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SOSC2350 Sept 25.doc

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Social Science
SOSC 2350
Tanja Juric

SOSC2350 The Legal Profession & Dispute Resolution Law in/and Society Law has insinuated itself into all aspects of life and endeavors Detailed legall rules Deterrence-oriented enforcement practices Intensely adversarial procedures Judicial review of administrative orders Rights-oriented county, not just in courts, but in legislatures, media and streets Canada actually surpases the US in level of regulations imposed through law Litigation accelerated since the advent of the Charter of Rights and Freedoms Canadian society may increasingly come to mimic America's approach to law Canadian legal profession has grown almost ten-fold in the 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 info to light (eg. Labeling, testing, regulation) Remove regulations that interfere with justice (eg. 1992 supreme court decision to remove specified time period for legal action re: childhood assault) Litigation can get out of control (eg. 1999 US lawyers filed a class action suit against toothbrush manufacturers) What is behind this increase in litigation? More lawyers = more litigation? Litigation packets create more access May also be tactical engagement in sustained war 'entitlement mentality' (general demands rather than specific claims) Propensity (willingness) is thought to be a significant cultural factor 3 Generic Factors that explain increase in litigation Social development Increased complexity = reliance on courts Subjective cost-benefit calculations on part of disputants (risk factor) Legislatures & courts have created more legally actionable rights/remedies Gain recognition legally that has not been obtained politically How do courts contribute to dispute settlement: Establish norms Provide guarentees of compliance (eg. Divorce) Escalate costs Opportunity to learn about each other's cases Act as mediators Resolve certain issues Authoritatively resolve disputes Financial risk is largest deterrent In canada, defendant recovers cost Settlement vs resolution The law only settles the legal components of disputes (cannot resolve the underlying causes of conflicts) Many court decisions simply lead to new disputes If the conflicting forces that provoked the initial dispute are unresolved, the courts provides the new terrain on which further disputes may arise 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 Justiciability: The claim must be triable in a particular court (child custody in family court) Standing: Only persons with standing are allowed to bring a dispute to court Plaitiff must have general interest in the matter before the courts Party has to demonstrate to the court sufficient There are a wide range of social institutions and practices for addressing disputes Law is only one way of doing so. It isnt necessarily the most original
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