Google, Speaker and Censor

Some recent stories highlight Google’s ambiguous role as provider and manager of content, which, from a free-speech perspective, puts at it at once in the shoes of both a speaker potentially subject to censorship and an agent of the censors.

The first of these is an interesting exchange between Eugene Volokh, of UCLA and the Volokh Conspiracy, and Tim Wu, of Harvard. Back in April, prof. Volokh and a lawyer from California, Donald Falk, published a “White Paper” commissioned by Google, arguing that search results produced by Google and its competitors are covered by the First Amendment to the U.S. Constitution, which protects freedom of speech. The crux of their argument is that “search engines select and sort the results in a way that is aimed at giving users what the search engine companies see as the most  helpful and useful information” (3). This is an “editorial judgment,” similar to other editorial judgments – that of a newspaper publisher selecting and arranging news stories, letters from readers, and editorials, or a guidebook editor choosing which restaurants or landmarks to include and review and which to omit. The fact that the actual selecting and sorting of the internet search results is done by computer algorithms rather by human beings is of no import. It “is necessary given the sheer volume of information that search engines must process, and given the variety of queries that users can input,” but technology does not matter: the essence of the decision is the same whether it is made by men or by machines (which, in any event, are designed and programmed by human engineers with editorial objectives in mind).

In a recent op-ed in the New York Times, prof. Wu challenges the latter claim. For him, it matters a lot whether we are speaking of choices made by human beings or by computers. Free speech protections are granted to people, sentient beings capable of thought and opinion. Extending them to corporations is disturbing, and doing so to machines would be a mistake.

As a matter of legal logic, there is some similarity among Google, [a newspaper columnist], Socrates and other providers of answers. But if you look more closely, the comparison falters. Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us. Protecting a computer’s “speech” is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship.

And it does not matter that computer algorithms are designed by humans. A machine can no more “inherit” the constitutional rights of its creator than Dr. Frankenstein’s monster.

Prof. Volokh responds to the arguments in a blog post. He thinks it is a mistake to treat the intervention of the algorithm as an entirely new event that breaks the constitutional protection to which editorial decisions of human beings are entitled. The algorithms  are only tools; their decisions are not autonomous, but reflect the choices of their designers. To the extent that similar choices by human beings are prohibited or regulated, they remain so if made by computers; but to the extent they are constitutionally protected – and it is a large one – the interposition of an algorithm should not matter at all.

This is only a bare-bones summary of the arguments; they are worth a careful reading. Another caveat is that the constitutional analysis might be somewhat different in Canada, since our law is somewhat less protective of free speech than its American counterpart. However, I do not think that these differences, however significant they are in some cases, would or should matter here.

The argument prof. Volokh articulates on Google’s behalf reflects its concern about having its own speech regulated. That concern is one it shares with the traditional media to which prof. Volokh repeatedly compares it. But Google is also different from traditional media, in that it serves as a host or conduit to all manner of content which it neither created nor even vetted. It is different too in being (almost) omnipresent, and thus subject to the regulation and pressure of governments the world over. For this reason, is often asked to act as an agent of the regulators or censors of the speech of others to which it links or which its platforms host – and, as much as it presents itself as a speaker worried about censorship of its own speech, it often enough accepts. It provides some of the details – numbers mostly, and a selection of examples – in its “Transparency Report.” To be sure, much of the content that Google accepts to remove is, in one way or another, illegal – for example defamatory, or contrary to hate speech legislation. And as a private company, Google does not necessarily owe it to anyone to link to or host his or her content. Still, when its decisions not to do so are motivated not by commercial considerations, but by requests of government agencies – and not necessarily courts, but police and other executive agencies too – its position becomes more ambiguous. For example, one has to wonder whether there is a risk of a conflict of interest between its roles as speaker and censors’ agent – whether it will not be tempted to trade greater compliance with the regulators’ demands when it comes to others’ content for greater leeway when it comes to its own.

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.

En Français S.V.P./In English Please

In 2008, the Township of Russel, just outside Ottawa, passed a by-law requiring any new commercial sign to be bilingual. An angry activist and a shopkeeper challenged the validity of the by-law. The Court of Appeal for Ontario has rejected their challenge, in Galganov v. Russel (Township), 2012 ONCA 409, released last Friday.

Before getting to the challenge itself, the court addressed the preliminary issue of Howard Galganov’s standing to bring it. Mr. Galganov neither lives nor carries on a business in the township, and is not personally affected by the by-law. At common law, he does not have standing. But subs. 273(1) of Ontario’s Municipal Act, S.O. 2001 c. 25, provides that an illegal by-law can be quashed on application of “any person”. That’s great, says the court, but “any person” isn’t just any person. “The words ‘any person’ in s. 273(1) of the Act mean ‘any person who has standing under the common law relating to standing'” (par. 15). The old presumption that legislation will not be intepreted to depart from the common law unless clear language indicates that it does still has some life in it.

Be that as it may, another applicant, Jean-Serge Brisson, has a shop in the township, which carries a unilingual French sign, so there is no question about his standing to challenge the by-law. His first claim was that the by-law was ultra vires the township, essentially because the Municipal Act does not include an explicit grant of power over language to municipalities. The court rejected that submission, saying that these days, grants of powers to municipalities are broad and general, and there is no need to look for such a specific authorization as Mr. Brisson claimed was necessary, and holding that the by-law at issue was authorized by par. 11(2)(5) of the Municipal Act, which provides municipalities with the power to make by-laws “respecting the … [e]conomic, social and environmental well-being of the municipality.” Mr. Brisson argued

that, instead of promoting the economic or social well-being of the municipality, the By-law detracts from it.  This argument is based on the supposition that a commercial establishment with a bilingual exterior sign signals that it will be able to serve customers in both languages.  If a commercial unilingual English establishment is compelled to post an exterior bilingual sign, customers will be misled and upset if they cannot be served in French (par. 33).

The court gave this claim short shrift, on the ground that it was not supported by evidence; indeed, there was expert evidence to the contrary. Actually, one can question whether it is the court’s role to venture on such an inquiry at all. No court would question whether an act of Parliament really tended to promote the “Peace, Order, and good Government of Canada” – it is enough that Parliament thinks it does. However, Parliament is sovereign within the competence defined by division of powers provisions of the Constitution Act, 1867, and subject to the Charter. A municipality only exercises limited delegated powers, so courts are justified in ascertaining whether municipal by-laws are within the bounds of the delegation. The problem here is that delegation is so vast that its terms cannot be policed without the courts’ inquiring into the wisdom of the legislation, which is something courts are not very good at, and ought to be (though perhaps they are not) uncomfortable with doing.

Mr. Brisson’s second claim was that the by-law was unconstitutional because it contravened the Charter‘s protection of freedom of expression. Following the Supreme Court’s decision in Ford v. Québec, [1988] 2 S.C.R. 712, which struck down Québec’s prohibition on commercial signs in languages other than French, the court accepted that the by-law did infringe freedom of expression as guaranteed by s. 2(b) of the Charter. However, it held that the by-law was saved by s. 1 of the Charter. Its objective, “the promotion of the equality of status of both French and English,” is pressing and substantial, and it is rationally connected to the objective. As usual, the real question is that of proportionality. Apparently, Mr. Brisson’s main argument on this point was that the by-law prevented people from having signs in a language other than French or English. But the by-law does no such thing, the court points out. “Persons engaged in commerce can use any language of their choice along with French and English (par. 80). Indeed it is rather shocking that much Mr. Brisson and his lawyers placed much reliance on this claim.

The court went on to add that “in the past, Brisson has chosen to express himself only in English; he now chooses to express himself only in French on his exterior sign while continuing to employ English in other aspects of his business. To require him to employ English on his sign in addition to French is a minimal impairment of his right to freedom of expression” (par. 83). That, it seems to me, is bad reasoning. What does it matter that Mr. Brisson chose to express himself in English in the past, if now he wants to express himself in French only? The court seems to be questioning his good faith, or to be contradicting its own holding that his freedom of expression has been infringed. But that is not its role. It has nothing to do with answering the question that the case actually raises: does forcing shopkeepers to express themselves in French and English, whether they want to or not, the least restrictive means open to the township of achieving its pressing and substantial objective of promoting the equality of status between French and English. The court’s judgment, in my view, does not actually answer that question.

No New Thing in the Cloud

The Stanford Encyclopedia of Philosophy has a new entry on “Information Technology and Moral Values,” by John Sullins, a professor of philosophy at Sonoma State University. It is a useful summary of (many of) the moral issues that information technology raises, and a reminder that issues that we are used to considering from a policy standpoint also have moral dimensions. At the same time, it is a reminder that there is no new thing under the sun – itself an old observation.

Generally speaking, the moral issues which prof. Sullins thinks information technology are pretty much the same moral issues that you would expect a left-leaning intellectual to worry about in just about any context – income inequalities, gender inequality, “justice”. (I might be wrong to attribute these leanings to pof. Sullins of course; I have no other ground for this attribution than the article. And yet it feels like ground enough.) A libertarian or a conservative would probably have written a substantially different-sounding piece on the same topic; different-sounding, but equally predictable. New technologies seem not so much to create moral issues as to serve as a new canvass on which to apply our old concerns.

A couple of specific examples seem also to confirm the timeless cynicism (or is it wisdom?) of Ecclesiastes. One is given by prof. Sullins himself:

The move from one set of dominant information technologies to another is always morally contentious. Socrates lived during the long transition from a largely oral tradition to a newer information technology consisting of writing down words and information and collecting those writings into scrolls and books. Famously Socrates was somewhat antagonistic to writing and he never wrote anything down himself. Ironically, we only know about Socrates’ argument against writing because his student Plato ignored his teacher and wrote it down.

Socrates worried that writing would cause people to stop learning stuff – why bother when you can look it up a book? Just imagine what the grumpy old man would have said about Google and Wikipedia.

The second example came to mind when reading prof. Sullins’ discussion of the concerns raised by the “Moral Values in Communicating and Accessing Information.” Among the concerns he explores under this rubric are that with “[w]ho has the final say whether or not some information … is communicated or not” and that over the accuracy of the information communicated about someone or something (and the problem of who bears the burden of ensuring accuracy, or perhaps of dealing with the consequences of inaccurate information being communicated).  This reminded me of the passage in The Master and Margarita where Yeshua Ha-Notsri – Jesus – tells Pilate that he “is starting to worry that this whole confusion” about what he told the people “will go on for a very long time. And it’s all because he is writing down my words incorrectly.” “He” is the Levi Matvei – Matthew. As Yeshua goes on to explain, Matvei follows him “with a goat-skin and writes all the time. But I once looked at this goat-skin, and was horrified. I never said anything, anything at all of what’s written there. I begged him: for God’s sake, burn your goat-skin! But he tore it from my hands and ran away.” He might as well have been trying to get Facebook to delete some information about him, right? As the ensuing confusion shows, there are indeed dangers in recording information about someone without his consent, and then communicating it to all sorts of not always well-intentioned people.

So there is nothing new in the cloud, where this text will be stored, any more than under the sun, on goat-skins, or anywhere else, is there? Yet it is just possible that there is nothing new only because we do not see it. Perhaps new technologies really do create new problems – but we are so busy trying to deal with old ones that we do not notice.

A Reasonable Opinion

The Supreme Court delivered an interesting decision in Halifax (Regional Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29, yesterday. On the surface, it is a rather dull, or at least purely technical, case about the proper method of assessing the value of land occupied by a historical monument. But it has much broader implications, because it is a useful reminder of the way in which courts ought to approach discretionary decision-making by the government, something of which the government of the day is very fond.

The case concerns the application of Payment in Lieu of Taxes Act, which authorizes the Minister of Public Works and Government Services to make “payments in lieu of [municipal] taxes” to municipalities in which federal property is situated. Federal property is constitutionally exempt from provincial (and hence municipal) taxation, but as a matter of fairness, Parliament authorizes payments to municipalities that are meant to replace municipal taxes that would otherwise be levied on most federal property. Nonetheless, the statute confers a great deal of discretion on the Minister: he decides whether to make payments; the amount of the payment is calculated using the taxation rate which would be applicable “in the Minister’s opinion” if the property were taxable; and the value to which this rate is applied is also one which “in the Minister’s opinion” would be assessed if the property were taxable.

 Justice Cromwell, writing for a unanimous Court, summarizes the case very effectively at par. 5:

The Minister … decided that a national historic site is effectively valueless if it does not support economically beneficial uses. He therefore concluded that roughly 40 acres of the [Halifax] Citadel site are worth ten dollars. This conclusion, in my view, is unreasonable for two reasons. First, the property value is to be the value which, in the Minister’s opinion, the local assessment authority would apply to the property … However, in valuing the property the Minister adopted an approach which the record discloses no example of a Canadian assessment authority using, and which significantly differs from the approaches that the record suggests assessment authorities in provinces across the country do use.  The Minister’s opinion that the value he arrived at “would be attributable by an assessment authority” has no basis in and is contrary to the evidence.  Second, the Minister’s decision is inconsistent with the Act’s purpose.  The Act permits payments for national historic sites. To decide that these sites have no value for taxation purposes except to the extent that they could support commercial uses negates the very purpose of their inclusion in the PILT scheme.  For these two reasons the Minister’s decision was unreasonable.

So, the Supreme Court reminds us – and, more importantly, the federal government, – the exercise of discretionary powers is judicially reviewable, and even though the standard of review is reasonableness, it is a meaningful review. The phrase “in the Minister’s opinion” which Parliament uses seems to confer a very wide discretion on the Minister. But this discretion has to be exercised on the basis of evidence and in a logical way. The Minister cannot act on a whim or just because a certain decision suits him better than its contrary. Nor can he act in a way that frustrates the purpose of the legislation he is applying.

None of this is exactly new – these themes go back at least to Justice Rand’s judgment in Roncarelli v. Duplessis, [1959] S.C.R. 121, for example his famous statement that “[i]n public regulation … there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator” (p. 140). But the reminder is timely. Recent federal legislation has taken to delegating considerable powers to the executive, and also, it seems, to trying to insulate executive action from review, by adding discretion-conferring catchphrases such as “in the Minister’s opinion” to already-existing grants of discretionary power. As the Supreme Court’s latest decision shows, however, delegation and conferral of apparent discretion does not free the executive to do whatever it pleases.

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!