Judicial Administration

Judicial Administration November 28

Administrative questions • Papers • Do you want a review session? If so, when? • Exam: Wednesday, Dec 12, CB 129, 9 a.m. to noon. Students invited to the Absynth afterwards by Baar & Greene • On-line course evaluations: go to http://courseevaluations.yorku.ca/ • Exam: handouts

Roscoe Pound1870-1964 • “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. • 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 • Baar & Greene used to start this course with this article.

Dissatisfaction with any legal system • 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 Anglo-American system • 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 • multiplicity of courts • preservation of concurrent jurisdictions • waste of judicial power that all this involves • rigid districts of courts or jurisdictions • consuming time with pure practice • unnecessary re-trials

Environment of judicial administration • 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 • 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.”

Lawyering as a public service • “[Professionalism] refers to a group pursuing a learned art as a common calling in the spirit of public service -- no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.” Roscoe Pound, The Lawyer from Antiquity to Modern Times. St. Paul, Minn.: West Publishing Co., (1953), p. 5.

Ingo Keilitz, “No More Best Practices”(National Centre for State Courts) • Problem: lack of empirical evidence about whether a “best practice” actually works • Problem: if we’ve identified a “best pactice,” we no longer have to think • “performance measurement” – evidence-based practice -- is important (a sub-set of program evaluation)

Managing judges (from last week) • Judicial independence and the Berger affair • Greene, Chapter 4, “judicial discipline,” treatment of witnesses & litigants, expeditiousness • McCormick: • Ch 7: judicial appointment • Ch 11: impact of judicial decisions: compliance, indirectness of judicial impact • Ch 12: democratic courts? Legal mobilization results from understanding how courts really work • Baar: Ch 6 – personnel systems and functions in courts • Ch 7: budgeting & planning

Judicial Administration