Keeping Judges Busy

The Globe and Mail reports that the federal government will go to the Supreme Court to review the constitutionality of its Senate Reform project. Opponents of the reform have dared it to do so for years. They’ll get their wish now. The Supreme Court’s was already asked to rule on Senate reform project once, by Pierre Trudeau’s cabinet. The result was Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54―a somewhat vague and inconclusive decision, because the government then did not have a specific reform project, and referred only vague questions to the Court. This time will be different. I won’t comment on the substance of the case just yet, but for those interested in the subject, the text of the bill, as it now stands, is here. And here are the comments of Peter Hogg, the most prominent Canadian constitutionalist, and of Fabien Gélinas, who taught me constitutional law at McGill, on a previous Senate reform bill.

The government also announced today that it will appeal the decision of Québec’s Superior Court in Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 4202, the gun registry case, which I summarized and commented on last week. As I wrote then, I think that the decision should stand, albeit that Justice Blanchard’s opinion was far from the best that could have been written.

So the government is keeping judges―and lawyers of course, not to mention us humble bloggers―well occupied. Which reminds me: it will be four months tomorrow since Justice Deschamps announced her resignation from the Supreme Court. Since the government likes to keep the courts busy, it should also make sure they are fully staffed.

 

The Forms and Limits of Persuasion

There was a very interesting piece by Maggie Koerth-Baker yesterday in New York Times magazine, about the ways in which we make up and change our minds. The immediate context to which it is directed is U.S. presidential campaign, in which both contenders (though especially Mitt Romney) have had some notorious “flip-flops.” But of course the issues it explores are relevant beyond the field of politics;  for example, they are of great importance to the law.

The law, as Ronald Dworkin, Jeremy Waldron, and others like to remind us is (in prof. Waldron’s words) “an argumentative practice.” A huge part of it involves two sides arguing their cases in front of an adjudicator or a group of adjudicators, who must then make up their minds about the decision. The parties are required to present evidence in support of their arguments, and the adjudicators’ decision is expected to be responsive to that evidence. What Lon Fuller might have called the forms and limits of persuasion matter enormously to lawyers and all those interested in the law’s operation.

But is persuasion just a pipe dream? In the final sentence of the article, Jonathan Haidt, a professor of psychology at NYU’s Stern School of Business says that “the truth is that our minds just aren’t set up to be changed by mere evidence and argument presented by a ‘stranger.’” That doesn’t bode well for the enterprise of law. Fortunately, what the article says before reaching this grim conclusion suggests that it is, in fact, misleading.

For one thing, the tendency to ignore evidence and argument manifests itself more or less strongly depending on context. “In some cases,” says Ms Koerth-Baker, “if we want to think of ourselves as thoughtful and open-minded — we can adopt identities that actually encourage flip-flopping” – or, less contemptuously, changing our minds in response to facts and arguments. “This is why juries function,” – and judges, too, of course – “and it’s what places pressure on scientists to form opinions based on reliable data.” The ethos of a dispassionate, careful decision-maker, one who must consider and respond to facts and arguments and, if necessary, change one’s mind, can apparently go to great lengths to overcome our natural inclination to decide on the basis of emotions and partiality to our own kind.

For another, knowing that one will be giving reasons for a decision changes the way one approaches making it. “Simply having to articulate why you believe what you do can also end up changing your attitude.” Not always in entirely desirable ways. People who know they must explain their decisions will sometimes take the decision that is easiest to explain, even though they might feel it is not quite right substantively. We might guard against the danger But, suggests a psychologist from the University of Virginia, ” if you have to explain your preferences, you’re likely to adopt an attitude that makes sense to your interlocutor, even if it conflicts with your emotions.”

The way our justice system is set up helps ensure that our judges are open to persuasion by evidence and arguments. Judges believe in and are committed to the impartial decision-maker’s ethos, which suggests that they are likely to do a decent job living up to it. In order to help them do so, and also in order to verify whether they do, there is a strong expectation, increasingly taking the form of a legal rule, that judges will give reasons for their decisions. These reasons typically summarize the parties’ main arguments, and respond to them. This forces judges “to adopt an attitude that makes sense to” the parties, as well as to consider the parties’ views. This, turn, is one of the ways in which law protects human dignity, as Jeremy Waldron points out. (Perhaps, in this limited sense, reason-giving can in fact exercise a  “pull towards goodness,” on judicial decisions, a possibility about which I have otherwise expressed skepticism, assuming a more substantive meaning of “goodness.”) And perhaps our judicial selection mechanism, which means that judges are recruited from the ranks of experienced litigators and legal academics, two professions which prize and help develop one’s ability to articulate one’s thinking, helps limit the risk that judges will give insincere but easy-to-state reasons for their decisions.

Despite my usual gloomy disposition (including a lack of faith in judges, at least when it comes to their ability to develop legal rules, as for example here), I am inclined to conclude on an optimistic note today. Our courts are organized in ways that counteract human beings’ poor decision-making skills, which psychologists are now describing in ever more depressing detail. And it is noteworthy that this is the result of a gradual development of the court system, rather than of its deliberate organization on scientific lines. (Those who hear an echo of Hayek here are right.) Our individual decision-making might be bad, but the accumulated intuition of generations is surprisingly good.

The Art of Judging Art

The New York Times ran a fascinating article yesterday about lawsuits in which courts are asked to rule on the authenticity of works of art. Of course it is a rare judge or member of a jury who has any sort of experience expertise in such matters. So the cases become battles of experts, with the triers of fact “with no background in art” having to “arbitrate among experts who have devoted their lives to parsing a brush stroke.”

As the article points out, this is not, in itself, unusual. Medical malpractice cases are like that – judges and most jurors don’t know the first thing about what good medical practice is. So are a great many other cases. What is unusual is that the art world (buyers and sellers of works of art, and the intermediaries they employ) seems pretty much to ignore the courts’ judgments. The market, the articles says, is “a higher authority” than the courts; an artwork declared authentic by a judge or a jury can still be treated as a fake and go unsold for decades.

One explanation for this, provided by an “art law specialist” quoted by the Times is that “[i]n civil litigation the standard of proof is ‘more likely than not.’ Now picture yourself walking into a gallery and seeing a Picasso. You ask, ‘Did Picasso paint that?,’ and the dealer says, ‘Yes, more likely than not.’ You wouldn’t buy that.” The relevant community – the market – imposes a higher standard of proof (though the article doesn’t tell us which one – is it something like beyond a reasonable doubt, or perhaps an even heavier burden?), and a court judgment will not often meet it, because it is not designed to do so. (Judges, the article notes, are aware of this disconnect.)

Still, although the article does not focus on this, while the community as a whole may be able to ignore the pronouncements of ignorant or credulous judges and juries, the actual parties to the cases are not. If, say, a buyer sues a seller for fraud on the basis that the painting she bought is a fake, and the court finds that it is authentic, she has to live with the judgment, even though the art community may conclude that the judgment is mistaken. The buyer is then stuck with a valueless painting, and no remedy at all. In the same way, I suppose, doctors may think that a colleague of theirs has been unfairly found liable in a malpractice suit, and is actually a great professional and completely blameless in the case – but he still has to pay damages.

This is yet another reminder of the limits of the courts’ ability to grapple with the world’s complexity and to serve as an effective dispute-settling and/or truth-finding mechanism. Other areas in which these limits are manifest on which I have already blogged include foreign policy and emerging technologies. These limits are not necessarily a bad thing; no human institution is perfect. The good news is that we have a number of institutions trying to deal with difficult questions – courts, legislatures, the market, etc. – so we need not rely on just one of them.  Sometimes one will be better at dealing with questions of a particular type, so we can defer to its answer. The bad news is that sometimes it is not clear which is better, and indeed sometimes it is clear that none of them are very good at all (as I concluded was the case for new technologies). In the case of art, it is arguably better to live by the decentralized, collective wisdom of the art community than the necessarily uncertain and ignorant judgments of the courts. That collective wisdom is not infallible, but courts, it would seem, are even worse.

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”

One’s Day in Court: Priceless?

In 1998, British Columbia started charging litigant stiff “hearing fees” for each day of a civil trial. Last week, Justice McEwan of the B.C. Supreme Court issued a monster of a judgment declaring them unconstitutional. The decision is very interesting for all sorts of reasons, but it is also abusively long. Fortunately for you, I have read it – well, much of it – so you don’t have to.

Before getting into the substance of the case, I want to say a few words about the decision; specifically, about its length. First, the facts: about 175 pages; 432 numbered paragraphs, many of them including multi-paragraph block quotations; more 70 000 words. That’s the length of a mid-sized novel. For a judgment, well, jugement-fleuve is a polite way of saying it. Perhaps it is a severe case of ‘I didn’t have the time to write a short decision so I wrote a long one’, except that it took Justice McEwan more than two years to produce it. Be that as it may, judges impose limits on the length of written submissions by lawyers. They should impose the same limits on their own work. Justice McEwan  makes much of the courts’ work being for the benefit of the public. It’s not when the product is of such length that no reasonable member of the public can be expected to read it. (I’m not exactly a reasonable member of the public. But I must admit that I barely skimmed the restatement – I cannot call it a summary – of the parties’ submissions, which runs for something like 250 paragraphs. I did read all of the judge’s analysis though.)

Now to the case. The facts are simple. A couple separates, and there is a dispute over whether the plaintiff, who wants to move back to Spain, can take their daughter with her. They go to trial, unrepresented by lawyers, and the trials takes up 10 hearing days. The plaintiff is hit with a “hearing fees” bill of over 3500$ (some of which the defendant might have to cover). The fees are so high, in part, because they are imposed on a sliding scale – the longer a trial is, the higher the fee imposed for each additional day. She cannot pay, and asks the court to relieve her. The court might do this by finding her to be “indigent”. Indigent litigants have traditionally been exempt from having to pay court fees. But, Justice McEwan insists, ‘indigent’ means really, really poor. So poor one can’t afford to pay a $100 filing fee, for instance. “It is an awkward word to use to describe a middle class family’s inability to pay a month’s net salary for the two-week ‘rent’ of a courtroom” (par. 26). The exemption does not apply. The only way the plaintiff can get out of having to pay is if the fee is unconstitutional. That’s what the decision is about.

There are at least three strands of argument running through Justice McEwan’s reasons. He does not distinguish them, but they are in fact quite different. One is that the fees infringe an individual right – access to justice, the right to have one’s day in court. Another is that there is something wrong with a chooser-user-payer model of government services; a court is a public service, and should be available to all, regardless of ability to pay. The third – and I think the most significant for Justice McEwan – is that the imposition of the fees proceeds from and results in a redefinition of the courts’ role by rationing access to courtrooms and trying to steer dispute settlement to other venues. This, in Justice McEwan’s view, subordinates courts to the legislature and violates the separation and equality of the branches of government.

All of these reasons lead Justice McEwan to conclude that hearing fees are unconstitutional because they violate unwritten constitutional principles and the federal division of powers. Limiting access to courts runs counter to the Rule of Law. It is also undemocratic because court participate in the elaboration of law, and going to court thus amounts to participating in the democratic process (which is not limited to voting). A redefinition of the courts’ role, especially one that limits people’s access to courts, is beyond of provincial powers over “the Constitution, Maintenance, and Organization of Provincial Courts” under subs. 92(14) of the Constitution Act, 1867. Justice McEwan did not consider the applicability of the Charter, which was also raised in argument.

Well, that’s enough for a summary, though this only skims the surface of the judgment. I will have some comments tomorrow.