1. Judicial Administration in Canada September 15/08 Carl Baar Ian Greene

2. Judicial Administration in Canada September 15/08 Introductions Introductions Overview of course Overview of course Sign up for readings Sign up for readings The Study of Judicial Administration The Study of Judicial Administration Exodus, Ch 18 Exodus, Ch 18 Discussion of Roscoe Pound article Discussion of Roscoe Pound article Discussion of McCormick, Ch 1 & 2 Discussion of McCormick, Ch 1 & 2 Discussion of Millar & Baar, Ch 1 & 2 Discussion of Millar & Baar, Ch 1 & 2

3. Exodus Chapter 18, 13-27 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.

4. 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.

5. 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.

6. Roscoe Pound 1870-1964 “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. “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.sociological jurisprudencesociological jurisprudence 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 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

7. Dissatisfaction with any legal system mechanical operation of the rules mechanical operation of the rules friction between law and public opinion friction between law and public opinion perception that administration of justice is easy and anyone can do it perception that administration of justice is easy and anyone can do it impatience of any restraint impatience of any restraint

8. Dissatisacation with the Anglo- American system individualist spirit individualist spirit legal contest is a contentious procedure, which turns litigation into a game (& judge merely umpire) 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 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 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) the bulk of the legal system is based on case law (rather than a code)

9. American judicial organization and procedure is archaic multiplicity of courts multiplicity of courts preservation of concurrent jurisdictions preservation of concurrent jurisdictions waste of judicial power that all this involves waste of judicial power that all this involves rigid districts of courts or jurisdictions rigid districts of courts or jurisdictions consuming time with pure practice consuming time with pure practice unnecessary re-trials unnecessary re-trials

10. Environment of judicial administration popular lack of interest in justice (jury duty a bore) popular lack of interest in justice (jury duty a bore) strain on law because it is also expected to teach morality 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?) 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 putting courts into politics legal profession is a trade: employer-employee relations replace lawyer-client relations legal profession is a trade: employer-employee relations replace lawyer-client relations public ignorance caused by inaccurate or sensational reporting public ignorance caused by inaccurate or sensational reporting

11. Conclusion 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.” 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.”

12. McCormick, Ch 1 & 2 How Peter McCormick got interested in the justice system How Peter McCormick got interested in the justice system A social scientist’s analysis of Canada’s courts A social scientist’s analysis of Canada’s courts Chapter 1: Courts, Law & Society Chapter 1: Courts, Law & Society Judicial process is embedded in social & political reality Judicial process is embedded in social & political reality Most books on courts deal with appeal decisions, but fewer than 1% appealed 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. 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.

13. McCormick Ch. 2 The Courts & the Public 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

14. Millar & Baar, Ch 1 The caseload crisis in courts and tribunals The caseload crisis in courts and tribunals Causes Causes Cures Cures Goal displacement Goal displacement Are courts and tribunals designed to serve the public, or the professionals that use them? Are courts and tribunals designed to serve the public, or the professionals that use them? How should courts and tribunals be reformed? How should courts and tribunals be reformed? Why are reforms usually delayed? Why are reforms usually delayed?

15. Millar & Baar Ch 1 continued Historical moments in reform of administration of courts & tribunals Historical moments in reform of administration of courts & tribunals Need for a management philosophy for judges and members of tribunals Need for a management philosophy for judges and members of tribunals Can adjudicative and administrative responsibilities be clearly separated? Can adjudicative and administrative responsibilities be clearly separated?

16. Millar & Baar Ch 2 History of courts explains current structures History of courts explains current structures The goals of courts The goals of courts Theories of jurisprudence Theories of jurisprudence Models of organization Models of organization Courts & tribunals as organizational systems Courts & tribunals as organizational systems Bureaucracy Bureaucracy Equal treatment of all employees Equal treatment of all employees Reliance on expertise relevant to the position Reliance on expertise relevant to the position Positions designed for organization, not incumbents Positions designed for organization, not incumbents Standards of work and outputs Standards of work and outputs Maintain records Maintain records Establish rules & regulations that serve the interests of the organization Establish rules & regulations that serve the interests of the organization Rules are binding on managers as well as employees (legal relationships) Rules are binding on managers as well as employees (legal relationships) Can adjudicators work effectively in a bureaucratic setting? Can adjudicators work effectively in a bureaucratic setting?