,710 I was asked for a response, and that article ran in today's 43 00:02:48,710 --> 00:02:53,180 newspaper in the Toronto Star, and you have a copy of it. 44 00:02:53,180 --> 00:02:56,920 And it, I don't say the Gods look down kindly. 45 00:02:56,920 --> 00:02:59,990 I, it is horrible this woman had this happen. 46 00:02:59,990 --> 00:03:03,330 It's just these sorts of things do happen too often. 47 00:03:03,330 --> 00:03:07,030 This one got to the media and they were prepared to report on it. 48 00:03:07,030 --> 00:03:08,430 And I was approached to comment. 49 00:03:10,360 --> 00:03:16,090 Let me talk to you about what I've learned in my years of doing disability advocacy, 50 00:03:17,590 --> 00:03:22,920 about the law, about legal, legal advocacy or lawyering. 51 00:03:24,160 --> 00:03:28,510 About legal education and finally about legal scholarship. 52 00:03:28,510 --> 00:03:34,110 And I wanna come back to apply all of that to the newspaper story 53 00:03:34,110 --> 00:03:36,980 I just told you about and for which you, of which you have a copy. 54 00:03:38,640 --> 00:03:43,450 Now in explaining this I have to emphasize that in none of the situations where 55 00:03:43,450 --> 00:03:48,630 I've played a community organizing advocacy and leadership 56 00:03:48,630 --> 00:03:50,160 role, have I been acting as a lawyer. 57 00:03:50,160 --> 00:03:53,600 In fact, I am most decidedly not a lawyer in my coalition. 58 00:03:53,600 --> 00:03:54,780 And I have any of our legal 59 00:03:54,780 --> 00:04:01,618 positions lawyered by generous probono legal council. 60 00:04:01,618 --> 00:04:07,400 But I do draw on the skills and knowledge I learned to become a lawyer 61 00:04:08,950 --> 00:04:13,530 and I did draw on the expertise I tried 62 00:04:13,530 --> 00:04:18,140 to develop in how to be persuasive, which is in essence what lawyers do. 63 00:04:19,220 --> 00:04:22,860 And I hope that this experience will help highlight 64 00:04:22,860 --> 00:04:25,470 things that we might be able to do here at 65 00:04:25,470 --> 00:04:28,880 this law school and others as well to share this 66 00:04:28,880 --> 00:04:33,920 kind of knowledge and expertise with others about the law. 67 00:04:35,390 --> 00:04:37,840 So we were delighted and honor, delighted, 68 00:04:37,840 --> 00:04:41,030 we were indeed ecstatic in 1982 when through 69 00:04:41,030 --> 00:04:45,310 the community efforts of many, I was one of many, we got disability included in 70 00:04:45,310 --> 00:04:47,030 the Ontario human right codes ban on 71 00:04:47,030 --> 00:04:50,730 discrimination in employment housing and so on, in, 72 00:04:50,730 --> 00:04:53,150 and also get a disability to the equality 73 00:04:53,150 --> 00:04:54,879 rights guarantee to the charter rights of freedoms. 74 00:04:56,180 --> 00:04:59,490 And I as I embarked on my legal career started doing what many of us did 75 00:04:59,490 --> 00:05:01,550 which was writing articles trying to figure out 76 00:05:01,550 --> 00:05:04,950 what equality means from a disability perspective or others. 77 00:05:04,950 --> 00:05:07,300 And speaking at law conferences and law schools 78 00:05:07,300 --> 00:05:09,820 and, and to judges and students and lawyers. 79 00:05:12,350 --> 00:05:16,770 But over time as we found that these 80 00:05:16,770 --> 00:05:21,210 laws, though well defined, weren't being effectively implemented. 81 00:05:22,880 --> 00:05:27,050 I started thinking along with others involved in my, what was 82 00:05:27,050 --> 00:05:31,618 to become my the coalition I've led and served in various incarnations. 83 00:05:31,618 --> 00:05:34,310 Started thinking that maybe we should be 84 00:05:34,310 --> 00:05:38,650 rethinking what equality means for people with disabilities. 85 00:05:40,330 --> 00:05:42,550 I started to think afresh about the law. 86 00:05:42,550 --> 00:05:49,190 And, it wasn't that the articles we wrote in the 80s were wrong, or the lectures 87 00:05:49,190 --> 00:05:54,720 we gave missed the point, or the case law that was developing was deficient. 88 00:05:56,360 --> 00:05:59,720 It's just that they weren't being effectively implemented. 89 00:05:59,720 --> 00:06:06,050 And that, of itself, drove some of us to start thinking, we'd better think afresh. 90 00:06:06,050 --> 00:06:08,980 So some of the new legal ideas that came directly from 91 00:06:11,330 --> 00:06:13,890 the community organizing and legislative advocacy I 92 00:06:13,890 --> 00:06:17,150 was involved in for the Disabilities Act later 93 00:06:17,150 --> 00:06:20,030 for reforms the elections act, reforms the human 94 00:06:20,030 --> 00:06:23,290 rights code and so on, included these ideas. 95 00:06:24,330 --> 00:06:29,550 Ideas that I think are equally worthy of consideration in the 96 00:06:29,550 --> 00:06:34,550 in the sphere of law journal writing, legal debate, and legal critique. 97 00:06:34,550 --> 00:06:38,280 First a new way to think about what equality 98 00:06:38,280 --> 00:06:41,750 means of itself, or what it seeks to achieve. 99 00:06:42,960 --> 00:06:48,310 We decided to redefine it from the disability perspective as achieving 100 00:06:48,310 --> 00:06:53,670 a barrier-free society in which all people with disabilities could participate. 101 00:06:53,670 --> 00:06:56,450 It's not a hugely novel concept, but it crystallizes it in 102 00:06:56,450 --> 00:07:00,620 a sharp and focused way that channeled a lot of our activities. 103 00:07:00,620 --> 00:07:01,890 It's not that we're against the use of 104 00:07:01,890 --> 00:07:03,980 the word discrimination, but we don't talk about it. 105 00:07:05,350 --> 00:07:08,020 Rather, we talk about the fact that we have a society 106 00:07:08,020 --> 00:07:12,740 full of barriers that face people with physical, mental, or sensory disabilities. 107 00:07:12,740 --> 00:07:19,200 And that our goal, a measurable goal, is to get the old barriers removed. 108 00:07:19,200 --> 00:07:20,500 And the new ones prevented. 109 00:07:20,500 --> 00:07:22,850 That leads me to the second legal idea. 110 00:07:22,850 --> 00:07:27,530 The old way of thinking about equality that you'll see permeates the case law 111 00:07:29,300 --> 00:07:34,220 and the lectures, and discussions, and academic writings. 112 00:07:34,220 --> 00:07:37,360 In the case of the charter it's about legislative distinction. 113 00:07:37,360 --> 00:07:39,570 When can the legislature draw a distinction. 114 00:07:39,570 --> 00:07:41,792 In another context, removing barriers. 115 00:07:41,792 --> 00:07:44,280 Well in my glib moments I say I never had a 116 00:07:44,280 --> 00:07:47,840 distinction draw against me in my life as a blind person. 117 00:07:47,840 --> 00:07:49,610 But I have experienced barriers. 118 00:07:51,090 --> 00:07:52,680 So we found that it was useful to get 119 00:07:52,680 --> 00:07:57,130 away from that language and talking about about removing barriers. 120 00:07:57,130 --> 00:07:58,440 But we went further. 121 00:07:58,440 --> 00:08:02,960 The old way of thinking was to just talk about the existing barriers and why we 122 00:08:02,960 --> 00:08:04,560 should remove them, because of course, who would 123 00:08:04,560 --> 00:08:06,400 ever think about ever creating a new one? 124 00:08:06,400 --> 00:08:07,740 We know better. 125 00:08:07,740 --> 00:08:08,280 Wrong. 126 00:08:09,490 --> 00:08:12,050 We came to realize that as quickly as we 127 00:08:12,050 --> 00:08:15,079 were tearing down old barriers, new ones were being created. 128 00:08:16,080 --> 00:08:18,030 And so yet another legal concept that we 129 00:08:18,030 --> 00:08:20,440 added to the dialogue was that equality met 130 00:08:20,440 --> 00:08:22,480 a barrier-free society which all are barriers are 131 00:08:22,480 --> 00:08:25,505 identified and removed, and new ones are prevented. 132 00:08:25,505 --> 00:08:26,360 >> [COUGH] 133 00:08:26,360 --> 00:08:29,300 >> And in fact, changing the channel from just removing all barriers. 134 00:08:29,300 --> 00:08:31,005 Oh, my God, what does that cost. 135 00:08:31,005 --> 00:08:33,460 >> [LAUGH] >> To let's prevent new barriers. 136 00:08:33,460 --> 00:08:36,330 Hey, who would waste money creating new barriers? 137 00:08:36,330 --> 00:08:39,020 Change the entire discussion. 138 00:08:39,020 --> 00:08:41,060 Not that old barriers can't be fixed or shouldn't 139 00:08:41,060 --> 00:08:44,750 be fixed, but it shifted the ground in our direction. 140 00:08:46,240 --> 00:08:47,480 That's not all. 141 00:08:47,480 --> 00:08:50,930 The old way of thinking about equality rights and human rights that you'll see 142 00:08:50,930 --> 00:08:58,080 pervades a lot of the case law is a static snapshot point in time. 143 00:08:58,080 --> 00:09:03,150 The employee needs an accommodation, the employer can't, doesn't provide 144 00:09:03,150 --> 00:09:07,140 it, could they do so at that time without undue hardship. 145 00:09:07,140 --> 00:09:09,860 If they could, the employer loses. 146 00:09:09,860 --> 00:09:13,860 If they couldn't, the employee is out of luck, now and for good. 147 00:09:15,190 --> 00:09:20,890 Static snapshot pathological, if you will, in the sense of 148 00:09:20,890 --> 00:09:23,010 looking at a scene and saying what should have happened? 149 00:09:24,350 --> 00:09:27,600 We decided that's the wrong way to think about it as a matter of law. 150 00:09:28,890 --> 00:09:31,420 We decided instead that it was important to start 151 00:09:31,420 --> 00:09:34,380 thinking in terms of a dynamic process over time. 152 00:09:34,380 --> 00:09:38,750 Not could you accommodate that one moment and if not that one moment because it 153 00:09:38,750 --> 00:09:41,390 would undo hardship at that one moment rather 154 00:09:41,390 --> 00:09:43,990 why don't we say, could you accommodate ever? 155 00:09:43,990 --> 00:09:50,060 If you can't do it right away, then could you do it over time? 156 00:09:50,060 --> 00:09:50,310 What? 157 00:09:50,310 --> 00:09:51,910 You can't do it one year, what about two? 158 00:09:51,910 --> 00:09:52,870 That's an undue hardship. 159 00:09:52,870 --> 00:09:53,820 What about three? 160 00:09:53,820 --> 00:09:57,240 Are you saying you couldn't do it in 500 years? 161 00:09:57,240 --> 00:10:00,010 Okay the person won't be alive but others will have the same need. 162 00:10:00,010 --> 00:10:00,540 'Kay. 163 00:10:00,540 --> 00:10:05,320 So 500 years is possible immediately not, now we're just debating over the timeline. 164 00:10:06,910 --> 00:10:11,440 By shifting the discussion about equality, from old barriers 165 00:10:11,440 --> 00:10:13,820 to also new barriers, and from snapshots in time 166 00:10:13,820 --> 00:10:17,680 to how long do you need, we changed the 167 00:10:17,680 --> 00:10:21,330 conception of equality and the focus of the discussion. 168 00:10:21,330 --> 00:10:23,560 The result was a movement for a disability act 169 00:10:23,560 --> 00:10:27,040 that aims to achieve a barrier free society, it set 170 00:10:27,040 --> 00:10:31,940 a deadline, 2025, and then allows for timelines to 171 00:10:31,940 --> 00:10:35,780 be set tied to specific barriers in different organizational sizes. 172 00:10:37,000 --> 00:10:39,790 So the change in conceiving what equality means 173 00:10:41,100 --> 00:10:46,120 ended up leading to significant legal or legislative results. 174 00:10:48,190 --> 00:10:50,370 Those are just a couple of the ideas that 175 00:10:50,370 --> 00:10:53,030 we brought to the table that, that are new. 176 00:10:53,030 --> 00:10:57,530 But there are others that I'd say I, I've myself have learned about the law. 177 00:10:59,190 --> 00:11:01,680 We used to think about the law as just the law. 178 00:11:01,680 --> 00:11:03,090 Here's a rule. 179 00:11:03,090 --> 00:11:03,660 And that's it. 180 00:11:04,730 --> 00:11:07,190 And, if it's a problem, what will fix it? 181 00:11:08,590 --> 00:11:13,990 But, when we sat down to develop the Disabilities Act, we, we found out that 182 00:11:13,990 --> 00:11:15,930 there's actually a more, another question that 183 00:11:15,930 --> 00:11:17,720 we, we really hadn't applied our mind to. 184 00:11:17,720 --> 00:11:19,670 And it turns out, others really hadn't either. 185 00:11:20,910 --> 00:11:24,860 When it came time to design the law, to figure out what should be in it. 186 00:11:24,860 --> 00:11:28,970 The question arose, what regulatory regime will actually work? 187 00:11:28,970 --> 00:11:31,260 What will change human behavior? 188 00:11:32,330 --> 00:11:35,740 Two things come from this, first it was 189 00:11:35,740 --> 00:11:38,820 quickly determined that nobody is actually, at least 190 00:11:38,820 --> 00:11:44,190 that we could find out, and we were guided by a team of law professors at 191 00:11:44,190 --> 00:11:49,080 the University of Toronto, headed by a guy named Sausan, you may have heard of him, 192 00:11:49,080 --> 00:11:52,370 who donated their time and their expertise to help us think through how to do this. 193 00:11:53,620 --> 00:12:00,200 It was not, there was no side by side taste test examination of different 194 00:12:00,200 --> 00:12:04,360 legislative or regulatory regimes to see which actually works better. 195 00:12:05,360 --> 00:12:09,540 Administrative law professors and lawyers, judges and 196 00:12:09,540 --> 00:12:12,830 commentators talk about principles of judicial review or 197 00:12:12,830 --> 00:12:17,270 hone in on one regime or another, labor law or environmental law and so on. 198 00:12:17,270 --> 00:12:18,750 And look at the details. 199 00:12:18,750 --> 00:12:22,710 But try to find a look at all of them and say, hey, this one work really well. 200 00:12:22,710 --> 00:12:24,790 That one over there not so much. 201 00:12:24,790 --> 00:12:26,010 Here's what works here. 202 00:12:26,010 --> 00:12:27,860 Here's what doesn't work over there so that we 203 00:12:27,860 --> 00:12:30,290 could pick and choose and figure out what worked. 204 00:12:30,290 --> 00:12:32,180 We had to do that by the seat of our pants. 205 00:12:33,510 --> 00:12:36,250 But if you think about it, that's a legitimate legal question. 206 00:12:36,250 --> 00:12:39,410 If you're designing different regulatory regimes, shouldn't 207 00:12:39,410 --> 00:12:40,950 we be figuring out which ones work? 208 00:12:42,500 --> 00:12:46,040 That in turn drives us to another level of legal inquiry. 209 00:12:47,380 --> 00:12:48,926 Which isn't legal inquiry at all. 210 00:12:48,926 --> 00:12:54,770 See ultimately, what this presents us with, 211 00:12:54,770 --> 00:12:58,610 is the question, what actually changes human behavior? 212 00:12:58,610 --> 00:13:01,710 Our goal is to get businesses in the private sector and 213 00:13:01,710 --> 00:13:05,610 government agencies in the public sector to actually do things differently. 214 00:13:05,610 --> 00:13:08,430 We knew that the barriers they are leaving in place and new ones 215 00:13:08,430 --> 00:13:10,590 they're creating are pretty much illegal under 216 00:13:10,590 --> 00:13:11,660 the charter of the human rights code. 217 00:13:11,660 --> 00:13:12,730 But they're not being fixed. 218 00:13:13,780 --> 00:13:16,050 So we want to figure out what kind of law 219 00:13:16,050 --> 00:13:19,460 would actually change their behavior sounds like a legal question. 220 00:13:19,460 --> 00:13:22,840 But the closer you look it becomes a psychological question. 221 00:13:22,840 --> 00:13:24,800 The question of what will, what stimuli will 222 00:13:24,800 --> 00:13:27,479 actually change human behavior is a question of psychology. 223 00:13:30,010 --> 00:13:33,090 So this became, this lead to a way, a new 224 00:13:33,090 --> 00:13:35,780 way of thinking for me about the law which is trying 225 00:13:35,780 --> 00:13:40,610 to figure out what to create that will actually stimulate changes 226 00:13:40,610 --> 00:13:44,540 in human behaviour by asking the people who study human behaviour. 227 00:13:44,540 --> 00:13:48,990 I'll give you a tiny little example of something I did on this score. 228 00:13:48,990 --> 00:13:50,910 Not only this building I put when I was fighting the 229 00:13:50,910 --> 00:13:53,970 Toronto Transit Commission to get them to announce, you know, route stops. 230 00:13:53,970 --> 00:13:56,900 It seemed to me that the TTC was so intransigent that I 231 00:13:56,900 --> 00:14:01,050 needed remedies, not only to order them to call route stops for the 232 00:14:01,050 --> 00:14:04,120 benefit of the blind people and also sighted people who aren't paying 233 00:14:04,120 --> 00:14:06,380 attention to where they are, which 234 00:14:06,380 --> 00:14:09,440 basically means everybody at some point but. 235 00:14:09,440 --> 00:14:12,200 What will get the TTC to not put up 236 00:14:12,200 --> 00:14:16,280 such a recalcitrant fight against the obvious and the beneficial? 237 00:14:17,670 --> 00:14:20,000 I, I talked to some lawyers about different options 238 00:14:20,000 --> 00:14:21,960 for remedies and nobody came up with anything new. 239 00:14:21,960 --> 00:14:26,460 Now the choice of what's a good remedy is usually a legal question. 240 00:14:26,460 --> 00:14:30,610 I ended up instead talking to an organizational psychologist I know. 241 00:14:30,610 --> 00:14:35,770 He said, essentially, get them in their proverbial pocketbooks. 242 00:14:35,770 --> 00:14:38,310 Get them in a way that will make them accountable. 243 00:14:38,310 --> 00:14:42,200 This led, among other things, to the, as far as I know, the first remedy ever. 244 00:14:42,200 --> 00:14:44,640 This is in a case I brought personally, not for my coalition. 245 00:14:44,640 --> 00:14:48,380 The first remedy ever that ordered an organization, here the 246 00:14:48,380 --> 00:14:52,290 TTC, to have to amend its annual performance review documents 247 00:14:52,290 --> 00:14:55,380 for all of its senior managers to require inclusion of 248 00:14:55,380 --> 00:15:00,840 a, of an annual performance review on disability accommodation accessibility. 249 00:15:02,640 --> 00:15:07,380 And that in turn was to be taken into account in pay and promotion decisions. 250 00:15:07,380 --> 00:15:11,630 So a new legal remedy, but the idea came from psychologists. 251 00:15:11,630 --> 00:15:14,150 It's a new way of thinking about law as far as I'm concerned. 252 00:15:14,150 --> 00:15:18,300 It's not new in the sense that there's a whole discipline within psychology 253 00:15:18,300 --> 00:15:20,970 that studies law in psychology and there are legal academics that study it. 254 00:15:20,970 --> 00:15:23,270 But, in the area in the kind of advocacy 255 00:15:23,270 --> 00:15:27,050 we're doing, it was, for me, an entirely new insight. 256 00:15:27,050 --> 00:15:32,070 So that's just a snapshot of some of the new ways of new 257 00:15:32,070 --> 00:15:36,880 legal ideas to, that leaped at me from the work that we've been doing. 258 00:15:36,880 --> 00:15:37,780 What about loitering? 259 00:15:37,780 --> 00:15:39,520 Or perhaps, because I'm not the lawyer for 260 00:15:39,520 --> 00:15:42,430 my coalition I should say, the activity of advocacy. 261 00:15:43,490 --> 00:15:45,560 I, I'm gonna be giving other lectures on, in 262 00:15:45,560 --> 00:15:46,930 this series that are gonna be going onto greater details. 263 00:15:46,930 --> 00:15:48,315 And there's gonna be a couple examples. 264 00:15:48,315 --> 00:15:53,160 First, we lawyers are verbose. 265 00:15:53,160 --> 00:15:55,678 In fact, my nickname at law school was David Verbosky. 266 00:15:55,678 --> 00:16:00,640 [LAUGH] Richly deserved. 267 00:16:00,640 --> 00:16:03,820 We're lucky in a, in a, in a court case you get a certain amount of time. 268 00:16:03,820 --> 00:16:05,510 In the Supreme Court of Canada, you get an hour. 269 00:16:05,510 --> 00:16:07,500 If you're an intervener, you get ten minutes. 270 00:16:07,500 --> 00:16:11,430 On CBC you might get three sentences, and on the front page of the, or 271 00:16:11,430 --> 00:16:16,660 whatever page it was in the Star today, and I indeed got two or three sentences. 272 00:16:17,940 --> 00:16:22,510 It is an entire new approach to the persuasion activity that is 273 00:16:22,510 --> 00:16:27,290 at the essence of what lawyers do, or any other advocates do. 274 00:16:27,290 --> 00:16:30,470 To learn to get to the point and to do it in a way that's punchy and 275 00:16:30,470 --> 00:16:34,190 to do it a way that's effective and to do it in a way that's extremely brief 276 00:16:36,620 --> 00:16:38,960 and for someone who's listening to the newspaper, 277 00:16:38,960 --> 00:16:41,675 reading the newspaper, listening to to a radio while 278 00:16:41,675 --> 00:16:44,560 they're doing something else, while their distracted it's 279 00:16:44,560 --> 00:16:46,550 not just a matter of it's gotta be persuasive. 280 00:16:48,010 --> 00:16:51,130 It's got to be persuasive enough that a reporter decides that, that's the 281 00:16:51,130 --> 00:16:53,920 quote to include and its got to be able to reach out to 282 00:16:53,920 --> 00:16:58,080 a person who's doing other things and not studying carefully the way a 283 00:16:58,080 --> 00:17:02,230 judge would study a factum and its got to grab them and persuade them. 284 00:17:03,600 --> 00:17:09,080 It's a form of, rhetoric that is entirely form, foreign 285 00:17:10,150 --> 00:17:14,570 to what we lawyers learn to do in our court practices. 286 00:17:14,570 --> 00:17:17,640 And by the way, I will tell you that what I have learned of doing it, and 287 00:17:17,640 --> 00:17:20,790 I'm still and always learning has actually helped 288 00:17:20,790 --> 00:17:24,270 me in my day job arguing cases in court. 289 00:17:24,270 --> 00:17:26,100 The kind of lead line I might use in 290 00:17:26,100 --> 00:17:31,870 a in a radio interview with the appropriate ethical constraints, 291 00:17:31,870 --> 00:17:34,480 it's also the kind of line I'm increasingly finding I 292 00:17:34,480 --> 00:17:38,070 wanna use in an oral argument eh, in a courtroom. 293 00:17:39,700 --> 00:17:42,840 What I've also so that's just the, be able 294 00:17:42,840 --> 00:17:44,610 to make your point in three sentences, or if 295 00:17:44,610 --> 00:17:48,200 you're lucky, three minutes is a whole new insight 296 00:17:48,200 --> 00:17:51,510 into persuasion, the only time you ever saw it before, 297 00:17:51,510 --> 00:17:52,780 well I should say we've all seen it in 298 00:17:52,780 --> 00:17:55,220 other contexts, but as, when lawyer shows are shown on 299 00:17:55,220 --> 00:17:57,410 TV, and somebody does a billion summations, a jury 300 00:17:57,410 --> 00:18:01,570 in three minutes, and we're not so good at that. 301 00:18:01,570 --> 00:18:04,850 But on the other hand, it's a skill, it's a skill worth developing. 302 00:18:04,850 --> 00:18:07,989 And I'm always working on it, as are my colleagues. 303 00:18:09,670 --> 00:18:13,120 Another thing that's unusual is, who do you represent? 304 00:18:14,170 --> 00:18:16,020 In the case of a lawyer, in a traditional lawyer 305 00:18:16,020 --> 00:18:19,980 relationship, you've got an identified client, an individual or an organization. 306 00:18:19,980 --> 00:18:24,610 When you're doing community advocacy, you are trying 307 00:18:24,610 --> 00:18:28,200 to advance the interest of an entire community. 308 00:18:28,200 --> 00:18:31,240 And you'll never be able to meet with, talk with, or 309 00:18:31,240 --> 00:18:33,330 even directly communicate even electronically 310 00:18:33,330 --> 00:18:35,160 with the vast majority of them. 311 00:18:36,480 --> 00:18:42,130 That imposes on someone in an advocacy role a whole new range of burdens. 312 00:18:42,130 --> 00:18:45,820 You can't just say anything cause you think it's good. 313 00:18:45,820 --> 00:18:49,490 It's gotta be something that is reflective as best you can 314 00:18:49,490 --> 00:18:54,250 tell of what as many people within that community may think, 315 00:18:54,250 --> 00:18:59,680 from meetings, from email exchanges, from other discussions, from a whole 316 00:18:59,680 --> 00:19:05,200 unfolding number of months or years of interacting with that community. 317 00:19:05,200 --> 00:19:08,130 And the discipline when you're doing community 318 00:19:08,130 --> 00:19:11,190 advocacy is not just the discipline of a, 319 00:19:11,190 --> 00:19:12,880 in a traditional lawyer relationship, of a client 320 00:19:12,880 --> 00:19:16,110 saying hey, you know, that isn't my position. 321 00:19:16,110 --> 00:19:19,050 In the case of community organizing you take a position that, that 322 00:19:19,050 --> 00:19:22,740 doesn't work for the community, they're gonna be on the phone to the, 323 00:19:22,740 --> 00:19:25,840 the media or they're gonna be on Twitter or on Facebook or on 324 00:19:25,840 --> 00:19:30,240 the Internet pointing out what's wrong and why this is not the appropriate. 325 00:19:30,240 --> 00:19:31,940 And, and there goes your, your, 326 00:19:31,940 --> 00:19:36,040 your credibility and your community organization's effectiveness. 327 00:19:36,040 --> 00:19:38,940 So a whole new relationship in terms of consensus 328 00:19:38,940 --> 00:19:44,450 building and formulating a position underpins what we do. 329 00:19:44,450 --> 00:19:47,820 One of the things that in other lectures that kinda deal with this more 330 00:19:47,820 --> 00:19:52,640 that we do do, and it's, I think, unusual, if not outright weird is before 331 00:19:52,640 --> 00:19:57,690 we submit a brief to the government on something, we will actually draft a draft 332 00:19:57,690 --> 00:20:02,100 brief, posted on the internet, email and Tweet it out, and invite people for input. 333 00:20:02,100 --> 00:20:06,630 So the government knows, the media knows, people who might not share our, 334 00:20:06,630 --> 00:20:11,030 our interests all know what we're thinking about before we decide it's our position. 335 00:20:12,410 --> 00:20:15,530 Then we get input, and then we release a final product. 336 00:20:15,530 --> 00:20:17,540 It's a great way to field test ideas. 337 00:20:17,540 --> 00:20:18,830 It's totally unusual. 338 00:20:18,830 --> 00:20:21,210 I mean, how many lawyers file a draft 339 00:20:21,210 --> 00:20:24,740 factum with the court while they're thinking it through, 340 00:20:24,740 --> 00:20:26,610 and send it to their opponent just in case 341 00:20:26,610 --> 00:20:30,270 you're wondering what we might argue, here's my draft. 342 00:20:30,270 --> 00:20:31,060 You just don't do that. 343 00:20:31,060 --> 00:20:33,110 It would be crazy. 344 00:20:33,110 --> 00:20:35,520 But we do, and it works. 345 00:20:36,740 --> 00:20:37,980 What else could I tell you that we've 346 00:20:37,980 --> 00:20:42,770 learned about about the, the craft of advocacy? 347 00:20:42,770 --> 00:20:48,340 There's an entire challenge of how to frame an argument. 348 00:20:49,830 --> 00:20:54,270 Not so it will appeal to a a narrow spectrum of folks called judges. 349 00:20:54,270 --> 00:20:56,240 I'm not saying judges are narrow, but they, they 350 00:20:56,240 --> 00:20:59,060 come to a problem with a, a, a bandwidth of, 351 00:20:59,060 --> 00:21:01,030 of thinking that they learned in law school and from 352 00:21:01,030 --> 00:21:04,140 law practice and that are governed by, by appellate decisions. 353 00:21:04,140 --> 00:21:09,429 Instead, we've gotta craft arguments that will be persuasive in the community 354 00:21:10,530 --> 00:21:15,760 and to the government when you've only got that three minute window at times. 355 00:21:17,020 --> 00:21:20,690 And they've got to address and respond to what might be dwelling 356 00:21:20,690 --> 00:21:22,830 in the governments' minds, or in 357 00:21:22,830 --> 00:21:26,640 journalists' minds, anticipating and responding to it. 358 00:21:26,640 --> 00:21:29,279 It's a different world of persuasion. 359 00:21:30,890 --> 00:21:32,160 And it's not like litigating. 360 00:21:32,160 --> 00:21:34,860 It's not a matter of always saying oh, they say this, they're wrong. 361 00:21:34,860 --> 00:21:37,860 If you're always negative, you blow your credibility. 362 00:21:39,710 --> 00:21:44,360 If you are engaging in this kind of persuasive activity, sometimes it's 363 00:21:44,360 --> 00:21:47,470 a matter of just trying to sniff out what the other side or 364 00:21:47,470 --> 00:21:52,110 the, if it's a recalcitrant government, what their major issue is, and being 365 00:21:52,110 --> 00:21:55,820 able to deal with it, or tactically decide not to deal with it. 366 00:21:55,820 --> 00:21:58,900 During the years that the Mike Harris conservatives didn't want to deliver the 367 00:21:58,900 --> 00:22:04,470 Disability Act, they promised, our lead line, aside from showing the merits of 368 00:22:04,470 --> 00:22:08,500 why we need a Disabilities Act, is to keep emphasizing that Mike Harris 369 00:22:08,500 --> 00:22:11,540 promised it and said he was the premiere who'd keep all his promises. 370 00:22:11,540 --> 00:22:13,740 We printed every news release we could on the 371 00:22:13,740 --> 00:22:16,880 flip side of his letter to us promising the act. 372 00:22:16,880 --> 00:22:18,610 That letter was a form of persuasion. 373 00:22:18,610 --> 00:22:22,310 The back side of the page was a form of persuasion. 374 00:22:22,310 --> 00:22:25,700 I knew that message was working because I had 375 00:22:25,700 --> 00:22:28,480 people quietly calling," me from the government saying, you 376 00:22:28,480 --> 00:22:30,310 really shouldn't make that point about us breaking our 377 00:22:30,310 --> 00:22:32,000 promise all the time, it really doesn't help you. 378 00:22:32,000 --> 00:22:35,670 When they tell me, it doesn't help you, you know it's helping. 379 00:22:37,380 --> 00:22:39,840 The government's answer over those years was not to say, 380 00:22:39,840 --> 00:22:41,750 no we didn't promise it and not to say, no we 381 00:22:41,750 --> 00:22:45,572 didn't need the law, their answer all, almost all the 382 00:22:45,572 --> 00:22:50,060 time was, we spend $8 billion annually on people with disabilities. 383 00:22:50,060 --> 00:22:52,240 It's the Santa Claus claim. 384 00:22:52,240 --> 00:22:55,630 Now a litigation way of thinking is, that argument is 385 00:22:55,630 --> 00:22:59,472 legally irrelevant and let me prove why it's wrong anyway. 386 00:23:00,900 --> 00:23:02,800 But you don't want to in the, in the community 387 00:23:02,800 --> 00:23:05,500 advocacy world, you don't want to get trapped into that debate. 388 00:23:06,570 --> 00:23:07,540 You don't answer it. 389 00:23:07,540 --> 00:23:08,420 Why? 390 00:23:08,420 --> 00:23:11,660 It is irrelevant and it's trying to change the channel. 391 00:23:11,660 --> 00:23:13,830 I understand why they tried to change the channel. 392 00:23:13,830 --> 00:23:15,910 We just kept trying to change it back. 393 00:23:15,910 --> 00:23:18,570 You promised it and said you'd resign if you didn't keep you 394 00:23:18,570 --> 00:23:21,510 promise and, by the way, this is a law that helps everyone. 395 00:23:21,510 --> 00:23:25,240 We just stuck to our message rather than responding to that claim. 396 00:23:26,320 --> 00:23:28,320 And, you know, if, if your training is in 397 00:23:28,320 --> 00:23:31,120 litigation, it's really hard to not answer an argument 398 00:23:31,120 --> 00:23:33,080 that keeps getting thrown at you, but on that 399 00:23:33,080 --> 00:23:37,440 point, it was the smart tactic persuasive technique to use. 400 00:23:39,380 --> 00:23:42,730 I could give you tons of other examples, time is scarce. 401 00:23:42,730 --> 00:23:45,050 Let me let me say this. 402 00:23:46,740 --> 00:23:49,690 One final thing I will tell you in the 403 00:23:49,690 --> 00:23:55,370 area of, in terms of advocacy that's really important. 404 00:23:56,540 --> 00:23:59,750 That I'll give you as an illustration for now, is 405 00:23:59,750 --> 00:24:03,990 just knowing to jump onto opportunity when it comes along. 406 00:24:05,670 --> 00:24:07,150 Half the time, you know, when you're in 407 00:24:07,150 --> 00:24:09,900 a, involved in a traditional law practice you, 408 00:24:09,900 --> 00:24:13,780 got a claim, it goes to court, you know where to go, and you make your arguments. 409 00:24:13,780 --> 00:24:17,490 When you're not playing the role of lawyer, there is no quote, client. 410 00:24:17,490 --> 00:24:19,430 And there's a longer term agenda. 411 00:24:19,430 --> 00:24:22,210 You never know all of which pieces are actually gonna 412 00:24:22,210 --> 00:24:25,830 work, and often the opportunities that come along are the least 413 00:24:25,830 --> 00:24:29,730 expected, but you learn to grab them, and they may look 414 00:24:29,730 --> 00:24:33,110 like bad news, but you turn them in to useful tools. 415 00:24:33,110 --> 00:24:34,850 In my conclusion, I'll give you an example 416 00:24:34,850 --> 00:24:38,600 of how the article in today's Star illustrates this. 417 00:24:38,600 --> 00:24:42,385 Let me turn third, to what I've learned about legal education. 418 00:24:42,385 --> 00:24:45,675 My presence during my Roy McMurtry Clinical Fellowship 419 00:24:45,675 --> 00:24:48,616 is, I believe, the best illustration of this. 420 00:24:48,616 --> 00:24:55,310 We don't, [UNKNOWN] was kind enough to invite me to give the opening lecture on 421 00:24:55,310 --> 00:24:56,750 the first day of law school for the 422 00:24:56,750 --> 00:24:59,900 first year class in their ethical lawyering course. 423 00:24:59,900 --> 00:25:03,230 And he invited me to speak about doing community organizing 424 00:25:03,230 --> 00:25:06,110 and social justice advocacy as a form of ethical lawyering. 425 00:25:06,110 --> 00:25:10,530 And I have to emphasize that that includes being in 426 00:25:10,530 --> 00:25:15,180 a role like mine, which is not strictly speaking, legal council. 427 00:25:15,180 --> 00:25:18,010 But drawing on ones experience as a lawyer to play 428 00:25:18,010 --> 00:25:21,900 a role of a community advocate, or organizer, or leader. 429 00:25:21,900 --> 00:25:25,260 I was, and am, deeply honored to have done that. 430 00:25:25,260 --> 00:25:27,980 The lecture now on YouTube has been tweeted 431 00:25:27,980 --> 00:25:31,040 and re-tweeted to many people a, around the world. 432 00:25:31,040 --> 00:25:35,050 I hope it is of value to others beyond the law school. 433 00:25:35,050 --> 00:25:38,120 The message I tried to drive home that day was that 434 00:25:38,120 --> 00:25:41,780 in law school, we do and we must teach what courts do. 435 00:25:41,780 --> 00:25:44,530 And how to think about legal problems as 436 00:25:44,530 --> 00:25:46,670 they are argued in courts and resolved in courts. 437 00:25:47,670 --> 00:25:53,450 But there is a whole vast array of legal problems which will never 438 00:25:53,450 --> 00:25:59,130 get to court because people can't afford a lawyer and can't afford to go to court. 439 00:25:59,130 --> 00:26:00,840 In the case of the accessibility act, 440 00:26:00,840 --> 00:26:04,200 we're dealing with cases of barriers that are, 441 00:26:04,200 --> 00:26:05,860 should be removed but aren't, or are 442 00:26:05,860 --> 00:26:07,970 being created when they should have been prevented. 443 00:26:07,970 --> 00:26:09,900 All of which, pretty much, violate the human 444 00:26:09,900 --> 00:26:11,849 right code or the charter rights of both. 445 00:26:13,280 --> 00:26:16,220 But they aren't being litigated because many people don't want to go through the 446 00:26:16,220 --> 00:26:19,720 ordeal of bringing those kind of cases like I had to go through against the 447 00:26:19,720 --> 00:26:24,370 TTC, not once, but twice; that Donna Jodhanna, a blind woman, had to go through 448 00:26:24,370 --> 00:26:26,590 to force the Federal Government to make 449 00:26:26,590 --> 00:26:29,028 their web sites accessible to our access technology. 450 00:26:29,028 --> 00:26:37,170 So, what we've what, what we need to do I believe is to open 451 00:26:37,170 --> 00:26:42,140 up the legal education process to provide an opportunity for law students to learn 452 00:26:42,140 --> 00:26:48,890 how to, to advance use the law and to use our unique kind of advocacy 453 00:26:48,890 --> 00:26:54,050 skills that we're trained in to advance social justice causes, in the court of 454 00:26:54,050 --> 00:26:57,190 public opinion, or the legislature, or 455 00:26:57,190 --> 00:27:00,090 other kind of venues for community advocacy. 456 00:27:01,360 --> 00:27:05,390 Let me just give you a couple of ideas that I think you might draw on for this. 457 00:27:05,390 --> 00:27:08,090 This isn't a how to do it kind of thing, 458 00:27:08,090 --> 00:27:10,910 though there are parts of that that would be worthwhile. 459 00:27:10,910 --> 00:27:15,160 But the various aspects of what I've been able to teach about have become relevant. 460 00:27:15,160 --> 00:27:17,020 You've got copies of lectures I've given here, 461 00:27:17,020 --> 00:27:19,290 a list of the lectures I've been giving here. 462 00:27:19,290 --> 00:27:26,640 In as diverse areas as constitutional law class, in administrative law, regulatory 463 00:27:26,640 --> 00:27:34,230 policy, legal process, discrimination of the law, disability rights and so forth. 464 00:27:34,230 --> 00:27:37,500 There's even a course on negotiations and mediation. 465 00:27:38,860 --> 00:27:43,360 This, these kind of issues cut across such a wide swath. 466 00:27:43,360 --> 00:27:46,190 And that's just talking about disability. 467 00:27:46,190 --> 00:27:48,670 If you pick another area of social justice advocacy, it 468 00:27:48,670 --> 00:27:53,220 would cut across the same or similar or other courses. 469 00:27:53,220 --> 00:27:58,520 There is ample room for rich principled analysis in 470 00:27:58,520 --> 00:28:02,700 deciding how to frame an argument when you're sitting across 471 00:28:02,700 --> 00:28:05,060 the table from a cabinet minister or at a 472 00:28:05,060 --> 00:28:09,890 legislative committee table as opposed to in a court room. 473 00:28:12,090 --> 00:28:18,520 Moreover, there is, there are ample opportunities to discover new areas 474 00:28:18,520 --> 00:28:23,220 of legal scholarship and investigation that we haven't thought of before. 475 00:28:23,220 --> 00:28:25,250 I'll give you one illustration. 476 00:28:25,250 --> 00:28:27,010 Now, in the olden days we would think that 477 00:28:27,010 --> 00:28:29,870 the charter rights guarantees equal rights for people with disabilities. 478 00:28:29,870 --> 00:28:33,090 That means the government has to make sure their laws complied. 479 00:28:33,090 --> 00:28:36,450 And when the courts [INAUDIBLE] comes up with a new decision with 480 00:28:36,450 --> 00:28:42,390 ground breaking content like Eldridge and BC back in 1997 that finding 481 00:28:42,390 --> 00:28:46,480 a deaf women in an emergency ward needing to give birth prematurely 482 00:28:46,480 --> 00:28:47,710 had a constitutional right to an 483 00:28:47,710 --> 00:28:51,090 interpreter, sign language interpreter, government funded. 484 00:28:51,090 --> 00:28:54,120 By going further and saying the government had duty to take into 485 00:28:54,120 --> 00:28:55,130 account the needs of people with 486 00:28:55,130 --> 00:28:57,150 disabilities when they design and operate programs. 487 00:28:57,150 --> 00:28:58,940 Now, when they, court said that, you've got a 488 00:28:58,940 --> 00:29:00,530 duty to take into account the needs of people 489 00:29:00,530 --> 00:29:03,440 with disabilities when you design and operate government programs 490 00:29:03,440 --> 00:29:06,650 even if they're delivered by private sector organizations like hospitals. 491 00:29:06,650 --> 00:29:08,900 You've thought governments should of sat down and reviewed all their 492 00:29:08,900 --> 00:29:12,280 laws, all their practice to make sure they got in line. 493 00:29:12,280 --> 00:29:13,520 Far as we know, they didn't. 494 00:29:13,520 --> 00:29:17,450 2004 we asked the government to include 495 00:29:17,450 --> 00:29:20,510 such a requirement in the disabilities act. 496 00:29:20,510 --> 00:29:21,320 They refused. 497 00:29:21,320 --> 00:29:26,240 2007 we asked the three political parties in Ontario to 498 00:29:26,240 --> 00:29:29,580 include this as a requirement or as a, as a practice. 499 00:29:29,580 --> 00:29:32,530 Would they please undertake to review all preventual 500 00:29:32,530 --> 00:29:35,550 laws of, statutes of regulation for accessibility barriers. 501 00:29:36,780 --> 00:29:38,180 They agreed to. 502 00:29:38,180 --> 00:29:43,290 Took them til 2010 or 2011 to get started, but this was a whole new adventure. 503 00:29:43,290 --> 00:29:48,890 Think of this as being, fighting about a 1000 charter cases at once. 504 00:29:48,890 --> 00:29:53,180 But without a court and you might not even, as an advocate, even be in the room. 505 00:29:53,180 --> 00:29:53,880 So what do you do? 506 00:29:55,000 --> 00:29:57,480 Well we realized there was no tool to help 507 00:29:57,480 --> 00:30:00,360 the people who were gonna do this legislative review. 508 00:30:00,360 --> 00:30:03,879 So I got together with a, a fabulous legal scholar, Randall 509 00:30:03,879 --> 00:30:08,433 Graham, a graduate of this law school and now teaches [UNKNOWN] interpretation 510 00:30:08,433 --> 00:30:11,883 and other subjects at Western and we co-wrote an article on 511 00:30:11,883 --> 00:30:16,980 how to draft legislation or how to review legislation for accessibility barriers. 512 00:30:16,980 --> 00:30:21,120 It's a whole new, line of thinking. 513 00:30:21,120 --> 00:30:23,000 We didn't know what we were doing to start with. 514 00:30:23,000 --> 00:30:24,970 And we came up with brand-new ideas. 515 00:30:24,970 --> 00:30:26,390 It's in the National Journal of Constitutional 516 00:30:26,390 --> 00:30:29,680 Law version and an Oxford Statutory Interp Journal. 517 00:30:30,820 --> 00:30:33,420 And it could be the basis of other contributions by 518 00:30:33,420 --> 00:30:36,260 other people, think of new ideas of how to do it. 519 00:30:36,260 --> 00:30:37,980 We could teach this in a law school by 520 00:30:37,980 --> 00:30:41,510 giving for example specific legislation for people to review 521 00:30:41,510 --> 00:30:44,470 and contemplate what kinds of barriers there might be 522 00:30:44,470 --> 00:30:46,060 and how you might draft to get around it. 523 00:30:47,120 --> 00:30:49,810 In fact that's exactly what we do when I have done training sessions 524 00:30:49,810 --> 00:30:52,300 with professor Graham for stature, legislative 525 00:30:52,300 --> 00:30:54,510 drafters and various parts of this country. 526 00:30:56,080 --> 00:30:59,020 This could be the spot a starting point for a 527 00:30:59,020 --> 00:31:05,060 whole new area of law school teaching and legal thinking. 528 00:31:06,310 --> 00:31:10,940 All to help advance a cause that, in the 80s, we were writing law journals about, 529 00:31:10,940 --> 00:31:14,140 law journal articles about just in terms of 530 00:31:14,140 --> 00:31:17,300 fighting over or wrestling with what equality should mean. 531 00:31:18,590 --> 00:31:23,670 This idea of a legislative review and writing articles 532 00:31:23,670 --> 00:31:26,870 or giving lectures or offering exercises on, on how 533 00:31:26,870 --> 00:31:31,020 to review legislation is not only new turf But 534 00:31:31,020 --> 00:31:35,160 it's rich turf I believe for for legal education. 535 00:31:36,610 --> 00:31:39,140 I'm gonna take you back to an earlier part of my talk for just a 536 00:31:39,140 --> 00:31:41,600 moment to say it also involves an opportunity 537 00:31:41,600 --> 00:31:45,100 to rethink the law, to rethink legal concepts. 538 00:31:46,150 --> 00:31:48,670 See, inequality, we used to talk about discrimination. 539 00:31:48,670 --> 00:31:51,360 Now we talk about prevent, removing and preventing barriers. 540 00:31:51,360 --> 00:31:56,990 In the area of accessibility to products, goods 541 00:31:56,990 --> 00:32:01,660 and services, there's a new concept called universal design. 542 00:32:01,660 --> 00:32:06,135 The old concept was, dry out, draw, create an operating system, I won't mention any 543 00:32:06,135 --> 00:32:09,490 names, but like Windows, that doesn't have 544 00:32:09,490 --> 00:32:11,160 any accessibility built in and then we've gotta 545 00:32:11,160 --> 00:32:16,870 go have some special adaptive tech company create a new, screen reader that we can 546 00:32:16,870 --> 00:32:20,830 buy for hundreds dol, hundreds of dollars, potentially, 547 00:32:20,830 --> 00:32:22,720 to enable our computer to read to us. 548 00:32:22,720 --> 00:32:24,150 That's the old way of thinking. 549 00:32:24,150 --> 00:32:27,810 The new way of thinking is build accessibility in. 550 00:32:27,810 --> 00:32:29,250 Make it usable by everybody. 551 00:32:29,250 --> 00:32:31,490 It's called universal design. 552 00:32:31,490 --> 00:32:36,060 I won't mention any names, but by initials, Apple Corporation did just that. 553 00:32:36,060 --> 00:32:39,845 If you have an Apple computer, if you have a Mac Book, if you have an iPhone, 554 00:32:39,845 --> 00:32:43,920 if you have an iPad, if you have an iPod Touch, they all have a screen reader. 555 00:32:43,920 --> 00:32:46,450 One keystroke, I can be using it too. 556 00:32:46,450 --> 00:32:48,310 And I don't have to pay an extra dime for it. 557 00:32:49,480 --> 00:32:52,720 When Randall and I sat down to come up with our article, we decided to offer 558 00:32:52,720 --> 00:32:54,480 a new concept, to be the bedrock for 559 00:32:54,480 --> 00:32:57,990 this new exploration of legislative drafting and review. 560 00:32:57,990 --> 00:33:02,490 We talked about working towards principles of universal design in legislation. 561 00:33:04,470 --> 00:33:09,100 There is so much room for more creative ideas here. 562 00:33:09,100 --> 00:33:10,080 We just started. 563 00:33:11,470 --> 00:33:14,210 Let me finally turn to what I think might be, 564 00:33:15,320 --> 00:33:19,940 worthy areas for future effort in the area of legal scholarship. 565 00:33:19,940 --> 00:33:22,110 Needless to say, we need to document more 566 00:33:22,110 --> 00:33:25,200 of what's being done to fight the campaign for 567 00:33:25,200 --> 00:33:28,960 accessibility, what's being won, what's being lost, and 568 00:33:28,960 --> 00:33:31,080 what better ideas might be put on the table. 569 00:33:32,660 --> 00:33:35,150 I've done some of that in writing. 570 00:33:35,150 --> 00:33:38,326 I hope to do more and I'm hoping the lectures series 571 00:33:38,326 --> 00:33:41,470 I'm giving will be at least a first and rough draft. 572 00:33:41,470 --> 00:33:44,260 But it would be really great to have more people contributing 573 00:33:44,260 --> 00:33:47,900 to it who, unlike me, aren't an insider of the process. 574 00:33:47,900 --> 00:33:50,740 While I think there's a unique value to be offered when you did 575 00:33:50,740 --> 00:33:55,450 see it happen, there's also an important unique value to be offered by those 576 00:33:55,450 --> 00:33:59,310 who are outside of the process and who can critically look, judge, and comment 577 00:33:59,310 --> 00:34:03,340 on what those of us fought for, won or lost, and might've done differently. 578 00:34:04,370 --> 00:34:07,570 I think that there's room for legal scholarship 579 00:34:07,570 --> 00:34:12,170 in how to effectively teach this in law schools. 580 00:34:12,170 --> 00:34:13,840 We have the bedrock at Osgood Hall for 581 00:34:13,840 --> 00:34:15,690 this by the various co, courses like the ones 582 00:34:15,690 --> 00:34:18,370 where I've given guest lectures, and through the intensive 583 00:34:18,370 --> 00:34:22,760 programs and through the fabulous Osgood public interest requirement. 584 00:34:22,760 --> 00:34:24,410 I'm fortunate to have four fantastic 585 00:34:24,410 --> 00:34:26,290 students working with me through that program. 586 00:34:27,520 --> 00:34:30,700 And we're, we're finding great ways to take this and 587 00:34:30,700 --> 00:34:34,640 operationalize it and real problems that provide a chance for students 588 00:34:34,640 --> 00:34:39,490 to really help us, but also themselves learn and apply the 589 00:34:39,490 --> 00:34:42,760 training they're, and the concepts, that they're learning in law school. 590 00:34:42,760 --> 00:34:45,140 There is ample opportunity for that. 591 00:34:45,140 --> 00:34:46,240 But let's go further. 592 00:34:46,240 --> 00:34:53,100 There's room for legal scholarship in the area of how to assess the competitive ef-, 593 00:34:53,100 --> 00:34:55,278 or the relative effectiveness of different l-, 594 00:34:55,278 --> 00:34:58,560 regulatory regimes, of which kind of regimes actually 595 00:34:58,560 --> 00:35:02,160 changed, regulatory regimes actually changed human behavior, 596 00:35:02,160 --> 00:35:05,190 cross disciplinary work with law and psychology, law 597 00:35:05,190 --> 00:35:07,970 and business studies, law and critical disabilities 598 00:35:07,970 --> 00:35:11,240 studies, there's a wide range of opportunities for 599 00:35:11,240 --> 00:35:15,260 us to bring rich scholarship and creative minds together to 600 00:35:15,260 --> 00:35:20,240 learn and to offer new thoughts to be shared with others. 601 00:35:20,240 --> 00:35:24,850 So let me conclude by getting back to where I started, the article today. 602 00:35:24,850 --> 00:35:27,760 It's an illustration of so much of what I just said. 603 00:35:27,760 --> 00:35:30,760 For one thing, as a disability community advocate, 604 00:35:30,760 --> 00:35:32,699 I've learned that the media doesn't cover issues. 605 00:35:33,740 --> 00:35:35,050 They cover events. 606 00:35:35,050 --> 00:35:37,810 You call up the newspaper and say, hey, 607 00:35:37,810 --> 00:35:40,510 hot off the presses, we have inaccessible public transit. 608 00:35:42,660 --> 00:35:44,260 They won't run the story. 609 00:35:44,260 --> 00:35:49,310 But if a woman who's stuck in a bus or on a lift for upwards 610 00:35:49,310 --> 00:35:54,460 of, you know, minutes, hours, whatever the story relates in 611 00:35:54,460 --> 00:35:58,690 the freezing cold, and can't get where she wanted to go, and 612 00:35:58,690 --> 00:36:01,670 has to go to the bathroom, and it's just a chain of problems. 613 00:36:01,670 --> 00:36:04,070 And then you point to the provisions of the 614 00:36:04,070 --> 00:36:06,730 accessibility regulation that's supposed to prevent all of this. 615 00:36:07,880 --> 00:36:09,600 There's a story. 616 00:36:09,600 --> 00:36:13,570 And part of the training I've had to acquire on 617 00:36:13,570 --> 00:36:15,839 the run is knowing when one of those stories comes. 618 00:36:16,940 --> 00:36:19,800 And, learning how to use it. 619 00:36:19,800 --> 00:36:22,140 So, you'll see that when, when the reporter says, what do 620 00:36:22,140 --> 00:36:26,540 you say about this I can't comment on the specific facts. 621 00:36:26,540 --> 00:36:29,760 I'm not there and my coalition can't investigte it. 622 00:36:29,760 --> 00:36:31,560 We weren't there and we don't have the resources. 623 00:36:32,630 --> 00:36:36,090 But, what we can do is try to educate the reporter to 624 00:36:36,090 --> 00:36:39,670 what we want in the Disabilities Act which is not being enforced. 625 00:36:39,670 --> 00:36:41,310 We have a huge agenda trying to get 626 00:36:41,310 --> 00:36:43,620 the government to effectively enforce the Disabilities Act 627 00:36:46,070 --> 00:36:49,300 and they're not and they promised they would. 628 00:36:49,300 --> 00:36:52,700 So to tie it to a big agenda item was point 629 00:36:52,700 --> 00:36:55,790 number one that comes to mind, because, but that involves analyzing the 630 00:36:55,790 --> 00:36:58,650 problem not, from the traditional, is this a violation of the 631 00:36:58,650 --> 00:37:01,170 human rights code, is this a violation of the charter of rights. 632 00:37:01,170 --> 00:37:03,150 Like most of our, if not all of our cases 633 00:37:03,150 --> 00:37:06,350 that we deal with, it's the, it's, it's an easy case. 634 00:37:06,350 --> 00:37:07,920 What went on just shouldn't have happened. 635 00:37:09,090 --> 00:37:11,830 But instead, it's a matter of figuring out how to 636 00:37:11,830 --> 00:37:15,310 tie this in a way that will advance our agenda. 637 00:37:16,780 --> 00:37:22,490 And at the same time be appealing to a journalist as relevant to their article. 638 00:37:22,490 --> 00:37:26,040 In the end what happened was the report, the 639 00:37:26,040 --> 00:37:29,590 reporter called a a spokesperson for the government minister involved. 640 00:37:29,590 --> 00:37:32,500 And as you can see in the quotation the minister the, 641 00:37:32,500 --> 00:37:34,990 the article quoted us as saying we've been asking the government 642 00:37:34,990 --> 00:37:37,190 to have a phone number we can call, so when these 643 00:37:37,190 --> 00:37:40,180 things happen, we can ask that the Disability Act be enforced. 644 00:37:40,180 --> 00:37:44,170 Not seeking a guarantee they'll enforce every single complaint, but at least to 645 00:37:44,170 --> 00:37:47,460 alert them to it, so they can decide whether it's worth following up. 646 00:37:49,140 --> 00:37:51,070 And what the government spokesperson said in response 647 00:37:51,070 --> 00:37:52,829 is, oh, you can file a human rights complaint. 648 00:37:54,090 --> 00:37:56,720 Well, that's gonna help us in the long run. 649 00:37:56,720 --> 00:37:59,010 It's an appalling answer. 650 00:37:59,010 --> 00:38:01,300 It's an appalling answer because the very reason 651 00:38:01,300 --> 00:38:03,740 the Disability Act was enacted was to reduce 652 00:38:03,740 --> 00:38:05,660 the need for us to file individual human 653 00:38:05,660 --> 00:38:08,180 rights complaints and fight bears one at a time. 654 00:38:09,950 --> 00:38:12,240 But it's an appalling answer that helps us show 655 00:38:12,240 --> 00:38:15,600 why the government needs to effectively enforce the law. 656 00:38:15,600 --> 00:38:21,950 The minister's spokesperson's own answer illustrates the poignant 657 00:38:21,950 --> 00:38:26,160 and the article and the events it relates illustrate the poignancy, if not the 658 00:38:26,160 --> 00:38:30,250 cruelty of the ineffective enforcement of this legislation and their failure 659 00:38:30,250 --> 00:38:33,220 to live up to the very reasons the law was passed. 660 00:38:33,220 --> 00:38:36,650 By saying it that clearly, it is much 661 00:38:36,650 --> 00:38:40,040 easier to show why they are consummately wrong. 662 00:38:41,480 --> 00:38:45,560 I look forward to completing my, my fellowship here. 663 00:38:45,560 --> 00:38:49,880 I hope this is an opportunity for others to weigh in on these topics and to 664 00:38:49,880 --> 00:38:53,040 add their perspectives, to share other avenues or 665 00:38:53,040 --> 00:38:56,590 other activities they've been in, in community organizing. 666 00:38:56,590 --> 00:39:01,620 I'm just but one player and my coalition is pers, advancing but one perspective. 667 00:39:01,620 --> 00:39:03,010 I can't say we're the best. 668 00:39:03,010 --> 00:39:04,570 We can't say we're the most effective. 669 00:39:04,570 --> 00:39:05,970 We've made lots of mistakes for which 670 00:39:05,970 --> 00:39:10,780 people might generously learn as we try to. 671 00:39:10,780 --> 00:39:13,990 But I hope that we can combine with the experience 672 00:39:13,990 --> 00:39:17,090 of others to help enrich the education of law students. 673 00:39:17,090 --> 00:39:20,420 So when their time comes, they can do more of this kind of advocacy too. 674 00:39:20,420 --> 00:39:21,435 Thank you very much. 675 00:39:21,435 --> 00:39:26,250 [SOUND]