Tag: 2L

Sample: Jurisprudence Reflection

May 31, 2022 · Leave a comment ·

The Hart-Fuller debate is commonly understood as a debate about the connection between law and morality. Here, I mainly unpack Fuller’s critique of Hart. The outcome of this unpacking is met with a brief argument for advancing Fuller’s claim with the supplemental premise of a shared general aim of human flourishing.

Fuller admires the ingenuity of Hart’s general account of law; in particular, Hart takes law to be separate from the contentiousness of morality, yet also includes an account of sovereign obedience without the crude Austinian story of threats backed by sanction. While Fuller agrees that laws must include a normative dimension to generate the right kinds of reasons for its subjects to obey (or a “fidelity to law”), Fuller disagrees that law is just a sum of certain descriptive social states of affairs. To Fuller, law is purposive and instrumental to advancing the ends of humans, so it must somehow capture how law affects our practical reasoning.

Fuller’s account of law is best understood to criticize Hart’s approach to the normativity of law. In short, Hart’s account of law embeds normativity through a consensus among legal officials, which then sets a groupwide standard that officials use to influence and coordinate the social behavior of citizens; notice here that citizens do not need to have reasons for accepting the law and, in theory, can be coerced by officials. This problematically resembles Austin’s gunman view. Instead of building a theory of law based on the officials at the top, Fuller pushes the thought that law should start with its subjects and what is important for them.

Fuller understands the normativity of law as giving citizens the right kinds of reasons to obey the law. This is no coincidence. For Fuller, law must be designed in such a way as to generate the right reasons for obedience instead of the wrong reasons like coercion. Coercion does not accurately capture our relationship to the law and our sense of obligation. Fuller’s architecture of law is guided by eight principles, which Fuller calls “the internal morality of law.” (Fuller,1958,p644-645) Sensitive to the contentiousness of morality, Fuller provides formal principles which laws must conform to in order generate the right reasons for obedience. In contrast, Hart’s account of law need not follow Fuller’s eight principles; for Hart, anything flowing from the rule of recognition is valid law.

Fuller takes issue with Hart’s lax standards for what counts as law. Fuller illustrates the incoherence of Hart’s account through Nazi law (specifically, the grudge informer example). More generally, Nazi law clearly fails to conform to Fuller’s eight principles and thus fails to be law, yet Hart would understand Nazi law as valid law. Hart may understand Nazi law as having evil content, but it would be odd to have “loyalty” to evil laws. For Fuller, any reasons generated by evil laws are the wrong kinds of reasons that stifle good ends. This leaves little recourse for the morally upstanding Hartian judge to decide on Nazi law that is putatively valid. Fuller correctly argues that law must be capable of generating the right reasons for obedience and laws take this form by adhering to the eight principles, which Fuller takes to be “moral” principles because they are directed towards good ends. If we understand morality in terms of this good end, then it appears that Fuller has established a connection between law and morality.

Fuller’s thesis on the purposive nature of law cuts deeper into legal positivist approaches than first impressions. In what follows, I go beyond what Fuller claims. Fuller understands the purposive dimension of law as a better depiction of the normativity of law as a phenomenological feature of legal systems. But Hart may respond that “it doesn’t look like that to me.” (Fuller,1958,p631) A plausible way of breaking this stalemate is to look closely at human nature and what humans strive toward. Fuller notes that law “must represent a human achievement” and the “respect we owe to human laws” is different from the laws of gravity. (Fuller,1958,p632) Human laws are not like the laws of gravity because they are not static facts about the world. Laws must always be justified in relation to what is important for humanity and what unifies competing moral values. Let us call this general collective aim, echoing Aristotle, “human flourishing.”

It is clear that Fuller does not aim to provide a substantive account of what is specifically valuable for each individual because flourishing can be realized in differing ways between individuals. This is less a “moral” claim than it is a claim about human nature. Fuller respects the controversial nature of morality, especially if we mean “morality” to be a theory of right action or a theory of what is good. However, it is possible to state the function of morality without specifying its contents; Fuller’s eight principles are thin, in part, for this reason. These principles do more than strive towards morally good laws; they strive towards the shared ultimate end of both law and morality, namely, human flourishing. Flourishing provides reasons for the subjects to obey the law since it taps into the same motivational ends as morality. On this view, both law and morality must be justified in terms of human flourishing, so, to side with Hart, it may not be entirely accurate to say that law and morality are “necessarily” connected.

This reading of Fuller cuts to the core of Hart’s account of law. Flourishing explains why dissenters of a particular legal system should adhere to the law: namely, they have an interest in their own flourishing. There is some strain in Hart’s account of motivating dissenting citizens to obey the law without resorting to coercion; problematically, legal officials do not have to care about the flourishing of their citizens. By and large, if we accept the premise that law must be conducive to the flourishing of its subjects, and also that morality is also conducive to the flourishing of its subjects, then we are bound to see some overlap between law and morality.

After many years, the pedagogical upshot of the Hart-Fuller debate is the variegated nature of the questions raised, particularly in relation to ethics. We see with Hart that analytic jurisprudence must account for aspects of law as it exists in the world. Speculative claims of law being commands or predictions have little theoretical purchase when there are wide disparities with how we experience the phenomenon of law. However, Fuller teaches us that a purely sociological approach to law is also deficient. Law is a human construct and it is appropriate to understand law as purposive in relation to its subjects. Fuller pushes Hart to consider the normative implications of completely divorcing law and morality.

To be clear, I think the Hart-Fuller debate is deeper than a critique of positivism or Hart’s particular brand of positivism. Nevertheless, a forceful argument can be made that Hart can subsume Fuller’s eight principles into his brand of positivism and thereby undermine the necessary connection between law and morality. So, in a technical and narrow sense, Hart may have the better of the debate. Of course, a comprehensive response is beyond the scope of this paper. Interestingly, Fuller seems to be worried about a different and classical question related to political obligation. This blurs the line between analytic jurisprudence and political theory, and it seems to push Hart into deeper waters. A striking feature of this characterization of Fuller seems to ally him with Dworkin.

I offer a cursory look at the Hart-Dworkin debate (“the debate”) and focus primarily on the problem of theoretical disagreement. I suggest that Dworkin has the better of the debate but it is not a conclusive defeat for Hart. I further speculate as to how one might respond under a Hartian framework.

The debate requires some background on Hart’s answer to “what is law” before the relevance of Dworkin’s objection becomes clear. Hart builds his theory of law by first distinguishing between “primary” and “secondary” rules. He argues that primary rules alone cannot work for sophisticated societies because they are uncertain, static, and inefficient. In response to uncertainty, he introduces a key secondary rule, a rule of recognition (“RoR”), which establishes legality and allows us to identify primary rules of obligation. (The other two issues with primary rules are also met by the secondary rules of change and adjudication.)

The debate mostly centers around Hart’s RoR. It is the ultimate criteria of legal validity because it picks out which rules count as law for a particular legal system. Whatever rules are established by the RoR, the legal officials of the system have a duty to apply it. Legal officials treat laws as authoritative by taking on the internal point of view, which is achieved by consensus and convergence (of “social rules”); through this, officials hold the attitude towards their own enforcement of primary rules towards the citizens as obligatory. This account is supposed to provide all the crucial features of law. Dworkin objects and points to a lacuna in Hart’s theory: theoretical disagreement.

Dworkin enters the debate by focusing on what Hart’s account misses. To set the stage, Dworkin uses a key distinction between “propositions of law” (which are either true or false) and “grounds of law” (which make the propositions of law true or false). Theoretical disagreement is about the nature of the grounds of law. Dworkin describes positivists (like Hart) as being committed to the “plain-fact” view of the grounds of law—that is, laws are merely propositional, like books on a shelf that are verifiable by simply getting up and checking. Crucially, Dworkin then explicates a number of “hard cases” which illustrate theoretical disagreement between judges. This suggests that laws are not merely verifiable facts because the judges are not disagreeing about whether some proposition of law is true or false, but the nature of what makes law true or false. The cases show, on Hart’s account, what appears to be legal official disagreeing about the RoR. This is puzzling because legal officials are supposed to agree by consensus and this sort of disagreement is supposed to be impossible, yet such disagreements seem to be everywhere.

This key critique is what Dworkin calls the “semantic sting.” In short, plain-fact positivists understand law to be whatever passes the criteria for validity (for Hart, the RoR). On this view, legal officials would all agree on substantive matters of law and the only disagreement would be propositional, or concern the “open texture” of language. It precludes theoretical disagreements among legal official since it would undermine the idea that there is a shared criterion. This pushes positivists into an absurd view of theoretical disagreement: disagreement is superficial (or worst, disingenuous), or the law has run out and judges must then simply make up laws.

Dworkin takes this to be a knockdown argument against positivism. Laws do not run out and judges do not simply invent new law, as a matter of fact. Judges, Dworkin argues, are guided by moral principles that are beyond the RoR. Dworkin understands the starting point of the question “what is law” to now be in explaining theoretical disagreement. There is no “common criteria or ground rules” and “no firm line divides jurisprudence from adjudication.” (Dworkin,LE,90) It is crucial for Dworkin to establish that Hart’s central idea—a shared and uncontroversial rule of recognition—fails and must always fail due to the problem of theoretical disagreement. Dworkin’s project cannot get off the ground without first overthrowing the possibility of a comprehensive and universally applicable formula for deriving law. If this were possible for the positivist, then the “what is law” question would proceed to look for a more accurate criteria for legal validity. Indeed, the problem of theoretical disagreement sets the agenda for all legal theorists; that is, for positivists, in order to move forward with their project, they must have some answer to hard cases and theoretical disagreement. For Dworkin, he can happily move forward with his project of understanding law through adjudication and decision-making through constructive interpretation.

To be sure, Hart is offering a general account of the features of law whereas Dworkin aims at a theory of adjudication to arrive at an answer to legal questions. Where their agendas overlap is that both accounts provide some explanation for the content of law. If we narrow the debate to the problem of theoretical disagreement, then it seems Dworkin has the better of the debate (if we ignore the subsequent developments of positivism). It is a problem that positivists must confront and it has fractured positivists into separate factions. However, while Dworkin’s has the edge, I do not think it is a knockdown argument for Hart. I want to focus on a way to think about how Hart may respond to the claim that disagreement must be “disingenuous.”

One possible way to understand how judges reason within the Hartian framework is through counterfactuals. For example, the judge would ask herself, “What would other legal officials converge upon?” Judges are making an inference as to what social rule would generate obligations for their society because she cannot practically perform an empirical study of all the legal officials in her society. This inference would be informed by self-reflecting on what she finds obligatory. To be clear, the judge is not merely expanding the RoR and merely legislating by engaging in counterfactual reasoning. She is making inferences based on existing empirical facts about the past and current practices of officials. This amounts to a good faith attempt at discovering what the rule of recognition is for a given society.

Through this lens, we may understand theoretical disagreements to be different judges engaging in different lines of counterfactual reasoning. Each judge is trying to discern what the RoR is for a given case. This only becomes problematic for hard cases. For the vast number of cases in a legal system, judges engage in counterfactual reasoning and come up with convergent outcomes—the core of settled meaning is quite large, so reasoning within this core is unproblematic. However, hard case in the “penumbra” unsettle the reasoning process (through the open texture of language, individual peculiarities in reasoning, etc.) and different judges come up with different conclusions. In some sense, the judges do have a disagreement about what the RoR is because they arrived at different answers through divergent lines of counterfactual reasoning. However, in principle, this disagreement can be resolved by performing an empirical study of all the legal officials of the society.

Granted, my explanation does not square well with the phenomenology of judicial reasoning. If I interrogated a judge, they would not explain their job as an exercise of counterfactual reasoning. Dworkinians would likely diagnose my contrived reasoning as a product of the semantic sting. Still, my aim is only to illustrate that the Hartian framework is not completely incoherent even after Dworkin’s forceful critique. I have only offered speculative points which requires deeper analysis, especially as to the nature of counterfactual reasoning, but I am limited here.

I wish to focus my reflections on Williams v Walker-Thomas Furniture (“the case”) and its connection to scholars that are critical of traditional legal theory. More specifically, I want to focus on liberal theories which start with the presumption of prioritizing an individual’s rights and protecting autonomy. I use these terms quite loosely as my aim is only to provide a modest reflection. I sketch how there is an overemphasis on protecting individual rights (e.g., exercising choice, defending property, non-interference…), and this comes at the cost of ignoring other elements of human flourishing (e.g., social attachments, conditions for wellbeing, communal responsibility…). I provide additional commentary as to how critical scholarship can begin to reform this skewed emphasis on rights discourse.

We can track the rights discourse in the case, especially in understanding the care owed to an individual as limited to guarding their rights. (I will assume the reader is familiar with the facts of the case.) The worry relevant for our purposes is the court struggling to respect the freedom of individuals to contract—bad bargain or not—while also protecting the right to meaningful consent. The court reasons that gross inequality in bargaining power may vitiate consent—for instance, a difference in business knowledge or negotiating power—and to hold somebody to an agreement absent consent would violate their rights. Such rights-based analyses to arguing a contractual claim is not special to unconscionability. Even apart from contract law, the wider Anglo legal system tends to employ this way of reasoning. The rights-based approaches understand the extent of harm to be violations of rights and thereby fails to appreciate other forms of harm.

The best connection to the case is through Patricia Williams’ piece. We may understand the “meta-story” as a direct critique to such rights-based approaches. (Ironically, we can use Dworkin’s analogy to literature to construct an interpretation of Williams’ meta-story.) The rights discourse engaged by lawyers are the “Word Magic” used by “priests” to advance legal arguments. It is necessary to engage in this discourse to be apart of the profession; it is the key to unlocked the gates to this “Celestial City.” The “gods” of this discourse—judges, professors, and theorists—affirm the coherence of rights-based approaches through “word-hurdles” and “playing with the concepts of the moon and of the stars.” In other words, the rights-based approach is continually affirmed by scholars through the game of academic publishing, rehearsing the same methodologies, and setting the agenda with trivial issues.

The metaphor to divinity is no coincidence. While the rights discourse has largely been secularized by positivists like Bentham, it has been progressively elevated in status by scholars, and it has been exaggerated point of sacrosanct. Rights are tethered to austere concepts like justice, equality, and liberty, almost as if we could not sensibly talk about these concepts without appealing to some notion of individual rights. Perhaps the rights-based approach needs to be placed in the background in order to tease out our blind spots. But the question remains: if not this approach, then what should be put in its place?

A possible starting point—although there are many plausible alternative—can be a relational approach. To be clear, a relational approach need not jettison rights entirely; rather, relations are put in the forefront and prioritized over rights. This can be expressed in many different ways, and my aim is only to sketch some possibilities to rebut the claim that there are no other alternatives. The focus on relationships may help us look at other forms of interpersonal harm beyond rights violations. Aaron Mill suggests the individualism of liberalism can hinder us from novel perspectives and thinks about how a starting point might look like through the lens of Indigenous law. One enlightening example is global warming and the constitution: from the liberal perspective, the natural world is not privileged with the same rights of the individual; in contrast, an individual may have robust property rights, so they are protected from, say, a corporation dumping garbage on their lawn. Mill teaches us that our relationship with the world may result in unique harms. Additionally, Patricia Smith also offers a feminist approach to jurisprudence, which further illuminates the gaps in liberalism through patriarchy. For instance, harassment in the workplace or conceptions of imminent harm for self-defence are patriarchal structures of law which disguise themselves under rights discourse. While a relational approach may begin to address such issues, it is perhaps unclear how a relational approach in the forefront can be operationalized in an existing legal system.

Returning to the case, we may try to see what a relational approach can add. A relational approach may empower the plaintiff in the case by teasing out what went wrong between plaintiff and defendant. Instead of focusing on the rights violation of the plaintiff and casting them as a victim, a better approach may look at how the relationship went sour and the actions of the offending party. Perhaps the defendant ought to have been more accommodating to the plaintiff and been sensitive to the socio-economic circumstances while conducting business, or look at each party’s relation to the community. Even more ambitiously, perhaps we may look at each party’s relationship to the government—for example, what social support is owed to undereducated and marginalized groups, and what is the role of commerce in underserviced communities? Nonetheless, a possible lesson from the case and the judicial reasoning might be that reform must be incremental.

A legal system and political culture entrenched in rights cannot be abolished overnight. Nevertheless, it is possible to work towards change from within the existing tradition by slowly changing the discussion. For example, Fuller, while squarely within this tradition, takes a step closer to reform by insisting that law must adhere to a minimal standard for it to deserve our loyalty. Professor Nadler’s approach to equity also seems to push forward the importance of a more meaningful conception of freedom that is sensitive to an individual’s purposiveness and wellbeing. Without such incremental steps, we might imagine that the case would not have even stopped to consider the possibility of unconscionability.

Dworkin may further assist with this project by providing a methodology for reform. For example, laws can be “constructively interpreted” to accommodate progressive social change. Suppose social norms increasingly push for mutual honesty in contractual dealings and is consistent with the purpose of contract law. We may then look to compare competing interpretations which fit this general category, like economic explanations. Next, we may show how good faith justifies contract law as a whole and why this interpretation puts contract law in the best light. One way to show this might be that it would give us the correct result in the case above—that is, it frames the issue as a duty breached by the defendant rather than as an incapacity in the plaintiff. This method provides a sensible way of communicating with traditional approaches to demonstrate why reform is necessary.

While some critical legal scholars have suggested a complete rejection of traditional jurisprudence, a more attenuated approach can lead to more meaningful change. Perhaps this could take the form of a more diverse methodology or include novel perspectives into the discussion. In any case, the case in light of critical scholarship offers an alternative pedagogical approach that is more valuable for reform than abstract and overly nuanced academic debates.

Draft Essay: Investment Treaty Arbitration

December 23, 2021 · Leave a comment ·

Investment Treaty Arbitration: towards a more pluralistic methodology

Part I: introduction and scope

International treaty arbitration (“ITA”) is a part of the investor-state dispute settlement (“ISDS”) system whereby foreign investors may bring claims against a state. Gus Van Harten notes one way to distinguish ITA from international commercial arbitration (“ICA”) is by ITA’s unique public law power. Public law is understood by Van Harten as a central concept for international investment treaty arbitration. The reason for this is that public law is associated with the concept of sovereignty and statehood. To understand the assumptions associated with the relations between public law and sovereignty (and statehood), we need to unpack these concepts and we do so through the works of Martin Loughlin. The outcome of this unpacking is that sovereignty and statehood can be understood independently of public law, especially when move from the domestic context to the international context. We then return to take a closer look at Van Harten’s view in order to see why he takes sovereign statehood to be tethered to public law and why this is crucial for understanding ITA. I argue that once we pull apart public law and sovereignty, we can then move onto other ways of understanding ITA.

The suggestion is that private law offers such an alternative way of thinking about ITA while also making sense of sovereignty. Van Harten is correct to argue that ITA is unique in that it taps into the sovereignty of the state through a treaty’s general consent which triggers the authority of the state to govern its domestic affairs and to arrange its political structure. Indeed, this is how sovereignty relates to how states are understood as legal persons in the international context. However, it does not follow that consenting from a sovereign capacity implies that this is strictly the theoretical domain of public law. I argue that such public law perspectives of ITA are theoretically unsatisfying because it fails to capture the insights of private law theory. Chiefly, private law theory offers a conception of international legal personhood based on rights and relational obligations, which I explore primarily through the works of Earnest Weinrib. This analytic framework can assist in making sense of some puzzling elements of ITA and I spell out some potential applications.

The structure of this paper is as follows. Part I (this section) provides an introduction and briefly contextualizes the significance of the topic as well as the scope of the argument. Part II unpacks the concept of sovereignty to understand why sovereignty is central for public law. Part III aims to connect the previous discussion of state sovereignty and public law relate to legal personhood in the international context, and then suggests some problems with conceptualizing legal personhood relevant for in theoretical accounts of ITA. Part IV takes a closer look at Van Harten’s account of ITA and highlights some features of his view that map onto previous discussions of sovereignty, public law, and international legal personhood. Part V begins by noting some weaknesses of the public law approach to ITA and suggests some attractive features of private law theory which have applications to ITA. Part VI finally addresses some potential objections surrounding the relevance of private law for ITA and concludes by suggesting areas for further developments.

To set the stage for our discussion, it appropriate to contextualize this topic and offer some background on its significance. ITA usually arises in the context of a bilateral investment treaty (“BIT”) whereby two countries agree to terms furthering the protection of foreign investments or defining the policies around foreign investments. A striking feature is the result of sovereign states inviting private actors to pass the wall of sovereign immunity.[1] This was the gradual result of many historical contingencies, most notably the New York Convention and its empowering of international arbitration beyond domestic legal control by removing “the requirement that an award had to comply with the laws of the state in which enforcement was sought.”[2] The New York Convention, along with the UNCITRAL Model Law, expanded state-to-state adjudication model to include private actors.[3] Instead of individuals having their claims collapsed into their home state and having their home state represent their claim (via state-to-state relations), ISDS empowers individuals to seeks remedies against states on their own (via individual-to-state) relation. Van Harten enters the discussion by highlighting the uniqueness of a state consenting to a treaty in that it triggers a public law power.

While the crux of this paper picks up on Van Harten’s point, we should be careful to separate the normative project from the descriptive project. I understand Van Harten’s project to be largely descriptive insofar as it is an interpretive exercise to make sense of ITA and the overarching legal systems as we see it in the world. However, my project is revisionary and normative, and my aim is to suggest guidelines for reinterpreting ITA as a coherent legal practice. To be clear, I am not defending the current ITA system, rather I am in a loose sense rejecting it to suggest a radically revisionist approach. This can come off as quite idealist, naïve, or unrealistic given the state of ITA and what we see in the world (I later suggest that this is a product of the legal realist lens). I aim to try and make sense of ITA as a coherent body of legal reasoning in hopes that this can be the trajectory of its future growth. For whatever reason, writings that are critical of ISDS is sparse and often have argue on the terms of the existing framework (entrenched in legal realism). There remains a lack of alternatives or any pluralism in the methodology, and this is where I hope to contribute modestly by way of suggesting an evaluative tool from the perspective of private law theory.

Part II: Loughlin and public law

The status of “public law” often taken to be a distinct category of law that is tied to broader question of political theory, especially those relating to the idea of sovereignty. Terminologically, sovereignty relates to other concepts like a polity, a nation, a state, a government, and so forth. These terms conjure a familiar notion in many of us: the sovereign is the supreme authority ruling us, whatever that might be. Methodologically, it may make sense to start our analysis with concrete examples of sovereignty instead of proceeding with some abstract conceptual analysis; after all, we are able to point to stark examples of sovereignty—namely, our own governments—so we may not need to resort to philosophical thought experiments or hypothetical contracts.[4] Thus, a common understanding of public law is that it is the law that governs sovereign bodies and its relationship to others (e.g. citizens, corporations, other sovereigns...). In this vein, a sober look at sovereignty as it exists in our world can look to history and trace the genealogy of such ideas (this kind of approach is often labelled as a kind of “legal realism,” but we will avoid worrying about this for now). This is the starting point for a conceptual look into sovereignty and public law. The method adopted here follows Loughlin,[5] which he uses to ultimately construct what he calls the “pure theory of public law.”[6] Despite Loughlin taking European history to be his case study,[7] it is crucial to understand that his project is not merely historical. Instead, historical facts lend support to his broader normative framework. He is not only expounding the story of sovereignty in European history; he is also building a general theory of sovereignty by looking at the historical developments of the ideas of sovereignty. This is why he relies so heavily on the works of political philosophers and early socio-legal theorists.[8]

Loughlin starts by addressing the question of how sovereignty is formed along side the political. He draws on sociologists like Max Weber, and observes how fears and tensions are used for control.[9] Conflicts in a polity are managed through a legal system, and this brings us into a discussion on public law. At this point, a crucial piece of Loughlin’s theory emerges: the relation between the state and the citizens is defined by conflict. Drawing on parallels between Karl Schmitt and Niccolò Machiavelli, the practice of politics, or the question of “how should I live,”[10] is rooted in conflict. On this view, it would be a mistake to address these conflicts by “vesting absolute legal power in the sovereign authority.”[11] Rather, conflict is not something to eradicate, because it is what prompts the political dimension within a healthy system of government, which gives rise to rights and liberties.[12]

Sovereignty manages conflicts through coercion to achieve order and stability among citizens; as a result of this characteristic unity and cohesion, there emerges a “national consciousness.”[13] These early conceptions of sovereignty are fastened to notions of authority and supreme political power, and this kind of view is best developed in the works of Thomas Hobbes. Hobbes understands the sovereign in terms of having a monopoly on the legitimate use of physical force derived from consent through a social contract.[14] The sovereign is given its authority in exchange for providing citizens with defence from external enemies, preserving internal peace, acquiring wealth, and assigning liberties.[15] While the Hobbesian story is attractive in its explanatory scope, Loughlin is careful to note that Hobbes’ reliance on the social contract for authority is too limited. Instead, authority must extend to a broader conception of political representation that goes beyond the citizen’s assent to defer power to a central authority. The state is created through the “process of authorization by a multitude,”[16] and sovereignty points to the relation between the state and its subjects.[17] A broader conception of political representation offers a clearer picture of sovereign authority based on the relational nature between the state and the citizens.[18]

The place of public law, and the place of a legal system, becomes a function of political ends. The relationship between the law and the political must be answered in relation to specifying the role of the government. First, we may ask about the main tasks deferred to the government, like taxation, security, education, health, wealth, and so forth.[19] These can be understood as uniquely “public” enterprises concerned with the government’s ordering of the general good of citizens and society at large. Second, we may think about how to understand the activity of governing, like in terms of the modes and organizing procedures in place. This may also involve how a society is ordered and what kinds of principles are adhered to (e.g. justice, fairness, equality). Third, we might ask what the nature of the office of government, which is largely understood through the lens of authority in law-making, declaring war, coining money, and so forth. This feature is sometimes understood through the metaphor of a vertical relationship between government and citizens. The resultant picture of a legal system is tethered to various political orders, and it would be wrong to conceptualize law as central and subsuming the political. Loughlin aims to “draw the legal and political systems into a unified frame.”[20]

It is worth clearing up a misconception based on the common idea that the sole function of the government is legality, and thereby sidelining the political dimension. Loughlin notes that ordering society would require “some account of the source of authority of the ‘laws’ that establish the state and its various agencies of government.”[21] For example, legal positivists might co-opt Hobbes to understand sovereignty in terms of a command backed by threats, or a more sophisticated rule of recognition.[22] On such views, the authority of law is primitive and governments would not have to justify their authority to enforce laws based on political considerations that are important to the citizens. This conception of law as divorced from the political is precisely what Ronald Dworkin rejected.[23] Moreover, direct application of legal theory to the international field is not obvious, especially since many writers limit their focus to particular jurisdictions. [24] Loughlin likewise rejects the presupposition of authority in legal order.[25]

To return to Loughlin’s view of public law, recall that his view authority is more akin to a partnership between the state and the citizens. Loughlin views public law as enhancing the rights and liberties of the individual through the cooperative nature of institutional arrangements.[26] In this sense, public law is “of its nature relational” in that political rights and sovereign authority are mutually dependent on each other.[27] This conception of the state is dynamic and fluid in as far as it “concerns itself with whatever appears to hold humans together as a collective association.”[28] Public law, then, should not be understood as merely prescribing rules or principles, rather it is an open textured practice of ordering political relationships involving informal norms and customs.

To take stock, Loughlin’s public law is understood in terms of political ends, particularly in addressing collective action and social coordination issues. Both sovereignty and the state represent the “autonomy of the political sphere.”[29] The state is a “correlative expression of sovereignty” and an “abstract term encompassing three aspects of territory, ruling power, and people.”[30] Sovereignty boils down to a symbol of absolute authority of the state and points to the relationship between ruler and the ruled. Interestingly, the upshot of Loughlin’s analysis of sovereignty results in a view of the state as sui generis due to its “distinctive ways and special tasks.”[31] As compared to other collective entities—like churches, hospitals, or bridges—the state is created from an act of representation.[32] That is, other artificial persons are juristic because of the law, but the state is prior to the law and subsequently generates the law. Still, it is unclear how such domestic conceptions of statehood and legal personhood translate into the international context.

Part III: legal personhood in the international context

We can quickly become disillusioned when we enter the international realm and finer distinctions of “public” and “private” law are flattened into domestic law. The relational elements of sovereignty breakdown. In international law, the sovereign and its citizens are understood as a single unit, and it is at this point where we might wonder how sovereignty represents the constituent citizenry.[33]These categories are meaningful enough to refer to but not salient enough to engage in any definitive conceptual analysis. Moreover, the question of what international (or transnational) law is also unsettled, especially in its methodological approach and its ontology of law.[34] In the international context, the legal personhood of a state is not straightforwardly derived from (or reduced to) concepts in public law in the domestic context.

Loughlin provides a comprehensive and convincing account of sovereignty in the domestic context, but it is unclear whether such conceptions of sovereignty translate into the international context. Certainly, some elements of the domestic conception of sovereignty can be imported into the international context. Domestic conceptions of sovereignty, as well as statehood, may have some purchase in that they lend themselves as a criterion for identifying international legal personhood. The authority and autonomy of a state may help demarcate the entity that is afforded legal status. However, it a crucial to note the conceptual differences in how these terms are employed between the international context and the domestic context. For example, many suppose that juridical personhood or the legal entity of a state can be analogized with corporations.[35] This understandable from the domestic public law context as the state may appear to be one large corporation. But the analogy breaks down in the international context. Unlike in the domestic context where an authority may have the role of legitimize legal personhood, there is no central world authority in the international context.[36] In order to get a better handle on international legal personhood, we must clarify the peculiarities or special features of personhood in the international context.

There are two main peculiarities of legal personhood in the international context which need to be explicated and addressed. First, international legal personhood includes a special power: as one writer puts it, “the competence to create the law.”[37] In the domestic context, the creation of laws is primarily done through public law processes. Legal personhood in itself does not grant this power. [38] To attain this power as a citizen, you must assume a public office and act within the deferred authority granted by the state. In contrast, in the international context, each state has a role in sustaining and enforcing international laws. States are granted an ancillary law-sustaining power in virtue of its legal personhood in the international context. In other words, international law is enacted through states and the international system exists from “different modes of explicit and implicit coordination.”[39]

The second peculiarity of international legal personhood is that the lack of a central world sovereign means that rights and duties are underdefined. Again, in the domestic context, legal personhood might be defined in relation to what duties are owed to the individual or what rights of the individual must not be infringed. For example, the state may owe a duty to its citizens to protect them from unwarranted physical harm from others, and this duty (inter alia) constitutes legal personhood for the citizen. In contrast, in the international context, the relation between a worldwide sovereign and a state is missing and there is no vertical relationship to grant legal personhood.[40] Working from a basis of international conventions and norms means that rights and duties are granted on a horizontal basis between states. They are recognized and enforced by convention accepted in the international community. Some peremptory norms are certainly more robust (e.g. torture or genocide) than others, but there is no universally validating legal system. Another way of putting this is that “international law is an open system.”[41] A result of this is that personality in international law is more abstract and “related to the nature and purpose of international law in general.”[42] The basis of legal status for states appears to be by international fiat.[43] It is puzzling that states are afforded a special status in the international context while individuals are not. Juridical personhood is a contrivance of international law and there is no clear-cut way of defining legal personhood; in the domestic context, such categories are defined by a sovereign.[44]

The takeaway from this is that sovereignty as legal personhood can be different in the domestic context than from the international context.[45] Moving forward, we should be wary of terminological equivocation and conceptual conflation. Loughlin’s account of sovereignty and public law therefore must be attenuated to consider the peculiarities of international legal personhood. We are finally well positioned to approach the topics of ITA.

Part IV: Van Harten and international treaty arbitration

Any account of the conceptual foundations of ITA must appreciate the notion of “sovereignty as a juridical entity”.[46] This nicely situates our discussion of ITA within our accounts of public law, sovereignty, and legal personhood. Van Harten understands ITA as conceptually based in public law for two reasons: first, it derives from an act of sovereignty; and, second, it resolves disputes from exercises of sovereignty. We must unpack these two points in light of the above discussion before assessing the conceptual foundations of ITA.

To begin, consistent with Loughlin’s line of analysis, Van Harten notes that “the public–private distinction boils down to a series of assumptions about juridical sovereignty and its relationship to adjudication.”[47] It should be warned that Van Harten does not take the public-private distinction to be sharply defined and he does not rest any substantive argument on it. Nevertheless, it is useful to familiarize ourselves with Van Harten’s vocabulary before turning to the crux of his argument. Van Harten’s terminology generally maps onto Loughlin’s. Van Harten highlights the idea of the sovereign state as an expression of political representation of the collective body of the citizens; in his words, the state is a “repository of the collective authority to make governmental decisions.”[48] The essential element of sovereignty in the international context is the mode of decision-making. It is on this foundation that ITA is understood as invoking mechanism of public law.

To understand why ITA is an expression of public law decision-making, it is useful to contrast ITA with the decision-making in domestic commercial arbitration. As a caveat, one should again be wary not to take this analogy too far, particularly because conceptions of sovereignty are not straightforward analogues of corporate bodies.[49] In domestic commercial arbitration, a corporation may agree to binding arbitration as a method of dispute settlement in contractual relationships. The decision-making process—usually made by directors of the corporation—amounts to a choice for the whole corporate body. The decision affects the many shareholders and employees of the firm. For the state, the decision-making process of consenting to ITA involves an expression of political representation, or a “policy choice by the state to use that particular method of adjudication.”[50] This is an exercise of sovereign authority in the international context because it is rooted in the same authority that underlies public law.

An illuminating example in the international context, which illustrates when sovereign decision-making is triggered, is straightforward state-to-state (non-treaty) commercial arbitration. States acting within a commercial capacity invoke their sovereign capacity and therefore are not afforded the same international protections for acts of sovereignty. The precise doctrine is sovereign immunity, which explicitly does not apply for commercial disputes.[51] This shows that legal personhood in the international context is defined in part by the role or capacity assumed in decision-making. Put differently, it is possible to make a finer distinction in a state’s actions depending on whether they are acting within a sovereign capacity or not. International law recognizes that states assume a special capacity when exercising their sovereignty. With this in mind, defining the legal relationship between the individual investor and a sovereign state may depend on the capacity from which parties act: notably, the state acts and consent from a sovereign capacity, which leads us to understand the legal relationship in terms of public law.

We are now better positioned to look at a more revealing contrast in the international context between treaty arbitration and commercial (or contractual) arbitration. The conceptual difference, Van Harten explains, again rests on the decision-making capacity—namely, the difference between “specific” and “general” consent.[52] International commercial arbitration is usually between private parties (i.e. not states, but persons in different states) entering into contractual agreements.[53] ICA arises with the aim of honouring party autonomy and “respecting the decisions of those who, in doing business with one another, agree to arbitrate disputes.”[54] States are said to respect the freedom to contract of its citizens to waive relief from domestic courts in favor of a binding arbitrating, and enforcing the arbitration flows from the respect to the citizens to bind and limit themselves in their international agreements.[55] In this case, state authority is exercised in the more limited sense of respecting an individual’s freedom of contract, similar to the domestic private law of contracts. Citizens may consent to ICA as a contractual term or with the aim of settling a contractual dispute after the contract is formed; in either case, the consent to arbitration is specific to the contractual dispute.[56] Outside of the contractual dispute, there is no general agreement to arbitrate.[57]

ITA, however, involves a general consent to arbitrate to an open-ended set of foreign investors as defined by the treaty. Compared to ICA which specifies consent between a one-to-one contractual relation, ITA gives general consent to a broad class of one state to many potential claimants, that is, “a wide range of potential disputes arising from any exercise of sovereign authority that affects the assets of a foreign investor.”[58] The one-to-many relation is unique and it would be incorrect to think of it as a way of conceptualizing multiple one-to-one relations. For example, it would be wrong to think about ITA as discrete agreements with each individual foreign investor and giving rise to multiple private relationships. Rather, the correct conceptualizing would be to think in terms of public law, that is, a state “controlling its own regulatory conduct” such as constraining “the acts of the state’s legislature, administration, and judiciary.”[59]

There are further conceptual dissimilarities between ICA and ITA which lend support to Van Harten’s account. One particularly convincing point is the asymmetry of consent in ITA. The ITA model of consent is akin to something like a unilateral contract in that the “investor’s consent has no meaning in the absence of the original consent of the state.”[60] The investor’s consent does not flow from their own negotiations, rather it is a product of their state’s ITA negotiations and the individual investor simply accepts the treaty arrangements. Van Harten explains, the “conditions that attach to the investor’s consent flow not from an agreement to which the investor is a party but from an inter-state bargain.”[61] This also means that only investors can trigger the process, so states cannot seek claims against investors. Another related point that deserves mention is that the general consent of ITA implies that arbitration is always embedded into the treaty and, unlike ICA, there is no possibility of agreeing to arbitrate after a dispute arises. This “prospective consent” results in a significant power shift to arbitrators and further supports the public law view, “especially in matters of state liability” or damage awards.[62]

To be sure, Van Harten is responding to the peculiar structure of ISDS which respects domestic laws, state sovereignty, and enforces treaty obligations through money damages. He is not responding to a private law model per se, rather he is clarifying the startling implications of ITA in invoking public law powers. For example, Philip Morris v Uruguay illustrates the potential regulatory impacts of the arbitration process—here, a couple of arbitrators deciding in favor of a foreign investor could have saddled a state with a damage award in the billions.[63] Such potential to have remarkable impacts on a state must be explained. Van Harten explains this as a state’s expression of sovereign power exercised through public law.

To reiterate, Van Harten’s argument is elegant: states have the authority for general consent out of the same authority to grant specific consent—that is, through state sovereignty or its ability to regulate the affairs of its citizens. General consent is an exercise of a state’s authority “that it alone possesses as a representative entity in the international sphere.”[64] ITA is better understood as exercising the same public law authority as, for instance, passing legislation. By invoking the state vis-à-vis political representation, the international obligations generated necessarily trigger public law.

Part V: a private law approach

There is something puzzling about Van Harten’s references to “public law.” He seems to take “public law” as encapsulating the concepts of sovereignty and statehood, which is certainly true in the domestic context. However, as previous elaborated, this kind of use of “public law” translates awkwardly into the international context.[65] Granted, Van Harten appears to be sensitive to the fact that sovereignty must be conceptually flexible when applied to the international context in order to accommodate various political arrangements found across the globe. For instances, Van Harten makes similar distinctions between the “internal” versus “external” authority of the state.[66] The internal authority of the state is concerned with how authority is regulated and organized within the state’s territory, whereas the external authority is concerned with the relations outside state territories. Recall however that legal personhood in the international context is punctuated by the lack of a worldwide sovereign. It is not clear that the same domestic use of “public law” is appropriate to apply in the international context.

Immediately, this may seem like a pedantic point about labels or linguistic games. Indeed, many find the legal categorizing between “public” and “private” generally unhelpful and abandon this distinction altogether.[67] I also appreciate that Van Harten is engaging a specific debate in the literature where some who do not appreciate the radical difference between ITA and ICA may overly focus on ITA’s private law remedies.[68] Here, writers in the area may use the “private” and “public” label as a metaphor for thinking about conceptual nuances. Furthermore, Van Harten is mostly silent on the relevance of private law to ITA and the topics of remedies or relations seem peripheral to his project. As such, my argument is not a critique against Van Harten; rather, I only aim to propose that the public law analogy can be more nuanced and expanded to include formalist approaches.[69] To be clear, my argument is that we can accept Van Harten’s central thesis about sovereignty being a core feature of ITA without the burdensome label of “public law.” The burden of this label is that it leads us to jettison principles and theories of private law which may assist with the development and revision of ITA.

In what follows, I will attempt to spell out some insights from private law that are not only consistent with Van Harten’s sovereignty approach to ITA, but also make sense of the peculiarities of international legal personhood as well as some theoretical peculiarities in ITA. If readers are uncomfortable with my reading of Van Harten—whether my reading is uncharitable, a misunderstood exegetical hodgepodge, or an unsophisticated engagement with his general project—then I invite readers to jettison my reading of Van Harten. Again, my aim is only to recommend a more pluralistic approach in an area of study that finds little merit in legal formalism and is largely committed to legal realist approaches. Private law theory is a rich and variegate area of study, although we need not dive into the intricacies for our current purposes. I wish to illustrate how the theoretical study of private law can advanced the theoretical study of ITA. For this, we focus on features which are traditionally thought of as unique to private law and legal principles that public law approaches to ITA generally ignore.

Weinrib provides a theoretical framework for understanding private law which may help us understand international legal personhood (vis-à-vis ITA). His focus is centrally on tort law, but his general theory is applicable to private law as a whole. What makes Weinrib’s theory particularly fitting for our purposes is that he also looks for what is unique to private law. We can sharpen this point by contrasting reductive theories that reduce public law and private law into a single unified end. The dominant example in the literature are economic analyses of law.[70] Such theories fix the purpose of law in terms overall wealth maximization or increasing efficiency, and legal issues are resolved through a cost-benefit analysis. They seem to collapse any meaningful difference between private law and public law because ultimately law is instrumental to economic ends (instead of having their own discrete purposes). Resisting such “functionalist” approaches altogether, Weinrib notes that such a view of law “fails to account for what is most characteristic of private law as a legal phenomenon.”[71] They treat parties as “subject to separate incentives, without linking the plaintiff and the defendant in a unified juridical relationship” and “operates independently of the doctrines, concepts, and institutions that characterize private law.”[72] Crucially, Weinrib is not looking for a particular end or unifying principle; in terms of purpose, Weinrib explains “the purpose of private law is to be private law.”[73] Interestingly, this is also how Loughlin approaches public law, which he calls sui generis.[74] The approach taken by Weinrib “treats private law as an internally intelligible phenomenon.”[75] That is, it starts with the principles and legal reasoning within the existing body of private law and provide a justification for the existing practices on its own terms.[76]

In brief, Weinrib’s account of private law knits together three theses: a type of legal formalism, an Aristotelian conception of corrective justice,[77] and a Kantian conception of rights.[78] While Weinrib explicates these theses in fastidious detail, we only need a cursory account to connect to ITA. To start, the kind of legal formalism elucidated by Weinrib is in direct opposition to the kind of legal realist approach which has been pervasive throughout the accounts of Loughlin and Van Harten. Drawing on neo-Kantian influences, Weinrib does not take law as a “merely empirical phenomenon.”[79] Some may not tolerate this kind of approach for the international context, but it is important to keep in mind that the exercise here is to draw insights from private law; that is, one need not be committed to the methodology overall to gain useful devices for theorizing. What this means for us is that international legal personhood and ITA can be understood on its own legal terms. In other words, legal theorizing is not solely dependent on empirical contingencies like state history, global economics, or inter-state politics. This expands our theoretical toolkit because our legal theorizing does not have to be tethered to the empirical world. This means that we can bring in normative considerations of justice, fairness, and liberty into the discussion on international norms and conceptualizing ITA without balking about its incongruence with current global states of affairs.

If we suppose that legal formalism is an acceptable way to proceed,[80] we can move onto the other elements of Weinrib’s account. The Aristotelian corrective justice and Kantian rights importantly couple together to generate an account of relational equality.[81] To simplify, legal personhood is understood in terms of individuals being bearers of rights. Kantian rights are a “juridical manifestation of self-determining agency.”[82] This is expressed in Aristotelian corrective justice as a form of universal equal treatment afforded to everyone in virtue of the fact that they are “free purposive beings under the Kantian conception of right.”[83] Rights entitle individuals to a kind of treatment which manifests in relation to others, which, in the legal context, creates a “single nexus of activity and passivity where actor and victim are defined in relation to each other.”[84] For example, tortious wrongdoings are seen as a violation of a right held by an individual which everybody is equally entitled to, and private law reifies the duty to correct this wrong. Being a holder of rights generates a relation to everyone else insofar as it makes a claim on others as a duty not to breach this right.[85] Private law, then, is “a justificatory enterprise that articulate normative connections” in a coherent manner.[86]

There are parallels between this private law conception of legal personhood and legal personhood in the international context. First, rights and duties are better defined in the international context, even without a global sovereign, by appealing to notions of states having equal rights in relation to another state. A breach of this duty would generate a further duty to correct the wrong; while there is no sovereign in the international context to enforce this, a second-order duty could be a way to explain the role of international sanctions. This view can also account for sovereignty by drawing parallels to Kantian notions of self-determining agency.[87] Put differently, a state has legal personhood in virtue of its right to govern the affairs of itself and this right must be respected by other states. This approach tracks sovereignty while also providing a better-defined notion of rights and duties.

Second, this theory of private law may also help us understand why international legal personhood is saddled with the peculiar power to create and enforce international law. Remember that Weinrib’s project is to spell out the formalistic reasons which are already present in the norms of interacting parties. This means that everybody contributes to these norms and sustains them through an interrelated legal community. There is no single sovereign to impose a set of imperative, rather it derives from an associative morality that is constructed by group practices.[88] This better resembles the norm structure in the international context. It also teaches us that international legal personhood is tied to shared (albeit thin) notions of equality; that is, sovereignty affords the same right to equal treatment in the international context.[89]

We may now shift the discussion to how private law can help us understand ITA. An outstanding feature of ITA which is difficult to justify is that foreign investors are able to seek remedies against a state (and there is an asymmetry whereby the inverse is not allowed). Private law may assist in justifying this practice on the basis of a theory of property rights. Peter Benson employs a Hegelian rights-based analysis of contract law, which (although similar) is slightly more pluralistic in methodology than Weinrib.[90] The crux of Benson’s account is that he understands contractual transfers as transfers of proprietary ownership rights. For example, if I agree to invest money into your business in exchange for receiving a return on investment, I am transferring my ownership right to my money over to you in exchange for your future ownership rights to a portion of profit. This account can make sense of why foreign investors have such powerful rights to a remedy against a state—that is, foreign investors acquire property rights once they invest into a state. This right generates a duty against the state to respect foreign investments and breaches of this duty must be corrected by second-order duty.

Recall that Van Harten emphasizes that general consent in ITA is a particularly outstanding feature because it opens the floodgates to any number of foreign investors (provided they meet the treaty conditions) to make a claim against the state. Private law can make sense of this as the state extending a right to remedy to foreign investors. Citizens of the state already have this right in virtue of their citizenship, but foreign investors are empowered with this right only in virtue of the treaty. If it is not surprising that international legal personhood can be defined relationally and by the rights held by states, and if we can understand international state-to-state relations as respecting rights, then it should come as no surprise that states respect the rights of foreign investors. ITA should be viewed in terms of expanding the community of recognized rights to include the property rights of foreign investors. Instead of focusing on the capacity or consent of the state, it is more appropriate to track rights and rights violations.

In this vein, private law may also assist in explaining the liability and remedial structure of ITA.[91] Contract may not be the correct model to emulate here; by and large, ITA is not a contract and analogies to contractual breach or expectation damages do not fit with damage awards found in ITA. ITA damage awards can be interpreted as flowing from duty violations based on private law relationships between juridical equals. This idea of state liability is rooted in the notion of a state as a juridical person in the international context; however, this kind of state liability is rare in the domestic context between states and individuals. Instead, a better fit might be found in quasi-contract or restitution law.[92] Restitution is guided by the principle of unjust enrichment whereby one party is enriched at the expense of another without any juristic reason.[93]

Christoph Schreuer provides some supplementary examples of arbitrators referring to unjust enrichment in their decisions. First, “Chilean authorities in the proceedings accompanying the nationalization of the foreign-owned copper industry in 1971 and 1972.”[94] Second, the “Landreau Arbitration between the U.S.A. and Peru” where Peru was “bound to pay on a quantum meruit for the discoveries which they appropriated for their own benefit.”[95] Here, they used unjust enrichment as a principle of “excess profits” used to disgorge profits. Schreuer’s analysis shows us that remedies can serve as corrective measures in cases “where a drastic rupture in an anticipated course of events has led to a lopsided control over assets which seems unacceptable to the international decision-maker.”[96] The notion of unjust enrichment is can be crucial for the gap between economically developed and undeveloped nations, and it may play a role for disgorgement for bad faith. Schreuer stipulates that unjust enrichment has yet to be “transplanted” into international law but remains hopeful.[97] While ISDS is still young, we may have enough to form such general principles of restitution—a locus for further development in this direction can be “mistakes in the disbursement of payments made by international organizations such as subventions and development aid.”[98] By and large, a theoretical investigation into the corners of private law can generate new avenues of reconceptualizing and reforming ITA.

Part VI: objections and conclusion

A conceivable line of objections is the that the private law approach I suggest is a kind of legal formalism that is inappropriate for ITA. ITA consists of ad hoc arbitration committees which do not follow principles of stare decisis or have a common body of law with uniform principles to guide legal reasoning. Indeed, the current state of international arbitration as we see it suggests a grim picture of elite clubs of arbitrators and powerful individuals skirting around idealistic legal principles of fairness or equal treatment. I am deeply sympathetic to some cynical attitudes towards current ITA practices; however, changes and reform can be possible with newly imagined rules and institutions. My divergence with legal realism can therefore be understood as rejecting the commitment that every step of an argument must be traced back to some positive law or arbitration practices in the world. This may attract a related worry that formalist approaches are naively utopian. It is true that my project is more speculative than what legal realist like Van Harten accomplish. Still, what I think legal formalism offers are virtues of internal consistency and theoretical coherence. For example, both international arbitration and domestic courts have to obey general principles of legal reasoning, such as non-arbitrariness or respecting the rule of law.[99] More generally, I want to acknowledge the realities of ITA while putting forth aspirational modes of reform.

Another forceful objection may simply see my project as trivial line-drawing or creating artificial contrivances that have no real use. This point is worth rehearsing because I frequently refer to a number of dichotomies throughout my analysis.[100] I cannot address the use of every distinction, but I can illustrate the use of them by taking a closer look at one example: the private-public distinction. This distinction is not only useful for pedagogical purposes but it also makes sense of law as a coherent practice that can grow and develop. Suppose we understand private law as Weinrib does, that is, as unified by formal egalitarian principles of Kantian rights and Aristotelian corrective justice. This gives us a coherent way of understanding which past cases are good law and also offers a framework for deciding future cases. For example, contractual disputes that are economically efficient but undermine the dignity of individuals can be resolved in favor of an individual’s dignity because it fits with the general purpose of private law (and is similarly justifiable on these grounds). The Dworkinian language is no accident, and my overall approach aligns with Dworkin’s view of law but I am not in a position to unpack this.[101] This direction of inquiry may help us understand how rule of law and stare decisis can be meaningful in the international context and to ITA.[102]

A final line of objections may accept my general thesis that ITA requires a more pluralistic methodological approach, yet deny that private law is the appropriate approach for ITA. First, while our initial analysis relied on Weinrib’s approach to private law, we need not commit ourselves to his overarching theory. For instance, some defenders of the view may claim that private law is independent of politics or concerns of public policy, but would be a mistake to think that such matters are only subject to public law.[103] Private law can be coherently understood in terms of facilitating wellbeing while also protecting the rights of individuals.[104] Second, we may look to the theorizing of specific private law doctrines to see the applicability to ITA. Take, for example, the question of how private law can explain why foreign investors have the right to redress from the domestic court system (like other citizens), but also have the right to arbitration (unlike other citizens). One possible way private law may assist with this question is by looking at the rationale behind expropriation—for instance, it is possible to construct an argument on the basis that foreign investors do not benefit from expropriation for the public use of that state. Another example related to Van Harten’s discussion is the general consent of treaties—here, we might look at how contract law theory thinks about similar methods of consent, like unilateral contracts or insurance policies. In sum, private law theory is a flexible analytic tool that can be appropriate than economic, realist, or transnational analyses of ITA.

To conclude, we began with an analysis of sovereignty and public law which traced the roots why these concepts are linked together. We then disturbed the linked by exploring how the legal personhood of a state is understood differently in the international context than in the domestic context. Next, we took a closer look at Van Harten’s view of ITA and why he takes public law to be central to understanding ITA. Despite the triumph of public law in explaining elements of sovereignty and statehood, I suggested that Van Harten’s view of ITA can be intelligible on a more pluralistic view. The example of an alternative theoretical approach I used was private law, and I have tried to argue that international legal personhood and sovereignty is better understood when we consider the insights from both public law and private law. By way of illustration, I sketched a formalist theory of private law which employed the language of rights and I demonstrated its applicability to ITA. Of course, a comprehensive picture is beyond the scope of this essay. Still, my main aim is to show that a more pluralistic methodology—like considering elements of domestic private law theory—may enrichen and evolve ITA.

There is some indication in the literature suggesting the relevance of private law theory for thinking about international or transnational law.[105] However, such insights have yet to be applied to the arbitration context, especially treaty arbitration. There is some strain in adopting private law as a model especially when some legal systems do not recognize it as a meaningful legal category.[106] As such, this is not an easy position to argue. Further research may provide a deeper analysis of the parallels in the remedial structure between private law and ITA can be fruitful, particularly doctrines of unconscionability. For now, we can be satisfied that private law theory may have further utility and applications than mere domestic private law.

[1] Van Harten notes further features: “1. Investors can bring international claims against states in the context of regulatory disputes (unlike customary international law and most treaties). 2. The state’s consent to arbitration is prospective (unlike historical claims tribunals before which foreign nationals could bring claims). 3. The main remedy is state liability in public law (unlike virtually any treaty that allows individual claims). 4. A liberal approach to forum-shopping by claimants is, in some cases, combined with the removal or limitation of the duty to exhaust local remedies (unlike virtually any treaty). 5. Awards are enforceable in domestic courts across the globe, with limited opportunity for judicial review (unlike any other adjudicative regime in public law).” See Gus Van Harten, Investment Treaty Arbitration and Public Law (Oxford: Oxford University Press, 2008) at 95.

[2] Ibid at 52.

[3] For details, see Schreuer, Christoph H et al. The ICSID Convention: A Commentary, 2d ed (Cambridge: Cambridge University Press, 2009).

[4] See generally Quentin Skinner, “Hobbes and the Purely Artificial Person of the State” (1999) 7 J Pol Phil 1.

[5] Loughlin elucidates ten tenants of sovereignty: “sovereignty is a facet of the modern state; political relationships do not derive from property relationships; public power must be differentiate from private power; public power is not personal but official; public power is a product of political relationship; sovereignty is an expression of public power; sovereignty is relationship; right are not antagonistic to sovereignty but are the product of its expression; the system of public law is an expression of sovereignty; and public law is solely not a matter of positive law.” See Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2004) at 73.

[6] Loughlin, supra note 5 at 4.

[7] Loughlin, supra note 5 at 29.

[8] The conception I aim to construct is much thinner than Loughlin’s comprehensive theory and I hope to make explicit when depart from his views. Ultimately, my purpose is not to provide a compelling theory of sovereignty, rather it is to make sense of sovereignty in the international law context. More specifically, the question I focus on is how sovereignty represents its citizens in public international law as a single legal (or “juridical”) entity.

[9] Loughlin, supra note 5 at 32-33, 37.

[10] Loughlin, supra note 5 at 40.

[11] Loughlin, supra note 5 at 64.

[12] Loughlin, supra note 5 at 42.

[13] Loughlin, supra note 5 at 36.

[14] Social contract theory has deep historical roots that continue in modern political theory. They work on important questions like political obligations and justifying coercion, and, although relevant, these questions are not central to the analysis of sovereignty here.

[15] For an interpretation of Hobbes, see David P Gauthier, The Logic of Leviathan (Oxford: Oxford University Press, 1969).

[16] Loughlin, supra note 5 at 60.

[17] What is important for our purposes is move away from notions of sovereignty based on mere authority and power. As we will later see, this move allows us to pull apart sovereignty from public law.

[18] Loughlin, supra note 5 at 63.

[19] Loughlin, supra note 5 at 12.

[20] Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010) at 456.

[21] Loughlin, supra note 20 at 159.

[22] See generally HLA Hart, The Concept of Law (Oxford: Oxford University Press, 1961).

[23] See generally Ronald Dworkin, Law’s Empire (Harvard: Belknap Press, 1986).

[24] Hart constraints it to the legal system of “modern states.” Hart, supra note 22. Rawls limits it to “liberal” or “well-ordered” societies. See John Rawls, A Theory of Justice (Harvard: Belknap Press, 1971). Dworkin limits it to his own “legal culture.” Ibid.

[25] Like Dworkin, Loughlin notes “no precise distinction can be drawn between description (what the law is) and justification (what the law ought to be).” See Martin Loughlin, Political Jurisprudence (Oxford: Oxford University Press, 2017) at 3.

[26] Drawing on Hegel (2010, p112) and Rousseau (2010, 146), public law is to be understood in terms of political rights. Loughlin, supra note 20 at 112 and 146. However, rights and liberties are only realized within the state, but this is not to say that sovereign laws impose restrictions or constrain some pre-existing freedom.

[27] Loughlin, supra note 20 at 12.

[28] Loughlin, supra note 20 at 435.

[29] Loughlin, supra note 20 at 195.

[30] Loughlin, supra note 20 at 159.

[31] Loughlin, supra note 5 at 4.

[32] Loughlin, supra note 5 at 60.

[33] International law is typically defined in terms of states, but notably “regulatory programs agreed to at the international level by states are effectuated through measures taken by governments at the domestic level to regulate private conduct.” Conversely, “the decisions of domestic administrators are increasingly constrained by substantive and procedural norms established at the global level.” The precise relation between these two distinctions are in flux and the subject to much debate. See Benedict Kingsbury, Nico Krisch & Richard B Stewart, “The Emergence of Global Administrative Law” (2005) 68:Issues 3 & 4 Law & Contemp Probs at 23-30.

[34] One way some proponents of global administrative law have argued for their position is through an analysis of rights or a “rights-based account.” They note that this may assist in ensuring states do not overstep their powers and the self-policing nature of this order. Ibid.

[35] Cf. FW Maitland, ‘The Crown as Corporation’ (1901) 17 LQ Rev 131-138.

[36] See, for example, J Freeman, ‘The Private Role in Public Governance’ (2000) 75 NYU L Rev 543, 547–9.

[37] Roland Portmann, Legal Personality in International Law (Cambridge: Cambridge University Press, 2010) at 8.

[38] While the question of whether individuals have international personhood is contested, the idea that states have personhood in international law is foundational and relatively uncontroversial. The focus here is on the international personhood of state and not the international personhood of individual people (e.g. international human rights violations), which is the main focus of Portmann’s book. Ibid at 13-14.

[39] Portmann, supra note 38 at 9.

[40] The “vertical” relationship refers to the common idea that public law deals with state-to-citizen relations whereas private law deals with citizen-to-citizen relations. Generally, such relations take private law to be the subject of enforcing promises, resolving disputes, and protecting property rights; on the other hand, public law had to do with public policy, welfare, and realizing shared values.

[41] Portmann, supra note 38 at 276.

[42] Portmann, supra note 38 at 10.

[43] Portmann, supra note 38 at 278.

[44] Portmann helpfully spells out the assumptions on the differing conceptions of personhood in international law: “(1) the nature and the powers of the state, (2) the relationship between statehood and individual freedom, (3) the role of legal sources not derived from state will, and (4) the relationship between the actual and the normative as a matter of international law.” Portmann, supra note 38 at 245.

[45] To jump ahead, Portmann also argues that a private law analogy can better help us understand this subject. Portmann, supra note 38 at 7.

[46] Van Harten, supra note 1 at 47.

[47] Van Harten, supra note 1 at 48.

[48] Ibid.

[49] Another way to understand this point is in terms of authority or power. Commercial arbitration derives its authority to consent to arbitration by the state and the state’s empowerment of corporation to make autonomous decisions. In the ITA context, states are self-authorizing and directly tapping into their own sovereignty. What makes the state’s position so unique is that their authority is not derivative and involves a general policy decision by the political will of the state as a representative of the people.

[50] Van Harten, supra note 1 at 49.

[51] “To apply this restrictive doctrine, various tests are adopted to distinguish sovereign acts (jure imperii) from commercial acts (jure gestionis), but in all cases a distinction is made in order to determine the scope of a state’s immunity.” (p 46)

[52] Van Harten, supra note 1 at 62-64.

[53] Like citizens, states themselves can enter into such contractual relations to trigger ICA, but here states are also acting within a private capacity. Although this may give rise to interesting issues, this point is peripheral and can be somewhat confusing, so we need not be distracted by this for our purposes here. Van Harten, supra note 1 at 62.

[54] Van Harten, supra note 1 at 59.

[55] Van Harten, supra note 1 at 61.

[56] Van Harten, supra note 1 at 62.

[57] The distinction drawn suggests that sovereign acts map onto public law and commercial acts map onto private law.

[58] Van Harten, supra note 1 at 63-64.

[59] Van Harten, supra note 1 at 65.

[60] Van Harten, supra note 1 at 68.

[61] Van Harten, supra note 1 at 70

[62] Van Harten, supra note 1 at 101.

[63] See Jose E Alvarez, “Reviewing the Use of ‘Soft Law’ in Investment Arbitration” (2018) 7:2 European International Arbitration Review.

[64] Van Harten, supra note 1 at 63-64.

[65] See above Part IV.

[66] Van Harten, supra note 1 at 49.

[67] Van Harten notes that ITA is “often approached as a form of reciprocally consensual adjudication between an investor and a state.” He rejects this view in favor of the idea that ITA is a mechanism of adjudicative review. It is clear that Van Harten rejects the private law conception of compulsory arbitration under investment treaties and takes public law to express the sovereignty of ITA. Van Harten, supra note 1 at 45.

[68] See Schreuer, supra note 3.

[69] For an elaboration of the kind of legal formalism I refer to, see Ernest J Weinrib, “Legal Formalism: On the Immanent Rationality of Law” (1988) 97:6 Yale LJ 949.

[70] Cite generally Prichard A Posner, Economic Analysis of Law (New York: Aspen Publishers, 1973.

[71] Earnest J Weinrib, The Idea of Private Law (Harvard: Harvard University Press, 1995) at 5.

[72] Ibid at 47

[73] Ibid at 5. This non-reductive approach should be intuitive. For example, Weinrib compares this with the purpose of love being its own end. This is also prevalent in the philosophical literature.

[74] Observe also the parallel in the titles of their respective seminal works on private and public law.

[75] Weinrib, supra note 73 at 2.

[76] Weinrib, supra note 73 at 39.

[77] Weinrib takes corrective justice to be “categorically different and mutually irreducible” from distributive justice. Weinrib, supra note 73 at 73.

[78] Weinrib, supra note 73 at 18-19.

[79] Weinrib, supra note 73 at 109.

[80] Again, one need not have qualms about committing to such views. A staunch legal realist can still entertain the prospect of growing their analytic toolkit even if it takes the form of gaining a new critique of legal formalism.

[81] Weinrib, supra note 73 at 58.

[82] Weinrib, supra note 73 at 81.

[83] Weinrib, supra note 73 at 58.

[84] Weinrib, supra note 73 at 56.

[85] Weinrib, supra note 73 at 10.

[86] Weinrib, supra note 73 at 12.

[87] Rawls is another proponent of the Kantian project which conceives the citizen as free and equal. Relations among citizens are understood in terms of treating each other as free and equal citizens. Private law is therefore governed by the same demands of justice as public law, but the demands are applied citizen-to-citizen rather than state-to-citizen. Rawls, supra note 24 at c 6.

[88] Dworkin, supra note 23

[89] See Herik Horn & Petros C Mavroidis, “Economic and legal aspects of the Most-Favored-Nation clause” (2001) 12:2 European Journal of Political Economy 233.

[90] See Peter Benson, Justice in Transactions (Harvard: Belknap Press, 2019) c 10-12.

[91] An interesting application might look into the property rule and liability rule distinction. See Guido Calabresi & A. Douglas Melamed, “Properly Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv L Rev 1089.

[92] See John D McCamus, The Law of Restitution (Toronto: Thomson Reuters, 2020).

[93] See Peter Birks, Unjust Enrichment (Oxford: Clarendon Press, 2005).

[94] Christoph H Schreuer, “Unjustified Enrichment in International Law” (1974) 22:2 The American Journal of Comparative Law 281 at 285.

[95] Schreuer, supra note 94 at 294-295.

[96] Ibid. See also McCamus, supra note 92 at c 2.

[97] Ibid.

[98] Schreuer, supra note 94 at 298.

[99] On a more abstract level, arbitrariness can be understood to undermine the rule of law in a number of ways. For Rawls, arbitrariness undermines notions of egalitarian justice by violating the status of citizens as free and equal. Rawls, supra note 24. For Dworkin, arbitrariness undermines the grounds of law as integrity by formulating a conception of law that does not fit with the law’s purpose in justifying coercion. Dworkin, supra note 23.

[100] To note some: international private law vs international public law, domestic vs international, legal realism vs legal formalism, commercial arbitration vs treaty arbitration…

[101] See generally Law’s Empire and Justice for Hedgehogs.

[102] See, for example, David Dyzenhaus, “Hobbes on the International Rule of Law” 28:1 Ethics & International Affairs 53.

[103] See, for example, broader applications from a rights-based view can be seen in Michael Walzer who takes human rights to be foundational for understanding war international law. See Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977).

[104] See, for example, Martha C Nussbaum, Creating Capabilities: The Human Development Approach (Harvard: Belknap Press, 2011).

[105] See, for example, Robert Wai, “Transnational Private Law and Private Ordering in a Contested Global Society” (2005) 46:2 Harv Int’l LJ 471.

[106] See Adrian Briggs, The Conflict of Laws (Oxford: Oxford University Press, 2001).

Administrative Law Memo: Sample #2

July 24, 2021July 24, 2021 · Leave a comment ·

Duty of Procedural Fairness

The common law trigger for the duty of fairness from Cardinal is that a decision is administrative and affects the “rights, privileges or interests of an individual.” [1] This has been applied to a number of fact scenarios and is generally a low bar.[2] The application of Cardinal to these facts are relatively straightforward.[3] First, LTB decisions are administrative in nature: the LTB is an administrative tribunal born out of the Residential Tenancies Act.[4] Second, LTB decisions do affect the rights, privileges or interests of both tenants and landlords. For example, LTB may decide whether a landlord’s eviction of a tenant was valid or not, and this decision may affect the living conditions of the tenant or the financial stakes of the landlord.[5]

Limitations on Procedural Fairness

For completeness, it is necessary to consider any statutory limitations which may override a duty of fairness.[6] For this, we need to trace the transfer of power. It is important to note that explicit legislation and policy-making can override any duty of procedural fairness.[7] Common law cannot trump statute if it insists on a structural lack of independence.[8] Of course, any statute must be constitutionally compliant and it must be consistent with limitations, such as the Charter or jurisdictional constraints. [9] However, none of these are live issue on the facts.

The LTB is born out of the RTA. There is nothing in the RTA which grants an exception to the duty of fairness, but there are further empowering statutes referenced through the RTA.[10] For example, the chair can establish rule of procedure according to the SPPA, and the SPPA is silent on limits to procedural fairness.[11] Moreover, the power of the RTA is further constrained by the ATAGAA,[12] and ATAGAA is further traced to the PSOA.[13] By and large, these statutes play a role in defining the powers of the chair, but they do not override the duty of procedural fairness.

Quantum of Procedural Fairness

A useful starting point for determining the quantum of fairness is Baker. The standard of procedural protection depends on what is at stake or how important the decision is to the individual.[14] For the LTB, the stakes are quite high.[15] Furthermore, the procedural rights of the tenants and landlords ought to be robust because the nature of the LTB’s decision is quasi-judicial and final.[16] The rights of the individuals protected by procedural fairness are commonly understood to be the right to be heard (audi alteram partem) and the right to an impartial decision-maker (nemo judex in sua causa).[17] The right to be heard is not a live issue for the LTB, so it is important to limit the focus to the right to an impartial (or unbiased) decision-maker.[18]

The standard for procedural fairness in the right to an impartial decision-maker have two thresholds depending on the facts.[19] The “lower” threshold is that the “the apprehension of bias must be a reasonable one…”[20] This means that there does not have to be actual bias proven in the mind of the decision-maker, but just a reasonable apprehension of bias. The “higher” threshold is whether there is prejudgment or a “closed-mind” incapable of persuasion.[21] The thresholds depend on the function of the administrative body. If the administrative body is adjudicative, then the appropriate test is reasonable apprehension; however, if it is regulatory or based on policy, like a popular election, then the appropriate test is closed-mind.[22] The rationale for a relaxed standard for elected members is that they usually have expressed views on public policy, and this is given more deference.[23] Defining the function of an administrative body is not always straightforward given the “spectrum” of functions.[24]

Sandra was appointed for presumably policy reasons, which suggests the closed-mind test. However, the LTB members engage in quasi-judicial, adjudicative matters, which suggests the reasonable apprehension test. This ambiguity must be explored before arriving at a solution.

Function of the LTB

If we consider Sandra and the LTB members to be not distinct but a single agent of the LTB, then we must consider the problem of overlapping function.[25] Although there is no statutory exception in the RTA which overrides procedural fairness,[26] it is not clear that Sandra’s function in reappointing LTB members generates this problem because Sandra is not involved in the adjudicative process. This point raises the more material issue: the implications of the relationship between Sandra and the LTB members.

Consider first the bright line drawn in Newfoundland Telephone between policy and adjudicative matters.[27] What is remarkable about this case is that it established that the same individual can, in principle, have a policy function at one moment while reasonably appearing to be bias (but not closed-minded), then switch to an adjudicative function and jettison the reasonable appearance of bias – in other words, switching functions clears the slate of past bias. This seems, however, to have a narrow scope in that the switch in function was limited to a single individual. In contrast, Sandra and the LTB members have separate and discrete functions.

Sandra’s Bias

It is possible to focus only on Sandra’s reappointment of LTB members and raise the issue of her bias, but this is unlikely to succeed. Recall that Sandra’s appointment is policy-driven and thus the rest for her bias is one of closed-mind. The prejudice on the part of Sandra must be such that attempts to present alternative views are “futile,” and the “appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter.”[28] That means that, in theory, all of Sandra’s reappointed LTB members can be staunchly committed to seeing gentrification as good and tenants as barriers to certain ends; as long as they have an open mind, they have met their duty of procedural fairness.[29]

On the current facts, all that is establish is that Sandra looks favorably towards gentrification, she reappointed 6 members who are favorable towards landlords, and there is data to buttress the fact that there are favorable remedies for landlords.[30] One possible argument is that, due to her partiality towards gentrification, Sandra cannot be persuaded to appoint any LTB member who is neutral (or more favorable towards tenants).[31] However, on the balance of probabilities, it is most likely not sufficient establish a closed mind; in principle, it is still possible for Sandra to explicitly announce her favoritism towards LTB members who favorable to landlords, and still maintain that she has an open mind.

It is likely that a sufficient pattern can be established on the part of Sandra’s bias towards gentrification, but the problem for this line of analysis is that the closed-mind test is too high a threshold. If we can establish the same bias in the LTB members themselves, we have a lower threshold to meet: a reasonable apprehension of bias.

Sandra’s Connection to the LTB Members’ Personal Bias

It is clear that the LTB has an adjudicative function.[32] Still, an argument can be mounted on Sandra’s bias, despite her non-adjudicative function.[33] To be sure, the bright line between policy and adjudicative matters in Newfoundland Telephone does not apply to this line of argument because we keep Sandra and the LTB members separate in function. The focus now is the direct (or close) connection between the bias of one appointing a decision-maker and the decision-maker themselves, which gives rise to the question of a reasonable apprehension of bias.[34]

Consider now the possibility of Sandra’s personal bias infecting the downstream decision-making of the LTB members. The argument is that Sandra’s bias connects to the reappointment and composition of the LTB, and this forms a nexus between Sandra’s bias and the bias of the LTB members.[35] The strategy is not analyzing Sandra for bias, rather it should focus on analyzing the LTB members. At this point, however, the mere fact that the composition of the LTB members reflects members who are favorable to landlords is tenuous and likely not sufficient for a reasonable apprehension of bias.[36] The use of this is to buttress the other empirical data to form a cumulative case. The statistic data suggests that Sandra’s biased composition is being realized in the form of personal bias in the LTB members.[37]

The standard of “reasonable apprehension of bias” is not a sharply defined threshold, so the applicability of the empirical statistical data to this test requires further examination.[38] In this case, what we need to establish is that a 37% increase in landlord remedies and a 23% decrease in tenant remedies is sufficient to form a pattern such that a reasonable person would perceive this as bias.[39] In arguing that this data is a pattern that establishes a reasonable apprehension of bias, it is crucial to contextualize this data with our previous point. Without connecting the data to Sandra, the case for bias becomes significantly weaker.[40] Perhaps a reasonable person would say 50% is sufficient for bias, or perhaps 25% – the point is that the exact number is arbitrary, so scrutinizing numbers alone will not strengthen the argument.[41] In order to meet such objections, we must connect the data to a line of explanation originating and ending in bias.[42]

The increased frequency of remedies for landlords and the decrease for tenants reflects a person bias in the LTB members themselves that is traced back to Sandra. This personal bias in the LTB members becomes clearer in virtue of Sandra’s mode of reappointment. Sandra biasedly chose to reappoint LTB members who themselves had the same species of bias, so the composition of the LTB members is directly connected to Sandra’s bias.[43] To reiterate, Sandra’s bias is legally unproblematic given her function, but the same bias in the LTB members is legally problematic given their functions as adjudicators. In this light, the empirical data is a reification of the LTB members’ personal bias.[44] Sandra’s bias is connected to the LTB members’ bias, and the emergent statistical data reflect “a pattern that gives rise to a reasonable apprehension of bias.”[45]

[1] Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at p 653, 24 D.L.R. (4th) 44 [Cardinal].

[2] There is a vast body of case law illustrating a variety of fact scenarios. To list a few: applications for immigration on humanitarian and compassionate grounds (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 [Baker]); an employer’s dismissal of an employee (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, 291 D.L.R. (4th) 577.); and professional disciplinary decisions (Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, 407 D.L.R. (4th) 573.).

[3] While we are not specifically focusing on a particular decision made by the LTB, we are generalizing the decisions that LTB is empowered to make – more specifically, the power to make decisions insofar as they concern disputes between tenants and landlords.

[4] Residential Tenancies Act, 2006, S.O. 2006, c. 17 [RTA].

[5] Knight provides further guidance with a three-prong test, which consists of the nature of the decision, the relationship, and the impact of the decision: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at 669-677, 335 D.L.R. (4th) 513 [Knight]. The nature of the LTD is a quasi-judicial institution and the final adjudicator between landlord-tenant disputes. The relationship, or the nature of the decision, is one of adjudication. Finally, the impact is again the interests of the tenants and landlords. The LTD have a duty of fairness towards both landlord and tenant, and there are no statutory limitations on this duty.

[6] Kate Glover Berger, “Chapter 5: The Principles and Practices of Procedural Fairness” in Coleen Flood & Lorne Sossin, Administrative Law in Context (3rd ed) (Toronto: Emond P, 2018) 183-236.

[7] See, for example, Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504.

[8] Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52, 204 D.L.R. (4th) 33 [Ocean Port].

[9] Evan Fox-Decent & Alexander Pless, “Chapter 6: The Charter and Administrative Law Part 1: Procedural Fairness” in Coleen Flood & Lorne Sossin, Administrative Law in Context (3rd ed) (Toronto: Emond P, 2018) 237-252. See also Canadian Charter of Rights and Freedoms, s 8, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7.

[10] See, for example, RTA, supra note 4 at ss. 173, 178, 180, or 182.2(2).

[11] See RTA, supra note 4 at s. 176(1)-(2). See also Statutory Powers Procedure Act, RSO2006, c. 17, s. 176(2) [SPPA].

[12] Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5 [ATAGAA].

[13] Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A [PSOA]. The PSOA imposes general rules for public bodies (see ibid at s. 58-59).

[14] Baker, supra note 2 at para 25.

[15] An addition to a landlord’s pecuniary interests, an individual tenant’s place of residence is (arguably) essential and the decision has a significant impact on their wellbeing.

[16] Baker, supra note 2 at para 55.

[17] Van Harten, Gus; Gerald Heckman & David J Mullan. Administrative Law: Cases, Text, and Materials, 7th ed (Toronto: Emond Montgomery, 2015).

[18] I do not argue “institutional” bias here, nor do I think it would have much success on the facts; instead, focus on “personal” bias. The authoritative case for institutional bias is 2747-3174 Quebec: 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 SCR 919, 140 D.L.R. (4th) 577 [2747-3174 Quebec]. Institutional bias commonly refers to the operating processes or structure being independent. There are established considerations or “indices of independence” which are applied to quasi-judicial bodies like the LTB. For example, security of tenure, fixed renumeration independence, and administrative control: Martineau v. Matsqui Institution, 106 D.L.R. (3d) 385, S.C.J. No. 121, [1980]. Even though the same standard of reasonable apprehension of bias applies, the point is not moot because we develop a cumulative case of bias against the LTB. The general rationale for institutional bias is independence and protection from outside influences. The RTA and its empowering statutes offer some protection on this front and, according to the legislation, Sandra is acting within her capacity. Generally, Canada has relatively weak protection from institutional bias. See Gerald Heckman & Lorne Sossin, “How Do Canadian Administrative Law Protections Measure up to International Human Rights Standards – The Case of Independence” (2005) 50 McGill LJ 193.

[19] I employ the term “lower” to define the point of view of the plaintiff in the sense that she has a less onerous burden of proof in establishing bias; however, this also means that the “standard” for the decision-maker is more stringent.

[20] Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, 112 D.L.R. (4th) 129.

[21] See Old St. Boniface Residents Assn. Inc. v. Winnipeg (City),[1990] 3 S.C.R. 1170, 75 D.L.R. (4th) 385 [Old St Boniface]. See also Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 1213, 75 D.L.R. (4th) 425 [Richmond].

[22] See Newfoundland Telephone Co. v. Newfoundland (Public Utilities Board), [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289 [Newfoundland Telephone].

[23] Richmond, supra note 19.

[24] Newfoundland Telephone, supra note 20.

[25] It is possible to arrive at this view because the chair delegates of power to the LTB members pursuant to the PSOA (part 3), as outlined in section 182.3(1) of the RTA. The LTB members only have power insofar as being a part of the same agent as the chair. For an interesting theoretical discussion of agency and law, see Paula J Dalley, “A Theory of Agency Law” (2011) 72:3 U Pitt L Rev 495.

[26] Brosseau v. Alberta Securities Commission, [1989] 1 SCR 301, 57 D.L.R. (4th) 458. Here, Justice L’Heureux-Dubé notes: “If a certain degree of overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will not generally be subject to the doctrine of “reasonable apprehension of bias” per se.”

[27] Supra note 23.

[28] Old St. Boniface, supra note 19 at 1197.

[29] At this point, we might also consider whether Sandra has any conflicts of interest. I do not think this is a fruitful line of argumentation. The test for a conflict of interest is reasonable apprehension of bias. On the facts, the relevant conflict of interest is a financial stake. As required by section 172 of the RTA, the is ostensibly no conflict because she quit her other work and put her investments in a blind trust. Arguably, her limited (and not life or at a set retirement age) may still give rise to a conflict of interest in finances. For example, she may have an interest in gentrifying the city to continue consulting on property developments (her work after 2010 was related to property development projects), which may conflict with her role in appointing LTB members (who may be favorable towards landlords and resultantly promote gentrification and her property development work even after her tenure as the Associate Chair). However, it is doubtful that this would constitute a reasonable apprehension of bias. In this case, the pecuniary interest seems “far too remote.” See Energy Probe v. Atomic Energy Control Board, 15 D.L.R. (4th) 48 at para 31, 28 A.C.W.S. (2d) 310.

[30] I frame the content of the bias specifically in terms of “gentrification,” but a more general label would be “anti-tenant orientation.” It is possible to tease out substantive implications in the differences in these terms, but the argument sketched here uses these terms interchangeably.

[31] Furthermore, her lack of appointments of LTB members who are neutral is evidence of her closed mind. We can support the fact that the 6 reappointed members are more favorable to landlords with the other data (the percent increase in landlord remedies and decrease in tenant remedies).

[32] RTA, supra note 2 at s 1.

[33] Again, the non-adjudicative function implies the closed-mind test and her bias passing this test results in a legally permissible form of bias.

[34] MacBain v. Canada (Canadian Human Rights Commission), 22 D.L.R. (4th) 119, [1985] 1 F.C. 856.

[35] While there might be a line drawn between Sandra’s policy function and the LTB members’ adjudicative function (which correspond to different standards), we should not ignore that the composition of the LTB members is held to the standard of reasonable apprehension of bias.

[36] For a discussion on justification, see Mary Liston, “Chapter 5: ‘Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law” in David Dyzenhaus, The Unity of Public Law (Oxford: Hart P, 2004) 113-142.

[37] Put differently, while the mere fact that the 6 reappointment members were “outliers” in granting remedies to landlords is not alone a sufficient basis for a reasonable apprehension of bias, we can use the statistical data to suggest that the biased is material and emerges problematically in the decision-making process.

[38] Empirical approaches to analyzing judicial or quasi-judicial decision-making is a relatively recent phenomenon. See, for example, Ji Li, “Suing the Leviathan – An Empirical Analysis of the Changing Rate of Administrative Litigation in China” (2013) 10:4 J Empirical Leg Stud 815; Sean Rehaag, “Judicial Review of Refugee Determinations: The Luck of the Draw” (2012) 38:1 Queen’s LJ 1; Robert Danay, “Quantifying Dunsmuir: An Empirical Analysis of the Supreme Court of Canada’s Jurisprudence on Standard of Review” (2016) 66:4 U Toronto LJ 555.

[39]The success of the argument depends both on Sandra’s influence on the composition of the LTB members and the statistical data of the decisions of the LTB members. Again, we should be careful not to conflate the legal standard with a scientific one – while notions of standard deviation, P-values, and the like are important epistemic standard for science, the scientific standards do not correspond to legal standards. For an illuminating discussion on deploying different standards for legal analysis, see Brian Sheppard, “Calculating the Standard Error: Just How Much Should Empirical

Studies Curb Our Enthusiasm for Legal Standards” (2010-2011) 123 Harvard L Rev Forum 92.

[40] For an interesting discussion on contextualizing empirical evidence for legal application, see Dean M Hashimoto, “Justice Brennan’s Use of Scientific and Empirical Evidence in Constitutional and Administrative Law” (1991) 32:4 Boston College L Rev 739.

[41] For example, the reasonable person might accept that bias is not the correct explanation for the numbers, rather it is based on some other variable, like coincidence, landlords bringing stronger claims in light of Sandra, or any number of non-bias related explanations for anti-tenant orientations. There are a number of legitimate criticisms towards empirical analysis in administrative law. For a balanced discussion, see Cary Coglianese, “Empirical Analysis and Administrative Law” [2002] 2002:4 U III L Rev 1111.

[42] For a thorough survey on the application of empirical data to support legal arguments, see Jennifer Robbennolt, Robert M Lawless, & Thomas Ulen, Empirical Methods in Law (New York: Wolters Kluwer Law & Business, 2010).

[43] This point can be clarified with an example. Outside of the courtroom, a judge might have a reasonable apprehension of bias towards people with purple shirts, but we might say that the slate is cleared and the judge’s previous bias ought not to be considered as soon as the judge enters the courtroom and assumes her role. The judge may prudently rid herself of this bias when assuming the role of the judge. In contrast, if we separate the individuals, say, the politician who is also biased towards people with purple shirts then elects a judge because the judge also holds the same bias. It cannot be said that this judge prudently rids themselves of their bias; rather, the judge was chosen because of their biased decision-making.

[44] At this point, one might object to the idea that Sandra’s bias has any relevance to the bias of the LTB members, and instead a hard line must be drawn between Sandra’s bias and the LTB members’ bias. This would take away all the contextualization out of the statistical data on the LTB members (putatively biased) remedies and result in undermining the force of the data. This objection rests on a confusion of Newfoundland Telephone – more specifically, this case should not be read as broadly apply to two separate roles (viz. chair vs. members) with separate functions (viz. policy vs. adjudication). If we understand Sandra and the LTB members to be conceptual separate, then the same “type” of bias (i.e., partiality towards gentrification) is instantiated in separate “tokens” (i.e., first in Sandra in deciding LTB reappointment, but then triggered when the LTB members make their decision). For a precise elaboration on this conceptual distinction, see Charles SS Pierce, “Prolegomeno to an Apology for Pragmaticism” (1906) 16:4 The Monist 492.

[45] Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793 at para 71.

Administrative Law Memo: Sample #1

July 24, 2021 · Leave a comment ·

Intro

This reflection will focus on the observations of a medical disciplinary tribunal, the College of Physicians and Surgeons of Ontario (CPSO), involving a doctor, Dr. Javad Peirovy, accused of sexual misconduct.[1] I explore the moral intuitions relating to administrative law, particularly relating to what courts have referred to as the “appearance of justice.”[2] More specifically, I want to reflect on whether my appearance of “justice being done” has changed after one year in law school.[3] In my sample size of one, I found that my appearance of justice has shifted in virtue of one year of legal education: what I previously believed was a grossly unjust result, I now believe is “just” within the Canadian legal system.[4] While I do not claim to be making any empirical contributions, I would suggest that this could be a fruitful avenue for further empirical research.

Background

I want to risk starting in an unorthodox fashion: lived experience. Prior to law school, I worked as a low-level administrator for a provincial medical organization, and I was quite regularly exposed to medical disciplinary tribunals. Most of the tribunal proceedings were mundane, but sometimes one would catch media attention and fuel office gossip for weeks. The case regarding Dr. Peirovy was one that caught fire. Sexual misconduct is particularly morally repugnant; moreover, it does not take a legal expert to understand that doctors have a higher duty because their patients’ trust them. When I learned that the disciplinary committee found Dr. Peirovy guilty of four patients and only ordered a 6-month suspension, I was outraged. The punishment did not fit the crime, it was unfair, and something is not right about this system. My mind immediately went to corruption – or, perhaps the more accurate term would be the “apprehension of bias.”[5] I believed that the doctors were more favorable to other doctors and this led to an unreasonably lenient sentence. In my eyes, as someone with no knowledge of the law, justice was not being done.

I want to make two brief points of reflection on my experience. First, I believed that justice required that more egregious crimes deserved harsher punishments. The doctor not only abused his position of power, he abused his position of power in order to violate a person’s sexual integrity. My intuition was that such a crime deserved the worst punishment; in other words, I had in mind a theory of punishment based on retributive justice.[6] An “eye for eye,” or at least something just as bad (sometimes referred to as “desert”). Second point: I believed that justice and favoritism were incompatible. If doctors are in charge of judging another doctor, their judgment should not be skewed to favoritism to other doctors. Put differently, justice must be impartial. I will return to these two points later.

The Divisional Court

The CPSO appealed the decision of its own Discipline Committee.[7] While it is based on finer points of law (which I will return to in the next section), the Justices seem to rely on the same moral intuitions. They found the facts “depressing to review,” they found the penalty “clearly unfit,” and it did little to “protect the public and vindicate the integrity of the profession.”[8] The court allowed the appeal and remitted it back to the Discipline Committee.[9] What is also notable about this decision is that two out of the three submissions by the Appellant (viz. CPSO) make some appeal to moral intuitions: first, considering “changing social values;” and, second, the penalty being “grossly disproportionate.”[10] The changing social values seem to suggest that there was a failure to understand just how egregious the actions of the doctors are, especially in light of the moral developments which led to an increased concern for sexual crimes.[11] In other words, if we properly understand how egregious the crimes are, we would also understand that how grossly disproportionate the Discipline Committee’s penalty really was. This, too, appeals to moral intuitions of desert and retributive justice.

Finer Legal Points

I learned the most about administrative law through the decision at the Court of Appeal.[12] Notably, it was a split decision, but they allowed Peirovy’s appeal. Here, I want to reflect on the finer legal points of the majority; while the majority make a number of crucial legal points, I want to focus on their discussion of deference, reasonableness review, and, most importantly, appealing the penalty. I then want to explore Justice Benotto’s dissent. I want to confess from the start that I find Justice Benotto’s dissent quite convincing, especially in light of concerns for the appearance of justice.

To start, the majority emphasizes in their analysis that the Discipline Committee is owed a “high degree of deference.”[13] The reasoning is that the members of the Discipline Committee are within the profession and have a special degree of expertise which non-professionals lack. In other words, doctors are better equipped at assessing doctors and determining what penalties are appropriate for medical misconduct. This certainly addresses my initial reaction that doctors may be more lenient to other doctors; in fact, the opposite is at least possible, that is, doctors may be defensive of the integrity of their profession and seek to penalize those in the profession who undermine this. Indeed, a more charitable understanding would acknowledge the special epistemic “standpoint”[14] doctors may have access to that non-doctors lack. A doctor’s special standpoint provides special knowledge that may allow them to assess cases of misconduct more fairly than non-doctors. To me, this appears fair and just.[15]

As a matter of administrative law, the majority notes that the standard of review for appeals on the Discipline Committee’s decision is “reasonableness.”[16] To be clear, the court at this level is reviewing the Divisional Court’s assessment of the Discipline Committee, so the majority finds that the Divisional Court “not only erred in its understanding of the evidence […] it effectively sought to retry the case in a manner consistent with the proper application of the standard of review.”[17] Simply put, the Divisional Court overreached and went beyond their assignment of merely reviewing for reasonableness. They took matters into their own hands and “subjected the reasons of the Discipline Committee to excessive scrutiny, rejecting the reasonable.”[18]

This leads us to the matter of penalties and the Divisional Court declaring that the penalty imposed by the Discipline Committee “were wrong.”[19] As another point of administrative law, “the Divisional Court had neither the mandate nor the evidentiary basis to intervene, let alone change, the penalty range” and such moves were “effectively an arbitrary exercise.”[20] Again, the point is that the appeal process is supposed to deal with specific issues of procedural fairness and they are not meant to “redo” the trial. The Discipline Committee’s penalties fell within an acceptable range of outcomes based on past cases and should have been unproblematic for the Divisional Court. The Divisional Court found the penalties problematic without legal basis and engaged in palm tree justice.[21]

Justice from Another Angle

I want to now reflect on these points of administrative law in light of Justice Benotto’s dissent. Justice Benotto acknowledges that the penalty was within an acceptable range of penalties given past penalties,[22] but interestingly rejects the majority’s analysis of the standard of review.[23] In short, the Divisional Court was correct to find that the Discipline Committee made findings contrary to their mandate to “eradicate the sexual abuse of patients by members.”[24] The Justice poignantly adds that “reasonableness is not a static concept and ranges are not set in stone. Our collective social conscience is continuously changing.”[25] What is interesting here is the connection to moral intuition and the evolution of social morality. It might be true that, say, fifty years ago, sexual abuse of a patient by a doctor would have triggered the same moral intuitions of repugnance and disgust; however, there is something to be said about latent social attitudes towards sexual abuse.[26]

After only a year of legal education, I have come to realize that brute moral intuitions do not map easily onto the Canadian legal system. Even a superficial understanding of other legal considerations[27] leads me to be sympathetic towards the majority’s analysis of administrative law. Still, I think that the lesson from Justice Benotto is that judicial review should be a bit more sensitive to ethical considerations and social attitudes.[28] This may increase the public’s confidence that justice is being done and combat cynical attitudes towards the law. It is important to emphasize, however, that “the public” is composed of a broad range of views. In order to gain clarity on the question of the appearance of justice being done, it may be fruitful to explore which factors are tied to an individual’s perception of justice being done. I have suggested that legal education may be one such factor, but there are clearly others to investigate – for example, political views, socio-economic backgrounds, or levels of education.[29]

[1] The names, history, and facts (subject to some redactions) are publicly available: https://doctors.cpso.on.ca/DoctorDetails/Javad-Peirovy/0225891-84832 For the CPSO’s decision, see: Ontario (College of Physicians and Surgeons of Ontario) v. Peirovy, 2015 ONCPSD 30.

[2] The appearance of justice, of course, is different from the “appearance of bias.” See, for example, R. v. S. (R.D.), [1997] 3 S.C.R. 484 at para 110.

[3] I am connecting the idea of the appearance of justice to moral intuitions, which is generally how it is empirically approached. See, for example, Peter David Blanck, “The Appearance of Justice Revisited” (1996) 86:3 J Crim L & Criminology 887.

[4] I should again emphasize here that what appears to me as a “just” result is only my intuition. Whether this meets an objective or principled criterion is another question. For example, one might understand the appearance of justice in terms of a public justification: see Frederick Schumann, “The Appearance of Justice: Public Justification in the Legal Relations” (2008) 66:2 UT Fac L Rev 189.

[5] While the “reasonable apprehension of bias” test is generally accepted, the exact application of the standard is debated. See Jula Hughes & Dean Philip Bryden, “Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification” (2013) 36:1 Dal LJ 171.

[6] For example, see Simon Young, “Kant’s Theory of Punishment in a Canadian Setting” (1997) 22:2 Queen’s LJ 347.

[7] College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136.

[8] Ibid at para 38.

[9] Ibid at para 40.

[10] Ibid at para 22.

[11] Sandra H Johnson, “Judicial Review of Disciplinary Action for Sexual Misconduct in the Practice of Medicine” (1993) 270:13 JAMA 1596.

[12] College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420.

[13] Ibid at paras 73-76.

[14] See Sandra Harding, “Rethinking Standpoint Epistemology: What is ‘Strong Objectivity?’” (992) 36:3 The Centennial Review 437. See also Andrew L Hyams, “Expert Psychiatric Evidence in Sexual Misconduct Cases before State Medical Boards” (1992) 18:3 Am J L & Med 171.

[15] To be sure, deference in administrative law is not grounded in standpoint theory, but I make the connection to explain why the Discipline Committee might have a better grasp of the facts (not only in firsthand dealings with the accused, witnesses, etc.).

[16] Supra, note 8, at paras 51-53.

[17] Supra, note 8, at para 53.

[18] Supra, note 8, at para 54.

[19] Supra, note 8, at para 81.

[20] Supra, note 8, at para 83.

[21] A possible corollary is that the Appeal Court is not looking to a retributive theory of punishment, rather they are look to exercise judicial restraint and correcting the Divisional Court’s overreach. See Aileen Kavanagh, “Judicial Restraint in the Pursuit of Justice” (2010) 60:1 UTLJ 23.

[22] Supra, note 8, at para 146.

[23] Supra, note 8, at paras 132-133, 143-147.

[24] Supra, note 8, at paras 133, 138-140, 146.

[25] Supra, note 8, at para 132.

[26] For example, the “metoo” movement, the “twin myths,” or “rape-shield” laws. For an excellent survey of the research on social moral progress, see Fiery Cushman, Victor Kumar, & Peter Railton, “Moral learning: Psychological and philosophical perspectives” (2017) 167 Cognition 1.

[27] Concepts like “floodgates,” “formal justice,” “administrability,” “access to justice,” “discretion,” and so forth…

[28] In an informal survey of doctors and medical professionals, most agreed that the Discipline Committee’s penalty was too lenient. For example: [anonymized] Dr. X commented, “[…] he [Dr. Peirovy] is a disgrace to the profession […] I thought they would really make an example out of him given what’s going on in the media.” Professor (public health) Y noted, “[…] the results just show that there’s a cancer in the legal system.”

[29] See generally J Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Vintage, 2012).

2L Exam Summary: Evidence

July 24, 2021 · Leave a comment ·

Rules of process

Presenting evidence: tier of fact

Requires proof

Testimonial evidence Competence: capacity & responsibility/oath 14 and older: CEA s 16 Under 14: CEA 16.1Compellable criminal accused? Charter s 11c and s 13[other proceeding] Case specific Unsavoury witness? Vetrovec warningKhela: jury attention, explain why, caution jury, and look for another sourcePrior consistent statement? Repetition does not add to reliabilityExceptions: recent fabrication, circumstantial evidence, narrative, etc.Prior inconsistent statement? Does add to reliability Test: must be sufficiently connected to the case, used fairly, only used to discredit witness if the prior statement is proved

Real evidence RelevantAuthenticJudge confirms sufficient for rational finding, then jury decide authenticityNot overly prejudicial Case specific Authenticity Continuity?Photos or videos? Accuracy, fairness, verification of oath: Creemer and CormierDocuments? Best evidence rule Electronic documents? Proof of system integrity: Hirch

No proof

Formal admissions Not disputing these facts Judicial notice Test: SpenceNot subject to debate among reasonable persons? Or capable of immediate and accurate demonstration? If not, then no adjudicative, but social/legislative balances dispositive and reasonableAdjudicative factsLegislative factsSocial framework facts

Rules of admissibility

Relevant to material fact: Direct vs circumstantial evidence: Cinous

Exclusionary rules: truth-seeking, policy, pragmatic

Character evidence? propensity reasoning: habit vs prohibited inference Accused? bad character evidence is presumptively inadmissible test: extrinsic conduct, discreditable, only purpose is prohibited inferenceexception: creditability (CEA s 12), rebut good character evidence (CC 666), similar fact evidence [probative value outweighs prejudice] (Handy)Sex offence? Twin myths (Seaboyer; CC 276-277)Third-party? Generally just probative value vs prejudiceCo-accused: judge can exclude if substantially outweighed by prejudice Civil? Directly at issue or allegation of criminal nature Case specific Scopelliti application: self-defence and violent disposition	Hearsay? Presumptively inadmissibleHearsay exceptionAdmissionsAgainst pecuniary interestPenal interestDying declarationBusiness recordsPrior testimonyExcited utterancesPresent physical or mental condition Principled approach: reasonably necessary, threshold reliability (Bradshaw), safeguard interests of accused Case specific KGB statementsNecessityReliability: oath, presence, cross-examination, no coercion
Opinion evidence? Fact vs opinion? Specialize or ordinary opinion? Lay opinion: GraatExpert opinion? Logical relevance, necessity, no exclusionary rule, qualified AND discretionary gatekeeping: White BurgessReliable science?	Voluntary confessions? Person in authority? (Oickle) Threats or promises?Oppression?Lack of operating mind?“other police trickery”S 7: right to remain silence
Privilege? More worried about fairness than truth-seeking Class privilege: solicitor, litigation, settlement, informer, spousal, journalist Exception: Innocence at stake (reasonable doubt and procedural safeguards) and public safety (clarity, seriousness, imminence)Case-by-case privilege: WigmoreOriginate in confidenceFull and satisfactory for maintenance of relationShould be sedulously fosteredCost-benefit Third party recordsNon sexual: O’ConnorSexual: CC s 278	Exclusionary discretion Must weigh prejudicial effect vs probative valueCriminal cases can read it into statute (Corbett) E.g. s11(d) of Charter or s12 of Canada Evidence actPrejudicial effect: unfairness by its misuse, undue consumption of time, or confusionCriminal cases must be (in favor of accused) substantial probative vs prejudicial (Seaboyer)

Rules of Reasoning

Error of law: if triers of law do not control the evidence appropriately, they would have erred in law: R v Smith (2011)

Civil vs criminal trials

Civil trials do not take evidence law quite as seriously, which is a legal mistake (e.g. “giving it weight” is technically a legal error)
Criminal law advance evidence law the most (easier to go to SCC)
Criminal defense: prejudicial effect substantially outweighs the probative value

(Revised) W.(D.) Formula

“First, if you believe the [exculpatory] evidence of the accused, obviously you must acquit.
Second, if you do not believe [all of] the testimony of the accused but you are left in reasonable doubt by [any part of the accused’s testimony], you must acquit.
Third, even if you are not left in [reasonable] doubt by [any part of the accused’s testimony], you must [consider all] of the evidence which you do accept, [and ask yourself whether that evidence proves] the guilt of the accused [beyond a reasonable doubt].”

Philo-so-fun

Philosophy can be fun. Just kidding.