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Laws 1000 Course notes

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Carleton University
LAWS 1000

SettlementCollaborationDispute Settlement and Social changeby settling disputes via an authoritative allocation of legal rights and obligations the law provides an alternative to other methods of dispute resolutionbut may not solve broad issues like job discrimination on a large scale only fix one incidentbrings planned social change by a govt prominent feature in modern welfare statesFiss Against Settlement we enter the legal process as soon as we start thinking legalisticallyJustice is done by the courts not through partiesSettlement occurs when a case intended to be adjudicated is diverted out of court through an agreement reached by the partiesFiss questions the legitimacy of settlement as potentially undermining justice 4 argumentsDistributional inequalities parties may be unequal in wealth powerexpertisepoorer party disadvantaged in mobilizing and may have to settle due toJudicial Enforcement judges unaware of full reasons behind the settlementcant do anything after the issue of settlement since settlement is made out of interestsLitigation its about legal and social justiceparties might settle while leaving justice undone someone fails to do the right thingSettlement precludes authoritative interpretation of the lawparties settle for reasons other than those rooted in justiceMcTheniaSchaffer For ReconciliationADR is about reconciliation and resolution rather than winning via imposition of judgementDoes Fiss come too close to equating justice with lawMcTheniaSchaffer most important justice is that which people give to each otherADRMediationMediation plays a role in many fields of lawcivil law as a way of avoiding of avoiding costly litigationcriminal law as restorative justicefamily law in divorce and custody casesmost important justice is that given between people rather than that handed from a judgeSargent Understanding Critiques of Mediation Some cases are better for mediation some are better for courtconflict needs to be present in mediationin adjudication an imposition of authority is involvedTwo broad critiques of mediation inadequate promise and false promise Inadequate Promise of Mediationliberal critique may be more concerned with outcomes than processmediation is viewed as options to adjudication rather than an alternativenot all problems can be solved effectively via moderation sex offenceFalse Problem of MediationConflict perspective based conflict seen as personal rather than politicalfalse promise of mediation resides in view of conflict as individualisticthis manageable via consensusviewing conflict as something between individuals obscures larger social context to conflict like capitalismFeminist Critiques of Mediationconcerned with fairness in mediationcombine aspects of liberalconflict critiquesAccess to Justice Income IssuesGlathercole Legal Servicesthe PoorJudicare Model basic philosophy that law should provide the poor with access to the same legal services as are available to the rest of societyclient chooses lawyer via feeforservice structure with specified limitsservices concentrate on serious criminal and civil actions in superior courtsStrengths client gets to interviewhire own lawyerclient structures relationship with lawyeris the lawyers employerclient decides meeting datesduration of meetingsWeakness it is not cost effectivecriticized as more problemsolving than problempreventing in its approachtoo concerned with equality of legal services than social qualitythe poor get their day in court but not much moreLegal Services Modelgoal of legal aid should be the total eradication of povertystore front clinics focus on legal problems of the poor welfare housing etclegal aid has political function is found in many poverty filled areasCreation of independent commissionboard administers programsome people dont know the law landlord rightsof work hours sick days etcStrengths accessibility as offices are located where clientele residelawyers may not be specialists but will be familiar with problems of the poorWeakness lawyerclient relationship managed by a plan eradicating poverty isnt realisticlawyer may care about the plan rather than the problem itselfChallenges to Legal Aidcommon to all legal aid plans the main one is expense lack of political support
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