Judges Talking to other Judges: Judicious Consultation?

There is a fascinating story in the New York Times about judicial decision-making, in particular, whether it is appropriate for judges to seek out the advice of their colleagues:

Interviews with more than a dozen judges in Manhattan’s Federal District Court show that almost all have telephoned colleagues when they were puzzled by legal questions or other issues, or have been on the receiving end of the game-show-like call for help.

Administrative lawyers will be familiar with this issue. A well-known Supreme Court of Canada decision, Consolidated Bathurst, involved discussions by members of an administrative tribunal after hearing cases but before reaching final decisions. For the majority, Gonthier J. okayed the practice, but imposed important limitations. Discussions could not be coercive and could not delve into the facts of particular cases:

The rules of natural justice should not discourage administrative bodies from taking advantage of the accumulated experience of its members.  On the contrary, the rules of natural justice should in their application reconcile the characteristics and exigencies of decision making by specialized tribunals with the procedural rights of the parties…

It is obvious that no outside interference may be used to compel or pressure a decision maker to participate in discussions on policy issues raised by a case on which he must render a decision.  It also goes without saying that a formalized consultation process could not be used to force or induce decision makers to adopt positions with which they do not agree.  Nevertheless, discussions with colleagues do not constitute, in and of themselves, infringements on the panel members’ capacity to decide the issues at stake independently.  A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and opinions nor does it constitute an obstacle to this freedom.  Whatever discussion may take place, the ultimate decision will be that of the decision maker for which he assumes full responsibility…

The determination and assessment of facts are delicate tasks which turn on the credibility of the witnesses and an overall evaluation of the relevancy of all the information presented as evidence.  As a general rule, these tasks cannot be properly performed by persons who have not heard all the evidence and the rules of natural justice do not allow such persons to vote on the result.

In New York, the judges are aware that they are ultimately responsible for their decisions:

“What the inquiring judge, in my experience, does not do,” said Judge Charles S. Haight Jr., a member of the federal bench for almost 40 years in Manhattan and New Haven, “is to abdicate his or her responsibility as the judge of that case. He or she is the decider.”

Although contact with legal scholars seems to be frowned upon by these New York judges, Alan Paterson’s research on the House of Lords and Supreme Court demonstrate that some senior English and Scottish judges have consulted with members of the academy.

As long as discussions are held at an appropriate level of generality, it is difficult to see why discussions with academics should be absolutely verboten. If I think that, I suppose I am also committed to thinking that discussion with one’s fellow judges — or even judges on other courts with relevant expertise — should be permissible as long as it does not intrude on the merits for which the deciding judge alone is responsible. I can imagine, however, that others, especially lay persons, might find this surprising, so I would be interested to hear what readers have to say.

This content has been updated on May 22, 2015 at 11:56.