Justice Abella has published an op-ed (paywalled) in The Globe and Mail ― yes, another one. It’s being widely shared, with apparent approval, on Canadian law Twitter ― which may or may not reflect the sentiment of the profession more broadly. Justice Abella argues, in a nutshell, that the justice system is hidebound and in dire need of root-and-branch reform to be able to actually provide justice to ordinary litigants. Wanting to improve access to justice is, to be sure, a fine sentiment. However, Justice Abella’s analysis of the system’s problems ― which are real enough ― is remarkably simplistic, and she proposes no solution at all.
Justice Abella writes that the “public [has] been mad for a long, long time” about access to justice and, apparently taking the mad public’s side, wonders “why we still resolve civil disputes the way we did more than a century ago”. Her evidence for the claim that we do so is that in 1906 “Roscoe Pound criticized the civil justice system’s trials for being overly fixated on procedure, overly adversarial, too expensive, too long and too out of date”, and a claim that a an early 20th-century barrister “could, with a few hours of coaching, feel perfectly at home in today’s courtrooms. Can we say that about any other profession?”
Justice Abella attributes this situation to the fact that “the legal system … resist[s] experimenting with justice in order to find better ways to deliver it?” and keeps doing things the way it does for no other reason than “Because we’ve always done it this way”. Comprehensive reform ― not “incremental change” but “a whole new way to deliver justice to ordinary people with ordinary disputes and ordinary bank accounts” ― is necessary.
I have no courtroom experience, let alone ability to judge the public’s mood with any accuracy, so I cannot speak to the accuracy, if any, of what Justice Abella’s description of the justice system’s current state and of the popular reaction to it. I will reiterate that I do not believe that Supreme Court judges can, or should try to, channel “social values” or otherwise make themselves the purported spokespersons of the people. That’s not their job, and a good thing too, because they are supremely unqualified for it. But be that as it may, even if we grant, for argument’s sake, that Justice Abella’s descriptive claims are accurate, it is still the case that her analysis is devoid of all perspective. It considers the issue neither across time, nor in comparison with the state of affairs elsewhere in society. The resulting take is insular and unsound.
A historically informed view of the problem that Justice Abella discusses would have to acknowledge that it is very, very old. I’m no great historian, sadly, but as best I can tell access to justice and the remoteness of the courts from the common people were an issue going at least as far back as the English revolution in the 17th century. The expense and the incomprehensibility of legal proceedigns exercised Jeremy Bentham at the turn of the 19th. And then, as Justice Abella herself observes, they frustrated Roscoe pount in the early 20th, and any number of people in the 21st. People put forward various solutions too ― the puritans tried to establish courts outside London; Bentham was convinced that writing down the common law “into one great book (it need not be a very great one)” that would be “read through in churches, and put into boys’ hands, and made into exercises when they are at school” would do the trick. None of that worked.
One might of course conclude from this that the legal profession and the judiciary are, if anything, even worse than Justice Abella imagines. But isn’t the more plausible explanation for the persistence of access to justice problems that they are genuinely very difficult to solve, rather than that they are caused by laziness and obduracy? I will return to this issue shortly.
Before I do so, though, let me note that it’s simply not true that the rest of society has evolved beyond all recognition while the law has allegedly stood still. The work of academics and (perhaps even more so school teachers) looks much as it did not only 100, but 800 years ago. So does that of people in any number of other trades, if we put to one side the accumulation of technical knowledge, in the same way as Justice Abella puts to one side the evolution of substantive law. Even in medicine, to which Justice Abella appeals as an example of a forward-looking profession unafraid to “experiment with lives”, things are more complicated than she allows. The work of many specialist doctors has no doubt by transformed by all manner of gadgets. But what about that of general practitioners? Is it really so unrecognizable from a century ago?
The thing is, this is not because GPs, or chefs, or professors, are ― like lawyers ― hidebound and smug. Justice Abella simply implies that new and radically different is better, it is not clear why that should be. New can be better, but it need not be. If things are the way they are for some important reason, then ― so long as the reason is still present ― it is wise to keep them as they are, unless some weightier reason impels change.
And this brings me back to the question of why access to justice problems are genuinely difficult to solve. There is, in fact, a good ― although perhaps not a decisive ― reason for having those procedures whose existence so annoys Justice Abella. They are widely thought to promote more accurate decision-making, and they support the human dignity of the people who find themselves in front of the courts by giving them a chance to be heard and, no less importantly, to test and challenge the case that is being made against them. It is for these reasons that some or all of these procedures are required when people’s rights and obligations are being determined not by conventional courts, but by administrative decision-makers. Go back to 1906, and these tribunals often operated very differently, with no procedural safeguards to speak of. Yet this aroused criticism, and the critics prevailed; change came, partly through legislation and partly through decisions of the courts, widely celebrated now although they would have been anathema to the champions of experimentation and efficiency of the Progressive era.
In my last post I wrote about the trade-offs involved in designing administrative procedures. If procedure is good, there can be too much of a good thing. Additional procedural safeguards eventually yield little improvement in terms of more accurate or even more dignity-respecting adjudication, yet their cost, both to the taxpayer and to the parties, can become intolerable. Gerard Kennedy (whom I thank for his kind words about my post) has suggested that Justice Abella made just this point about trade-offs. But, respectfully, that’s not how I read her op-ed. There is no acknowledgment of trade-offs in Justice Abella’s argument; she does not recognize that there are reasons, beyond simple resistance to change and unwillingness to “experiment”, for the system being as it is. She blames the legal profession’s conservatism, and has no time for other considerations.
All that is not to say that there need be no reforms. My own preference, expressed since the earliest days of this blog, is for deregulating the legal profession. Justice Abella, I rather suspect, might not be on board with this particular experiment, but I would love to see it. Lack of competition is bound to make the legal system less innovative than it might be, so bringing about more of it is likely to ameliorate the problems Justice Abella is concerned about. But we should not delude ourselves about how much this, or any other, reform might accomplish. For one thing, so long as the state exists, the court system, if not the legal profession, is bound to remain a monopoly. Sure, alternative dispute resolution exists, but it is not suitable for resolving certain kinds of disputes. And, beyond that, those trade-offs, and the need for a system that provides substantive justice and procedural fairness, and not only expediency, is not going away.
Put to one side the question of whether a person who is sitting at the apex of the legal system, and has been for 16 years, who has been a judge for almost 45, who has accepted innumerable plaudits from the legal profession and academy, should really be criticizing the system as if she is not part of it. Leave it to moral philosophers. But we need not wait for their judgment to say that Justice Abella’s argument is driven by the conceit that solving the problems she identifies would be easy if only the system were less stuck in the past and more willing to try new approaches. The fact that she does not even begin to tell us what these approaches might be ― that she proposes no new idea, even one as daft as Bentham’s public readings of the not-very-great law book ― should be a hint: things aren’t as simple as she would like us to think.
There is a word for this tactic of setting up an alleged conflict of “the public” or “the people” against some obstructionist, and probably self-interested, elites standing in the way of change; of denying the difficult trade-offs that change would require; of claiming that a transformation of society, such that trade-offs can be dispensed with altogether, is around the corner if only the resolute leaders in communion with the enlightened people were in change. It’s a word that one would not have associated with Justice Abella, but one has to, given that this rhetoric is precisely what she deploys in this op-ed. The word is, of course, “populism”. In the previous op-ed, linked to at the beginning of my post, Justice Abella, denounced populism, arguing that “[m]any countries around the world … have made Faustian bargains, selling their democratic souls in exchange for populist approval.” This was, she wrote, “unconscionable.” But that was then, I suppose, and this is now.
Just as she does with the Rule of Law, alternatively disparaging and extolling it as suits the circumstances or the taste of her audience, Justice Abella can castigate populism or engage in it. One might think this is, indeed, unconscionable. But, perhaps, things are not so bad. As I wrote in commenting on that previous op-ed,
Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority.
She might simply not understand what she is doing. I’m not sure about this, but she really might. Either way, July 1, 2021, when she must at last retire from the Supreme Court, cannot come soon enough.