Disrupting Stare Decisis – a.k.a. I Can Has Internets?
It’s safe to say that most Slaw readers are familiar with the concept of Stare Decisis in the common law tradition. From the Latin, “to stand by things decided”, the concept of a legal system in which lower courts are bound by the determination of higher courts concerning questions of law leaves little room for the lower courts of a single jurisdiction to influence appreciation of the law across the country.
As Master in Chambers Funduk famously observed in a 1989 ruling:
[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
[52] I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.
[53] I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.
Be that as it may, and to mix a metaphor, those among the lower echelons of the pecking order occasionally punch above their weight.
Throughout the internet age, and across multiple domains, we have seen many examples of disruptions to longstanding traditions and to once commonly-held beliefs of propriety. Can Stare Decisis withstand the onslaught of internet memes and widespread sharing of legal information?
The question comes to mind as I watch the growing awareness and discussion surrounding the January 2013 decision of R. v. McKay of the Provincial Court of Alberta in which the judge found that a 19 year old accused had been deprived of a reasonable opportunity to retain counsel because the police provided a phone and phonebook, but not the means to Google for help.
In less than 2 weeks, the decision accumulated over 1200 page views and the pace is increasing. To put the number in context, in 2012 it took a full 12 months for the combined page view count of the 2 most viewed decisions of the Provincial Court of Alberta to generate a roughly equivalent tally.
Lower court decisions matter a great deal – to the affected litigants – but rarely do they ripple through their home province, much less the country and beyond. CanLII holds around 4200 decisions of this Court, the great majority of which have never been and will never be cited by another court. Cross referenced against the 1.1 million cases in the CanLII database, only 6 have been mentioned 20 or more times in other cases, and even then, predominantly by the Provincial Court itself and only rarely a superior court or a court of different jurisdiction.
But as McKay is starting to demonstrate, Stare Decisis isn’t the only way to have influence.
- The first tweet linking to the decision on CanLII came on February 11th and dozens of tweets and retweets followed. One of my personal favourites among the re-tweets was this one from the excellent and “must follow” twitter account of the Kingston Police:
Not binding in ON but still interesting. MT “@canlii: “A Charter Right to Search Google?” Blog from Martin Kratz re bit.ly/12OlHWJ”
— Kingston Police (@KingstonPolice) February 14, 2013
- The referenced article from Martin Kratz first appeared on his firm blog on February 13th and then on Slaw on February 19th. Martin’s article was also discussed by the National Post on February 15th.
- On February 15th , University of Ottawa professor (and CanLII Board member) Michael Geist published an article about the decision in the Toronto Star, which was subsequently republished on his blog on February 19th. Now thing REALLY started getting interesting.
- That same day, the very popular tech community board Slashdot.org linked to Michael’s blog and to the case on CanLII
- On February 20th, I noticed a significant amount of web traffic coming to the decision on CanLII from a site in the Netherlands.
- On the 21st, traffic started pouring in from this posting in Germany.
- In addition, links to the decision can be found on facebook, and several other blogs and discussion boards.
Without running afoul of Master Funduk’s maxim, the take-up and dissemination of Justice Lamoureux’s ruling provides an indication that in the internet age, influence in the justice system will not be dictated solely by pecking order.
Stare Decisis isn’t going away, but at what point does the standing of the issuing court or even the legal accuracy of the judge’s ruling in McKay become moot? Irrespective of any appeal that may follow and any treatment of the argument in other jurisdictions, the essence of the finding – that in the internet age, providing a reasonable opportunity to access counsel carries a positive obligation on the police to provide internet access – is slowly on its way to becoming conventional wisdom around the globe.
Indeed, if someone can figure out how to attach a cat video to the ruling, we might have a new global standard for providing access to counsel by the end of the month!
Stare Decisis implicitly assumes the subordinate courts could be informed of the decisions of their superiors, and would have little practical effect in a pre-literate society, or even one without inexpensive printing.
In a society with extremely inexpensive communication, lower courts might chose to consider the arguments, but not the decisions, of one another, rather like a court might be interested in the decisions of a foreign court dealing with a new kind of case.
–dave
“Lower court decisions matter a great deal – to the affected litigants – but rarely do they ripple through their home province, much less the country and beyond.”
I would disagree with this proposition in a case like this.
Where there’s controlling authority from a higher court (a big pecker), this makes sense. But where an issue is being considered for the first time, where there’s little or no authority on point, then the decisions of the little peckers can be quite persuasive.
Put another way, I’d suggest there’s a big difference between saying “no Canadian court has ever considered this issue, you’d be the first” and “more than one court has already agreed with this argument”.
For stare decisis to function as it is supposed to (whatever that means) the system requires:
1. the lawyers provide the judge with the applicable cases;
2. the lawyers understand the cases;
3. the judge understand the cases;
4. the judge trust the lawyers’ competence and
5. nonetheless the judge check himself or herself to determine that the correct law has been provided.
But, since judges are busy, what if 5 is left to a research lawyer who while conscientious, has a full plate too and isn’t an expert in the area in the first place. (Nor does he or she have the time to become … )
Now, perhaps the “have we given the judge enough help” problem would be ameliorated if the lawyers were required to say they’d checked all of leading Canadian textbooks on the point and were required to provide the page references for the material in the textbook dealing with the area.
But perhaps the lawyer is working on a thin retainer or …
Sometimes the required work seemingly wasn’t done even when the lawyers are senior. Or if it was done the material didn’t get to the court. (Some Ont. lawyers who practice in areas involving motor vehicle insurance will remember the “David Polowin” mess.
Stare decisis presumes expertise in the issue at every level.
Or else:
1. the first instance judge knows the law (“fortunately” for the litigants)
2. the first instance judge doesn’t know the law; the first appeal court gets it right and there might have to be a new trial (“unfortunately” for the litigants)
3. the first appeal court gets it wrong, too, and the matter heads to the ultimate appeal court (maybe) (“unfortunately” for the litigants). If it doesn’t get to ultimate appeal court, then “unfortunajurisdictionordinate jurisdicition which now has a per incuriam precedent, or at least one that’s inconsistent with the inferior appellate court’s prior precedents.
4. Ultimate appeal courts, of course, never deliver inconsistent decisions, just “incomplete” decisions. (But see the comments of Slatter JA in Hogarth v Rocky Mountain Slate Inc, 2013 ABCA 57 at para. 42.) The “incomplete” comment is a reference to a comment by another court in another decision.
5. For whom isn’t the mess unfortunate? It’s at least plausible that somebody got paid for their work (other than the judges and court staff.)
Dave, Mike and David – thank you for the comments and for expanding the discussion.
If I could claim to have fully considered the sum of your collective contributions concerning stare decisis as emphasizing the need for judges at first instance to be fully informed of the applicable law and to follow it, then I would have expanded my speculative musings to suggest that notoriety of a lower court decision is what gives it the potential to muscle its way into gaining equal consideration alongside authoritative higher court rulings when the issue before the court is novel.
And while I’m retrospectively modifying my post, I will also re-imagine the impact on its own potential for viral distribution had I dropped the sub-title, or gone with something a little more “of the moment” like: ‘Disrupting Stare Decisis with a Harlem Shake” to underscore the power of the internet to redirect and hold your attention on new info or diversions. [if you don’t get the reference, travel over to YouTube]
Colin
From this article to their conclusions:
Patricio A. 1. Fernandez & Giacomo A. M. 2. Ponzetto, “Stare Decisis: Rhetoric and Substance” 2012 28: 2 313.
“We have proposed instead a legal realist model in which distinguishing can be used to overrule, but is kept in check by an increasing effort cost of legal innovation. Thus, case law develops gradually, and reflects the preferences of all past judges as well as the instant one. Its evolution converges toward greater efficiency and predictability, according to the intuitions of Burke, Cardozo, Leoni, and Posner. Legal change increases social welfare: in expectation when no new information becomes available; with certainty once all relevant facts are observable. Judge-made law will then eventually reach the first best.
Rhetorical requirements beyond stare decisis create incentives that shape judicial decisions. As a first step toward a broader analysis, we have considered the role of legal analogies, which generate adherence to precedent across, as well as within, areas of the law. They thereby increase the consistency of legal evolution at the cost of a potential long-run bias.
We have not attempted to provide an in-depth account of the social conventions underpinning judges’ rhetorical incentives. It remains for further analysis of judicial decision making to assess the role of legal education, public scrutiny, peer pressure, and the organizational structure of the judiciary in generating such incentives.
Our account does not deny the importance of logic in legal reasoning. Rather, it reverses the causal link between logic, practice, and rhetoric. Judges will craft their decisions and opinions so as to facilitate the task of rationalizing and legitimizing them. It is precisely this process of justification that results in the logical structure of the law.”
One criminal prosecutor who knows about I.T. and who read the facts of the case said that he wondered who had been more impaired, the accused or the judge. In other words, we should not rush to assume that the case will make law, as distinct from being a curiosity. Maybe it’s a straw in the wind, but maybe it’s not.
That said, the Internet (including CanLII) can give publicity to persuasive legal reasoning that may have lateral influences not contemplated by stare decisis. So can blogs, which courts have been known to cite. (Good thing that the courts don’t insist that authors be dead to be eligible to be cited.)
A recent development prompted me to add to my long-dormant post.
Out of the UK comes McAlpine v Bercow [2013] EWHC 1342 (QB), available on BAILII, a libel action concerning a tweet claimed to be defamatory. For those interested in a discussion of the decision and its implications, I recommend this post on the Trial Warrior blog.
My interest, as in my original and related posts over the past year, is in the use of Twitter itself to get the word out.
On any given weekday, Twitter mentions of BAILII will hover between 150 and 250, but on the day this decision was released, mentions exceeded 900. Recorded tweets with links to that decision are approaching 600.
Only BAILII knows for sure how many people read this decision, but to offer some context, CanLII’s hottest decision of 2013 (R. v. Duncan) has attracted several thousand page views directly from a little over 200 tweets with links.
In both cases, Twitter would only be part of the story as it carries the news forward, and the story takes root in many, many other places and with it, the influence of the judgment can go beyond the bounds that follow from strict application of stare decisis.