GS/Law 6761March 27 2010

Instructor: Ian Greene

: Research issues

If conducting interviews, fill out a research ethics form on the Faculty of Graduate Studies web page Ensure anonymity of interviews There needs to be “informed consent” to conduct

the interview Through an informed consent form or a letter

See http://www.yorku.ca/grads/policies/ethics.htm

Saturday, March 27, 2010Beyond the classics: Public Choice,

Organizational Theory, Performance Evaluation, Judicial Discretion, Judicial ActivismPublic Choice TheoryOrganizational TheoryEvaluationDiscretionJudicial decision-makingCharter dialogueJudicial ActivismConclusion

Jerry Mashaw on Public ChoiceJerry Mashaw: Greed, Chaos and

Governance: Using Public Choice to Improve Public Law (1997) Jerry L. Mashaw is Sterling Professor of Law at Yale Law School, where

he teaches courses on administrative law, social welfare policy, regulation, legislation, and the design of public institutions. His many books include Administrative Law: Introduction to the American Public Law System, Bureaucratic Justice (1983), and Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997).

Public Choice TheoryPublic choice theory is the uses theory from the discipline of

economics to attempt to provide insights into the public policy and judicial system process.

In general, public choice treats members of the public, elected officials, and members of the executive as motivated primarily by self-interest. In some ways, public choice theory is similar to Bentham’s theories of utilitarianism. Public choice theorists employ 3 major approaches, “voting theory,” “interest group theory,” and “game theory.” (All are mathematical studies of strategic interactions amongst people).

There may be some parallels between conclusions of public choice theory, and the judicial test of the “rational man” or “rational person.”

The following pages summarize the contributions of 3 major public choice theorists who wrote prior to Mashaw.

Kenneth ArrowNobel prize in economics, 1972His research analyses the making of decisions

using imperfect information, and the bearing of risk.

Election results rarely, if ever, represent “the public will.” There are too many variables that enter into the voting decision, and choices are malleable.Studies have shown that human being like to express

opinions even if they are not solid opinions. Eg. Studies about public ownership of electrical utilities.

George StiglerNobel prize in Economics, 1982Developed the “capture” theory. Government

regulatory agencies are prone to being “captured” by so that these groups can attempt to impact the enactment of laws and regulations in a self-interested way.

He also argued that most costs of production are relatively small, and companies don’t worry about small costs. The result is that they don’t worry about total costs very much, and thus fail to maximize profits. Most enterprises are therefore inefficient.

James BuchananNobel prize in economics, 1986Judges ought to apply U.S. “founding principles” –

judicial independence, separation of powers, protections of original individual rights – to counteract selfish tendencies of human nature.

“People who were supposed to know didn't really know what democracy was about…”

“We were taking the tools of economics, looking at something like the structure of American politics in the way James Madison had envisioned it. That is, it was clearly not a majoritarian democracy, which would be the parliamentary model.…”

“We were the first to start analyzing the Constitution from an economic point of view. … I considered us to be simply writing out in modern economic terms more or less Madison's framework of what he wanted to do, as opposed to anything new and different.”

MashawThe first part of the reading in the course kit is a

brief explanation of how one of the branches of public choice theory operates – “voting theory.” Although highly speculative, the mathematical calculations based on behavioral assumptions indicate that elections are very imperfect reflections of the “public will.” Therefore, those who criticize judicial review for countering “the will of the majority” are making faulty assumptions about election results.

The second part of the reading summarizes some of the insights Mashaw says that public law can gain from public choice theory.

MashawVoting theory indicates that legislation is not

necessarily a true indication of the consensus of the legislature. It is susceptible to reflecting the will of special interest groups.

Game theory suggests both that legislative changes and judicial decisions may not lead to compliance.

Interest group influence needs to be checked. How?

Leaders of federal bureaucracies ought to make important political decisions. Bureaucratic controls in the executive ensure greater accountability than in the elected branches. Bureaucrats need enough independence to be protected from “capture.”

MashawPoliticians are prone to serving particular

interests. Eg a California law that prohibited retail car dealerships within 300 miles of existing ones – clear attempt to placate existing dealers. But the Court was persuaded that this was a reasonable attempt to prevent unfair trade practices!

Courts should attempt to serve the “public interest” when there is doubt. As per Arrow, elections do not necessarily reflect the “public interest.”

People act from both altruistic and selfish motives.

Barker and Kernaghan: Organizational TheoryHilary Blain

Martin FriedlandDavid Gisser

Martin Friedland, University of Toronto

Janice Gross SteinJohn Mayr

Janice Gross Stein, University of Toronto

Margaret AllarsKumar Sriskanda

Margaret Allars, University of Sydney

McCormick & GreeneDelia Lewis Peter McCormick: B.A. (Alberta), M.A. (Toronto), D.Phil. (LSE)Peter McCormick grew up in Lacombe, Alberta. He graduated

from the University of Alberta in 1968, received his Master's degree from the University of Toronto in 1969, and graduated from the London School of Economics and Political Science in 1974. His Ph.D dissertation was entitled "Social Contract and Political Obligation: A Critique and Reinterpretation.”

Appointed to the Department of Political Science at the University of Lethbridge in 1975. He was Chair of the Department from 1980 to 1985, and became Chair again in 1996. His research interests include appellate courts, the constitutional law of federalism, political parties and voting behavior, provincial politics, and political theory.

Peter McCormick, Canada’s CourtsMegan Marrie “Winning and Losing in

Canada’s Courts”This chapter first appeared as a journal articleFeatured on page 1 of Globe and Mail: “judges

biased”G&M editorial: shoddy researchMy interviews at SCC: research service had

read original article and advised judges that G&M summary was very inaccurate

Greene, Baar, McCormick, Szablowski & ThomasLisa Mallia: Final Appeal: “The Human

Elements of Judicial Decision-making”

Hogg and Bushell: Charter DialogueBrian Blummenthal

Knopff & MortonCharter PoliticsTom Jarmyn

Ted Morton, MLA, Alberta (formerly University of Calgary)

James Kelly: Governing with the CharterJames Young

Greene: The CourtsIan Greene: “The Courts and Democracy”Ciaran Buggle

Court decisions have always had an impact on public policy. To what extent have these decisions promoted

democratic values of inclusiveness & participation? Are courts representative of diversity of Can society? To what extent do they facilitiate appropriate

participation? Are courts responsive to public demand for fair,

impartial, expeditious dispute-resolution services?

Montesquieu’s description of separation of powers too simplistic. Judges need appropriate control over court administration

or executive could interfere with judicial impartialityCourts need to be accountable for the quality of work they

do – if accountabily means “ability to demonstrate publicly the quality of one’s work”

Often, critics of “judicial activism” are critical only when a court makes a decision they disagree with. Harper is critical of activist judges, even though he used the courts to strike down Elections Act prohibition of 3rd pty adv

When the law is not clear, judges are necessarily “activist”Judges are to resolve disputes fairly, impartially,

expeditiously. They need to be able to demonstrate they are doing so.

ParticipationThe courts exist to provide a public service; therefore

lay persons need more effective input into judicial selection and court administration

Effective public participation is hampered by unnecessary delays and adjournments

Perhaps we could learn something from other jurisdictions, including civil law jurisdictions

If jury system is to survive, it needs reform to prevent abuse

Use of social science evidence in court open to abuse (eg court’s misuse of evidence in Askov & Morin)

InclusivenessLaw profession becoming more representative

of Canadian diversity, but more work to be done. Similarly, judiciary and court support staff becoming more representative.

Lack of access to legal representation a major problemShould all lawyers be required to represent 100

cases a year pro bono? Should community legal clinics be expanded (and an effective public defender model implemented)?

Institutional ResponsivenessMost Canadians satisfied with quality of

judicial decisionsSystem of justices of the peace is problematicSome administrative tribunals problematic

(lack of independence and expertise)Too much room for patronage in federal

superior court appointments, & fed ct & SCCComplaint avenues re judges not widely knownLawyers should be prohibited from using delay

as a tactical weapon in codes of ethics

Judicial decision-making responsivenessCourts perform an essential function by adjudicating

disputes about basic democratic values, such as those in the Charter.

Charter decisions have resulted in greater inclusion of visible minorities, mentally & physically handicapped, gays & lesbians, and Aboriginals in Canadian society.

Overall, SCC’s decisions since 1982 have advanced democracy

Our constitution allows legislatures to counterbalance judicial decisions – s. 33, re-enacting legislation, amendment

“To limit the judicial role in democracy would be to limit democracy itself.”

Overall evaluation of courtsCourts doing well in some areas of advanced

reasoningContribution to understanding of independence &

impartiality, interpretation of CharterAreas for improvement

Public participation in court admin & jud selectionTackling unnecessary delaySupport for unrepresented litigantsRespectful treatment of juries, witnesses &

litigants. Disrectful treatment is really abuse of power.

A.C. Grayling: Liberty and BetrayalCara Wilkie