The Court of Public Opinion

What is the place of the court of public opinion in the judicial hierarchy? Sometimes, courts of justice are in effect sitting in appeal of judgments of the court of public opinion. This is perhaps the case in defamation cases, and most obviously in cases involving judicial review of the constitutionality of legislation. But sometimes the court of public opinion is higher than the highest courts of justice. A story  reported by Radio-Canada is instructive.

Lassonde, The makers of the Oasis juices sued the makers of “Olivia’s Oasis” soaps to try to prevent them from using this name and to recoup their profits from such use as had already occurred, alleging that the mark was confusing. It lost. But the trial judge not only rejected the suit; in addition, upon a request made by the defendant’s lawyer at the end of the trial, the judge ordered Lassonde to pay the defendant $125,000 – $25,000 in punitive damages, and $100,000 in extra-judicial fees – on the basis of a provision of the Code of Civil Procedure which allows courts to sanction “improper” actions or pleadings. The trial judge found that

[p]laintiffs, using their economic power and experience used a shotgun approach to attack Defendant simultaneously on several fronts with their full might, attempting by the present proceedings to intimidate and thwart Defendant from its legitimate use of its trade name and trade-mark. Obviously Plaintiffs expected that, given the threat which the action represented to Defendant’s very corporate existence, given that Defendant was still a fledgling business, given the projected cost of such proceedings and, given the obvious disparity in the respective power and resources of the parties, that Defendant would retreat and succumb to their demands, and cease using its mark and change its corporate name or, perhaps would ensure its survival and avoid an economically and resource draining battle by signing a licensing agreement with Plaintiffs – as others have done in the past.

Lassonde appealed against this portion of the judgment, and won, in a unanimous decision by the Québec Court of Appeal. The court points out that there was no evidence of bad faith on the part of the appellants, who simply acted consistently with the usual practice in such cases. Besides, there was no evidence to justify the amounts of the damages set by the trial judge (who, indeed, went beyond what the plaintiffs had asked on this point).

End of story? No. La Pressed seized on the story, in a “David against Goliath” report unabashedly sympathetic to the soap-maker which does not once present Lassonde’s position or the views of a lawyer on what constitutes standard practice in such cases. Lassonde’s Facebook page, says Radio-Canada, was deluged with negative comments and even calls for boycott by minor celebrities. Whereupon it swiftly capitulated, and agreed to pay the $125,000.

Thus in a few hours the court of public opinion heard and allowed an appeal from the Québec Court of Appeal, without minding such troublesome technicalities as listening to the other side or looking for evidence of allegations on which a claim is based. And in this instance, its judgment is not subject to appeal.

How to Argue about the Death Penalty

The NY Times has an interesting story today about two men who are leading a campaign in support of a ballot initiative that would abolish the death penalty in California – and who, in 1978, played key roles in the adoption of a ballot initiative that was meant to increase the use of the death penalty. They have changed their minds, and hope the people of California will, too. What is remarkable, beyond this change of heart, is that the reasons they give for it have only to do with the costs of the death penalty system: as one of them puts it, “$185 million a year … to lawyers and criminals.” Not a word about the morality of the death penalty, including the risk of killing innocents. Apparently, it is not a political winner, although this post by Janai Nelson at Concurring Opinions suggests otherwise.

It might seem wrong, perhaps even perverse, to argue about the death penalty without discussing its justice. But such argument actually has a very long history. In his History of the Peloponnesian War, Thucydides  describes the deliberations of the Athenian assembly on the question of what to do with the Mitylenians, who had revolted against them, and whom the Athenians had again subdued. The first debate on the matter was dominated by Cleon, who argued that the entire male population of Mitylene ought to be butchered (a word Thucydides – or his translator – repeatedly uses; no euphemisms here). His argument was in part consequentialist – “teach your other allies by a striking example that the penalty of rebellion is death” – but mostly appealed to the people’s sense of justice, offended by the Mitylenians’ revolt and clarmouring for treason to be punished with death. The next day, however, the opponents of the butchery succeeded in re-opening the debate. Their case was made by Diodotus, on purely consequentialist grounds. Indeed Diodotus argued strenuously that justice had nothing to do with it: “we are not in a court of justice, but in a political assembly; and the question is not justice, but [expediency].” Justice might say the Mitylenians are guilty and deserve capital punishment, but that would serve no useful purpose, contrary to Cleon’s claim. Death penalty is not a good deterrent: “It is probable that in early times the penalties for the greatest offences were less severe, and that as these were disregarded, the penalty of death has been by degrees in most cases arrived at, which is itself disregarded in like manner. Either then some means of terror more terrible than this must be discovered, or it must be owned that this restraint is useless.” On the other hand, mercy would induce future rebels to lay down arms rather than to resist to the bitter end, and thus save Athens blood and treasure. Diodotus’ arguments prevailed, and only the leaders of the Mitylenian rebellion were executed, rather than the entire people.

Perhaps this story need not change our intuitions – if we have any – about the value of purely consequentialist arguments about the death penalty. But they can work in the political arena if not in philosophy seminars, and in cases where the issues of justice are too politically explosive, they might be the only ones about which rational deliberation and changes of mind among the opposing sides’ supporters are possible.