Archive for the ‘Uncategorized’ Category

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.

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Stephen Dubner imagines a world without libraries, and asks:

Given the current state of debate about intellectual property, can you imagine modern publishers being willing to sell one copy of a book and then have the owner let an unlimited number of strangers borrow it?

He suspects book publishers would adopt the economic models used by software and entertainment companies, and apply subscription fees. One wonders what sort of PRM (Paper Rights Management) they would try to employ. Perhaps Latin curses on the front page of manuscripts?

Qui furabitur librum istum. non videbit Iesum Christum. Sed ibit in Infernum. ad poenandum in aeternum. cum Turba Diabolorum. per omnia saecula saeculorum.

Whoever steals this book / will not see Jesus Christ / but will go to hell / so that he will be tortured eternally / with a pile of devils / for all eternity

Using more secular methods to do no evil, Google has already thought about this, with an effort to apply precedent from the history of book renting in circulation libraries. It seems publishers weren’t interested.

If you aren’t satisfied with a short Wiki entry on the topic of book renting, try:

And don’t forget to read the full Freakonomics Blog post, If Public Libraries Didn’t Exist, Could You Start One Today?

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Online studies of moral opinions seem to be popping up all over. Here’s one by Neil Levy that deals with moral relativism. It’s short and fun – although I found some of the answer choices overly restrictive.

After taking quite a few of these, it is clear philosophers interested in polling should study survey methods, consult experts in opinion polling, and anticipate a greater variety of nuanced responses than they usually provide.

Test takers trying to give honest answers often find themselves trapped by a limited set of inappropriate multiple choice responses. A ‘none of the above’ with an optional comment field would be a quick fix for some of these problems, but more needs to be done to make sure studies involving moral cognition accurately reflect participants’ opinions.

It worries me that sloppy research methods may have a negative effect upon the growing field of empirical philosophy. Bad data collection methods will cripple the field, populate journals with useless articles, and marginalize researchers.

Hat tip to Evolving Thoughts for mention of this.

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Over the next hour or so, I’m going to test some new designs for this blog. There might be a few blips as changes take effect.

Update: I’ve reverted to the MistyLook theme, added some pages, and tinkered with the sidebar. In the near future, I’ll change the header’s photo to distinguish this blog from others using the same theme.

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This post, which follows a rant about a pet peeve of mine, is for those who might be confused by the idea of giving non-humans the status of legal persons. As a term of art, the phrase ‘legal person‘ only makes sense as long as you don’t confuse it with the ordinary meaning of ‘person’.

Legal persons are not persons as we normally understand them. They are things to which the law grants specific legal rights. A corporation is a legal person. So is a ship. This entrenched misuse of the word ‘person’ can be called a legal fiction, but stripping away the jargon, it is just something that happens when judges find themselves trapped between inflexible categories and the need to make a decision. Sometimes, they chose to fit a square peg into a round hole.

I can’t resist referring to the case of Nix v. Hedden (1893) 149 U.S. 304, in which the United States Supreme Court decided tomatoes, while biologically fruit, were nevertheless vegetables according to the law. And lest you think this ad hoc approach to meaning is unique to the courts, a pope in the 16th century declared the capybara – a large rodent – to be a fish. Whenever words matter, they will be twisted to meet a purpose.

Should it be any surprise, then, that the legal use of term ‘legal person’ has been abused by those seeking to enforce a status quo in which they have power. Animal rights activists see this history as precedent, and compare former legal attitudes towards slaves and women with present attitudes towards animals.

The old view of women’s legal personhood is expressed by William Blackstone in his 1765 text, Commentaries on the Laws of England:

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing … and her condition during her marriage is called her coverture. [emphasis added]

  • cited in R. v. Salituro, 1991 CanLII 17 (S.C.C.), which offers a good history of the doctrine.

Only after 1882 did Canadian and other Commonwealth legislatures begin to abolish this doctrine of coverture – or doctrine of unity – by which a woman lost her legal personality upon marriage.

Despite this shift, even until 1929 women were not considered persons within the meaning of the British North America Act, 1867 (now known as the Constitution Act, 1867). It is a measure the patriarchal thinking of the time that the five women bringing the Persons Case to the courts were resisted all the way up to the British Privy Council. It overturned a 1928 decision of Canada’s Supreme Court that declared women were not legal persons.

Keep in mind, then, that for a long time many persons did not count as such in law, and some things that are not people have counted as legal persons.

The concept of legal personality, as we have seen, is a construct of the law. As such, it can be extended to animals, or to other objects or beings, if the law so chooses.

Thanks to science fiction and debates in bioethics, a quick list of possible rights-attractors isn’t difficult to create:

  1. Artificial intelligences
  2. Extra-terrestrials
  3. Animals
  4. Human embryos
  5. Dead humans

It would be fascinating to see a philosophical experiment which compared intuitions about which of these count as legal persons, and compare these to intuitions about moral persons.

Further reading:


American readers interested in how US lawyers might approach the problem of homeless chimpanzees without mentioning the word ‘person’ should consult:

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