In with the New?

Last week, I suggested that “[n]ew technologies seem not so much to create moral issues as to serve as a new canvass on which to apply our old concerns.” But there is no doubt that our legal rules, unlike perhaps moral ones, need updating when new technology comes along. How this updating is to happen is a difficult question. Lon Fuller, in his great article on “The Forms and Limits of Adjudication,” distinguished “three ways of reaching decisions, of settling disputes, of defining men’s relations to one another,” which he also called “forms of social ordering”: elections (and, one has to assume, resulting legislation), contract, and adjudication. All three can be and are used in developing rules surrounding new technologies, and the distinctions between them are not as sharp as Fuller suggested, because they are very much intertwined. Some recent stories are illustrative.

One is a report in the New York Times about a settlement between an unspecified group of plaintiffs and Facebook regarding Facebook’s approach to what it calls “sponsored stories” which tell us that such and such friends “like” a certain company’s page. Pursuant to the settlement, Facebook “will amend its terms of use to explain that users give the company permission to use their name, profile picture and content [and] offer settings that let users control which of their actions — which individual like, listen, or read — will appear in Sponsored Stories.” More than the (substantial) costs to Facebook, what interests me here is the way in which this settlement establishes or changes a rule – not a legal rule in a positivist sense, but a social rule – regulating the use of individuals’ names and images in advertising, introducing a requirement of consent and opt-out opportunity.

What form of social ordering is at work here? Contract, in an immediate sense, since a settlement is a contract. But adjudication too, in important ways. For one thing, the settlement had to be approved by a court. And for another, and more importantly, it seems more than likely that the negotiation would not have happened outside the context of a lawsuit which it was meant to settle. Starting, or at least credibly threatening, litigation is probably the only way for a group of activists and/or lawyers to get a giant such as Facebook to negotiate with them – in preference to any number of other similar groups – and thus to gain a disproportionate influence on the framing of the rules the group is interested in. Is this influence legitimate? Even apart from legitimacy, is it a good thing from a policy standpoint? For example, how do “we” – or does anyone – know that this particular group is motivated by the public interest and, assuming that it is, capable of evaluating it correctly and of being an effective negotiator? I think these are very troubling questions, but there are also no obvious ways of preventing social ordering through adjudication/negotiation even if we do conclude that it is problematic.

That is because alternative modes of social ordering are themselves flawed. Legislation is slow and thus a problematic response to new and fast-developing technologies. And adjudication (whether in a “pure” form – just letting courts develop rules in the process of deciding cases – or in the shape of more active judicial supervision of negotiated settlements) comes with problems of its own.

One is the subject of a post for Forbes by Timothy B. Lee, who describes how the fact that judges are removed from the communities that are subject to and have to live with the rules that they develop leads them to produce rules that do not correspond to the needs of these communities. One example he gives is that “many computer programmers think they’d be better off without software patents,” yet one of the leading judges who decides cases on whether there should be such patents “doesn’t have a very deep understanding of the concerns of many in the software industry. And, more to the point, he clearly wasn’t very interested in understanding those concerns better or addressing them.” Mr. Lee believes that this would be different if the judges in question happened to have friends or family members among the ranks of software developers. Perhaps – but, as he acknowledges, it is not possible for judges to have personal connections in every walk of life. Even trying to diversify the courts will only do so much. Furthermore, the individual experiences on which Mr. Lee thinks judges should rely might be atypical and thus tend to produce worse, rather than better, rules. Here too, questions about just how much judging ought to be informed by personal experience – as a matter both of policy and of legitimacy – are pressing.

Another set of questions about the courts’ handing of new technologies is the subject of a great paper by Kyle Graham, a professor at Santa Clara University and the author of the entertaining Non Curat Lex blog. Focusing on the development of liability rules surrounding new technologies, and using the examples of some once-new gadgets, mostly cars and planes,  prof. Graham points out that

[t]he liability rules that come to surround an innovation do not spring immediately into existence, final and fully formed. Instead, sometimes there are false starts and lengthy delays in the development of these principles. These detours and stalls result from five recurring features of the interplay between tort law and new technologies … First, the initial batch of cases presented to courts may be atypical of later lawsuits that implicate the innovation, yet relate rules with surprising persistence. Second, these cases may be resolved by reference to analogies that rely on similarities in form, and which do not wear well over time. Third, it may be difficult to isolate the unreasonable risks generated by an innovation from the benefits it is perceived to offer. Fourth, claims by early adopters of the technology may be more difficult to recover upon than those that arise later, once the technology develops a mainstream audience. Fifth, and finally, with regard to any particular innovation, it may be impossible to predict whether, and for how long, the recurring themes within tort law and its application that tend to yield a “grace” period for an invention will prevail over those tendencies with the opposite effect. (102)

I conclude, with my customary optimism, that there seem to be no good ways of developing rules surrounding new technologies, though there is a great variety of bad ones. But some rules there must be, so we need to learn to live with rotten ones.

La primauté de la législation

La semaine dernière, la Cour supérieure du Québec a rejeté la demande visant, entre autres, à faire déclarer inconstitutionnelle la “Loi 204”, qui exempte rétroactivement l’entente sur la gestion du futur amphithéâtre de Québec, conclue entre la ville de Québec et Qubecor, de l’exigence d’un appel d’offre (dans la mesure où cette exigence s’y appliquait, ce que la ville a toujours nié), dans De Belleval c. Québec (Ville de), 2012 QCCS 2668. Les demandeurs avaient formulé une multitude d’arguments constitutionnels à l’encontre de la loi. Ils soutenaient qu’elle violait la primauté du droit, notamment en raison de son caractère rétroactif, ainsi que la Charte canadienne des droits et libertés et la Charte des droits et libertés de la personne (québécoise), en enfreignant leurs droits à la liberté de conscience et à la liberté d’expression, à la sécurité, à un procès équitable, et aussi en étant vague et excessive. Une si longue liste de prétentions est généralement un mauvais signe – un signe de désespoir sinon d’incompétence de l’avocat – et elle l’a été en l’espèce. Le juge Jacques n’a pas été persuadé.

L’argument le plus étoffé des demandeurs portait sur la rétroactivité de la Loi 204. La plupart des philosophes du droit qui se sont penchés sur  la primauté du droit considère la non-rétroactivité du droit comme un élément essentiel de ce principe. Le droit est censé guider l’action de ses sujets. Or, une loi rétroactive, qui applique certaines conséquences à des actions déjà commises, ne saurait le faire. De plus, comme l’a fait remarquer notamment Lon Fuller, elle remet en cause l’intégrité des autres lois en vigueur, laissant entendre qu’elles sont susceptibles d’amendement rétroactif. Même une loi rétroactive qui accorde des bénéfices ou écarte les sanctions (plutôt que d’en imposer), comme la Loi 204, peut être problématique à bien des égards, comme le soutient Jeremy Waldron dans un article intitulé “Retroactive Law: How Dodgy Was Duynhoven“. La rétroactivité est une des critiques les plus communes de la common law ou du droit prétorien en général, par exemple dans la célèbre formulation de Jeremy Bentham, qui comparait la common law à la “loi” qu’un homme donne à son chien en le battant pour une transgression quelconque (dont le chien n’avait évidemment pas idée qu’il s’agissait d’une transgression), et les défenseurs de la common law, tels que Ronald Dworkin et F.A. Hayek, font beaucoup d’efforts pour repousser cette attaque.

Cependant, la jurisprudence canadienne est claire. Outre la garantie de la non-imposition de sanctions criminelles rétroactives à l’alinéa 11(g) de la Charte canadienne, rien n’empêche les législatures canadienne de légiférer de façon rétroactive. C’est l’enseignement, par exemple, de l’arrêt de la Cour suprême Colombie‑Britannique c. Imperial Tobacco Canada Ltée, 2005 CSC 49, [2005] 2 R.C.S. 473, où la Cour à jugé constitutionnelle une loi créant rétroactivement un recours permettant au gouvernement de recouvrer les dépenses causées par le tabagisme. Le juge Jacques rejette donc l’argument fondé sur la rétroactivité – avec raison, eu égard à la jurisprudence qui le liait (et qu’il ne manifeste, du reste, aucune envie de remettre en question).

Cette jurisprudence, à mon avis, est un désastre. Le grand A.V. Dicey qui, à la fin du 19e siècle, faisait l’éloge à la fois de la “souveraineté du Parlement” et de la primauté du droit (qu’il a été le premier à étudier de façon systématique), s’en serait félicité. (Ce n’est pas une coïncidence que Dicey était plutôt favorable aux “indemnity acts” – des lois rétroactives écartant des sanctions que le droit normalement en vigueur attache à certains actes, similaires la Loi 204.) Cependant, les opinions académiques sur la primauté du droit ont bien changé depuis un siècle. Or, les tribunaux canadiens ont toujours une compréhension très étroite de la primauté du droit, la limitant à l’exigence de l’existence de règles de droit et d’une autorisation juridique pour toute action gouvernementale, mais excluant – sauf garantie constitutionnelle explicite – tout autre exigence de forme, de procédure ou de fond que la primauté droit, telle que comprise par les philosophes du droit, impose aux législatures (et que le professeur Waldron revoit, par exemple, ici).

Les autres arguments des demandeurs sont rejetés encore plus facilement. La Loi 204 ne limite pas leur liberté de conscience ou d’expression, puisqu’elle ne les empêche pas de s’exprimer. Elle ne menace en rien leur sécurité. Elle ne les prive pas de leur droit d’ester en justice, même si elle change le droit applicable au litige qu’ils ont amorcé. Elle n’est ni vague ni excessive. Il est difficile de voir sur quoi étaient fondées ces prétentions, et il n’est pas surprenant qu’elles soient rejetées.

Le problème de la Loi 204, sur le plans des principes juridiques, c’est bien sa rétroactivité, et aussi son manque criant de généralité, une autre exigence classique de la primauté du droit que les tribunaux canadiens ne reconnaissent pas. On pourrait dire qu’au lieu de la primauté du droit, la jurisprudence canadienne, très réticente à censurer les législatures, donne effet à la primauté de la législation.

The Best and the Rest

A friend has drawn my attention to what seems like an interesting book, Laughing at the Gods: Great Judges and How They Made the Common Law by Allan C. Huntchinson, a professor at Osgoode Hall. I haven’t had a chance to start reading it yet but I will eventually, because prof. Hutchinson’s topic is directly relevant to my doctoral dissertation’s topic – judges and the way in which they shape the law. But while my idea is that such a study has to start with systemic factors – the ways in which the environment in which judges work (generally accepted ideas of what a judge ought to do, the institution of courts, rules of procedure) constrain them and influence their work, the sources of the rules judges apply, the differences of the judges’ approaches to various areas of the law – prof. Hutchinson’s study is about individuals.

As the blurb on the publisher’s website says, “[a]ny effort to understand how law works has to take seriously its main players – judges. Like any performance, judging should be evaluated by reference to those who are its best exponents.” The book is about “candidates for a judicial hall of fame,” “game changers who oblige us to rethink what it is to be a good judge” – starting with Lord Mansfield, and on to mostly predictable greats such as Oliver Wendell Holmes, Lord Atkin, and Lord Denning. The only Canadian in the list is Justice Bertha Wilson.

As I wrote here a while ago, “judicial greatness, as greatness in anything else, is probably impossible to define in any way that would not generate serious disagreement. But that’s precisely what makes trying to define it, and coming up with lists of greats, so entertaining.” So I’m sure that a book trying to understand judicial work by defining and selecting case studies of judicial greatness was good fun to work on, and has the potential of being good fun to read. And yet I wonder if it is a profitable way of achieving its stated aim of understanding how the law works.

That’s because I doubt that “any performance …  should be evaluated by” looking at the best performers. For one thing, understanding any human activity is, arguably, a study in mediocrity more than in greatness. If you want to understand tennis, it is not enough to watch Roger Federer, Novak Djokovic, and Rafael Nadal. That will teach you how it ought to be done, but tells you nothing at all about how tennis is in fact played by everyone else on the planet. And the point is starker still if we leave the realm of activities that are pursued primarily for the sake of excellence, such as competitive sports and performing arts. Other activities – think of cooking for example – are mostly pursued not for the sake of excellence, but in order to satisfy some practical need. By studying examples of excellence in such activities, one does not even learn what people who undertake them typically aim for, even in their dreams, still less what they usually achieve.  Judging is like that. Its primary purpose is not to achieve greatness, but simply to settle disputes, many of them quite trivial. A lot of it happens every day, most of it good enough to do the job, but by no means remarkable. Studying great judges tells you little descriptively about what judging usually is, and perhaps not much normatively about what it ought to be.

The other point that any study of a human activity through the examination of its outstanding representatives misses is the rule-bound nature of most human undertakings. To return to my tennis example again, a book about it surely has got to start with a description of the rules of the game, not with the biographies of great players. Of course you might be able to figure out some (in the case of tennis, probably most) of the rules by watching great matches, but understanding the rules of the game first will help you appreciate and understand what is going on and what is so great about it. You will also need some understanding of the means at the players’ disposal  – their equipment, say, or even the human body. Suppose you’re an alien with teleportation abilities who doesn’t understand how human beings move around. Chances are you won’t admire Rafa Nadal’s running – you’ll think he’s an idiot. It is a rather convoluted example, but when it comes to judging, we are to some extent in the position of that alien. Most legal thinkers seem not to have much of an appreciation for the rules of the judicial game or for the limits the judges’ position imposes on what they can do. Of course these rules are controversial and these limits are uncertain. But it seems to me that a truly informative study of judging has to begin by discussing them.

There is of course a danger in methodological critiques such as this one. Instead of engaging with the story a scholar tells, the critic in effect tells him that he ought to have written a different kind of story, which (almost) invariably happens to be just the kind of story the critic himself is working on. That’s exactly what I’ve done here. Yet if that caveat is right, then perhaps there us substantive value in my criticism, despite its dubious and self-serving methodology!

Can the Viceroy Do Wrong?

Radio-Canada reports that Québec’s former Lieutenant-Governor, Lise Thibault, is trying to avoid having to stand trial on charges of fraud, forgery, and breach of trust, by invoking the common law rule that the Queen can do no wrong. As her lawyer puts it, criminal proceedings oppose the sovereign and the subject, and the sovereign cannot possibly sue herself. And since the charges against Mrs. Thibault relate to her time in office as the Queen’s representative in Québec, that’s what would happen if the case is allowed to go ahead.

Mrs. Thibault’s previous lawyer is apparently skeptical of the odds of her motion succeeding. So is professor Henri Brun, from Laval, whom Radio-Canada quotes saying that the principle applied in civil law―75 years ago―but criminal law is different. “As soon as a public officer commits a criminal act, he is no longer acting within his mandate; he cannot hide behind the government, behind the state” (translation mine).

That seems a little too quick. My own (admittedly quick and probably cursory) research shows that the rule that the Queen―or King―can do no wrong is, in principle, one of civil as well as one of criminal law. The Queen can do no criminal wrong, just as she can do no civil wrong. That’s the traditional common law rule, as it stood in, say, Blackstone’s time. But its import is limited in two important ways.

One is that mentioned by prof. Brun – public officers―or, to use older language, the Crown’s servants―can be sued in their personal capacity for committing criminal or tortious acts. But the question, it seems to me, is whether a Lieutenant-Governor is a public officer. This is not an area in which I am very knowledgeable, but I think that the Queen herself is not―she is not a servant of the Crown. That her servants can be criminally liable does not mean that she can. Mrs. Thibault’s argument is that she is in the same position―that she is, as it were, the Queen’s alter ego rather than her servant. I do not know whether that is correct.

The second limitation on the rule that the Queen can do no wrong has come mostly from statutes adopted by all (to the best of my knowledge) common law jurisdictions, allowing lawsuits against the Crown itself as if it were an ordinary person. Courts too have chipped away at the Crown’s immunity. But these developments, both statutory and common law, have concerned civil proceedings, not criminal.  The Criminal Code, for example, does not contain a provision making it applicable to the Crown.

So if the Lieutenant-Governor is more than a mere servant of the Crown, but rather its full-blooded personification, Mrs. Thibault might have a case. If the question has never been decided though, there are surely very good reasons to opt for a restrictive interpretation of what the Crown really is. “The Queen can do no wrong” is an anachronistic rule, and its development over the last century has been a course of consistent narrowing of its ambit.

Indeed, even if there is precedent standing for the proposition that the rule protects the Lieutenant-Governor from criminal liability, the courts might want to overturn it.

Although there is something worrying in courts abolishing defences that shield the accused from liability, which is necessarily retroactive as to the accused in whose case it happens, they have sometimes done it. Two examples are the British decision of R. v. R., [1992] 1 A.C. 599, in which the House of Lords abolished the common law rule according to which a husband could not be guilty of rape against his wife, and the American case of Rogers v. Tennessee, 532 U.S. 541 (2001), in which a sharply divided Supreme Court did away with the rule pursuant to which an accused could not be guilty of murder if the victim died more that one year and one day after the accused injured him, even though the injuries were the cause of the death. The grounds for these two rules disappeared thanks to the evolution of social morality in the first case and of medical science in the second, so that despite a certain queasiness, courts felt themselves justified in changing the common law to reflect these developments.

The common law rule that “the Queen can do no wrong” is arguably ripe for judicial intervention. Not perhaps in civil matters, where legislatures have made their own choices, which courts must respect, especially since state liability has considerable policy implications which courts might not be able to grasp. But in the narrow field of criminal offences committed by viceroys, these considerations do not apply, and there is no reason for the courts to stay their hand.

Law Like Love

“What is law like? What can we compare it with in order to illuminate its character and suggest answers to some of the perennial questions of jurisprudence?”

That’s the opening of Jeremy Waldron’s “Planning for Legality,” 109 Mich. L. Rev. 883 (2010), a review of Scott Shapiro’s book Legality. When I read it recently, it immediately reminded me of W.H. Auden’s magnificent poem, “Law Like Love,” where Auden suggests that the question is perhaps absurd, but irresistible. Here’s a recording of Auden reading it.

I don’t know if Waldron’s line is a deliberate allusion. But my guess is that it is not. Law review articles, after all, are not Umberto Eco’s novels. They deal in footnotes, not allusions. If I’m right about this, I think it confirms just how brilliant Auden’s poem is – not only as a matter of literary merit, but also in that it is the best summary of the field of legal philosophy ever produced.

Drop That Gun! (But Keep the Bullets)

The Superior Court of Ontario has recently delivered its decision in The Queen v. Montague, 2012 ONSC 2300, an interesting case at the intersection of the topics property rights, and gun rights, about which I wrote here and here. In fact, in the latter post, I had mentioned a previous decision in this case, by the Ontario Court of Appeal, rejecting a challenge to the constitutionality of Canadian firearms law based mostly on the English Bill of Rights, 1689. The accused, William and Donna Montague (William, mostly), had been found guilty of a variety of firearms-related offences; they had deliberately let their licences and registration for their firearms lapse. Hundreds of weapons and tens of thousands of rounds of ammunition had been be seized at their residence. Following their convictions, the Crown applied for forfeiture of the weapons and ammunition, worth over $100,000, pursuant to par. 491(1)(b) of the Criminal Code, which provides that firearms and ammunition (inter alia) involved in or which are the subject matter of an offence, if it has been seized, “is for forfeited to Her Majesty and shall be disposed of as the Attorney General directs.”

The Montagues argued that the application of this provision, at least in their circumstances, would infringe their property rights protected by the par. 1(a) of the Canadian Bill of Rights. In their view, forfeiture – that is, a form of expropriation without compensation – should not be imposed automatically and for an offence which is a malum prohibitum rather than a malum in se. In such cases, “due process of law” – which the Canadian Bill of Rights makes a condition on any deprivation of property – requires a judge to have discretion to order that the property subject to par. 491(1)(b) of the Criminal Code be disposed of otherwise than by forfeiture (for example by transferring legal title to it to a trustee who would sell it for the former owners’ benefit). They also raised, in passing it would seem, ss. 7 and 12 of the Charter.

Justice Wright’s reasons are somewhat muddled―indeed it is not quite clear where he is summarizing the Crown’s position and where he is giving his own analysis of the issue. However, his conclusion is that “in a proper case s. 491(1)(b) of the Criminal Code might well be ‘construed and applied as not to abrogate, abridge, or infringe or to authorize the abrogation, abridgement or infringement’  of the accused’s right to enjoyment of property,” as s. 2 of the Canadian Bill of Rights requires. What this seems to mean is not that courts should only apply the Canadian Bill of Rights “in a proper case”―it’s a law after all, and must always be applied―but rather that “in a proper case” a court might exercise its discretion in the way suggested by the Montagues.

I doubt the soundness of this conclusion as a matter of black-letter law. As either Justice Wright or the Crown – unfortunately it is not clear which – notes, a notion of “substantive due process” has not, so far, been recognized in Canadian law. (Though of course “principles of fundamental justice” in s. 7 of the Charter are very substantive indeed. Yet the Supreme Court, in deciding, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that they were so, made much of the fact that the Charter‘s drafters did not use the expression “due process”.)

As a matter of legal philosophy things are a bit more complicated. Jeremy Waldron argues persuasively that hearings and an opportunity to make submissions are a necessary part of any legal regime worth the name. Yet I do not think that this condemns automatic sanctions, be they forfeitures or―in different cases – mandatory prison sentences (such as the mandatory term of life imprisonment which the Criminal Code imposes for murder), on the basis that such sanctions are not properly legal. I do not think that every legal consequence of every fact need be up for argument, so long as the actual existence of the fact is required to be established in accordance with a good legal procedure. Such sanctions might be too harsh, but that is a different story. The claim that the concept of law or the Rule of Law has substantive (and not only formal and procedural) qualifications is very controversial; I, for one, do not buy it.

Be that as it may, Justice Wright refuses to exercise his new-found discretion to save the Montagues from the forfeiture of their firearms:

[41]      The firearms do not present a case where a citizen has unwittingly become embroiled in bureaucratic “red tape”.  They do not present a case where the forfeiture is so overwhelmingly disproportional to the offense that justice cries out for a remedy.

[42]      The firearms present a case where a knowledgeable individual cold bloodedly and with knowledge of the potential consequences deliberately and publicly broke the law. Courts cannot stand by and appear to condone such behavior. Civil Society is entitled to defend itself. Civil disobedience as a political technique is only morally justifiable and thus eligible for the protection of the court where the perpetrator has been denied access to the political institutions of the nation. This was the case at the time of Gandhi. This was the case at the time of Martin Luther King, Jr. They had no alternative other than violence which they both eschewed. Notwithstanding this, both of these individuals understood the needs of society and accepted the consequences of their civil disobedience.

He does exercise it, however, to reject the forfeiture of some of the ammunition, on the ground that it was not actually illegally stored. The jury found otherwise – but that, he says, is because they were not informed of the relevant regulations at trial. I’m not sure about the propriety of this intervention, even assuming that Justice Wright is correct about having the necessary discretion. I do not know enough, really, to form an opinion on this point. If you do, I would love to hear yours.

A Pull Towards Goodness?

WARNING: This post is an adapted version of a passage in my “candidacy paper,” which is meant eventually to be part of the first chapter of my dissertation. Caveat lector.

***

Explaining their decisions is an important part of the judges’ work. It is valuable for all sorts of reasons. It forces judges to be honest – not just with the parties and their colleagues, but also, and perhaps most importantly, with themselves – about the issues at stake and the reasons that lead them to resolve the issues this way or that. It reassures the parties that the court has listened to their arguments and given them some thought, even if it ultimately rejected them. It makes judicial decisions more public, more transparent, and more amenable to criticism (and eventually reform). In these different ways it also disciplines the judges – it forces them to produce decisions that are more legally sound, because they address the relevant legal issues and materials. But could it do even more?

Some theorists, notably Lon Fuller, have argued reason-giving can make judicial decisions not merely legally sounder, but also better on some substantive criterion. As Fuller wrote in the context of his famous debate with H.L.A. Hart, “when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness.”  (Lon L. Fuller, “Positivism and Fidelity to Law-A Reply to Professor Hart”, (1958) 71 Harv. L. Rev. 630, 636 .) In a similar vein, in an interesting (and/but incredibly romantic) essay on the role of the judge in relation to the corpus juris, especially in a common law system, Sarah M.R. Cravens contends that, as part of “virtuous judging,” reason-giving can help “take decision-making beyond simply the legally correct” and “is a component of a larger cycle that defines, develops, and achieves justice.” (1643)

Is that right? I am very skeptical, despite my sympathy for the view of law, and especially the common law, as inherently valuable and good. Fuller might just be right that reason-giving cannot lead “toward a more perfect realization of iniquity,” (636) because iniquity dares not speak its name, although we know that it does sometimes, as for example in Justice Holmes’ opinion in Buck v. Bell, which I described as “angry [and] heartless” here. But there is a great deal of disagreement about what iniquity is, and even more about what goodness or justice are, making it impossible to say whether reason-giving, or any other practice, actually helps realizing them. One way around this problem is to say, as Prof. Cravens seems to, that goodness or justice are to be found within the four corners of the legal system itself, so that reason-giving helps achieve them merely by situating judicial decisions within the system, but surely many will dispute that the our legal system, as it currently exists, is substantively good or just.

The most that can be said is that the existence of a legal system, or more specifically of a body of law comprising and connecting individual judicial decisions, is itself valuable and good, as for example Jeremy Waldron argues in his essay on “The Concept and the Rule of Law.” Fuller (and probably prof. Cravens) would agree with that claim, but his (and her) view goes rather beyond it and, much as I admire him, I cannot follow him there.

What Makes a Judge Great?

Most students of law – not just law students – probably have a favourite judge, or judges. Someone whose judicial performance – his or her decisions and opinions – we regard as outstanding and exemplary. But what is it that makes a judge great? Or, more modestly, what makes a judge good?

There several ways to think about this, as Lawrence Solum argues in a number of papers, for example this one. An obvious one is to say that a judge is good because he happens to agree with you, or you with him or, to put the point more generally, to make adherence to some standard of substantive justice or to some decision-making procedure, whatever you happen to find most attractive. So if your preferred standard of substantive justice is a commitment to civil liberties, you will think that Justice Fish of the Supreme Court of Canada is great. If your favoured decision-making procedure is looking for original intent, you will be an admirer of Justice Scalia of the US Supreme Court.

Another way of thinking about judicial excellence, which Lawrence Solum advocates, is in terms of “judicial virtues” (and vices). A good judge is one who has the peculiar virtues the judicial office requires; an excellent judge is one who has these virtues to an exceptional degree. But what are these virtues? Solum lists quite a few in his various papers on the topic:

(1) incorruptibility and judicial sobriety; (2) civic courage; (3) judicial temperment and impartiality; (4) diligence and carefulness; (5) judicial intelligence and learnedness; (6) judicial craft and skill; (7) justice; and (8) practical wisdom.

(I am lifting the list from the abstract of an essay called “A Tournament of Virtue.”)

Richard Posner, in his book on How Judges Think, has a list of judicial vices, some (but perhaps not all) of which are the opposites of some of Solum’s virtues. Posner observes that

[o]ne cannot be regarded as a good judges if one takes bribes, decides cases by flipping a coin, falls asleep in the courtroom, ignores legal doctrine, cannot make up one’s mind, bases decisions on the personal attractiveness or unattractiveness of the litigants or their lawyers, or decides cases on the basis of “politics” (depending on how that slippery word is defined).

The problem, as Solum recognizes, is that many of these virtues are strongly contested.

Take one that might seem obvious: justice. For one thing, it has a range of meanings, from the very thin “natural justice” (consisting of two Latin maxims, audi alteram partem and nemo judex in causa sua), to Aristotelean equity (knowing when to make an exception to a too-general rule), to the always contested substantive visions of justice. But even justice’s being a judicial virtue is sometimes denied, perhaps most famously by Oliver Wendell Holmes who, according to Learned Hand, responded to the latter’s exhortation to “do justice” by sternly observing that that was not his job. And Justice Holmes would, I suspect, make anyone’s list of judicial greats. The one great stain on his name, his angry, heartless “[t]hree generations of imbeciles are enough” opinion for the majority in Buck v. Bell (upholding a law providing for forced sterilization of “mental defectives”) is, it seems to me, a failure not so much of justice as of empathy or of detachment from one’s ideological commitments.

There might be other ways of thinking about judicial greatness too, not captured by the theories I have so far discussed. For example, we might think that a great judge is an original thinker (one reason I admire Justice Beetz, for example), or a particularly good writer (one reason, though of course not the only one, Lord Denning is everybody’s favourite). I don’t think that either originality or literary talent are necessary to be a good (as opposed to excellent) judge, so I would hesitate to qualify them as judicial virtues.

The moral of the story, if there is indeed a story here and if it actually has a moral, is that judicial greatness, as greatness in anything else, is probably impossible to define in any way that would not generate serious disagreement. But that’s precisely what makes trying to define it, and coming up with lists of greats, so entertaining, isn’t it?

A Person Yoda Is?

In today’s Legal Theory Lexicon entry on “Persons and Personhood”, Larry Solum suggests that if

an intelligent alien species were to arrive on Earth … [and] the members of the aliens displayed evidence of human-like intelligence and could communicate with us (e.g. were able to master a human natural language, such as English), then we might be tempted to treat members of this species as morally and/or legally entitled to the same rights as humans.

He also gives the example of “Chewbacca and Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe.”

As it happens, the issue whether aliens able to communicate with us should be entitled to legal personality has in fact been raised in a Canadian Court. In the case of Joly v. Pelletier, [1999] O.J. No. 1728 (QL), Justice Epstein of the Superior Court of Ontario granted the defendants’ motion to dismiss on the ground that the plaintiff, who claimed that he was not a human being but rather a Martian whose DNA test results were being tampered with by the CIA, Bill Clinton, and sundry others, was not a person, and therefore not capable of being a “plaintiff” within the meaning of Ontario’s Rules of Civil Procedure!

For what it’s worth, I think that Professor Solum is right, and Justice Epstein, rather too formalistic, albeit quite amusing. But this raises further questions. If an individual intelligent alien is a person, what about collective intelligences, whether made up of insects (as in Isaac Asimov’s short story “Hallucination“) or bacteria (as in Asimov’s novel Nemesis)? What about a collective artificial intelligence (as in Stanislaw Lem’s novel The Invincible)? And perhaps most importantly: could any alien crazy enough to turn up on Earth these days be considered intelligent?

Privacy in the Past, Present, and Future

Our own actions – individual and collective – set the upper limit of our privacy rights. We will never have more privacy rights than we care to have, although we often have fewer. One stark illustration of this idea comes in Isaac Asimov’s short story “The Dead Past,” in which a group of scientists build and, despite the government’s best efforts, thoughtlessly disseminate the instructions for building a “chronoscope” – a machine for viewing any events in the (recent) past. Their original purpose was historical research, but the chronoscope is not very useful for that; what it is very good for is snooping and voyeurism. The story ends with the government official who tried and failed to stop the protagonists wishing “[h]appy goldfish bowl to you, to me, to everyone.”

The internet, especially Web 2.0, is (almost) as good as the chronoscope, argues Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit, in a short essay published in the Stanford Law Review Online. It also allows everyone to learn all about anyone, provided that the person – or indeed someone else – posted the information on the internet at some point. And the fact that people share their every thought and deed online shapes society’s expectations of privacy, which are the key to what constitutional protections we have in this area. Those parts of our lives which we do not expect to be private are not protected from observation at will by the government. And if we do not expect anything to be private, then nothing will be.

“Reasonable expectations of privacy” are also key to defining privacy rights under the Canadian Charter of Rights and Freedoms. The Supreme Court’s latest engagement with the question of just what expectations of privacy are reasonable, in R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, produced something of a mess. The issue was whether the installation without a warrant of a device that measures the electricity consumption of a house breached the owner’s reasonable expectation of privacy. Four judges said no, because general information about electricity consumption does not reveal enough to make it private. Three said no because the law entitled to owner to ask the utility not to hand over such information to the police, and he had not exercised this right. Two said that the information was private. But what seems clear is that for Canadian law too, what we think about our privacy and what we do about it, individually and collectively, matters.

Are we then doomed, as Judge Kozinski suggests we might be? Perhaps not. With respect, his claims are a little too pessimistic. Judge Kozinski collects a great many frightening anecdotes about people’s willingness to wash their – and others’ – dirty laundry in public. But anecdotes seldom justify sweeping conclusions. And some studies at least seem to show that people do care about their privacy more than the pessimists assume,  if not always in ways or to an extent that would satisfy the pessimists. Old expectations of privacy might be fading, but new ones could emerge, along different lines. Judge Kozinski is right that the law cannot do much to protect people who do not care. But we must hope that he and his colleagues, as well as legislators on both sides of the 49th parallel, will be mindful of the possibility that changes in privacy expectations can go in both directions.