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Judicial Administration in Canada
September 15/08
Carl Baar
Ian Greene
Judicial Administration in Canada
September 15/08
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Introductions
Overview of course
Sign up for readings
The Study of Judicial Administration
Exodus, Ch 18
Discussion of Roscoe Pound article
Discussion of McCormick, Ch 1 & 2
Discussion of Millar & Baar, Ch 1 & 2
Exodus Chapter 18, 13-27
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13 Now on the day after, Moses took his seat to give
decisions for the people: and the people were waiting
before Moses from morning till evening.
14 And when Moses' father-in-law saw all he was doing,
he said, What is this you are doing for the people? why
are you seated here by yourself, with all the people
waiting before you from morning till evening?
15 And Moses said to his father-in-law, Because the
people come to me to get directions from God:
16 And if they have any question between themselves,
they come to me, and I am judge between a man and
his neighbour, and I give them the orders and laws of
God.
17 And Moses' father-in-law said to him, What you are
doing is not good.
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18 Your strength and that of the people will be
completely used up: this work is more than you are able
to do by yourself.
19 Give ear now to my suggestion, and may God be
with you: you are to be the people's representative
before God, taking their causes to him:
20 Teaching them his rules and his laws, guiding them
in the way they have to go, and making clear to them
the work they have to do.
21 But for the rest, take from among the people able
men, such as have the fear of God, true men hating
profits wrongly made; and put such men over them, to
be captains of thousands, captains of hundreds and of
fifties and of tens;
22 And let them be judges in the causes of the people
at all times: and let them put before you all important
questions, but in small things let them give decisions
themselves: in this way, it will be less hard for you, and
they will take the weight off you.
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23 If you do this, and God gives approval, then
you will be able to go on without weariness, and
all this people will go to their tents in peace.
24 So Moses took note of the words of his
father-in-law, and did as he had said.
25 And he made selection of able men out of all
Israel, and made them heads over the people,
captains of thousands, captains of hundreds and
of fifties and of tens.
26 And they were judges in the causes of the
people at all times: the hard questions they put
before Moses; but on every small point they
gave decisions themselves.
27 And Moses let his father-in-law go away, and
he went back to his land.
Roscoe Pound
1870-1964
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“American jurist, botanist, and educator, chief advocate
of “sociological jurisprudence” and a leader in the reform
of court administration in the United States. After
studying botany at the University of Nebraska and law at
Harvard (1889–90), Pound was admitted to the
Nebraska bar, and he practiced law while also teaching
at Harvard.” (Encyclopedia Britannica). He became
Dean of the Harvard Law School. He was a leader in the
“judicial realist” movement.
1906 article, “The Causes of Popular Dissatisfaction with
the Administration of Justice,” led to the study of judicial
administration in the U.S., and later in Canada
Dissatisfaction with any legal
system
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mechanical operation of the rules
friction between law and public opinion
perception that administration of justice is
easy and anyone can do it
impatience of any restraint
Dissatisacation with the AngloAmerican system
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individualist spirit
legal contest is a contentious procedure, which
turns litigation into a game (& judge merely
umpire)
political jealousy put on the system by principle
of supremacy of law
no generally accepted school of jurisprudence,
resulting in tinkering where comprehensive
reform is needed
the bulk of the legal system is based on case law
(rather than a code)
American judicial organization and
procedure is archaic
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multiplicity of courts
preservation of concurrent jurisdictions
waste of judicial power that all this
involves
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rigid districts of courts or jurisdictions
consuming time with pure practice
unnecessary re-trials
Environment of judicial
administration
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popular lack of interest in justice (jury duty a bore)
strain on law because it is also expected to teach
morality
effect of transition to a period of (more intense and
poorly-thought-out or worded) legislation (and
programs). When the legislated policy doesn’t work, the
courts get blamed. (Refugee policy, a current example?)
putting courts into politics
legal profession is a trade: employer-employee relations
replace lawyer-client relations
public ignorance caused by inaccurate or sensational
reporting
Conclusion
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In spite of all this, courts are not corrupt.
In fact, they are better than 200 years
ago. Because our law schools are so
good, and with assistance of social
sciences, and active bar associations, “we
may look forward to a near future when
our courts will be swift and certain agents
of justice, whose decisions will be
acquiesced in a respected by all.”
McCormick, Ch 1 & 2
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How Peter McCormick got interested in the
justice system
A social scientist’s analysis of Canada’s courts
Chapter 1: Courts, Law & Society
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Judicial process is embedded in social & political
reality
Most books on courts deal with appeal decisions, but
fewer than 1% appealed
Western concept of law: 1) distinct way of thinking –
define terms, & strip away irrelevant facts. 2) focus
on rules. 3) argue by analogy. 4) procedural
emphasis, which leads to delay.
McCormick Ch. 2
The Courts & the Public
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The public has an ambivalent attitude towards
courts
Generally satisfied with lawyers they’ve hired
Not happy with unnecessary delays and expense
of going to court
Courts seen as biased in favour of wealthier
Canadians, but only a minority of Canadians
have had contact with a court
Millar & Baar, Ch 1
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The caseload crisis in courts and tribunals
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Causes
Cures
Goal displacement
Are courts and tribunals designed to serve the
public, or the professionals that use them?
How should courts and tribunals be
reformed?
Why are reforms usually delayed?
Millar & Baar Ch 1 continued
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Historical moments in reform of
administration of courts & tribunals
Need for a management philosophy for
judges and members of tribunals
Can adjudicative and administrative
responsibilities be clearly separated?
Millar & Baar Ch 2
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History of courts explains current structures
The goals of courts
Theories of jurisprudence
Models of organization
Courts & tribunals as organizational systems
Bureaucracy
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Equal treatment of all employees
Reliance on expertise relevant to the position
Positions designed for organization, not incumbents
Standards of work and outputs
Maintain records
Establish rules & regulations that serve the interests of the organization
Rules are binding on managers as well as employees (legal
relationships)
Can adjudicators work effectively in a bureaucratic setting?
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