Module 4 Advanced Legal Reasoning Policy Arguments LAW

• Module 4: Advanced Legal Reasoning: Policy Arguments LAW 1231: Lecture 15 Law and Society I

• Introduction • During your time studying law and also in your career as a lawyer, you will often be called upon to identify or make a policy argument. • At first glance, this may seem very different from building arguments based on precedents and principles. However, (as you will learn) the general process is the same and similar sources are used. • In this module, we learn about policy arguments through the examples of gender, disabilities and other human rights issues. • A brief background is provided of some of the issues, to help you to place the law into context and also to help you fulfill the UWI’s mandate of being socially-aware, well-rounded students. 23/02/2021 04: 03

• Learning Objectives By the end of the lecture, you will be able to: • Define policy arguments • Identify sources of policy arguments 23/02/2021 04: 03

• Definitions: What is a Policy Argument? • A policy argument is one which refers to a societal goal. • The argument goes beyond the individual case and urges the judge to take into consideration how the case will affect or is affected by society. • The argument is a moral one, but is backed up by sources, just like other legal arguments. • Sources can include: • Precedents • Laws, including the Constitution (especially the preambular clauses) • International Treaties • Credible non-legal sources such as statistics and journal articles. 23/02/2021 04: 03

• Examples of General Policy Arguments • You may have already encountered some of the “policies” which underlie legal cases. Some of these policies are set out by the Executive and Legislative branches of government. Others are set out by the Judicial branch. • Examples include: • Citizens should not be discriminated against on the basis of race or creed (Constitution) • A person who causes harm should pay for it (Tort Law) • Men and women who live together as spouses should have the same rights and responsibilities as married persons (Succession Law, Family Law, Selby). 23/02/2021 04: 03

• Examples of Policy Counter-Arguments • Just as with any other legal principles, a good lawyer will search for policy counter-arguments. For example: Argument: Citizens should not be discriminated against on the basis of race or creed (Constitution) • Counter-Argument: BUT All Constitutional rights may be limited by other Constitutional rights or by matters related to public health and safety (Constitution) Argument: A person who causes harm should pay for it (Tort Law) • Counter-Argument: BUT Persons with deeper pockets should pay more (vicarious liability) Argument: Men and women who live together as spouses should have the same rights and responsibilities as married persons (Succession Law, Family Law, Selby). • Counter-Argument: BUT Some rights and responsibilities should be reserved for those who have taken the marriage oath (Family Law) 23/02/2021 04: 03

• An Example of A Policy Argument Example Scenario/Problem • Let us assume (as in Assignment 2) that your clients are parents who are negotiating child maintenance. • We have our figures in hand showing their respective income and expenditure. • How could you incorporate a policy argument? • Here is an example from Moge v Moge [1992] 3 S. C. R. 813, in which the Canada Supreme Court spoke about the ‘feminization of poverty’. • Pay attention to the sources used. 23/02/2021 04: 03

• An Example of Using Policy Examining the Example Scenario/Problem “Given the multiplicity of economic barriers women face in society, decline into poverty cannot be attributed entirely to the financial burdens arising from the dissolution of marriage: J. D. Payne, "The Dichotomy between Family Law and Family Crises on Marriage Breakdown" (1989), 20 R. G. D. 109, at pp. 116‑ 117. However, there is no doubt that divorce and its economic effects are playing a role. … An analysis of court files determined that in 1988, overall two‑thirds of divorced women had total incomes which placed them below the poverty line. When support was excluded, 74 percent of divorced women fell below the poverty line (see pp. 94 -95). It is apparent that support payments, even assuming they are paid, are making only a marginal contribution to reducing economic hardship among women following divorce. In contrast, a previous study released in 1986, Evaluation of the Divorce Act -- Phase I: Monitoring and Evaluation, found that only 10 percent of men were below the poverty line after paying support, and the average income was $13, 500 above the poverty line in such one‑person households after the payment of support. ” 23/02/2021 04: 03

• An Example of Using Policy Examining the Example Scenario/Problem On the basis of the research cited, the court laid down new guidelines for calculating spousal maintenance. In other words, the court did not only look at the Husband Wife in front of them, but considered the two parties in the context of society as a whole. 23/02/2021 04: 03

• An Example of Using Policy Examining the Example Scenario/Problem • What would be relevant sources for a Caribbean court? • How easy is it to find statistics like the figures used in Moge? • Before we go further, I want to give you a little background on the topic. We will watch two videos and also look at some statistics. 23/02/2021 04: 03

• Background on Family Poverty and Gender • Close your eyes and picture the following: • a nurse, • a farmer, • a doctor, • a lawyer, • a minibus driver and • a trash collector • an airplane attendant. 23/02/2021 04: 03

• Background on Family Poverty and Gender • In your mind’s eye, how many of these were male? How many were female? • a nurse, • a farmer, • a doctor, • a lawyer, • a minibus driver, • a trash collector, and • an airplane attendant. • Why are some professions still predominantly of one gender? • Why are there some professions that we associate with one gender even though the ratios have now evened out or even switched? 23/02/2021 04: 03

• Background on Family Poverty and Gender • What are wages like in the Caribbean? Is there a wage gap? • Look at the following tables from Barbados? 23/02/2021 04: 03

• Background on Family Poverty and Gender • Watch the following videos on the gender pay gap. • There Is No Gender Wage Gap (Directed by Prager. U 2017) https: //www. youtube. com/watch? v=Qc. Dr. E 5 Yvq. Ts • What People Miss about the Gender Wage Gap (Directed by Vox 2016) https: //www. youtube. com/watch? v=13 XU 4 f. Ml. N 3 w 23/02/2021 04: 03

• Background on Family Poverty and Gender A Brief Analysis of the Gender Pay Gap Videos • To me one interesting thing from the first video was the question of choices. Yes, individuals must make choices about what they want to do, how many hours they want to spend doing it, and whether they want to prioritize their families. • What the video leaves out, however, is the consideration of prioritizing and supporting the family as a societal goal. Can it be argued that people need to have children? That it is not only a biological imperative, but it is also necessary for the society to survive? • Are there other things that contribute to poverty among women and children? 23/02/2021 04: 03

• Background on Family Poverty and Gender • According to the 2012 Country Assessment of Living Conditions (CALC) for Barbados: • Among the contributors to poor living conditions and to poverty were: • ‘coming from a poor family’ • high fertility rates • large numbers of children and lack of support from children’s fathers • unemployment and low wages • lack of education, and • disability. 23/02/2021 04: 03

• Background on Family Poverty and Gender • According to the 2012 Country Assessment of Living Conditions (CALC) for Barbados: • Only 36% of children in the survey had both parents in the household - 86% of mothers were present but only 40% of fathers were present. • Female headed households were more likely to be poor than male-headed households with poverty rates of 19. 4% and 11. 5% respectively. • In other words, one in five female-headed households in Barbados are living in poverty. Note that the poverty line is set at BDS$9, 000 per year. 23/02/2021 04: 03

• Background on Family Poverty and Gender • Breakdown of relationships usually put severe financial strain on both parties. There are many cases where neither party can afford to pay for the matrimonial property and the house is lost to the bank. • Even when parties are together, women often carry the greater share of responsibility for children, from every-day chores to being the ones to take time from work to tend a sick child. • After a breakup, the financial responsibility tends to increase. 23/02/2021 04: 03

• Background on Family Poverty and Gender Learning Activity 15. 1 Ungraded • Taken from the IDB Working Paper Series IDB-WP-210 from 2010 http: //www. iadb. org/wmsfiles/products/publications/documents/35326952. pdf Instructions: These charts show the wage break-down in Barbados. How can this data be interpreted given the other statistics you have read and videos you have watched? Share your views in a discussion forum and respond to the posts of at least 2 of your peers. 23/02/2021 04: 03

• Background on Gender and Family Poverty Family Supporting Policies of Some Countries • Maternity leave / grant • Paternity leave • Free education • Free child care • Tax credits for children • Supporting flexible work hours • Easy access to and education about reproductive health and contraception • Implementing a fair and efficient family court system. 23/02/2021 04: 03

• Background on Gender and Family Poverty • One issue for governments to tackle is allocation and collection of child maintenance. • In Barbados, there are several pieces of legislation which deal with this. These are the Maintenance Act Cap 216, the Family Law Act Cap 214, the Minors Act Cap 215 and the Succession Act Cap 249. • Unfortunately, there are still several problems, e. g. : 1. The Maintenance Act, which is used in the Magistrates’ Courts, does not properly provide for custody orders and still refers to mothers being ‘unfit’. 2. Fathers (and others) who want custody and maintenance must use the Minors Act in the High Court. This is a much more formal (and expensive) process. 3. Under the Succession Act, maintenance stops at 18. 4. Only the Family Law Act provides guidelines for maintenance. 23/02/2021 04: 03

• Learning Activity 15. 2 Tutorial Session Learning Activity 15. 2 Ungraded Tutorial 8 Please see a link to Tutorial 8 WORD file on the Learning Exchange (or here).

• Summary We have started to look at the use of policy arguments in law and at the sources for these types of arguments. We have also had some background in the area in preparation for Assignment 2. In the next lecture, we continue our look at writing policy arguments.