Acting Like Grown-Ups

Is there a point to legislating when judges can do it for us?

I would like to elaborate on a point I made in my last post, which discussed arguments at the Supreme Court on Monday about whether the suspension of the declaration of unconstitutionality of the across-the-board criminalization of assisted suicide should be extended. I said that while it is true that, with the decision in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the Supreme Court has laid down the constitutional foundation on which an eventual legal framework for the regulation of assisted suicide will have to be built, it would still be better if elected officials ― and through them, the citizens of Canada ― took responsibility for the building. As I noted, the argument of Joseph Arvay, who made the case against the extension, implied that this was not so ― that the judicial process was sufficient to construct this regulatory framework, with no need for legislative intervention, save perhaps for “bells and whistles.” And indeed, what’s the point of the plodding work of legislation if the courts show us the way to go?

This question does not only arise in the context of assisted suicide. Indeed, as the Supreme Court noted in Carter, the declaration of unconstitutionality that it issued in that case was tailored to its specific facts, making “no pronouncement on other situations where physician-assisted dying may be sought” ― so that legislative action is certainly necessary if these any of these other circumstances are to be encompassed by the regulatory framework. But the issue I have in mind is, if anything, even more pressing in other cases. The legalization of same-sex marriage, more than a decade ago now, is one obvious example. It could ― and would ― have been effected through the judicial process, as court after court struck down opposite-sex definition of marriage. There was no need for Parliament to intervene. But Parliament did intervene, after a notorious bit of political theatre involving a reference to the Supreme Court. Was that a good thing? I think it was.

Probably not because legislation can, as the federal government argued before the Supreme Court on Monday, generate “buy-in” from stakeholders, or broader social acceptability, than a judicial decision. This sounds like an empirical claim, and while we cannot run a controlled experiment to verify it (we cannot enact the same policy by legislation and by judicial decision for the same population and see which generates more social acceptability), we can consider some indirect evidence. For example, in the United States, marriage equality seems to have been easily enough accepted, despite a couple of well-publicized instances of officials defying the Supreme Court’s decision to mandate it. By contrast, President Obama’s healthcare reforms remain deeply controversial, despite having been put in place by legislation. It would at least seem that the way in which a rule comes into being does not foreordain its acceptance or rejection by the citizenry.

Rather, I think that a polity taking responsibility for its laws by enacting them democratically, even if it is spurred to do so by judicial decisions, is a good thing in itself, regardless of the felicitous consequences it does or does produce, or at least the worthy and responsible thing to do. My thinking here is inspired by Jeremy Waldron, and specifically by an argument he makes in his paper called “How Law Protects Dignity.” Building on Lon Fuller’s idea that rule-based governance only makes sense if one regards human beings as responsible and capable of self-direction ― as endowed, indeed, with dignity ―, Waldron writes that

legal systems … work by using, rather than short-circuiting, the agency of ordinary human individuals. They count on people’s capacities for practical understanding, for self-control, for self-monitoring and modulation of their own behaviour in relation to norms that they can grasp and understand. (7)


[e]ven when the self-application of general norms is not possible and institutional determination is necessary, either because of disputes about application or because application inherently requires an official determination, still the particular orders that are eventually issued at law look towards self-application. (7)

People ordered to pay damages tend to pay up without the bailiffs seizing their property; even convicted criminals are often allowed to show up to serve their sentence at a pre-determined date without being forcibly brought to prison by the police. Prof. Waldron concludes that

[t]he pervasive emphasis on self-application is … definitive of law, differentiating it sharply from systems of rule that work primarily by manipulating, terrorizing or galvanizing behavior. And as Fuller recognizes, it represents a decisive commitment by law to the dignity of the human individual. (8)

Conversely, though, the dignified thing to do for a person is to engage in self-application of the law, instead of waiting to be physically coerced into compliance.

Prof. Waldron writes about the application of law to individuals. And he cautions elsewhere about the potential problems that can arise if we start applying dignitarian ideas to groups, especially to groups such as nations and states. Still, I think that it makes sense to transpose his ideas about the self-application of the law to the level of political communities.

This transposition goes something like this. Constitutional law is the law that binds the citizens of a polity in their collective political action. And, like other forms of law, it counts in the first instance on the people and, especially, the political actors application its rules to themselves, which is why I get so exercised when they do not. However, perhaps even than with other areas of the law, constitutional law is subject to disputes about its application. As with other areas of the law, courts are often called upon to settle these disputes. But it remains the case that, as with other areas of the law, self-application matters even in the realm of compliance with specific court orders. A community’s self-application of constitutional judicial decisions can take many forms ― and the enactment of legislation that implements judicial decisions, even if it is not strictly speaking necessary, is one of them. It is the political equivalent of a judgment debtor writing a cheque to his erstwhile adversary. It is the dignified thing to do.

Or think of it, if you will, a sign of acting like an adult, of doing what one has to do, instead of having others do things for you and to you. Even responsible adults sometimes have to be reminded of their obligations, and they might not always be as graceful as one might wish in complying with them. Still, it is a sign of maturity and responsibility when they do end up complying with them on their own, instead of being dragged kicking and screaming, like an unruly child might be. Our polity does not always live up to this ideal. We often let provisions declared unconstitutional remain on the books, for instance. (The prohibition on prisoners voting, struck down in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, but still a part of the Canada Elections Act (as par. 4(c)), is just one example.) But it is ironic and sad when, as was the case on Monday, defenders of individual rights argue that we can freely dispense with the effort of making good on our constitutional commitment to respect them because the judges can do the work for us.

Portalis versus Bentham (Part I)

A couple of years ago, I wrote about Jeremy Bentham’s pamphlet “Law as It Is, And as It Is Said to Be,” also (or better) known as “Truth versus Ashurst” (available here, at p. 145), most famous ― or infamous ― for its “dog law” diatribe against the common law. In the last part of the essay, Bentham called for the turning of “what there is good of common law … into such that “what is common in both to every class of persons were put into one great book (it need not be a very great one) and what is particular to this and that class were made into so many little books,” (149) written in simple, accessible terms the contents of which everyone would learn at school and at church. The countries that have taken Bentham’s advice and codified their law, however, found that this was not enough to “deliver [them] out of the clutches of the harpies of the law.” (150) But then, unlike Bentham, they probably did not expect that it would have any such effect.

Jean-Étienne-Marie Portalis, one of main drafters of the French Civil Code (a.k.a. the Code Napoléon), took a rather more realistic view of what his and his colleagues’ work would accomplish for simplifying the law and making it more accessible. He also had a much more sophisticated view than Bentham ― or those who followed Bentham in deriding “judge-made” law ― had of the judicial role in developing and expounding the law. He is not, I think, well known at all in English-speaking world, so it is worth presenting some of the ideas he develops in the “Preliminary Address on the First Draft of the Civil Code” which he wrote and delivered on behalf of his co-authors. (The original French version is available here, by the way, and an explanatory note, here; and kudos to the federal Department of Justice for having put it online ― though I’ll use my own translation, in what follows, and not the government’s. Google Books also has a freely-accessible volume in which the address is printed along with other materials relative to Portalis’s work on the Civil Code.)

In this post, I will cover some of Portalis’s views on the role of legislation and that of jurisprudence generally. In a subsequent one, I’ll talk in more detail about his views on adjudication, including those on what for Bentham was the “dog law” problem of case law. I might also have a third post dealing with some of Portalis’s ideas that belong more to the realm of political than that of legal philosophy.

Unlike Bentham, Portalis had a respectful attitude to the past and to the law which it had bequeathed to his generation ― even though he was engaged in the task of reforming this law. “What a task it is,” he exclaimed,

to draft the civil laws for a great people! The work would be beyond human strength, if it consisted in giving to this people entirely new institutions, and if … one disdained taking advantage of the past’s experience, and of that tradition of good sense, of rules and maximes, which came to us, and which forms the spirit of the centuries.

Rather like Bentham, in some moods, Portalis was a conservative, or perhaps a Hayekian avant l’heure, cautioning that “one must be sober of innovation in matters of legislation, because while is possible, in a new institution, to calculate the advantages that theory offers us, it is not possible to know all the drawbacks which only practice can discover,” and going so far as to claim that only geniuses with all-encompassing minds are entitled to “propose changes” to the laws. Most changes that are actually made into law turn out to be failures.

At most, the drafters of a code could try to simplify the law. Yet even that worthy task is a dangerous undertaking, because it runs the danger of “leaving citizens without rules and without guarantees of their greatest interests.” Unlike Bentham, who thought that the law could be kept short, simple, and accessible, Portalis warned that short laws are never enough for growing and complex societies. The fantasies of reducing the law to the size of the Roman Twelve Tables ignore all the subsequent development of Roman law. And it is doubtful that even a simple legal code would be accessible to every person in society.

Moreover, the role of the drafters of a civil code is not to “foresee everything.” Indeed, “wishing to settle and to foresee everything” is a “dangerous temptation,” which Portalis was proud of having avoided. Society, Portalis argued, is too complex for legislation to regulate everything in advance. The legislator’s foresight cannot be all-embracing; it cannot anticipate the growth and changes of society; there are things that we can only learn from experience. Yet

statutes, once drafted, stay as they were written. Men, however, never rest; they always act; and this movement, which never stops, and whose effects are variously modified by the circumstances, throws up at every moment some new combination, some new fact, some new result.

Portalis added that “experience must fill one by one the blanks that we leave. The codes of the peoples are made over time; but, strictly speaking, they are not made.” Again, this is a spirit which, if we are familiar with it at all, we in the English-speaking world mostly associate with Hayek ― presented, in clear terms, 170 years before Law, Legislation and Liberty.

And how is law to be adapted to this incessant movement of human affairs? It is the judges, ultimately, who must do it. Legislation, says Portalis, can only fix the general principles, while “it is the judge and the lawyer who, imbued with the general spirit of the laws, must direct their implementation.” While Bentham thought the very existence of a common law developed ― or, as he claimed, “manufactured” ― by judges a calamity, Portalis thought it an inextricable part of law-based government. (Portalis uses the expression “nations policées,”which the federal government’s translation renders by “civilized nations,” but I don’t think that the emphasis is on civilization so much as on “a government of laws, not of men,” or at least “rule by law” is not “rule of law”; Portalis contrasts the nations he has in mind with Turkey, which was not so much uncivilized as ― in his telling anyway ― lawless.) In polities where the law prevails,

there emerges, beside the sanctuary of statutes, and under the legislator’s watch, a store of maxims, decisions, and doctrine, which works itself pure every day through practice and the clash of judicial debates, which always increases with all acquired knowledge, and which has always been considered to be the true supplement of legislation.

Portalis adds, later on, that even though the legislature must “keep watch over the case law,” and can correct it, it is necessary for case law to exist.

The idea of the law working itself pure is, of course a familiar one to common lawyers, or at least to the sort of people whom others, more cynically minded, might see as common law romantics. It is striking to see it expressed, in those very terms (Portalis uses the word “s’épure“), by the great French codifier. But then, it’s not exactly a new observation that it sometimes by looking at the thoughts and the customs of others that we learn more about our own, and perhaps even come to appreciate them in new ― or in old but forgotten ― ways.

UPDATE: I decided to do some extra research after having hit the “publish” button, and came across an article by Michel Morin called “Portalis c. Bentham ? Les objectifs assignés à la codification du droit civil et du droit pénal en France, en Angleterre et au Canada.” I haven’t read it yet (I will before writing my next post on Portalis), but it seems very interesting. Most importantly, however, I wanted to acknowledge having been beaten to this post’s title ― and plead guilty to haste, but not to copying.

Precedent and Democracy

“Long-standing” precedent is generally regarded as more authoritative than one of recent vintage. But there is reason to question that assumption, too. The more ancient a rule, the more likely it is that the reasons that made it sensible or good (whatever one’s criteria for the goodness of legal rules!) at the time it crystallized or was laid down no longer hold true. In the extreme case, we are left with the situation that Oliver Wendell Holmes famously decried in “The Path of the Law,” 10 Harv. L. Rev. 457 (1897):

[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

So which sort of precedent deserves greater deference ― old or new? One consideration that tends to be missing from the debates about the authoritativeness of precedent ― even though it is a popular argument in the broader debate about the authoritativeness and legitimacy of “judge-made” (or, to borrow a less loaded term from Lon Fuller, “adjudicative”) law ― is legislative acquiescence.

It is often said that adjudicative law is democratically legitimate because, even though the courts in whose decisions it is set out are not in a meaningful sense democratic, legislatures could change the rules of adjudicative law that they do not like. Their failure to act is regarded as a sign of consent to the rules set out by courts, a democratic confirmation, albeit a tacit one, of the suitability of these rules for the community. Now, the acquiescence thesis does not strike me as entirely plausible, because the mass of case law is such that legislatures seem to me not very likely to be aware of all of its developments, still less to have the opportunity to respond to them in a timely fashion. But there is at least some truth to it, even if not enough to make it the conclusive argument for the legitimacy of adjudicative law its many proponents think it.

If we accept the acquiescence thesis, it would seem that long-standing precedents do have more authority than recent ones. The older a precedent, the more plausible the claim that the legislature has acquiesced to it.  The longer a precedent has been around, and especially the more subsequent judicial decisions have relied on it (admittedly, not necessarily a perfectly correlated fact), the more likely it seems that the legislature will become aware of it. People who stand to be affected by it and who are unhappy about the situation will, presumably, at least try to interest the legislature in their plight. And, given enough time, the legislature might respond.

But now, consider a somewhat stronger version of the acquiescence thesis. This stronger version holds that legislatures do not merely acquiesce to the rules of adjudicative law, but actually, albeit again implicitly, delegate rule-making responsibilities to courts, in more or less the same way  as they delegate such responsibilities to the executive branch of government. Again, I do not find this an entirely persuasive claim; I’m not sure that legislative silence on a certain point can really be taken as an invitation for the courts to deal with it rather than a merely lack of attention or even a deliberate decision not to regulate. Still, again, the delegation thesis is at least sometimes true. Legislatures do enact very general, even vague, statutes which they expect the courts to elaborate into more detailed regulatory schemes. And perhaps legislatures have in fact a more general expectation that if a problem arises with the law, the courts will deal with it ― it is hard to tell.

But if, or to the extent, that the delegation thesis is true, the courts should be quite proactive in responding to changing social conditions. They should then also be more suspicious of, rather than more deferential to, older precedents. The reasons that justified the precedent may have disappeared with the changes in society, the growth of our knowledge (scientific, economic, etc.), or even the development of other areas of the law.

Note, by the way, that the acquiescence and the delegation thesis are actually very close. The latter is only a mildly stronger version of the former. Indeed the delegation thesis depends on the acquiescence thesis for whatever normative validity it might have. If the legislature is not actually in a position to review and either consent to or revise adjudicative law, then it seems quite wrong for it to delegate legislative power to courts. (Though it might still be wrong for it do it even if the acquiescence thesis holds ― a point for a separate post, perhaps.) The difference between acquiescence and delegation seems to be only a matter of perspective: does the legislature consider the work of courts beforehand or retrospectively? In fact, to the extent the legislature does consider adjudicative law at all, it seems plausible that it does both, looking at what courts have done on an issue in the past and at what they might do in the future.

And yet, when it comes to the effect of time on authority of a precedent, the acquiescence and the delegation thesis seem to suggest opposite conclusions. I am not sure what to make of all this.

Bad Poetry

“A statute is written to entrap meaning, a poem to escape it.” So writes Hillary Mantel in Bring Up the Bodies. That’s true ― normally. But some statutes are in fact written to escape meaning rather than to capture it. They are usually bad statutes, and often bad poetry. What was first mooted as the Charter of Secularism, then became the Charter of Québec Values, and has now become Bill no. 60: Charter affirming the values of State secularism and religious neutrality and equality between women and men, and providing a framework for accommodation requests ― which, following André Pratte, I will from now on refer to, for brevity and clarity’s sake, as the Charter of Shame ― is a case in point.

I have criticized the Charter of Shame repeatedly (my posts on its various versions are collected here), arguing that it was unjust, illiberal, discriminatory, and indeed reminiscent of some (early) Nazi laws. All of these criticisms remain in force. The bill that Bernard Drainville finally presented yesterday differs only in minor ways from the proposals made public a couple of months ago. But having the text of the bill (a pdf document is available here) makes it possible to examine not only the substance but the form which the PQ’s xenophobia has taken.

The bill’s very first clause is a muddle:

In the pursuit of its mission, a public body must remain neutral in religious matters and reflect the secular nature of the State, while making allowance, if applicable, for the emblematic and toponymic elements of Québec’s cultural heritage that testify to its history.

But the real question, all long, has been what it means to “remain neutral in religious matters.” Does it, for instance, mean not having town council meetings open with prayers? What if the prayer, as the Québec Court of Appeal has held, is not really a religious exercise but an element of Québec’s cultural heritage? Can a prayer really be that? The bill does nothing to answer these questions ― it is not meant to.

Consider next the Charter of Shame’s most discussed and most controversial provision, the ban on public employees wearing religious symbols. Mr. Drainville used little drawings to explain that it is meant to apply to the Muslim veil or the yarmulke, as well to large crosses,  but not to  small crosses, or crescent or star of David pendants. But a bill cannot use pitcograms ― it has to find a verbal formula to convey meaning. They say that an image is worth a thousand words, but clause 5 of the Charter of Shame makes do with just 33:

In the exercise of their functions, personnel members of public bodies must not wear objects such as headgear, clothing, jewelry or other adornments which, by their conspicuous nature, overtly indicate a religious affiliation.

What meaning does it convey though? Does a hijab have a “conspicuous nature”? Perhaps to Mr. Drainville it does. To those less fearful of people who look differently from themselves, it might not. To an Islamist fanatic, it is not the hijab but an uncovered head that is conspicuous. A court called upon to interpret this provision will not adopt a fanatic’s viewpoint ― but must it adopt Mr. Drainville’s? Conversely, a small cross of the sort that many Christians surely “overtly indicates a religious affiliation,” and ― depending on just how it is worn ― it can easily be visible. Who says it is not conspicuous?

Another well-publicized requirement of the Charter of Shame is the ban on full face veils that applies both to public employees and to those receiving public services. But does it? Clause 7 provides that “[p]ersons must ordinarily have their face uncovered when receiving services from personnel members of public bodies” (emphasis mine), and its second paragraph specifically contemplates the possibility of “accommodation.” Presumably, Mr. Drainville is not quite heartless enough to throw niqab-wearing women out of emergency rooms, but reading this bill, we can hardly tell.

And so it goes on, from fudge to equivocation to understatement. Will the obligations imposed by the Charter of Shame apply to those in the private sector who do business with the government? If the government so decides if “warranted by the circumstances” (clause 10). What will happen to employees who refuse to take off a religious symbol? They’ll get a talking to (clause 14). And what then? Will they be fired? Silence.

It is a staple of formal accounts of the Rule of Law that making law public is likely to make it, if not substantively better, then at least less bad, because legislators do not like to make their bad intentions clear. Yet we know that this is not always so; openly iniquitous laws are sometimes enacted. But it is true often enough. And so with the Charter of Shame: it is iniquitous enough, and yet in many ways it dares not proclaim the discrimination it works openly.

It is indeed a statute written to escape its own meaning. It is poetry, poetry of the worst kind, poetry that gives the Vogons’ a run for its money. It must not become law.

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.

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.