Category: Jurisprudence
In search of sky hooks & left-handed monkey wrenches
and other tools of note.
Once upon a time, a judge of the US Supreme Court, asked to define the meaning of obscenity for criminal purposes, wrote
It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
Potter Stewart J (concurring), Jacobellis v. Ohio, 378 U.S. 184 (1964) [internal footnotes omitted].
British Columbia: RIP Moore v. Castlegar?
if the B.C. Court of Appeal is prepared to listen to the views of the Ontario Court of Appeal on the meaning of Clements v. Clements, 2012 SCC 32, on this issue, assuming the Supreme Court of Canada doesn’t comment on this issue in its Ediger reasons (appeal argued December 4, 2012, judgment reserved), whenever they’re released. See Goodman v. Viljoen, 2012 ONCA 896 at paras. 70-76. The text of the paragraphs is quoted later in this posting.
(updated Jan 9/13: added CanLII citation and the last 2 sentences above)
Only in British Columbia, eh?
(but not yet any other province ending in “a”).
Or, how to conflate factual causation – what caused what – with the separate limitation of liability question(s) of remoteness – is there any reason, in law, that this particular factual cause should not be treated as a legal factual cause so that the court may then consider if the plaintiff has satisfied the rest of the requirements of the cause of action.
Only in Canada, eh?
“In essence, Bayes’s theory furnishes a mechanism for incrementally revising probability estimates in light of new information, thereby allowing a fact-finder to update continually an opinion about the relative likelihood of a fact.” Russell Brown, “The Possibility of ‘Inference Causation’: Inferring Cause-In-Fact And The Nature Of Legal Fact-Finding” (2010) 55 McGill L. J. 1 at 27-28 [Brown “Inference Causation”].
“Bayesian methodology suffers from several defects, however, making it incompatible with legal fact-finding.” Russell Brown, “Inference Causation” at 28.
Brown sets out the defects succinctly. I don’t propose to repeat them. Others hold different views. The literature is extensive. And easily found.
Judgments are not law school exams
That means what should matter to the litigants and their lawyers – and does in most instances – is that the result is the more correct result based on the evidence and that the judge or jury did not make an error that provides merit to an appeal. That means, where the trial is by judge alone, that reasons that might get a C or D, were they law school exam answers, may be sufficient for judgment purposes, so long as the litigants accept the result as one the court was entitled to make on the evidence so not subject to reversal or variation on appeal by an appellate court acting properly, even if a different trial judge or jury, acting properly, too, would have been able to make a different decision. The situation is the same for jury instructions.
The 4th Monkey Still in Abstenia 