POLS 303 Lecture Notes - Lecture 5: Ripeness, Expert Witness, Judicial Notice

5 views3 pages
Published on 12 Oct 2012
School
U of S
Department
Political Studies
Course
POLS 303
Professor
If you have a dispute, you generally go to court.
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There are several difficulties in attempting to understand what courts and how they do it.
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First, not all judges view their roles in the same way.
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Some judges see their role it as defending the status quo.
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Some judges believe that their role is to create or advance the law (activism) while others see it
as merely interpreting existing (restraint) law.
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Adjudicative
o
o
Problem-solving
o
Objectives and Procedures of Judging:
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Judges do not solve larger societal problems, underlying problems or make new
policy
Four components of the judicial process are predicated on the idea that simply resolve
disputes.
o
Judges should not adjudicate disputes that are hypothetical no longer exist, involves non-
legal questions.
o
Access to courts should be limited because disputes should only be limited to two people.
o
Judges should act as “passive referees” who make decisions based on submissions of the
parties.
o
Court is an adversarial process.
o
Facts (as presented) must follow “who did what to whom” (adjudicative facts).
o
Judges should only arrive at a decision by applying established legal principles to the facts
of the case.
o
Adjudicative model:
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Assumes that courts and judges should be involved in the grand dialogue of public vales,
morals and justice.
o
There is a legitimate role for courts and judges in the public policy process.
o
Courts and judges should therefore not just be adjudicators, but act like policy actors
(legislatures and executive).
o
Judges should take societal interests, morals and values into consideration when making
their decisions.
o
Courts should make an attempt to understand underlying problems that give rise to the
disputes.
o
This type of judging uses alternative dispute resolution processes.
o
Problems may be pushed out of courts before trial (special tribunals, mediation).
o
If the dispute goes to trial, judges take an active interest in the collection and presentation
of advice.
o
Decisions will reflect a desire to solve the underlying issues behind any dispute. (i.e.
restorative justice, mediation).
o
Policy-making model:
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Who should get to participate, intervene and influence judicial hearings?
o
Different models have discussed above would have different opinions.
o
Canadian courts have grappled with this question, and it is not surprising that the answers
often depend on the dispute itself.
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Access to court(s):
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Standing refers to the requirement ha one must be a party to a legal dispute in order to have
a case heard in court.
o
Prior to the early 1980s, Canadian courts had fairly restrictive rules around standing.
o
This early test (Smith, 1924) stated that a person could only ask a court to declare a law
Access to Court: Standing
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Courts and the Judicial Process
October 2, 2012 (Lecture 5: Courts, Judging, etc.)
October-02-12
11:30 AM
POLS 303 Page 1
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Document Summary

October 2, 2012 (lecture 5: courts, judging, etc. ) If you have a dispute, you generally go to court. There are several difficulties in attempting to understand what courts and how they do it. First, not all judges view their roles in the same way. Some judges see their role it as defending the status quo. Some judges believe that their role is to create or advance the law (activism) while others see it as merely interpreting existing (restraint) law. Objectives and procedures of judging: o o o. Adjudicative model: o o o o o o o. Four components of the judicial process are predicated on the idea that simply resolve disputes. Judges do not solve larger societal problems, underlying problems or make new policy. Judges should not adjudicate disputes that are hypothetical no longer exist, involves non- legal questions. Access to courts should be limited because disputes should only be limited to two people.

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