Plus on est de monde…

Il y aura, dit-on, bientôt des élections au Québec. Et qui dit élections, dit débat des chefs. Et qui dit débat des chefs, dit controverse sur la question de qui inviter et qui laisser de côté. Gilbert Lavoie pose la question en vue de la prochaine campagne électorale dans un billet sur son blogue pour La Presse. Il y a deux groupes parlementaires reconnus à l’Assemblée nationale, mais trois autres partis y ont également des députés. Alors, se demande M. Lavoie, “[a]urons-nous un débat à deux, à trois, à quatre ou à cinq?” Et puis il y en a plusieurs autres qui vont présenter des candidats aux élections (il y a une vingtaine de partis enregistrés au Québec, mais tous ne sont pas actifs). Ils n’auront peut-être pas grande chance de les faire élire, mais ils voudraient bien, eux aussi, profiter de la tribune qu’est le débat. Tout comme les chefs des partis établis, qui voudront en tirer le maximum de visibilité en écartant le plus grand nombre d’adversaires possible du débat télivisé (et réduire, du même coup, le nombre d’attaques qu’ils doivent affronter et la visibilité de leurs adversaires) .

Vu ces intérêts contradictoires et l’importance de l’enjeu, il est possible que certains partis exclus des débats se tournent vers les tribunaux pour obtenir d’y être invités, comme c’est déjà arrivé par le passé au Québec, lors d’élections fédérales, et dans d’autres provinces. Cependant, jusqu’à présent, les tribunaux ont toujours refusé de contraindre les réseaux de télévision, qui organisent les débats des chefs, d’y inviter un chef de parti. Cependant, aucune de ces décisions n’a été prise après un débat complet sur le fond de la question. Elles ont été rendues généralement dans le cadre de demandes d’injonctions d’urgence.

Le problème, c’est que les tribuaux sont réticents à octroyer de telles injonctions. Ils ne le font que dans les cas où la personne qui demande l’injonction démontre qu’elle y a un droit plutôt clair. Si le cas est douteux, l’injonction sera refusée. C’est ce qui se produit avec les débats des chefs. Les demandes d’injonction sont faites en catastrophe, une fois la campagne électorale déclenchée et la formule du débat annoncée. Or, le droit d’un chef qu’on n’y a pas invité d’y participer n’est pas clairement établi. Pour l’établir, il faudrait une preuve et un débat complets, ce que les tribunaux ont d’ailleurs souligné à quelques reprises (par exemple dans une décision ontarienne citée dans May v. CBC/Radio-Canada, 2011 FCA 130, au par. 25). Et une fois la demande d’injonction urgente rejetée, le demandeur perd généralement son intérêt pour la cause, et le débat sur le fond n’a jamais lieu. C’est ce qui semble être arrivé avec Mario Dumont, qui avait contesté son exclusion du débat des chefs en 1994, et  c’est ce qui est arrivé avec Elizabeth May l’an dernier.

Si jamais le débat sur le fond finit par avoir lieu, il va impliquer plusieurs questions difficiles. Au niveau fédéral et dans les provinces autres que le Québec, le premier obstacle que doit surmonter un chef qui prétend avoir un droit constitutionnel est de devoir démontrer que la Charte canadienne des droits et libertés s’applique à la question. Ce pourrait être le cas si la décision d’inviter ou d’exclure un chef est attribuée au CRTC  ou si les réseaux de télévision qui organisent le débat agissent en vertu d’une délégation d’un pouvoir réglementaire par le CRTC ou exercent autrement un rôle essentiellement public. Au Québec, cette question se résout facilement, puisque la Charte des droits et libertés de la persone s’applique aux personnes privées. Même si l’une ou l’autre Charte s’applique, il faudra trouver un équilibre entre les droits de plusieurs parties impliquées : celui des réseaux de télévision à la liberté d’expression, qui inclut logiquement un droit de choisir le contenu de leur programmation, celui des partis invités de débattre contre qui ils veulent bien (et donc de ne pas débattre contre certains de leurs adversaires), celui des partis exclus de participer au processus électoral, celui peut-être des électeurs à être bien informés… Bref, il s’agirait bel et bien d’un débat complexe et dont l’issue serait pour le moins incertaine. En fait, j’aurais tendance à dire que les tribunaux rejetteront probablement la demande d’un chef de parti exclu, ne serait-ce que parce que l’accepter exigerait aussi de formuler des critères pré-déterminés selon lesquels les invitations devraient être faites. Les tribunaux, selon moi, ne seraient pas capables de le faire, et ne devraient même pas essayer. Ils pourraient peut-être exiger que les législatures le fassent, mais je me demande si même elles en seraient capables, sans parler du fait que la législation à ce sujet servirait (comme toute législation électorale) les intérêts des partis déjà établis et présents dans la législature.

Operation Dismantle at the Olympics

Citizens concerned that the deployment of a weapons system in their place of residence will expose them to an increased risk of a devastating attack turn to the courts to try to block the deployment. They fail. To a Canadian constitutional law junkie, that’s the short story of Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441. But that is also the story, on which the BBC reports, of a group of London residents who tried to challenge the decision by the British defence ministry to install a missile system on the roof of their apartment building as part of the security deployment for the upcoming Olympics. The High Court rejected their claim yesterday in Harrow Community Support Ltd v The Secretary of State for Defence, [2012] EWHC 1921 (Admin). But although the two cases can, I think, be fairly summarized in much the same way, there are substantial differences in the courts’ reasoning.

Operation Dismantle was an attempt by a coalition of civil society groups to block the testing of American cruise missiles in Canada on the ground that it increased the likelihood of nuclear war and thereby contravened Canadians’ right to the security of the person, protected by section 7 of the Charter. The Supreme Court had “no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter” (455) – and that the judiciary could verify compliance with this duty even of a cabinet decision having to do with foreign policy (459).

However, the Court held “that the causal link between the actions of the Canadian government [in allowing the missile test to go forward], and the alleged violation of appellants’ rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action” (447). Chief Justice Dickson insisted that judicial “remedial action will not be justified where the link between the action and the future harm alleged is not capable of proof” (456). The problem for the appellants was that given the inherent uncertainty of international relations, “it is simply not possible for a court, even with the best available evidence, to do more than speculate upon” (454) the consequences of the decision to allow missile tests. And as subsequent decisions of the Supreme Court show, the same can be true of other governmental decisions in the realm of foreign policy. Thus the actual consequences of the Supreme Court’s holding that “disputes of a political or foreign policy nature may be properly cognizable by the courts” (459) are rather less far-reaching than they might first seem to be. A sweeping assertion of judicial power is combined with a very cautious approach to its exercise.

The decision of the High Court might seem to be, in a sense, the opposite. Justice Cave-Haddon professes extreme caution, asserting that “[m]ilitary operational deployments for reasons of national security are matters for which the Government is answerable to Parliament and not – absent bad faith or acting outside the limits of the discretion – the Courts” (par. 27). And yet he makes – on the strength of a fairly scanty record quickly put together for an application heard on an expedited basis – detailed findings of fact, including a finding regarding degree to which the installation of the missile system makes the claimants’ apartment block more likely to be a terrorist target. Unfortunately for claimants, this degree is, in the judge’s view, nil. The claimants lose, but – purportedly – on the merits, rather than because their claim is inherently incapable of prof.

The reason for my skepticism as to whether this really is a decision on the merits is that the judge appears to have accepted with no reservations the government’s testimony, and in particular that of the general responsible for the military’s Olympics security deployment. Now it is not clear whether, or how seriously, the claimants challenged that evidence. But what seems clear enough is that much of it was opinion (about the missiles’ necessity, safety, etc.), not fact capable of proof in court. And even if we treat such testimony as expert evidence, what chance would the claimants have had to challenge it even if they had tried? A high-ranked military officer is, after all, presumably the best expert on such questions, and a court would be naturally inclined to defer to him.

Perhaps it is better simply to admit, as our Supreme Court did in Operation Dismantle, that the allegations of claimants in such cases are not capable of proof. Or to hold, as both the English High Court and our Supreme Court ostensibly did not,  that such cases are, quite simply, not justiciable.

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.

Arguing with Death, Again

I wrote, three months ago now, about the sorts of arguments people make for and against the death penalty. Contrary perhaps to our intuitions, from at least the times of Thucydides, death penalty’s opponents have tended to resort to consequentialist arguments, while its supporters have relied on appeals to justice. A couple of interviews the BBC has taken in California, where the abolition of death penalty is going to be the subject of a referendum in the fall, confirm this trend – mostly.

The mother of a murdered child, who supports the death penalty, talks about justice for the killer. “He deserves” to be put to death; he ought to pay for the victim’s suffering. The former warden of a prison who once oversaw executions and now opposes the death penalty talks about its expense and ineffectiveness.

Things are more complicated though. The mother (perhaps prompted by the interviewer, whom we don’t hear) speaks of lethal injection being “humane,” the “most humane” thing that can be done to the murderer. Never mind whether this is really so. What I want to emphasize is that, despite appealing to justice in the shape of retribution, she is not calling for him to be tortured and brutalized as he tortured and brutalized her son. The ex-warden, for her part, brings up the irrevocable injustice of innocents possibly being executed.

And then there is, on both sides, an argument that I hesitate classify as being either about justice or about consequences – the one about “closure.” The mother says she needs the death penalty inflicted on her son’s killer to have it; the ex-warden says that’s a “false hope.”

So the issue is complex. Still, a point a made in my original post might be true. Arguments made for the sales pitch to the electorate might (need to be) different from those that avail in philosophical disputations or even in a personal reflection on a fraught moral issue. (This might, incidentally, be a partial response to the worry, expressed for example by Jeremy Waldron, that judicial resolution of moral issues like the death penalty takes them from the realm of serious thinking into that of legal technicalities. It seems that the political process isn’t much better than the judicial one, since also transforms the way these issues are considered, albeit in a different way.)

Constitutional Implications

I have come across a fairly interesting new article, “A Comparative Analysis of the Doctrinal Consequences of Interpretive Disagreements for Implied Constitutional Rights,” by Zoë Robinson, of DePaul University’s College of Law. On the basis of a comparison between Australia and the United States, specifically between the development of a right to free political communication in Australia and the right to abortion in the U.S., Prof. Robinson argues that judicial implication is a rather ineffective way of  protecting rights. Implication of rights is always the result of dubious interpretive methods; it is vulnerable to criticism, which makes judges self-conscious; it also results in “a paucity of interpretive resources which could support doctrinal developments” (96). I think prof. Robinson is right, as an empirical matter, about the weakness of implied rights, but I doubt that her explanations for it are sufficient, or even correct.

To help us think about the problem of implied rights, it is useful to cast a wider net than prof. Robinson does. One way of doing this is to bring Canada into the comparison. We have, after all, our own “implied bill of rights,” consisting mostly of the freedom of (political) speech. Another, which reflecting on implication in Canadian constitutional law suggests, is to compare implied rights not to “express” rights, as prof. Robinson does, but to other implied constitutional rules, which in Canada we know as “underlying constitutional principles,” and which also exist in American law (the separation of powers jurisprudence is, for example, built on the implications of the three-branch structure of government created by Articles I, II, and III of the U.S. Constitution).

The story of Canadian “implied bill of rights” cases seems to suggest that prof. Robinson may well be right. Despite high-minded rhetoric and apparent promise, the idea of rights implicit in the preamble of, or the institutions created by, the Constitution Act, 1867, was never endorsed by a majority of the Supreme Court, and never served as the actual ratio decidendi of a case; it was always raised in obiter by, at most, a couple of judges at a time. While lauded by some academics, notably F.R. Scott, it was criticized by others, notably Bora Laskin. And in the late 1970s, the Supreme Court came to reject it, in Dupond v. City of Montreal, [1978] 2 S.C.R. 770, (though justice Laskin, ironically, dissented). Despite this rejection, and the subsequent coming into force of the Charter, the “implied bill of rights” is not quite dead and buried (Justice Lebel, for example, referred to it with approval in his concurring opinion in R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489), but there is not much life in it either.

Yet looking at underlying constitutional principles provides a useful contrast. You’d think that they would be affected by the same problems as implied rights – dubious origins, vulnerability to criticism, impossibility to develop into something jurisprudentially useful. And to some extent they certainly are. They have indeed been criticized – for example, in a scathing paper by Université de Montréal’s Jean Leclair – and the Supreme Court’s unanimous, and dismissive, almost contemptuous, rejection of underlying principles as source of implied constitutional protections in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, seems to confirm that implication is not a reliable source of rights. But that’s not the whole story of underlying principles. They have been applied to powerful effect in judicial independence cases (indeed, it is certainly arguable that the Supreme Court has gone too far with the principle of judicial independence), and also in the Manitoba Language Rights reference, [1985] 1 S.C.R. 721,  in which the Supreme Court managed to declare unconstitutional Manitoba’s entire statute book unconstitutional for not being enacted in both official languages without creating chaos, by the device of suspending the declaration of invalidity, in the name of the underlying principle of the Rule of Law.

What the cases involving underlying principles seem to suggest is that these principles are more easily used to work out fundamentals of constitutional structure than individual rights. The situation in America, at least as I understand it, confirms this thought, since separation of powers cases there seem to excite nowhere near the same degree of hostility, and to be subject to nowhere near the same degree of judicial self-doubt, as cases that can be described as involving implied rights. Why this should be so, I do not quite understand. Perhaps it is merely because rights cases are more high-profile and (or because) more intelligible to the layperson than structural cases. Perhaps there are other reasons why courts are more confident in their ability to get constitutional structure right than individual rights. However that may be, implied constitutional rules are not bound to be anemic and fruitless. If implied constitutional rights are, there ought to be some further explanation, specific to rights themselves, and not applicable to all constitutional implications.

Ideology in Constitutional Scholarship

Is most writing about constitutional law and theory (in the United States, but perhaps also in Canada) “intellectually corrupt”? In a post on the Bleeding Heart Libertarians blog, Jason Brennan, a philosopher and economist from Georgetown, says that it is. But, while his description of constitutional scholarship is, unfortunately, right, his explanation and evaluation of the problem seem too simplistic to me.

The problem with constitutional scholarship, says prof. Brennan, is

that almost everybody does the following:

1. Start with a political philosophy–a view of what you want the government to be able to do and what you want to the government to to be forbidden from doing.

2. Take the Constitution as a given.

3. Reverse engineer a theory of constitutional interpretation such that it turns out–happily!–that the Constitution forbids what you want it to forbid and allows what you want it to allow.

Academic arguments to the effect that something desirable is, unfortunately, unconstitutional, or that something undesirable is, alas, constitutional, are too few and too far between. Scholarship becomes indistinguishable from legal or political argument (these two being the same thing). “But,” says prof. Brennan, “academic legal theory is supposed to aim at truth. Legal theorists are not–or should not be–fighting political battles.”

If a scholar in another field – say in the interpretation of philosophical texts – acted like constitutional scholars act in the interpretation of legal text, we would think them “intellectually corrupt.” So why is it ok for constitutionalists to behave this way? Prof. Brennan claims that

[t]he only real defense of this practice I’ve seen is one that starts by arguing that the law is supposed to be normative and authoritative. However … –the case for legal positivism seems so strong that … this [does not seem] plausible.

In his own view, which he labels as “legal positivist and legal realist,” “laws [are]sociological phenomena, and whether a law is good or just is a contingent fact.” The constitution means what it means, not what whoever is reading it would like it to mean.

Prof. Brennan’s description of constitutional scholars as fighting political battles certainly rings a bell. His post was written in the context of the litigation surrounding president Obama’s healthcare reform, and academic commentary on it was, indeed, largely marked by the commentators’ ideology. But this phenomenon is very widespread. Indeed, what I have seen and heard at NYU suggests that some academics, at least, though don’t know how many, are open about regarding ideological acceptability as a criterion for assessing the value of a theory.

But is constitutional theory tainted by ideology because legal academics are intellectually corrupt, or because they are completely misguided about legal philosophy and fail to recognize the overwhelming arguments in favour of legal positivism, as prof. Brennan suggests? I think that things are much more complicated.

The problem with his explanation is that it assumes that there is a truth of the matter about constitutional interpretation, which a constitutional theory should uncover. But there is no objective truth about what a constitution means. To be sure, some constitutional provisions are clear enough, and one would be hard-pressed to find ideological interpreters disagreeing about their meaning. Many in the United States, especially on the political left, think that the equality of states’ representation in the Senate is morally indefensible, but no left-wing academic will say that the constitution doesn’t require it. But much of the constitution is not clear. Nor is it obvious how the meaning the less clear provisions is to be ascertained. It is possible, I think, to exclude some constitutional interpretations, even of less clear provisions, as quite obviously wrong. Whatever the prohibition on “cruel and unusual punishment” means, it surely makes the imposition of torture as a punishment unconstitutional. But what about death penalty? Different people can have different, reasonable, answers to that question, and they can – indeed they must – argue about which of these reasonable answers is better.

Law, in Jeremy Waldron’s words, is an “argumentative practice.” We argue about what this or that legal rule means – and that is an inextricable part of what law is, not a sad accident. This is especially true of constitutional law, for a number of reasons. One is simply that the stakes it involves are very high. What the state can and cannot do matters, sometimes at the level of policy, sometimes at the level of morality if not in the day-to-day lives of most people, and sometimes both. Another reason for the special importance of disagreement and argument to constitutional law is that constitutional texts are more vague than most legal sources. This is partly due to the need to secure agreement, often a super-majority agreement, on a text despite disagreements over specific rights, and to make that agreement last for decades and even centuries. This is also partly due to the fact that, contrary to what prof. Brennan seems to think obvious, much law – and certainly constitutional law – presents itself as morally good, and quite deliberately speaks in morally loaded terms. The third, related, reason why argument is so important in constitutional law is that it must somehow reconcile an arguably even greater number of competing values than other areas of the law. Democracy, federalism, Rule of Law, separation of powers, and protection of individual rights pull it in different directions. A constitutional text is, at most, a partial arbitrament between these (and other) competing values; it reflects them all, to some extent, and interpretations favouring one or another are bound to be plausible.

And here is where political ideology, which helps order these values, comes in. Constitutional theory, like any legal theory, is different from scientific theory, because it is in some measure argument. And argument about constitutional theory involves values, and hence ideology. It is fair, I think, to call it intellectually corrupt if it is limited to values and ideology and ignores legal sources. Any scholarship that deserves the name must be in touch with the reality it describes, explains, or critiques, so constitutional theory must, so far as possible, be grounded in constitutional text and precedent. But that will not make it free of ideology.

That said, it should still be possible for a scholar to acknowledge that his or her preferred constitutional interpretation is, if not incorrect by some (nonexistent) purely objective standard, unlikely to be adopted by courts (or other constitutional actors). One should strive to be clear-eyed about such things, and admittedly, legal academics often are not. To that extent, their scholarship suffers from a serious weakness.

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.