When Law Doesn’t Work: Outlier Theory

When I was articling, eons ago, I came across a judge who smoked in court, made off-hand comments affecting his decisions without any evidentiary basis (“everyone knows what a second hand Lincoln costs”) and made sexist comments towards me (“bring this young lady into my chambers”). He was well-known in the particular legal community (I was merely “visiting” on a discovery issue) and no one thought there was a way to contain him. Indeed, as I sat in the courtroom waiting my turn, I was warned about him. I think of this judge as an “outlier”, beyond the reach of the mechanisms designed to maintain appropriate judicial conduct. It’s not just judges who escape the law’s control, of course, it might also be politicians. But how does this happen?

Years after my encounter with the judge who presumably knew what a second-hand Lincoln cost, when I was teaching law in New Brunswick, I wrote about a judge who was notorious for the comments he made during proceedings and for how he treated parties and other participants. The CBC later interviewed me after I’d returned to Toronto because they couldn’t find anyone in New Brunswick willing to talk about him for public consumption.

Probably the person best known to the most people who fits this mould currently is the president of the United States (English-Canadian spelling, no pun intended). Donald Trump has broken the law in many ways and has countenanced his followers and employees, including cabinet secretaries, doing so. He lives in mutual relationships in which he enables and is enabled.

“Outlier” can be defined in several ways: the online Cambridge English Dictionary defines it as “a person, thing, or fact that is very different from other people, things, or facts, so that it cannot be used to draw general conclusions”; or “a fact, figure, piece of data, etc. that is very different from all the others in a set and does not seem to fit the same pattern”. The online Merriam-Webster provides the following definition: “a person or thing that is atypical within a particular group, class, or category”. For my purposes, an outlier is someone who, though breaking all the rules, whether the law or well-established norms, appears to be immune or often so, from sanctions that would apply to other people.

The applications of these definitions to my two judges or to Mr. Trump are, I believe, obvious. No doubt everyone can think of people who, in their spheres of endeavour, do not fit with others. Sometimes this might be a good thing: people ahead of their time who are actually paving the way towards improvements, but currently seem to be out of step. Often, though, it is not a good thing and I’ll go out on a limb and say as far as my two judges and Mr. Trump are concerned, it is not a good thing. These individuals raise the questions: How do they become outliers, what makes them outliers and how do they get away with it and, perhaps most importantly, what do they reveal about how a society is functioning that is ostensibly subject to the rule of law? (This isn’t the place to discuss what I mean by the rule of law; suffice it to say that it refers to rules and regulations that govern everyone and no one is beyond its reach by virtue of position.)

The first precondition is the character of the individual themselves. They must be brazen enough to tread their own path without worrying about consequences; they must be someone who likes, even craves, attention; they must be someone without respect for norms or protocols or, indeed, the law that supposedly governs their actions. They liked to be talked about, even if not particularly liked or respected, and they may even be envied by those who are more circumspect but who may sometimes wish they had the apparently “freedom” of their more flamboyant colleague.

Not everyone who fits this description will have the opportunity to become an outlier. It is unlikely that their behaviour was significantly different before they occupied the position they now hold, yet they somehow made it past the vetting process. In the case of the judges, they may have been colourful lawyers (I speculate, knowing nothing of their prejudicial life), viewed as unconventional or free-spirited and fun, but within the then closed system of judicial appointments still “one of the boys”. Possibly, no one even thought about how their conduct might manifest itself on the bench, or the opportunity offered by the authority of the bench encouraged their outrageousness.

There is no question that the president’s behaviour was in many respects well-known before the 2016 election. And while a majority of Americans rejected his candidacy, likely because of that conduct, as well as other policy-related reasons, he nevertheless became president through the operation of the Electoral College. And the reality is that many millions of people voted for him and still support him, in at least some cases because of, not in spite of his conduct and character.

However, other supporters placed a lower priority on conduct and character than on their dislike of Hillary Clinton or because of his promises or simply because they always voted Republican. Among them were those who had difficulty with who he was, but believed advisors and “the system” would contain him.

Thinking back to the judges, the New Brunswick judge’s conduct and comments were not necessarily those that formed the basis of an appeal or resulted in a successful appeal. They might, however, have been a reason to bring a complaint to the Canadian Judicial Council. Few lawyers or parties were prepared to do that. New Brunswick is a small legal community; its members feared ostracism. As for my other judge, even the lawyer on the other side of my discovery case more or less accepted that this judge’s behaviour was simply a feature of the system in this place. When I raised his comments with a partner in the firm where I was articling, she asked me, “did you win?” and when I said “yes”, she said something to the effect of “why worry then” or “don’t rock the boat”. (I hasten to add that things may and probably would be different with respect to both judges in today’s climate.)

And these responses take us to the second condition of the existence of outliers: the system, for whatever reason, fails to contain them. One reason is that actors in the system who are intended to protect the system from outliers, from those who were not within contemplation of those who organized it, passively fail to play their part or see their own advantage in supporting the outlier. This is certainly true of the president. Those who seek to contain him, using the relevant features to do so, are therefore stymied. Or the system is simply not robust enough to support those who are prepared to speak out in an effort to address the problem or to overcome the existence of the outlier’s accomplices. People are either too immersed in the system to see it is being abused or again, are supportive of the outlier’s agenda and are willing to assist them in their efforts.

The outlier plays a highly significant role in any system in revealing its weaknesses and in showing the importance of political culture. The outlier makes plain that law is not only about “the law” but about the people responsible for it and about the expectations “ordinary” people — the general populace — have for how it will be observed and implemented.

Where the general populace does not conspicuously support the operation of the system — of the norms, protocols and operation of the laws — the outlier knows the road is clear. I hasten to add here that disagreeing with the norms, protocols and the laws for other reasons is not inconsistent with believing the outlier must be contained if efforts to change them are constructive (recognizing that “constructive” is open to interpretation). The point is that the outlier is emboldened when opponents’ conduct can be equally described in outlier terms. (There will be those who argue that any conduct is legitimate if it is the only way to remove an outlier, particularly if the entire system has its own outlier characteristics and this may be so; but the issue of when revolution is appropriate do not really arise with the outlier situations I’ve described and am addressing.)

Successful outliers are dangerous. Keep in mind that these people do not criticize “the system” or seek to change it to make it better for others, they are only concerned with how it can serve them or how they can satisfy their own character urges. They may themselves or they may be used to destroy the institutions that, while not perfect, have nevertheless served to protect people or which may be over time susceptible to positive change. In any event, their goal is not to bring about the changes that the disadvantaged seek. Outlier judges can bring the administration of justice into disrepute, and outlier politicians can make a mockery of the law.

Outliers unchained can lead to the disintegration of the norms, protocols and laws that have sustained the society and permitted evolutionary change. This may be appealing to those who have been oppressed by the norms, protocols and the law and its implementation who may see an opportunity for a more just society. More likely, it is appealing to those who wish to impose an autocracy in which the oppressed are simply joined by others. A comparison of my judicial examples with the president of the United States tells us that individual idiosyncratic judges and an idiosyncratic president, while having a significantly different impact on the systems in which they operate, can serve as messengers about the frailties of the system’s composite institutions and about the laws that purport to govern them.

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