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.

The Chinese Court of Public Opinion

In one of my first posts, I asked the question “[w]hat is the place of the court of public opinion in the judicial hierarchy?” I was concerned at a story in which, as I described it, “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.” Now comes an interesting variation on this problem, casting a somewhat different light on my concerns, in the form of a story in the Globe & Mail about the court of public opinion in China.

Chinese courts cannot or will not hold the powerful to account – they are not independent, and perhaps also corrupt. “Thankfully,” writes the Globe,

the Internet – and specifically China’s wildly popular Weibo microblogging services – has rushed in to create a court of public opinion that now presides over cases that the country’s judiciary refuses to. And those public judgments are forcing government officials to reluctantly deal with cases they’d rather not.

Stories that would never have made it into the Chinese media spread on the internet, despite the censors’ best efforts. And sometimes, when online fury is intense enough, official media take up stories that the internet makes hard to ignore. In some cases, abusive officials even face sanctions. Yet even in these – rare – cases, “[j]ustice has yet to be fully served … and there are plenty of reasons to doubt it ever will be.”

In countries where the judiciary cannot or will not do its job of applying the law to both private parties and the state, the court of public opinion is the only one in which any semblance of justice can be done, and my worries about it may seem out of place. And yet they are not. Hearsay is not evidence; passion is not expertise; suspicion is not proof. Natural justice does not prevail on microblogs. Those whom public opinion accuses stand little chance of defence. The court of public opinion will do justice in some cases, but is bound to err in others. This is not to defend any of the Chinese officials – at the very least, they are helping maintain a system of brutal repression, and many of them are personally responsible for egregious abuses. But, while the court of public opinion is better than no court at all, it is no substitute for a real justice system.

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!

Don’t Try This at Home

I had missed this story when it came out, but better late than never. The CBC reports on the work of a Windsor Law professor, Julie Macfarlane, according to whose estimation “up to 80 per cent of people in family court and 60 per cent in civil cases represent themselves.” This is is, as she says, “huge,” and creates all sorts of problems for the system, which did not develop with self-represented litigants in mind, and of course for the self-reps themselves. They are, more often than not, bewildered by the process, and emerged frustrated. The report quotes prof. Macfarlane as saying that “[s]ome people feel so burned by this process they need counselling. They’re feeling so emotionally overwhelmed, they need more than legal advice.”

Prof. Macfarlane finds that this wave of self-representation has two main causes. The obvious one is that budgets for legal aid, especially in civil matters, are extremely tight. But the other, says she, is that “[m]any people who, in the past, may have decided they could pay for a lawyer if they scrimped and saved on something else, are increasingly coming to the conclusion that, given the amount of information on the internet, perhaps they can do this for themselves and save a great deal of money in the process.”

That is quite ironic, since the accessibility of legal information is supposed to make “access to justice” easier. But 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.

That’s not to say that CanLII should shut down. It is a precious resource, for lawyers and others alike. But it has a perhaps non-obvious downside, of which we should also be aware.

In fact, the whole issue of self-represented litigants and access to justice abounds in complexities that are forgotten more often than they should be. Continue reading “Don’t Try This at Home”

Not for Sale

On to the third (and maybe last) part of my comments about the the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. On Thursday I wrote about the separation of powers aspect of the judgment; on Friday about its suggestion that there is a right to go to court. I turn now to the idea that the imposition of hearing fees is wrong not (just) because it infringes the judicial branch’s prerogatives or the rights of the citizens, but because it departs from a certain idea of what government and public services ought to be like.

This argument is related to the one about separation of powers; indeed, although Justice McEwan’s rhetoric suggests otherwise, I think it is necessary to make the separation of powers argument plausible. Taken on its own, the claim that the judiciary must be master in its own house and the legislature has no business interfering with the role of the courts by enacting rules that encourage people to settle disputes otherwise than through adjudication is incredibly far-reaching. It would make rules designed to encourage settlement (like Rule 49 of the Ontario Rules of Civil Procedure) or legislation providing for recognition and enforcement of arbitral awards constitutionally suspect ― but I don’t believe any court in Canada would think this a plausible constitutional principle. What might make the claims of impermissible interference with courts plausible here is the nature of the change imposed, rather than the mere fact that the legislature intervened in the working of the judicial branch.

The hearing fees imposed by British Columbia had the purpose and effect of “rationing” courtroom time and of making the people who actually go to court pay for the upkeep of the civil justice system. They reflected a conception of the civil justice system as a service of which people choose to avail themselves, and which benefits those who make this choice. If that’s what civil justice is, it is logical enough to make its “users” pay for it. That’s how arbitration works, for instance. But it’s not what civil justice is, says Justice McEwan. Continue reading “Not for Sale”

See You in Court!

This is the second part of my comments on the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. Yesterday, I wrote about he separation of powers line of argument in Justice McEwan’s reasons. I turn now to the suggestion, which also runs through his judgment, that there is something like an individual right to go to court.

The Charter, of course, contains no such right. Well, at least not generally. Subs. 24(1) does provide, however, that “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Still, if that’s a right to go to court – that’s what it sounds like to me – it’s a narrow one. Most cases have nothing to do with the Charter. The dispute before Justice McEwan was about child custody, and before the question of the fees arose, the Charter was not at issue at all.

Justice McEwan makes two main arguments for why there is a right to go to court, and it is a general one. The first is that going to court is a form of democratic participation, protected by the democratic principle of the constitution. The second is that it is a feature of our constitutional order and a requirement of the Rule of Law. Continue reading “See You in Court!”

Don’t Piss Off the Crocodile

As promised, I have some comments on the B.C. Supreme Court decision striking down hearing fees, which I summarized here yesterday. In fact I’ll have a lot of comments, too many for just one post. I start off today with some thoughts on what I take to be the main line of argument in Justice McEwan’s judgment: the claim that the imposition of the fees is a violation of the separation of powers, encroaching on the superior courts’ protection by the judicature provisions of the Constitution Act, 1867, and violating the principles of the Rule of Law and the independence of the judiciary.

There is a saying (in Russian anyway) that one should not piss off a crocodile before having swam across the river. Now imagine that you’re constantly swimming in that river, back and forth. You really, really don’t want to piss off the crocodile. That seems to be the message implied and to some extent explicit in Justice McEwan’s decision. The river, that’s the courts. The government, and specifically the Attorney-General, is the guy always swimming there. And the crocodile, well, that’s Justice McEwan himself (and presumably his colleagues too).

In fact, as the BC Injury Law Blog reports, all the crocodiles in the river were already quite unhappy before this particular fight came about. But now, this crocodile is mad as hell. The government thinks the river is about to burst its banks because there are too many people going in there. It has decided to build bridges (i.e. steer litigants away from the courts―in private or judicial mediation,  settlement programs, etc.) and to charge people for going into the water. The longer they stay there, the more they need to pay. But this is not really, or at least not primarily about the money. “Cost recovery is only the secondary purpose of the fees according to the AGBC. The first is rationing court time. ” (Par. 309). That, says the crocodile, changes the nature of the river. And the river is his, not the government’s, so he won’t stand for it. Continue reading “Don’t Piss Off the Crocodile”