Abstract
This chapter proposes that complexity of the law inspires litigation strategies. The chapter illustrates through reference to different areas and jurisdictions, but does not prove, the central contention that the legal system has become so complex that the rule of law has been damaged to the point where the system has become detached from the subjects it is meant to serve. The chapter points to the absence of a remedy by the legal system itself against these systemic flaws and consequently the legal strategies exploiting them, and propounds that litigation strategy is distinct from strategy merely embraced in litigation.
The paper is a reflection on the complexity of law and presents some general examples of intra-systemic failures of the litigation process, with particular focus on those caused by delay. The paper proposes that the legal system fails both in concept and in practice in that the system is incapable of administering its own complexity and provides no remedy against itself.
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Notes
- 1.
A definition and approach advocated by Slavoj Zizek. For comprehensive discussion see S. Zizek, The Parallax View (MIT Press, 2006).
- 2.
For additional discussion on strategic opportunities that arise out of the difference between what legal norms should be and what they are in practice due to for example, “hazy law” and “crazy law”, see A. Masson, “The Origin of Legal Opportunities” (2009), Chap. 3 of this text [Masson].
- 3.
The division of the profession into barristers and solicitors continues to be practiced in a number of jurisdictions. For further critique on the need for such a distinction in the UK see J. R. Spencer Jackson’s Machinery of Justice, 8th ed. (Cambridge University Press, 1989) 353.
- 4.
For further discussion on the impact of the shared background between lawyers and judges on judgments see, B. Barton, “Judges, Lawyers and a Predictive Theory of Legal Complexity” (2008) University of Tennessee Legal Studies Research Paper No. 31 [Barton].
- 5.
Also seen as “by-law” or “bylaw”.
- 6.
Other Member States of the EU would have variants of the sources of law as listed.
- 7.
For further discussion of the historical background to the Icelandic parliament see R. Cleasby, G. Vigfússon, and A. Craigie, An Icelandic-English Dictionary, 2nd ed. (Clarendon Press, 1957) 405.
- 8.
T. Buck, “Standard Bearer – How the European Union Exports its Laws”, The Financial Times, (10 July 2007) 13.
- 9.
See E. Kolbert, “Comment – Midnight Hour”, The New Yorker, (24 November 2008) 39, online: http://www.newyorker.com/talk/comment/2008/11/24/081124taco_talk_kolbert.
- 10.
For discussion on “flexible law” see Masson (n 2) 2.2.4.
- 11.
Johnson v. The Medical Defence Union Ltd. (2) [2006] EWHC 321 (Ch) (03 March 2006).
- 12.
Ibid para. 123.
- 13.
D. Samuels, “Dr. Kush. How Medical Marijuana is Transforming the Pot Industry”, The New Yorker, (28 July 2008) 49, online: The New Yorker http://www.newyorker.com/reporting/2008/07/28/080728fa_fact_samuels?currentPage=all.
- 14.
P. Charleton in “Lies in a Mirror: an Essay on Evil and Deceit” (2006 Blackhall Publishing) 48–49.
- 15.
See above Sect. 16.2.2, “Complexity in Source”.
- 16.
As an example, take the following sentence from a judgment of the European Court of Human Rights: “The fact that the permits fell within the ambit neither of the second sentence of the first paragraph nor of the second paragraph does not mean that the interference with the said right violated the rule contained in the first sentence of the first paragraph”. Sporrong v. Sweden (1983) 5 EHRR 35 (ECHR) 69.
- 17.
See for example, Barton (n 4); See also discussion in P. Nayler, Business Law in the Global Marketplace (Butterworth-Heinemann, 2005) 3.
- 18.
See discussion by Lynn LoPucki concerning what he describes as the law in lawyers’ heads: “Law exists in the minds of lawyers in a form separate and critically different from its form on the books” in L. M. LoPucki, “Legal Culture, Legal Strategy, and the Law in Lawyers’ Heads” (1996) 90 Nw. U. L. Rev. 1527 and in L. M. LoPucki, and W. O. Weyrauch, “A Theory of Legal Strategy” 2000 49(6) Duke Law Journal 1405, an edited reprint in this text at Chap. 4; See also discussion on “hazy law” in Masson (n 2) 2.2.2.
- 19.
For detailed administrative statistical breakdowns, please see Court Services of Ireland online: Courts Service of Ireland http://www.courts.ie; The wrong of delay has been addressed in principle since at least the thirteenth century. In Chapter 40 of The Magna Carta, John, King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, on 15 June 1215 at Runnymede agreed: “To none will we sell, to none deny or delay right or justice”. (Emphasis added). The phrase “justice delayed is justice denied” embraces only a single element of this. It is commonly attributed to Gladstone, but William Penn used it in 1693 (“to delay justice is injustice”). The Magna Carta addresses the two elements of time and money, but money only in so far as it is direct payment to the decision maker.
- 20.
See for example, Office of the Comptroller and Auditor General, Special Report 63: Tribunals of Inquiry Summary, online: Special Report 63 http://www.audgen.gov.ie/viewdoc.asp?DocID=1134.
- 21.
Assistant Legal Adviser Jeffrey Kovar, speech to US Chamber of Commerce, on forum-shopping (25 March 2004) explains the concept as “In Europe, as I understand it, it is known as launching the ‘Italian Torpedo’ to rush into Italian court and file a declaratory judgment action of no liability when you fear you are about to be subject to suit. Because Europe has a strict first-in-time lis pendens rule for dealing with parallel lawsuits, the action will not be permitted to go forward elsewhere. The company that fires the ‘torpedo’ can then expect that the case will be tied up so long in the Italian courts that it is effectively shielded indefinitely from liability”. Online: 54. Assistant Legal Adviser http://www.state.gov/s/l/2004/78290.htm.
- 22.
The Consolidated Version of the Treaty Establishing the European Community, EN 24.12.2002 Official Journal of the European Communities C 325/5, Article 234: “The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon”.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.
- 23.
Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 with Protocol Nos. 1, 4, 6, 7, 12 and 13, [European Convention on Human Rights] Art. 6(1).
- 24.
Ibid Arts. 5(3) and 5(4).
- 25.
Council of Europe, European Court of Human Rights, Survey of Activities (2006) 3, online: echr.coe.int http://www.echr.coe.int/NR/rdonlyres/69564084-9825-430B-9150-A9137DD22737/0/SurveyofActivities2006.pdf.
- 26.
European Convention on Human Rights (n 23), Article 26 provides that “the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken”.
- 27.
Note: The original Italian case dates back to 1989. The case was originally lodged with the Commission and was transferred to the Court in 1998 so perhaps a figure of 7 years is a fairer estimate of the delay before that Court.
- 28.
The cases were as follows: Sabin Popescu v. Romania, no. 48102/99; Croitoru v. Romania, no. 54400/00; Prodan v. Moldova, no. 49806/99; Sîrbu and others v. Moldova, nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01; Luntre and others v. Moldova, nos. 2916/02, 21960/02, 21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02, 21953/02, 21943/02, 21947/02 and 21945/02; Pasteli and others v. Moldova, nos. 9898/02, 9863/02, 6255/02 and 10425/02; Bocancea and others v. Moldova, nos. 18872/02, 20490/02, 18745/02, 6241/02, 6236/02, 21937/02, 18842/02, 18880/02 and 18875/02; Croitoru v. Moldova, no. 18882/02; Ţîmbal v. Moldova, no. 22970/02; Shmalko v. Ukraine, no. 60750/00; Zhovner v. Ukraine, no. 56848/00; Piven v. Ukraine, no. 56849/00; Voytenko v. Ukraine, no. 18966/02; Romashov v. Ukraine, no. 67534/01; Bakalov v. Ukraine, no. 14201/02; Bakay and others v. Ukraine, no. 67647/01; Mykhaylenky v. Ukraine, nos. 35091/02, 35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02 and 42814/02; Derkach and Palek v. Ukraine, nos. 34297/02 and 39574/02; Metaxas v. Greece, no. 8415/02; Zazanis and others v. Greece, no. 68138/01; Mancheva v. Bulgaria, no. 39609/98; Wasserman v. Russia, no. 15021/02; and Qufaj Co.Sh.P.K. v. Albania, no. 54268/00.
- 29.
See also discussion by Ministry of the Attorney General, Ontario Civil Justice Review, First Report (March 1995) Chapter 12, “Backlog”, online: Ministry of the Attorney General http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjr/firstreport/default.asp.
- 30.
D. W. Halston, “The Meaning of the Massachusetts ‘Open Courts’ Clause and its Relevance to the Current Court Crisis” (2004) Vol. 88 n. 3 Massachusetts Law Review.
- 31.
Constitution of the Commonwealth of Massachusetts, Article XI.
- 32.
See Commission notice on agreements of minor importance which do not appreciably restrict competition under Art 81(1) of the Treaty establishing the European Community (de minimis), 2001/C 368/07.
- 33.
[1991] NZLR 707.
- 34.
[1991] NZLR 707, 711 (emphasis added).
- 35.
But note Case C-234/04 Kopferener v. Schlank and Schick [2006] ECR I-2585 at paras. 19–24 where a national decision is subsequently clearly contrary to EC law, res judicata and the principle of legal certainty protect it from set-aside.
- 36.
M. Murphy, “Tajikistan Case Set to Test Fee Records”, The Financial Times (1 May 2008).
- 37.
M. Murphy, “Time to Stop the Lawyer’s Clock”, The Financial Times (20 May 2008).
- 38.
Ibid.
- 39.
Legal strategies such as this are as old as the law itself. David Daube sets out examples from early Roman law of two mechanisms used in many ways to avoid what the law intends – the swap of an alternative transaction to the one restricted, and the interposita persona or man of straw, stating: “Essentially, all circumventions of a law are misinterpretations”. See D. Daube, “Dodges and Rackets in Roman Law”, D. Cohen, and D. Simon eds., Collected Studies in Roman Law, volume 2 (Klostermann, 1991) 1081–1082.
- 40.
A judge of the Irish High Court recently called for the State to set up a scheme to meet the legal costs of people caught up in litigation of significant public importance. These comments were made in the context of a case that had originated in small claims court (the speediest, most informal court in the Irish system) concerning a claim for €130.50 and ended up in the High Court on a point of law which would affect 34,000 householders. The referral to the High Court made it difficult for the original litigant to contest the action due to the cost, and she applied for a guarantee for costs irrespective of outcome. However, Clarke J. ruled that the Court lacked the power to make such an order. Rosborough & Anor. v. Cork City Council [2008] IEHC 94 (High Court).
- 41.
European Commission, Pharmaceutical Sector Inquiry Preliminary Report, DG Competition Staff Working Paper IP/08/1829 (28 November 2008), online: Europa http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/preliminary_report.pdf.
- 42.
(1992) 42 Duke Law Journal 1; Other examples include: Barton (n 4); E. Kades, “The Laws of Complexity and the Complexity of Laws: The Implications of Computational Complexity Theory for Law” (1997) 49 Rutgers Law Review 403; and J. Stempel, “A More Complete Look at Complexity” (1998) 40 Arizona Law Review 781.
Acknowledgments
Thanks are due to the editors Antoine Masson and Mary J. Shariff for allowing time despite my delay! Thanks are also due for research assistance to John Danaher, of University College Cork and Aoife MacArdle of Trinity College Dublin. Thanks finally to the Irish Jurisprudence Society at the inaugural session of which some of the thoughts (the more abstract ones) behind this paper were presented and debated.
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Phelan, D.R. (2009). The Effect of Complexity of Law on Litigation Strategy. In: Masson, A., Shariff, M. (eds) Legal Strategies. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-02135-0_16
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