Breach of Contract?: The New Economy, Access to Justice and the Ethical Responsibilities of the Legal Profession

In the last several years, there has been a growing awareness within the legal profession that access to justice, that is, to legal advice and representation, is becoming increasingly difficult. Nowhere is this more obvious than in the cuts to legal aid programmes. The author argues that the response of the legal profession is inadequate because it remains trapped in a welfarist paradigm of legal aid that is insensitive to the impact of the new economy and the newly emergent social investment state. The author explores the possibility of an alternative response - the adoption of a mandatory pro bono system - and suggests that both ethically and politically, given the realities of the social investment state, it is the most justifiable strateg

Dirty Laundry: Judicial Appointments in Canada

The issue of the appointment of judges is not a freestanding problem. Rather, as Adam Dodek and I have argued, it is part of a larger public policy puzzle, the challenge of designing an appropriate regulatory regime for judges. Any description, analysis, assessment or critique of judicial appointments processes necessarily requires the development and deployment of some conceptual framework. Sometimes such a framework is implicit or taken for granted. However, in our opinion, it is better if we can make that framework—that paradigm—explicit because we can then more clearly understand the nature of the evaluative process in which we are engaged. In response to this challenge of articulating a conceptual framework for regulating judges, Dodek and I have developed a heuristic which we characterise as a regulatory pyramid

Bend or Break: Enhancing the Responsibilities of Law Societies to Promote Access to Justice

There now appears to be a consensus in Canada that we have a serious access to justice problem. Chief Justices have been vocal. The Governor-General has made an intervention. Legal newspapers and websites have weekly, if not daily, stories on access to justice concerns. There have been several thorough reports which both detail the problems and propose possible paths forward. And one CEO of a national law firm has lamented that “access to justice is the legal profession’s equivalent of global warming.” However, in my opinion, despite all this alarm, attention, and progress, two key components tend to be missing from the analyses: a clearly articulated conception of the ethical identity of a Canadian lawyer, and a sufficiently concrete elaboration of the responsibilities of law societies to help in the resolution of our access to justice problems. I will also argue that both these components are closely connected. Before I proceed to advance my argument, several caveats are essential. First, I do, of course, realize that access to justice is much more than access to law and/or access to lawyers. But, at the same time, it cannot be denied that the legal profession is one of the determining structural forces in the access to justice problematic. The legal profession cannot be allowed to get off the hook, even by inadvertence. Second, some might ask why am I focusing on law societies, and that I should be paying attention to my own backyard — the law schools’ responsibilities for promoting access to justice. I have been doing that in several recently essays. Third caveat: while I am going to be critical of law societies, I do recognize that many individual lawyers, either in their practices or through pro bono, strive hard to enhance access to justice. My concern in this essay is more with institutional responsibility, not individual responsibility. My fourth caveat is that I am focusing on law societies and not the Federation of Law Societies of Canada (FLSC) because a) it is the law societies who have the legislative authority and obligation to govern the legal profession not the FLSC, and b) the FLSC is over extended and under resourced as an organization. My argument will proceed in three stages. First, I will provide an overview and assessment of the three major access to justice reports that have been recently published. Second, I will outline an account of the ethical identity of a Canadian lawyer and what this says about the access to justice problematic. Third, I will propose eight concrete recommendations that law societies should pursue to assist in the resolution of the problems of access to justice

Twisting the Tourniquet Around the Pulse of Conventional Legal Wisdom: Jurisprudence and Law Reform in the Work of Robert A. Samek

The name Robert Samek first came to my attention in the summer of 1985 as part of a research project carried out under the auspices of the Law Reform Commission of Canada. I was struck by what at the time seemed to be a complete contrast in two of his publications; his book, The Legal Point of View and an article, A Case for Social Law Reform . Although only a few years apart, it seemed impossible that the two works could have come from the pen of the same author: the former was traditional, opaque, dull, pedantic and repetitive; the latter iconoclastic, lucid, fresh, aggressive and inspiring. Further research reinforced this seeming antinomy; a host of technical articles on contract law counterbalanced by a series of polemics which appeared to be somewhere to the left of the Conference on Critical Legal Studies, and an obscure book with a Greek sounding title, The Meta Phenomenon. A mystery was beginning to develop

Ventriloquism and the Verbal Icon: A Comment on Professor Hogg\u27s The Charter and American Theories of Interpretation

In this brief comment I offer some critical reflections on Professor Hogg\u27s proposed approach to Charter interpretation. I suggest that Professor Hogg\u27s attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that interpretivism is explanatorily inadequate, yet on the other he refuses to accept non-interpretivism for he realizes that it has the potential to unmask the politics of law. I argue that Hogg\u27s third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates ahistoricism, circularity and a retreat into textual objectivism. By way of conclusion, I suggest that we must abandon the repressive machinations of textual fetishism so that we may honestly confront the nexus between law, politics and power. In turn, this will enable us to demand of powerholders - including judges - that they use their power for democratic rather than mystificatory ends

Depriving Law Reform of Its Potential? \u3ci\u3eNew Perspectives on the Public-Private Divide\u3c/i\u3e Law Commission of Canada, Ed. (Vancouver: University of British Columbia Press, 2003)

New Perspectives on the Public-Private Divide is the second installment in a new series, Legal Dimensions, sponsored by the Canadian Association of Law Teachers, the Canadian Law and Society Association, the Canadian Council of Law Deans and the Law Commission of Canada. The ambitions of this series are large: to examine various issues of law reform form a multidisciplinary perspective [and]... to advance our knowledge about law and society through the analysis of fundamental aspects of law. The focus on the public-private divide is an excellent choice for the Legal Dimensions Series for no matter how one conceptualizes the relationship, or what one thinks about it, it is inconvertible that the distinction between public and private is a foundational aspect of contemporary understandings of the nature and function of law. The multidisciplinary ambitions of the series are also fulfilled, not only because the authors come from disciplines such as Communications, Geography, Philosophy as well as Law, but also because the lawyers draw heavily on other disciplines such as feminist political economy, governance theory and industrial relations. As such, this volume does advance our knowledge about law and society in significant and, in my view, quite exciting ways. However, the third side of the pyramid-- issues of law reform-- is more difficult to get a sense of in this collection. This last point will be the main focus of this brief review

The Law and Politics of Might : An Internal Critique of Hutch\u27s Hopeful Hunch

Some of my friends tell me that, as a general proposition, as men get older they become more conservative, but as women get older they become more radical. Allan Hutchinson\u27s new book, It\u27s All in the Game, tells us little about the latter, but it does seem to confirm the former. For almost twenty five years, Allan Hutchinson has been a very high profile North American crit. There is little doubt that he has been Canada\u27s most prolific and outspoken critical legal scholar. He has been a master trasher, combining powerful critical analytical skills with a wicked wit and an enviable writing style to produce some critical classics. But now, he springs a book that represents a significant departure, or perhaps even a retreat, in his scholarship

From Archetypes to Architects: Re-Envisioning the Role Morality of Trial Level Judges

In this article, I build upon the concepts of role-differentiated behaviour and role morality to reflect upon the privileges and responsibilities of being a trial judge. In particular, I will suggest there are at least two (potentially competing) professional archetypes for judicial role morality, which at this point I will tentatively describe as the mechanics and the innovators. Both of these archetypes agree that the governing principles should be integrity, honesty, independence, impartiality, fairness, et cetera, but they differ in their understanding of how best to put these ideals into effect in the real world. In due course, I will seek to go beyond these two archetypes to argue that judges should consider an alternative ethical identity by drawing a parallel between the role morality of judges and the role morality of architects

Nomos and Thanatos (Part A). The Killing Fields: Modern Law and Legal Theory

Law, is so far as it sanctions the coercive power of the state, enables people to do frightening - even deadly - things to each other. Contemporary jurisprudence, the explanatory and justificatory voice of legal practice, fails to interrogate law\u27s interconnection with violence and death and therefore, by a sin of omission, legitimizes humankind\u27s mutual inhumanity. The end result is jurisprudential tolerance of, and acquiescence in, societies underpinned by violence. By identifying the nexus between community (nomos) and death (thanatos), this, admittedly speculative, essay attempts to raise the possibility of a discourse, practice and society that can encourage, reflect and concretize opportunities for human interaction that go beyond violence. What follows, I hope, is an exercise in consciousness-raising