Munyonzwe Hamalengwa is a Ph.D candidate at Osgoode Hall Law School.
There are millions of words that have been written both by conservative and progressive judges, lawyers, scholars, political scientists, social scientists, historians and journalists on various judicial philosophies and interpretative doctrines, but the influence of the status of the litigant in influencing judicial decision making has rarely been theorised, analysed and documented.
Judging is also personal, “in the sense that judges’ personal attributes including background characteristics such as race and sex; personality traits such as authoritarianism and professional and life experiences, such as having been a prosecutor or having grown up in turbulent times-influence judging”, according to conservative Judge Richard A. Posner. There is also a nonpolitical and nonpersonal dimension to judging: the “legalist” factor which is the neutral application of the rules not made up for the occasion to facts fairly found.
According to Posner, legalism however fails at a deeper level to refute the hypothesis that political and personal leanings influence judicial decisions in cases that arise in “dauntingly complex, uncertainty-riven legal system”. Most constitutional and statutory provisions are open-ended and can be read in different ways- this is certainly true of many of the provisions found in our intellectual property statutes. Most are written that way deliberately to allow for the discretionary judicial interpretation that takes into account the myriad factual situations that arise.
It is the thesis of this blog that apart from the political, personal and legalistic factors that push the judge to judge one way or the other, the status of the litigant or litigant-related factors also influence the trajectory of the decision-making process. If judges can decide a case, taking into account the political consequences of their decisions, so do they decide cases with a view to the consequences for the particular litigant.
Could there be cases in intellectual property law that are litigant-propelled? This is a good area for future research. Feminists have in the recent past deconstructed that intellectual property law has historically discriminated against women. Intellectual property law has been designed by men to propagate male-oriented and male-serving intellectual property regimes. It is logical that these male oriented intellectual property regimes would be more friendly and has historically been more friendly to male litigants. In his book, The Spinster and the Prophet, Mckillop tells the compelling story of Florence Deeks, who lost her legal battle against H.G. Wells in spite of significant evidence of unauthorized copying.
Was the intellectual property law case of the Law Society of Upper Canada decided by the Supreme Court of Canada decided the way it was (allowing the LSUC to copy and distribute copyrighted materials) because of the litigant status of the Law Society as a group of lawyers and judges as lawyers? Is it possible that Supreme Court Judges were more sympathetic to the members of the legal community than they would have been to a different user group?
Was the Da Vinci Code case decided the way it was because of the litigant status of Dan Brown, the author of the Da Vinci Code, who had grown astronomically successful in the world of authorship? The book became a brand name and he became a publishing empire. He became too big to be destroyed. Could the courts disturb that phenomenon?
These are questions that are worth exploring and they lend themselves to analysis based on the “litigant-propelled” or “litigant status” schema.