When legal copying is illegal (or at least reversible)

Eugene Volokh has a fascinating post re: how much judicial copying is too much:

Cojocaru v. British Columbia Women’s Hospital & Health Center — decided [14 April 2011] by a 3-judge panel of the B.C. Court of Appeal, the highest court in British Columbia — reverses a trial judge’s decision because,

In the case at bar, the reasons for judgment run to 368 paragraphs (105 pages) in length. The trial judge copied, without so acknowledging, 321 paragraphs almost word-for-word from the respondents’ written closing submissions (with inconsequential changes, such as replacing phrases like “it is submitted” with phrases like “I have concluded”). Forty paragraphs were written in the trial judge’s own words and the remaining seven paragraphs contain a mix of passages copied from the respondents’ written submissions and passages written in the words of the trial judge.

Now some sources have characterized the trial judge’s sin as “plagiarism”….

For his part, Volokh thinks the panel was correct to reverse the trial judge, though not because the copying constituted plagiarism:

[A]s the B.C. Court of Appeal panel majority understood it, [the problem] is that a judge is supposed to “independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him,” and simply adopting hundreds of paragraphs of a party’s papers casts doubt on that. [emphasis added]

While Volokh acknowledges that judicial copying is sometimes appropriate, he still condemns the trial judge’s copying here, noting that

the judicial system tries to balance judicial engagement and efficiency.

I am not sure what to make of this proposed dichotomy between “judicial engagement” and “judicial efficiency”.  Doubtless, these two concepts can be in opposition along a continuum:  the more one “engages” with a case, the less “efficient” one’s decision-making process might be (and vice versa).

Just because “engagement” and “efficiency” can be in opposition, however, doesn’t necessarily mean that they are.  A judge could be exceedingly inefficient in rendering a decision (e.g., by personally handwriting the entire opinion with her non-dominant hand when both she and her clerk can think and type much faster) and also extremely unengaged (e.g., daydreaming all the while).  The relationship between the two concepts can be quite unclear.

Because of this uncertain logical relationship between “engagement” and “efficiency”, I humbly submit that it makes the most sense to inquire directly into whether the trial judge “engaged” with a case, not to use “copying” as a proxy for “efficiency” as a further proxy for “engagement.”

Indeed, dissenting appellate Justice K. Smith makes just such a direct inquiry here.  Smith turns to the underlying facts of this case to argue that

there are signs in the reasons that the trial judge applied his mind to the issues.

And here is the curious thing:  Justice Smith renders an exhaustive, 106-paragraph analysis of the trial court’s decision in the process of reaching and defending his position.  In stark contrast, majority Justices Levine and Kirkpatrick take merely 22 paragraphs to conclude

that there is no principled basis to deal with these appeals on their merits because the trial judge’s reasons for judgment cannot be considered to represent his reasons, do not meet the functional requirement of public accountability, and do not allow for meaningful appellate review. 

Perhaps I am being too hard on Levine and Kirkpatrick.  Perhaps opinion length is an equally unreliable proxy for engagement.  However, reading through the appellate opinions, I think that dissenter Smith “engages” far more than the majority justices.  His is not the most “efficient” judicial decision, but it does explain its reasoning far more thoroughly (and persuasively) than the majority’s arguably conclusory opinion.

Copying isn’t always bad, as Smith goes to great lengths to explain.  I’d love to hear a robust defense of the opposing position.  Unfortunately, as is so often the case, the anti-copying arguments here come up a little short.

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