Category: Law

Canadian law, US law, and legal education

Law School Exams

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Here is a guide to make the transition from university student (in whatever discipline) to law student a bit easier by focusing on the biggest dragon: the law school exam. Obviously, there is substantive law and brand-new content, but I am mainly focusing on the pedagogical elements.

Structure

Exams are awful. They’re often your entire grade and try to test you on your knowledge of everything in the course. They take the form of “fact patterns” or “issue spotting” or just a hypothetical scenario that forces you to apply your knowledge of the law. For example, Sally the scientist slips and breaks a beaker of blood over Jerry the janitor who is a temporarily hired employee from overseas…

The way some people look at it is to look for a fork in the road. This means that you can argue both sides, and the professor wants you to argue both sides. You have to show the professor that you know both sides. I can argue that Sally is negligently liable because she had a duty that she breached and she caused a harm to Jerry; alternatively, I can argue that she did not have a duty because the people who hired her as a scientist are not supposed to keep slippery floors. Here are some cases for one side showing rule X, and here are cases for the other side showing rule Y.

Mechanics

You need to type fast because it’s a time crunch. On top of that, you need to get use to exam pressure conditions. It’s so easy to get careless and miss something under pressure, and it’s hard to do your best thinking under pressure. Another way to put it is this: be comprehensive. Address every issue thoroughly, and don’t miss a particular way to address an issue. There are so many ways to tackle an issue, and here is the just tip of the iceberg of considerations: interpretation (plain meaning, original purpose, etc.), words compared to actions, standards of reasonableness, scope, application, rights, efficiency…

How do you get better? Drill past exams. Preferably your professor’s exam – you want to note patterns – but other exams are just as good for building up exam skills. You need to sharpen your eye to spotting issues.

Summaries

Exams are mostly open book meaning you’ll need a summary. Summaries are exactly like they sound: they summarize the material so you don’t have to look through your textbook. Well, you don’t have time to look through the textbook; in fact, you’ll barely have time to look at your summary. That’s why people have long summaries and short summaries and maybe even a super short checklist. You know how boxers say fights are won in the training camps; it’s the same thing here, you need to put in work so you’re thinking as little as possible during your actual exam.

You might come across a policy question on your exam that makes you write an essay. The temptation here is to “can” or prepare answers ahead of time. Professors will punch you in the face for this. Personally, it can be effective with a bit of luck. But luck is your enemy if you want consistent top performance. I like to prepare ways of structuring my answer with elegant ways of starting my sentences. Under a time crunch, I wouldn’t be able to come up with, “While expectation damages are the default remedy in contract law, the fact that in this scenario…”

Studying

You need to know the material enough that it’s second nature. You need to know it so well that you can use it in new and creative ways. This might mean knowing it cold or having it memorized. The exams are putting different puzzle pieces of the law together. You need to know the puzzle pieces in order to put them together. This goes beyond memorizing into the realm of comprehension.

Another important part of studying is going to class. You might say that the professor just says everything in the book. You’re wrong. This is where the mind games being: you need to ask why are they teaching this, and why did they choose this content, and why are they are focusing on this? Get into your professor’s head.

My First Moot Court Tryout (Script)

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[RE: Nevsun Resources Ltd. v. Araya, 2020 SCC 5]

Hello, Justices, my name is [●], and I am here on behalf of my client, Araya, representing Eritrean workers. Our client seeks to uphold the decision to dismiss Nevsun’s motion-to-strike and have their appeal dismissed. Our client’s claim not only raises issues of procedural fairness in the domestic sphere, it also concerns the importance of Canada’s commitment to respecting the fundamental principles of international human rights.

In support of Araya’s position that Nevsun’s has not satisfied the “plain and obvious” test for striking the pleadings, I will be making 2 submissions today. My first submission is that, contrary to Nevsun, the question of whether international laws apply is not “plain and obvious” enough to suggest striking the pleadings. My second submission is that my client’s pleadings based on international torts (forced labor, slavery, cruel, inhuman or degrading treatment, and crimes against humanity)–given the possibility of either a novel tort or adopting international law–discloses a reasonable cause of action and chance of success.

To start, the threshold for it being “plain and obvious” that a claim has no chance of success is a high one. Justice Abrioux correctly identifies that the court could recognize either [1] the breach of customary international law or [2] a new tort based on adopting customary norms. Both of these options are consistent with the principle that international law is adopted into Canadian common law (unless there is contrary domestic legislation). The threshold for striking a claim as being “plain and obvious” of having no reasonable prospect of success is that the claim is “manifestly incapable of being proven” (Imperial Tobacco at para 17). This is an incredibly high threshold to meet because only well established questions of law are incapable of proof as they have already been answered.

It is important to clarify that adopting customary international law is also not manifestly incapable of proof just because it is possibly a novel claim. As the Court noted in Imperial Tobacco, “The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.” (para 21) Given the facts of this case, there is clearly a legal gap to be explored–an arguable claim–and the question of whether it is incapable of proof is yet to be decided. Until this is decided and the gaps are fully filled, it cannot be struck as having no reasonable prospect of success.

In the same vein, turning now to Canada’s commitments to international principles and this giving space to the possibility of hearing new torts. It is crucial to recognize the facts of this case cut to the core of the doctrine of jus cogens. (E.g. contract, labour, and admin law are accepted without proof.) Crimes against humanity, like slavery, are well established prohibition and violates one of the most basic human rights. My client was subjected to “violent, cruel, inhuman and degrading treatment.” They were “beaten” until they lost consciousness, “left in the hot sun” for over 12 hours, and had their families threatened if they sought remedy. Such acts “shock[s] the conscience of humanity” (SCC, quoting Bassiuni, para 124). Still, a novel claim of recognizing a new domestic tort is not the only way to proceed–alternatively, we can focus on international laws applying directly in virtue of Canada’s commitments to them.

These norms are not only rooted in the common law (in adopting international norms), but also in the foundation of Canadian public policy. As Laane [1949] (SCC, para 46) showed, the Court is reluctant to enforce decrees contrary to Canadian public policy, so the Courts should all the more adopt international norms consistent with Canadian public policy. There are no international customs prescribing the motion to strike (as Nevsun may argue), but there are international customs prescribing the investigation of my client’s claim.

In conclusion, our client submits that Nevsun’s motion to strike (and their subsequent appeal) be dismissed with costs. This case requires a look into how we understand procedural fairness in the context of the commitments Canada shares with other international powers. At the minimum, we must recognize that some violations to human rights are unacceptable too all and calls for legal action. Subject to any questions, these are my submissions. Thank you, Justices.

“Bleached Out” Law Students

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[This essay was submitted for Osgoode’s “Ethical Lawyering in a Global Community” course in 2019-2020.]

Introduction

Recent conceptions of legal professionalism push back on the archaic models of professionalism which “bleach out” an individual’s gender, race, class, and arguably all the distinguishable parts of an individual’s identity. (Wilkns, 1998, p. 1) The focus on this essay is to highlight how this “bleaching” happens from the beginning of one’s legal career – that is, as a law student. I argue that the lived experiences of law students provide a unique standpoint in understanding the part of “professional bleaching” which fades an individual’s authentic self. Although some sorts of self-expression may be inappropriate as a “professional,” there are appropriate forms of self-expression, integral to one’s identity, which are discouraged in law students.

Lived Experience

In my first networking event at law school, I immediately felt the need to put on a façade. As a visible minority, this was not entirely new. I knew the drill: cover my tattoos, take out my piercings, dress in neutral colors, and enunciate every word. But there was something distinct about what I chose to present on this occasion. I was standing in a room full of powerful lawyers who could make or break my future. The difference between our social standings was pronounced, but what was even more striking was my anxiety over being ostracized. I had to play it safe and leave a part of myself at the door. I had to prove that I was like them, and discussing global politics proved that I could think like them. I became somebody else because I thought that is what a professional ought to do.

To be branded “eccentric” or “quirky” have different connotations depending on where you are on the professional hierarchy. There was a remarkable contrast in the social behavior between the students and professionals. My peers were equally nervous, tense, and uncomfortable. Overhearing their conversations, the personas projected was so different from the people I knew. With slight variations in their rehearsed lines, they were beginning to look “almost purely fungible.” (Wilkins, 1998, p. 1) In contrast, I noticed that the senior associates and partners could be the most authentic. They could curse and be crass, they could project a cynicism and indifference, and they could be whoever they wanted to be. While those in power had the privilege of being their authentic selves, I was clumsily trying to be my “professional self” (Wilkins, 1998, p. 1).

Analysis

This issue of personality “bleaching” in law students is just a symptom of a more malicious issue of professionalism being used to “exercise power and exclusion based on gender, race, class and religion.” (Backhouse, 2003, P. 2-2) The link is evident with a closer look at the norms generated by conceptions of professionalism largely held by “the white, Protestant, wealthy men.” (Backhouse, 2003, p. 2-7) The norms generated in these circles certainly exclude on the basis of gender, race, and class, but a corollary of this is that they exclude associated forms of self-expression. Such biased norms are intuitive upon reflection: some music genres become more “appropriate” than others, genders dictate athletic interests, and a particular vernacular indicates levels of intelligence. These attitudes promote a bifurcation between our professional persona and who we really are. It makes compartmentalizing our “moral deliberation in the spirit of robust role-differentiated behavior” come naturally; indeed, we do so at “a significant personal and social price.” (Farrow, 2008, p. 74) This issue fosters an unsustainable view of professionalism whereby showing authentic selves is discouraged.

The suggestion here is not to throw away all professional decorum; certainly, there are some virtues associated with archaic conceptions of professionalism, like respect or competence. What is problematic is conflating ethical superiority with the archaic highbrow norms associated with professionalism. You are not a better person for listening to Bach over Tupac. Professional codes of conduct go too far when they thrust a particular identity on the individual so they conform to the norms of those in power. A part of having a sustainable professionalism that “takes seriously the broad range of voices and interests” (Farrow, 2008, p. 56) is a dimension of freedom to fully express the diversity of individual personalities.

Conclusion

The existing conceptions of professionalism infected by “power, exclusion and dominance” (Backhouse, 2003, p. 2-2) are especially harmful for law students. Students are the vulnerable trainees of the profession relying on the graces of those powerfully established in the profession. The standpoint of the law student sheds light on the significance of this issue for the profession at large. There are subtler forms of self-expression (embedded in gender, race, and class) which are stifled in the name of professionalism. Navigating through the profession and developing a sustainable notion of professionalism is difficult for all law students, but a sustainable conception of professionalism must resonate with self-expression and an individual’s authentic self.

It is incumbent on those fortunate enough to be in positions of power to help alleviate this issue. Disruptions to the norm should not be thought of as “antagonistic zero-sum games” (Farrow, 2008 p. 84), and the scope of what is “appropriate” for a professional must be deliberately expanded. If the aim is to have a generation of lawyers motivated to act ethically, it is necessary to create a space for people to be themselves.

A Law Student’s Guide to Online Classes

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I’m a law student doing the whole school online during a pandemic. I am going to give you some tips. This isn’t going to be the Linkedin, I worked 80 hours, ran 3 marathons with my intermittent fasting children, and finally achieved my dreams being the CEO of middle management. We get it: just say you can’t find any meaning in your life and you regret your choices, like the rest of us. Stop shoving your 5 AM cold showers down my throat; I know you’re sleepy and uncomfortable. If you’re just starting school, you’ll be nervous about how things will be. How am I supposed to skip class and get drunk for fun when there are no classes to skip and you drink to… feel something, anything?

Schedules: this time, pretend you’re a CEO, and you’re your own personal assistant. Your personal assistant has to schedule everything you have to get done in the day and push you onto the next task. Mr. President, you can’t spend half an hour on the toilet scrolling through your phone. This isn’t easy. You have to audit your time and see where you’re hemorrhaging minutes. Then recalibrate and schedule again. But don’t overdo it. You know, live a little. Find the structure that’s just right, goldilocks. And you’ll be on your way to not feeling the existential dread your own psyche.

Next, the fundamentals: sleep, food, exercise… Anybody tries to take these away from you, I give you permission to vomit in their stupid face. Stop fetishizing all-nighters. It’s like being a boxer proving how hard they can get punched in the head – it’s hit and not get hit. I’ve been there. I mismanage my time and procrastinate because I have issues with motivation. Prioritize sleep, practice some sleep hygiene, stop treating sleep like it’s Keyser Soze. Diet and exercise are also key. Take a walk, eat carrot, try not eating Doritos dipped in cream cheese, no matter how much you hate yourself. Pick up some other good habits too: journaling, meditating, or defunding the police and eating the rich.

Work spaces. You’re going be sitting all day, so get yourself a nice chair and a desk to sit at. This way you can be productive while you mute and turn off the camera of your zoom meeting, and get some actual work done. Make sure you have a dual monitor. If you work on a laptop: don’t. Personally, I’ve had more monitors than I’ve had lovers, and I fully intend to keep it that way.

The final step is one even I, whose been social distancing for about the last 10 years, still struggle with: you have to find ways to be social. Now, don’t break social distancing protocols. Call your friends, go for a walk, or make helpful videos that are a thinly veiled guise for your mental breakdown that, frankly, was overdue.

Hard Cases and Humble Beginnings

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[This essay was submitted for Osgoode’s “Ethical Lawyering in a Global Community” course in 2019-2020.]

Introduction

Some cases in legal ethics seem impossible to resolve and lawyers sometimes choose the best of two bad options. These cases are the “hard” cases that are liminal and are fraught with fuzzy grey zones. This paper takes a closer look at these ethical[1] hard cases and explore how the moral agent (the lawyer) ought to approach them. I argue that one particularly dangerous attitude to have is laxity towards these hard cases, and that the main danger is proceeding with blind spots in one’s moral reasoning. I further tease out some possible ways of addressing one’s blind spot through a communal approach and then explain some implications of this approach for lawyers actively navigating through hard cases. It is crucial to avoid these pitfalls in facing hard cases and it is equally important to cultivate virtues like intellectual humility and diligence.

What are “Hard” Cases?

Hard cases in legal ethics are often the starting point for discussions on what lawyers ought to do and what makes certain actions right. One particularly useful way of presenting hard cases and drawing out ethical questions are through dilemmas. Dilemmas usually take the form of having to choose from two options whereby each option draws out a particular moral intuition or principle. For example, you might be confronted with a dilemma when you are presented with the choice of representing a client you know to be guilty. On one hand, you may believe that you cannot in good conscience be associated with guilty persons; on the other hand, you may believe that even guilty persons deserve legal representation. Ethical dilemmas represent only one kind of hard case and they function to abstract away certain facts to illicit specific intuitions.

Hard cases in legal ethics are often highly fact driven and it is difficult to illustrate all of the different options and actions one ought to take.  For example, the Catholic Church’s priest sex abuse scandals present a spectrum of hard cases for lawyers depending on how it is analyzed.[2] A basic way of understanding this might be in terms of an ethical dilemma in the form of whether a lawyer ought to take them as a client or not. But what makes this a hard case s the fact that there are deeper issues than choosing from two options. Perhaps you think that the morally right action is to represent them, but that is not the end of the story. You are then faced with further questions of how to represent them and what sort of ethical principles guide your subsequent steps. There are indeed appropriate times to engage in “secrecy, defensiveness, and rights-maximization” as well as appropriate times to engage in “compassion, vulnerability, and risk-taking.”[3] The initial ethical dilemma does not capture the full range of issues presented in the hard cases of legal ethics. Lawyers must face hard cases by further spelling out the hypothetical consequences, outcomes, and implications. Isolated ethical dilemmas might help tease out some biases, motivations, and force one to be critical of psychological dispositions; however, hard cases in legal ethics must also scrutinize to the relation each discrete choice has on other choices and further look at the overarching effect.

One mark of hard cases in legal ethics is in the complexity of how one ethical decision relates to other ethical decision and the emergent sum of decisions which is scrutinized by others. For instance, choosing not to reply to one email is a discrete choice and within that moment it might be ethically justified; however, circumstances can change and choosing repeatedly not to reply to subsequent emails can result in the emergence overall effect of stonewalling or failing a duty to communicate. Discerning what kinds of action is appropriate at each step is what makes the choices hard, especially when the circumstances change and previous deliberations do not quite fit with the next. Not only is the next ethical problem a moving target, there are higher level considerations where the web of ethical choices is considered in its entirety. The levels of complications can be overwhelming and one can be left with some paralysis with what action is the “right” one to take. This is what makes “hard” cases hard.

The Dangers of Ethical Laxity

By definition, there are no easy answers to hard cases, so the next question is about the correct attitude to have towards ambiguity. To start, we can try to answer the question in the negative: an incorrect attitude to have is being lax. Ethical laxity can be understood to have a dimension consisting of plain intellectual laziness. Trying to work out and carefully weigh each reasonable justification can be laborious and taxing. It can be easy to fall victim to the inertia of following norms instead of engaging in critical analysis. Even simple decisions in where to get a coffee is multifactorial in that there might be good reasons for going to Shop A and good reasons to go to Shop B – for instance, Shop A might offer a more complex flavor whereas Shop B offers a cheaper price, but you are a loyal customer to Shop A while you also need to cut down on frivolous purchases. Choosing a coffee shop can be mentally taxing. These habits can translate to when we shirk the labor involved in moral deliberation and instead “become tools for facilitating morally problematic conduct.”[4] In the legal context, it is similarly tempting to avoid active deliberation, especially when it is easier to adopt the “client’s moral perspective without engaging in the moral dialogue necessary to confirm that perception.”[5] Hard cases must not be approached flippantly rather there needs to be a proper reverence for their complexity.

Proper respect for the complexity of hard cases sheds light on another dimension of ethical laxity – that is, ethical arrogance. More specifically, a respect for the complexity of hard cases requires a level of intellectual humility, especially with respect to the boom of psychological research suggesting human susceptibility to errors in reasoning. These blind spots in our reasoning can perpetuate a false confidence or overestimation of our abilities to navigate through hard cases. For example, a genius lawyer might believe that her talents in law translate to deciphering hard cases in legal ethics, but her lack of ethical training may in fact leave her with a superficial analysis. In this example, the lawyer has a blind spot in her reasoning that her legal expertise translates into ethical expertise. Ethical laxity in the form of arrogance can stop the deliberative process too soon and result in the same flippant lack of engagement with hard cases.

It is hard to fault somebody for falling victim to errors in reasoning, but intellectual laziness and arrogance towards ethics is condemnable. Errors in reasoning might innocently result from having a particular education or are contingent upon mostly luck based external circumstances. For instance, my failure to acknowledge the efficacy of western medicine might stem from my lack of access to an education system which taught me the power of the scientific method. However, deliberately waiving away such blind spots in our reasoning when they are apparent to us is unacceptable. The harms of ignoring ethical blind spots are clear, for instance, in the Canadian history of the legal profession and sexual assault. There were (and still are) blind spots about sexuality and sexual violence in courtrooms which waived away the relationship between “sexual assault, gender hierarchy, and shame.”[6] There is an air of laxity in questions like, “Are not defence lawyers, Crown attorneys, and trial judges simply doing their jobs within the parameters of a legal process that is unavoidably harmful to its participants, and to sexual assault complainants in particular?”[7] The legal processes around sexual assault are vulnerable to the same ethical blind spots because the constituent parts of the legal system are individual lawyers. Moral development in these areas can be achieved through rigorous analysis and the unique lived experiences of the victims which inform us of the oppressive structures we might be blind to. An outside, novel perspective is crucial for spotting blind spots.

Patching Blind Spots

            At this point, an objection might be raised in that a set of rules for professional conduct may draw attention to or completely patch individual blind spots. For instance, if there is a prevalent blind spot towards being sensitive to gender pronouns, then a possible solution might be to implement prescriptive rules to use proper gender pronouns. This objection, however, might miss the purpose of rules of professional conduct. The purpose of the rules of professional conduct is to offer general guidance for actions but not an exhaustive set of instructions. Allan Hutchinson notes that “it must be sufficiently general to provide a principled framework within which lawyers can orient their general behaviors, but not so specific as to amount to a limited list of instructions.” The rules of professional conduct acknowledge the complexities of hard cases and only give a limited set of parameters in “situations of moral soul-searching.”[8] They do not solve hard cases for us.

            More concretely, we can take a closer look at the rules of the Law Society of Ontario (LSO). Take for instance Chapter 5: we see what it means to be an advocate, namely representing the client “resolutely and honorably within the limits of the law.”[9] This has some guidance for behavior and applicability to a variety of cases, but there remains an ambivalence in what the right action is when applied to specific facts. For example, some have understood this rule as justifying the view of zealous advocacy or a lawyer being a “hired gun,”[10] yet others have understood this to mean the opposite and vehemently disparaging such approaches to legal practice. This debate is certainly a hard case and there is no clear answer when looking to the rule. But the very function of the rules is to guide in decision making and are intentionally formulated to be silent towards hard cases. The rules of professional conduct should not be thought of as a program which we can follow on autopilot; rather, they should be thought of as a guide for drivers on how to not swerve off the road.

            Since rules of professional conduct provide minimal support in addressing individual blind spots, it is important to rely on the feedback of others to recognize and address one’s blind spots. First and foremost, lawyers must look to their peers and try to understand alternative perspectives. Hutchinson enumerates some unique ethical issues within the context of a self-regulated profession, as he notes, “the regulation of lawyers is too complex and technical to be understood by non-lawyers; lawyers, by virtue of their training and experience, possess such knowledge and insight.”[11] These are useful points to keep in mind when considering the communal aspect of ethical deliberation and individual duties “to regulate the ethical activities and professional practices of other lawyers.”[12] Peers provide an informed perspective many of the nuanced issues unique to the profession, but they are not the only perspective to look at in addressing blind spots. 

There is a danger of being too insulated within the profession and this narrow viewpoint leading to further blind spots, so a crucial avenue of data must come from perspectives outside of the profession. Incorporating a diverse set of perspectives involves being sensitive to ethical norms and ways of thinking from other parts of the world. In this spirit of plurality, we can look to how the contingencies of circumstance can change views on “power dynamics or options placed on the table.”[13] Returning to the earlier illustration of approaches to traditional medicine, somebody approach western medicine might be more sensitive to the power structures pervading scientific institutions. A pluralistic lens provides just the kind of critical outlook that is less concerned with “substantive outcome or political labels.”[14] It takes the starting point at hard cases cause conflicts in how we ought to act, that is, “instead of trying to erase conflict, seeks to manage it.”[15] Indeed, in the same way pluralism towards culture acknowledges that the ways of understanding the world in “the real world is far messier,”[16] we must to strive to deconstruct our own neatly packaged solutions to hard problems. It is imperative that we “identifying new mechanisms, institutions and practices for structuring such interactions, and evaluating the strengths and weaknesses of the regimes that emerge.”[17] The global diversity reminds us that we are not the final arbiters to moral truth and shed light on our blind spots when analyzing hard cases. 

The Plank in Our Eye

            The complexity of hard cases and the ways to properly approach them can be daunting, and it is important to carry an attitude of humility towards others who are wrestling with the same issues. We cannot hypocritically condemn others for what appears to us as a clear violation; rather, we should reserve judgment and take a caring approach to understand their perspective along with the range of factors they may face below the surface. On first blush, all this might seem trite and common practices of courtesy, but research confirms that we often only pay “lip-service” to such moral mandates.[18] A lack of empathy and care can warp the way we judge others for moral failures by demanding more of others than what we demand of ourselves. A good example of this is in Groia.[19] This case involves a lawyer engaging in “sustained and sarcastic personal attacks.”[20] The immediate intuition might be that this is a clear violation of the requirement to be “courteous” and “civil.”[21] It is easy to look at the violation in isolation. However, the Supreme Court of Canada, siding with the lawyer, was not overly concerned with the sanctity of rules in themselves, rather they carefully weighed the implications and context-specific nature of the case. If we are overly focused on violations of rules, we can miss all the other relevant factors involved in another person’s subjective experience of the issues. It is easy to distance somebody as the “other” and forget that they face the same complications, struggles, and constraints as we do.

            Instead of looking to the rules to point out violations in others, we should instead strive to collaboratively developing virtues for the legal profession. There is a danger to understanding rules of professional conduct as a strict set of commands to be obeyed. The vision of the hypothetically ideal lawyer of good character should not be the lawyer who worships the rule but the virtuous lawyer. From this angle, the rules are conducive to the flourishing of a virtuous lawyer within the domains of “legal controls,” “professional regulations,” “market forces” and “professional culture.”[22] For example, Chapter 2 of the LSO can be read in this light to promote the virtue of integrity. The lawyer has a duty to “discharge all responsibilities […] honorably and with integrity.”[23] The virtue is meant to have the effect of instilling the trust of clients and the general public while giving lawyers the freedom to develop this virtue in a broad range of ways (thus, their private matters are not stringently regulated). Moreover, there are broader aims of promoting the pursuit of justice and fostering the virtue of seeking fairness or having the wisdom to bring about justice. Rules of conduct should not aim at blind obedience, rather they should “takes seriously the broad range of voices and interests”[24] involved in deliberating on hard cases.

The upshot of all this should be an attenuated, equitable approach to rule violations. Instead of looking for moral perfection, we should be looking for the ability to navigate through hard cases in such a way as to suggest virtuous character. The suggestion is not to take the teeth out of ethical review boards, but to ask them to acknowledge the hard cases and be wary of fallacious comparisons to some ideal moral paragon of what a lawyer ought to be. What flows from these recommendations is an idea that casting judgment should not be easy lest we pay a “significant personal and social price.”[25] Hard cases are universally challenging and it is important to take seriously the “variety of potentially competing interest[s].” [26] By way of prescription, there needs to be a focus on educational aspects rather than punitive measures. Indeed, “as much as we love to point fingers,” it just places another “stone’s weight of blame” when it is often much “too late for blame to make a difference.”[27] By taking a punitive approach, “we do nothing to prevent such disasters from happening again.”[28]

Bibliography

Paul Schiff Berman, “The Evolution of Global Legal Pluralism” in Authority in Transnational Legal Theory: Theorising Across Disciplines (Roger Cotterrell & Maksymilian Del Mar eds., 2016) 151. 

Elaine Craig, “Sexual Assault and the Legal Profession” in Putting Trials on Trial (McGill-Queens University Press, 2018) 

Trevor Farrow, “Sustainable Professionalism” (2008), 46 Osgoode Hall Law Journal 51

Allan Hutchinson, Legal Ethics and Professional Responsibility, 2d. ed. (Toronto:  Irwin Law, 2006)

Thomas King, “Afterwords:  Private Stories” from The Truth About Stories (Toronto:  House of Anansi Press, 2003)

Robert K. Vischer, “Legal Advice as Moral Perspective” (2006) 19 Geo J. Legal Ethics.

Jurisprudence

Groia v. Law Society of Upper Canada, 2018 SCC 27.

Statutes and Regulations

Rules of Professional Conduct, LSO 2014.

[1] Although some writers have made technical distinguish between “moral” and “ethical,” I use them interchangeably.

[2] RK Vischer, “Legal Advice as Moral Perspective” (2006) 19 Geo J. Legal Ethics at p 7. [Vischer]

[3] Ibid.

[4] Vischer, supra note 2 at 7.

[5] Vischer. supra note 2 at 24

[6] E Craig, Sexual Assault and the Legal Profession, (Montreal: Queens University Press, 2018) at p 9. [Craig]

[7] Ibid at 7.

[8] A Hutchinson, Legal Ethics and Professional Responsibility, 2d. ed. (Toronto: Irwin Law, 2006) pp. 13-14. [Hutchinson]

[9] Rules of Professional Conduct, LSO 2014, C 5.1-1. [LSO]

[10] Even the LSO commentary lends some support to this view by suggesting that the adversarial system generates no obligation to help the other side if it hurts your client’s case.

[11] Hutchinson, supra note 12 at 8.

[12] Ibid.

[13] PS Berman, The Evolution of Global Legal Pluralism, (Cheltenham: Edward Elgar Pub, 2016) at p 154. [Berman]

[14] Ibid at 164

[15] Ibid at 166

[16] Ibid at 181

[17] Ibid at 188

[18] Hutchinson, supra note 12 at 10.

[19] Groia v. Law Society of Upper Canada, 2018 SCC 27 at para 155.

[20] Ibid.

[21] LSO, supra note 13.

[22] Hutchinson, supra note 12 at 11-14.

[23] LSO, supra note 13 at 2.1-1.

[24] T Farrow, “Sustainable Professionalism” (2008), 46 Osgoode Hall Law Journal 51 at p 56. [Farrow]

[25] Ibid at 74.

[26] Ibid at 100.

[27] T King, The Truth About Stories (Toronto:  House of Anansi Press, 2003) at pp 156-7. [King]

[28] Ibid at 160.

Algorithms, Impartiality, and Judicial Discretion

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[This post was also submitted to IP Osgoode’s Ipilogue on August 3, 2020.]

There are many reasons to worry about judicial discretion in the context of sentencing, and developments in the psychology of judgment and decision-making cast doubt on the idea that sentencing is an art. For example, one might receive a harsher sentence from a judge if you appear in court later in the day. Could algorithms be better than judges? Perhaps in one respect: “impartiality”.

Impartiality is often associated with a neutral, impersonal point of view, or an observer that is hypothetically free of subjective biases. The earliest proponents of these views were David Hume (1740) and Adam Smith (1759). One dimension of impartiality is the concept of being impersonal, meaning dispassionate or indifferent. For instance, the good judge is impartial insofar as they are not swayed by emotions and do not factor in personal considerations. An angry judge should not deliver a harsher sentence to a defendant, nor should the judge deliver a more lenient sentence because the judge and defendant both enjoy jazz music.

Another related concept held up as a virtue for a judge is “neutrality.” Thomas Nagel (with the help of Derek Parfit) can help us understand neutrality by the distinction between the concepts of agent-relative and agent-neutral. The basic idea is that a reason for action is agent-relative if it makes some essential reference to a person, and it is agent-neutral if it does not. If I were a judge, I would act on agent-relative reasons if I delivered a harsher sentence because the defendant angered me (since my anger is a reason for me but nobody else). In this case, acting agent-neutrally is to act in a way in which agent-relative reasons are yet to be specified. The relationship between neutrality and impartiality is that neutrality is a necessary condition to impartiality, but neutrality on its own denotes a narrower idea of non-specificity.

Algorithms can be perfectly neutral because they are not subject to emotions or other physiological limits. Vincent Chiao suggests that algorithms can be used for sentencing in order to combat concerns of judicial arbitrariness and bias.  The results could lead to greater justice by getting a bit closer to the ideal of proportionality in sentencing. That is, even if the algorithm is not perfect, it would do better than judges, especially with respect to racial bias. John Hogarth attempted something like this in the 1970s and 1980s, and it largely failed because judges trusted their own judicial discretion and intuitions over these algorithms.  While there are legitimate concerns with introducing novel technologies, technophobia should not be an impediment to a more just legal system.

Still, the concerns related to taking the human element out of judgments have some substance. Leaving aside issues around implementation, one may wonder how impartial reasoning squares with theories of punishment. For instance, in morality, impartial reasoning is not always appropriate. In 1793, William Godwin imagines a scenario where one must choose to either save a chambermaid or Fenelon (the archbishop of Cambrai) from a fire. From an impartial standpoint, the clear outcome would be saving Fenelon, since he benefits thousands with his works. Even if the chambermaid was one’s own wife or mother, the choice would be the archbishop. This may seem like a morally repugnant result. Indeed, feminist ethics teaches us about the importance of emotions and care in morality.

While there are a number of issues around implementing algorithms to assist the judiciary, there is clear potential for addressing access to justice issues. For example, predictable sentencing outcomes could level the playing field in negotiations between the Crown and the accused, increase efficiency for judges, and assist lawyers in building a case. Professor Benjamin Alarie is already involved in a company which uses “AI-powered platforms accurately predict court outcomes and enable you to find relevant cases faster than ever before.” With virtual hearings already beginning at the Supreme Court of Canada, I am optimistic about the next steps in operationalizing legal technology.

Smart Contracts: Moral, Immoral, or Amoral?

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[This post was also submitted to IP Osgoode’s Ipilogue on July 21, 2020.]

According to Nick Szabo, a smart contract is “a set of promises, specified in digital form, including protocols within which the parties perform on these promises.”  There are many more examples of smart contracts, with varying levels of sophistication: from simple crowdfunding platforms to more complex integration with blockchain and cryptocurrency. To simplify things, the example of a vending machine is useful to illustrate a machine that is programmed with a seller’s offer and executes the terms of an agreement (e.g. dispense a candy bar) automatically once the conditions (e.g. insert one dollar) are met. What is relevant here is that the automatic nature of the contract removes the need for humans. A smart contract is a program or a set of instructions that automatically perform a task according to the terms of an agreement.

Now let’s imagine a world without vending machines. I see your candy bar and I offer you one dollar in exchange for it. You accept my offer, then I hand over my dollar and you hand over your candy bar. Transaction complete: everybody is happy and maybe I made a new friend – why would we ever need smart contracts? Well, not everybody is so friendly, and misunderstandings happen all the time. That is where we need contract law and the courts. Or, in the words of philosopher Thomas Hobbes, “Covenants, without the sword, are but words…” Luckily, the sword we all have is the legal system; unfortunately, there’s a very long line to use this sword and it is expensive to swing it.

This is where smart contracts might have an advantage. Let’s imagine that I hand over my dollar, but instead of handing over your candy bar, you run away with my money. Now I have to go to court and ask for a remedy because you breached our contract. At the end of the day, I still might not get the chocolate bar. I am better off dealing with the vending machine.

Contracts can be thought of as a legally enforceable promise, but smart contracts are different from the typical contract in law (see Kevin Werbach and Nicolas Cornell for an excellent analysis on this topic). One peculiar divergence with smart contracts is that a breach is, in principle, impossible. At this point, the vending machine example can be confusing – vending machines break and often fail to dispense the candy bar because of some mechanical issue. Let’s now think a bit more abstractly about computer programs and code. A basic conditional statement for my morning alarm might look like this: “IF the time is 7 AM, THEN play the alarm, ELSE do nothing.” Now imagine that I promise to give you $1 if you give me a wakeup call tomorrow at 7 AM, or else, if you fail, I keep my $1. I can make this into a smart contract by locking away $1 (perhaps using cryptocurrency to suspend it on a blockchain) and programming something like this: “IF you call at 7 AM tomorrow, THEN transfer to you $1, ELSE transfer to me $1.” Notice how neither of us can go back on our deal; it’s out of our hands, it’s impossible to change (see Max Raskin for further discussions on the legality of smart contracts).

The interesting upshot is that by making breach impossible, it eliminates the possibility of breaking the promise. Legal scholars debate the relationship between contracts and promissory morality. Some argue that contract law should be understood in economic terms, while others argue that contract law should make more space for promissory morality or consistent with a rights-based morality.  However, in making breach impossible, smart contracts seem to sterilize the relational aspects of trust and shared projects, which seem vital to the institution of contracts in general.

I remember reading Evans v. Teamsters Local Union No. 31 in my 1L contracts class for mitigation. In short, it’s about an employee in a dispute with their employer over a layoff and – despite the bad blood between employee and employer – the court concluded that the employee should have taken the employer’s subsequent offer of re-employment to mitigate damages. The Court seems to expect us to put our emotions aside. But people are not rational maximizers or cold automatons. Smart contracts seem like a step in this direction. While smart contracts are certainly more efficient and perhaps more reliable, their inflexibility may limit litigants to restitutionary remedies and pose further doctrinal challenges for accountability and fairness.