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.

Sunday, 2 July 2017

Maybe it's time we dragged our eyes away from the Charter

Manitoba Court of Queen's Bench Chief Justice Glenn Joyal spoke at the Canadian Constitutional Foundation conference in January, 2017 about political culture in the post-Charter era.

I am indebted to Professor Leonid Sirota for news of the talk, thanks to his blog post in which he disagrees with it, here. More about his disagreement later.

Chief Justice Joyal's opening premise is that "Canadian political culture... has now fundamentally changed." (I quote that with confidence thanks to the transcript of the talk being available at Advocates for the Rule of Law). He went on to eloquently and informatively support that claim. I think I am correct in portraying his position as advocating judicial restraint and legislative recovery as the remedy, but I don't like to try to summarize; his position is comprehensive enough that I hope anyone interested will go to the source material, not take it from me.

Remedy aside, his premise forcibly reminded me of a 1969 article by two Yale law professors, Harry Wellington and Ralph K. Winter Jr, who wrote, in "The Limits of Collective Bargaining in Public Employment:"

"What is wrong with strikes in public employment is that because
they disrupt essential services, a large part of a mayor's political constituency
will press for a quick end to the strike with little concern
for the cost of settlement. The problem is that because market restraints
are attenuated and because public employee strikes cause inconvenience
to voters, such strikes too often succeed. Since other
interest groups with conflicting claims on municipal government do
not, as a general proposition, have anything approaching the effectiveness
of this union technique-or at least cannot maintain this relative
degree of power over the long run-they are put at a significant competitive
disadvantage in the political process. Where this is the case, it
must be said that the political process has been radically altered. And
because of the deceptive simplicity of the analogy to collective bargaining
in the private sector, the alteration may take place without anyone
realizing what has happened."

Emphasis in the above quote is mine. Although the term "political culture" is not precisely analogous to "political process," it seems to me that the chief justice's overall message is the one with which Wellington and Winter close the paragraph. What I heard Chief Justice Joyal saying was that something has changed, and it is time we realized what has happened.

But wait. Chief Justice Joyal is talking about the Charter. Wellington and Winter were talking about public sector collective bargaining. Same outcome, different cause. Unless....?

Is it possible that we attribute, in Canada, to the Charter things that are more correctly attributed to groups that have most successfully leveraged the Charter to achieve their objectives? Organized labour, specifically public sector organized labour, is one of the groups that has done precisely that, and that might account for this convergence.

Let's look at the timing. Wellington and Winter wrote in 1969, at which point there was already considerable experience with public sector bargaining in the US - they were not making predictions, but observing what was already going on. Public sector collective bargaining came to BC in the '72-'75 period, and progressed at about the same pace in the US and Canada. The Charter was enacted in 1982; early in the process. So the overlap is close enough that one could mistake the effect of one for the effect of the other.

One can delve deep into case law or into political history (or into union history for that matter) and find support for the thesis that organized labour has gained power continuously since the Charter was enacted, even if interpretations might vary as to whether they have enough of it yet, or not.

But that doesn't mean it was because of the Charter that unions gained power. Even the fact that their project had a Charter-based name - "the constitutionalization of labour" -  does not mean that their litigation work was the source of their power growth. It might just mean that colonizing the Charter was one of the things that organized labour had to do in Canada to get the power they wanted to have. In the US, maybe they had to do different things at different times, in the courts and outside of them. The end result is the same: it's now between tough and impossible for ordinary citizens to outgun organized labour in court or outside of it.

What works for one group is likely to be copied by others - and it has been. Chief Justice Joyal refers more broadly to "the de-facto constitutionalization of political and social issues." Again, these trends cross borders, as Chief Justice Joyal recognizes. During these years, the same forces have come at the courts, at legislatures, at societies from many diverse sources, such as through academe, through NGOs, and via international convention. This too may account for the fact that the US and other Anglo-American democracies are experiencing similar changes in political culture in the same time frame as Canada without having the element of the Charter. It's just that in Canada, getting Charter validation is one of the boxes you have to tick off to, for example, get your assisted suicide movement to a certain point.

There may be many reasons why it is important and timely for assisted suicide to be available. It may or may not be rational to frame it as a right or a freedom. That may simply be what you have to do to have it made into policy in Canada. So to attribute advances in assisted suicide or any other policy changes to the Charter, or to the courts in the time of the Charter, may lead to a flawed analysis.

Professor Sirota does not, if I understand him correctly, take issue with the chief justice as to whether the courts now out-power legislatures. They diverge, rather, on the issue of whether this is a good or a bad thing, Professor Sirota having more faith in the courts as an institution than he does in legislatures.

But I don't think either position fully understands the courts as an institution. Both have made a number of assumptions about the courts, as well as about legislatures, that can be dissected in such a way that a whole new perspective emerges.

What if legislatures have not been out-powered by the courts, but have rather quite happily retired into the background and let the courts do the dirty work of enacting unpopular or divisive policies? What if the courts are not agents of their own growth, but simply reacting to forces and opportunities that are put before them? And what if the public has let all of this happen but can correct it at will when the mood strikes them?

Which brings me to the assertion that the other element that neither combatant in this conversation fully appreciates is the public.

The discussion between Chief Justice Joyal and Professor Sirota is a discussion between experts, and one of the points on which they differ is on the topic of the non-expert view, although it must be acknowledged that the chief justice says less on this topic than the professor does. In the end, their view of the public may be both the most explosive point at issue here, and also, the biggest weakness in both their positions. Professor Sirota views the public as ignorant - the fact that legislatures are directed by idiots is a primary reason why he prefers to trust the courts. Chief Justice Joyal views Canadians rather as either uninformed or, if informed, then powerless.

Both view the court as the actor, the public as either passive recipient, reactive element, or victim. It's my premise, however, that in a democracy, such a view is wrong. The public is always the primary actor. It's just that what motivates the public to act is a bit unclear... until it happens.

The expert/non-expert divide is much discussed these days, post-Brexit and Trump, post-Rob Ford and Vancouver transit referendum, and many experts have weighed in on it (little joke there). But none of them has actually put a finger on the essential difference between experts and non-experts. Experts need to analyze, understand, justify, and seek permission to do things. Non-experts, the public, don't need to do any of this. They simply do what they feel needs to be done. And they don't have to justify it to anyone.

So while I agree that the court-legislature imbalance is a problem and while I do not under-appreciate the gravity of the situation, it is my opinion that in the long run, the people will be able to correct it. A podcast interview with Chief Justice Joyal after his speech at Runnymede Radio even shows one way they could do it: Section 33 of the Charter, the notwithstanding clause. All that is needed is for the public to elect governments that will invoke it.

Comedy again: the people's untrustworthy representatives who had been elected by the ignorant in 1982 put a clause in the Charter that allows legislatures to pretty much bypass the courts at will. That's not to say that's how it will happen, of course. In real life, the mechanism of correction is always a surprise.

The public is dismissed as non-expert, or ignorant, at experts' and institutions' peril. The public may not be able to dissect a fine legal point out of a complicated case or track the legal history of section 7, but they can, to a whisper, detect the moment at which a power imbalance has gone too far and a recovery must be made.

The public also has a reservoir of power that not many people recognize or appreciate. After every election, everyone bemoans low voter turnout, blinded by the belief, of course, that any voters who didn't bother to turn out would have voted with the complainer. But that position fails to appreciate what all those un-cast votes actually represent. They are a reservoir of power that, if mobilized, could change the political scene overnight. They represent a reminder to the institutions of democracy and to the experts in them: you govern with our consent.

So Job One for every political institution, including political parties, is to not disturb that quiescent force. The beauty of the system is that it is actually a very efficient use of the public's time. Very few people actually have to vote in order to decide who governs. Whether a leadership is elected by 48% of the electorate or by 3% of it, their duties and power are the same. They are supposed to govern in the interests of their region and everyone in it: those who voted for them and those who voted against, and also for those who did not vote.

The most useful definition of democracy I've ever heard came from a National Geographic article in which a political agent from a developing nation - one with a history mired in civil war - was interviewed. He identified the orderly transfer of power as the key attribute that differentiated the democratic ideal from what his nation had experienced.

So as I see it, the fact that we enjoy an orderly transfer of power to whoever is elected is more important by far than who we actually elect. I have felt for some time that we over-attribute what governments do to what parties they are or the personality of their leaders. To some extent - as I am arguing that the courts do too - governments respond to the conditions, opportunities, and challenges (and finances!) of their time in office. I suspect that some 3 out of every 5 policies that a government passes would have been handled exactly the same way had the opposing party been elected instead.

In other words, the reason that section 33 has not yet been invoked may not be because the people have not elected governments that will invoke it, or that will otherwise meaningfully override the courts, but because the conditions have not yet arisen that would induce a government to do so. The need has not been felt acutely enough. So the sleeping voters may not even have to mobilize to correct this imbalance - the governments we already have may do so when necessary. Or, I should say, they may do whatever is necessary to assert the authority they are supposed to have.

Just as they got section 33 into the Charter.

Chief Justice Joyal uses the term "ambassadors" for the Charter, taking the term from a speech recently given by the present Minister of Justice, the Honourable Jody Wilson-Raybould, who described herself as "an ambassador for the Charter." But let's keep in mind it was the very architect of the Charter, Pierre Trudeau, who invoked the War Measures Act. Governments do what they have to do when the conditions demand it, and while this government is doing many things that maybe no other government would do, I would submit that if it faces a real threat to its sovereignty, it too would do what has to be done, Charter and courts be damned.

Similarly, the courts, when that time comes, may quite properly cede precedence to the legislatures rather than battling them for it. Judicial restraint is unlikely in the presence of no incentives to exercise it. But on the day that being restrained and saying no to special interests becomes what the courts have to do to survive, they will do so.

But back to Wellington and Winter. Were they right, that the political process has been fundamentally altered? I'd say yes, as would anyone who has tried to achieve a political aim contrary to what organized labour or certain other current forces want. And I believe that is Chief Justice Joyal's essential message, one which Professor Sirota, if I read  him correctly, does not really oppose.

But there may be room for doubt that it happened "without anyone realizing what has happened."

The constitutionalization of labour project suggests that unionists and labour lawyers, at least, know darn well what has happened because it has been deliberate. That impression is affirmed by an article whose title quotes a BC teachers' union agent: "Structuring reality so that the law will follow." And so do all the other groups that have deliberately and successfully used the Charter as a tool to advance their social and political agendas.

And I think the public realizes it too, both unionized and non-unionized. If you tune into conversations among unionized public sector workers, it is palpable that they feel immunized by their Charter wins to the extent that they can articulate contempt for the public. And if you tune into conversations among the public at large, as can now be done in the on-line comments section of any major media story related to public sector labour, it is easy to see that contempt and resentment are more than reciprocated, and that people understand very well that elected officials are apparently powerless relative to organized labour, and that they know this is wrong.

Even, as I've suggested above, legislatures and courts themselves, and all the experts in them including the two whose dialogue is my topic today, may recognize very well that there has been a sea change in power distribution.

But what I think is possible is that even though everyone understands what has happened, no one correctly identifies, exactly, what really happened. That is what the superimposition of the two dialogues - public sector collective bargaining (USA 1969) and the impact of the Charter (Canada 2017) - shows. In Canada, we think everything that happens is because of how the courts have interpreted the Charter. This is particularly likely in a conversation between two experts in how the courts have interpreted the Charter. But if exactly the same outcome has occurred where there is no Charter, then it is likely that we are wrongly distributing both blame and credit. And with blame and credit wrongly distributed, proposed solutions are also going to be wrong.

This is where it becomes important that the element of "the public" is correctly understood.

Experts, analysts, and diagnosticians may argue about what caused what to happen and how it should be fixed. What the public has, however, is an unerring capability to know exactly where it hurts, and to identify the moment when the pain becomes unbearable. When it does, they'll fix it, one way or another. They won't analyze, they won't explain, they won't weigh pros and cons; they won't justify. They will simply act.

Professor Sirota very wisely brings up the issue of incentives as a way to evaluate and predict institutional behaviour. He believes that the courts are better incentivized to make policy that is in the public interest than legislatures are, which are constituted so that they pander to idiots. I would take issue with this view of how the courts are incentivized, but it is not germane to the topic of this post to do so. Suffice it to say that when the public takes action, the courts will be reacting, not acting, and that their incentive structure will quickly change.

I'm not the biggest fan of my fellow travellers in the public realm sometimes, but on the subject of power imbalance, it simply doesn't matter whether the public is ignorant or not. They will prevail to correct a power imbalance in the end, and if the experts are wise and wish to survive the correction, they will put their efforts toward appreciating where the pain is being felt, and relieving it as soon as possible, rather than discussing the colour of the bandaid.

Wednesday, 25 January 2017

What the Chief Justice of the Supreme Court of Canada said

As I've mentioned before, the case that drew me into the legal system as a self-represented litigant was that of the BC Teachers' Federation seeking the power to bargain what it calls "class size and class composition," but what is in fact how public schools are organized and, overall, how much they cost, not to mention controlling families' lives and all that. It is a fundamentally illegal power that the union seeks, but thanks to a bit of linguistic sleight-of-hand, bad precedent law, and political opportunism, the union was granted that power in 3 out of 4 court appearances, including at the Supreme Court of Canada in November 2016.

This last decision has settled the matter as far as the two parties and the courts are concerned, but has created a legal, constitutional nightmare that the citizens are now left to live in, and which we will have to litigate our way out of if we are to rescue our system of governance. I am now engaged in figuring out how to unravel this mess. I am free to call it a mess because I am not an officer of the court, but unfortunately I also lack the litigation capacity that officers of the court have. So fixing it is going to take a lot longer than saying it.

One thing I had to do to begin unravelling this mess is to listen to the webcast of the hearing at the Supreme Court of Canada. This was necessary because there was, in effect, no decision issued by the SCC. The court simply went behind closed doors for 20 minutes, probably all took a bathroom break, and then voted on the decision of the BC Court of Appeal. The Court of Appeal decision was a 4:1 split against the union; the SCC voted 7 to 2 for the sole dissent (that means the BCTF won).

And that is all the SCC has provided by way of reasons.

So the webcast, and particularly the questions that the SCC judges asked of the presenters as things proceeded, was pivotal to understanding what went wrong. It was pretty interesting throughout, barring how disillusioned one quickly becomes about notions of fairness as one watches how these things proceed. For example, some presenters are allowed to take their allotted time, but with others, the judges interrupt with questions and the presenter never gets to make their whole presentation. There is no apparent allowance made for the time taken up by the judges.

This is, of course, because all the utterances of the judges are meant to be regarded with reverence, and the assumption prevails that having the opportunity to directly address a question from a judge is actually a better use of time than whatever remarks the parties or interveners might have prepared. And to an extent, this held true. Some of them asked quite penetrating questions, although the end result shows they were quite gullible in terms of the answers they accepted from the union.

But there was one remark, or set of remarks, from the Chief Justice herself that caught my attention particularly.

It occurred during the presentation of Donald J. Jordan, QC, appearing for the intervener Canadian Association of Counsel to Employers, circa 3:15:00 of the webcast. This is my own transcript of the exchange:

     DJJ: “ I’m going to take my time here today to address the issue which appears to have caught the court’s attention today about assessing the reasonableness of positions under the rubric of pre-legislative consultation. And I think you have to start with a recognition that it’s a difficult thing to do to reconcile things which are often quite competing in the sense that under the notion of pre-legislative consultation trying to reconcile collective bargaining and the legislative function. Collective bargaining is highly adversarial, it’s bilateral, and people act out of their own self-interest. Legislation on the other hand is polycentric and policy-driven with the government having to act in what it perceives to be the interests of all.

     CJ: How does this really differ from a business… we have management, we have labour, management has to take into account, be it government or be it some very complex corporation, or simple, they have to take into account a whole range of activities and then they come up with something so I’m having a little trouble with how we are in this peculiar situation…

     DJJ: Respectfully I think the situations are not parallel at all. Management has no role for anything, no obligations to anything other than the particular enterprise whereas governments have obligations far beyond, for example, the teachers or the paramedics or various other people…

     CJ: Corporations may have a lot of obligations too, under contracts and one thing and another and to shareholders. I’m just saying from the point of view of the structure its not who you have the obligations to it’s the entities that are going to be doing the negotiation and surely the job of government is to consider all the different ramifications and come to the table with - I’m just suggesting this but…

     DJJ: Respectfully I think it diminishes the role of government as a democratic institution to say it is responsible for the same type of reconciliations as a corporation [does]

     CJ(?): [brief, inaudible]

     DJJ: Well, governments are special. Governments are democratic institutions, they’re part of our democratic tradition, they’re how we, ah, are governed. It’s a pretty simple observation. 

     But it is of course in this case it is the case that we are at the intersection of collective bargaining and government’s role and what I want to speak to today is how that relates to the issue which has been apparently front of mind here about assessing the reasonableness of positions. Let’s start with what collective bargaining does…. [remainder of presentation].


I'm going to just leave that exchange here for the moment; I hope to post more about its implications at another time. 

Saturday, 7 January 2017

We have a very serious judicial independence problem in Canada

Part One of Three: #Zabelhat

So, smack in the middle of the still-unfolding drama that was created by law professors around Justice Robin Camp, comes the news that Judge Bernd Zabel of the Ontario courts has been suspended for wearing a hat in court. And who made the #ZabelHat drama happen? Law professors.

Yes, you heard that correctly. A law professor, this time one at Osgoode Hall, who was not even in the courtroom, took offence to Judge Zabel's hat, and made a complaint. With who-knows-how-many complaints in queue made by ordinary people and lawyers who actually appear before judges about substantive matters of judicial conduct, once again a law professor can vault ahead and take down a judge while the rest of us can only fume impotently and vent our spleen writing futile complaints to the bodies that supposedly govern the judiciary.

Yes, I said "supposedly" govern. Because those bodies are now revealed by the two cases of Camp and Zabel to have no authority of their own at all. They crumble at the first sign of disapproval from within legal academe, whether that disapproval is merited or not.

In both cases, the academics' disapproval of the judicial conduct was not only not merited, but also, the conduct was relatively harmless compared to conduct issues that normal people are facing in courtrooms and from judges more generally. For example, there is a Quebec judge jetting around to legal conferences asserting that self-represented litigants are mentally ill. Any action on that file? No, we are more concerned about Judge Zabel's hat.

Legal academe has gone completely rogue. I'm tempted to say insane, but there is too much consistency to the method. Legal academe has gone rogue. And it's gone rogue politically. It's no accident that Judge Zabel's hat was a Trump hat.

In the CBC's story today about the Zabel hat incident, one particularly outraged professor intones that there is "compelling evidence that he wore the Trump hat as a political statement and endorsement of Trump's values and ideology."

Well, maybe he did. But aside from the problem of political opinions being voiced by the bench, there's nothing wrong with Trumpian opinions in particular. Everyone and anyone has the freedom to not just endorse but also to passionately embrace Trump's values and ideology. It's just that Trump's values and ideology give the professoriate the creeps.

Which makes the professor's complaint itself a statement of political opinion by the professor. How suitable is that? To whom do I make a complaint?

A judge wearing Hillary regalia, you see, would have aroused not a word of complaint. For example, there was no academic movement to disbar Marie Henein for her pro-Hilary rant in the Globe and Mail, however inappropriate that was for a lawyer. (There are professors who have, however, damned her for defending Ghomeshi, ie, for doing her job).

The professoriate worldwide is driven absolutely nuts by the Trump victory. They see it, and rightly, as a rejection of their sage advice to the people about what is good for them. It's kind of amusing that this comes in Canada from the American Trump victory and the UK Brexit vote, because you know, before either of those things happened, Toronto thumbed its nose at the publicly funded elite and voted for Rob Ford. And Vancouver thumbed its nose at a multi-million dollar bureaucratic campaign to vote up transit funding with a resounding NO.

The professoriate did not take a hint from those events. Now they are knocked somewhat flat by the evidence from outside the country, and so much so that their high minded democratic equality ideals desert them as they flail about to reconcile those ideals with their hatred of Trump. To a unit, those who try to argue against Trump cannot speak without revealing their contempt for the people who voted for him. Just like the professors who are going after Judge Zabel.

Sorry, people, the high-minded ideal of democracy and the reality of equality means that when Trump wins, you concede graciously or you shut up. You may think that the Rob Ford melt-down shows that you are right, but you are wrong in thinking that, because garbage collection is working better now, no matter what Rob Ford's own tragic back story was. And the people who voted for him knew that it would be.

It's also no coincidence that Judge Zabel was a judge in Hamilton. My take is that he's a judge who knows his people. My guess is that he increased local confidence in the judiciary tenfold when he wore that hat. Local people would be choosing to appear before him if they could. His joke may not have played well in judge's chambers or in academe, but I bet there was a good bit of chortling over the morning newspaper in homes throughout the region when news of it broke.

Neither public support nor my own views make the hat a good idea, of course. I'm not saying a hat can't be problematic. If a judge wore a hat with a logo of a potential litigant, for example, I could see a problem - so, let's say, Toronto Blue Jays, or the Steelworkers union. And I'm not saying it shouldn't be pointed out, even by a left wing law professor. Critique is good: we are always more willing to see our opponents more clearly than we see those who we support. That's why the law is adversarial. But public dialogue should always be adversarial too, and what bothers me about the Zabel hat incident, and the Camp case, is that no one has opposed the professors who complained. Everyone, including media, just rolls over when a professor speaks - they can't possibly be wrong, can they? - and worse, the professors expect precisely that reception.

Part Two of Three: Can the professoriat be reined in?

The belief in the professoriate that they should rule the world, and especially control the judiciary, has been brewing for some time, and it became glaringly apparent through the Ghomeshi file that it is especially prevalent within the ranks of feminist missionaries who work as legal scholars. Tragically, there are actually law professors who treated the outcome of that trial as regrettable, and who are plotting to make sure that something similar - an innocent man evading conviction - cannot happen again.

But the cost of rogue academe truly hit the fan in the matter of the Justice Camp takedown. It is not readily apparent from the news coverage, but if you carefully read the inquiry documents you realize that, after the campaign against him began with four law professors, a veritable chorus of over 50 more law professors bolstered them. There were a couple of dozen individual, perhaps public, letters, but professorial signatures outnumbered them. Most appalling was a petition signed by over 200 law students in various programs at the University of Windsor. What kind of a law education is that? And how confident of their own invulnerability do these 50-plus professors have to be to put their names to a witch hunt?

That they truly feel invulnerable is readily apparent throughout the arenas of discourse in law, including social media. Not only do they merrily tweet out and blog-post about their twisted views of judicial propriety and expectations of the law, but also, when questioned or challenged, they engage in various evasive tactics: they stonewall, they regress even further into their utopian delusions of law, they ridicule opposition, or they leave a ghastly, deafening silence where their respectful response and self-evaluative engagement should be.

Obviously, even when they wield their credentials to gain leverage in the court of public opinion, these professors have absolutely no notion of letting themselves be taken to task here. Academic freedom, right? Not if it's outside the boundaries of peer review. Outside the boundaries of peer review, they are answerable for why they get paid to spout opinion in public while the rest of us don't. And lousy opinion at that.

But however irrational they become, they seem to have a death grip on the judiciary.

So, how can they be stopped? The only thing that will give legal academe pause is if the supply of money dries up. This means that they can be stopped only by government, by the law profession, or by alumni.

University management is not going to do anything. They're too happy splashing around in all that money.

Of the three forces that can turn off the taps of money, government is not going to defund universities. The professoriate is too potent a political force - connected to the union movement and able to mobilize their students too. And willing to do so, as shown by the UWindsor student petition.

That leaves legal alumni, and the legal profession as a whole.

Any alumni, whether they are sending in twenty dollars once in a decade or donating 30 million once in a lifetime, need to think about what they are supporting. Anyone who can still distinguish why it is wrong that a law professor can take down a judge based on a difference of political opinion should realize that the manufactured fear of Trump is blinding us quite conveniently to something much worse being done by the people who hate Trump.

If you are supporting a university or a law school, you are funding the destruction of judicial independence by making judges subservient to law professors.

And the profession of law needs to take the training of lawyers back out of the academy and restore it to the practical realm. Because that guy, the one who  - seriously, think about this - made a complaint about the hat that a judge wore in court without any breath of reference to the quality of work the judge was actually doing, is teaching the next generation of lawyers.

It should be noted that as we speak, the profession and academe are getting more tightly into bed together; blurring the boundary between agencies and making the profession increasingly vulnerable to control from within academe. The profession needs to draw back from that engagement. If the profession becomes complicit with what legal academe is doing, it cannot legitimately evaluate whether programs merit accreditation and whether graduates should be licensed to practice. Robust systems are all about boundaries, so that separate agencies can act as checks and balances on each other. Academe's failure is a sign that certain jobs in the system have been left undone.

As I've said before, law firms are getting bigger and bigger, to the point of being able to do in-house training. It can't help but be better than the training that law students are getting in the halls of academe. From what I see on line, law students are getting progressively dumber and more gullible. Or maybe they were always like this, but their work was wisely kept within the academy where it could be safely forgotten.

And let's not forget how easy it is for new grads to get close to the judiciary. After being indoctrinated by the utopian professoriate, whether with ecological, gender-based, or Trump-hating zealotry, these new grads are quickly absorbed into clerkship positions within the judiciary itself, where they brief judges on cases and may even write their decisions for them (someone, please tell me this doesn't happen, but so far my information is that it does).

So, practitioners: get those students out of the hands of those professors before the damage to the profession is permanent.

Legal conferences and speakers are another avenue by which money flows into schools of law. That's a big industry. I don't say that scholarly speakers can't provide value. But if I were inviting a professor to speak whose work I value, I would want to be sure that no money is going to their colleagues whose work is destructive.

So as benchers, as alumni, and as practitioners, the law profession needs to cut the academics loose. There is no excuse for this deliberate and unrelenting campaign to render the judiciary servile to academe. Of all people, legal scholars should know how wrong this is. The fact that they either do not know, or know and do it anyway, shows that they are not legal scholars at all. They are just really smart people who speak the language of law well enough to disguise their contempt for it.

"Credentialed to Destroy," someone called this within the education discipline. A lawyer, actually.

There are still real legal scholars in academe, by the way. They're just getting harder to hear.

Part Three of Three: Is the judiciary resilient?

This is not to excuse the judiciary from the role it has played in its own destruction. Judges are also really smart people. They can legitimately have been expected to notice when they became slavishly subservient to academe. And they can legitimately have been expected to fix it.

Note that the ensuing historical references are mostly written without checking my notes. So don't quote without fact-checking please.

When the Canadian Judicial Council was formed in 1972 or so, after the Landreville hearings went badly, the intent was to create a forum in which judges would hold each other accountable independent of political interference. It has always been the great fear that justice would be controlled by those with political power - legitimately, because it often has been - and the CJC seemed to be a refuge from that.

But the CJC model had some fatal weaknesses, as current events show. Independence from government meant closer ties to the legal infrastructure itself. Greater loyalty to it, greater reliance on it, and greater vulnerability to it. It's ironic, but as it became less acceptable for judges to be political, judges also became less and less connected to their communities. This actually makes perfect sense: the most underrated quality of politicians is populism. Those who best sense, respond to, connect with, and reflect popular sentiment are the most successful politicians. And it used to be not uncommon for judges to have been, in a former life, politicians.

Not long after I started up this blog, with the name The Court Jester, I came across a series of Canadian books by that name. Written by Peter V. MacDonald, QC, and published respectively in 1985, 1987, and 1990, Court Jesters, More Court Jesters, and Return of the Court Jesters are a very entertaining read but also a gut-wrenchingly authentic collection of snapshots of the history of the judiciary.

People, you may not know it and I did not know it because it is almost outside living memory, but the law used to be alive. Judges used to be Menschen. The courts used to be places of public dialogue.

To read these vignettes is to travel back in time to when public confidence in the courts was a real thing, because the public was sitting in the bloody courtroom reacting viscerally to everything that happened. Or, if the tales in one section are to be believed, they were gathered in the firehall, perched all over the fire trucks, because that was the only place in town available to hold a trial. In any event, court was the only show in town - especially pre-TV - so people went.

Note I'm not saying public confidence was higher or lower. My point is that it was real, not just a rhetorical construct used by judges who haven't actually interacted with a member of the public outside the courtroom since their appointments.

In a gutsy move by the writer and publisher, the third book includes as Chapter 5 a section titled "The judge who knew everything." It recounts three cases heard in a single afternoon by a judge who was able to correct, corroborate, or fill in witness testimony about the people and places the alleged offences involved because they were places he'd lived and people he knew. The judge was Leo Albert Landreville.

In preference to the sanitized, robotic version of the judge that legal academe is trying to create with its dogmatic purification process (reference to Karl Popper) that seeks to purify the human right out of the judge, please give me one of the living, breathing, thinking, fallible, yet striving, funny, and often brilliant humans who populate the pages of these books.

Perfect was ever the enemy of good, and the creation of the CJC after the Landreville affair may be an exemplar of this principle. A précis of Bad Judgement: The Case of Mr. Justice Leo A. Landreville describes among the agents of his takedown "the intolerant attitudes of the élite bar." Apparently the LSUC investigated him, as did a retired judge and a parliamentary committee.

I think the moral of comparing yesterday to today is that the holding to account of a judge for anything is never going to be easy, nor is it going to be pretty. It may be necessary for the process to change from time to time, as it has been doing and promises to do again.

But if the process is to sustain public confidence, then there is one fundamental principle that must be sacrosanct, and that is that any time action is taken against a judge, it had better be against a judge who is at that point in time among the worst offenders, not just one who is the easiest prey or whose take-down best serves a certain political interest. That is the essence of judicial independence, that no political force, whether it emanates from government or elsewhere, can target and take down a judge of their choice.

Watching the Camp and Zabel stories unfold reminds me irresistibly of quests to reduce hospital morbidity and mortality that seize on small mistakes by junior physicians or nurses while studiously ignoring the frequency with which senior elite surgeons don't wash their hands.

Whether Landreville was rightly censured or not, I believe the formation of the CJC was a mistake. Maybe not the organization itself, but the decision to put in leadership positions within it the people who also manage the courts across the country. The provincial equivalent bodies are presently being restructured to involve more public participants. Given the size, diversity, and political polarization of the public, I am not sure this will answer. But even if it does, the behaviour of people within an agency is always a function of the forces that act on the agency, and it is the nature of those forces that may be easier to isolate for examination, and alter.

Given that academe presently poses the greatest threat to the judiciary, both the fact that the political left has captured academe and the fact that scholars have self-assigned themselves to a divine right to act as public intellectuals must be questioned. We do not employ these people at public expense so that they can reach out of their safe perches in the ivory tower and arrange the real world to their liking. Anything that emerges from the tower must either come into the marketplace of ideas or be tested first by peer review - peer review that isn't kowtowing, groupthink, or a popularity thing.

If academe does not heal itself, then, the judiciary needs to distance itself from academe's influence. Not cave to its decrees, as it has so far in both the cases of Camp and Zabel.

Since the CJC's formation, the Charter of Rights and Freedoms has also been enacted, and handed to the Supreme Court of Canada to adjudicate. This totally changed the power dynamic within law, including the role of the Chief Justice for Canada, in ways it is beyond my scope in this post to examine. But I think there are implications for the CJC's capacity to evaluate judicial conduct, and also for the type of influences to which it is vulnerable. A whole industry sprang up around the Charter, and it has deep roots in academe.

And then a very young Chief Justice for Canada was appointed, poised to hold that position for a long time. Maybe a bit too long. No matter how excellent an incumbent, succession is an opportunity for organizational renewal, and the judiciary and the law both have been denied this opportunity for the period of incumbency.

Today, then, as we contemplate the rubble of a once respected, connected, and functionally independent judiciary - never a perfect one, but at least a living thing - we are at the intersection of a number of significant decisions and developments that originated in the 1970 to 2000 period that are either ignored or resistant to scrutiny when we contemplate judicial conduct.

Anyone seeking to make decisions about these two beleaguered judges should recognize the underlying forces that may be in play, and take action where the cause is, not where the effect is playing out.

In the meantime, until the conversation goes to the heart of the matter, I'm calling the case of both these judges a witch hunt - or a lynching. And that being the case, these campaigns cannot be allowed to succeed. I'm calling on the organizations of the law to reassert themselves to recapture their authority, their dignity, and their independence, in the public interest.