Some thoughts on the proposed SQE and its implications for the English law degree

I highly recommend Richard Moorhead’s blog on the recently published consultation by the Solicitors’ Regulation Authority on the  standardised competence assessment for all those seeking qualification as a solicitor in England and Wales. In this post I just want to add a few thoughts of my own to the conversation. I’m also conscious that the SRA’s work is of interest to a wider audience than the UK. Here in Australia, for example, the Law Admissions Consultative Committee is continuing to follow post-LETR developments in England closely. The Hong Kong Law Society has also proposed the introduction of a Common Entrance Exam, though the scope of the HK proposal is less radical, and debate has, for now, been paused and rolled into a wider review of legal education and training that is now underway.* In this post I intend to reflect only the possible implications of the SRA proposal for the English qualifying law degree (QLD) – not least because I want avoid anything that might appear to pre-judge the Hong Kong debate.

The SRA consultation paper starts from three possible, broad, models for a potential qualification regime (para 11):

  • Option 1: Continuing to prescribe a limited number of pathways to qualification, the details of which we specify, which are aligned to the Statement of Solicitor Competence Statement, Statement of Legal Knowledge, and Threshold Standard

  • Option 2: Rather than prescribing a limited number of pathways, authorising any training pathway developed by a training provider which enables a candidate to demonstrate they can perform the activities set out in the Statement of Solicitor Competence to the standard required in the Threshold Standard.

  • Option 3: Developing a centralised assessment of competence that all candidates are required to undertake prior to qualification, again aligned to the Statement of Solicitor Competence, Statement of Legal Knowledge and Threshold Standard.

Option 1 represents largely a continuation of the status quo; option 2, I suggest, comes closer to the base position advanced in the 2013 LETR Report, while Option 3 is the SRA’s preferred approach for reasons essentially of cost, consistency and flexibility/diversity. The paper offers some compelling arguments for its preferences, and some balanced evaluation of the options, though I felt overall that it was perhaps a little more robust in critiquing options 1 and 2 than it’s preferred option 3 – though it does also, rightly, point out that none of the options are mutually exclusive (and indeed the LETR Report could be seen as recognising the value of elements of both options 2 and 3 – the latter notably in the use of standardised clients in skills assessments).

Much of the detail (and hence the devil) of the preferred approach remains to be developed. The paper is clear that the SRA anticipates a separate two-part assessment of knowledge and skills. The modularised assessment of knowledge must be completed first, and would be assessessed via computer-based objective testing. The second part would involve standardised practical exercises akin to the standardised clinical  assessments used by medical schools and in the current Qualified Lawyer Transfer Scheme. The paper is relatively open on the question whether, and if so how much, work experience should be required before the Part 2 assessments are completed.

The proposed scope of the knowledge assessments is broad. It will encompass ethics and professional conduct, wills and probate, taxation, business law and practice, property law, torts, criminal law and evidence, criminal litigation, civil litigation, contract law, trusts and equitable wrongs, constitutional law, EU law, human rights, and the English legal system (para. 41). The assessments are to be modularised, to facilitate “integration with other education and training programmes.” There is, however, no discussion at this stage of the broader assessment framework, prerequistes and sequencing of modules, or of the frequency of assessments.

Implications for the QLD

The paper is very clear that possession of a law degree should not be a basis for any exemptions from the knowledge (or skills) requirements of the SQE. In short, if this proposal goes through, the QLD as we currently think of it is dead – at least for the solicitors’ profession.

I agree with Moorhead that, if these proposals go through, we are likely to see the creation of a more divergent education and training playing field: possibly with growing differences between traditional liberal and what Moorhead calls ‘almost practice ready’ law degrees, plus a greater variety of postgraduate and, I would add, possibly non-graduate (in structure, though potentially graduate in level) options such as apprenticeships.

The consequences of all this for the law school sector as a whole are potentially substantial, and may be very serious. They include:

Recruitment: Law has undoubtedly grown as an academic subject on the back of its professional status and recognition. Even though less than 50% (and I suspect in some post-92 law schools the proportion could be 30% or even lower) actually make it to being a solicitor, between 60%-70% appear to enter law school with solicitor/barrister ambitions. Recruitment implications of the loss of QLD status are thus both potentially significant and very hard to judge. Will regulation reshape the market for training, or will the market for training adapt as minimally as possible to the regulation? There are significant vested interests involved, including the elite law schools, and the big LPC providers who will not let a multi-million pound business simply disappear overnight. Much may depend on how the elite law firms and their ‘preferred suppliers’, the elite law schools respond to these changes, and whether they (continue to) function as a congeries of reputational interests. (The reputational risks of marginalising the law degree are not addressed in the SRA paper. In the LETR research phase, by contrast,  quite a lot was made of the reputational importance of the graduate standing of the profession in the international marketplace. Whether ‘graduateness’ without the Oxbridge or Russell group badge carries the same cachet is moot). If some form of LLB + LPC remains a significant pathway, the recruitment effects may be mitigated – at least for some parts of the sector. If it doesn’t, the future becomes infinitely more difficult to predict.

Expansion of the knowledge-base – The new knowledge base essentially represents an amalgam of the knowledge requirements of the QLD and LPC. It thus reflects the continuing influence of the reserved areas of practice and thereby excludes much of what many (especially commercial) solicitors do. For those who want to develop nearly-practice ready degrees, it might not change the game that much from the current exempting degree model. However, that assessment also depends in large part on how much current flexibility over (QLD) content is reduced by the so-far unwritten assessment framework. To expect the  academic community to vote on the options in the absence of this seems rather like asking turkeys to vote for something that may or may not be Christmas; you really would like to know first.

Doubling-up of assessment burden: those who continue to do degrees are likely to be confronted with a growing assessment burden. Under the preferred model university assessments will not count for the SQE, and it would be a radical change of policy for universities to accept entirely external assessments as part of a (concurrent) degree. Moreover, the fact that the SRA currently sees SQE assessments as both pass/fail and sitting outside the Framework for Higher Education Qualifications (FHEQ) (see paras 57-58) makes any inclusion by recognition a less, not more likely, prospect. The impact, including diversity impact, of the scale, scope, timing, frequency and cost of SQE assessments on law students specifically appears not to have been addressed at this stage.

Implications for innovation and diversity of intellectual approaches: a drift towards nearly practice ready degrees may have significant ‘unintended’ (or from the SRA’s point of view, ‘none of our concern’) consequences for academic law. Joint degrees may decline because they simply cannot address enough of the SQE ‘core’ knowledge. Unless a clear secondary market develops in SQE test preparation (a matter which in itself may have some diversity implications), universities are also likely to find themselves under some pressure to teach to the test. That is likely to (further) undermine socio-legal, theoretical or other alternative intellectual approaches to doctrinal legal analysis. (Recall that the LETR Report data highlighted the limited value professionals attached to jurisprudential or socio-legal content/ approaches.)

The anxiety has begun…

*The Hong Kong Review under the auspices of the Standing Committee on Legal Education and Training is being undertaken by a panel comprising Justice KH Woo, Professor ATH (Tony) Smith and myself.

 

Giving good judgment

I’ve recently finished revising my bits of writing for the ninth edition of Learning Legal Rules (co-authored with my recently emeritus collaborator and erstwhile colleague, James Holland), which will be published by Oxford UP next year. After eight editions it’s tempting just to update without tweaking and changing too much, but we like to try and keep it fresh as well, so are always looking for new (or even less new) material that will serve that purpose. This time around one of the pieces I came across was a piece in the Guardian by the novelist Ian McEwan (whose work I’ve always admired). Though we didn’t use it in the end, I want to share it here. It is on the rather well-worn trope of legal judgment as literature, but I like the way in which McEwan brings his novelist’s eye to the description:

It was the prose that struck me first. Clean, precise, delicious. Serious, of course, compassionate at points, but lurking within its intelligence was something like humour, or wit, derived perhaps from its godly distance, which in turn reminded me of a novelist’s omniscience. I continued to note the parallels between our professions, for these judgments were like short stories, or novellas; the background to some dispute or dilemma crisply summarised, characters drawn with quick strokes, the story distributed across several points of view and, towards its end, some sympathy extended towards those whom, ultimately, the narrative would not favour….

Here, in my lap, were realistically conceived characters moving through plausible, riveting situations, raising complex ethical questions. If these judgments had been fiction, they would have belonged in the tradition of moral exploration that includes Jane Austen, Leo Tolstoy, George Eliot, Henry James, Joseph Conrad.

I love this description, and while not all judicial authors can be praised for prose that is ‘clean, precise, delicious’ the best undoubtedly can. It’s also probably not a bad reminder either to  us or our students that it is the writing that leaves its impression first, and probably longest. Prose doesn’t have to be turgid and dull just because its ‘legal’ or (even worse!) ‘academic’. For me it was also another prompt to consider what our students lose when we do them the (dis)service of packaging their law for them in ready-to-digest, bite-size, nuggets in lectures and textbooks(!). Those judgments that involve hard moral problems really do allow us to see into the crucible of ethical decision-making in a way that commentary often does not.

It is perhaps no surprise that the primary target of McEwan’s admiration was Sir Alan Ward, the Court of Appeal (England and Wales) judge who retired last year. Sir Alan was always one of my favourite judges for both the clarity of his prose and his ability to wear both his judicial authority and his learning very lightly. I’m pleased to say he gets two honourable mentions in the new edition. The first refers to his most famous and probably most difficult judgment in the conjoined twins case (Re A (Conjoined Twins) [2001] Fam 147). The other? Well fellow Ward devotees may have guessed… I couldn’t let his one-liner about ‘warring bankers’ get away.

The ‘voluntary regulation’ of unregulated paralegals moves closer in England and Wales

Although the LETR was able to undertake only a very limited investigation of unregulated legal services, the Report was able to demonstrate that unregulated providers appeared to be delivering a significant proportion of personal legal services and even some work for corporate clients in specialist areas like employment law, all with very little regulation or external assurance of the quality of services. It was also clear that more research into the unregulated sector was required. Consequently we recommended that:

Recommendation 23
‘Consideration should be given by the Legal Services Board and representative bodies to the role of voluntary quality schemes in assuring the standards of independent paralegal providers outside the existing scheme of regulation. The Legal Services Board may wish to consider this issue as part of its work on the reservation and regulation of general legal advice.’

However, it was also apparent that the existing regulators had very little appetite for this. It was of course largely outside the remit of the frontline regulators, and possibly a step too far for an LSB being challenged over alleged mission creep, and dealing with a government that was already considered suspicious of extending legal services regulation any further. Consequently, I was pleased to discover last year that there was a real interest amongst membership bodies in the unregulated sector in taking this agenda forward. Over the past 18 months, the National Association of Licensed Paralegals (NALP), and the Institute of Paralegals (IoP) have been working in consultation with other stakeholders to develop a single voluntary register for the paralegal sector. This has now officially gone live at ppr.org.uk

The Register is intended to operate as a not-for-profit service. Members of participating membership bodies will be passported onto the Professional Paralegal Register (PPR). At present there are three eligible bodies –

  • NALP
  • IoP
  • Institute of Professional Willwriters (IPW)

The rationale is, of course that registration will provide mutual benefits for individual paralegals and consumers. Consumers get some degree of protection and quality assurance. Paralegals will be registered on one of four tiers or levels of membership, based on qualifications and experience. They must also carry PII cover, abide by a code of conduct, and agree to submit to the disciplinary jurisdiction of the PPR which will have powers to sanction members including awards of compensation, return of fees, suspension and removal from the Register. Paralegals, in turn, get the reputational benefit of registered status and the ability to ‘advertise’ their work, including specialisation and contact details to both prospective employers and  consumers through the PPR website .

It will be interesting to see if this approach succeeds. It does assume that registration will provide sufficient visibility and incentives for both consumers and paralegal practitioners to make use of it. This may not be straightforwardly the case; we have fairly limited understanding of how consumers currently access unregulated providers.The numbers of paralegals so far registered is quite small, and the first test will be to see how widespread take-up is. From a research point of view it will also be interesting to get a sense of who is registering and the range of work in which they claim specialisation.

Declaration of interest: the author (Julian Webb) is a Patron of the PPR

The SDT and the Chamber of Secrets

This Post is co-authored with Steven Vaughan and was originally published on 2 April 2015 as a guest blog on Richard Moorhead’s Lawyer Watch. Thanks to Steven and Richard for their agreement to my re-posting it here, and HT to Richard for the snazzy title. Steven begins…

I am doing some work on the concept of lawyer independence. I’d read the LSA, and the relevant SRA principles and guidance, and searched the SRA website to see where Principle 3 was mentioned. Principle 3 says that a solicitor must, “not allow [his/her] independence to be compromised.”

I’d then gone to look for case law, found an interesting case from the High Court on referral fees (Reed v George Marriott [2009] EWHC 1183 (Admin)) and had the Farooqi case helpfully pointed out to me by Richard Moorhead. He blogged on it here.

I then went to go search rulings by the Solicitors Disciplinary Tribunal. I’d done this for two reasons. First, the vast majority of cases involving alleged, or actual, solicitor misconduct never get appealed (and so aren’t reported in the higher courts). Second, I had seen in the SRA’s recent report on litigator’s duties a reference to a 2004 SDT ruling which mentioned independence (In the matter of Paul Francis Simms, Solicitors Disciplinary Tribunal, 2 Feburary 2004) and wondered if any other rulings had similar dicta.

The SDT website (http://www.solicitorstribunal.org.uk) allows you to search judgements, or you can browse them all in one long list. If you want to search, you can do this by: (i) Case Reference; (ii) Full Name; (iii) Allegation Type (‘Breaches’; ‘Delays’; ‘Account Rules’ etc); (iv) Outcome (‘Fines’; ‘Strike Off’ etc); or (v) Date. What you cannot do is search by keyword. So, I cannot find all the judgements that consider, say, Principle 3, or the term “duty to the court”.

I emailed the SDT to ask for their help. I won’t put their reply below, as I hadn’t said I was going to publish it, but, in effect, they said this was a resources issue. I can see that. In part.

I posted my incredulity about this onto Twitter. Julian Webb was the first to respond. I’ll let him take over here…

…I can’t say I was surprised by Steven’s experience. It echoed my own from a couple of years ago when I started wondering about the uses the SDT has made of professional disrepute in its decisions, and the range of penalties imposed – a topic which, in the absence of more substantial (ie funded) research assistance, I decided to park in the too difficult box, largely because of the limits of search functionality on the website.

To be sure, what we have now is a quantum advance from the days when SDT decisions were only available on request, and, of course, the SDT is not alone. The Register of Disciplinary Action (RODA) in my new home of Victoria is similarly geared to the simplest of category-driven consumer searches. But it is hard to see why text-based and Boolean search functionality, like keyword searching, should be an issue; indeed the Scottish SSDT website already provides it.

Does it matter? It may be objected that this is a real minority concern (I did joke to Steven that we might be the only two people on the planet to consider this a significant problem; I was wrong; in the end there was six of us in the conversation…) and that the SDT is not there to facilitate research. But the issue actually deserves a better response than that, because there is a more fundamental point to be made about the relationship between accessibility of decisions (and in the digital age that must surely imply a certain threshold of functionality), public trust, accountability and education. Indeed, the Tribunal’s own publications policy makes the point for us:

Publishing Judgments is important in ensuring that the Tribunal’s processes are transparent. The content of Judgments assists in Informing and educating users of legal services and the profession. Publication enables the Tribunal’s stakeholders to be reassured that the Tribunal’s decision-making powers are being exercised proportionately and consistently, and that the Tribunal is accountable for its decisions.

These are sentiments with which we concur, but does the SDT really believe its site has the functionality to enable anyone to make assessments of ‘proportionality and consistency’ at anything but a very basic level of comparison?  In the context of increasing concerns about the accountability of professionals, and the historic evidence from a number of jurisdictions of under-enforcement of disciplinary breaches, the point should not be considered purely academic. Now back to Steven for our conclusion….

…In its 2013/2014 Annual Report, the SDT notes a 2013 running cost of £2.1m. Just under £900,000 of this is spent on employment costs. The Legal Services Act 2007 requires that the full cost of funding the SDT comes from a levy on the profession via the annual practising certificate fee. The SDT’s 2013/2014 Annual Report sets out that the proportion of total practising fee income paid to the SDT was 2% in 2013-2014. In 2013, only £9,600 was spent by the SDT on its website. That’s 0.005% of the SDT’s overal running cost. Wouldn’t it be better to spend say, a little less money on employment costs (or AGMs or Training Days or SDT Members’ fees) and a little more on making the website fit for purpose and allowing the law on solicitors’ discipline and punishment to be better known, and more open to proper evaluation?

Implementing the LETR

I was sorry to miss the latest Westminster Legal Policy Forum (WLPF) event in London on 5 November, but unfortunately I was otherwise occupied in the southern hemisphere. The event was timely, given that the SRA has recently published its consultation on its draft competences and the BSB have also just given us some further detail of their training strategy (though still not a lot – HT here to Steven Vaughan’s recent guest blog on Richard Moorhead’s Lawyer Watch).

The WLPF summarised the event as follows:

Sessions brought together key stakeholders working across the current legal education and training framework – including colleges, universities, careers advisory services, vocational training providers and regulators – alongside law firms, chambers and wider legal employers. Delegates had particular opportunity to consider the prospects for developing new qualification pathways and access routes to legal professions, as well as possible changes to competency frameworks and Continuing Professional Development. Sessions also focused on current proposals to streamline regulatory involvement in education and training processes, and the challenges ahead for a revised framework in supporting both innovation and standards.

The work of the LETR research team is, of course, long-finished, but it was good to see that my colleague on the team Professor Avrom Sherr was invited to open the event and did so, in his own words, by going provocatively “off message”, not least on the challenge to the representative bodies to maintain their relevance after the Legal Services Act; on the tendency of the LETR to be about “regulation, regulation, regulation” rather than “education, education, education”, and on the potential boringness of the SRA’s competence statement. This all bodes rather well for our joint Upjohn Lecture in January 2015!

I have storified all the tweets I could track from the WLPF event here (in reverse chronology):

When Facebook doesn’t ‘like’ lawyers

…it sues them. Or so it seems given the recent civil complaint filed by Facebook and its CEO Mark Zuckerberg in New York last week. The claim has been brought against DLA Piper, Lippes Mathias Wexler Friedman, Milberg LLP, and Paul Argentieri & Assoc., and a numbers of named partners in those firms.

The case arises out of an attempt, since 2010, by Paul Ceglia to establish a claim to ownersip of a substantial share of Facebook, actions which have so far led not only to the summary dismissal of Ceglia’s civil suit in 2013, but to Ceglia’s indictment before a grand jury on criminal fraud charges. (Though it should be noted both that the criminal charges have not yet come to trial, and that Ceglia has appealed the dismissal of his civil claim against Zuckerberg – the latter one assumes more in hope than expectation given the Magistrate Judge’s damning comments on the quality of Ceglia’s evidence).

The case against DLA Piper (US) and the other law firms is of interest for a number of reasons, beyond the spectator sport of a big corporation turning on ‘big law’ (what some may see as a variation on Oscar Wilde’s theme of the unspeakable in pursuit of the uneatable). It will almost certainly raise procedural-ethical issues regarding lawyer-client privilege, and, further, the lawyers’ duty not to mislead the court. In the latter context it also raises a larger meta-ethical issue for the court, as to its willingness to permit a plaintiff with deep pockets to pursue lawyers through the courts for (allegedly) just doing their job… or not.

And that will be the crux of the case. Ceglia managed to go through lawyers faster than the proverbial knife through butter before his claim was dismissed. Facebook’s full complaint (posted here by Above the Law) has been selective in choosing as its targets those that it sees as most culpable. The defendant most vulnerable in this regard is surely Paul Argentieri and his firm, since the local NY attorney Argentieri is not only the lawyer who has lasted longest by Ceglia’s side, but the one who devised the initial litigation strategy that sought to bolster the credibility of Ceglia’s claim precisely by bringing in a number of ‘blue chip’ firms like DLA Piper. It is of course this very strategy that now threatens those who bought into it with a very uncomfortable few months, and which gives Facebook’s (civil) claims of malicious prosecution and conspiracy at least a scintilla of a chance – or better.

The liability of DLA Piper, Milberg and others will likely turn on key events between the end of March 2011 and May 2012, when Milberg lawyers Dumain and Young withdrew. Ceglia’s claim was based primarily on a contract with Zuckerberg which appeared to show that the latter was engaged by Ceglia to work on “The Face Book” and another project called “StreetFax”. Around the end of March 2011 one of Ceglia’s attorneys (from Kasowitz, Benson, Torres & Friedman) found what appeared to be an original of this contract on Ceglia’s computer hard drive, but without the whole first page which made reference to Facebook. This led the Kasowitz attorneys to the conclusion that the ‘StreetFax’ contract was redrafted long after the event to include Facebook, and Ceglia’s claim was therefore fraudulent. Kasowitz immediately withdrew from representation, communicating its concerns about the apparent forgery to Argentieri. DLA Piper and Lippes Mathias continued to represent Ceglia. DLA apparently playing a significant part in amending, and bolstering Ceglia’s complaint by reference to emails (the provenance of which also came to be heavily contested) said to be between Ceglia and Zuckerberg, but which had not been mentioned in the original complaint. The Amended Complaint was filed on 11th April, and on that same day another of Ceglia’s representative firms, Connors & Vilardo withdrew their representation, being replaced by additional counsel from DLA Piper. On 13th April, attorney Marks of Kasowitz wrote to Lippes Matthias, DLA Piper and Argentieri, memorialising his earlier discoveries about the contract and prior communications with Argentieri. Marks indicated that he would not report the matter to the District Court pending an investigation promised by Dennis Vacco of Lippes Matthias. Whether there was an investigation by Vacco is moot, but it appears that DLA Piper and Lippes Matthias continued to represent Ceglia into June 2011, with both firms withdrawing only at the end of the month, and on the eve of a court hearing brought by Facebook seeking expedited discovery.  Neither of these firms (nor Kasowitz) appears to have alerted the court as to concerns as to the falsity of any facts as alleged by Ceglia. After the withdrawal of his counsel Ceglia continued to be represented by Argentieri and a San Diego sole practitioner, Jeffrey Lake (until 18th October 2011), when the lawyer merry-go-round set off again. The final defendant firm, Milberg joined the action in early March 2012, withdrawing at the end of May,  There appears to be some uncertainty as to why Milberg withdrew, but, again, nothing in the public record indicates that they raised concerns of a possible fraud on the court.

At the core of Facebook’s case, then, seems to be a claim that the failure of successive firms to disclose why they were withdrawing effectively kept Ceglia’s action on the road, and forced the company to keep defending long after the wheels should have come off what was (in the view of Facebook/Zuckerberg) a groundless scam. But that by itself is unlikely to be enough for Facebook/Zuckerberg to win in court. The action here is proceeding on the basis of two tortious claims: malicious prosecution and deceit/collusion with intent to deceive a court (the latter specifically under the New York Judiciary Law). Malicious prosecution is not easy to establish: the plaintiff needs to show the suit was brought without probable cause, initiated out of actual malice, and (in New York) there is also a requirement to show special damage. Each of these requirements set the bar high for a plaintiff. Probable cause may be the least of it: if the defendants can be shown to have known, or ought reasonably to have known that Ceglia was engaging in fraud, perjury or the suppression of evidence, then that element could well be satisfied. Proving malice and special damage is likely to be more difficult, though the extent to which the defendants investigated Ceglia’s claims is certainly a matter that Facebook will pursue, as failure to investigate may itself be regarded as evidence of malice.

Discovery will likely be interesting; some evidence is already in the public domain from the original action, but we must wait to see how critical a part lawyer-client privilege (and the crime/fraud exception) will play in limiting the defendants’ exposure to scrutiny.

How the second action for deceit plays out will also be interesting. Courts do not like being deceived, and that is clearly reflected in section 487 of the NY Judiciary Law, which not only creates a specific action of deceiving the court, but requires the court to award treble damages where deceit is proven. But courts are also nervous of being used by plaintiffs for purely strategic or vengeful ends, and there is some concern, particularly in the US, following the Chevron litigation, that corporate plaintiffs are adopting a tactic of using the courts to deter lawyers from acting against them.

While I can’t say I’m a fan of corporate power in the courtroom, I’m not particularly convinced by that argument either, given its continuing dependence on the ideal-typical lawyer as a disinterested neutral partisan. There is surely a risk with high profile-high value litigation that lawyer self-interest gets significantly caught up in the mix, not least because success in a high value claim not only offers a substantial payday for the firm (particularly if the case is run on a generous contingency), but because it can be a reputation-maker for the lawyers involved. Whether that is what happened in the original Ceglia case, we must wait and see, but the tendency of some very experienced and high profile firms to get involved in this case, particularly as more and more lawyers pulled out, seems hard to explain on entirely rational grounds – at least with the benefit of hindsight!

If the Facebook claim does get to trial (and I would hesitate to bet against it, despite the obstacles) the outcome if the defendants lose are not going to be pretty, either financially or reputationally. Moreover though this action, of course, does not have a disciplinary function, a finding against the lawyers involved for Ceglia could also have disciplinary consequences for them, as proof of malicious prosecution would surely offer at least prima facie evidence of breaches of their professional obligations to the court (here under rules 3.1 and 3.3 of the New York Rules of Professional Conduct).

Judge Posner, J.S. Mill and Same-Sex Marriage

Sometimes the gods of happy coincidence smile down on us as law teachers. This last week I have been working with my Legal Theory students on rights and freedom, and on Thursday Judge Richard Posner handed down the (unanimous) decision of the US Court of Appeals, Seventh Circuit in Baskin v Bogan, striking down legislative bans on same-sex marriage in the states of Indiana and Wisconsin.

In a closely argued 40-page opinion Judge Posner finds that the states’ bans breach the Equal Protection Clause of the US Constitution. The case does not address the argument that gay marriage should be permitted as a fundamental right. The decision thus sits within a framework of classical Equal Protection ‘suspect class’ legal analysis. It finds that the same-sex-marriage bans discriminate on the basis of sexual orientation, and that such classification, being based on an immutable characteristic of the group discriminated against, proceeds along ‘suspect lines’. Consequently the obligation falls on the states seeking to uphold the ban to rebut the presumption that they have breached the Equal Protection Clause, by showing that they have a compelling justification for their marriage limitations. This, in the court’s judgment, Indiana and Wisconsin both wholly failed to do. ‘Simples’ as a certain meerkat might say.

In truth, attempts to defend same-sex marriage bans have been facing a struggle in the US ever since the possibility of direct moral condemnation of homosexuality was precluded by Lawrence v. Texas. The defendants arguments in Baskin v Bogan were objectively weak, and there can be little question that Posner does an effective and at times humorously serious job of highlighting the implausibility (if not absurdity) of the arguments and hence the irrationality of the states’ discrimination. The analysis is littered with some extremely pithy observations – one of the most striking perhaps being that bans on same-sex marriage are even more onerous than bans on interracial marriage because they allow gay people no real prospect of marriage at all, whereas intra-racial marriages were at least permitted (p. 29).

But it’s in its reasoning and its (unusually) explicit philosophical basis that the judgment gets interesting for my purposes. In the course of argument Posner reframes the case within a distinctly Millian consequentialism, arguing that legal intervention is only justified where the act complained of causes harm to another’s person or interests. This can be seen in three key points of the judgment. First, Posner establishes that the denial of same-sex marriage causes significant harms (economic and psychological) to members of the gay community. Secondly, he rejects the idea (in the absence of any concrete evidence to the contrary) that permitting same-sex marriage of itself undermines the institution of marriage in expressly Millian terms:

We know that many people want to enter into a same-sex marriage (there are millions of homosexual Americans, though of course not all of them want to marry), and that forbidding them to do so imposes a heavy cost, financial and emotional, on them and their children. What Wisconsin has not told us is whether any heterosexuals have been harmed by same-sex marriage. Obviously many people are distressed by the idea or reality of such marriage; otherwise these two cases wouldn’t be here. But there is a difference, famously emphasized by John Stuart Mill in On Liberty (1869), between the distress that is caused by an assault, or a theft of property, or an invasion of privacy, or for that matter discrimination, and the distress that is caused by behavior that disgusts some people but does no (other) harm to them. Mill argued that neither law (government regulation) nor morality (condemnation by public opinion) has any proper concern with acts that, unlike a punch in the nose, inflict no temporal harm on another person without consent or justification. The qualification temporal is key. To be the basis of legal or moral concern, Mill argued, the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual….

….[W]hile many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts. (33-34).

Thirdly, Posner then turns to the argument that the primary or sole reason for marriage law

 is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility. The state recognizes that some or even many homosexuals want to enter into same-sex marriages, but points out that many people want to enter into relations that government refuses to enforce or protect (friendship being a notable example). Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homosexual sex cannot result in unintended births. (15)

 Posner addresses this claim over more than six pages of argument which, he asserts, demonstrate that the grounds advanced by lawyers for the two states “are not only conjectural; they are totally implausible.” He achieves this in two ways, by highlighting logical fallacies and inconsistencies in the argument, eg:

At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure. (19-20)

 

and by countering the evidential grounds relied on, eg:

The state’s claim that conventional marriage is the solution to that problem is belied by the state’s experience with births out of wedlock. Accidental pregnancies are found among married couples as well as unmarried couples, and among individuals who are not in a committed relationship and have sexual intercourse that results in an unintended pregnancy. But the state believes that married couples are less likely to abandon a child of the marriage even if the child’s birth was unintended. So if the state’s policy of trying to channel procreative sex into marriage were succeeding, we would expect a drop in the percentage of children born to an unmarried woman, or at least not an increase in that percentage. Yet in fact that percentage has been rising even since Indiana in 1997 reenacted its prohibition of same-sex marriage…. There is no indication that these states’ laws, ostensibly aimed at channeling procreation into marriage, have had any such effect. (23-24)

In both cases the sum effect is to demonstrate that the claimed benefits of the discriminatory policy do not or cannot justify the harms caused.

In the end, the Indiana and Wisconsin claims do not really constitute a hard case in the classical sense, but they are of interest in demonstrating how a judge can directly employ philosophical reasoning. I think they can also help highlight both the extent to which ‘harm’ itself can be a slippery concept, and that cases will often involve assessing competing harms, (as Posner observes, the state must be able to demonstrate that “the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” – p.5) rather than the straightforward choice between harm and no-harm that much of Mill seems to assume. Doubtless Posner would also contend that his consequentialism provides a more objective mechanism for dealing with such issues than a lengthy debate about fundamental rights or human dignity, but we are still left with the limitations of a consequentialist approach. The extent to which Posner’s approach relies on evidence of benefit/detriment is, arguably, one of its strengths – so long as the evidence is there, and is reliable, but what if the harms are finely balanced, or both sides are reduced equally to conjecture? Moreover, despite some fairly critical comments about elements of the defendants’ attempts to link marriage and parenting, Posner’s own reasoning relies heavily on the benefits of marital status to the adopted children of same-sex families, an argument that potentially falls flat in contexts where gay couples are still denied the right to adopt as well as the right to marry.