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POLS 3130 (87)
Chapter 3

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University of Guelph
Political Science
POLS 3130
Troy Riddell

POLS 3130 - Chapter 3: Judicial Process and Alternative Dispute Resolution  In the adjudicative model, a neutral and passive judge who is not chosen by the parties makes a binding decision by applying established legal principles to a set of facts that are presented by opposing parties in conformity with strict and formal procedural rules  4 components of judicial process 1. Access to court 2. Role of judge and number of parties 3. Fact-finding 4. Mode of reasoning  Judges adjudicate ‘concrete legal disputes’  Legal dispute involves 2 parties  Facts presented by each part must follow established legal procedures and involve ‘who did what to whom’  Arrives at conclusion by applying established legal principles to facts of case  ‘policy-making’ model assumes that its proper and desirable for courts to be involved in articulation of public values through policy level development  Operate less like adjudicators and more like legislatures or executive bodies  Easy to obtain access to courts to challenge government policy  ‘problem-solving’ model sees value in courts trying to address underlying problems or issues  Makes use of ADR techniques like mediation before trial  Judges actively involved in collection of evidence  Different courts and judges have different tendencies and one case may have elements from more than one model Access to Court: Standing, Mootness, Ripeness and Political Questions  Standing  One must be party to a legal dispute to have case heard in court  Ability to challenge constitutional validity of law – test was restrictive until was liberalized in the 1970s and early 1980s  Borowski – wanted to challenge abortion from ‘pro-life’ perspective even though wasn’t directly affected (ex. wasn’t a doctor or woman wanting abortion) or indirectly affected (ex. did not have wife or child wanting abortion) was allowed to challenge the law  Court said that standing could be granted is person affect directly by law or has ‘genuine interest as a citizen in validity of legislation and there is no other reasonable and effective manner issue can be brought before court’  Decade after Borowski Supreme Court said allowing public-interest standing by individuals and interest groups was even more important after Charter of Rights  Decision should be guided by role of courts in system of government, desirability of having both sides of issues presented by those directly affected and the resources needed to hear/decide all cases  Makes it easier for individuals/groups to use courts to challenge law and increase potential for courts to become more involved in shaping public policy  Mootness  Supreme Court affirmed courts have discretion to make decisions on moot cases where dispute is no longer ‘alive’  Three part guideline 1. If case was moot – would both sides of issue be effectively represented 2. Need to determine whether issues raised by case are important enough to use scarce judicial resource 3. Judges encouraged to think about courts’ ‘proper law-making function’ and be sensitive to judiciary’s role as ‘adjudicative branch in our political framework’  Review of case law in Canada found decisions not to hear moot cases ‘surprisingly rare’  Fact they have discretion to decide moot cases and do so frequently suggests movement toward policy making approach  Ripeness  Concerned with whether a dispute has had enough time to develop a sufficient legal and factual formation  Supreme Court said Jehovah’s Witness couldn’t challenge Quebec law threatened religious freedoms because hadn’t been charged under the law  Political questions  Stipulated that if an issue was the clear responsibility of another branch of government or if an issue lacked ‘judicially discoverable and manageable standards for resolving it’  Doctrine has been diluted over time  Purely political matters or matters that do not raise a ‘sufficient legal component’ should not be heard  Canadian Supreme Court has rejected direct applicability of the American ‘political questions doctrine’ in Canada on various occasions  Consistent with lower barriers to standing, readiness to hear moot cases and flexibility in hearing premature or speculative cases
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