Nothing Like It

Law, perhaps even more than man, is a creature of habit. It thrives on the humdrum. It likes nothing better than demonstrations that one case is just like some other in all relevant respects. It is a creature of habit in a more literal sense too, in that legal rules often crystallize out of the usual practices of a community ― though as I recently pointed out, this is not always a good thing. But how does the law deal with the new, the unusual, the unprecedented? How do, and how should, judges respond when they confront situations never faced by their colleagues and predecessors? Some recent blog posts by Gerard Magliocca and Kyle Graham explore some aspects of this question.

Prof. Magliocca is interested in assertions by a court engaged in judicial review of legislation that the statute at issue is unusual, asking “whether this concern constitutes an independent theory of heightened scrutiny.” He suggests a number of reasons for why this might be the case:

One possibility … is that this a rhetorical move.  Characterizing a law as strange implies that finding it invalid will not endanger other laws.  Or it simply prepares the ground for a conclusion of unconstitutionality by undermining the authority of the law.

Another thought is that an unusual law raises questions about its motivation.  Why did the legislature pass this curiosity?  Could be because they were trying to achieve an improper goal or circumvent a constitutional obstacle.

A third possibility …  is [that] this is the modern version of the common law rule of “construing statutes in derogation of the common law narrowly.”  In effect, tradition should be given considerable weight in interpretation.

For his part, prof. Graham is interested in “the dog that didn’t bark” arguments to the effect that the absence of judicial decisions holding that x is the law means that x is not the law. He contends that such arguments aren’t persuasive, because “a precedent desert” might be due to a number of factors that have little to do with the correctness of the proposition that x is or is not the law. It might not be worth litigating the point because the remedies available are unattractive, or the cases might be settled before being resolved by courts. Indeed, however we might expect or wish otherwise,

lots of the area that lies within the boundaries of the legal “map” remains terra incognita in the sense that there exist no published opinions squarely on point. As every first-year law-firm associate learns (after having a partner utter the awful words, “I know there must be a case on point out there; find it”), even with thousands of case reporters and an ever-growing pool of impossibly deep electronic databases to draw from, there exist many commonplace fact patterns that have generated little or no published precedent.

For what little it’s worth, I inclined to agree with prof. Graham. I think, for example, that A.V. Dicey was badly mistaken when he argued that the absence of precedents in which courts enforce constitutional conventions meant that conventions were incapable of judicial enforcement and indeed not part of law at all. (I develop this point in my paper “Towards a Jurisprudence of Constitutional Conventions”, 11 Oxford University Commonwealth Law Journal 29 (2011).) At the same time, I sympathize with courts looking at “unusual” statutes with some suspicion. When, in a recent post, I have described a Saskatchewan statutory provision allowing a newly-elected government to fire members of most provincial administrative agencies as “very unusual,” it was not only a statement of fact, but, at the same time, a way of indicating wariness and disapproval.

These are only hunches though, and of course the question arises whether they are inconsistent. In other words, should we draw the same conclusions from what prof. Graham calls a “precedent desert” in statutory law as in judicial decisions? And if so, what should these conclusions be? Does the absence of judicial precedent mean something more than prof. Graham thinks, or are courts wrong to make something of the unusualness of the legislation they are reviewing? Or is the best attitude a sort of compromise that consists in a Burkean conservative attitude of treating all novelties, whether legislation or legal claims, as presumptively suspicious but not conclusively impermissible?

I haven’t thought enough, or intelligently enough, about these questions to say something very profound. The most I can venture is that beyond its sometimes useful, sometimes annoying preference for sticking to the familiar, law is concerned with its coherence (or, to use the loftier Dworkinian idea, “integrity”). It is not closed to new claims, rules, or arguments, but if it accepts them, it must integrate them, assimilate them, make them part of the system. It must, as prof. Magliocca puts it, “tam[e] exotic beasts” and domesticate them. It is probably not unnatural that courts sometimes recoil at that task ― but it does not necessarily follow that are justified in doing so.

What They Said

It is usually understood that judges must give reasons for their decisions. But does it matter if the reasons a judge gives are largely lifted from the submissions of one of the parties? That was the question that the Supreme Court of Canada confronted in Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, delivered on Friday. The Court’s answer is that while it’s not “good practice” for judges to adopt a party’s submissions wholesale, that is not enough for an appellate court to set the decision aside.

The trial decision at issue is 368 paragraphs long, of which 321 were taken directly from the plaintiffs’ submissions. As the Supreme Court put it, “[t]his raises the concern that the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions” (par. 10). The Court described this concern as procedural, because it has to do with the fairness of the decision-making process, rather than with the substantive correctness of the outcome or the sufficiency of the reasons given to support it. The test to be applied in deciding whether a concern with the fairness of a court’s decision-making warrants setting aside the allegedly unfair decision is whether

a reasonable observer, having regard to all relevant matters … would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently. (Par. 13)

However, in applying this test, courts must bear in mind “the presumption of judicial integrity,” which “carries considerable weight” (par. 20) and can only be rebutted by “cogent evidence” (par. 22). Without more, the Supreme Court holds, the fact that a judge incorporated a party’s submissions into his or her reasons is not enough to rebut the presumption, because it does not show that the judge failed to consider the case and come to his or her own conclusions about the issues it presents.

The Court says that “judicial copying” (par. 30) is not a bad thing in itself. Reasons for judgment should not be assessed by the same criteria as works of literature or scholarship. They do not normally aim for originality. For that reason, a judge’s failure to acknowledge the fact of copying or mention his or her sources does not matter ― the judge is not actually claiming that the work of others is somehow his own original creation. The Court quotes, approvingly, an article by Simon Stern arguing that lack of originality is, if anything, a virtue rather than a vice of judicial writing:

[t]he bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law.

While it is best not to abuse the privilege of being unoriginal, and judges should try to explain their decisions in their own words, failure to do so does not demonstrate that judge did not actually consider and decide the case.

In the case at bar, the trial judge actually wrote some paragraphs of his own, and did not accept all of the claims of the party whose submissions made up the bulk of his reasons. This shows, the Supreme Court holds, that he did not fail to consider the case, and this the presumption of integrity has not been rebutted. (The Court then goes on to hold that a number of the judge’s conclusions were the result of palpable and overriding error, and reverses them ― but that is, in theory at least, a different story that doesn’t interest me here.)

I have mixed feelings about this decision.

On the one hand, the Court is right that originality of ideas and writing is not something judges normally aim for (it might be a trait of great judges, but there is an important difference between what makes a judge great, and what is required in ordinary adjudication, as I have argued here). So some copying and some failure to acknowledge sources is arguably not a big deal (though I still think that judges should avoid such practices). And of course it is difficult to draw the line between what is acceptable and what is not, so I can sympathize with the Supreme Court wanting to discourage litigation on this issue, which would create a mess of appellate decisions and drive up the costs of litigation for parties, thus further impeding access to justice. (I suspect, at least, that such considerations must have been on the judges’ minds, though the Court does not explicitly discuss them.)

On the other hand, the decision means that judges who delegate the writing of their decisions to law clerks ― or who use the parties as their law clerks, as the trial judge here seems to have done ― can go on with no fear of appellate correction. Yet our judicial system relies on the articulation by judges of the reasons for their decision to help judges maintain the attitude of impartial decision-makers open to persuasion, as I have explained here. Shortcuts that allow judges to escape the burden of stating their reasons for decision can compromise this attitude. They might also lead to substantively poor  decision-making. Indeed, this may well have happened in this case ― it is not often that trial decisions are overturned, even in part, for “palpable and overriding error” in the assessment of evidence.

On balance, the Supreme Court is probably still right, because the law is not a very good tool for deciding when judges have strayed far enough from what is “good practice” in reason-giving for their decisions to be set aside. But judges themselves ought not to take this decision as an endorsement of their taking short-cuts. Their position imposes on them duties that go beyond the requirements of the letter of the law. The “presumption of integrity” of which the Supreme Court makes so much can only exist if judges are mindful of these duties. “What they said” is not enough.

What Judges Do

First of all, my most abject apologies for the silence of the last couple of weeks. I was swamped (and then trying to recover from being swamped). I have a lot to catch up on, if I can, not least the Supreme Court’s hate speech decision, Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11. But I want to ease my way back into the blogging routine, and to show you a bit of what I have been up to, so I start with a version of a passage from the paper I have been working on, eventually to be part of my thesis.

The paper explores the sources of the rules which judges apply in “hard cases”―cases the rules that can be found in the usual legal sources (the constitution, statutes, or precedents) are inadequate (more on what that means shortly). I argue that there are several such sources―at the very least, underlying legal principles, social practice, and what might properly be called “judicial legislation” or policymaking. Perhaps there are others, but I am not sure yet. Be that as it may, most legal philosophers who write about adjudication only focus on one of these sources, though not all on the same. Each has his favourite―for example, principles are Ronald Dworkin’s, pracitice F.A. Hayek’s, policymaking Richard Posner’s.

But why is it that these very smart people have missed the plurality of the sources of rules in hard cases? The problem, I think, has to do with the question what makes a case a hard one. It is often assumed that the answer is the absence of relevant rules in the standard sources of law (constitutions, statutes, precedents, etc.). Hence for example Cardozo’s description, in his great work on The Nature of the Judicial Process, of the judge as “legislat[ing] only between gaps,” “fill[ing] the open spaces in the law” (113), and Judge Posner’s assertion, in How Judges Think, that judges have “legislative freedom, albeit only in the subset of legalistically indeterminate cases.” (82). But that is not necessarily so.

A hard case, to use Posner’s description from elsewhere in the same book, is one “in which the orthodox materials of judicial decision making, honestly deployed, will not produce an acceptable result” (79; emphasis mine). Cases where these materials “may not produce any result” (ibid.; emphasis in the original) are only the more extreme subset of this larger category. (That sub-set, in turn, includes a sub-subset consisting of cases where the materials supply a rule that seems clearly applicable, and yet is too vague to be applied without interpretation.)

Hard cases are often hard not because the law “runs out” and leaves the court without a rule by which to decide, but because the court realizes that the application of the legal rule supplied by materials such as statute or precedent would be, as Posner puts it, unacceptable. This may be because the rule derived from the obvious law conflicts with general principles implicit in the law, or because it is at odds with practices and expectations of the society which they purport to regulate, or because it will produce bad policy outcomes.

This suggests that the reason for the often-unnoticed plurality of the sources to which judges turn in hard cases is the variety of the problems in order to address which courts articulate the previously unannounced legal rules. Sometimes the problem is that the orthodox legal materials have run out, or are vague;  sometimes it that the rule supplied by these materials is at odds with the law’s structure or underlying principles; sometimes, it is a mismatch between the materials and the expectations of the community; sometimes it is that the materials produce bad policy outcomes. Seeing the function of adjudication as being predominantly, if not only, one thing―whether interpreting legislation, ensuring the law’s coherence or “integrity,” or adjusting it to the community’s expectations, or producing the best policy results going forward―naturally enough leads the theorist who falls victim to this tunnel vision only to see the source of adjudicative law which is most apt to help perform this function.

In reality, depending on which of the problems with the traditional legal materials which a court identifies in a given case, it will turn to a different source for formulating a new rule to resolve it. The obvious correspondences between the problems and sources―incoherence and principle, mismatch between law and expectations and social practice, bad policy outcomes and judicial legislation―do not always hold. A court may sometimes respond, for example, to a mismatch between social practice and the existing legal rules by reaching back to the law’s underlying principles to reformulate the rules, as Lord Atkin arguably did in his famous judgment in Donoghue v. Stevenson, [1932] A.C. 562. Yet these correspondences hold often enough for me to leave the last word to Cardozo:

My analysis of the judicial process comes then to this, and little more: logic, and history and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate m any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. (112)

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.

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.

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!