Date: Fri, 25 Jul 2003 09:12:25 -0300 (ADT)

From: Jennifer Bankier

Subject: New PC decision on Libel Awards

Re the insurance point: there's a difference between courts saying insurance doesn't influence the results of particular cases, and courts taking insurance practices, or general policy issues about who should insure into account in designing general rules.

For example, LaForest J., in his judgement in Norsk, was very heavily influenced on the pure economic loss issues by his perceptions of general considerations with respect to insurance (as opposed to any question of who had insurance in the particular case.)

And on the policy/politics issue: as a legal realist I thought it was now generally accepted that law was always influenced by policy, which is a kind of politics. Judges vary in whether they openly declare the kinds of policies/politics which are influencing their decision, or whether they try to mask this by references to precedent or other kinds of technical legal analysis. I happen to think that judicial openness in this context is preferable to judges trying to hide the policy/politics pea under a shell of technical legal reasoning. This makes it easier to analyse whether the policy/politics are in the public interest, or whether it/they should be changed either by legislation or by subsequent judicial decision-making.

JKB

On Thu, 24 Jul 2003, Jason Neyers wrote:

Dear Colleagues,

Well what a debate :)!

As Harold has noted, the nature of the disagreements between us call for a much longer argument than can be made in an e-mail. I will only say that it appears that he and I have very different concepts on the proper role of the judge in a constitutional democracy when deciding private law cases. I would also question in passing what seem to me to be two underlying and related hypotheses of his arguments:

1) That the fact that a particular decision has distributional consequences means that the reasoning which arrived at it is 'political' and therefore political concerns are relevant to that particular exercise of decision-making.

2) That when a legal question is particularly difficult, i.e. where reasonable minds applying the law can disagree, the door is then open to import whatever reasons the judge finds helpful in reaching a conclusion. (For an interesting take on these two hypothesis, see Steven J. Burton, Judging in Good Faith (Cambridge, CUP, 1992).

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