Judging judges

The fallout from the Leo Tesky appeal continues, with journalists, legal scholars, and the Alberta Minister of Justice criticizing Judge Brad Kerby, who now faces the possibility of disciplinary action. It’s also led to a more general discussion about how judges are to be selected for the bench, and if judges have enough experience dealing with matters of criminal law.

This is happening at the same time as the matter of judicial independence is popping up in the US. For a taste of that, take a look at this take on the matter by the Harvard law and social psychology blog, the Situationist:

(If that was fun, see also their look at jury selection, and why lawyers acquiesce to clients’ misconduct.)

A study following the effect of the Supreme Court of Canada decision might find judges are now going to file decisions more promptly, or are perhaps going to decide to file fewer decisions for want of time and judicial resources.

By way of reminder, here is what Justice Charron had to say about how the law should judge a judge’s delay in giving reasons for a verdict (emphasis added):

Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after‑the-fact justification of the verdict rather than an articulation of the reasoning that led to it.

Really? Aren’t all judges verdicts an exercise in sophisticated post hoc justification. It seems naive to think that written judgements are a logical mapping of the intersection of law and fact onto a clean slate, especially when moral decisions don’t work that way.

The science of decision-making has something to say about this. Consider, for example, an article by Chad Oldfather, who argues writing can sometimes lead to poor decisions.

What sort of decisions are vulnerable in this way? The messy ones, of course.

Primarily these will be decisions that turn largely on the assessment of complex, fact-intensive situations in which largely inarticulable, context-based judgments matter more than precision and technical analysis.

With that in mind, take a look at the Legal Theory Blog’s post on judges’ obligation to give reasons, which references research undertaken by Dave Hoffman. His blog post on the topic offers an exchange between a judge and a lawyer which feeds our intuitions about why reasons are important:

The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”

Attorney for Evicting Party: May I ask the reasons, your Honor?

The Court: Just because I said it, Counsel.

We rightly rebel at this type of appeal to authority, and not just because it reminds us of an overwhelmed parent. In matters of public policy, reasons are key to the recruitment of agreement or the acceptance of legitimacy. Absent justification, verdicts are hollow declarations which only carry the weight of the speaker’s office.

This makes it tough on judges, who have to rule on complex issues which affect citizens’ legal rights. It is easy to understand why they sometimes find it difficult to articulate their reasons for a verdict.

In a speech to members of a conference on reasoning and decision-making, Australian jurist Michael Kirby quotes a former judge of the Supreme Court of Canada, Gérard La Forest.

Frequently enough one thinks one has the answer; but on sitting down, it will not write.

Justice Kirby, meet Judge Kerby.

Kirby J. has captured the problem in the Tesky case. Writer’s block born of indecision about a complex case – and not inexperience in matters of criminal law – was the likely the real problem that bedeviled Judge Brad Kerby during the 14 months between the hearing of evidence and the submission of his decision. No matter what you think of the majority decision of the Supreme Court, looking for the cause of the delay in the appointment of inexperienced judges misses the mark.

Judging law reviews

There’s a great discussion going on over at the Empirical Legal Studies blog, where legal scholars are thinking about the merits, problems and functions of law reviews. This forum was prompted by research by Jason Nance and Dylan Steinberg, “The Law Review Article Selection Process: Results from a National Study.” Many of the points apply equally well to scholarshp in Canada.

My thoughts parallel those of Benjamin Barton, who had this to say (in post #5, with emphasis added) on the incongruity of faculty complaints about student editors:

First, there are so many student-edited law reviews that it is not an exaggeration to say that virtually anything a law professor writes that is in English and makes some vague sense can and will be published. This is an enormous comparative advantage for a law faculty member over other disciplines, since a law professor can remain “productive” regardless of whether their work is relevant or even particularly good.

Second, having students edit most of the work means that law professors do not have to. Being a reviewer for a peer-edited journal (let alone being an editor) takes a great deal of time, and is in many ways a relatively thankless pain. The fact that student editors do the bulk of this work is a major benefit for law faculties.

Peer review in the law is an embarrassment to the discipline, and authors are coddled by overworked student editors who are intimidated by faculty. It needs to be fixed, and a look to how things are done in the humanities and social sciences would be a start – just make sure to take the open access path, so everyone can see the results of reform…

Congratulations are due Professor Timothy Caulfield, who has been elected to the Royal Society of Canada. It is the highest honour to be given Canadian scientists and scholars, and is well deserved by this preeminent scholar of health law and policy.

The hero trap

Jane Espenson, a screenwriter with a blog, reveals to The New Republic the secret to selling sci-fi.

Her hypothesis is that if you want to sell fantastical fiction like Harry Potter to a mass audience, the best story has nothing to do with the elements of fantasy. It’s all about a Chosen One who has a special place in a strange new world.

The Chosen One paradigm is the most positive, most comforting, most affirming metaphorical version of change, of growing up, that I can imagine.

Which sort of explains why so many incarnations of the Chosen One theme usually involve young adults growing up and taking their place in the world. And why most heroes are born to the job.

It’s doubtless why I am, as an adult craving nuance, finding such stories shallow. This is never more the case than when a writer creates a protagonist destined to be a hero in a universe where a good vs. evil dichotomy is written into the universe.

Head over and give it a read, but take note: there’s a difference between selling a science fiction story to a TV executive who hopes it entertains a general audience, and telling a good story. For the latter, try Iain M. Banks.

They make pages.

It’s as simple as that, really. Academics like citing to pages, and HTML documents don’t give them that ease of reference.

As a bonus, being able to download an article as a PDF means you have access to the document exactly as it was intended to be published for a hard-copy audience. As long as articles are printed on paper, that’s useful for creating unique citation identifiers.

This could be changed by citing to paragraphs – as is the case in some legal scholarship – but authors and publishers would have to be willing to toss a lot of numbers into documents. And readers would have to be willing to ignore irritating clutter that breaks the flow of information.

For now, PDFs make a good transitional format because everyone can read them (as long as they aren’t password-protected). Too many changes at once, especially in areas that are only incidental to open access, just create barriers for those unwilling to leave paper and page citations behind.

The common sense solution, of course, is to have repositories which offer articles in a variety of formats, be they HTML, PDF or something else. Many are doing this already. As a result, readers have quick access to the text without firing up Acrobat Reader or some other viewer, while also providing an ‘official copy’ to be used for citations.

(hat tip to eFoundations via Open Access News)