Monday, 11 December 2017

Banned from Slaw: Response to The Legal Council of Elrond

A recent post on by law system consultant and chronicler Jordan Furlong has generated a conversation that brings out many meritorious points about legal system reform. I am really happy both at the nature of the comments that have been made, and that the site moderator has decided to post them.

I can't post on the site because I was banned from commenting there (the timing suggests it was because I filed Code of Conduct complaints about Jennifer Koshan and Slaw denizen Alice Woolley in the Robin Camp matter). But even if I could, one of the reasons I started this blog was to have room to say more, so here is my response to "The Legal Council of Elrond."

Mr. Furlong's piece is a fairly generic proposal for top-down change in the tradition of letting the foxes decide how to reform the henhouse. I'm not going to patronize Mr. Furlong here by pretending the proposal is better than it is, partly because his post wasn't actually about his proposal, so much as about the fact that the system needs to get serious about having the conversation. So it seems to me that he took the risk of putting his own ideas on the table in the interests of generating other, possibly better ideas.

And for that purpose, really any ideas will do. In landscape design, one is sometimes advised to put up anything, just a stick or a broom, in an empty landscape, just to give the designer's eye a reference point; something to respond to. There is no need to criticize the stick because everyone knows it is just a stick. It helps to say things like "the stick is too short," or "the stick needs to be further west," but doing so is more a definition of what the ultimate design should look like, not a suggestion to get a taller stick.

And that is pretty much what the ensuing conversation on Slaw looks like. It is, to be honest, one of the best conversations I have seen on Slaw, so I think Mr. Furlong succeeded in his objective. And one of the themes that emerges most strongly from the comments is that people both inside and outside the legal system are now fully cognizant of the reality that the solutions to any of the crises now facing the legal system are not going to come from the people who are successful inside the system as it is now.

Both the hens and some of the foxes are clear that foxes and head foxes and the farmer are not going to build a henhouse that is better for hens.

Yet it may still not be totally clear to lawyers & judges why experts from outside law need to be involved in the legal reform process. There are a number of reasons, but one of the most compelling is that the task of accurate problem identification – the first step required for any rational problem-solving process – requires complete freedom of speech. Lawyers do not have freedom of speech about the legal system. They have too many relationships. They also do not have the expertise in system design to identify and solve problems they are part of, but the root problem is that even if they do see what needs doing, they cannot say it.

Let me illustrate by saying two things in response to the thread on Slaw that no lawyer or law professor or judge or legal librarian or anyone in law can say or will be able to say in the foreseeable future, whether they think them or not.

1) The faster Ms. McLachlin rides off into the sunset, the better it will be for the legal system. Not only must her successor be able to seize the reins and operate free of her shadow, but also, her term has been far too long and her strengths and weaknesses are too strongly imprinted on the system as it stands. While I appreciate the chaos in the chief justice role that preceded her appointment and made it seem the right one, it was a grievous error to appoint anyone so young, whose term could be foreseen to be so atypically long. Leadership renewal is sometimes necessary not because a change of leadership is needed, but because a system recalibration is needed, and leadership change coincidentally accomplishes this. Due to Ms. McLachlin’s long tenure, the entire legal infrastructure has been deprived of any renewal impetus for nearly twenty years; it has simply grown, without even random correction, due to stagnation in the leadership role.

2) Mr. Cromwell was an outstanding judge, and the loss of his services to the bench 10 years before he was due to retire was a tragedy for the administration of justice in Canada. However, an outstanding judge is not automatically an outstanding leader of legal reform. Mr. Cromwell is entirely out of his wheelhouse on this topic, and is flailing badly. The utter irrelevance of the “Action Committee” to which he refers on this thread makes the point.

I do not say that my statements on either of these points are gospel truth. My point is that these views need to be capable of being articulated in whatever assembly is discussing legal reform. If these things can be said, then so can anything else that needs saying.

Once everything that needs saying can be put on the table, then accurate problem identification can be achieved. For what it's worth, my statement of the problem the legal system faces would be: excessive institutionalization and the concomitant intellectual ossification of the experts within it.

But the solution does not automatically emerge from naming the problem. For that, one needs much more understanding of the system, of its component organizations and the relationships between them. One needs to understand precisely what is happening to the people who enter the system as litigants or SRLs, as individuals or as powerful agencies - and to those who enter it as lawyers. One needs to understand the flow of money, and of information. One needs to understand the barriers to justice before one can create access to justice.

Much of this is management skill, which lawyers and judges universally do not have and should hire. But legal knowledge is still necessary to heal the legal system, partly because many of the barriers to justice are embedded deep within the practices of the law itself: the rules of standing, stare decisis, the adversary system and the principle of party autonomy on which it rests. The law, as a very articulate lawyer said on Twitter the other day (and I paraphrase), was not made for peasants; it was made for the aristocracy. To which I would add: to now make it accessible to peasants, its very bones need to be examined.

But there is one more component that is necessary, I would argue, for the constructive reform of the law, and that is a love for the law itself. When I first became aware of the legal framework of life, which had somehow eluded me for my first 50 years, I was entranced; its emergence made me feel like Luke watching Yoda lift the spaceship out of the swamp (sorry, I know that spoils the Lord of the Rings theme). And as I explored how that framework of law has been designed, tweaked, and finessed to remain relevant century after century, and adapted from nation to nation, I was hooked. The breathtaking capacity for nuanced thought and the articulation of it of which judges and lawyers are capable is a source of endless delight. That may be one reason why the legal system's tethering of that capacity into a growing and inelegant institutional form is so distressing to me.

In a way, the law needs nothing more at this point than to be set free: free of the massive economic enterprise that it has become, free of the stifling network of relationships it imposes on all its practitioners, free of the expectations that lawyers need to change the world rather than just to help their individual clients.

Legal education should be about the law, not about the professors and the schools, and the courts should be about the law, not about processes and rules. A fairly reliable species of justice is inherent within the law, and somehow that has gotten lost under layers and layers of bilge.

The problem here isn't so much that the emperor isn't wearing any clothes, but rather that he is wearing too darn many. He is suffocating in layers and layers of velvet and ermine, can't see where he is going, and is now easily mis-led.

Bringing our poor over-swaddled emperor to a summit meeting of similarly overdressed ensigns for a game of strip poker could be fun. But they might be less stressed if they could divest themselves of their excess trappings in a more relaxed environment.

1 comment:

  1. Thank you for refreshing candor in a broken system that worships the status quo. Why the status quo is appealing is irrational in light of the fact that it is collapsing and getting more dinosaur-like each day. Law firms, law schools, bar associations are dying in front of us as they insist that only way is the old way. At the same time, technology is making the old forms of power, control, size and concentrated wealth weaker and poorer each day. The radically collaborative era is eating the lunch of the competitive era the old order just works its model harder thinking that the "things that got us here will rescue us". You bring light to the darkness. Keep it up.