Este artículo demostrará cómo la orientación filosófica contribuiría valiosamente al campo de la ... more Este artículo demostrará cómo la orientación filosófica contribuiría valiosamente al campo de la resolución de conflictos a través de la mediación y la justicia civil en general. La mediación es un proceso de resolución de conflictos que involucra a un tercero que facilita a las partes en disputa llegar a una resolución autónoma. Este proceso se está incorporando a los sistemas de justicia civil a nivel mundial, pero la forma en que se debe llevar a cabo la mediación para lograr resultados verdaderamente justos requiere una atención inmediata y reflexiva. En el mejor de los casos, la mediación empodera a las partes para crear conjuntamente una resolución justa de su conflicto a través de una exploración dialógica de los intereses, necesidades y normas y valores relevantes.3 Esto es radicalmente diferente al proceso judicativo en el que las partes se basan en marcos legales y decisiones judiciales autorizadas para resolver conflictos. En la mediación, las partes deben reconocer y pen...
In this reflective piece, we explore why and how adopting principles of holistic education can he... more In this reflective piece, we explore why and how adopting principles of holistic education can help mitigate the crisis of well-being in legal education and in the legal profession. This project emerged from a series of informal conversations in which we discussed various factors influencing our pedagogical styles and found a shared central essence in both our approaches that align with holistic teaching. Given that this paper emerged through subjective conversation, we present subjective narratives about our experiences as early-career faculty members at Canadian law schools, and then critically analyze the narratives by distilling common emergent themes and threads relating to wellness, teaching with care, marginality, and whole-person (holistic) education generally. Within the context of these themes, we discuss potential avenues for making teaching and learning about law more enriching. Our hope is that this paper serves as an invitation to other academics to contribute their ow...
I am grateful to Professors Edmond and Roach\u27 and Professor Haack2 for their thoughtful replie... more I am grateful to Professors Edmond and Roach\u27 and Professor Haack2 for their thoughtful replies to my paper, Law \u27s Treatment of Science: From Idealizationto Understanding.Much like my experience after reading A Contextual Approach to the Admissibility of the State\u27s Forensic Science and Medical Evidence, \u27 and Haack\u27s contributions, 4 I have come away from reviewing Edmond and Roach and Haack\u27s replies with a heightened awareness that the admissibility of scientific evidence is significant and complicated. Both replies have raised important concerns that have demanded further attention from me, which I turn to here. My response to Edmond and Roach\u27s Reply is in Part I below, followed by my response to Haack\u27s Reply in Part II
Increasing reliance on scientific evidence in litigation has created a demand for discussions dir... more Increasing reliance on scientific evidence in litigation has created a demand for discussions directed at enabling a legitimate interaction between science and law The article develops the notion ofprocedural legitimacy-that adherence to legal procedure maintains the legitimacy of the adjudicative system and its outcomes -and applies it to determining how best to admit and use scientific evidence. The problem of undervaluing procedural legitimacy is illustrated through a commentary on contributions to the science and law discussion of Edmond and Roach, and Haack. The author\u27s thesis is that maintaining adjudicative legitimacy depends on procedural rules being applied as vigilantly to science as to any other evidence. Accordingly, admissibility rules must be properly applied to scientific evidence and, once admitted, the evidence must be scrutinized and weighed against the legal standard of proof. The recommendations for treatment of scientific evidence in the Goudge Inquiry Repor...
In this conceptual and self-reflective essay, the authors begin from the premise that the contemp... more In this conceptual and self-reflective essay, the authors begin from the premise that the contemporary higher educational institutions in Canada and many other parts of the world have increasingly tended to focus on instrumental teaching, rooted in neoliberal and capitalist ideals of societal progress through economic development. The result is that higher education centralizes making students career ready, rather than the holistic development of the student. Critical of this, Ashwani Kumar (professor of Education) and Nayha Acharya (professor of Law), undertake a collaborative effort to discuss how Kumar's theoretical and practical concept of teaching as meditative inquiry can be an antidote to instrumentalism in higher education. In the first part of this essay, Kumar describes his concept of teaching as meditative inquiry by unfolding its theoretical rooting and giving practical examples of how he has used this approach in his teacher education and graduate education courses as well as in his doctoral seminar in contemporary educational theory at Mount Saint Vincent University in Halifax, Nova Scotia. In the second part, Acharya narrates her experimentation with the teaching as meditative inquiry approach in her Alternative Dispute Resolution course, which she teaches at the
Canadian courts use simple probability reasoning inconsistently in personal injury litigation, su... more Canadian courts use simple probability reasoning inconsistently in personal injury litigation, subjecting litigants to irregular legal principles and potentially improper compensation. Turning to foundational principles of tort litigation, I suggest a new framework for the availability of simple probability that would promote greater coherence. Simple probability reasoning is under-stood as an alternative standard of proof that enables compensation for a loss proportional to the likelihood that the loss will occur. Accordingly, the avail-ability of simple probability is thought to depend on which types of facts (past vs. future vs. hypothetical facts) are amenable to balance of probabilities proof versus simple probability. This is the ‘type of fact ’ framework, but it is not applied consistently. Part 1 argues that the inconsistency is rooted in the mischaracterization of simple probability reasoning as a standard of proof. It is better conceived of as a method of enabling chances,...
The crucial question for many legal disputes is “what happened,”? and there is often no easy answ... more The crucial question for many legal disputes is “what happened,”? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas’s insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be factually reliable. This requires: (a) relevant evidence is admissible and exclusions are justified based on respecting human autonomy; (b) error-risk management is internally coherent and consistent; (c) the standard of proof is, at minimum, a balance of probabilities; (d) evidence is used rationally. Second, fact...
In this conceptual and self-reflective essay, the authors begin from the premise that the contemp... more In this conceptual and self-reflective essay, the authors begin from the premise that the contemporary higher educational institutions in Canada and many other parts of the world have increasingly tended to focus on instrumental teaching, rooted in neoliberal and capitalist ideals of societal progress through economic development. The result is that higher education centralizes making students career ready, rather than the holistic development of the student. Critical of this, Ashwani Kumar (professor of Education) and Nayha Acharya (professor of Law), undertake a collaborative effort to discuss how Kumar's theoretical and practical concept of teaching as meditative inquiry can be an antidote to instrumentalism in higher education. In the first part of this essay, Kumar describes his concept of teaching as meditative inquiry by unfolding its theoretical rooting and giving practical examples of how he has used this approach in his teacher education and graduate education courses ...
Teaching and learning (T&L) is considered an essential skill for graduate students (Rose, 2012). ... more Teaching and learning (T&L) is considered an essential skill for graduate students (Rose, 2012). University T&L centres offer a range of workshops, seminars, and certificates, which allow students to engage with peers who are interested and enthusiastic about T&L and gain support for and confidence in their own teaching (Hughes, 2006). Still, there can be little opportunity for students to engage in more informal T&L dialogue within or outside of their department (Leger & Young, 2014). Through informal student feedback, the Centre for Learning and Teaching (CLT) at Dalhousie University identified this gap in graduate student T&L development, and created the Dalhousie CLT Champions in 2013.
Canadian courts use simple probability reasoning inconsistently in personal injury litigation, su... more Canadian courts use simple probability reasoning inconsistently in personal injury litigation, subjecting litigants to irregular legal principles and potentially improper compensation. Turning to foundational principles of tort litigation, I suggest a new framework for the availability of simple probability that would promote greater coherence. Simple probability reasoning is understood as an alternative standard of proof that enables compensation for a loss proportional to the likelihood that the loss will occur. Accordingly, the availability of simple probability is thought to depend on which types of facts (past vs. future vs. hypothetical facts) are amenable to balance of probabilities proof versus simple probability. This is the ‘type of fact’ framework, but it is not applied consistently. Part 1 argues that the inconsistency is rooted in the mischaracterization of simple probability reasoning as a standard of proof. It is better conceived of as a method of enabling chances, in...
Critiquing Instrumentalism in Higher Education: Lessons from Teaching as Meditative Inquiry, 2021
In this conceptual and self-reflective essay, the authors begin from the premise that the contemp... more In this conceptual and self-reflective essay, the authors begin from the premise that the contemporary higher educational institutions in Canada and many other parts of the world have increasingly tended to focus on instrumental teaching, rooted in neoliberal and capitalist ideals of societal progress through economic development. The result is that higher education centralizes making students career ready, rather than the holistic development of the student. Critical of this, Ashwani Kumar (professor of Education) and Nayha Acharya (professor of Law), undertake a collaborative effort to discuss how Kumar's theoretical and practical concept of teaching as meditative inquiry can be an antidote to instrumentalism in higher education. In the first part of this essay, Kumar describes his concept of teaching as meditative inquiry by unfolding its theoretical rooting and giving practical examples of how he has used this approach in his teacher education and graduate education courses as well as in his doctoral seminar in contemporary educational theory at Mount Saint Vincent University in Halifax, Nova Scotia. In the second part, Acharya narrates her experimentation with the teaching as meditative inquiry approach in her Alternative Dispute Resolution course, which she teaches at the
This thesis is an inquiry into the legitimacy of judicial fact-finding in civil litigation. Judge... more This thesis is an inquiry into the legitimacy of judicial fact-finding in civil litigation. Judges make authoritative factual findings in conditions of uncertainty and the decision-making process cannot, and does not, guarantee the accuracy of those outcomes. Given the inevitable risk of error, on what basis is the authority of judicial fact-finding legitimate? This project provides a framework of procedural legitimacy that bridges two unavoidable aspects of adjudication: factual indeterminacy and the need for justifiably authoritative dispute resolution.
Canadian courts use simple probability reasoning inconsistently in personal injury litigation, su... more Canadian courts use simple probability reasoning inconsistently in personal injury litigation, subjecting litigants to irregular legal principles and potentially improper compensation. Turning to foundational principles of tort litigation, I suggest a new framework for the availability of simple probability that would promote greater coherence. Simple probability reasoning is understood as an alternative standard of proof that enables compensation for a loss proportional to the likelihood that the loss will occur. Accordingly, the availability of simple probability is thought to depend on which types of facts (past vs. future vs. hypothetical facts) are amenable to balance of probabilities proof versus simple probability. This is the ‘type of fact’ framework, but it is not applied consistently. Part 1 argues that the inconsistency is rooted in the mischaracterization of simple probability reasoning as a standard of proof. It is better conceived of as a method of enabling chances, in...
Este artículo demostrará cómo la orientación filosófica contribuiría valiosamente al campo de la ... more Este artículo demostrará cómo la orientación filosófica contribuiría valiosamente al campo de la resolución de conflictos a través de la mediación y la justicia civil en general. La mediación es un proceso de resolución de conflictos que involucra a un tercero que facilita a las partes en disputa llegar a una resolución autónoma. Este proceso se está incorporando a los sistemas de justicia civil a nivel mundial, pero la forma en que se debe llevar a cabo la mediación para lograr resultados verdaderamente justos requiere una atención inmediata y reflexiva. En el mejor de los casos, la mediación empodera a las partes para crear conjuntamente una resolución justa de su conflicto a través de una exploración dialógica de los intereses, necesidades y normas y valores relevantes.3 Esto es radicalmente diferente al proceso judicativo en el que las partes se basan en marcos legales y decisiones judiciales autorizadas para resolver conflictos. En la mediación, las partes deben reconocer y pen...
In this reflective piece, we explore why and how adopting principles of holistic education can he... more In this reflective piece, we explore why and how adopting principles of holistic education can help mitigate the crisis of well-being in legal education and in the legal profession. This project emerged from a series of informal conversations in which we discussed various factors influencing our pedagogical styles and found a shared central essence in both our approaches that align with holistic teaching. Given that this paper emerged through subjective conversation, we present subjective narratives about our experiences as early-career faculty members at Canadian law schools, and then critically analyze the narratives by distilling common emergent themes and threads relating to wellness, teaching with care, marginality, and whole-person (holistic) education generally. Within the context of these themes, we discuss potential avenues for making teaching and learning about law more enriching. Our hope is that this paper serves as an invitation to other academics to contribute their ow...
I am grateful to Professors Edmond and Roach\u27 and Professor Haack2 for their thoughtful replie... more I am grateful to Professors Edmond and Roach\u27 and Professor Haack2 for their thoughtful replies to my paper, Law \u27s Treatment of Science: From Idealizationto Understanding.Much like my experience after reading A Contextual Approach to the Admissibility of the State\u27s Forensic Science and Medical Evidence, \u27 and Haack\u27s contributions, 4 I have come away from reviewing Edmond and Roach and Haack\u27s replies with a heightened awareness that the admissibility of scientific evidence is significant and complicated. Both replies have raised important concerns that have demanded further attention from me, which I turn to here. My response to Edmond and Roach\u27s Reply is in Part I below, followed by my response to Haack\u27s Reply in Part II
Increasing reliance on scientific evidence in litigation has created a demand for discussions dir... more Increasing reliance on scientific evidence in litigation has created a demand for discussions directed at enabling a legitimate interaction between science and law The article develops the notion ofprocedural legitimacy-that adherence to legal procedure maintains the legitimacy of the adjudicative system and its outcomes -and applies it to determining how best to admit and use scientific evidence. The problem of undervaluing procedural legitimacy is illustrated through a commentary on contributions to the science and law discussion of Edmond and Roach, and Haack. The author\u27s thesis is that maintaining adjudicative legitimacy depends on procedural rules being applied as vigilantly to science as to any other evidence. Accordingly, admissibility rules must be properly applied to scientific evidence and, once admitted, the evidence must be scrutinized and weighed against the legal standard of proof. The recommendations for treatment of scientific evidence in the Goudge Inquiry Repor...
In this conceptual and self-reflective essay, the authors begin from the premise that the contemp... more In this conceptual and self-reflective essay, the authors begin from the premise that the contemporary higher educational institutions in Canada and many other parts of the world have increasingly tended to focus on instrumental teaching, rooted in neoliberal and capitalist ideals of societal progress through economic development. The result is that higher education centralizes making students career ready, rather than the holistic development of the student. Critical of this, Ashwani Kumar (professor of Education) and Nayha Acharya (professor of Law), undertake a collaborative effort to discuss how Kumar's theoretical and practical concept of teaching as meditative inquiry can be an antidote to instrumentalism in higher education. In the first part of this essay, Kumar describes his concept of teaching as meditative inquiry by unfolding its theoretical rooting and giving practical examples of how he has used this approach in his teacher education and graduate education courses as well as in his doctoral seminar in contemporary educational theory at Mount Saint Vincent University in Halifax, Nova Scotia. In the second part, Acharya narrates her experimentation with the teaching as meditative inquiry approach in her Alternative Dispute Resolution course, which she teaches at the
Canadian courts use simple probability reasoning inconsistently in personal injury litigation, su... more Canadian courts use simple probability reasoning inconsistently in personal injury litigation, subjecting litigants to irregular legal principles and potentially improper compensation. Turning to foundational principles of tort litigation, I suggest a new framework for the availability of simple probability that would promote greater coherence. Simple probability reasoning is under-stood as an alternative standard of proof that enables compensation for a loss proportional to the likelihood that the loss will occur. Accordingly, the avail-ability of simple probability is thought to depend on which types of facts (past vs. future vs. hypothetical facts) are amenable to balance of probabilities proof versus simple probability. This is the ‘type of fact ’ framework, but it is not applied consistently. Part 1 argues that the inconsistency is rooted in the mischaracterization of simple probability reasoning as a standard of proof. It is better conceived of as a method of enabling chances,...
The crucial question for many legal disputes is “what happened,”? and there is often no easy answ... more The crucial question for many legal disputes is “what happened,”? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas’s insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be factually reliable. This requires: (a) relevant evidence is admissible and exclusions are justified based on respecting human autonomy; (b) error-risk management is internally coherent and consistent; (c) the standard of proof is, at minimum, a balance of probabilities; (d) evidence is used rationally. Second, fact...
In this conceptual and self-reflective essay, the authors begin from the premise that the contemp... more In this conceptual and self-reflective essay, the authors begin from the premise that the contemporary higher educational institutions in Canada and many other parts of the world have increasingly tended to focus on instrumental teaching, rooted in neoliberal and capitalist ideals of societal progress through economic development. The result is that higher education centralizes making students career ready, rather than the holistic development of the student. Critical of this, Ashwani Kumar (professor of Education) and Nayha Acharya (professor of Law), undertake a collaborative effort to discuss how Kumar's theoretical and practical concept of teaching as meditative inquiry can be an antidote to instrumentalism in higher education. In the first part of this essay, Kumar describes his concept of teaching as meditative inquiry by unfolding its theoretical rooting and giving practical examples of how he has used this approach in his teacher education and graduate education courses ...
Teaching and learning (T&L) is considered an essential skill for graduate students (Rose, 2012). ... more Teaching and learning (T&L) is considered an essential skill for graduate students (Rose, 2012). University T&L centres offer a range of workshops, seminars, and certificates, which allow students to engage with peers who are interested and enthusiastic about T&L and gain support for and confidence in their own teaching (Hughes, 2006). Still, there can be little opportunity for students to engage in more informal T&L dialogue within or outside of their department (Leger & Young, 2014). Through informal student feedback, the Centre for Learning and Teaching (CLT) at Dalhousie University identified this gap in graduate student T&L development, and created the Dalhousie CLT Champions in 2013.
Canadian courts use simple probability reasoning inconsistently in personal injury litigation, su... more Canadian courts use simple probability reasoning inconsistently in personal injury litigation, subjecting litigants to irregular legal principles and potentially improper compensation. Turning to foundational principles of tort litigation, I suggest a new framework for the availability of simple probability that would promote greater coherence. Simple probability reasoning is understood as an alternative standard of proof that enables compensation for a loss proportional to the likelihood that the loss will occur. Accordingly, the availability of simple probability is thought to depend on which types of facts (past vs. future vs. hypothetical facts) are amenable to balance of probabilities proof versus simple probability. This is the ‘type of fact’ framework, but it is not applied consistently. Part 1 argues that the inconsistency is rooted in the mischaracterization of simple probability reasoning as a standard of proof. It is better conceived of as a method of enabling chances, in...
Critiquing Instrumentalism in Higher Education: Lessons from Teaching as Meditative Inquiry, 2021
In this conceptual and self-reflective essay, the authors begin from the premise that the contemp... more In this conceptual and self-reflective essay, the authors begin from the premise that the contemporary higher educational institutions in Canada and many other parts of the world have increasingly tended to focus on instrumental teaching, rooted in neoliberal and capitalist ideals of societal progress through economic development. The result is that higher education centralizes making students career ready, rather than the holistic development of the student. Critical of this, Ashwani Kumar (professor of Education) and Nayha Acharya (professor of Law), undertake a collaborative effort to discuss how Kumar's theoretical and practical concept of teaching as meditative inquiry can be an antidote to instrumentalism in higher education. In the first part of this essay, Kumar describes his concept of teaching as meditative inquiry by unfolding its theoretical rooting and giving practical examples of how he has used this approach in his teacher education and graduate education courses as well as in his doctoral seminar in contemporary educational theory at Mount Saint Vincent University in Halifax, Nova Scotia. In the second part, Acharya narrates her experimentation with the teaching as meditative inquiry approach in her Alternative Dispute Resolution course, which she teaches at the
This thesis is an inquiry into the legitimacy of judicial fact-finding in civil litigation. Judge... more This thesis is an inquiry into the legitimacy of judicial fact-finding in civil litigation. Judges make authoritative factual findings in conditions of uncertainty and the decision-making process cannot, and does not, guarantee the accuracy of those outcomes. Given the inevitable risk of error, on what basis is the authority of judicial fact-finding legitimate? This project provides a framework of procedural legitimacy that bridges two unavoidable aspects of adjudication: factual indeterminacy and the need for justifiably authoritative dispute resolution.
Canadian courts use simple probability reasoning inconsistently in personal injury litigation, su... more Canadian courts use simple probability reasoning inconsistently in personal injury litigation, subjecting litigants to irregular legal principles and potentially improper compensation. Turning to foundational principles of tort litigation, I suggest a new framework for the availability of simple probability that would promote greater coherence. Simple probability reasoning is understood as an alternative standard of proof that enables compensation for a loss proportional to the likelihood that the loss will occur. Accordingly, the availability of simple probability is thought to depend on which types of facts (past vs. future vs. hypothetical facts) are amenable to balance of probabilities proof versus simple probability. This is the ‘type of fact’ framework, but it is not applied consistently. Part 1 argues that the inconsistency is rooted in the mischaracterization of simple probability reasoning as a standard of proof. It is better conceived of as a method of enabling chances, in...
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