Why Our Antiquated Laws Don't Work
A low professor surveys our paper patchwork of puzzles that frustrate justice, and suggests ways to rid ourselves of quill-pen mithods that now woefully fail to serve our jet-age needs
A FEW WEEKS AGO I took an efficiency expert on a tour of one of the country’s busiest land-registry offices. He was appalled at what he saw: a vast roomful of lawyers and law students sitting at little desks, grubbing through sheaves of brittle old deeds, indentures, and mortgages. Some of those documents were more than a century old. They’d been written with quill pens in the Spencerian script of vanished generations of law clerks and they were stuck together with ancient bits of tape. There must have been half a ton of documents and record books scattered over the tables, and there were a hundred times that many waiting upstairs. You got what you wanted by standing in line at a counter, filling out a library slip and presenting it to a little old man who popped it into a wire basket and then, using an old-fashioned dumbwaiter, slowly cranked it upstairs to the second story.
My friend the efficiency expert was dumfounded. “It’s like something out of Dickens,” he kept saying.
He happened to be right and, as a lawyer, this bothered me. For what we were witnessing, in the York County Land Registry Office, was the creaking legal machinery of another age — struggling with one of the biggest, most dynamic real-estate booms in Canadian history. It is a Victorian anachronism that could add at least a hundred dollars to the price of that next house you buy.
What was going on in that place, and in hundreds of other land-registry offices across the country? Basically, it’s a specialized library where you go — or, more likely, hire a lawyer to go for you — to check that the property you are buying really belongs to whoever you’re buying it from. As the system now operates, this involves a check of every single document pertaining to a given parcel of
land, back for at least forty years, to an adequate “root of title”; sometimes the search may go back a century to the old handwritten agreement that conferred to the neighboring landowner grazing rights for his cows.
This is work for highly trained robots, a mindless, repetitive operation that has driven succeeding generations of young lawyers to the brink of distraction and that costs Canadian homeowners needless millions every year.
It isn't just the waste of young minds and homeowners’ money that saddens me whenever I go into a land-registry office. It isn't even the fact that the whole operation could be computerized, so that searching a title could become almost as swift and cheap as getting a flight reservation from Air Canada. No, what depresses me most is the fact that we lawyers tend to accept this system as something that can’t be changed, that perhaps shouldn’t be changed, simply because it’s always been done that way.
For me, the land-registry mess symbolizes what’s wrong with far too much of our law: its blind and wasteful attachment to the modes and methods of bygone centuries. Because of this resistance to change, Canadian law is sometimes unjust — too costly, too slow and too inaccessible.
Because we’ve seldom attempted to prune the immense bulk of case law that has accumulated over several centuries, Canadian lawyers now spend a substantial part of their time combing the casebooks — in an attempt simply to find out what the law is. Because of this archaic procedure, justice is not noticeably swifter than it was in Shakespeare’s day. In Toronto last year, for example, two policemen and a sailor they charged with disorderly conduct filed countersuits, each claiming damages from the other for assault. The court’s job, /
continued on page 53
OUR ANTIQUATED LAWS
continued from page 9
Hoary Victorian mystique makes progress seem impudent
essentially, will be to determine who hit whom first and how' much it hurt; but this process is expected to take eighteen months.
Settling traffic-accident claims often takes much longer. If you're injured in the Toronto area, for instance, and if your case goes to court, chances of getting a hearing in less than two years are about one in three. President Kennedy negotiated the nuclear testban treaty in less time than that.
Because legal aid for the indigent has never received the legislative priority it deserves, justice still remains a middle-class luxury. An overworked judiciary and a legal profession that is well-intentioned but not zealous about legal reform are partly to blame, but the basic cause is our failure to treat legal reform as a continuous process. From time to time, press, public and profession combine to attack this specific injustice or that outmoded statute. But we've never learned to regard the law in the same way that, say. Bell Telephone regards its communications system: as a complex machine that must be improved constantly to meet constantly changing needs. Instead, we have surrounded the law with a hoary Victorian mystique that makes progress seem somehow impudent, and that alienates the public it is intended to serve.
Why is a judge “My Lord”?
This mystique is as pervasive as the law itself. Judges wear robes largely because judges have always worn robes. They still retain some lordly prerogatives that seem archaic in the 1960s. They're still referred to as “My Lord“ and, in contempt-of-court cases they have the power to presume guilt until innocence is proven. In an age of credit buying, the buyer must still beware (or, as we lawyers like to say, caveat emptor), largely because the legal principle was established around the time of Wat Tyler’s rebellion. Simple agreements must be obscured by a thicket of medieval jargon, although it doesn’t make the contract any more enforceable than something couched in simple prose. (And does it really enhance the majesty of the law to summons a jaywalker with a document that begins: “These are therefore to command you, in Her Majesty's name, to appear before me . . . ’’?)
There is also a question of obsolete content. In dozens of areas, from divorce procedures to accident liability, changes in the law have failed to keep pace with changes in society.
For example, the law does not require anyone to come to the aid of a drowning man or an accident victim bleeding to death — even if such assistance could be rendered without risk. C enturies ago, when this doctrine emerged, it seemed perfectly logical. In that violent time, the F.nglish courts had enough to do merely preventing flagrant aggression; they felt it advisable not to require positive action to assist people in distress. As a result, if you take a friend out in a rowboat and. through
no fault of yours he falls into the water, you have no obligation under common law to try to save him. This rule seems repugnant to most people today, yet it persists.
As too many Canadians are grimly aware, our divorce laws are similarly outmoded. Probably the majority of Canadians favor w'ider grounds for
divorce (a recent Gallup poll set the margin at seventy-two percent). But adultery remains practically the only ground in most provinces; and in Newfoundland and Quebec there is no provision for divorce at all, except through an act of the federal parliament. Many writers have documented the hypocrisy of this situation.
and the hardship it inflicts on deserted wives and the spouses of the insane. But for me, the chief irony is that the outmoded aspects of our divorce law, imported wholesale from pre-Confederation British law. no longer exist in Britain, which long ago overhauled its divorce law.
Divorce law affects relatively few people. But our law of contracts, which is equally obsolete, affects everyone who has ever made a major
continued on page 55
OUR ANTIQUATED LAWS continued
What’s needed are better safeguards for the unwary buyer
purchase. Our contract law still makes the eighteenth-century assumption that most bargains are struck between parties of roughly equal strength. In an era of vast corporations and high-pressure salesmanship, this means, in effect, that the law is stacked against the individual consumer.
If a fast-talking salesman tells you the payments on a used car will be forty dollars monthly, and then tricks you into signing a contract that will cost you eighty dollars a month, there is usually nothing you can do about it. This is because most form contracts contain a fine-print clause to the effect that all verbal representations are unenforceable unless they are spelled out in the written agreement. He can misrepresent the terms of the agreement or the nature of the goods he’s selling you. But once he has your signature, centuries of commonlaw precedents are on his side.
Common law and common sense
In our credit-card economy, warning people to “read the fine print" isn’t sufficient to guarantee consumer protection. We need some far-reaching changes in our law of contracts. We need to establish a four-day cooling-off period between the time a consumer-credit contract is signed and the time it comes into force. We should also abolish those oral-representation clauses in form contracts: they only encourage legalized fraud. We have needed these safeguards for several decades now, but it may be several decades more before the common law of contract catches up with common sense.
In the criminal-law field, it may take even longer. This is the twentieth century, but the law continues to treat drug addicts, alcoholics, sexual deviates and the medically insane as common criminals. We still persist in punishing such offenders by locking them up in cages, sometimes by whipping them and, in the last resort, we sentence them to “hang by the neck until dead.”
Some of these anachronisms would be humorous if their application weren't so tragic. Through one quirk of precedent, an unborn child is regarded as a legal person in some areas of the law, and as a nonperson in others. A foetus, to simplify the law a bí', may inherit property but it cannot sue for damages. Law students lind this hilarious, but it’s not so funny to six Canadian women whose doctors prescribed thalidomide when they were pregnant in 1961. Their children were born deformed and now they are suing the American company that manufactured the drug.
Will they collect? Perhaps, but the common law has already registered one strike against them. Since it’s the deformed child who is considered the offended party in law, the case may be lost on the ludicrous grounds that the damage was suffered when the child was a foetus — and a foetus cannot collect damages. This is pure surrealism. but it is the very stuff of a common law that hasn’t kept pace
with uncommon developments in the world of medicine.
Taken together, legal anachronisms such as these add up to a startling admission of failure. We live in the most dynamic period in human history, yet our legal institutions are becoming more, not less, resistant to change.
There are many reasons for this failure, but the attitude of the legal profession is one of the main obstacles. In some areas — notably land law — change may be resisted because too many lawyers are making too much money under the status quo. In other fields, obsolescence is tolerated more through a lack of energy than a
lack of good intentions. Bar associations, for instance, are working constantly for legal reform. But their working committees usually meet once a month for dinner and feel they've done their job if their recommendations make the agenda of the next annual meeting. Working at this casual pace, it usually takes years to unite the profession on any single legal reform — and even then there is no guarantee that the government will enact what the lawyers recommend.
OUR ANTIQUATED LAWS continued
The question: how can you use laws you can’t even find?
Meanwhile, the prospects for reform grow slimmer as the sheer hulk and complexity of the law' increase. Our legal system is based largely on the precedent of earlier court decisions, both here and in Britain. '1 hits the older our law' becomes, the fatter it gets. Already there is far too much of it. There are more than 250,000 reported English decisions, and scores of new' ones are added each week. In the United States, the number of reported cases exceeds two million. The figure mounts by twenty-two thousand every month as fifty statecourts systems and the federal judiciary ceaselessly generate new laws-byprecedcnt for the library shelves.
Canadian case law, fortunately, is not nearly so voluminous as its Brit-
ish or American counterparts. But our law, like everything else in our society, draws heavily upon the British and American experience, especially where our own decisional law is limited or nonexistent. In researching a legal problem, a Canadian lawyer must frequently mine the English and American as well as the Canadian authorities. If the plight of the English and American lawyer is a sad one, the Canadian lawyer’s is often worse.
But past court decisions are only part of the law. Legislative bodies from the federal parliament to the village council grind out hundreds of by-laws, orders-in-council, statutes and regulations every week. A compendium of the important statutes of
some provinces — and this is a condensed version, mind you — can fill as many as seventy-five hundred pages of fine print. Regulations made under the authority of these statutes can fill another three thousand pages.
In the face of this legislative deluge, lawyers and judges may on occasion decide cases in ignorance of the law simply because they can’t find it. This is often a mercy, since they then decide the case on the basis of common sense instead. Considering the magnitude of the current information explosion, it’s surprising that it doesn’t happen more often.
If the sheer size of the law is a growing burden for lawyers, it is worse for their clients. One lawyer I know is currently working on a
complex insurance case. His services are worth about twenty-five dollars per hour if you count overhead, and he spent nearly a week researching the case. About a third of his research, he tells me, consisted of sitting in a law library, thumbing through volume after volume in search of previous cases that might be applicable to his client’s problem. In other words, about three hundred dollars of his client’s money was spent, not on actually preparing the case, but merely on hunting down the material to prepare it from! Since the opposing lawyer went through the same paperchase, this means that whoever loses the case will be subsidizing the inbred inefficiency of our legal system to the tune of about six hundred dollars. And even then, there’s no guarantee that either lawyer happened to ferret out all the relevant cases. This process, let me remind you, is repeated hundreds of times every day — each time at some client’s expense.
Computer specialists view this problem as a simple exercise in information retrieval. There are vast areas of the common law that could be stored on memory drums so that, once the relevant facts were inserted, the computer would come up with a list of relevant cases and statutes w'ithin seconds. Several American firms have already begun storing cases on memory drums, and selling the service to lawyers. But nothing like it has happened yet in Canada. To my knowledge, the feasibility of automating our law libraries has never been seriously explored. This fact alone, it seems to me, is a sad commentary on the status of legal reform in Canada.
An additional obstacle is the fact that our legislatures are better suited to making new laws than they are to amending old ones. Debates on international affairs, poverty, social welfare, defense, flags and anthems fill the parliamentary days at Ottawa. Provincial legislatures are preoccupied with municipalities, governments, highways, hospitals and schools. Complex questions of legal reform seldom receive the detailed scrutiny they deserve, because lawmakers are always too busy with more pressing legislative problems. The last session of parliament saw the passage of fiftyfour hills, dealing with everything from the Canadian flag to the Canada Pension Plan. But no laws were passed that would have made existing legislation work better, or would have made justice swifter, cheaper or more accessible.
As these statistics indicate, law reform as a social objective is well down the priority list. In fact, I can’t think of another English-speaking nation whose record in legal reform is so undistinguished. At the present rate of legal change, Canada is well on its way to becoming a judicial backwater. And nothing is so subversive of democracy as a legal system that is unresponsive to the needs of the people it’s supposed to serve.
What can be done about it? The first step is to recognize that law reform is a vast, expensive, and fulltime joh. One of the best ways of getting started would be to establish law-reform commissions on the federal level and in each province.
OUR ANTIQUATED LAWS continued
If we really want reform, we must act
on a dramatic scale
Such commissions would be permanent. well-financed organizations that would scan every aspect of the law, consult interested groups, and find feasible ways of correcting the obsolete, the inefficient and unjust. Britain, New York and California have had such bodies for decades. Ontario set up Canada's first law reform commission in 1964, but its budget and staff are modest and the results so far have been correspondingly small. If we want action, law reform commissions will have to operate on the same dramatic scale as the B & B commission.
We also need a national legal research centre, sponsored by private foundations, government and the bar, to Jo the kind of original thinking that will lead to meaningful reforms. Instead of each law office maintaining its own library, why couldn’t research facilities be centralized and automated, to make legal research faster and cheaper? Should some areas of jurisprudence — family law, for instance — be removed from the courts altogether and be handled by some new, more flexible form of tribunal? Couldn't we rewrite our labyrinthine law' of contracts? These are some of the questions a well-financed research centre could tackle. Certainly, they must be tackled by someone, and tackled soon.
We should also abolish the ancient legal principle of stare decisis, which compels Canadian appeal courts to follow their own past decisions. There is no more creative force for legal reform than a panel of judges who are free to acknowledge that yesterday’s verities may be the errors
of today. As it is. the Canadian Supreme Court must invent "exceptions” to outmoded court rulings if it wishes to tailor new law to contemporary conditions. Why not abandon this self-imposed pretense of judicial infallibility, as the U. S. Supreme Court has done? If an old rule seems inapplicable to present conditions,
then why could we not simply say so?
Finally, it is time we streamlined much of our existing common law by summarizing it in legal codes that would be enacted as statutes by the federal and provincial legislatures. We have already codified our criminal law, our tax and company law; it’s about time we did the same with the
law of contracts, torts and land law.
If we’d started thinking about it five or six years ago. a crash program of codification would have made an ideal Centennial project, one whose benefits would have endured long after many of the Expo 67 buildings are torn down and the Centennial train has rolled its last mile. We’ve missed the chance now, of course. But 1 hope, for the sake of the law itself, that we get around to it before our second Centennial. ★