RSS FeedWhat can judges really do?
Judges are powerful people. Sometimes, misconceptions about their power lead to calls for an elected judiciary or some other form of outside intervention in our courts. These are all bad ideas. Our judiciary must be independent from all potential litigants (including the state). It is also sufficiently self-regulated yet flexible.
The most important principle of our judicial system is that it is passive. It never goes out and forces anyone to do anything unless someone asks it to resolve a dispute. An aggrieved person or organization (or the state) must bring a valid cause of grievance to the courts’ attention. The courts will generally give the party blamed for the grievance a chance to dispute the accusation. After reviewing the dispute, the courts will resolve it by granting or denying a requested remedy to whoever brought the dispute to the courts. Courts’ decisions are always about a specific dispute before them, and you must be somehow connected to this dispute for the courts to be able to force you to do anything. (There are important exceptions such as references by governments to provincial appellate courts or to the Supreme Court of Canada.)
For example, if someone wants to stop a neighbour from smoking because it harms their child, they would go to the Superior Court. A judge will hear from both sides and make a decision in this particular dispute. But that judge cannot outlaw smoking near children for everyone everywhere.
If another judge refuses to enforce an anti-prostitution law because she finds it unconstitutional, her decision applies only to the specific person who was charged with a criminal offence under that law and who alleged to this judge that the law was unconstitutional. The judge cannot force the police from arresting the next john.
A judge’s decision can be binding only on those who have something to do with the specific dispute before that judge. If a judge finds a law under which Mr. X was arrested unconstitutional and as a remedy orders whoever has custody of Mr. X to release him, he must be released as contempt of court is a criminal offence in itself. But if Mr. X is arrested again for doing the same thing later on, a different judge doesn’t have to order the police to release him. The original judge’s decision is not binding on a fellow judge. Even the original judge can strangely change his or her mind and deem the law constitutional.
But judges respect each other’s decisions. This respect is also called deference, and it comes in different sizes. Fellow Superior Court judges often find each other’s decisions persuasive but they defer to each other much less than they do to judges of the Court of Appeal. A losing party can ask an appellate court to review the decision of the judge who first heard the case. An appellate decision in that case will enjoy greater deference from Superior Court judges when a similar case come before them. They will simply know that if they don’t defer, their decision will probably be overturned on appeal because a panel of appellate judges will probably decide similarly to the previous panel if the facts of the case are similar.
In criminal cases, this motivates the police to respect appellate court’s decisions in similar situations because the police would be wasting its resources by arresting people the courts will likely release. On the flip side, a crack-down decision even by a Superior Court’s judge will probably encourage the police to arrest more people in similar cases, even if to force the issue to an appellate court.
But one panel of the Court of Appeal cannot really force another panel to do anything. That creates a certain intrigue in our judiciary. In theory, even an appellate court’s decisions are not binding on lower courts because the next appellate panel can agree with a lower court’s judge going against the previous appellate panel. Rinse and repeat for the Supreme Court of Canada. Basically, the idea is that judges have a great amount of respect for each others’ decisions, and the respect grows exponentially with the level of the court making the decision, but no judge can really force another judge to do anything.
Yet this is a very simple, literal view of the judges’ power over each other. In reality, lower court judges pay so much deference to appellate court judges that higher court decisions are effectively binding on lower courts. Also, a more accurate way to see the hierarchy of judges is not through hard power but through learning, evolution, and respect. It is a soft power structure that binds lower courts judges rather predictably but still leaves room for revolutionary decisions defying existing norms.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Weird Legal News: Ancient Archery Law and God’s Ambassadors on the Bench
Here’s another digest of some articles I collected this week that are either funny, interesting, or just plain weird.
- Wiltshire vicar revives ancient archery law – BBC
A vicar in England has relied on an unrepealed law from the middle ages to require all men in her village to report to archery practice. Residents complying with the law were rewarded with a BBQ. No word on what happened to the violators. - San Diego Christian lawyers lose bids to be judges – CBS
A quartet of Christian lawyers vowing to be “God’s Ambassadors on the bench” will not be donning judicial robes — at least not in this electoral cycle. Critics raised concerns that the lawyers’ religious agenda would threaten the impartiality of the court system and violate the separation of church and state. Nevertheless, the candidates won between 35-40% of the votes in their respective districts. - Cop Caught Flashing Lights, Speeding To Get Coffee – CBS
A New York City traffic cop is under investigation for abusing his power to get to a Dunkin Donuts. The donut-desiring cop was spotted unnecessarily using his emergency lights, speeding, blowing through stop signs, and weaving in and out of traffic, all while chatting on his cell phone. When a city councilman caught this misbehaviour on camera, the cop stopped to give him a ticket for his troubles! - Predictions are fine, but there are better ways to protect a population – The Guardian
After a magnitude 6.3 earthquake struck Abruzzo, killings hundreds, the Italian government swung into action. Its response was to issue manslaughter indictments for seismologists who failed to predict the quake! Not surprisingly, the international scientific community is protesting the charges, given that earthquakes are presently impossible to predict.
The previous installment of Weird Legal News is here.
How lawyers think
We as a society know too little about lawyers. We believe some myths about lawyers (for example, that they are rich), but we know little truth about them. It’s pretty strange given the two critical things lawyers do in our society: ensure access to justice and help regulate behaviour. The good news is it’s easy to learn the basics of how lawyers think, which empowers you in dealing with your lawyer and as a citizen.
The basic premise of legal reasoning is that it’s all about the courts. Everything lawyers do is about predicting the outcome of litigation that may or may not happen (at least in common law countries like Canada). That is ultimately the only thing lawyers do even though it may look like your average lawyer is busy with a million other roles. It’s clear that litigators think about litigation, but the other kind of lawyers—those who draft or vet contracts, wills, letters and applications—also always have the courts in mind. The difference is that the litigators already have a dispute on their hands, and non-litigators go out of their way to prevent a dispute.
Courts have the power to review any private or government action and decide if it’s legal. Our courts’ rulings are binding on all parties to the dispute, even the government. Because our courts are independent and have constitutional powers, anyone can sue anyone else including the Prime Minister and have a fighting chance. This is called the rule of law, and that’s why we have so many lawyers.
Good lawyers try to think the way judges would think because lawyers have only two purposes: to prevent litigation and to win in litigation. It’s all about the courts in our legal system. In my previous essay, I asked a question about inalienable rights in Canada. It was a legal question. Its purpose was to figure out if there was any way for Canadian courts to uphold taking away of all Charter rights. I concluded that courts could technically do that, and that’s why my answer was that there were no inalienable rights in Canada.
My reasoning wasn’t political: I didn’t look at the balance of power among political parties or their inclination to attack Charter rights. It wasn’t economic: I didn’t crunch numbers to see when Canadians could no longer afford Charter rights. It wasn’t social: I didn’t look at what groups in our society would take what position on the issue. My reasoning was legal: I tried to predict what arguments could convince judges to allow the elimination of Charter rights.
The legal argument doesn’t take politics or economics into account but it’s still powerful because the courts have huge power in Canada. Court will listen to economic and political arguments (they are called policy arguments), especially in constitutional cases. But I assumed in my previous essay that the country must be in an emergency politically and economically for the extreme legal argument against Charter rights to succeed.
So lawyers always try to predict what the courts will say, even when the police or a government ministry will most likely resolve the issue. In some areas, such as immigration, government officials have enormous discretion, and the courts often trust their judgement. In those cases, the lawyers certainly try to predict what the government official will decide, but even in those cases, lawyers know that every official is subject to judicial review. The government understands this too, and it certainly limits how far agents of the state go in their discretion. So the courts are still in the picture, at least because they leave the government alone. But they can pull the leash quickly if the government oversteps its bounds or if the courts change their interpretation of how much they should trust the government’s judgement in the given area.
Lawyers (at least when they earn their keep) think like judges. A good legal argument resembles a judicial decision that a judge could almost copy in potential litigation. And even lawyers who draft contracts and wills think about the courts, because they try to describe their clients’ rights in words that no judge will question. That’s why Mr. Burns’s lawyer said “this should hold up in any court” handing his boss yet another evil contract in one of The Simpsons episodes.
Knowing that lawyers think in terms of disputes in courts can empower an ordinary citizen. First, when you go to court without a lawyer, you will know that you really should get one, even if it’s a law student. The courts are the be–all and end–all, and you need someone who knows what judges want to hear. Second, if you have a lawyer, it will be easier to see if he is doing a good job. Try to think of future disputes over your contract or will, and see if your lawyer is taking care of that in the text. Finally, you should know about the power of lawyers and judges because the courts are the only unelected branch of power in Canada, and you as a citizen should know why and how the system works and how to make sure it continues to work in the future.
Further reading: Frederick Schauer, Thinking like a Lawyer: A New Introduction to Legal Reasoning, (Cambridge: Harvard University Press, 2009).
(Post sponsored by AdviceScene)
Judge found guilty of of corruption; 6500 convictions overturned
This story comes from Philadelphia:
All Ciavarella juvie convictions vacated
County judicial scandal ruling on about 6,500 cases is a victory for advocacy group Juvenile Law Center of Philadelphia
Seeking to remedy what it deemed a “travesty of justice,” the state Supreme Court on Thursday vacated the convictions of all juveniles who appeared before former Judge Mark Ciavarella from 2003 to 2008 and barred retrials in all but a small portion of those cases. [...]
The high court based its ruling on Ciavarella’s admission that he accepted millions of dollars from the owner and builder of two juvenile detention centers to which he sentenced youths [emphasis mine], as well as his “systematic” deprivation of the constitutional rights of juveniles who appeared before him. [...]
The District Attorney’s Office has come under fire for its failure to alert authorities to abuses of juveniles’ rights that were perpetrated under Ciavarella.
Some notes:
- What relations are judges allowed to have with detention centres? Is there legislature anywhere that makes explicit what judges may or may not accept from the owners, managers, etc of prisons? Was the issue here that Ciavarella accepted a hellish amount of money from the prison management, or that he accepted any at all? In other words, had he received a “reasonable” amount of money openly and transparently, would he have been alright?
- There’s no mention of what the judges’ punishments were, which suggests (that the paper thinks) that people are or should be satisfied with the overturning of the convictions. But that ignores the fact that these men negatively impacted the lives of at least 6,500 adolescents. At the very least, will these two be allowed to serve in court again? Will they serve any jail time?
- I wonder what remedies and health services will be offered to the people who were convicted under these men.
- I should look up Canadian judicial regulatory bodies. Suggestions?
Judges Concerned About Female Lawyers’ Attire
A panel of judges and lawyers has raised concerns about lax dress codes for women lawyers at a meeting of the 7th Circuit Bar Association in Indiannapolis.
The panel criticized some female lawyers for wearing sexy and revealing clothing in the courtroom. Such behaviour, they say, distracts everyone from the quality of the lawyers’ arguments.
One judge criticized a lawyer who appeared in court wearing a velour track suit that looked as if she was “on her way home from the gym.”
Salon.com also covered the highlights of the panel discussion:
Judge Michael P. McCuskey said he’s seen women in court wearing “skirts so short that there’s no way they can sit down, and blouses so short there’s no way the judges wouldn’t look.” Judge Benjamin Goldgar concurred by sharing his wish that he could tell certain female lawyers: “I’d really like to pay attention to your argument” (but your breasts are getting in the way).
According to Judge McCuskey, the problem starts in law school and ought to be dealt with there.
Obviously, this is less of a problem in Canada, where male and female lawyers alike are expected to wear gowns at most levels of court. However, at lower court levels and at most tribunals, lawyers are allowed to wear business casual clothing.
For men, business casual means a shirt, tie, and business suit. But what it means for women is still the subject of some interpretation. Does it include a blouse with three buttons undone? How long does a skirt have to be before it qualifies as business casual?
We’d love to hear your thoughts in the comments section.
