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Using Process Theory to Explain Judicial Decision Making*

Published online by Cambridge University Press:  18 July 2014

Carl Baar
Carl Baar
Affiliation:
Department of Politics, Brock University
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Extract

This article is part of an effort to place current research on the Canadian judicial process into a broader theoretical context. This effort developed first from a sense that the legal and behavioural frameworks that have dominated the explanation of judicial decision making in the United States Supreme Court obscure more than they illuminate about judicial decision making in Canada; and second from the realization that the most illuminating American studies — those that trace the process by which major cases are brought before the courts and decided — are seen as interesting but atheoretical, as journalism not science. Perhaps our theory is out of joint. And perhaps an effort to understand how American theories and research on judicial decision making can inform Canadian research may be instructive both to American judicial studies and to the work of those outside the United States who are continually tugged toward American approaches that promise liberation from traditional legal analysis.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 1 , 1986 , pp. 57 - 79
Copyright
Copyright © Canadian Law and Society Association 1986

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References

Notes

1. See, for example, Dworkin, Ronald, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977)Google Scholar and A Matter of Principles (Cambridge, Mass.: Harvard University Press, 1985)Google Scholar; Ackerman, Bruce A., Reconstructing American Law (Cambridge, Mass.: Harvard University Press, 1984)Google Scholar; Posner, Richard A., Economic Analysis of Law (2nd ed.; Boston: Little Brown, 1977)Google Scholar; and generally Journal of Legal Studies.

2. For behavioural research on the Supreme Court of Canada, see essays by Peck, Sidney R. & Fouts, Donald E. in Schubert, Glendon & Danelski, David J. (eds.), Comparative Judicial Behaviour (New York: Oxford University Press, 1969)Google Scholar, and Russell, Peter H., The Supreme Court of Canada as a Bilingual and Bicultural Institution (Ottawa: Queen's Printer, 1969)Google Scholar.

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5. Eisenstein, James and Jacob, Herbert, Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little Brown, 1977)Google Scholar.

6. Church, Thomas Jr., et al. , Justice Delayed: The Pace of Litigation in Urban Trial Courts (Williamsburg, Va.: National Center for State Courts, 1978)Google Scholar.

7. Henderson, Thomas A. et al. , The Significance of Judicial Structure: The Effect of Unification on Trial Court Operations (Washington, D.C.: U.S. Department of Justice, National Institute of Justice, March 1984)Google Scholar, especially Ch. 5.

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13. Ibid., 45.

14. Ibid.

15. Ibid., 44.

16. Ibid., 46–51. While Mohr's two types of theory cut across the natural and social sciences, his distinction is reminiscent of the neo-Kantian distinction between natural science and cultural science from which Max Weber developed his methodology for the systematic study of individual historical events. See the second and third essays in Weber, Max, The Methodology of the Social Sciences (New York: Free Press, 1949)Google Scholar and Baar, Carl, “Max Weber and the Process of Social Understanding,” Sociology and Social Research 51 (1967), 337Google Scholar.

17. Mohr, 59.

18. Wasby, , “How Planned is ‘Planned Litigation’?” 85–86Google Scholar.

19. Adapted from Mohr, Table 2, 48–49.

20. Ibid., 53.

21. Ibid., 68.

22. Ibid., 65.

23. Ibid., 61.

24. Russell, Peter H., “The Anti-Inflation Case: The Anatomy of a Constitutional Decision,” Canadian Public Administration 20 (1977), 632CrossRefGoogle Scholar; reprinted in Morton, F.L. (ed.), Law, Politics and the Judicial Process in Canada (Calgary: University of Calgary Press, 1984)Google Scholar.

25. See Russell, Peter H., “The Supreme Court and Federal-Provincial Relations: The Political Use of Legal Resources,” Canadian Public Policy 11 (1985), 161CrossRefGoogle Scholar.

26. The phrase is in Section 1 of the Charter of Rights and Freedoms.

27. See the evidence provided in Snell, James G. & Vaughan, Frederick, The Supreme Court of Canada: History of the Institution (Toronto: The Osgoode Society, 1985), 164, 221, 223–224 & 240Google Scholar.

28. Ibid., 162 & 164; evidence there reinforces other information obtained by the author.

29. Williams, David Ricardo, Duff. A Life in the Law (Vancouver: University of British Columbia Press, 1984)Google Scholar.

30. [1974] S.C.R. 1349, 38 D.L.R. (3d) 481.

31. Re Lavell and Attorney General of Canada, 22 D.L.R. (3d) 182 (Ont. Co. Ct.); Lavell v. Attorney General of Canada, [1971] F.C. 347 (Fed. Ct. Apl.).

32. The Queen v. Drybones, [1970] S.C.R. 282.

33. Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651.

34. The Queen v. Gonzales [1962] 37 W.W.R. 257 (B.C. Ct. Apl.).

35. See letter from Chrétien, Hon. Jean, Minister of Indian Affairs, to Hon. John Turner, Minister of Justice and Attorney General, October 26, 1971Google Scholar.

36. Bedard v. Isaac, 25 D.L.R. (3d) 551.

37. See Welch, Jillian, “No Room at the Top: Interest Group Intervenors and Charter Litigation in the Supreme Court of Canada,” University of Toronto Faculty of Law Review (1985), 204Google Scholar.

38. While the Supreme Court has been more liberal in permitting interest group intervention in reference cases, the number of intervenors in Lavell and Bedard was greater than the subsequent historic Anti-Inflation Act Reference, [1976] 2 S.C.R. 373, which saw eight groups and six governments, and Patriation Reference (Attorney General of Manitobaetal. v. Attorney General of Canada et al., [1981] 1 S.C.R. 753,125 D.L.R. (3d) 1), which involved eleven governments and one group.

39. Interview with Douglas Sanders, Vancouver, July 1982.

40. [1971] S.C.R. 272, 11 D.L.R. (3d) 673, 4 C.C.C. 1.

41. Regina v. Wray, [1970] 2 O.R. 3.

42. Interview with Clay Powell, Toronto, July 1983.

43. Ibid.

44. 367 U.S. 643 (1961).

45. Frederick Vaughan, “Mr. Justice Emmett Hall: Portrait of an Advocate,” unpublished manuscript.

46. While Cartwright declined to support the defence in a criminal appeal based on the Bill of Rights, he was the strongest supporter of the defence in other criminal law appeals before the Supreme Court of Canada. In twenty-five split decisions from 1958 to 1966, Cartwright favoured the accused in every one (in contrast to Fauteux, who supported the Crown in all twenty-four split decisions in which he participated). Emmett Hall, another justice seen as sympathetic to appeals by accused persons in criminal cases, showed a 9-2 record in that period. See Peck, S.R., “The Supreme Court of Canada, 1958-1966: A Search for Policy through Scalogram Analysis,” Canadian Bar Review 45 (1967), 716Google Scholar.

47. Wray v. The Queen, 33 D.L.R. (3d) 750 (decided February 28. 1973).

48. Criminal Lawyers Association Newsletter 2, no. 10 (1977), 33-34 reprinted from Criminal Trials: A Series of Talks given by Criminal Lawyers Analysing Their Own Cases (Toronto: University of Toronto Faculty of Law, ca. 1974)Google Scholar.

49. This situation parallels Jonathan D. Casper's findings in the United States Supreme Court that criminal justice cases, unlike other types of civil liberties cases, are more likely to be handled by lawyers he terms Advocates — those who “were simply interested in winning their cases, regardless of the potential social or political ramifications that might be implicit in their cases.” Casper contrasts Advocates with Group Advocates and Civil Libertarians, whose goals were to establish precedents for use beyond the instant case; see his Lawyers before the Warren Court. Civil Liberties and Civil Rights, 1957-66 (Urbana: University of Illinois Press, 1972), 6–7, 107–109, 122–123Google Scholar.

50. Reference re Alberta Statutes, [1938] S.C.R. 100.

51. For general background, see Macpherson, C.B., Democracy in Alberta: Social Credit and the Party System (Toronto: University of Toronto Press, 1953)Google Scholar and Irving, John A., The Social Credit Movement in Alberta (Toronto: University of Toronto Press, 1959)Google Scholar. Note that Douglas's theories won a convert in Montana-bom poet Ezra Pound, whose espousal of the theories in Mussolini's Italy led to his prosecution by the U.S. government for treason.

52. King Diaries, Public Archives of Canada; September 28, 1937, 692; October 19, 1937, 730; October 26, 1937, 768; October 28, 1937, 777-778.

53. The standard history is Mallory, J.R., Social Credit and the Federal Power in Canada (Toronto: University of Toronto Press, 1954)Google Scholar.

54. Senator W. A. Buchanan to W.L. Mackenzie King, October 18, 1937, in King Papers, Public Archives of Canada, MG 26 J1, vol. 232, item no. 199514.

55. This interpretation, based on two passages in King's diary (note 52 above) varies from the interpretation in Neatby, H. Blair, William Lyon Mackenzie King, 1932-1939. The Prism of Unity (Toronto: University of Toronto Press, 1976), 231Google Scholar.

56. See, in particular, 74-78 of the “Factum on Behalf of the Attorney General of Canada” (Ottawa: King's Printer, 1938)Google Scholar.

57. Williams, , Duff, 196–199Google Scholar.

58. In a letter to N.W. Rowell, March 11, 1938, quoted in Vaughan, & Snell, , The Supreme Court of Canada, 168Google Scholar.

59. Matthews, Donald R., United States Senators and Their World (New York: Random House, 1960)Google Scholar. This analysis would in turn enrich the work begun by Murphy, Walter F. in Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964)Google Scholar.

60. For discussion of adjudicatory processes as technologies, see Henderson et al., The Significance of Judicial Structure. Particularly valuable in the present context is the distinction between procedural adjudication that characterizes traditional adversary proceedings and diagnostic adjudication that is associated with the intensive technologies used when trial courts turn to problem solving and appellate courts develop more elaborate legal staffs to screen cases and perfect opinions.

61. See March, James G. & Olsen, Johan P., Ambiguity and Choice in Organizations (Bergen: Universitetsforlaget, 1976)Google Scholar.