Judges, Lawyers, and Science

It might have looked like an essentially technical matter, but the Supreme Court’s recent decision in R. v. Tatton, 2015 SCC 33 turns out to be full of interesting things to discuss. I have already written about what it might suggest about the Court’s views on mandatory minimum sentences, and what it tells us about the respective roles of the courts and Parliament in law reform. I come back to it again to follow up on Lisa Silver’s very interesting post over at Ideablawg about the lack of scientific foundations beneath Justice Moldaver’s opinion for a unanimous court.

The narrow question the Court faced in Tatton was whether intoxication can be a defence to a charge of arson ― on the theory that an intoxicated person who puts something (in this case, the house in which he was living, but which belonged to someone else) on fire lacks the requisite “mental element” for the offence. The broader question on which the Court tried to provide guidance was how to distinguish offences for which intoxication can be invoked as an excuse, and those for which it cannot, somewhat confusingly known, respectively, “specific intent” and “general intent” offences. As Ms. Silver notes,

Liberally sprinkled throughout the decision is reference to the inextricable connection between intoxication and crime. …  Despite this heavy reliance on what appears to be scientific truths, at no time did the Court refer to or support the position with scientific study or research.

While a precedent the Court considered did rely on scientific literature, it was, Ms. Silver points out “was rendered in 1994, twenty-one years ago, with the studies coming from the mid to late 1980s.” Ms. Silver discusses ― and links to ― a considerable number of studies carried out since then. Her takeaway from them is that

that the issue is has not been empirically determined and the relationship between alcohol, mental processes, and crime is highly complicated and variable.

Justice Moldaver’s opinion, by contrast, makes things look very simple. Ms. Silver concludes that

Mr. Justice Moldaver relied upon the court’s perception of the “science” … in reiterating a long held position that intoxication is not a defence to a general intent offence without referencing any recent empirical studies … By proceeding on this basis, the Court missed the opportunity to provide some rational basis for the general/specific distinction. Instead, the Court has simply perpetuated a legal fiction.

The Court’s “empirical turn,” most recently exemplified by its decision in  R. v. Smith, 2015 SCC 34, which relied on research regarding the therapeutic effects of various forms of medical marijuana, has not exactly followed a consistent trajectory. There have been missed opportunities such Tatton along the way, or R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, where Justice Cromwell claimed that armed robberies had “become depressingly routine,” despite crime statistics ― to which he did not refer ― suggesting that their incidence was falling. In the rest of this post, I would like to venture some observations on the context in which these missed opportunities and outright misstatements occur.

For instance, it is important to note that the Court is not the only party to ignore the science relevant to its cases. In Tatton, only one of the three facta (that of the Ontario Crown) submitted to the court referred to scientific studies ― and only as a additional support for the claim that “[i]t is well known that many people do foolish and dangerous things when drinking.” [79] The “common sense observation” is what matters in that passage; the scientific evidence is almost an afterthought. The accused and Criminal Lawyers’ Association of Ontario, which intervened to support him, did not manage even that. They were content with citing cases and, at most, reports of law-reform commissions. As Richard Posner says in his Reflections on Judging, the bench and the bar share a lack of familiarity with the sciences, whether social or natural and, worse, a lack of curiosity that results in an unwillingness to investigate the backgrounds against which legal rules operate, to go beyond the “common sense” assumptions which may bear little, if any, resemblance to the scientific truth.

At the same time, it is not enough to blame the lawyers’ narrow-mindedness. The “empirical turn” suggests, after all, that some of them can overcome it at least some of the time. Why not in Tatton though? The nature of the case, I suspect, is an important factor here. In commenting on Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, Sonia Lawrence observed, vividly, that the Charter challenges emblematic of the “empirical turn” “aren’t cases that walk into your office one day. They are cases put together piece by painstaking piece.” Tatton, by contrast, was a case that “walked in the office” of small-town law firm ― perhaps literally. Mr. Tatton was facing a criminal charge. He probably had little money. It’s not quite fair to expect that his lawyers, with his and their limited time resources, would have done as thorough a job of mounting an empirical case as an interest group pursuing a constitutional challenge on its own terms. (Still, not being able to mount a perfect empirical case is no excuse for not even trying to inject at least some scientific background into one’s argument.) In my own take on Bedford, I wrote that “[t]he government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it.” It is perhaps not just coincidental that the only references, however minimal, to scientific literature in this litigation appeared in the Crown’s factum.

Now given the limitations on the lawyers’ willingness and ability to provide judges with the scientific background relevant to the cases they argue, the question arises of whether judges should just find it themselves. Ms. Silver, I suppose, thinks that they should. Judge Posner certainly does, and he actively practices what he preaches. But, in the United States at least, he has a considerable number of critics, who warn that judges who turn to Google to find background information missing from the record built up by the parties are not only acting unfairly by not giving parties notice of their concerns, but also risk committing serious mistakes. (I wrote about a very interesting article by Allison Orr Larsen exploring these issues here.) In Reflections on Judging, Judge Posner retorts that “no one should be so naïve as to believe that the determination of facts by the familiar adversary process at trial is proof against error.” (140) That’s true so far as it goes, but tu quoque isn’t always a very compelling argument. Why should we, one might ask, compound the errors of the courtroom with further errors made in the judge’s chambers? Ultimately, Judge Posner acknowledges these concerns and admits that

[t]here is a danger that judicial recourse to secondary literature, and to the Internet more broadly, will often be rhetorical rather than substantive. I have no solution to this problem—other than to suggest trying through judicial training and other means to increase the intellectual sophistication of the judiciary. (142)

That, as he points out elsewhere in that book, is no easy task.

Indeed, there are no easy solutions to the problems I have tried to canvass in this post. Judicial decision-making that doesn’t try to address empirical evidence or scientific research risks going astray, but so do attempts to take stock of such information. There are longstanding prejudices of all the branches of the legal profession ― including, I’m afraid, the academic branch ― as well as resource constraints to contend with. If Judge Posner has no solution for these problems, I will certainly not pretend to have one either. But perhaps if more of us start thinking about them, we will be able to come up with something.

Inside the Empirical Turn

A judge’s take on dealing with the social science evidence involved in Charter litigation.

I have written about the doubts that I and others have about the increased reliance of Canadian courts on social science evidence in rights litigation. A recent decision of the Supreme Court of Nova Scotia, Trinity Western University v. Nova Scotia Barristers’ Society, 2014 NSSC 395, seems to me to suggest that to some judges, at least, this “empirical turn,” as it’s been described, does not come quite naturally.

The University has applied for judicial review of the Barristers’ Society decision to require it to abandon the “covenant” it imposes on its students, which among other things prevents them from engaging in sex outside a heterosexual marriage, before recognizing its law school’s degrees. The application has not yet been heard on the merits. In the meantime, the University has applied to strike parts of affidavits submitted by the Society’s witnesses, on the basis that they contained “material that amounts to a submission, plea or argument. The concern would be that the arguments might be accorded more weight or deference by virtue of their being sworn and in a report of an expert. Expert opinion and argument can be confused.” [23]

As Justice Campbell explains, these affidavits, despite their ostensible form, “are essentially reports intended to provide expert opinion,” [3] one of them on “the history of discrimination against gays, lesbians and other sexual minorities, the effect of exclusion on sexual minorities and the role that the state has taken in combatting that discrimination” [3] and the other on “the effects of the [University’s] covenant on sexual minorities” and “the impact on recruiting sexual minorities if the [Society] were to recognize degrees from [the University’s] proposed law school.” [4]

Justice Campbell’s explanation of the differences between this evidence and that which courts are used to is worth quoting at length:

[5]     These affidavits, as evidence, occupy a grey area. Affidavits are intended to be statements of facts. They do not contain opinions about evidence or speculation about what evidence could be. But expert reports are intended to convey an opinion based on assumed facts using specialized knowledge, training or experience. These are both affidavits and expert reports. Strictly applying the rules that pertain to affidavits would be impractical.

[6]     Reading through the affidavits gives a sense of just how different they are from the usual, sometimes rather dry, recitation of facts found in an affidavit. They clearly contain information that is not within the personal knowledge of the affiant. Of course they contain opinions. They also include statements that are intended to persuade.

[7]     They are also a departure from what might normally be expected in an expert report. It’s a bit hard at times to differentiate between conclusions based on expertise, assertions of facts, and advocacy.  The reports contain statements about historical events and trends that are supported by their assertion with no intent that they be subject to formal proof.

[8]     The language used is at times powerful. It is at times impenetrably academic. And, at other times takes the form of advocacy. One is not left in any doubt at all about whether these experts have a definite view about what the outcome of the matter should be. … That isn’t what an expert opinion has traditionally sounded like. It isn’t what affidavits have traditionally sounded like either.

[10]   Technically, a report of an expert would contain a statement of assumed facts that would have to be proven in court. The expert would then offer an opinion or a theory relevant to the case, using training, knowledge and expertise of a kind not possessed by the judge. That opinion would be based on those assumed and to be proven facts. That opinion would be testable or verifiable.

[11]   Charter litigation has changed that.

[12]   Social science evidence is critical in making decisions on the interpretation of the Charter especially when those matters involve public policy. Reports from experts in those areas convey a kind of information that may be quite different. The way in which those reports are used by courts can also be quite different. Adjudicative facts are those that are proven by evidence and relate directly to the subject matter of the proceeding. Judges can take judicial notice of facts that are widely known and beyond dispute. Social science evidence or legislative facts fall between those more traditional categories.

[14]   The Supreme Court has noted that when social and legislative facts are put before a trial judge he or she has to “evaluate and weigh that evidence in order to arrive at the conclusions of fact necessary to decide the case”. The trial judge can be involved in a time consuming exercise of reviewing material and reconciling differences between the experts, studies and research results.  Social and legislative facts are also intertwined with adjudicative facts. The judge has to analyze and give appropriate weight to the evidence in its different forms.

[15]   Social science evidence is presented through expert witnesses. The assessment of that evidence relies heavily on the trial judge. Social science evidence will necessarily be different from the reports of experts in the natural sciences. In those areas, where there are controlled experiments, testable predictions, and quantifiable data an expert opinion will usually involve the application of rigorous testing methods. There is no hierarchy of sciences and social sciences are no less rigorous than natural sciences. That statement itself could be the subject further debate requiring expert opinion.  Suffice it to say, social sciences and natural science are just different.

[16]   A trial judge has to consider the reliability of the particular social science evidence. If the report goes beyond the scope of the expertise of the writer, that has to be considered. If it is tendentious, or argumentative, or unbalanced those are considerations as well. Social science evidence that is supported by empirical research may be given different consideration from that which is based on anecdotal observation.

To dispose of the University’s motion, Justice Campbell applied a two-part test developed by Justice Doherty, of the Court of Appeal for Ontario, in R. v. Abbey, 2009 ONCA 624, for the admissibility of such evidence. As he described it,

[17]   …  First, the party who puts forward the evidence has to show the existence of some preconditions to the admissibility of expert evidence. The proposed witness must actually be an expert. The opinion has to relate to a subject matter that is properly the subject of expert evidence.  The opinion has to be logically relevant to a material issue. Finally, the opinion must not “run afoul of any exclusionary rule apart entirely from the expert opinion rule”.  …

[18]   Second, if the trial judge decides that the expert evidence meets the preconditions of admissibility, the issue is whether it’s sufficiently beneficial to the trial process to warrant its admission. That involves a discretionary cost-benefit analysis.  The “costs” in that analysis are “a consumption of time, prejudice, and confusion.” The benefits are found in the potential value of the evidence to actually prove something of significance. Whether the expert evidence does indeed have that potential requires a consideration of the reliability of the evidence. Reliability can be assessed by considering the subject matter of the evidence, the methodology used by the expert, the expert’s expertise and the extent to which the expert is shown to be impartial and objective.

Reviewing the affidavits in detail, Justice Campbell rejected most of the University’s concerns. However, he observed that one of them contained “parts … that amount to commentary on the current state of Canadian society, politics and public opinion,” [40] and the other “advocacy on the very matter before the court … openly and unapologetically argumentative.” [59] Nevertheless, he refused to strike any part of the affidavits, holding that “[t]he elements of argument contained in both involve the kind of prejudice that can be minimized by acknowledging them for what they are.” [60] Justice Campbell added that it was better to let the merits judge see the “report” ― he regularly referred to the purported affidavits in that way ― in its entirety, in effect suggesting, it seems to me, that these argumentative parts might cause the judge to discount the weight to be given to the affidavits’ conclusion.

This slightly subversive conclusion is probably right. Yet it also suggests that my and others’ worries about the “empirical turn” are not groundless. As I explained here, I do not believe we should renounce any and all resort to social science evidence. But as Justice Campbell makes clear, this evidence is quite different from what judges, especially trial judges, are  used to. It almost inevitably contains advocacy, backed by an expert’s aura of credibility on topics judges are likely not be well-versed in. Judges need to pay attention to research methods and weigh the reliability of the studies put before them, but how many of them are trained to do so? Arguably, it would be useful to have some guidelines on dealing with such evidence laid down by appellate courts, but since the Supreme Court held, in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, that they must defer to the trial judges’ findings, they are not really in a position to do so. In short, as I have already suggested, the “empirical turn” could well take us off course.

The Empirical Turn

In a post on the National Magazine’s blog, Kerri Froc discusses (among other things) what she refers to as “the empirical turn in Charter jurisprudence” ― the  tendency of Courts to decide Charter cases on the basis of social science evidence instead of “expounding on the nature of human values embodied by rights.” Perhaps most recent Supreme Court decision exemplifying this trend is the one in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101, which invalidated the provisions of the Criminal Code relative to prostitution. I had some thoughts of own on this topic here, so it is interesting to compare notes.

If I understand her correctly, Ms. Froc worries that increased reliance on social science evidence, in tandem with a narrow and technical approach to the application of the Charter, may lead to “democratic deficits” in rights adjudication. In particular, these twin trends, and the corresponding judicial retreat from more “abstract forms of philosophic reasoning,” cause “Charter analyses to become more divorced from the actual realities represented in the case,” while leaving the courts with excessive discretion in their treatment of the evidence, which they can use to either enable or stifle rights claims. Although Ms. Froc questions whether a more philosophical approach to the Charter would produce “more consistent and democratic outcomes,” she seems to suggest that it would at least be preferable from a process standpoint.

My own doubts about the direction in which the “empirical turn” is leading us concern both process and outcomes. Starting with the latter, my worry is specifically that deferring to findings of social science-based “legislative facts” by trial judges, as Bedford requires appellate courts to do, will lead to more mistakes than either more principle-based judicial decision-making or even a fact-based adjudication that allowed plenary review of such findings of fact on appeal. This is in part because trial judges may lack the skills to engage with social science evidence, and in part because, since trial judges sit alone rather than in panels, mistakes that they will make in assessing such evidence will not be caught before they issue their decisions. Besides, the government, whose resources are much larger than those of any civil-society organization, will be at an advantage in the evidentiary food-fights required by the “empirical turn.” We not are noticing this yet, because the current government is incredibly evidence-averse, and often legislates without bother to collect any facts at all, but that may change with the bill it is preparing in response to the Bedford judgment. Furthermore, the requirement to put together voluminous and complex social-scientific records to support Charter claims can not only lead adjudication astray, but slow down and maybe even prevent the filing of meritorious Charter claims.  As Sonia Lawrence put it, “[i]t’s a long road to justice this way around, folks,” given the time it takes to put together such records (and the money necessary to do so).

As for my process-related concerns, they might, like Ms. Froc’s, also be described as having to do with democracy, at least in a broad sense. One such concern is with accountability. Shifting the weight of rights adjudication from principle-based reasoning by appellate courts to fact-finding at trial risks making it less visible, especially to the media which tend not to devote nearly as much attention to the decisions of trial courts as to those of the Supreme Court. As I wrote in the post linked to above,

under the Supreme Court’s approach in Bedford, by the time a case comes up for appeal, and eventually reaches the highest ― and most visible ― court, it may well already be effectively decided. The Supreme Court can then avoid responsibility for controversial decisions, saying that “the trial judge made us do it.” (Indeed, I wonder whether this was not the real attraction of this approach to the Supreme Court in deciding Bedford.) Call it judicial leading from behind.

My second “democratic” concern with the “empirical” turn is that the costs and difficulty of assembling a trial record required by this approach will make Charter litigation the province of well-funded organizations and interest groups, leaving individuals without such support unable to pursue their claims.

The irony of it all is that the “empirical turn” in rights adjudication is probably motivated by judicial concerns over the “democratic deficit” of judicial decision-making in the realm of social policy and/or morality. As I wrote earlier, it seems likely enough that

the Supreme Court prefers to rely heavily on fact-finding ― preferably on fact-finding by others ― in order to avoid responsibility for controversial decisions, or at least, to put the point less harshly, in order to make such decisions appear more inevitable and hence less questionable and more legitimate.

Yet if Ms. Froc or I are right about the problems we see with the “empirical turn,” this strategy risks backfiring and making judicial review appear deeply problematic, perhaps even “undemocratic” ― to an even greater extent than it necessarily, and rightly, is. The point, as I argued here, is not that courts should ignore social science evidence altogether. In some cases, an “empirical turn” can be a useful contribution, perhaps even a correction, to Charter adjudication. But courts should be aware of its dangers, and should try to mitigate instead of compounding them. If that makes them appear more assertive and powerful, they need to take responsibility. Strong judicial review is not for the faint of heart.

Friends Like These

In my comment on the Supreme Court’s decision striking down the Criminal Code’s provisions on prostitution,  Canada (Attorney General) v. Bedford, 2013 SCC 72, I expressed concern about the Court’s reliance on “legislative facts” ― that is, the social context in which the impugned legislation operates ― to resolve the case, and especially its holding that a trial judge’s findings of legislative fact are entitled to as much deference as findings of “adjudicative facts” ― that is the more mundane facts about the events that give rise to a dispute. An American lawyer, Yaakov Roth, expresses somewhat similar worries in the National Post. Yet he misunderstands or misrepresents the law, and his argument is so tendentious that it does not make the case at all.

Mr. Roth is angry at the Supreme Court’s decisions in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 (usually known as the Insite decision) as well as in Bedford. As he puts it, “using illegal drugs and publicly soliciting prostitution are, to put it mildly, not activities that come to mind when one thinks of fundamental constitutional rights.” And the Court’s fact-finding process is to blame for its bizarre holdings. Requiring appellate courts to defer to the conclusions reached by a trial judge after hearing from “purported experts” “means that a single, anonymous trial judge is authorized to impose his social worldview on the entire country.” Actually, the social facts involved in Charter disputes aren’t facts at all. The costs and benefits of safe injection facilities, the dangers of prostitution within the existing legal framework, or the voluntariness of a choice to break drug or prostitution laws “are social theories, policy conclusions, value judgments and ideological preferences.” Yet policy, values, and ideology are the remit of Parliament, not courts:

turning every social policy issue into a disputed “fact” to be resolved by a single judge after hearing testimony from academics is nothing but a transparent effort to substitute judges’ policy views for those of Parliament.

Unfortunately, whether deliberately or not, Mr. Roth misrepresents both Insite and Bedford, which were actually more modest decision than he makes them out to be. In Insite, the Supreme Court did not hold that there was a constitutional right to use illegal drugs, simply because the question did not arise. The general criminalization of drugs was not at issue. The statute made it possible for the government to exempt a facility such as Insite from its application, however, and it was the decision to withdraw the exemption that was challenged. Similarly, in Bedford, the Supreme Court was adjudicating against the background of a decision by Parliament not to criminalize prostitution itself. The Court held that Parliament made a legal activity more dangerous than it had to be, not that there was a fundamental right to engage in it in the first place. Besides, the Supreme Court’s decision did not rest on the “fact” that people had no choice but to engage in prostitution; on the contrary, it held that voluntariness was irrelevant (again, because prostitution was not illegal to begin with).

As or more importantly, Mr. Roth’s argument is undermined by his sweeping dismissal of all social science evidence and expertise, which is as broad as it is uncalled for. Social science (as well as physical and life sciences!) is susceptible to doubt, and its conclusions are subject to revision. It is, I think, a fair argument (whether we accept it or not) that there is a danger in making judicial decisions on such a shaky foundation. It is also a fair argument (and I have made it myself) that courts are not well equipped to deal with social science evidence. But it is quite wrong to claim that social science is nothing but value judgment and ideology. It is, on the contrary, pure ideology to reject out of hand the best available knowledge about how the world and human society works. To take an example quite unrelated to the constitutional cases that so annoy Mr. Roth, anti-trust law has made great progress in the last half-century by paying attention to economics ― a social science. It is one thing to say that courts should be aware of their limitations when assessing social science evidence, and should structure their procedures (such as standards of appellate review) with these limitations in mind. It is quite another to say that they should simply blind themselves to such evidence. 

Mr. Roth is right to point out that the way in which courts treat social science evidence affects the balance of power between the judiciary and the other branches of government. It also affects the balance of power among the courts. The Supreme Court’s chosen approach gives more power to trial at the expense of appellate courts, which I have argued is a worrying change. However, eschewing fact-intensive analysis and deciding more cases on the basis of legal principles rather than “legislative facts” ― for example, deciding Bedford on the basis of a general right to liberty ― would probably increase rather reduce judicial power. It would also produce, from the likes of Mr. Roth, howls about the imposition of the judges’ worldview on citizens. Indeed, I suspect that it is at least in part to avoid this sort of reactions that the Supreme Court has taken the fact-intensive approach to controversial cases such as Bedford.

I still think that this is a risky choice (in the long run anyway, because I have little quarrel with Bedford decision itself, or with the Insite one for that matter). However, in trying to work out the least-bad approach to judicial review, we have to appreciate the difficulty of the task, and the need for nuance. Mr. Roth’s argument is devoid of such an appreciation. With friends like these… we won’t go far.

Googling Justice

Law review articles don’t make newspapers very often. But they do sometimes, as I noted in a post discussing the use of a certain four-letter word by Supreme Courts in the U.S. and Canada. Another example is a very interesting forthcoming paper by Allison Orr Larsen, of the William & Mary School of Law, called “Confronting Supreme Court Fact Finding,” which is the subject of a recent Washington Post story.

What seems to have piqued the Post‘s interest was the reference, in a fiery dissent by Justice Scalia in Arizona v. United States, to an newspaper article published after the oral argument in that case. The article was obviously not referred to by any of the submissions to the court. Justice Scalia, or one of his clerks, found it himself. Never mind the political controversy around Justice Scalia’s comments; “let’s … focus on a different lesson,” says the Post. “[U.S.] Supreme Court justices Google just like the rest of us.”

Indeed they do, writes prof. Larsen, and very frequently. She found more than 100 examples of judicial citations of sources not referred in the record in the opinions of the U.S. Supreme Court issued in the last 15 years; and such citations might be especially frequent in high-profile cases. While the rules of evidence require judges to keep to the evidence put to them by the parties, and appellate courts to the facts found at trial, for the “adjudicative facts” of a case – who did what, where, when, to whom, with what intention, etc. – these limits do not apply to “legislative facts” – general facts about the world or, more specifically, the social (and scientific) context in which legal rules operate.

As prof. Larsen notes, “[i]ndependent judicial research of legislative facts is certainly not a new phenomenon” (6). But new technologies are game-changers, because they make it so much easier. “Social science studies, raw statistics, and other data are all just a Google search away. If the Justices want more empirical support for a factual dimension of their argument, they can find it easily and without the help of anyone outside of the Supreme Court building” (6). If the parties (and interveners) to a case did not provide them with as much contextual information as they would have liked, judges used to have to rely on their own knowledge of the world, or guess, in order to figure out the context in which the rules they applied operated, and present their conclusion as, essentially, bald assertions. No longer. Now they can easily find what someone else has written on whatever topic interests them, and provide that person’s work as a source – an authority – for their assertions.

Prof. Larsen argues that this raises several problems, which the law at present fails to address. One is the risk of mistake. What if the information judges find is wrong or unreliable? Normally, we trust that the adversarial process will allow the parties to point out mistakes in the evidence submitted by their opponents. But if the judges engage in “in-house” fact-finding, there is no one to call them on the errors they might – and surely will – make. What makes the problem even worse is that human psychology and, possibly, technology, can conspire to make the results of judicial investigations biased. It is well-known that we tend to look (harder) for information that supports our hunches (rather) than for that which disproves it. But now, in addition, it is possible for search engine algorithms to supply us with information that suits our (likely) biases as inferred from our previous online activity. There is, apparently, debate over whether Google actually does this, but at least the possibility is there and ought to be worrying. Last but not least, in addition to the problems of error and bias, judicial reliance on “in-house” research is unfair to the parties, who have no notice of what the judges are doing and no opportunity to challenge their findings or even to address their concerns.

In fairness, it’s not as if the old common sense, logic, and bald assertion way of “finding” legislative facts were problem-free. Perhaps, at some point in the past, their experience as litigators was sufficient to teach future judges all they needed to know about the world (though that’s very doubtful). It surely isn’t anymore (as I wrote, for example, here). And bald assertions of judicial common sense are hardly less unfair to the parties, or less affected by bias (class bias for example), than their autonomous research. I don’t know if it is possible to establish with any sort of confidence whether the problems the new resources at the judges’ disposal are creating are worse than those they are displacing. But perhaps it is worth trying.

Another thing I don’t know is whether these problems might be less acute in Canada than they are in the United States. I don’t have any hard numbers, but my impression is that our Supreme Court might cite fewer problematic sources for its legislative-fact-finding. It often relies on the governmental studies, which I suppose are easily available to the parties and surely are (or really, really ought to be) part of the record. I may be wrong about this though. That would be a feasible study, and an interesting one to undertake, but for now, I do not have the time to do so. I would love to hear from those in the know though, former Supreme Court clerks for example.