The Legal Profession and Dispute Resolution
Week 2 Lecture 3
Law in/and society
• Law has insinuated itself into all aspect of human life and endeavors
▯Detailed legal rules that govern virtually every interaction we have with one another in the public
▯DeterrenceOriented Enforcement practices: “do not park here”
▯Intensely adversarial procedures: someone accusing someone of wrong doing and relying on a legal
framework to negotiate.
▯Judicial review of administrative orders
▯Rights oriented country, not just in courts, but in legislatures, media and on streets (IE.: TV Shows
like CSI, LAW and Order, Judge Judy and Court TV)
• Canada actually surpasses the U.S. in level of regulations imposed through law
▯Litigation accelerated since the advent of the Charter of Rights and Freedoms: using the Charter of
rights, it gives people a “launching point” it points it on people’s radar.
▯Canadian society may increasingly come to mimic America’s Approach to law: which is seeking a
legal framework to resolve
▯Canadian legal profession has grown almost tenfold in past 50 years
▯Increase in supply of lawyers can increase demand for legal services
• Lawsuits are good for a nation and can usher in progressive reforms
• Bring critical information to light (I.E: labeling, testing, regulation)
We rely on government sources to validate everything we purchase and eat in stores
• Remove regulations that interfere with justice (I.E: 1992 SC decision to remove specified time period
for legal action re: Childhood assault)
• Litigation can also get out of control (I.E: 1999 U.S. Lawyers filed a class action suit against toothbrush
The argument was that toothbrushes needed to be labeled accordingly and provide proper warning.
Without proper warning, the consumer may use the toothbrush in a way where it may cause abrasive
rashes in the mouth. To not provide proper warning is negligence.
Another example would be the case where a woman sued McDonald’s over a hot beverage that she
spilled. She argued that they had not provided proper warning on how hot the beverage was.
• What is behind this increase in litigation?
▯More lawyers – more litigation?
• Litigation packets create more access
• May also be a tactical engagement in a sustained war
▯Entitlement mentality (general demands rather than specific claims)
• Propensity is thought to be a significant cultural factor. (the law and the legal framework is not seen as
so foreign for a society that loves to watch criminal/law shows. It’s seen as more glamorous)
• Three Generic Factors that may explain litigation (Godman and Sarat, 1989)
1) Social Development
▯Increased complexity – reliance on courts
2) Subjective cost benefit calculations on part of disputants (risk factor)
▯if an individual feels that they might get a lot of money and a lawyer encourages them to pursue something, then it would seem like it’s worth the risk.
3) Legislatures and Courts have created more legally actionable rights/remedies
▯gain recognition legally that has not been obtained politically)
▯An individual might pursue something in the legal framework that is not recognized politically.
• How do courts contribute to dispute settlement:
▯Provide guarantees of compliance (I.E: Divorce)
▯Opportunity to learn about each other’s cases
▯Act as mediators
▯ esolve certain issues
▯Authoritatively resolve disputes
*** Financial risk is perhaps largest deterrent. In Canada, defendant recovers cost
Dispute “Settlement” vs. “Resolution”
• The law only settles the legal components of disputes
▯I.E: Cannot resolve the underlying causes of conflicts
• Many court decisions simply lead to new disputes
• If issue that provoked initial dispute are unresolved, the court provides the new terrain for further
• Disputing is a practice that is shaped in part by law
• Therefore more accurate to say that law is involved in “processing” rather than “resolving “ disputes
• Process is a neutral term that does not assume resolution..
Requirements for a dispute to reach courts:
• Justiciability: the claim must be “triable” in the court in question
▯One persons with standing are allowed to bring a dispute to court
▯A plaintiff must have a “genuine interest: in the matter before the courts
▯Part has to demonstrate to the court sufficient connection to the issue and also show harm
Noncourt methods for addressing disputes in modern societies:
• There are a wide range for social institutions and practices for addressing disputes
• Law is only one way of doing so.