Dear Colleagues:
I would be interested in your views on
the following (which
is related to our earlier discussions but abstracted away for them or
from any particular
judge past or present). Let’s assume
that your faculty has a grading system that dictates that you should
give marks
in the following manner. If you consider the work to be excellent it is
to be
given an A, if it is merely good a B, if it is competent a C, and if it
is
unsatisfactory an F. You have read a
student’s exam (which is indicated by only a number so it is anonymous)
and given
it a B because you honestly believe that the work is merely good and
not
excellent. The student comes to you in your office.
Situation One:
The student explains that she comes from a poor family and is in
danger
of losing her scholarship if she does not receive an A in your course. If she loses her scholarship she will be
unlikely to continue on and to finish her law degree. She asks if you
will
re-read her exam. You re-read her exam and conclude that in your best
judgment
it is a B at the lower end of the scale. Because of her situation you
give her
an A anyway.
Situation Two:
The student is one of your nicest students, the kind who is
always
agreeable in class, asks helpful questions, gives very good answers
when
prompted, etc; the kind you would have thought would get an A. She asks
if you
will re-read her exam. You re-read her exam and conclude that in your
best
judgment it is a B at the lower end of the scale. You give her an A
anyway
since she is such a nice kid.
Situation Three:
The student is generally a good student but has lawyers for
parents and
is very aggressive in asserting her claims. In fact, you know that she
will
appeal her mark if she is not given an A. She has appealed four times
before
and lost three of these times. She asks if you will re-read her exam.
You
re-read her exam and conclude that in your best judgment it is a B at
the lower
end of the scale. You give her an A anyway because you know that
although you
will most likely win the appeal, preparing for the appeal will eat up a
week or
two you could better use as a vacation.
Some questions:
- In your opinion is the marker acting appropriately in
any of
these cases in giving an A?
- Could the employer, other faculty members
or other students
be legitimately aggrieved with the marker?
- Would it be fair to say that the
marker is not marking in good faith?
- If the marker told the other students what
he had done would that diminish their faith in the system of marking as
a
whole?
My intuitive answer is that: (1) the
marker is acting inappropriately,
(2) the employer, colleagues and other students would have a legitimate
grievance,
(3) the marker is not marking in good
faith since they are deliberately deviating from the rules and
introducing
factors which appear irrelevant into their decision making process;
& (4) if
this were known to the other students this would cause them to be
(corrosively)
skeptical of the whole marking system and the marks they get from
everyone
else.
The final point, and this is where
many might disagree (if
they don’t already) is that the situation of the marker is analogous to
that of
a first instance or intermediate appellate court judge in the face of a
clearly
binding precedent of the highest appellate court (in their
jurisdiction).
To use a Canadian example, you are
faced with a case where
all the requirements for a promissory estoppel are met (clear promise,
reasonable reliance, which is massively detrimental, no inequity, etc)
except that
the plaintiff is trying to use the doctrine as a cause of action, a
move
prevented by binding authority (see eg, Canadian
Superior Oil, [1970] S.C.R. 932). My intuitive answer would be that
a trial
or intermediate appellate court judge, if they honestly could find no
relevant reason
to distinguish the case, would have to dismiss the plaintiff’s claim
even if she
thought that justice or fairness or social policy would be better
served by
allowing the claim.
Thoughts?
--
Jason Neyers
Associate Professor of Law &
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435