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Deciding, ‘What Happened?’ When We Don’t Really Know: Finding Theoretical Grounding for Legitimate Judicial Fact-Finding

  • Nayha Acharya

Abstract

The crucial question for many legal disputes is “what happened,”? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas’s insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be factually reliable. This requires: (a) relevant evidence is admissible and exclusions are justified based on respecting human autonomy; (b) error-risk management is internally coherent and consistent; (c) the standard of proof is, at minimum, a balance of probabilities; (d) evidence is used rationally. Second, fact-finding processes must ensure fulsome participation rights. This project is justificatory—civil justice systems are imperfect, but there are attainable conditions that make them good, which must never be compromised.

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I am grateful to professors Richard Devlin, Sheila Wildeman, and Vaughan Black for reading through these ideas with utmost care, and for inviting and helping me to respond to countless thoughtful critiques. I also thank Professor Ronalda Murphy for helping me initiate this project and for introducing me to Jürgen Habermas and showing me how to make sense of his dense contributions.

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1. I note at the outset that I use “authoritative” here in the descriptive sense that the factual conclusions a judge makes will form the basis of the ultimate decision, and that decision will be considered final and binding (that is, it would be broadly acquiesced as authoritative) on the involved parties. A theoretical discussion of the relationship between authority and moral obligation to obey law is outside of my scope here, but for an elucidating discussion, see, e.g., Richard Dagger, “Authority, Legitimacy, and the Obligation to Obey the Law” (2018) 24:2 Legal Theory 77.

2. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (MIT Press, 1996) at 197-203 [Habermas, Between Facts and Norms].

3. Ibid at 198. Habermas refers to the normative element of law sometimes as ‘validity’ and sometimes as ‘legitimacy.’ The normative element is in line with what I have defined as the concept of ‘legitimacy,’ so for the sake of clarity and consistency, I use ‘legitimacy’ in my discussion of Habermas’s account.

4. Ibid.

5. I note that Habermas’s grounding is in the German civil law tradition. In my view, this does not affect the applicability of his insights to the context of legal fact-finding.

6. Habermas, Between Facts and Norms, supra note 2 at 198.

7. This is consistent with Klaus Günther’s explanation of Habermas’s theory: “Rational discourse is the internal procedural structure of legislation as interpreting and shaping the system of rights as it is laid down in the constitution. According to Habermas, legal adjudication also ‘interprets and shapes’ the system of rights within another form of communication, the legal discourse of application.” Klaus Günther, “Legal Adjudication and Democracy: Some Remarks on Dworkin and Habermas,” (1995) 3:1 Eur J Philosophy 36 at 47.

8. Habermas, Between Facts and Norms, supra note 2 at 198 [emphasis in original]. For Habermas, certainty is a derivative of the facticity of law, and legitimacy is a derivative of rational acceptability: “On the one hand, established law guarantees the enforcement of legally expected behavior and therewith the certainty of law. On the other hand, rational procedures for making and applying law promise to legitimate the expectations that are stabilized in this way; the norms deserve legal obedience.”

9. Ibid.

10. See, e.g., Athey v Leonati, [1996] 3 SCR 458; Resurfice Corp. v Hanke, 2007 SCC 7; Clements v Clements, 2012 SCC 32; and Henry v British Columbia (Attorney General), 2015 SCC 24.

11. Mustapha v Culligan of Canada Ltd., 2008 SCC 27.

12. Habermas, Between Facts and Norms, supra note 2 at 198-99.

13. Ibid at 226.

14. Ibid at 226-27.

15. Habermas’s notion of no right answer can be contrasted with Ronald Dworkin’s position, which maintains the necessity and possibility of a right, or at least, best answer. For Habermas’s discussion of Dworkin’s theory, see ibid at 203-22.

16. Ibid at 199 [emphasis in original].

17. Ibid at 220.

18. Given my focus here on adopting Habermas’s theoretical commitments and applying them to judicial fact-finding, I cannot engage deeply in the related debates around the very existence of procedural rights to accompany substantive rights. But this has recently been expertly debated in Christopher H Wellman, “Procedural Rights” (2014) 20:4 Legal Theory 286 (arguing against the existence of procedural rights) and David Enoch’s response, “In Defense of Procedural Rights (Or Anyway, Procedural Duties): A Response to Wellman” (2018) 24:1 Legal Theory 40. The analysis here lends support to Enoch’s claim that a wrong is indeed committed when a procedural error occurs, even absent any substantive error. For instance, suppose a factual finding is made that a doctor’s negligence caused a patient’s injury. If that factual finding was made in a process where the patient was arbitrarily not permitted to present an expert witness on the issue of causation, according to the analysis presented here, the patient must be understood to have suffered a rights violation, even if it is true that the doctor’s negligence did cause the injury, as will be explained further below.

19. Habermas, Between Facts and Norms, supra note 2 at 225.

20. Ibid at 226. As Habermas puts it: “A discourse theory of law… relies on a strong concept of procedural rationality that locates the properties constitutive of a decision’s validity not only in the logicosemantic dimension of constructing arguments and connecting statements but also in the pragmatic dimension of the justification process itself.”

21. Ibid. (Habermas’s statement here is somewhat obtuse because it seems redundant to express that rational acceptability must be supported by good reasons, as good reasons are inherent to rational acceptability.)

22. Ibid at 230, citing Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, translated by Ruth Adler & Neil MacCormick (Oxford University Press, 1989) at 230.

23. I take this statement to mean that if a discourse is terminated for any reason other than rational assent of parties (for instance, termination due to frustration, hurt, or fatigue), it cannot be considered a true rational discourse.

24. Habermas, Between Facts and Norms, supra note 2 at 235. “Practical realities” may also involve indiscretions including adversarial attempts at thwarting fact-finding.

25. Ibid at 227.

26. Ibid at 235 [emphasis in original].

27. Ibid.

28. See, e.g., Hock Lai Ho, A Philosophy of Evidence Law: Justice in the Search for Truth (Oxford University Press, 2008) [Ho, A Philosophy of Evidence Law] at 65, where he rejects the notion of pure procedural justice on the basis that: “A party is unjustly treated if and when the court withholds from her substantive entitlements under the law, however unintentional the error.” Similarly, in the criminal context, David Paciocco, “Balancing the Rights of the Individual and Society in Matters of Truth and Proof: Part II—Evidence About Innocence” (2002) 81:1 Can Bar Rev 39 at 44: “When we recognize a wrongful conviction we, quite rightly, consider it to be an inexcusable tragedy. It is no answer to the factually innocent to say, ‘Well. Even though you are factually innocent it is fair to leave you convicted because the law was applied with perfection during your trial.’”

29. David Estlund is well-known for advancing a theory known as “epistemic proceduralism” in the context of democratic legitimacy. He argues that democratic procedures produce legitimate results because they emerge from a process that tends to arrive at correct outcomes; importantly, the legitimacy of the outcome does not depend on its correctness—incorrect outcomes can also be legitimate on the basis of the democratic process from which they emerged. See Estlund, David M, Democratic Authority: A Philosophical Framework (Princeton University Press, 2008) particularly at ch 7. This idea clearly aligns with the notion of procedural legitimacy that I have been suggesting. However, I do not hold that the epistemic value of adjudicative fact-finding procedures can, itself, fully support a framework for legitimate adjudicative fact-finding. Though his ideas are developed in a different arena, Estlund’s insights regarding the importance of epistemic value, and his steadfast insistence that legitimacy is located in the realm of process and not outcome, support my position that the legitimacy of fact-finding is to be found in procedural virtues.

30. For rationally motivated discourse to ensure equal communication rights for participants, it requires sincerity and any force other than the force of the better argument must be diffused. Jürgen Habermas, “Between Facts and Norms: An Author’s Reflections” (1999) 76:4 Denv UL Rev 937 at 940.

31. David Dyzenhaus, “The Legitimacy of Legality” (1996) 46:1 UTLJ 129 at 180 [Dyzenhaus, “The Legitimacy of Legality”].

32. See, e.g., Keith D Kilback & Michael D Tochor, “Searching for Truth but Missing the Point” (2002) 40:2 Alta L Rev 333. They argue that considering a trial as a “search for truth” is flawed for two reasons: first, because it is impossible for the trier of fact to know the truth, and second, since the concept of the “search for truth” has not been judicially defined, judges can pursue desired outcomes under its auspices. Note: Harvard Law Review, “The Theoretical Foundation of the Hearsay Rules” (1980) 93:8 Harv L Rev 1786 at 1787: “Since no evidence can provide more than a basis for inferences, which are by definition uncertain (by contrast to deductions, where conclusions follow with certainty from the premises), trials cannot discover absolute truth.” In addition, while extraneous to my analysis, some epistemologist viewpoints hold that knowledge is fallibilist, so establishing truth is impossible whether in the context of a trial or otherwise. See, e.g., Williams, Michael, Problems of Knowledge: A Critical Introduction to Epistemology (Oxford University Press, 2001). For a discussion of the pros and cons of the debate around the nature of knowledge, see Blackburn, Simon, Truth: A Guide for the Perplexed (Allen Lane, 2005), and for critical reactions to skepticism over the ascertainability of truth or ‘veriphobia,’ see Haack, Susan, Manifesto of a Passionate Moderate: Unfashionable Essays (University of Chicago Press, 1998), and Goldman, Alvin I, Knowledge in a Social World (Oxford University Press, 1999).

33. Ho’s explanation of the relation and significant difference between accuracy and reliability is helpful: “The reference to ‘accuracy’ when speaking of a finding of fact must be to the likelihood of its truth, and not how close it is to the truth. If this is right, we would arguably do better to speak of ‘reliability’ instead…. Reliability implies functional efficacy.… A verdict is more or less reliable depending on the reliability of the trial system which produced it.” Ho, A Philosophy of Evidence Law, supra note 28 at 66-67.

34. Ibid.

35. Frank, Jerome, Courts on Trial—Myth and Reality in American Justice (Princeton University Press, 1973) at 35-36: “Perfect justice lies beyond human reach. But the unattainability of the ideal is no excuse for shirking the effort to obtain the best available.” Also see Thomas Weigend, “Is the Criminal Process about Truth?: A German Perspective” (2003) 26:1 Harv JL & Pub Pol’y 157 at 173 [Weigend, “Is the Criminal Process about Truth?”]: “The public will accept whatever is presented as ‘justice’ only if justice is perceived to be based on an honest effort to find the ‘truth.’ There are no great expectations beyond that.… What, then, are the necessary ingredients of procedural truth?… the essential element is a visible, honest effort to collect and introduce facts on which the decision-maker can base a rationally defensible verdict.”

36. I note here that it is not my purpose to adopt a statistically grounded concept of assessing or quantifying reliability. Statistical reliability can only be assessed empirically by examining the percentage of errors that occur in a given fact-finding system. That approach to assessing reliability is impractical and potentially impossible, because confirming the truth of an outcome is often elusive. See, e.g., Shari Seidman Diamond, “Truth, Justice, and the Jury” (2003) 26:1 Harv JL & Pub Pol’y 143 at 150: “we cannot compare the… verdict with some gold standard of truth because no such dependable standard exists.” I assess reliability by considering whether the fact-finding process is genuinely orientated towards factual accuracy. This does not depend on empirical precision, but on an authentic consideration of whether the features of a fact-finding process can be considered as committed to seeking truth within only justifiable limits.

37. R v Jarvis, 2002 SCC 73. See also David M Paciocco & Lee Stuesser, The Law of Evidence, 7th ed (Irwin Law, 2015) at 2 [Paciocco & Stuesser, The Law of Evidence]: “Given its role in serving the application of the substantive law, the law of evidence should ideally enable triers of fact to have orderly access to any information that could help them make an accurate determination about whether the substantive law applies.”

38. R v Collins (2001), 150 OAC 220 (Ont CA) at para 18. See also Doherty JA’s discussion of relevance in R v Watson (1996), 30 OR (3d) 161 (Ont CA). At para 33, Doherty JA states: ‘Relevance … requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A.” If it does then “Fact A” is relevant to “Fact B.” As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible.’

39. Lederman, Sidney N et al, The Law of Evidence in Canada, 4th ed (LexisNexis Canada, 2014) at 12-13.

40. See Weigend, “Is the Criminal Process about Truth?”, supra note 35 at 168: “[exclusionary rules] limit the pool of (relevant) information available to the decision-maker and thus reduce the chances that the verdict will be based upon a completely “true” finding of facts.”

41. For a discussion of the evidentiary principles of privilege, see Paciocco & Stuesser, The Law of Evidence, supra note 37 at 236-305; and for a discussion focusing on procedural aspects of privilege principles, see Walker, Janet & Sossin, Lorne, Civil Litigation (Irwin Law, 2010) at 193-204.

42. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 24(2) [Charter of Rights and Freedoms]: “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” Also see Richard C Fraser & Jennifer AI Addison, “What’s Truth Got to Do with It? The Supreme Court of Canada and Section 24(2)” (2004) 29:2 Queen’s LJ 823 for an argument urging caution in excluding evidence under s 24(2) of the Charter of Rights and Freedoms.

43. Lange, Donald J, The Doctrine of Res Judicata in Canada, 2nd ed (LexisNexis Butterworths, 2004) [Lange, Res Judicata in Canada].

44. Weigend, “Is the Criminal Process about Truth?”, supra note 35 at 160, for example, gestures towards this when he says of the adversarial system that, “because the system excludes from the court’s view everything that cannot be introduced as evidence on the day set for trial, the ‘truth’ is based only on the relatively small array of material then available, and valuable information will be ignored because one or both parties cannot present it at the right time in the legally prescribed manner. The adversarial system, at least in the form practiced in the Anglo-American world, therefore does not lead to the discovery of ‘true’ truth but of an artificially generated set of facts euphemistically called ‘procedural truth.’”

45. It is outside my scope to engage in a more searching analysis of the underpinnings of Charter protections here, but I note that Lawrence Solum has made the point that compromises to accuracy on the basis of “ensur[ing] that the process of adjudication does not unfairly infringe on the substantive rights guaranteed by the basic liberties, such as rights of privacy and freedom of speech,” must be considered acceptable. Lawrence B Solum, “Procedural Justice” (2004) 78 S Cal L Rev 181 at 306 [Solum, “Procedural Justice”].

46. The idea that rules of fact-finding and evidentiary exclusions are underpinned by the value of respect for human agency is present in arguments from a number of scholars. For example, Richard CC Peck has argued in “The Adversarial System: A Qualified Search for the Truth” (2001) 80:1-2 Can Bar Rev 456 at 468, in the criminal trial context that: “evidence ought be excluded where it has been obtained through state actions which violate human rights. This engages the central debate as to whether the value of the search for the truth, which must, of necessity, involve trustworthiness, is of a higher ordinate than the worth and dignity of the individual.” Alex Stein has similarly explained a justification on the basis of respect for agency regarding the rule against drawing incriminating inferences based on past crimes: “By treating personality and action as causally interrelated, such inferences undermine the anti-deterministic postulate of free agency, epitomized by the famous precept, ‘Judge the act, not the actor.’ Free agency indeed serves as a pillar of the liberal theory of criminal liability. From this perspective, using the defendant’s personality as incriminating evidence undermines his or her autonomy and degrades her individuality.” Stein, Alex, Foundations of Evidence Law (Oxford University Press, 2005) at 32 [Stein, Foundations of Evidence Law]. Also see Alex Stein, “The Refoundation of Evidence Law” (1996) 9:2 Can JL & Jur 279 at 293. In addition, David T Wasserman, “The Morality of Statistical Proof and the Risk of Mistaken Liability” (1991) 13:2-3 Cardozo L Rev 935, argues for respect for individual autonomy as an underpinning moral value in fact-finding. On that basis, he argues, some statistical evidence is inadequate in establishing the requisite standard of proof because of its affront on treating people as part of a class rather than as individual agents. As Dworkin has held, “it is unjust to put someone in jail on the basis of a judgment about a class, however accurate, because that denies his claim to equal respect as an individual.” Dworkin, Ronald, Taking Rights Seriously (Duckworth, 1977) at 27.

47. See Kaye, David H et al, The New Wigmore: A Treatise on Evidence (Wolters Kluwer Law & Business, Aspen Publishers, 2011) at 2292: “Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.” The Supreme Court of Canada stated in Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23 at para 53: “the only exceptions recognized to the privilege are the narrowly guarded public safety and right to make full answer and defence exceptions.” But for a discussion of the solicitor-client privilege doctrine in Canada, including comments on the changing state of recognized exclusions, see Adam M Dodek, “Solicitor-Client Privilege in Canada: Challenges for the 21st Century” (2011) Canadian Bar Association Discussion Paper.

48. General Accident Assurance Company v Chrusz (1999), 180 DLR (4th) 241 (Ont CA) at para 92.

49. Lange, Res Judicata in Canada, supra note 43 at 10.

50. Ostapchuk v Ostapchuk (1959), 19 DLR (2d) 746 (SKQB).

51. Farwell v The Queen (1894), 22 SCR 553, at 558. See also Lange, Res Judicata in Canada, supra note 43 at 2.

52. Lange, Res Judicata in Canada, ibid at 4.

53. In Alex Stein’s words: “There is no escape from deciding how to allocate the risk of error in adjudicative fact-finding.” Stein, Foundations of Evidence Law, supra note 46 at 3.

54. As Dworkin notes, the conundrums caused by the inevitability of inaccuracy in adjudicating claims has largely “been left to the simple formula that questions of evidence and procedure must be decided by striking ‘the right balance’ between the interests of the individual and the interests of the community as a whole, which merely restates the problem.” Ronald Dworkin, “Principle, Policy, and Procedure” in A Matter of Principle (Harvard University Press, 1985) 72 at 73 [Dworkin, “Principle, Policy, and Procedure”].

55. For me, fair risk distribution is one among other necessary characteristics of procedural legitimacy. But Dworkin’s approach to credible risk distribution is a wholly endorsable starting point.

56. Dworkin, “Principle, Policy, and Procedure”, supra note 54 at 92.

57. Ibid.

58. Stein, Foundations of Evidence Law, supra note 46 at 13.

59. As David Paciocco has pointed out, “there is not the same virtue in a single-minded pursuit of the truth about guilt as there is in a single-minded pursuit of the truth about innocence.” David M Paciocco, “Evidence About Guilt: Balancing the Rights of the Individual and Society in Matters of Truth and Proof” (2001) 80:1-2 Can Bar Rev 433 at 435.

60. Relevant questions in that sphere could include questions of appropriate balancing between the different social costs of potential error, as presented in Erik Lillquist, “Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability” (2002) 36:1 UC Davis L Rev 85; or Thomas J Miceli, “Optimal Prosecution of Defendants Whose Guilt Is Uncertain” (1990) 6:1 JL Econ & Org 189. Appropriate risk allocation could also be based on questions of optimal deterrence: As Mike Redmayne explains in “Standards of Proof in Civil Litigation” (1999) 62:2 Mod L Rev 167 at 172, a common argument about setting the standard of proof is that it “should be set at a level which will ensure optimal deterrence of tortious conduct (i.e. it should not under-deter, increasing the number of accidents, but nor should it over-deter, increasing the cost of safety measures and encouraging potential victims to be careless.” Similarly, Dominique Demougin & Claude Fluet, “Preponderance of Evidence” (2006) 50 European Economic Rev 963 at 963, argue “that a ‘more-likely-than-not’ decision rule provides maximal incentives for potential tort-feasors to exert care.” For a similar analysis in the criminal context, see, e.g., Tone Ognedal, “Should the Standard of Proof be Lowered to Reduce Crime?” (2005) 25 Int’l Rev L & Econ 45. For one of the most comprehensive discussions of the burden of proof and factors to consider in setting it, see Louis Kaplow, “Burden of Proof” (2012) 121:4 Yale LJ 738.

61. As Louis Kaplow, ibid states at 741: “The stringency of the proof burden determines how error is allocated between mistakes of commission—improper assignment of liability—and mistakes of omission—improper exoneration.”

62. This approach may not be acceptable to those who might justify the civil standard of proof on the basis that it treats litigants equally through a roughly equal distribution of the risk of error. In my view, the risk distribution is a substantive aspect of the proof of facts principles, and is within the legislator’s jurisdiction to determine, subject to the qualification noted above.

63. Ho, A Philosophy of Evidence Law, supra note 28 at 51.

64. Ibid at 73. Highlighting the significance of rational discharge of the standard of proof in the criminal context, Larry Laudan has posed the question, “If a juror feels doubtful about guilt but cannot even identify or formulate the reason for that doubt, then how can she possibly decide whether the doubt in question is rational or irrational?” Laudan, Larry, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (Cambridge University Press, 2006) at 42.

65. Gaita, Raimond, A Common Humanity: Thinking about Love and Truth and Justice (Routledge, 2002).

66. Dubber, Markus Dirk, The Sense of Justice: Empathy in Law and Punishment (New York University Press, 2006).

67. Michael Slote, The Ethics of Care and Empathy (Routledge, 2007); and Michael Slote, “Autonomy and Empathy” (2004) 21:1 Social Philosophy and Policy 293.

68. Ho, A Philosophy of Evidence Law, supra note 28 at 84. And also at 83: “In short, the trier of fact must appreciate, from the position of that person, the value of respect and concern. A verdict should be given against her only when it can be justified on grounds that she ought reasonably to accept. The standard of proof and evidential reasoning used in reaching the verdict must express adequate respect and concern.”

69. Ibid at 82.

70. A commitment to rational decision-making on the basis of the evidence presented suggests that judges must approach their fact-finding task with neutrality and impartiality. On its face, that is an uncontroversial requirement, and has been expressly endorsed by the Supreme Court of Canada. See R v S (RD), [1997] 3 SCR 484 [R v SRD], and most recently in Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 [Yukon Francophone School Board v Yukon]. For example, at para 22 of Yukon Francophone School Board v Yukon, Abella J notes: “Impartiality and the absence of bias have developed as both legal and ethical requirements. Judges are required—and expected—to approach every case with impartiality and an open mind.” However, while I cannot offer a more thorough discussion here, the Supreme Court’s application of the reasonable apprehension of bias test may suggest some dilution of the demand for judicial neutrality through commentary such as: “It is apparent, and a reasonable person would expect, that triers of fact will be properly influenced in their deliberations by their individual perspectives on the world in which the events in dispute in the courtroom took place. Indeed, judges must rely on their background knowledge in fulfilling their adjudicative function” (R v SRD at para 39). If such a statement can be taken to suggest a compromise to the rationality requirement of judicial fact-finding, it is contrary to the procedural legitimacy perspective that I am presenting here.

71. Micah Schwartzman has argued that adjudicative legitimacy requires judicial sincerity and public justification in order to provide those affected a reason to accept the decision. Micah Schwartzman, “Judicial Sincerity” (2008) 94:4 Va L Rev 987 [Schwartzman, “Judicial Sincerity”]. For me, a judge’s sincerity, while laudable, cannot handle the same normative load as Ho’s principle of rationality. Suppose that some judges believe in a magic coin and toss it in order to make factual findings. They may be sincere in their subjective belief, but I, as a litigant, would not care about their sincerity; I do care, however, about their irrationality, particularly when it results in an outcome that is authoritative for me. As Martin Golding puts it, “It would be unfortunate if a judge’s argument was a mere rationalization and if the judge did not sincerely hold the reasons he explicitly gives. But in an important respect this fact, whenever it is a fact, is irrelevant to the justifiability of the decision. The justifiability of the decision depends on how well the decision is reasoned.” Martin P Golding, Legal Reasoning (AA Knopf, 1984) at 8. My own references to “sincerity” or “authenticity” should not be confused with requiring a sincere judge. Rather, they should be understood as denoting objective procedural qualities. The rationality of a judge’s deliberation can be considered a part of assessing how sincere (in an objective sense) a fact-finding process is.

72. Schwartzman, “Judicial Sincerity”, ibid at 1008.

73. William M Richman & William L Reynolds, “Elitism, Expediency and the New Certiorari: Requiem for the Learned Hand Tradition” (1996) 81 Cornell L Rev 273 at 282-83.

74. David Dyzenhaus has also offered a compelling proposed addition to Habermas’s theory by calling for a recognition of the importance of publicizing intelligible legal outcomes so that those outcomes can be subjected to further deliberation by the public. This, as I understand, is akin to calling for public reasons to be given in the fact-finding context as well, so that judicial outcomes can be reviewed publicly. See Dyzenhaus, “The Legitimacy of Legality”, supra note 31.

75. Jules L Coleman, “Authority and Reason” in Robert P George, ed, The Autonomy of Law: Essays on Legal Positivism (Clarendon Press, 1996) at 312-13.

76. Note that the Supreme Court of Canada has commented that defects in the reasons provided by judges can amount to procedural impropriety: Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 at paras 73-75. In that case, the appellants questioned the propriety of the trial judge’s reasons due to extensive copying from the plaintiff’s submissions. The Supreme Court of Canada held that the copying in the judge’s reasons did not rebut the presumption of judicial impartiality, but noted that better practice is to refrain from extensive copying. A more extensive discussion of the adequacy of judicial reasons is outside of my scope, but see, e.g., HL Ho, “The Judicial Duty to Give Reasons” (2000) 20:1 LS 42; and Richard Murphy, “Chenery Unmasked: Reasonable Limits on the Duty to Give Reasons” (2012) 80:3 U Cin L Rev 817.

77. Ho, A Philosophy of Evidence Law, supra note 28 at 51-84.

78. Ibid at 51: “From an external standpoint, the relevant criterion is the correctness of the verdict. There is a contingent connection, to which terms like ‘accuracy’ and ‘reliability’ refer, between the outcome of fact-finding and truth. Truth is needed so that justice (in the sense associated with ‘rectitude of decision’) can be done.”

79. Ibid.

80. On the question of whose perspective is important, see Solum, “Procedural Justice”, supra note 45 at 280: “When we seek to identify the conditions for the legitimacy of adjudication, we should assume the point of view of a citizen who is to be bound by a judgment that he or she has good reason to believe is in error and is adverse to the citizen’s interests or wishes.”

81. Given the significance that I am giving to the rationality of the decision-making process, it is worth noting important social science evidence that suggests that judges, like all decision-makers, adopt certain heuristics that may unconsciously bias their decisions. See Daniel Kahneman, Paul Slovic & Amos Tversky, eds, “Judgment Under Uncertainty: Heuristics and Biases” (1974) 185:4157 Science 1124; Daniel Kahneman, Thinking, Fast and Slow (Farrar, Straus & Giroux, 2011); Stephen Porter & Leanne ten Brinke, “Dangerous Decisions: A Theoretical Framework for Understanding How Judges Assess Credibility in the Courtroom” (2009) 14 Leg & Criminal Psychology 119; Eyal Peer & Eyal Gamliel, “Heuristics and Biases in Judicial Decisions” (2013) 49 Court Rev 114; Jeffrey J Rachlinski, “Heuristics and Biases in the Courts: Ignorance or Adaptation?” (2000) 79:1 Or L Rev 61; Donald C Langevoort, “Behavioral Theories of Judgment and Decision Making in Legal Scholarship: A Literature Review” (1998) 51:6 Vand L Rev 1499; Emma Cunliffe, “Judging, Fast and Slow: Using Decision-Making Theory to Explore Judicial Fact Determination” (2014) 18:2 Int’l J Evidence and Proof 139. The best answer to this literature is, in my view, to recognize its significance and encourage further study on biases and cognitive difficulties in complex decision-making like trials, and continually make efforts through judicial education to maintain judges’ awareness of decision-making pitfalls and provide tools to overcome them to the best extent possible.

82. I have already discussed that Dworkin is a proponent of an outcome-accuracy model of adjudication, and participation rights are notably missing from his procedural proposal. Similarly, even Ho, despite his commitment that outcome-accuracy must be accompanied by rationality, still maintains that outcome-accuracy is the paramount goal of adjudication, and as I have noted, participation rights do not find expression in his proposal.

83. Louis Kaplow, “The Value of Accuracy in Adjudication: An Economic Analysis” (1994) 23:1 J Leg Stud 307 at 390-91. And for Solum’s treatment of Kaplow’s argument, see Solum, “Procedural Justice”, supra note 45 at 291-95.

84. Nayha Acharya, “Adjudicating Uncertain Facts—The Case for Procedural Legitimacy” (2018) 49:1 Adv Q 105.

85. Robert G Bone states in “Procedure, Participation, Rights” (2010) 90:2 BUL Rev 1011 at 1028: “Anyone arguing for dignity or legitimacy as a basis for participation rights must be prepared to explain why dignity is not fully respected and legitimacy fully secured by an adjudication system that does its best to produce an outcome for each individual that conforms to the substantive law”.

86. Owen M Fiss, “The Allure of Individualism” (1993) 78:5 Iowa L Rev 965 970-71.

87. Solum, “Procedural Justice”, supra note 45 at 302-03.

88. Ibid at 289.

89. Ibid. And elsewhere [286-87] he notes: “The value of participation derives from the idea of legitimacy. Our focus on legitimacy contrasts with much of the prior literature, which has suggested three rival explanations—based on dignity, equality, and autonomy—for the irreducible value of legitimacy. Each of these three rival explanations has a contribution to make, especially when considered in relationship to legitimacy. Considered in isolation, however, dignity, equality, and autonomy do not provide an adequate explanation of the value of participation.”

90. Ibid at 277-79. There, Solum explains the importance and role of legitimacy, but does not expound on its necessary features. For example, at 277: “Why is legitimacy important? Citizens are not obligated to regard illegitimate laws as authoritative.” And at 278: “The goodness of legitimacy flows from an intuitively appealing principle of political morality: each citizen who is to be bound by an official proceeding for the resolution of a civil dispute should be able to regard the procedure as a legitimate source of binding authority creating a content independent obligation of political morality for the parties to the dispute.”

91. Ibid at 298.

92. Ibid at 305.

93. Ibid at 283-84.

94. Ibid. One may wonder here how different the hypothetical situation is from what really happens, given that people are normally represented in court by counsel and probably largely rely on their advice in terms of evidence and argumentation. But people normally choose their counsel and can give them instructions (unlike the guardian in Solum’s hypothetical) which I think is a material difference.

95. See, e.g., Marshaw, Jerry L, Due Process in the Administrative State (Yale University Press, 1985); Richard B Saphire, “Specifying Due Process Values: Toward a More Responsive Approach to Procedural Protection” (1978) 127:1 U Pa L Rev 111, adopting a dignity-based approach to due process and arguing in favour of recognizing participation rights on that basis. Compare the contrary position of Stein, Foundations of Evidence Law, supra note 46 at 33: “The right to be heard, and, indeed, the entire package of trial participation rights, are rights that ultimately derive from epistemic fallibility, not from moral virtuousness.”

96. Tribe, Laurence H, American Constitutional Law, 2nd ed (Foundation Press, 1988) at 666-67.

97. Robert G Bone, “Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity” (1993) 46:3 Vand L Rev 561 at 619-20. He also states at 625: “A strong participation right can be justified only by a normative theory of process value that grounds the value of participation in the conditions of adjudicative legitimacy, such as respect for a party’s dignity or autonomy.”

98. Some accounts hold that adjudicative legitimacy is tied exclusively to participation rights. That view over-extends the normative value of participation rights at the cost of failing to recognize that factual reliability is also necessary to legitimate adjudication. Solum alludes to this problem in “Procedural Justice”, supra note 45 at 272: “At this point, we can take stock of the participation model… [the interpretation which] emphasizes the dignity interest of litigants, at least gets off the ground, but the dignity-enhancing process is not sufficient for fairness in the face of skewed outcomes.” Of course, my own approach to legitimacy does not suggest an exclusivity of participation rights, and includes a requirement for a genuine orientation to factual accuracy, as I have delineated above.

99. See ibid at 305 for Solum’s statement of the “Participation Principle.” I note that the requirement for participation rights is suggestive of a possible defect in the inquisitorial model of dispute resolution from the procedural legitimacy perspective, but a full discussion of the merits and pitfalls of inquisitorial dispute resolution is beyond my scope here. In addition, I acknowledge that a call for participation rights would require further consideration and delineation, particularly in contexts beyond civil litigation. The question of who is substantially affected or directly affected can depend on the type of administrative decision at stake. Addressing the question of who could be affected in various instances goes beyond my purpose here, which is to provide guiding principles that may be used to assess fact-finding processes in the civil litigation context.

I am grateful to professors Richard Devlin, Sheila Wildeman, and Vaughan Black for reading through these ideas with utmost care, and for inviting and helping me to respond to countless thoughtful critiques. I also thank Professor Ronalda Murphy for helping me initiate this project and for introducing me to Jürgen Habermas and showing me how to make sense of his dense contributions.

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