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Lecture 11

LAWS 1000 Lecture 11: Lecture 11.docx


Department
Law
Course Code
LAWS 1000
Professor
Steve Tasson
Lecture
11

Page:
of 1
Brooks – adversarial – thinks it’s the best – what we have now
Says best we could hope for, produces good resolution,
Frank – shouldn’t saying we should do inquisitorial – something in the middle – need modified adversarial
Inquisitorial – Law Reform Commission – trying to get sense of in New Zealand, how best to change court system to
make it more efficient have better outcomes
Franks – one party is able to buy justice – having more expertise
Not saying to abandon adversarial – come up with solution that gets rid of that inequality
Two solutions:
1. Official evidence gathers – judges chose to ignore your evidence and find their own. Ex. Lawsuit with
someone, in order to prove your case you need DNA evidence, if you don’t have access or money to pay for
that, cant afford it, you’ll loose case. Franks says that’s a problem – do something similar to inquisitorial –
court should gather facts. Not saying we go all the way to leaving it to courts, but there should be some
gatherers, pool on info and facts for both sides to access. Should not be police cause there not neutral, they
play for the state
2. Public prosecutor in criminal and private matters – this should be the case in criminal matters but also civil
matter, should have access to legal expertise
These solutions aren’t perfect but they’ll get us closer to the truth
Inquisitorial – judges have a lot more power, if both parties want it to end, they can still say I want to call on
witnesses
This week:
ADR and restorative justice
When case ends, legally dispute is over, closure, that closure may not actually result in resolves for those parties,
lingering affects, may not feel it was resolved
Adversarial system one of the outcomes is win or lose,
Trubek – no one really believes in law anymore –
How we can fix this is begin to push towards systems that are cheaper, less formal, less assessable
What is restorative justice? Attempt by criminal justice system to restore situation before crime took place
Seeks healing forgiveness and active community involvement
Both parties are more satisfied, community is part of the process, so they almost have a seat at the table
ADR –negation, mediation, arbitration, and adjudication – need to know the extreme
Less costly, more efficient, accessible, speedy – on exam
Mediations many faces
Talk it out among themselves, almost all civil cases have to go though mediation, mandatory
Ombudsman processes – offices used in attempt to allow people to have greater accessible, rather then going through
formal can go through ombundsman, suppose to be impartial, engage in fact finding, bring two parties into mediation,
McThenia and Schaffer – advocate for ADR approach
Not limited to just victim, about community too,
Everybody hates ADR
3 broad critical perspectives
Liberal position - court system is there to find winner loser, rule of law, this is how it works
Fiss – grounded in faith and law, founded on idea that we treat everyone equal, justice is about right and wrong, can be
efficient and costly but thats the way it is, fiat justitia ruat caelum – let justice be where the heavens fall
Conflict Perspective –
Feminist –
Sargents 2 themesL
1. Inadequate Promise – liberal - ADR is not as good as court system, has protections for people, ADR does not
2. False promise – conflict and most fems – what is promises to deliver, cant possibly deliver it either