Tuesday, 18 October 2016

Why legal academics are important

In my last post I was pretty hard on legal academe, especially on its tendency to usurp the public's voice. It is perhaps necessary to explain why this is not a personal attack on legal academics.

Legal scholars have an important role in the legal system, independent of teaching incoming lawyers. I don't know the history as well as one might like to, but it is my belief that legal scholarship has functioned, to date, as a sort of quality control function within law.

It has been written in places other than here that judicial accountability is the flip side of judicial independence. But most of what I have seen written on the subject of judicial accountability basically says that judges hold themselves to high standards, and where they do not, the appeal courts step in. In the event of a conduct problem, there too the remedy is entirely internal to the judiciary.

In a change mindset, we are often so busy looking forward that we fail to examine a system for what it is actually doing before we launch campaigns to change it. That is, I think, what happened when the CJC was formed a few decades ago. And that is why, perhaps, everyone missed the importance of legal academe in judicial accountability.

The idea that the judges would hold themselves to relentlessly high standards without any pressures to do so is absurd; as absurd as the idea that doctors would do so without the threat of malpractice suits hanging over them - and growing awareness of medical error is revealing just how ineffective even that threat is. In law, there is no parallel even to the threat of malpractice.

That said, I do think judges have historically taken their work very seriously and have functioned in an intellectual atmosphere that predisposed to excellence. The impetus to do so came, in part I think, from the fact that, like medicine, law was a life-or-death enterprise. Until the death penalty was abolished in Canada, the stakes in law were high. We know, of course, from the Truscott case that the high stakes did not preclude mistakes. Even then, perhaps, hubris and privilege were taking their toll. Perhaps they always have. Idealizing the past is as dangerous as utopian thinking about the future.

But in the many branches of law where the death penalty has never been an option, as well as in criminal law, there is supposed to be some force that can mitigate or even respond to judicial abuses of power. Scholars are the only legal faction that can offer that response.

In law, judges are supposed to have power, even to have almost unassailable power. One mechanism for the sustenance and exercise of that power is "officer of the court" status. The duties of officers of the court include upholding the court. Judges have supervisory powers over officers of the court. Both those stipulations mean that lawyers, even the most experienced ones, cannot be relied upon to mitigate any excesses of the judiciary; to call attention to laziness, corruption, ignorance, or malfeasance that might merit repercussions - repercussions that, in a democratic system, are supposed to emanate from the political realm.

It is for this reason that the margin between sufficient and excessive judicial independence is razor-thin.

Officer of the court status is an essential component of maintaining order in the legal system. To a degree, as far as I've divined so far, it puts the judge in the same position as umpires and referees: themselves subject to rules, but granted near-absolute power to ensure the game played out under their authority is fair (because law is a competitive sport due to the adversary system).

Officer of the court status dampens criticism, which any system needs to stay healthy. In law, the criticism function is addressed by means of the open court principle, which is generally exercised by actions of the media and the public. But media and the public are not experts.

Expert systems are often granted self-regulatory status on the understanding that the work is so specialized that only fellow experts can determine whether avoidable mistakes have been made. That is why aviation experts, and not judges, investigate plane crashes.

Legal scholars are uniquely able to fill the role of experts. The fact that they are not officers of the court relieves them of the muzzle and duty to uphold the courts that limits what lawyers, court clerks, transcriptionists, and even legal regulators can do. The fact that they are experts in the law allows them to analyze even the most specialized level of work.

When legal academics stick to their knitting (as I advised in a previous post that all legal factions should do), they analyze and debate patterns among cases and the finer points of law within individual cases. Their analysis feeds back into the system as meat for practitioners to chew on: for lawyers to take into new cases and even to allow them to select what cases they take, and for judges to factor into their analysis.  Secondarily, legal scholarship informs the political system - both the people and the leaders we elect - so that (a) laws can be made and changed as needed, and (b) the judiciary can be held answerable where necessary and action taken if the third branch of government escapes the boundaries of its legitimate jurisdiction. The political system, however, is meant to function absent the actual voices of legal scholars: the scholars play their role via the analysis and research that they feed into it. They have academic freedom, not public power.

Third and finally, legal academe has an intake function in which the practitioner realm feeds back into academe the problems and weaknesses encountered in the field. These might include, for example, the recent pressures experienced in the field due to the advent of self-represented litigation, changing rape laws, and the application of private sector labour law to the public sector.

But the give-and-take between scholars and practitioners and the political realm takes place across the boundary that delineates their separate realms. It is always tempting to jump those boundaries; everyone likes to expand their empire and their sphere of influence. But when those boundaries are muddied, each realm suffers and the rule of law becomes unstable. The rule of law, in fact, rests on that tripod of realms, each holding the other somewhat in check. When one realm lengthens its leg beyond what the others can respond to, equilibrium is lost.

The boundary is simple and clear: the role of academe is to listen, digest and critique, and then inform. Any academic voice that is opining or pressuring rather than informing is outside its jurisdiction.

One of the things I find amazing about the law is its breathtaking capacity for nuanced analysis, and the capacity to express the finest distinctions between ideas. One of the most neatly articulated distinctions I have come across is that between exceeding jurisdiction, and declining jurisdiction. That really captures the loss we all experience when legal scholars decide to enter the public realm directly with opinions and beliefs rather than staying in their lane with information and knowledge.

Not only do they exceed their jurisdiction by letting their personal belief system override what they know and have tested from a basis in expertise. In addition, they decline the jurisdiction they have to provide expert analysis of the practical functioning of the field and rob us of the best mechanism we have for evaluating judicial performance in the application of the law.

Without that, not only do they crowd others out of lanes they properly inhabit, but also, the scholars' own lane stays empty. And then we are all bereft.

Sunday, 16 October 2016

No one ever unbuilds their empire

One of the reasons I started this blog is because there is too much to say about law decline/reform from a management perspective for me to say it all on other people's blogs.

But other people's blogs help to identify the gaps in legal system self-analysis, and so posts from the legal world are useful as a starting point for posts here.

A recent post on the law blog Slaw had the Dean of a BC law school sharing thoughts on the burden of student loan debt:
http://www.slaw.ca/2016/10/14/student-loan-debt-a-crisis-for-law-students-young-lawyers-and-far-too-many-underserviced-communities/.

The first commenter, to her eternal credit, nails the main problem with the post in her first line: it is not inward looking. It spends hundreds of words on the issue of student debt without putting one apparent iota of thought into how the actual cost of a legal education might be reduced.

To be fair, even if all the Deans of Law put their heads together in contemplation of how to reduce the cost of law training, they would not find the obvious answer and would do little other than design bandaids; I do not believe it is within the realm of human capability to solve the problem when you more or less ARE the problem. No one ever unbuilds their empire, even when it is oppressive, corrupt, and decrepit.

Oh dear, that is not a nice thing to say. And one of the things that prevents people from saying more things like it is that, like the Dean who wrote this post, institutions that need renewal and replacement are still led by and represented by nice, well-meaning, and very intelligent people. But unfortunately, that saves no one from being a brick in the road to hell.

This is what I posted on that thread on Slaw:

If law is bad, consider the plight of graduating dentists, faced with such high debt and set-up costs that they are almost driven to fraudulent practice to make ends meet. 

All the professions are - or should be - facing the question of whether moving their training into the ambit of universities has helped or hindered the quality of practice. While I believe that the Deans of Law are well-intentioned, I would suggest that the point at which the cost of training siphons the entire benefit of having trained is the point at which the whole design of practitioner training needs to be reassessed. But this initiative cannot be expected to come from the university; it will have to come from the profession - which itself may not act unless there is public pressure. 

And that is just one reason why legal academics engaging in the public sphere, some even styling themselves "reasonable persons," is so problematic. Public pressure should reflect public, not academic, concerns.

In one of the most tightly written management books there is, author Jamshid Gharajedaghi puts it this way: "a social pathology is produced when an obstruction to development benefits those who are responsible for removing it. Unfortunately, bureaucracy represents a pathological mode of organization where an organized interest group benefits from the obstructions it has created."

I have put some further thoughts on my own blog at ctjester.blogspot.ca to avoid bogging down the conversation here.

The quote, incidentally, is from Systems Thinking, page 81 of the 3rd edition (2011).

It is my understanding that, not so long ago, lawyers learned their craft under apprenticeship to practitioners, which would mean that judicial decisions functioned as lectures in, and the repository of, legal theory. With the transfer of training to universities, the repository of theory has moved to academe, and I am not sure it is well-housed there.

In control of all lawyer training, legal academe now controls practitioner mindset. In addition, it has created a powerful new faction within law - one that, for the most part, has never practiced, and as such is prone to utopian thinking. One that, furthermore, views itself, and is viewed by judges, as authoritative within law but is outside both market forces and the regulatory paradigm. 

The transition of law instructors from active practitioners to pure theorists and activists has gone unnoticed and unanswered by legal practitioners and regulators, and unchallenged within scholarly circles themselves. Yet with the extent to which academic publishing (far too much of it being "publish or perish" quality) is influencing the common law, I would argue that legal academe poses a greater threat to judicial independence today than government does. Government, at least, is vulnerable to public review. Academe is not.

But given that legal academics are now, in force, entering the public dialogue about law, they are also shaping public perception and dampening public objection as the judiciary increasingly shapes itself in academe's image. Even if the decline in lawyer and judicial performance is noted - as it presently is, where people increasingly prefer to represent themselves rather than pay lawyers, and express clear dissatisfaction with their court experiences - no one ever makes the connection back to academe. 

And that is how easily ideology supplants the centuries of inherited pragmatic wisdom that the common law represents. It need only come from people we trust.

They are all nice, smart people. They all belong in law, without a doubt. They may be really good teachers. But their unassailable position in the ivory tower, secured by tenure and academic freedom, suggests that actions extending their reach beyond the ivory tower, into the realm of practice, are highly inappropriate. They are the only actor in law who is not liable for what they say, do, or espouse. 

Not even for the price of their service; for what they ARE supposed to be doing. Even less for their activism, which they are NOT supposed to be doing. 

Judicial restraint is a thing in law. It is time for academic restraint to become a thing too, and not only in law.

Universities have become one of the most able competitors in the public arena for both public and private resources. They have grown at a pace that any private entity would envy, and have no one to account to for the outcome of our investment in them. They retain just enough of the intellectual cachet that led us to entrust our professional training to them, mainly because they tend to attract smart people, and we are both oblivious and powerless to object as they turn from instilling standards of practice to cultivating future contributing alumni that they can milk for further institutional growth and status. As public, as professions, as students, as alumni, as politicians, or even as faculty, we have no way of curbing their hunger as institutions. 

The Deans of law are not to blame for the overall trend in universities, and it would be unnatural in the canon of human behaviour to suggest that they should identify their own jurisdictions as part of the problem. And in fairness, it is not the Deans but the profession that makes universities its only intake portal. 

And it is having just one intake portal that is the root of the problem that law students, young lawyers, and remote communities face. 

It may not be practical to go back to the days when individual practitioners took on apprentices, but one notes, peripherally, how dramatically law firms are growing. It is not beyond the scope of probability that these firms, now numbering sometimes in the thousands of lawyers, could muster a law teaching program in-house. 

There may as well be some point to all that law firm growth and amalgamation, because in the practice of law itself I don't think there is any. 

Tuesday, 4 October 2016

Justice Robin Camp and decline of the judicial system

It's time, I think, to write about the case of Justice Robin Camp, although it's hard to believe I'll be able to add anything after the very thorough analyses of Clary Jaxon and Diana Davison, both civilian commentators whose condemnation of the case against Mr. Justice Camp is comprehensive and convincing. There is, really, nothing left to say about the inquiry itself or the case it concerns in the interests of public information. (But scroll down to the underlined subheading if you just want to read about Justice Camp's situation).

But there is a great deal to say about the significance of the inquiry for the judiciary and the legal system. To me, the Justice Camp inquiry and the discussion around it are irrefutable signs of legal system decline.

Decline is a fascinating phase of system and organizational life. I think it's my favourite one to analyze. Birth and growth of enterprises are so easy, so natural; even though the decisions can be tricky, it's a lot of work, and accidents happen. But in those early days, there's never any doubt about what is going on. The perceptions from inside and outside line up, and there is a synergy between user and provider that is exhilarating, independent of the product or service in question.

Maturity is a rewarding phase, offering observers and participants alike the same thrill as do high level sporting events, with performers at their absolute peak. Working inside a mature system is akin to being a part in a perfectly ticking clock.

But decline is sneaky. It is a real challenge to even detect that it is underway, especially to detect how its seeds are often sown even during those earlier phases. Looking for clues that decline is present has the same attraction that puzzles or (I suspect) video games do, or perhaps more accurately, weeding out morning glory, detecting cancer, or finding bedbugs. The reward is not what you find in itself, which may actually be kind of icky, but the opportunity to solve a problem once you have ascertained what it is and where it resides.

The indicators of decline are subtle, but the payoff of responding to finding them can be dramatic: the pleasure of renewal, and many more years of maturity at peak performance with enhanced capacity to stave off decline in the next round. Decline really is like a weed: the potential for it to take over is always there.

In contrast to what finding and responding to early signs of decline lets us do, missing or ignoring signs of decline plunges system users into a pre-decline phase of delusion and denial, which does not look good on anyone, but looks worst of all on the intellectual crème de la crème that populates law. And then, in a private organization there is demise, but in a public system there is a post-decline horror show in which the bureaucracy grows layer upon layer of scar tissue to cover up an initial sign of decay that no one has the balls to admit is there, much less to admit they are part of. I've called this interminable phase of system life a Zombie organization. Social commentator Deborah Frieze says we can only "offer hospice to what's dying," but not all Zombies can die.

It's my position that law is presenting in that phase of delusion and denial, and the sign of trouble that no one wants to talk about is the degree to which activist law has captured and played the judiciary, interfering with the correct application of doctrine. In short, the law has become arbitrary, captive to a taskmaster other than the rule of law.

The significance of the Justice Camp fiasco

In the case of the Justice Camp inquiry, the dead giveaway is the marked contrast between civilian commentary about the Justice Camp inquiry, that I linked to in the first paragraph, and the commentary about it from law experts.

When I talk about "civilian commentary," you may immediately think of what you have read in the media and what is reported as being "public opinion" (eg in the labour-sponsored Tyee or the Lawyers Weekly. But it was never the public that responded to Justice Camp's decision in R. v. Wagar: it was legal academics and a politician - it was experts who started this, not the public.

If you think about it, you'll realize that everything you know about the original trial in which Justice Camp made his controversial remarks did not come to you in the context of objective journalistic reporting of the the trial itself. The original trial probably never even made the local news, much less the national; it was just one of the dozens of personal dramas that play out in courtrooms every day, not anonymous but totally invisible to the media. So it was not that a reporter considered the remarks newsworthy, nor that the public got outraged about what a reporter reported.

No, it was some legal academics who got outraged first. How did they even hear about it? I'm going to guess it was from a lawyer involved in the case, who knows someone through some networking function in law. Those people too may not even have read the transcript of the trial before getting outraged. Whether they did or not, it was their outrage that made the news.

And when expert outrage hits the news, it bypasses all our credibility filters. I am as guilty as anyone of having fallen into the trap of assuming that Justice Camp's conduct was egregious, and took that as a given when I wrote my Scottsboro Boys post.

I count myself fortunate to have come across the more credible narratives offered by Clary Jaxon and Diana Davison. Their coverage is resolutely factual, unflinchingly thorough, and grounded in the principles and doctrine of law.

The "expert" commentary on this inquiry, in contrast, has three revealing traits. First, it is predominantly published in the public, not professional, realm. Second, it is predominantly emotional, not legal. And third, it is condescending.

On the first point, both the presence of lawyerly writing in the public realm and its relative absence in the professional realm are relevant. As with the horrendous Judge Zuker decision in the Ururyar case, which I wrote about in my Scottsboro Boys a few posts back, no one has been writing about the Justice Camp inquiry in the serious legal literature. If there is nothing to say within law while the inquiry panel deliberates, why the heck is there something to say in public?

The answer is clear from the second point, the content of the writing. It is anything but informative. It is mostly emotional. It is all about creating a public sentiment that will pressure the CJC to find against Justice Camp. The point being made in this narrative is that the public cannot continue to have confidence in the courts if Justice Camp remains on the bench.

It's important to know that public confidence in the courts is a thing in law. Judges use the idea of public confidence as a rhetorical tool to help them identify the best law for the matter at hand. It's not unlike a surgeon saying, as s/he investigates the state of a damaged knee, which decisions in this surgery will best merit this patient's confidence in his or her knee? It is, in effect, a way of determining best practice, which, in all elite endeavours, is done by experts on the basis of expertise.

What the law commentators on the Justice Camp inquiry are saying publicly, however, is different from the "best law" interpretation of public confidence. They are saying that the public can only have confidence in the courts if the inquiry lines up with the emotions of the experts who are writing. And they are saying it to to the public, not among experts who can rebut, refute, and refine.

As I did in my discussion of effective change strategies, I'm going to try to refrain from identifying the people I am criticizing. This handicaps my ability to be clear, to a degree, but I do it because I am not here to put people down. They may be very good lawyers for their clients or good teachers for their students, but their problem is that on this particular issue, they have mistaken their opinion for expertise. They think that because they are experts in law, they have better opinions than the rest of us.

I will say that these law people universally identify as feminists. Their opinions, correspondingly, are all the same, namely that Justice Camp should lose his job. This consistency among them reveals that it is not just opinion, but dogma. If it were based in fact, then consistency would reflect good analysis. Because it is based in emotion, however, it can only be dogma.

Just to prove that time spent on Twitter is not all wasted, yesterday on Twitter a quote from Karl Popper caught my attention: "In a dogmatic setting, the point is not to improve but to purify."

The word "dogma" perfectly captures the kind of writing I am seeing from lawyers about the Justice Camp inquiry. It does not filter emotion through the dispassionate lens of the law, as most legal writing does, where you come away almost blinded by the clarity that legal analysis can bring to a complex issue, but rather does the opposite: it filters law through the distorted lens of their belief, about which they are very emotional. You begin to perceive why this is an issue of system decline: there is more law and less emotion in the civilian commentary than there is in the legal commentary.

Far from breeding confidence in the courts, dogmatic commentary from experts can breed only contempt and polarization. The polarization is fine with these intellectually inbred lawyers: they are out to purify, not to improve or inform. It's a question of what might be called apostasy, that is, non-believers cannot be tolerated in the system - ergo, Justice Camp must be removed from the bench.

But that being the case, it is profoundly dishonest of them to say their preferred outcome has any hope of enhancing public confidence. The opposite is in fact true. If a witch hunt can prevail in law, then public confidence should plummet.

The third revealing characteristic of dogmatic expert commentary is its delivery down a perceived gradient. They are not commentating in public as equals, to hear and be heard. They are here to tell you what to think.

In contrast, both Clary Jaxon and Diana Davison have read, and will provide you with excerpts from, the trial transcript and the documents of the inquiry. They certainly have a strong view of what the inquiry should find, and they state it, but they also provide the factual context for their views and - very importantly - they offer you the information with which to make up your own mind. There is no gradient that they are talking down, no suggestion that they have insight that you do not. They give you all the information that they have, and give you the opportunity to draw your own conclusions. They present to the public with respect.

So, who are the real experts? Are the people inside the system really credible? If they are not, and if they are rather captive to dogma, AND IF THEY PREVAIL, then it is true that the public can no longer have confidence in the courts. Not because of Justice Camp, but because of the "experts" who chose him to be punished. Because dogma successfully masquerading as expertise is decline. It's not just a sign of pending decline, a looming tipping point. It's a sign that the system has tipped.

I love the metaphor of the tipping point because it so clearly conveys how fast and categorically decline can occur. Malcolm Gladwell's book of that title was about tipping into success. The end, however, can come the same way.

It's my perception that the Justice Camp inquiry is the tipping point into terminal decline for the legal system, the courts, and the judiciary.

The reasons I feel this is the case are, briefly, (a) that the history of how Justice Camp came to be hearing the trial in question reveals how unreliable the processes of judicial assignment are, (b) the juxtaposition in which Justice Camp is subjected to an inquiry while Justice Zuker is not, and (c) the evidence that Justice Camp did nothing wrong in law but, if you look closely at the transcript, simply took note several times during the trial that the dogma of sexual assault law is not consistent with established proper legal process.

Did Justice Camp make some unfortunate remarks to the complainant? Oh my yes, although the ones most frequently reported are less shocking than they first appear. But if you read the literature about self-represented litigants from courtrooms across the country, you will see that judges are making unfortunate remarks to litigants every single day, far worse ones than those to which this young woman was subjected. If these dogmatic feminist lawyers want to come to the defence of women being spoken to inappropriately in court, then they can find oodles of them in the SRL world; heck, they can come to my defence if they like.

But they don't care about women like me; they apparently care most about women like the complainant who was before Justice Camp. But what I'd like to know is this: if the dogmatic feminists of the legal world want to shield fragile women like the complainant - a formerly homeless, promiscuous drug-addict -  then who put her up to making a false accusation of sexual assault? And who made the decision to press ahead with prosecution?

Because if you read the transcript, following the account by Diana Davison, this looks like a false accusation. Either someone planted a new narrative in the complainant's head and put her in court to defend it, or it was her own idea that proper channels - police and prosecutors included - failed to filter out.

Those decisions, much more than anything that Justice Camp said in court, are what has caused the situation where this poor young woman, who has now had to testify in court and will have to do so again at the retrial, has also had to testify to the inquiry about Justice Camp.

The young woman clearly has enormous personal strength and resilience. She has both seen this process through AND recovered from her addiction and gotten her life onto a different track. Good for her. She might also have been able to handle having been asked awkward questions by Justice Camp in the context of having her claim dismissed, in time. Many of us are shattered by what we experience in court, and we survive and even recover. I don't say that lightly nor do I take it lightly; it marks us, independent of actual outcome. And sometimes the outcomes - such as the wrongful assignment of costs, or imprisonment on the basis of false accusations - are stunningly bad.

But the dogmatic feminists of law could not leave her alone; they had to milk her again and again for the triumph of their dogma over the rule of law. They had to file a complaint. Whether they pushed the Alberta Attorney General to follow up, forcing the inquiry, or whether the AG acted of her own accord is something I don't know. All I know is that the whole complaints process switched on a hamster wheel on which the complainant had no choice but to keep running. Now the feminist legal academics are continuing to build their occupational profile on her back, the better to bend the judiciary to their dogma; to "purify" - not improve - the judiciary and the law.

They're all drawing a good paycheque while doing so, too. The young woman? Probably still making ends meet with difficulty. In my neck of the woods we call this "poverty pimping."

Tell me quite seriously, if you think hard about this, whether this woman would be better off if this inquiry, at least, had never taken place? Maybe even if the trial had never taken place?

I know for a fact that the rest of us would be. The reason I know it is that it has become abundantly clear through this CJC process that Justice Camp is a perfectly competent judge, possibly even an excellent one, and if he suffers from a sharp tongue, believe me when I tell you it is no sharper than that of hundreds of other judges in this nation's courts.

So, I am making the assertion that the very fact that a perfectly competent judge, possibly one of the better judges on the nation's bench, can be hauled up by the dogmatic feminists for "re-education," is a sign that the legal system has tipped into terminal decline.

How terminal? Janice Fiamengo, another non-legal commentator on the state of law under feminism, has said "feminist law would be the West's mirror image version of Sharia Law - a man's word worth half the word of a woman. A man would need to prove his innocence."

That pretty much shoots down the whole of legal doctrine right there.

But what is "the end" of the legal system; of the judiciary? The problem facing us all is that there is none. We can never be rid of the legal system, and who would want to be? That choice is simply not on the table. Those who wait for the courts or the judiciary to somehow self-destruct, implode, or evaporate into thin air under the burden of dysfunction and decline will wait in vain.

What decline looks like, in a system or organization that cannot die because it is legislated into existence, is growth. That scar tissue I mentioned above? Watch it layer on. Watch for the law faculties to add programs and specialties. Watch for the advent of mandatory judicial "education" with associated governance structure. Watch for every court in the land to add compliance officers, complainant support services, and prosecutor resources. Watch new "societies" form, and funding to flow to them. Watch for the conferences that everyone is being paid to be at, for the volume of publications to explode. Watch the number of appeals escalate, as the law of sexual assault becomes so confused that false accusations routinely secure convictions, and generate appeals.

And watch from and to whom the money flows as all of this occurs.

The choices that do lie before us are those of an obese system in declining health vs. one that is fit, robust, and resilient. A dysfunctional system vs. a functional one. A corrupt one vs. a legitimate one. A dull, dogmatic, oppressive one vs. a renewed, mature, respectful one.

But can you snatch renewal from the jaws of decline when absolutely no incentives exist to do so? That is a topic I hope to explore in future posts.

In the meantime, I leave you with a couple of links by and about Karl Popper, and a reminder of the extraordinary work of the late Elinor Ostrom, via the Twitter timeline of a fan of hers on Twitter. Ostrom's thesis, in case you do not know of her Nobel Prize-winning work, is that ordinary people can sort more things out for themselves than the experts tend to think - and often better than experts. Which is maybe why juries became a part of law in the first place. And why judges might like to ensure they are used more often.

Problem is, when a small group of dogmatic legal academics can generate so much public outrage, how objective can even juries be expected to be? Let alone judges.

(edited October 10, 2016)
(edited December 1, 2016)