A Respectful Dissent From the Khadr Consensus: Ward Revisited

The case of Omar Khadr gives scholars a rare opportunity to question the fundamentals of public law damages. Such damages are notoriously difficult to quantify. As Lord Shaw once put it, “the restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of a broad axe.” This is doubly true respecting violations of rights and freedoms.

Despite these difficulties, most observers have made near-conclusive and wide-ranging claims about damages in the context of the Khadr case. For example, Prime Minister Justin Trudeau has argued that $10.5M is the invariable cost, in this case, of a Charter of Rights and Freedoms violation. Prof. Audrey Macklin similarly argued that the settlement is justified because the Government of Canada’s actions were “morally reprehensible”; and what’s more, a damages award at trial would have “dwarfed” the settlement figures. Prof Craig Martin simply argues that a restoration of “Canadian values” justifies the Khadr settlement. Other examples abound.

Whether the settlement and its quantum are justified in comparison to a damages award at trial is a fraught question. There are no easy answers provided by the law of constitutional damages. Yet the observers above reason from political premises about the importance of the Charter to Khadr’s “human rights” to wholly justify the settlement, without considering the legal justifications and difficulties associated with awarding Charter damages in this case. Indeed, much of the analysis has not engaged with Ward v Vancouver (City), in which the Supreme Court of Canada discussed the legal considerations directly relevant to Khadr.  In this post, I use the Ward analysis to critique two of the main claims used to support the settlement and its quantum: (1) that a sizeable settlement is appropriate based on the circumstances (2) quantum: that a damages award at trial would have “dwarfed” the settlement figures. Instead, it is just as likely that a damages award may not have reached $10.5M at all.

As we shall see, uncertainty is the watchword. That is what the law, not politics, prescribes–and why I dissent from the orthodoxy on this issue.

*****
I will start with the former claim.  Let’s begin with what is true. The Charter must apply for a damages award to be available. Contrary to Conservative MP Erin O’Toole, the Charter does apply extraterritorially in this case. While there is a complex set of cases on Charter application abroad (see the recent episode of The Docket for a solid analysis), the Supreme Court held in Khadr 2010 that the Charter applied. That is now a decided legal point. The fact that Khadr could be characterized as a jihadist is also irrelevant for the purposes of Charter application—constitutional rights exist to afford protection  to those who the majority may not consider worthy of protection.

But it is not enough for the supporters of the settlement to draw a direct line from a Charter violation to the settlement. In Ward, the Supreme Court held that a complex analysis is required after a Charter breach is found in order to determine whether damages are an “appropriate and just remedy,” as per the text of s.24(1) of the Charter. The Court outlined the functional justifications for a Charter damages remedy which a claimant must trigger in order for damages to be appropriate: the remedy must compensate, deter future unconstitutional government action, or vindicate Charter rights.

It follows that whether a Charter damages remedy qua settlement is “appropriate” writ large is the wrong question. Instead, we must ask what the functional justification for the Khadr settlement is in the context of Ward. The settlement could be justified from different perspectives. This is a question of legal policy.

Compensation and vindication in this case are near-impossible to achieve. Though separate justifications, both vindication and compensation seek to resolve the intangible loss associated with a Charter violation. Millions of dollars will not put Khadr in the position he would have been in but-for the narrow Charter breaches, because his loss (the violation of Charter rights) cannot be measured. It will differ from judge to judge, court to court. It is true in the private law context (see Andrews) that courts routinely award for intangible, non-pecuniary loss.   It is also true that damages in the private law context are primarily justified by the Supreme Court on a compensatory basis: Blackwater v Plint, para 81. Much of this thinking informed the reasoning in Ward, where the Court held that the difficulty of measuring a harm should not be a bar to the availability of constitutional damages.  But both private and public law recognize the limitations of compensation for immeasurables by controlling for mass recovery in such circumstances.  For example, Andrews introduced a cap for non-pecuniary loss. On the other hand, Ward holds that even if a functional justification is identified, “good governance” concerns may militate against the award of Charter damages. If one cannot conclude that damages would properly compensate Khadr’s loss, Ward provides appropriate guidance, at para 53: “Large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant’s needs and may be inappropriate or unjust…” In other words, we should not throw good money after bad, even to vindicate Charter rights in an abstract sense. This does not mean  that the law should not compensate when it is difficult—private law is fundamentally about compensation in such circumstances. It simply means that, especially in the Khadr case with no pecuniary loss, compensation may be a weaker justification than the alternatives—especially when the law itself recognizes the limitations.

Deterrence is a more promising function in this particular case. Law and economics theory tells us that the goal of damages-as-deterrent seeks to affect the incentives of future defendants by forcing them to internalize the costs of their tortious actions. Opponents claim that deterrence theory requires defendants to be perfectly rational economic actors, and that the empirical evidence is weak to support such a claim. However, as Professor Norman Siebrasse essentially claims in one of a series of blog posts, perfection is not of this world.  Damages fail on the deterrence rationale only if a defendant is perfectly irrational. If a defendant has some regard to consequences, deterrence theory can provide an explanation and justification for damages, including Charter damages where the compensatory rationale is exceedingly weak. This is because the possibility of liability affects, in some regard, the choices presented to a defendant in a given circumstance.

On this argument, the Khadr settlement might be justified on a deterrence basis. While government actors may not be cost-conscious, they are creatures of politics. They seek to avoid Khadr-type news cycles which obsess over multi-million dollar awards. Government actors may avoid violation of constitutional norms simply because it is in their interest to do so, having regard to the settlement consequences. Awards based on deterrence, for example, might be likely in respect of discriminatory police conduct based on race. The recent Elmardy case at the Ontario Divisional Court demonstrates how the Ward analysis is used to affect the incentives of future governments on a deterrence rationale, especially given the newsworthy nature of such police misconduct (see also Gabriella Jamieson’s recent analysis of Ward in the context of race, and the importance of deterrence).

In short, whether the Khadr settlement is justified is a question of legal policy. Different theories of public law damages can provide different perspectives. As of now, however, no proponent of the settlement has engaged with deterrence theory in a fulsome way. In other words, simply reasoning from abstract principles of “human rights” does not justify Charter damages as a legal matter, and provides no answers as to the suitability of the Khadr settlement or Charter damages.

*****
The second point, on quantum, is one which admits of no easy answers. Yet most observers do not seem to question the Prime Minister’s assertion that the litigation of Khadr’s suit would have cost the government up to $40M. For at least two reasons, this is an impossible prediction to make or accept. Even if awarded, a damages award consisting of Charter damages might not have reached even $10.5M. I should note that I do not address liability in tort respecting quantum. While that is a relevant consideration, I am responding primarily to the commentators who have focused their analysis on the Charter breaches and damages flowing from same. Much of the uncertainty respecting Charter damages applies to the relationship between common law and constitutional damages, at any rate.

First, there is a paucity of Charter damages case law with which to analogize and compare the Khadr settlement in order to make these conclusions. Ward holds that quantum is governed in deterrence and vindication cases (such as Khadr) by a number of factors, including precedent and the seriousness of the breach: see paras 51-52. Since 2010, when Ward was decided, only a handful of cases have awarded Charter damages awards in the millions. Henry involved a case of wrongful imprisonment for a period of around 27 years. The BC Supreme Court awarded $7.5M in Charter damages, designed to vindicate Henry’s rights; an additional $530 000 was awarded for pecuniary loss. In BCTF v British Columbia, a trial court awarded $2M for bad-faith legislation—a rarity in constitutional remedies. Finally, in Conseil scolaire francophone de la Colombie-Brittanique v British Columbia, the BC Supreme Court awarded $6M in Charter damages for the underfunding of a minority education transportation system. The facts, quantum of damages, and justifications for the remedy in each of these cases diverge wildly—making it difficult to draw any legal conclusions or precedential value for the Khadr case.

Moreover, few Charter damages awards since Ward have come close to $10.5M, with most cases awarding nominal damages. This is true even of recent solitary confinement cases which might be analogized to Khadr. In Ogiamien, Justice Gray held that $85 000 would compensate for the losses of two plaintiffs who suffered under conditions which “outraged standards of decency.” In that case, the court found that the conditions violated protections against cruel and unusual punishment contained in s.12 of the Charter. If that amount of money satisfied the judge’s “outrage” in that case, it might very well satisfy any outrage in Khadr. This goes to the basic premise—compensation will be in the eye of the beholder, a trial judge. Reasonably, there is enough for a judge to conclude that $10.5M is not justified because of the limited breach.

This connects to the second point: because damages require an imaginative judiciary, and because there is little case law on the matter, much depends on how a trial judge would have analyzed the facts and the evidence respecting the “seriousness of the breach.” Michael Spratt argues that the breach was quite serious, given Khadr’s youth and circumstances. But Professor Macklin characterizes Khadr 2010, which found the breaches, as a “narrow” ruling, simply based on questioning and interrogation—no cruel and unusual punishment as in Ogiamien, torture, or otherwise (though, as noted above, Macklin supports the settlement). However a judge would resolve this debate will tell the tale. There is enough doubt, though, to question confident predictions of any “dwarfing”–and to support the opposite conclusion.

This is an unsatisfying conclusion. But there is no problem in stating what the law and the facts dictate: one cannot claim in any probabilistic sense that the damages award at trial would have “dwarfed” the settlement figure. There are simply too many variables to make that conclusion—there is at least some reasonable doubt.

*****

At the end of the day, while the Charter protects the fundamental rights of those like Khadr, that does not mean that a violation of a particular right leads inexorably to any particular remedy. It does not mean that compensation follows, or that it is justified from a legal policy perspective. Much nuance has been left out of the public comments on the Khadr settlement. Many have found it appropriate to simply say that a damages award, no matter the quantum, is justified because of the violation of Khadr’s rights. That may be a sound political argument. But the law requires more. It would be appropriate to see observers engage with the legal justifications for Charter damages rather than political justifications. Moreover, it would be helpful for analysts to recognize the limitations of the law in predicting the ceiling on an award of Charter damages. Engaging on those terms will improve the state of constitutional remedies and provide more convincing analysis.

 

 

Mancini on Khadr

Announcing a guest post by Mark Mancini on the Khadr Settlement

I am delighted to announce a forthcoming guest post by Mark Mancini on the Canadian government’s settlement with Omar Khadr. There have been many hyperbolic reactions to it, so I am very much looking forward to what I expect will be nuanced and thoughtful comments on an important issue that deserves more serious treatment than it has mostly received. Mr. Mancini is a recent graduate of UNB, already a published scholar, and a friend of this blog. I am delighted to welcome him as a contributor.

Clash of Courts

Senior Superior Court judges are suing Québec over its provincial court’s jurisdiction; other provinces will be affected if they succeed

I don’t think the story has received much attention outside of Québec yet, but it’s not because it doesn’t deserve to be noticed: as La Presse reports, the Chief Justice, Senior Associate Chief Justice, and Associate Chief Justice of Québec’s Superior Court are suing the provincial government, arguing that much of the civil jurisdiction of the Court of Québec is unconstitutional. More specifically, they are seeking declarations that Québec could not, consistently with section 96 of the Constitution Act, 1867, grant its provincial court exclusive jurisdiction to hear cases where the amount at issue is more than $10 000 or any powers of judicial review over provincial administrative tribunals, because these powers are reserved for federally-appointed judges.

Currently, the upper limit of the Court of Québec’s jurisdiction in civil matters is set at $85 000. Should the Superior Court judges prevail, their court’s workload is bound to increase very substantially, though I haven’t yet seen any clear data on this point. But repercussions  will be felt well beyond Québec’s borders. British Columbia has set the upper limit on its provincial court’s jurisdiction in civil disputes at $35 000; Alberta, at $50 000. The principles on which the applicants rely apply across Canada, of course, and the boundaries between the jurisdictions of superior and provincial courts would need to be re-drawn in several provinces, if not quite to the same extent as in Québec.

Though I am sure that much more will be said about this dispute as it develops, my initial impression is that the Superior Court judges have a strong case. Although it says nothing of the sort, section 96 has long been understood to stand for the proposition that the courts to which it refers, including Québec’s Superior Court, have a protected “core” of jurisdiction. This core jurisdiction ― that which they exclusively had at the time of Confederation ― cannot be taken away from them or transferred to other courts (which is to say the Federal Court or provincial courts created pursuant to section 92(14) of the Constitution Act, 1867, such as the Court of Québec). As the Superior Court judges’ application shows, in Québec, the exclusive jurisdiction of (what at Confederation became) section 96 courts started at $100, which, adjusted for inflation, is said to be less than $10 000. (The application does not go into any detail as to exactly how this inflation adjustment proceeds ― the exercise is bound to be an inexact one over 150 years ― but let’s assume that the figures given are at least roughly correct.) As Québec expanded the jurisdiction of its provincial court over the last 50 years (for the most part, when it was governed by the Parti québécois), it took more and more out of the former exclusive jurisdiction of the Superior Court, impinging ever more on what the Supreme Court, in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, described as its “historic task … to resolve disputes between individuals and decide questions of private and public law”. [32]

Indeed, the Superior Court judges’ argument is not new. Frédéric Bachand, then a professor at McGill and now himself a Superior Court judge, mentioned it in my civil procedure classes ― 10 years ago. And, while I’m not sure about this, I doubt that the point was a novel one even then. Prof. Bachand, as he then was, also pointed out that no litigant had a good reason to raise the issue, and he was right about that too ― but the wonders of public interest standing, which the Superior Court judges very plausibly claim, mean that the matter will have to be addressed regardless.

Just how it will be addressed is still a troubling question. The prospect of Québec’s Superior Court adjudicating, even in the first instance, a claim about its own jurisdiction brought by its three most senior judges is unsettling. The judges’ Application details their fruitless attempts to get the provincial government interested in the matter. For a while now, they have pushed for the issue to be referred to the Court of Appeal. A reference would indeed have been the preferable procedural vehicle, both to avoid casting the Superior Court in the unseemly position of being judge in its own cause, and also because the questions to be addressed are not of such a nature as to require a trial to be held, while appeals all the way to the Supreme Court are certain in any event. I’m not sure exactly why the Québec government has so far refused to take this course. Perhaps it was daring the judges to sue in their own court, and hoping that they would not compromise themselves in this way. But now that, rightly or wrongly, its dare has been taken, there is nothing to be gained from continued obstinacy.

Indeed, I wonder if the federal government would not do well to intervene and refer the issues directly to the Supreme Court, should Québec’s obstinacy continue. While federal references on the constitutionality of provincial legislation are uncommon, Québec itself has no compunctions about referring questions regarding the constitutionality of federal policies to the courts. And of course the issue of the respective jurisdictions of superior and provincial courts directly concerns the federal government, which would have to pick up a substantial tab for the salaries of additional section 96 appointees if Québec’s Superior Court judges are successful. Even more importantly though, because these judges are appointed and paid by the federal government, I think it has a direct interest in helping them maintain their continued impartiality and good standing, and arguably a duty to do so (a political duty, of course, not a legal one).

Whatever exactly happens, one has to hope that it happens quickly. An important question has been raised, with strong arguments to support the proposition that the way the court  systems of several provinces are organized is unconstitutional. This question deserves to be answered, but having it litigated by senior judges in their own court is surely not the right way to go about it. Yet if the judges are looking bad, the provincial government that seemingly dared  them to do it is even worse. It is not taking its constitutional responsibility for the administration of justice ― on which it purports to rely to justify its allegedly unconstitutional legislation ― seriously at all. It is high time for it to come to its senses ― and perhaps for the federal government to intervene if it refuses to do so.

The Law of Permanent Campaigning

Election law might have help create permanent campaigns. Can it be used to solve their problems?

The regulation of “money in politics” in Canada follows a bifurcated approach. Fundraising by political parties is subject to strict regulations that apply evenly throughout the electoral cycle. (There are special rule for candidates in elections and party leadership races.) By contrast, the expenditure of money by parties, as well as candidates, and so-called “third parties” ― which is to say, everyone else ― is only regulated, and very tightly regulated at that, during election campaigns, but not at other moments. Indeed, I once wrote that

the free discussion so essential to the existence of democracy and of parliamentary institutions is at no point so constrained as during electoral campaigns. No debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus of the protection of the freedom of expression.

This regulatory approach was developed at a time when election campaigns were mercifully short, and not much electioneering took place outside of the immediate pre-election “writ period”. But what happens if this is no longer so? What if the campaigning becomes “permanent”, to use a word that has been popular for a while now? The Conservative Party of Canada, under Stephen Harper’s leadership, is sometimes said to have brought the permanent campaign to Canada, but everybody’s doing it now, as Anna Lennox Esselment points out in a Policy Options post. The post is only an overview of a book that prof. Esselment has  co-edited with Thierry Giasson and Alex Marland. I have not read it yet ― I will eventually ― so for now I can only venture a couple of comments about prof. Esselment’s post.

One point worth making is the links prof. Esselment makes between “permanent campaigning” and the way in which party leaders are being put at the centre of politics. That political parties have become primarily tools for the promotion of individual leaders is a point made by Bernard Manin in his book on The Principles of Representative Government; I have, I think, shown that it applies with full force to Canada in my article on  “‘Third Parties’ and Democracy 2.0”, where I looked at the 2011 election campaign. (I summarized that part of the article here.) The development of the “permanent campaign” exacerbates this trend, though it did not create it; the days when parties could be seen as the “supermarkets of ideas” that Pierre Trudeau once thought they ought to be are long gone. As I argued in my article, we should not pretend otherwise, and take that into account in revising the ways in which we regulate the democratic process.

Regulation is the subject of another of prof. Esselment’s observations. She points out that “the rules regulating party financing” are among the “factors … contributing to the permanent campaign”. Once rules were in place to prevent “corporations, unions and wealthy individuals” from financing political parties,

the need to fundraise directly from [large numbers of] individual Canadians became a driving force in party operations. Knowing who might donate, how much and when is now crucial.

This in turn fuels the parties’ need for data about voters and potential donors (as well as people who might provide other forms of support). Prof. Esselment notes that this data gathering creates concerns about privacy, and she is right, of course. But another point worth emphasizing is that the story she tells illustrates the inevitability of unintended consequences. The permanent data-hungry campaign was not what those who clamoured for restrictions on party financing were looking to get, but they got it anyway. Their attempts to solve one (perceived) problem, though they may have been successful, also helped create a different one. A whole set of problems, actually, as prof. Esselment explains, having to do not only with the behaviour of parties as organizations, but also with what they do in, and to, Parliament.

This leads me to the final issue I will raise here. Prof. Esselment suggests that more fiddling with the regulation of political fundraising and expenditures is one “way out” of these problems. We might want

to regulate political party financing outside of the writ period and impose annual spending limits. This could limit a party’s ability to launch attack ads against their opponents between elections. … Reintroducing public subsidies for political parties might also reduce their ferocious appetite for information about Canadians, a key part of fundraising efforts.

The suggestion to “regulate party financing outside of the writ period” is a bit vague ― party financing is already regulated at all times, after all, though as I noted above, the regulations tend to apply evenly throughout the electoral cycle. But spending limits outside the writ period, and public financing, would have predictable, if unintended, negative consequences.

Permanent spending limits are, of course, permanent restrictions on the parties’ (and their supporters’) freedom of expression. We might not care too much about that, seeing how parties are vehicles for the aggrandizement of leaders and not contributors to an ideas-based political discourse, though I think that the freedom of expression even of relatively unsavoury actors has a value. But if parties subject themselves to permanent spending limits, they will not leave the rest of civil society alone. They will introduce stringent limits on the ability of “third parties” ― the disparaging name under which every speaker who is not a party or a candidate is known in election law ― to spend and express themselves as well. This is already what happens federally and in some provinces during election campaigns, and the Supreme Court has approved ― in the name of fairness ― the principle of radically lower spending limits for “third parties” than for political parties. Ontario has now gone further and introduced spending limits for “third parties” that apply six months ahead of an election. Permanent limits on party spending will create a strong pressure for what I have called, here and elsewhere, permanent censorship:

[A]n attempt to control “third party” spending between elections … It would extend to all advertising related to political parties or their candidates, including by taking position on issues “associated” with the party or the candidate. Moreover, in addition to dollar limits, the spending control regime includes onerous registration and disclosure requirements. Any individual, group, or organization that wanted to engage in political discourse would have to register with Elections Canada and keep it informed about its income and expenses. In effect, an extension of the rules on “third party” spending between elections would be a step towards the imposition of a regime of wholesale political censorship in Canada.

As I explain in detail in the posts linked to above, the courts may well find that such a regime is an unjustified violation of the protection of the freedom of expression in the Canadian Charter of Rights and Freedoms. But then again, they may not. But it would be no less terrifying even if the courts were in fact prepared to uphold it.

As for public financing for political parties, it is not obvious that it would reduce their hunger for data about us ― if not as potential donors, then as prospective voters (or indeed opponents who might be dissuaded from voting with targeted negative advertising). It would, however, reinforce the dominant position of large parties ― especially, of course, of the winners of the last election ― and prevent smaller, and above all new, parties from competing with more established ones on anything like equal terms. Perhaps these distorting effects are worth it for other reasons (though I’m skeptical), but I don’t think that the uncertain prospect of reduced data collection could justify them.

Permanent campaigns are, obviously, an important political development, and the law must take them into account. I am looking forward to reading the book on which prof. Esselment’s post is based, and perhaps I will have more to say about the subject as a result. But we must be very careful to avoid creating more problems as we try to solve those we have already identified. Indeed, we ought to keep in mind that if these problems arise from previous attempts at regulation, the solution might not be a fuite par en avant, but a retreat.

Still Not a Conservative

A couple of comments on Chief Justice Joyal’s Runnymede Radio podcast

Back in January, Chief Justice Glenn Joyal of the Court of Queen’s Bench of Manitoba gave a very interesting keynote address at the Canadian Constitution Foundation’s Law and Freedom conference. (A transcript is available at the website of Advocates for the Rule of Law.) Subsequently, I critiqued Chief Justice  Joyal’s argument to the effect that, in the wake of the enactment of the Canadian Charter of Rights and Freedoms, the Canadian constitutional culture changed, for the worse, because the judiciary acquired a disproportionate influence on the nation’s public life, at the expense of democratically elected institutions. I argued that although there is cause for concern about judicial self-aggrandizement, this concern should not be overstated, and need not translate into a celebration of the democratic process. In my view, Chief Justice Joyal articulated “a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada”, with the subscribers to which I might make common cause from time to time, but which I do not share.

Chief Justice Joyal elaborated on his address and very generously responded to my critique in a podcast interview with Joanna Baron, the director of the Runnymede Society (and my friend). It was an illuminating conversation, and is well worth listening to, as I have finally had a chance to do. Without re-arguing all of my differences with Chief Justice Joyal, I would like to make just a couple of points ― one about something in his position that I do not understand, and the other about what might be at the heart of much of our disagreement.

In both his Law and Freedom address and the podcast, Chief Justice Joyal repeatedly lamented the decline of “bold”, “purposive” government in Canada in the wake of the Charter’s coming into force. He is careful to note that “bold” government need not be big government. It is government acting for the community, implementing a certain political vision. But I’m afraid I have a hard time seeing what exactly this means, and in particular seeing what sorts of bold government initiatives the Charter, or even its attendant political culture in which the judiciary is both more powerful and treated with more deference than it used to be, might have thwarted. I understand that Chief Justice Joyal might be reluctant to be specific, because he might be called upon to adjudicate the constitutionality of government initiatives, bold or otherwise. But perhaps someone who agrees with him could help me out?

The one specific point that Chief Justice Joyal  does mention in the podcast is the inculcation of certain values, especially I take it in the education system. Now, the idea of inculcation of values by the government makes me quite uneasy, and it would make me uneasy even if I trusted the government to inculcate the right values and not collectivism and deference to authority. Blame it on my having been born in what was then still a totalitarian dictatorship ― or on my excessively American values, if you prefer. Whatever the cause, Chief Justice Joyal’s support for this sort of policy is one reason why, although he disclaims the “conservative” label, I do not resile from applying it to him. But regardless of whether his position on this is better than mine, I’m not sure how the Charter stands in the way of what Chief Justice Joyal has in mind. The closest encounter between it and what was arguably a governmental effort to inculcate values happened in the litigation that arose out of Québec’s “ethics and religious culture” curriculum. The Supreme Court upheld most of that curriculum, first in SL v Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 SCR 235, and then in Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, only invalidating the requirement that a Catholic school teach Catholicism from a neutral (instead of a Catholic) standpoint. Surely, that particular requirement was not the sort of bold policy the decline of which Chief Justice Joyal laments.

As for the crux of my disagreement with Chief Justice Joyal, I think it concerns our different takes on the incentives that apply to political actors on the one hand, and the courts on the other. Chief Justice Joyal charges me with inconsistency, because, while I distrust elected officials and the political process, I have more confidence in the courts. Incentives, I think, are the reason why there is, in fact, no inconsistency. Political actors have an incentive to exploit the ignorance of the voters, and their irrationality (including the voters’ fear of the unknown and distaste for non-conformity). All too often, that is how they come to and remain in power. If there are political points to be scored by attacking an unpopular minority, politicians will want to score these points ― even the comparatively decent ones. Judges are not entirely immune to the incentive towards self-aggrandizement, of course, and I have often noted as much. But they have less to gain from exploiting others’ ignorance and irrationality, and are embedded in an institutional structure that at least tries to steer their own decision-making towards rationality and, in particular, towards an equal consideration of the claims of the unpopular. As a result, I think it is possible to distrust courts less than legislatures without being inconsistent about first principles.

In any case, I am grateful to Chief Justice Joyal for his contribution to the discussion about the role of the Charter and the courts in Canada’s constitutional order ― and of course for the kindness with which he treats my own position. He has not persuaded me to adopt his position, or indeed to stop describing it as conservative (without, in case that needs to be clarified, meaning to disparage it by this description!). But I think it is entirely a good thing that this approach is being articulated in such a thoughtful, and thought-provoking, way. Whatever our individual views, we are all enriched when the discussion includes voices such as Chief Justice Joyal’s.

How Power Corrupts V

What science has to say about the corrupting effects of power

A recent article by Jerry Useem in the Atlantic, “Power Causes Brain Damage”, provides me an opportunity to return to my series of posts on the corrupting effects of power. My previous musings ― on character as a partial antidote to these effects and the dangers of addiction, on the connections between power, fear, and violence, and those between power and lies, and the perverse incentives that power imposes on those who seek and wield it ― mainly drew on literature, with a bit of political analysis and economics thrown in for good measure. Mr. Useem’s article describes a couple of very different sources for this inquiry: neuroscience and experimental psychology.

Mr. Useem reviews a number of scientific studies that have found some of the same effects that writers and philosophers who have concerned themselves with power have described. One psychologist found that experimental

[s]ubjects under the influence of power … acted as if they had suffered a traumatic brain injury—becoming more impulsive, less risk-aware, and, crucially, less adept at seeing things from other people’s point of view.

The inability of people in power to relate to others is observable both when looking at their brain processes directly, as a neuroscientist’s work suggests, and at their behaviour, whether in experiments or in real life situations that seem to echo them.

It seems likely that the inability of the powerful to empathize with others and their impulsiveness both help explain why power is inevitably violent and deceitful. It is easier to manipulate or to crush people if you do not ask yourself how they might feel about that ― and the individuals or institutions that wield power don’t. Besides, as another psychologist to whose work Mr. Useem refers points out, “power lessens the need for a nuanced read of people, since it gives us command of resources we once had to cajole from others”. In other words, why would you bother being nice to people when you can coerce them? This is a point about power’s perverse incentives, albeit a different one from that which I discussed in a post linked to above.

Now, the psychologists’ experiments’ subjects were not actual politicians or corporate executives ― “[t]hey were”, Mr. Useem explains, “college students who had been ‘primed’ to feel potent by recounting an experience in which they had been in charge.” Mr. Useem speculates that the effects the experiments shows

would presumably wear off when the feeling did—their brains weren’t structurally damaged after an afternoon in the lab. But if the effect had been long-lasting … they may have what in medicine is known as “functional” changes to the brain.

In fact, some experimental findings suggest that this is likely to be so. This is unsurprising, since both the guess that “an afternoon in the lab” is unlikely to have a long-lasting effect, and the possibility that long-term exposure to power does not wear off so easily, are quite consistent with the role of addiction in power’s corrupting effects.

Mr. Useem recounts studies that suggest that people in a position of power can try to resist addiction to it by reminding themselves, or having someone remind them, either of the limits on their power or of its corrupting influence on them and those around them. Although Mr. Useem does not mention it, the old-fashioned memento mori is the best-known implementation of this idea. Gandalf’s repeated insistence that Frodo not use the Ring, and his pointed injunction, when Frodo wears it on Amon Hen and is in danger of being discovered by Sauron’s Eye ― “Fool, take it off! Take off the Ring!” ― is an obvious literary example. But from what we know about power ― from the Lord of the Rings and other sources ― these are no more than temporary fixes. Sooner or later, addiction will take hold.

In exploring the damaging effects of power, Mr. Useem seems mostly interested in business leaders, and in ways in which they can remain effective despite power’s corrosive influence on them. My focus in this series of posts is somewhat different: it is on political power, and what can be done to control it. That politicians might become less effective over time does not particularly bother me. If anything, the possibility that “[o]nce we have power, we lose some of the capacities we needed to gain it in the first place” seems reassuring ― provided that the ineffective politicians can be dispensed with.

I once again conclude, then, with a reminder of the importance of constitutional mechanisms to limit the amount of harm a brain-damaged politician can inflict on us. Separation of powers, federalism, and protections for individual rights limit the amount of power a politician can wield to begin with ― and perhaps even limit the amount of damage his or her brain will come  to sustain. The Rule of Law provides further restraints on the manner in which power, even when it exists, can be exercised. And democracy provides the essential mechanism by which the politician who has overstayed his welcome ― for example because his or her brain has turned to power-corrupted mush ― can be thrown out of office.

To be sure, no constitutional device is fool- or Caesar-proof. For the ultimate, democratic safeguard against the corrupting effects of power to work, voters must be willing to invoke it ― and we should probably harbour no great illusions on that score. But constitutional and democratic safeguards are all we have ― and they are, after all, better than nothing.

The Blog of John Henry

A comment on Nick Barber’s thoughts on “The Legal Academic in the Internet Age”

How is the internet going to change the ways in which legal academics teach, publish, and engage with the outside world in the medium term? Nick Barber addresses this question in a provocative post over at the UK Constitutional Law Blog. Blogs, he argues are the way of the future, while both social media should be resisted, and traditional lectures are destined for the dustbin of history. You might think that as a blogging enthusiast I would agree, or at least find the idea exciting. But prof. Barber doesn’t think that the future belongs to any old blogs; he has a specific type of blog in mind ― professional, edited outfits (like the UK Constitutional Law Blog itself), which will fuse with more traditional journals. A future in which such outlets are the dominant medium does not strike me as blogging utopia at all.

I will not say too much about prof. Barber’s views on the future of teaching. He thinks

that lectures will increasingly be replaced by shorter, fifteen or twenty minute, vlogs that will be designed for the medium; that is, they will consist of lecturers talking to camera, perhaps with slides incorporated into the broadcast. A series of these vlogs will then combine to cover the material that used to be covered in the lecture.

This will be both less demanding for the lecturers, who will be able to re-use recordings, and less boring for the students, who will be able to consume them in more digestible chunks and at their own pace. Prof. Barber thinks that by replacing lectures, “the rise of vlogs will free up time for more interactive teaching” to small groups of students. It’s a tempting vision, as I’m planning my lectures next term to classes of, potentially, 270 and 60. But whatever the chances that it will be realized at Oxford, where prof. Barber teaches, or at similarly well-heeled institutions, I don’t see how law schools like the one at which I am will have the resources to replace my four hours of pontificating to 330 students by the appropriately astronomical number of hours needed to afford them all small group teaching.

Similarly, I will not say too much about prof. Barber’s dismissive attitude to social media (i.e. Facebook and Twitter), which he says “encourage folly and, worse, they then go on to preserve this folly for posterity”. Steve Peers has responded with a Twitter thread that points out that Twitter, in particular, enables people to interact over the barriers that separate different professions (or branches of the legal professions) and academic disciplines, which (at least sometimes) makes it possible for conversations that would otherwise happen within these different groups to be enriched, for the benefit of all involved. I would only add that social media also help break down geographical barriers in a way that not only traditional publications, or even good old email, do not, and also the barriers of rank or standing within each profession or discipline. I understand why some people will prefer to heed prof. Barber’s call for caution, and do not agree with people who occasionally come close to saying that every academic ought to be on Twitter, but I am pretty sure that many will find it useful. I know I do; indeed I think that I have benefited a great deal from my (initially very reluctant) embrace of that medium. (To give just one example, I’m not sure if my collaboration with Benjamin Oliphant would have come about if we hadn’t been interacting on Twitter, as well as reading each other’s blog posts.)

I want to comment in some more detail on prof. Barber’s views on the present and future of blogs. Prof. Barber is enthusiastic about “the emerging capacity of blogs to permit academics to engage with important constitutional issues as they unfold”, without being constrained by the “glacial” pace at which articles, even short and topical ones, in traditional publications come out. Moreover, ” the rise of the blogs has also brought with it a welcome relaxation of style”, allowing scholars to engage with lay audiences. At the same time, as with social media, prof. Barber worries that

[t]he ease and speed with which material can be published increases the risk of error and of ill-considered scholarship. This may be partly due to the laziness of scholars but it is, also, the product of a collective pressure to publish quickly.

Half-baked or outright mistaken arguments that would never have made their way onto the printed page can appear in blog posts, and live on forever in cyberspace.

Prof. Barber sees the solution to this problem in the professionalization of blogs. “We need”, he argues, “to create structures that will make use of the speed and accessibility of the Internet whilst avoiding the risks of sloppy scholarship and blow-hard opinionizing.” Already, prof. Barber says, “[t]he best law blogs, like journals, now play an editorial role, reviewing and critiquing submissions before they are posted.” Whether these structures develop as part of what are now blogs or what are now journals, they will cause the quality of blog output to improve. This, in turn, will lead to academia finally crediting blog posts similarly to more traditional publications for the purposes of promotion, and also cause “the era of the personal blog as a serious academic enterprise [to] come to an end”, as independents are out-competed on quality by “edited blog[s]”.

Unlike prof. Barber, I do not see these developments as something to be wished for. It’s not that I’m against quality, of course ― I try to achieve it with my own posts here. But I know that I occasionally produce bloopers, and suspect that I am not quite alone in this. So I can see the attraction of prof. Barber’s position ― if we think that the most important thing for us (as scholars or as lawyers) is that everything written on law be of high quality. But I don’t think that this is the only thing that matters, and I’m afraid that rather more will be lost ― and perhaps less gained ― in the quest for quality than prof. Barber cares to admit.

For one thing, I’m skeptical about the ability of blogs to “play an editorial role”, at least a meaningful one, in a timely fashion. As they become more institutionalized, less the preserve of enthusiasts who pour the hearts into blogging without counting the hours, and especially if the volume of contributions (and perhaps the competition to get published) increases, as prof. Barber expects that it will, edited blogs will be likely to acquire some of the less pleasant characteristics of the journals, the “glacial” pace among them. The more quality assurance one wants to have ― the more editing and stages of peer review ― the slower the process becomes, until the only time savings over the traditional journals are those made by eliminating printing.

More importantly, the institutionalization of blogs and the disappearance of independent blogging would likely close down an important avenue that is now available to people who lack the exalted status and distinguished credentials of prof. Barber and his fellow contributors to the UK Constitutional Law Blog for communicating their ideas about the law. When I started this blog, I was a graduate student with exactly one academic publication to my name. Nobody would have given me a platform in a serious edited blog. But less than three years later, Double Aspect was named the best law blog in Canada. Paul Daly had a much fuller CV and a higher perch when he started Administrative Law Matters, but he too was “only” a junior academic at that point. Yet within a couple of years his blog was an indispensable resource on public law, and he also won (well deserved, in his case!) recognition as the best in Canada. Independent blogging democratizes academic and professional conversations about law by allowing upstart voices to join in and, just possibly, be heard if they have something interesting to say.

Independent blogging can also be an avenue by which unorthodox ideas that might not pass the test of editorial quality control can be developed. I doubt that any blog editor would have cared much for my early musings about originalism. Two peer-reviewed articles later, I can say that they were not as silly as they might have seemed at the time, though of course the process of working on those articles with Mr. Oliphant involved developing and clarifying my (and his) initial ideas a great deal. But without those early unedited musings, the articles would not have happened. And, to repeat, if I didn’t have my own blog, and had to count on the good will or open mind of an editor ― who would, in the nature of things, be an established, and more or less orthodox, academic ― to get them published, I doubt that they would ever have seen the light of day.

I also think that personal or (relatively) small-group blogs (such as the Volokh Conspiracy or Balkinization) have another advantage over institutional ones: they require, and thus select for, commitment. Institutional blogs make it possible for any given person to contribute at large intervals, perhaps only sporadically. That can of course be a good thing ― people who only sometimes think they have something to say in blog post form have an outlet for those occasions. (For this same reason, I think guest-posts are generally great, and am delighted to have hosted a number of them of the years.) But I do think that there is something to be said for committing to a platform that leaves you no cover and forces you to blog not just now and then, but week in and week out. It’s bloody hard ― as my occasional bouts of silence show, even maniacs like me sometimes find it impossible ― but as with so much else, there are benefits to regular practice. It makes one develop one’s voice and style; it allows one to cover a variety of subjects in some depth; it provides one with a well-developed record of one’s observations and opinions that can be useful for other purposes (like teaching, or simply keeping track of legal developments) in the future.

Even if the personal blog cannot compete with a professionally edited platform for high-level scholarship on pure quality, it has its own, different value. It can be a way for new and rebellious voices to enter into and enliven the conversation. It can be a proving ground for people and ideas. It can be the record of a coherent or developing thought process. In can, in short, be many things that a edited blog cannot. Call me a blogging romantic if you will,

But before I let your steam drill beat me down,
I’d die with a hammer in my hand, Lord, Lord,
I’d die with a hammer in my hand.