Tag: legal development

The Supreme Court―What Is It Good for?

The Supreme Court is deciding fewer cases; is this a sign of modesty, or boldness?

I’d like to come back to a recent post of Mark’s, the one on the Supreme Court seemingly granting leave to appeal in and hearing ever fewer cases. As Mark notes, “[o]n first blush, the grant of fewer leaves is inconsistent with the role the Supreme Court has given itself over time” ― that of a national institution charged with developing the law, and not merely with correcting the errors that occur in the lower courts. Indeed the idea that the Supreme Court’s role is to develop the law follows logically from the requirement that decide whether to grant leave in a case according to whether it presents questions of “public importance” or “the importance of any issue of law or any issue of mixed law and fact involved”. And this requirement is laid down not by the Court but by Parliament, in s 40(1) of the Supreme Court Act. It might even be an essential characteristic of the Supreme Court and thus a constitutional requirement according to Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433. Who knows.

Be that as it may, Mark argues that, whether or not it is a dereliction of duty, the Supreme Court’s choice to butt out and let the provincial and federal courts of appeal develop the law isn’t all bad:

 There is nothing special in the Supreme Court’s decision-making process that makes it any better suited to decide legal questions—apart from the fact that it provides a final resolution. The finality question is important, but we should not kid ourselves: the law can and does settle without the help of the Supreme Court. This suggests that, perhaps, the question is not whether more or fewer leaves are granted. Rather, the question may be whether the Supreme Court is granting leaves to the right cases. (Paragraph break removed)

I have a somewhat different view on this. For one thing, there is at least some reason to think that the Supreme Court’s decision-making process is in fact more suited to the development of the law. For another, and more importantly, the Supreme Court’s choice to take fewer cases is not exactly innocent.

On the process side, the reason panels expand, while the number of cases courts and individual judges hear shrinks, as one goes up the curial hierarchy is that we expect that more judges devoting more time to any one case are more likely to get it right. In particular, the Supreme Court’s nine-judge bench is sure to be more diverse ― geographically, on a number of demographic dimensions, and ideally intellectually too ― than a three- or even five-judge panel of a court of appeal. To be sure, there can be costs associated with larger panels, especially when they try to conjure up unanimous judgments that need to paper over substantial disagreements. But, at least in the long run, this logic seems sound.

The Supreme Court also benefits, if that’s the word, from inputs into its decision-making that should, in theory, improve it. There are more interveners at that level (including Attorneys General from provinces other than the one whence a case originated), more clerks, and more academics writing about cases before the Court. Perhaps some or all of these do more harm than good. (See, for example, Justice Stratas’ skepticism about interventions in Canada (Attorney General) v. Kattenburg, 2020 FCA 164.) But, to the extent that any do some good, they underscore the benefits of the Supreme Court’s decision-making. Again, the effects, if there are any, only appear in the long run. There are tons of great decisions made by courts of appeal, as Mark notes, and far too many bad ones made by the Supreme Court. But the latter does seem to have an institutional advantage.

More importantly though, I think that the Supreme Court does not grant leave in fewer cases out of some sort of modesty. The issue isn’t whether Court sees itself as having an important role in developing the law ― it certainly does ―, but how it chooses to play this role. Crudely, there are two possibilities: on the one hand, a court might develop the law incrementally by deciding many cases; on the other, it might decide only a few cases, but make significant changes to the law in every one. Of course, this is something of a caricature: how much a case develops the law is a matter of degree, a point on a spectrum. And even the same court might not take the same approach in every case. But you get the idea. Mark writes that “[i[f the Court is granting fewer leaves, it is deciding fewer cases that could ‘settle the law’ in areas that require it”. But deciding many cases isn’t the only way to settle the law.

Now it might seem that the two approaches ― many incremental cases or few big ones ― amount to much the same thing, in the long run: 10 cases developing the law by one unit each, the next always building on the last, or one case jumping ahead by 10 units end up in the same place. One might even think that the few-big-cases approach is preferable insofar as it saves some litigants the expense of ending up at the Supreme Court. It might also enable the Supreme Court to maximize the institutional advantages I have described above. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 is an illustration: it attracted all manner of attention from interveners and academics, and the Supreme Court itself appointed amici curiae to assist it.

Despite this, I think that we should be wary of the few-big-cases approach. It sits uneasily with the judicial role ― even the role of a court mandated to develop the law, and not only to do justice between parties in individual cases. Even when developing the law, a court still does so in the process of deciding cases, in response to the gaps or defects revealed by the disputes before it. It can properly seek to fill the gaps or remedy the defects, but it does not hold a roving commission to reform the law on a grand scale. Again, there are degrees of this, and the line between what is and what is not appropriate is blurry. But it should be apparent that, taken to the extreme, the view that a court can reform large areas of the law at once makes its role indistinguishable from that of a legislature.

There is, perhaps, an additional point. The self-perception of a court may matter: does it see itself as primarily engaged in adjudication or in law reform? This is related to but not quite the same as the vexing question of whether courts make or find law. (I discuss an example of the Supreme Court’s puzzlement at this here.) While a court that thinks of the common law as the product of judicial legislation might be inclined to be less modest than one that thinks of it as the product of judicial discovery, it need not necessarily be so; it might see itself as only properly legislating “in the gaps”. Conversely, a court may not be modest despite claiming not to be making law. The Dworkinian conception of judging is like that ― it is not at all modest, despite ostensibly disclaiming judicial law-making. In any case, the court’s self-understanding may shape its decision-making, at least in subtle ways.

And it is easy to point to decisions of the Supreme Court reflect a legislative, ambitious view of its role. Vavilov is one, of course, and very visibly so. Mark compares it to “an academic essay”, but it is at least as much of a legislative act, albeit one less crisp, though more fully reasoned, than a statute. The majority opinion does not even get to the dispute before the court until Part V, paragraph 146. But Vavilov is only an extreme, not the only example. R v Hart, 2014 SCC 52, [2014] 2 SCR 544, where the Court reformed the law on the admissibility of “Mr. Big” confessions, is a favourite of mine. Justice Moldaver, for the majority, explained that he

propose[d] a solution that … strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime.  This solution involves a two-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct. [84]

And then, of course, there are the constitutional cases. There are those where the Supreme Court re-writes the law and gives “benediction” to rights heretofore unknown to our jurisprudence. But others too, like the notorious R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, also have a legislative feel to them.

Mentioning Jordan brings me to an important caveat: I do not mean to suggest that the Supreme Court should never go big. I have defended that decision, which may well have been the only way the right to a trial “within a reasonable time” could have been made more than a dead letter. Hart may have been the only way the considerable injustices plaguing the use of Mr. Big operations were ever going to be addressed, when one considers the resounding silence of Parliament on this issue both before and since. And even a clean-up on the scale of Vavilov may have been inevitable in administrative law. Justice Scalia, in “The Rule of Law as Law of Rules”, famously argued that judges should confidently lay down rules when deciding cases, to achieve equality before the law and predictability, and to bind themselves and their colleagues to a stable legal framework, including in the face of political pressure. There is something to this.

Nonetheless I think the point still stands: the Supreme Court is not necessarily being cautious or taking a laissez-faire approach just because it is deciding fewer cases. It may well be making a choice to develop the law in bold, big steps rather than incrementally. Bold action may have its advantages, and it may sometimes be necessary, but it runs the danger of being less judicial, and thus injudicious. On the whole, I think I would rather that the Supreme Court decided more smaller cases than fewer big ones. But they won’t ask me.

How to Get It Right on Wrongs

Ontario’s Superior Court has created a new tort. But should it have, in the circumstances?

In Doe 464533, 2016 ONSC 541, a delivered a couple of weeks ago, Ontario’s Superior Court of Justice awarded substantial damages to a person whose ex-boyfriend posted an intimate video of her online, in addition to showing it to some mutual acquaintances. He had previously coaxed her into making the video, promising that he would be the only one to see it. The promise was a lie, since he shared the video as soon as she had sent it to him. Justice Stinson finds the defendant liable for breach of confidence, intentional infliction of emotional distress, and public disclosure of private facts. The latter ground of liability had never before been recognized in Canadian common law, prompting David Fraser, at the Canadian Privacy Law Blog, to write that “[t]his is a huge deal.” It may indeed, as Mr. Fraser implies, be a hugely positive development. Certainly in Doe the Court was able to give the plaintiff redress for a blatant and vicious injustice that the defendant had done to her. Nevertheless, I want to ask whether, in the circumstances, recognizing or creating this new cause of action was the right thing to do. I hasten to add that, in asking the question, I do not mean to suggest that it must be answered in the negative ― only that it is worth thinking about.

One reason why I wonder whether Justice Stinson was right to develop the common law of privacy in this case is that, as David Canton has pointed out over at Slaw,

[t]he defendant did not file a statement of defence, and this decision was based on a motion for default judgment. So while the decision is well reasoned, there was no contrary position presented. 

Courts are normally dependent on hearing arguments from both sides of a case. Indeed, Jeremy Waldron has argued compellingly that the clash of competing arguments is an essential component of what law is, at a conceptual level. Needless to say, if one the parties chooses to forego his or her right to make an argument, as the defendant did here, this should not stop a court from ruling and, where appropriate, making an order against that party. But I wonder whether the absence of one of the parties from the litigation is not a reason, a very good reason even, for a court to be reluctant to make its ruling a precedent-setting one.

Now, this concern should probably be heavily discounted if not ignored if the question on which a precedent may be set is unavoidable on the path to a decision on the facts of the case. However, this is not the case in Doe. As I note above, Justice Stinson found the defendant liable for three different torts arising out of the same set of facts. The first two are familiar, although I take it that they had not previously been applied to similar circumstances. Had Justice Stinson “only” concluded that the defendant had committed a breach of confidence and deliberately inflicted emotional distress on the defendant, he could and surely would have awarded the same damages against him. So there was no pressing need for the judge to address the question of whether public disclosure of private facts should be a distinct ground of liability. Of course, we can imagine circumstances where the other causes of action would not be made out, and the new tort would be the only conceivable ground of liability. It is arguable that Justice Stinson’s thoughtful analysis is a service to future litigants. But again, the value of that analysis is lessened by the fact that it does not rest on a full, contradictory argument by the parties.

And then, quite apart from the unusual circumstances of this case, there is the perennial question of the relative roles of courts and legislatures in developing the law and creating new causes of action. Justice Stinson notes, early on in his reasons, that Parliament has criminalized the “publication of an intimate image without consent,” and that one province, Manitoba, has passed legislation to make it tortious. Should the law of other provinces move in the same direction by way of common law development, or should the courts wait for the legislatures ― which presumably are well aware of the problem ― to act? There are certainly good reasons for the courts not to wait. At least so long as any new causes of action are carefully circumscribed, there is probably something approaching a social consensus in favour of granting the victims of cruelty such as that suffered by the plaintiff in Doe a civil remedy. The issues involved are not ideologically controversial, and do not concern complex policy questions on which courts might lack expertise. Indeed, one could go so far as to say that, seeing how clumsy and pernicious legislative attempts to deal with online miscreants can be, courts would do well to act first, so as to remove the temptation to act that legislators would otherwise feel. All the same, it might have been useful for the court to address the question. Justice Stinson’s reasons do not.

To repeat, all that is not to say that Justice Stinson was wrong to develop the law in the way he did, or that his reasoning on the substantive issue of whether to create a tort of public disclosure of private facts could or should not be endorsed by a court considering the matter in a subsequent case. My point is only that we should take his decision as an occasion for a reflection on the courts’ when faced with novel legal issues.

Did You Make It Yourself?

I did not blog about Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 495, the Supreme Court’s decision on the role of good faith in the Canadian common law of contract, when it came out. Truth be told, I hadn’t even read it. Just a contracts case, I figured ― no matter how important it is in that area, it’s not my cup of tea. I’ve read it now (for dissertation-writing purposes), and have been reminded any judicial decision can turn out to be very interesting (and that reading as many as one can is a good idea).

From my perspective, the interest of Bhasin lies not so much in its significance for contract law (that issue is, however, extensively canvassed in the CanLII Connects coverage of the case), but rather in what it says about the judges’ views of their role vis-à-vis the common law. The good old “declaratory theory” ― and the more contemporary philosophers whom I have dubbed the “right answer romantics” ― hold that judges do not, in a meaningful sense, “make” the common law. The “declare,” or “discover” its rules; at most, they “offer … ‘new’ statements of the law as improved reports of what the law, properly understood, already is.” (That’s from Dworkin’s Law’s Empire, at p. 6). People whom A.W.B. Simpson called “legal iconoclasts” have long argued that this is nonsense, and that “law is the will of the Justices” ― as Justice Hillary, of the Court of Common Pleas, put it during the deliberations in 1345 case that Simpson described in an article called “Legal Iconoclasts and Legal Ideals”, (1990) 58 U. Cin. L. Rev. 819. As for Justice Cromwell, who wrote the Supreme Court’s unanimous judgment in Bhasin, he seems not to be very sure which it is.

Justice Cromwell starts off with a seeming endorsement of the declaratory theory. “Does Canadian common law,” he asks, “impose a duty on parties to perform their contractual obligations honestly?” [1; emphasis mine here and throughout] The present tense suggests that, if the answer is in the affirmative, as Justice Cromwell says it is, the law already imposes the duty at issue ― it’s not a matter of the court’s will. “Finding that there is a duty to perform contracts honestly,” Justice Cromwell adds, “will make the law more certain, more just and more in tune with reasonable commercial expectations.” [1] Finding, not deciding.

Justice Cromwell begins his analysis in a similar vein, saying that “Anglo-Canadian common law has resisted acknowledging any generalized and independent doctrine of good faith performance of contracts.” [32] Acknowledging something is admitting that it already exists, not deciding that it should. “It is time,” Justice Cromwell continues,

to acknowledge that good faith contractual performance is a general organizing principle of the common law of contract [and] to recognize, as a further manifestation of this organizing principle of good faith, that there is a common law duty which applies to all contracts to act honestly in the performance of contractual obligations. [33]

Again, this is language that suggests that the principle and duty in question are already part of the law, and the court merely “discovers” them. But in the very next paragraph, Justice Cromwell says that this acknowledgement and this recognition are “perfectly consistent with the Court’s responsibility to make incremental changes in the common law when appropriate.” [34] Changes, not discoveries? Yes, indeed, for they “will put in place a duty that is just, that accords with the reasonable expectations of commercial parties and that is sufficiently precise that it will enhance rather than detract from commercial certainty.” [34] The duty, it seems, was not there before, after all ― it’s the Supreme Court’s decision that “will put [it] in place”!

A little later in his reasons, Justice Cromwell describes the good faith doctrine as a “contemplated … development,” [40] not a pre-existing feature of the law. And then, when he speaks of the more specific duty of honesty in contractual dealings, he says (acknowledges? recognizes?) that the appellant’s claim

does not fit within any of the existing situations or relationships in which duties of good faith have been found to exist. … The key question before the Court, therefore, is whether we ought to create a new common law duty under the broad umbrella of the organizing principle of good faith performance of contracts. [72]

Yet having thus admitted, it seems, to judicial creativity, Justice Cromwell reverts, yet again, to speaking of “[r]ecognizing a duty of honesty in contract performance,” [80] as if it had been there all along.

One might be tempted to try to making sense of this confusion by saying that while broad legal principles exist independently of anybody’s will, whether courts’ or the legislature’s, so that courts can only recognize them, specific rules are subject to deliberate creation and modification, whether by legislatures or by courts. But that’s not what Justice Cromwell’s reasons suggest. He speaks of acknowledging a principle as a “change in the common law,” and of the recognition of a specific rule, as well as vice versa, so the distinction does not work. Justice Cromwell, it seems, is simply too confused about the courts’ relationship to the common law to use consistent language to describe it.

Is that a bad thing? Perhaps it is, if we have strong views about the legitimacy of judicial law-making, and need to know whether that’s what is really going on here. But I’m not sure that we actually need to have strong views on this subject. Although that’s a bit of a problem for me personally, since this subject happens to be the topic of my dissertation, in the real world, we can usually get on without figuring out, or indeed having much to say about, philosophical questions that have bedevilled our predecessors these past 700 years. Then again, I’m not sure that this getting on will always get us to the right result. In some difficult cases, a judge’s legal philosophical commitments can make a real difference. (Think of the disagreement between the majority and the dissent on the legal question in the Patriation Reference.) To be honest, I’m as confused as Justice Cromwell.

To Track or Not to Track?

There was an interesting article in the New York Times this weekend about the brewing fight around “do not track” features of internet browsers (such as Firefox or Internet Explorer) that are meant to tell websites visited by the user who has enabled the features not to collect information about the user’s activity for the purposes of online advertising. Here’s a concrete example that makes sense of the jargon. A friend recently asked me to look at a camera she was considering buying, so I checked it out on Amazon. Thereafter, for days on end, I was being served with ads for this and similar cameras on any number of websites I visited. Amazon had recorded my visit, concluded (wrongly, as it happens) that I was considering buying the camera in question, transmitted the information to advertisers, and their algorithms targeted me for camera ads. I found the experience a bit creepy, and I’m not the only one. Hence the appearance of the “do not track” functionalities: if I had been using a browser with a “do not track feature”, this would presumably not have happened.

Advertisers, of course, are not happy about “do not track.” Tracking our online activities allows them to target very specific ads at us, ads for stuff we have some likelihood of being actually interested in. As the Times explains,

[t]he advent of Do Not Track threatens the barter system wherein consumers allow sites and third-party ad networks to collect information about their online activities in exchange for open access to maps, e-mail, games, music, social networks and whatnot. Marketers have been fighting to preserve this arrangement, saying that collecting consumer data powers effective advertising tailored to a user’s tastes. In turn, according to this argument, those tailored ads enable smaller sites to thrive and provide rich content.

The Times reports that advertisers have been fighting the attempts of an NGO called the W3C (for “World Wide Web Consortium”) to develop standards for “do not track” features. They have also publicly attacked Microsoft for its plans to make “do not track” a default (albeit changeable) setting on the next version of Internet Explorer. And members of the U.S. Senate are getting into the fight as well. Some are questioning the involvement of an agency of the US government, the Federal Trade Commission, with W3C’s efforts, while others seem to side against the advertisers.

The reason I am writing about this is that this may be another example of the development of new rules happening before our eyes, and it gives us another opportunity to reflect on the various mechanisms by which social and legal rules emerge and interact, as well as on the way our normative systems assimilate technological development. (Some of my previous posts on these topics are here, here, and here.)

W3C wants to develop rules―not legally binding rules of course, but a sort of social norm which it hopes will be widely adopted―regulating the use of “do not track” features. But as with any would-be rule-makers, a number of questions arise. The two big ones are ‘what legitimacy does it have?’ and ‘is it competent?’ As the Times reports, some advertisers are, in fact raising the question of W3C’s competence, claiming the matter is “entirely outside their area of expertise.” This is self-serving of course.  W3C asserts that it “bring[s] diverse stake-holders together, under a clear and effective consensus-based process,” but that’s self-serving too, not to mention wishy-washy. And of course a claim can be both self-serving and true.

If not W3C, who should be making rules about “do not track”? Surely not advertisers’ trade groups? What about legislatures? In theory, legislatures possess democratic legitimacy, and also have the resources to find out a great deal about social problems and the best ways to solve them. But in practice, it is not clear that they are really able and, especially, willing to put these resources to good use. Especially on a somewhat technical problem like this, where the interests on one side (that of the advertisers) are concentrated while those on the other (the privacy of consumers) are diffused, legislatures are vulnerable to capture by interest groups. But even quite apart from that problem, technology moves faster than the legislative process, so legislation is likely to come too late, and not to be adapted to the (rapidly evolving) needs of the internet universe. And as for legitimacy, given the global impact of the rules at issue, what is, actually, the legitimacy of the U.S. Congress―or, say, the European Parliament―as a rule-maker?

If legislatures do not act, there are still other possibilities. One is that the courts will somehow get involved. I’m not sure what form lawsuits related to “do not track” might take―what cause of action anyone involved might have against anyone else. Perhaps “do not track” users might sue websites that refuse to comply with their preferences. Perhaps websites will make the use of tracking a condition of visiting them, and sue those who try to avoid it. I’m not sure how that might work, but I am pretty confident that lawyers more creative than I will think of something, and force the courts to step in. But, as Lon Fuller argued, courts aren’t good at managing complex policy problems which concern the interests of multiple parties, not all of them involved in litigation. And as I wrote before, courts might be especially bad at dealing with emerging technologies.

A final possibility is that nobody makes any rules at all, and we just wait until some rules evolve because behaviours converge on them. F.A. Hayek would probably say that this is the way to go, and sometimes it is. As I hope my discussion of the severe limitations of various rule-making fora shows, making rules is a fraught enterprise, which is likely to go badly wrong due to lack of knowledge if not capture by special interests. But sometimes it doesn’t make sense to wait for rules to grow―there are cases where having a rule is much more important than having a good rule (what side of the road to drive on is a classic example). The danger in the case of “do not track” might be an arms race between browser-makers striving to give users the ability to avoid targeted ads, or indeed any ads at all, and advertisers (and content providers) striving to throw them at users.  Pace the president of the Federal Trade Commission, whom the Times quotes as being rather optimistic about this prospect, it might actually be a bad thing, if the “barter system” that sustains the Internet as we know it is be caught in the crossfire.

Once again, I have no answers, only questions. Indeed my knowledge of the internet is too rudimentary for me to have answers. But I think what I know of legal philosophy allows me to ask some important questions.

I apologize, however, for doing it at such length.

A Forecast on Suing the Weatherman

First of all, apologies for my disappearance. The last two weeks have been hectic, and I have been most neglectful of the blogging duties. I hope to resume them now.

My first comeback post will be a lighthearted one though. The New York Times Magazine has an entertaining piece―actually, an adaption of a excerpt from a book on prognostication by Nate Silver―on the science and art (there is, still, a good deal of art) of the weather forecast. Whatever we might think in our more cynical days, Mr. Silver says that the accuracy of these forecasts has increased a great deal over the last few decades:

In 1972, the  [National Weather S]ervice’s high-temperature forecast missed by an average of six degrees [Farenheit] when made three days in advance. Now it’s down to three degrees. … Perhaps the most impressive gains have been in hurricane forecasting. Just 25 years ago, when the National Hurricane Center tried to predict where a hurricane would hit three days in advance of landfall, it missed by an average of 350 miles. If Hurricane Isaac, which made its unpredictable path through the Gulf of Mexico last month, had occurred in the late 1980s, the center might have projected landfall anywhere from Houston to Tallahassee, canceling untold thousands of business deals, flights and picnics in between — and damaging its reputation when the hurricane zeroed in hundreds of miles away. Now the average miss is only about 100 miles.

Now 100 miles still seems like a lot to me. (It’s comparable with the radius of a hurricane itself.) Still the accuracy of the forecasts is improving – fast. Now to the legal part of the post.

For the moment, even if I rely on a negligently prepared forecast (and is Mr. Silver notes, it is not “unheard-of for a careless forecaster to send in a 50-degree reading as 500 degrees”―with all the consequences imaginable, if the error is not caught before the figure is fed into the computer and wrecks all the forecasts it produces) and have a miserable day as a result, or even suffer material losses, I cannot sue the weatherman. Technically, that is because he owes no duty of care to the general public. But then the manufacturer of ginger ale in Donoghue v. Stevenson also thought he owed no duty of care to those who drank his snail-infested brew.

It is said that courts quietly subsidized the industrial revolution by employing all manner of legal doctrines to deny compensation to its victims―workers, consumers, and bystanders alike. But as the revolution became the new normal, the subsidy was no longer necessary, and so it was withdrawn, sometimes by legislation, and sometimes by courts themselves. One way of seeing the Donoghue v. Stevenson case is that it was an indication that thenceforth, manufacturers would be held to a duty of care towards consumers, where none was imposed before―not only, because of the injustice of denying compensation to the consumer, but also because manufacturing was no longer a new, and therefore inherently uncertain, process that could never really be trusted to deliver consistently reliable results.

So here’s my question. As the accuracy and reliability of the forecasts increases, will there come a point at which courts impose a duty of care on forecasters, so that suing the weatherman will no longer be impossible?

Unsettling Settlement

I blogged some time ago about a settlement between an unspecified group of plaintiffs and Facebook regarding Facebook’s approach to what it calls “sponsored stories” which tell us that such and such friends “like” a certain company’s page. I raised some questions about the way in which this settlement works to create new rules, social and/or legal.  Is the influence which the plaintiffs (rather than any number of similarly situated individuals or groups) acquire over the formation of these rules by virtue of being the first to sue and settle with Facebook legitimate? Even apart from legitimacy, is it a good thing from a policy standpoint? For example, how do we know that this particular group is motivated by the public interest and, assuming that it is, capable of evaluating it correctly and of being an effective negotiator?

As the New York Times reports today, the judge who had to approve the settlement for it to go into effect also has questions, and will not give his approval until the parties come up with some answers.

As part of the proposed deal, Facebook agreed to better inform users about sponsored stories, to limit their use and to allow people under 18 to opt out of the function. The company also agreed to pay $10 million to a dozen research and advocacy groups that work on digital privacy rights, and $10 million to cover legal fees for the plaintiffs. But the settlement did not inhibit Facebook from continuing to serve up sponsored stories.

On Friday, Judge Richard G. Seeborg of United States District Court in San Francisco rejected the draft order and asked both sides to justify how they had negotiated the dollar amounts. “There are sufficient questions regarding the proposed settlement,” he wrote.

…

Judge Seeborg said he wanted clarification on whether there could be relief for the millions of Facebook users whose names and photographs had already been used.

From this report, it looks like Judge Seeborg is worried, as I was, about the legitimacy of the settlement as a rule-making procedure, as a “mode of social ordering,” to use Lon Fuller’s language. How do we know, he asks, that the agreement the parties reached makes sense? Is it fair to those who did not take part in the settlement negotiations but will end living by those rules with which the parties have come up as a result of an nontransparent process? Are we sure the settlement does not just benefit the parties, their pet charities, and the plaintiffs’ lawyers?

Those are sensible questions. The trouble is, as I wrote in my first post on this topic, that even if we conclude that the settlement is not an appropriate mode of social ordering, the alternatives aren’t great either. Legislation is slow and thus ill-suited to regulating an area in which change is constant and very fast. (A post by Stewart Baker at the Volokh Conspiracy, describing a proposed law that would have killed Gmail in its infancy by requiring the consent of both sender and receiver of an email for the email service to be able to scan its contents to serve up ads, shows just how ill-suited it can be. Social expectations of privacy have moved faster than the legislative process; Gmail now has close to half a billion users; and the proposed law is no more than a somewhat embarrassing memory.) And adjudication comes with serious problems of its own, which I described in the original post.

As then, I still don’t see any good way out of this conundrum.

In with the New?

Last week, I suggested that “[n]ew technologies seem not so much to create moral issues as to serve as a new canvass on which to apply our old concerns.” But there is no doubt that our legal rules, unlike perhaps moral ones, need updating when new technology comes along. How this updating is to happen is a difficult question. Lon Fuller, in his great article on “The Forms and Limits of Adjudication,” distinguished “three ways of reaching decisions, of settling disputes, of defining men’s relations to one another,” which he also called “forms of social ordering”: elections (and, one has to assume, resulting legislation), contract, and adjudication. All three can be and are used in developing rules surrounding new technologies, and the distinctions between them are not as sharp as Fuller suggested, because they are very much intertwined. Some recent stories are illustrative.

One is a report in the New York Times about a settlement between an unspecified group of plaintiffs and Facebook regarding Facebook’s approach to what it calls “sponsored stories” which tell us that such and such friends “like” a certain company’s page. Pursuant to the settlement, Facebook “will amend its terms of use to explain that users give the company permission to use their name, profile picture and content [and] offer settings that let users control which of their actions — which individual like, listen, or read — will appear in Sponsored Stories.” More than the (substantial) costs to Facebook, what interests me here is the way in which this settlement establishes or changes a rule – not a legal rule in a positivist sense, but a social rule – regulating the use of individuals’ names and images in advertising, introducing a requirement of consent and opt-out opportunity.

What form of social ordering is at work here? Contract, in an immediate sense, since a settlement is a contract. But adjudication too, in important ways. For one thing, the settlement had to be approved by a court. And for another, and more importantly, it seems more than likely that the negotiation would not have happened outside the context of a lawsuit which it was meant to settle. Starting, or at least credibly threatening, litigation is probably the only way for a group of activists and/or lawyers to get a giant such as Facebook to negotiate with them – in preference to any number of other similar groups – and thus to gain a disproportionate influence on the framing of the rules the group is interested in. Is this influence legitimate? Even apart from legitimacy, is it a good thing from a policy standpoint? For example, how do “we” – or does anyone – know that this particular group is motivated by the public interest and, assuming that it is, capable of evaluating it correctly and of being an effective negotiator? I think these are very troubling questions, but there are also no obvious ways of preventing social ordering through adjudication/negotiation even if we do conclude that it is problematic.

That is because alternative modes of social ordering are themselves flawed. Legislation is slow and thus a problematic response to new and fast-developing technologies. And adjudication (whether in a “pure” form – just letting courts develop rules in the process of deciding cases – or in the shape of more active judicial supervision of negotiated settlements) comes with problems of its own.

One is the subject of a post for Forbes by Timothy B. Lee, who describes how the fact that judges are removed from the communities that are subject to and have to live with the rules that they develop leads them to produce rules that do not correspond to the needs of these communities. One example he gives is that “many computer programmers think they’d be better off without software patents,” yet one of the leading judges who decides cases on whether there should be such patents “doesn’t have a very deep understanding of the concerns of many in the software industry. And, more to the point, he clearly wasn’t very interested in understanding those concerns better or addressing them.” Mr. Lee believes that this would be different if the judges in question happened to have friends or family members among the ranks of software developers. Perhaps – but, as he acknowledges, it is not possible for judges to have personal connections in every walk of life. Even trying to diversify the courts will only do so much. Furthermore, the individual experiences on which Mr. Lee thinks judges should rely might be atypical and thus tend to produce worse, rather than better, rules. Here too, questions about just how much judging ought to be informed by personal experience – as a matter both of policy and of legitimacy – are pressing.

Another set of questions about the courts’ handing of new technologies is the subject of a great paper by Kyle Graham, a professor at Santa Clara University and the author of the entertaining Non Curat Lex blog. Focusing on the development of liability rules surrounding new technologies, and using the examples of some once-new gadgets, mostly cars and planes,  prof. Graham points out that

[t]he liability rules that come to surround an innovation do not spring immediately into existence, final and fully formed. Instead, sometimes there are false starts and lengthy delays in the development of these principles. These detours and stalls result from five recurring features of the interplay between tort law and new technologies … First, the initial batch of cases presented to courts may be atypical of later lawsuits that implicate the innovation, yet relate rules with surprising persistence. Second, these cases may be resolved by reference to analogies that rely on similarities in form, and which do not wear well over time. Third, it may be difficult to isolate the unreasonable risks generated by an innovation from the benefits it is perceived to offer. Fourth, claims by early adopters of the technology may be more difficult to recover upon than those that arise later, once the technology develops a mainstream audience. Fifth, and finally, with regard to any particular innovation, it may be impossible to predict whether, and for how long, the recurring themes within tort law and its application that tend to yield a “grace” period for an invention will prevail over those tendencies with the opposite effect. (102)

I conclude, with my customary optimism, that there seem to be no good ways of developing rules surrounding new technologies, though there is a great variety of bad ones. But some rules there must be, so we need to learn to live with rotten ones.