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POLI 222 (24)

ER 62- Interest Group Litigation and Canadian Democracy (Gregory Hein)

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McGill University
Political Science
POLI 222
Christa Scholtz

ER 62: Interest Group Litigation and Canadian Democracy (Gregory Hein) Interest Groups in Court: The Debate • Charter litigation enables marginalized groups who have little leverage on the processes of majoritarian dem. to have their interests taken under consideration • powerful corporate and eco. interests use courts to defend and advance their interests • Charter litigation provides groups with less access to centres of power and less money opportunities to influence public policy ◦ means that the Charter widens CA democracy • groups at the centre of most policy debates • stakes higher in the courtroom even ◦ impressive resources: teams of lawyers, expert witnesses • interest group (IG) litigation affects style and substance of pol. life • court challenges, IG participate in most cases ◦ civil libertarians guard free expression --> child pornography ◦ unions help workers and corporations challenge regulations that frustrate the ability to maximize profits ▪ their adversaries also litigate • raise moral, eco., pol. questions ◦ courts not designed to sustain public discussions on complex issues ◦ pits courts ag. legislatures by asking judges to reject choices made by elected officials ▪ judicial activism threatens democracy • the Charter cannot create a forum of principle elevated above the fray of politics, b/c courts are not immune from the public pressures, eco. realities, and ideological contests that affect leg. • activists on the left have been wildly successful because so many judges are "removed from reality" ◦ these interests flood the courts b/c they cannot win the support of leg. majorities ◦ they belong to a coalition called the "court party" ▪ fuel the growth of judicial power, circumventing the leg. process • BUT this study says corporations also use the courts and pressure judges • stable characteristics ◦ elevates the propensity to litigate ◦ interests more inclined to mount court challenges when they have impressive legal resources, collective identities, and normative visions demanding judicial activism • changing circumstances ◦ make litigation seem attractive/essential ◦ counter immediate threats, take advantage of opportunities • Aboriginals, Charter Canadians, civil libertarians, and new left activists have the greets potential to influence public policy through lit. ◦ pulled and pushed into courtrooms by stable characteristics and changing circumstances ◦ called judicial democrats ◦ courts should listen to disenfranchised or poorer groups ◦ corporations do not have the stable characteristics that elevate the propensity to lit. The Study • companies, unions, social movements, societies of professionals, legal advocacy groups • Aboriginals ◦ unique claim to land and resources ◦ want recognition of land, treaty, and self-gov't rights • civil libertarians ◦ stop the state from undermining traditional guarantees ◦ challenge laws that violate freedom of expression, of religion, and protect rights of the accused • corporate interests ◦ businesses that compete in wide range of sectors ◦ demand low tax levels, flexible regulatory regimes, and trade liberalization • labour interests ◦ unions, advocacy groups, civil servants, etc. ◦ defend the welfare state and oppose trade policies that produce unemployment • professionals ◦ lawyers, judges, architects, etc.; most from private sector ◦ collective action to promote their interests and protect the integrity of their respective professions • social conservatives ◦ preserve tra
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