Reflections on State Liability: Judge Posner on Judicial Verbosity

One of the issues that has bedevilled common law courts is the law of state liability: when does official misconduct give rise to a right of action in damages? Various answers have been given. Usually there is a threshold test of proximity, related in some way to the statute that empowers the decision-maker. And there is usually a blanket exclusion of liability in some circumstances, for what are sometimes described as non-justiciable or policy decisions.

In his recent book, Reflections on Judging, Richard Posner takes aim at the problem of complexity. Some of this complexity is external, caused by technological change for example. But much of it is internal to the legal system, created by lawyers and judges in order to mask rather than to manage external complexity.

One of his examples is the six-factor test "enumerated by one of the courts of appeals for when government can be held liable for depriving a person of life, liberty or property without due process of law by placing the person in a position of danger" (p. 118).

Of the test Posner says:

It should be quite enough, eschewing the jargon of "proximate harm" and "conscious disregard" and "conscience shocking", to say that government employees acting within the scope of their employment violate the due process clause when they commit a reckless act that causes injury, provided that the act is directed at or with reference to the victim (or a group to which the victim belongs) rather than being an allocative judgment that results in injury, as where the judgment of the police in allocating more police resources to one part of town than to another part is challenged (p. 119).

Posner's formulation is not self-applying. He uses words like "scope", "reckless" and "allocative". Applying them is likely to be difficult. That, however, is part of Posner's message. Deciding these cases requires judgement. Multi-factor tests mask this reality and distract judges and jurists.

He may well be right. Consider a leading (and oft-criticized) Canadian case on state liability: Brown v. British Columbia, [1994] 1 SCR 420. The plaintiff skidded on an unsanded road early on an icy November morning. Had a sand truck been sent out earlier the accident would not have happened. The reason the sand truck remained in the garage was that the government agency was still on a summer schedule even though it was November. But the unusual length of the summer schedule was the result of negotiations with a union.

Liability or no liability? The case turned on the policy-operational distinction, which at this time was how Canadian courts determined whether "allocative" decisions could give rise to liability. The answer given (no liability) is not important for present purposes. Brown is a difficult case because it involved a clash between the individual interests of motorists and the collective interests of unionized employees (and even this formulation might understate the difficulty of the case). Enumerating criteria to determine whether the decision was "allocative" might simply create further confusion.

This is not to suggest that judicial judgement should not be described or confined, or even that Posner is right about state liability. Sometimes verbal tests add a layer of complexity to an already complex situation. Anyone who followed the Canadian courts' travails in distinguishing reasonableness from patent unreasonableness will know instantly what I mean. Hiding judicial judgement behind judicial verbosity is never the solution.