Legal Self-Services

Jim Gardner, of SUNY Buffalo, has an interesting post at The Faculty Lounge, arguing that

[t]he capacity to acquire information, shop, travel, and do almost anything without human intermediation is conceived as a right, or at least a new baseline norm.  Insistence upon the necessity of human interaction as a condition for completing a transaction is now the deviation requiring justification.  At the same time, whether human adjuncts to transactions add value seems to be a matter of deep skepticism.

This certainly rings a bell. For what it’s worth, I usually prefer finding information myself (online) to asking for it; I am annoyed when I have to go to a bank teller instead of just using an ATM; and so on. (Though, unlike in prof. Gardner’s most extreme example, I have not taken to resolving disagreements with my room-mate via texting.) In prof. Gardner’s view, this creates problems for legal education (because students are skeptical about the value of human educators and advisers) and is bound to create problems for lawyers who, imbued with this self-service mentality, might lack the personal skills necessary to be professional, effective “human adjuncts”.

But there is another way in which the self-service mentality is already affecting the legal profession. As anyone involved with the legal system probably knows, it is increasingly common for litigants to represent themselves, causing no end of grief to themselves and serious troubles to lawyers and judges who have to deal with them. And while the cost of legal services, and lack of funding for legal aid (especially in civil matters) is a major cause of this problem, it is not the only one. People choose to forego professional assistance, even when they could afford it. They take false confidence from the availability of a great deal of legal information on the internet. The emergence of the self-service mentality described by prof. Gardner helps explain why.

But although share that mentality myself, it is important to stress that when it comes to law – as probably in at least some (though surely not all) other areas – it is a dangerous one. For people who choose to represent themselves rather than rely on a lawyer, consequences tend to be sad. As I wrote here,

law and justice, as any first-year law student learns, are very different beasts. CanLII might succeed in its stated goal, which “is to make Canadian law accessible for free on the Internet.” Yet it seems that by making law freely accessible, such resources give people a false sense of being able to succeed in the legal system without professional help, and even without more than a very superficial acquaintance with it, which leads them to fail to get the justice, if any, that the system could give them if used properly.

As I said back then, if you can help it, don’t try it at home.

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My apologies for the lack of posts lately. There seems to be little going on worth posting about, or perhaps my brain is in aestivation.

The Prerogative of High-Handedness

Today, the Federal Court of Canada has issued its decision in Turp v. Canada (Justice), 2012 FC 893, rejecting Daniel Turp’s challenge to the federal government’s decision to withdraw Canada from the Kyoto Protocol. Unambiguously correct in law, this decision illustrates the importance of politics, and the limits of the power of the courts to hold governments to account.

Mr. Turp contended that the decision to withdraw from the Kyoto Protocol was a violation of the Kyoto Protocol Implementation Act (KPIA) enacted by Parliament in 2007 and of the constitutional principles of the Rule of Law, separation of powers, and democracy. The government argued that it acted pursuant to the royal prerogative which gives the executive broad authority to conduct foreign affairs, including to enter in and withdraw from treaties, and that constitutional principles did not reduce this discretion.

The court acknowledged that a statute such as the KPIA can limit royal prerogative and direct the government’s action in an area where the prerogative, in the absence of legislation, would have made it discretionary. Such a limitation must, however, be expressed with some (though it is perhaps not clear how much) clarity. After examining the KPIA, the court finds that it simply does not do this. While its stated purpose is to ensure that Canada meets its obligations under the Kyoto protocol, the court points out that “the government’s decision to withdraw from the Protocol is clearly provided by article 27 of that Protocol and thus the government was in compliance with it.” Furthermore, the obligations the KPIA itself imposed on the government were not justiciable, and the statute has anyway now been repealed. There is no violation either of the statute or of the Rule of Law principle.

The court made short work of the remaining arguments based on the principles of separation of powers and democracy. Separation of powers is not infringed since the power to decide to withdraw from the Kyoto Protocol remained with the executive, not having been removed from it by statute. And any decision to consult Parliament, as the government had done before ratifying the Kyoto Protocol in 2002, is strictly voluntary. It is not constitutionally required.

In the realm of foreign policy, the government is for the most part constitutionally free to be stupid, to be high-handed, to act in disregard of Parliament’s wishes. It is for Parliament, and ultimately for the voters, to find remedies for these problems. Mr. Turp apparently intends to appeal, but he would be well advised not to waste his time and money on judicial battles, and to save his energy for politics.

Googling Justice

Law review articles don’t make newspapers very often. But they do sometimes, as I noted in a post discussing the use of a certain four-letter word by Supreme Courts in the U.S. and Canada. Another example is a very interesting forthcoming paper by Allison Orr Larsen, of the William & Mary School of Law, called “Confronting Supreme Court Fact Finding,” which is the subject of a recent Washington Post story.

What seems to have piqued the Post‘s interest was the reference, in a fiery dissent by Justice Scalia in Arizona v. United States, to an newspaper article published after the oral argument in that case. The article was obviously not referred to by any of the submissions to the court. Justice Scalia, or one of his clerks, found it himself. Never mind the political controversy around Justice Scalia’s comments; “let’s … focus on a different lesson,” says the Post. “[U.S.] Supreme Court justices Google just like the rest of us.”

Indeed they do, writes prof. Larsen, and very frequently. She found more than 100 examples of judicial citations of sources not referred in the record in the opinions of the U.S. Supreme Court issued in the last 15 years; and such citations might be especially frequent in high-profile cases. While the rules of evidence require judges to keep to the evidence put to them by the parties, and appellate courts to the facts found at trial, for the “adjudicative facts” of a case – who did what, where, when, to whom, with what intention, etc. – these limits do not apply to “legislative facts” – general facts about the world or, more specifically, the social (and scientific) context in which legal rules operate.

As prof. Larsen notes, “[i]ndependent judicial research of legislative facts is certainly not a new phenomenon” (6). But new technologies are game-changers, because they make it so much easier. “Social science studies, raw statistics, and other data are all just a Google search away. If the Justices want more empirical support for a factual dimension of their argument, they can find it easily and without the help of anyone outside of the Supreme Court building” (6). If the parties (and interveners) to a case did not provide them with as much contextual information as they would have liked, judges used to have to rely on their own knowledge of the world, or guess, in order to figure out the context in which the rules they applied operated, and present their conclusion as, essentially, bald assertions. No longer. Now they can easily find what someone else has written on whatever topic interests them, and provide that person’s work as a source – an authority – for their assertions.

Prof. Larsen argues that this raises several problems, which the law at present fails to address. One is the risk of mistake. What if the information judges find is wrong or unreliable? Normally, we trust that the adversarial process will allow the parties to point out mistakes in the evidence submitted by their opponents. But if the judges engage in “in-house” fact-finding, there is no one to call them on the errors they might – and surely will – make. What makes the problem even worse is that human psychology and, possibly, technology, can conspire to make the results of judicial investigations biased. It is well-known that we tend to look (harder) for information that supports our hunches (rather) than for that which disproves it. But now, in addition, it is possible for search engine algorithms to supply us with information that suits our (likely) biases as inferred from our previous online activity. There is, apparently, debate over whether Google actually does this, but at least the possibility is there and ought to be worrying. Last but not least, in addition to the problems of error and bias, judicial reliance on “in-house” research is unfair to the parties, who have no notice of what the judges are doing and no opportunity to challenge their findings or even to address their concerns.

In fairness, it’s not as if the old common sense, logic, and bald assertion way of “finding” legislative facts were problem-free. Perhaps, at some point in the past, their experience as litigators was sufficient to teach future judges all they needed to know about the world (though that’s very doubtful). It surely isn’t anymore (as I wrote, for example, here). And bald assertions of judicial common sense are hardly less unfair to the parties, or less affected by bias (class bias for example), than their autonomous research. I don’t know if it is possible to establish with any sort of confidence whether the problems the new resources at the judges’ disposal are creating are worse than those they are displacing. But perhaps it is worth trying.

Another thing I don’t know is whether these problems might be less acute in Canada than they are in the United States. I don’t have any hard numbers, but my impression is that our Supreme Court might cite fewer problematic sources for its legislative-fact-finding. It often relies on the governmental studies, which I suppose are easily available to the parties and surely are (or really, really ought to be) part of the record. I may be wrong about this though. That would be a feasible study, and an interesting one to undertake, but for now, I do not have the time to do so. I would love to hear from those in the know though, former Supreme Court clerks for example.

Independence Enough Day

Ontario’s Small Claims Court relies on the work of 400 “deputy judges” – practising lawyers who take up part-time judging gigs, for an average of 19 sitting days a year. Subs. 32(1) of the the Courts of Justice Act provides that they are appointed by “[a] regional senior judge of the Superior Court of Justice … with the approval of the Attorney General,” for a three-year term if the deputy judge is younger than 65, or a one-year terms if he or she is older (subss. 32(2) and 32(3)). Subs. 32(4) provides that the appointments are renewable “by a regional senior judge of the Superior Court.” The Ontario Deputy Judges’ Association challenged the constitutionality of the reappointment provision, arguing that it compromised the court’s independence. Last week, Ontario’s Court of Appeal issued reasons for its rejection of the challenge, in Ontario Deputy Judges’ Association v. Ontario (Attorney General), 2012 ONCA 437.

The deputy judges’ sole argument was that the process of reappointment at the discretion of a regional senior judges did not appear to be sufficiently independent. Although it is not clear whether the argument was exactly the same on appeal, at trial, they had argued that the problem with this arrangement was that it did not grant deputy judges  “input from an independent body, the right to participate in some form of hearing or inquiry and the provision of reasons” (Ontario Deputy Judges Association v. The Attorney General of Ontario, 2011 ONSC 6956, par. 23).

As the court of first instance had done, the Court of Appeal rejected this argument. It held that, as the Supreme Court suggested in Valente v. The Queen, [1985] 2 S.C.R. 673, reappointment of a judge at the discretion of a member of the judiciary, unlike reappointment at the discretion of a member of the executive (such as the Attorney General), raises no concerns over independence sufficient to make it unconstitutional. It may or may not make the judge perfectly independent, but it makes him or her independent enough.

That sounds right to me as a matter of constitutional law. The constitution sets only a minimal standard, in judicial independence as in other matters. Whether a system that relies consistently on ad hoc deputy judges – who, presumably, are much cheaper than full-time ones – is the sort of civil justice system we want to have is another question, which should be addressed to legislatures, not courts.

In an Unknown Language

It is not every day, or even every month, that courts get to quote and discuss a statute enacted in the reign of Edward III. But the BC Court of Appeal did just that in an interesting decision it issued last week, in the case of Conseil Scolaire Francophone de la Colombie-Britannique v. British Columbia, 2012 BCCA 282. The issue in the case was whether documents (prepared in the ordinary course of business) in French could be submitted as exhibits to an affidavit tendered in evidence in a civil lawsuit in British Columbia without being translated. In effect, the fight is largely about who has to pay to have the documents translated – the party submitting them, or the other side. At first instance, the judge ruled in favour of the BC government, which argued that untranslated documents in French could not be admitted.

The two main issues on the appeal were whether the British Proceedings in the Courts of Justice Act, 1731 (U.K.), 4 Geo. II, c. 26 was in force in BC and, if so, whether it prohibited the admission of documents in languages other than English.

The Court began by briefly reviewing the history of language use in English courts. As it explained,

[b]y the 13th century, and possibly earlier, oral proceedings in the King’s Court were conducted in French.  … [T]he variety of English dialects made the English language inappropriate for court proceedings.  Latin was the written language.

However, throughout the 14th century, use of the English language was on the rise, and the oral language of the courts became inaccessible to most people.  As a result, the Pleading in English Act, 1362 (U.K.), 36 Edw. III, c. 15 … was enacted (par. 19-20).

That Act, in a discussion that would fit right into modern Rule of Law literature, noted

great Mischiefs which have happened to divers of the Realm, because the Laws, Customs, and Statutes of this Realm be not commonly [holden and kept] in the same Realm, for that they be pleaded, shewed and judged in the French Tongue, which is much unknown in the said Realm; so that the People which do implead, or be impleaded, in the King’s Court, and in the Courts of other, have no Knowledge nor Understanding of that which is said for them or against them … ; and that reasonably the said Laws and Customs [the rather shall be perceived] and known, and better understood in the Tongue used in the said Realm, and by so much every Man of the said Realm may the better govern himself without offending of the Law, and the better keep, save, and defend his Heritage and Possessions; and in divers Regions and Countries, where the King, the Nobles, and other of the said Realm have been, good Governance and full Right is done to every Person, because that their Laws and Customs be learned and used in the Tongue of the Country.

It provided, accordingly, that “all Pleas which shall be pleaded in [any] Courts whatsoever … shall be pleaded, shewed, defended, answered, debated, and judged in the English Tongue,” though written records would be kept in Latin.

That situation persisted until the enactment of the the Proceedings in the Courts of Justice Act in 1731. That statute also took note of

many and great Mischiefs [which] do frequently happen to the Subjects of this Kingdom, from the Proceedings in Courts of Justice being in an unknown Language, those who are summoned and impleaded having no knowledge or understanding of what is alleged for or against them in the pleadings of their Lawyers and Attornies, who use a Character not legible to any but Persons practicing law

– and required that all written records also be kept in English rather than Latin, French, or any other language.

That statute was part of the law of England, which was received in British Columbia in 1858.

The Court of Appeal holds that it is still in force in the province. Parliament has made an exception to it insofar as criminal trials are concerned,  the accused now having the right to be tried in French. But, as regards civil procedure, it was neither repealed nor modified. The appellants’ argument that language rights must be interpreted generously is true so far as it goes, but  “the courts must not import language rights where they do not exist constitutionally or through statute, regardless of how desirable such importation may seem.” An argument of this sort is not enough to conclude that a statute has been repealed by implication.

The court further holds  that the 1731 Act applies to documentary evidence. The appellants claimed that its purpose, which is to increase access to justice, means that it should not be construed so as to prevent them from making their case. However, the court points out that though the statute’s “purpose was, generally speaking, to facilitate access to justice; more specifically … it was aimed at preventing the injustice that resulted from the conduct of litigation in a language most lay litigants could not understand” (par. 48). In a judicial understatement, Justice Bennett  observes that “[i]t is not clear to [her] how requiring a party to pay for the translation of evidence that the other party is obliged to tender would facilitate access to justice” (par. 51)

Rejecting some other arguments put forward by the appellants, the Court dismisses the appeal, and holds that the party tendering into evidence a document originally in French bears the burden of having it translated. That seems the right result to me. As Justice Bennett says, access  to justice is not served by letting people tender evidence which most citizens and most lawyers might not be able to understand. As a matter of policy, it would surely be better if a party were at least able to consent to French-language documents being admitted, but it is not for the courts to make this policy into law.

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.

Small is Beautiful

How many judges should a country’s highest court have? Those of Canada and the United States both have nine, but Jonathan Turley, of George Washington University, argues in an op-ed in the Washington Post that that’s not nearly enough. Although made with the U.S. context in mind, his argument, if persuasive, would be relevant to Canada since our supreme courts happen to be of the same size. But it is not persuasive, and instead, it illustrates the dangers of what might be called casual comparativism – the use of half-baked, half-ignorant comparisons between legal systems, which are more often than not misleading, and can be used to reach and justify unwarranted conclusions.

Prof. Turley is concerned that the Supreme Court of the United States often decides cases of the greatest importance by 5-4 votes. The problem with this is that the “court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws.” A nine-member court is bound to endure bitter splits into two camps, with one or two swing voters in the middle.

This is something that countries with larger high courts manage to avoid: Germany (16 members), Japan (15), United Kingdom (12) and Israel (15). France uses 124 judges and deputy judges, while Spain has 74. These systems have structural differences, but they eliminate the concentration-of-power problem that we have in the United States.

The current number of the Supreme Court’s members is, he points out, an historical accident and, he adds, “one of the worst numbers you could pick.” He thinks a 19-member court, similar in size to circuit courts in the United States, would be much better. Such courts

are often divided … [y]et, it is rare that one or two of those judges consistently provide the swing votes on all issues when they sit “en banc,” or as a whole. Appellate courts of this size have proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.

Prof. Turley expects other benefits from an expansion of the Supreme Court’s membership, including the possibility to have its judges ride circuit again, as they did until the Civil War in the United States, and serve as temporary additions to intermediate appellate courts, breathing in the real air of legal practice, to supplement the rarefied atmosphere (to borrow an expression from Lord Denning) of the highest court.

As I said above, I do not find this a compelling argument.

There are no guarantees of a larger court not being split of course, perhaps quite evenly, just as there is nothing in the number nine that condemns a nine-member court to a permanent 5-4 split. Indeed, even the U.S. Supreme Court decides many cases unanimously, and others by large majorities. And as the Supreme Court of Canada’s statistical report on its work from 2001 to 2011 shows, its decisions are, more often than not (in around 75% of the cases), unanimous despite its having nine members. Indeed I wonder if a larger court would not be susceptible to more complex, three- or four-way splits, which are a bigger problem for the certainty and clarity of the law than a clear-cut 5-4 (though in 1990s, the Supreme Court of Canada was much more fractured than now – despite having only nine members).

As  for the reference to “countries with larger high courts,” it is quite misleading. It ignores obvious comparison points – Canada and Australia – whose judicial systems are most like that of the United States, and whose supreme courts have nine and seven members respectively. It refers to the very large French Cour de cassation, but ignores the Conseil constitutionnel, which has nine appointed members (in addition to former presidents, who are entitled to sit there as well). It refers to the total membership of the Supreme Court of the United Kingdom, but ignores the fact that it sits in smaller panels, typically of five judges. The same is true of the Federal Constitutional Court of Germany, which typically sits in panels of three or eight. (Now in fairness, it is not entirely clear whether prof. Turley proposes that his 19-member Supreme Court to sit in full or in smaller panels – but smaller panels would arguably cancel out the reduction in the power of individual judges which he advocates.) So the examples invoked seem to disprove, rather than to support, his claims.

As the comparison with the Supreme Court of Canada suggests, to the extent that the Supreme Court of the United States is “dysfunctional” as prof. Turley believes (which I doubt), the solution to the problem must be in changing the legal and political culture in which it is embedded. This is perhaps even more difficult than changing the number of judges, but will be more effective. As for Canada, our nine-member court seems to serve us just fine.