The ability to make good decisions is key to personal and professional success for students. In t... more The ability to make good decisions is key to personal and professional success for students. In this case study, we outline a set of in-class exercises that we have used for students in business, law, human resources, and public policy to help them understand and internalize their susceptibility to cognitive errors. Specifically, we illustrate an experiential way to teach and learn the anchoring effect: a cognitive bias that causes decision-makers to rely too heavily on initial information when making subsequent judgments. We describe an anchoring exercise that can be easily adapted to various settings, and show its effectiveness in achieving the learning outcomes based on aggregated classroom data and our own experiences of student reactions. We show the robustness of the exercise to adaptation-including the various iterations of the exercise that have evolved over the course of our teaching-and highlight the challenges we encountered. We also discuss how the exercise can be used to encourage students to consider anchoring's ethical implications, as well as strategies to safeguard against being anchored.
judiciaire dans le contexte du « lieu de résidence » du point de vue de la jurisprudence canadien... more judiciaire dans le contexte du « lieu de résidence » du point de vue de la jurisprudence canadienne, mais aussi des perspectives internationales et comparatives, pour conclure qu'une loi provinciale qui exige le consentement de l'exécutif pour transférer un juge d'un district judiciaire à un autre est inconstitutionnelle.
Donoghue v Stevenson is justly the most well-known legal case, at least in Commonwealth legal sys... more Donoghue v Stevenson is justly the most well-known legal case, at least in Commonwealth legal systems, and its fame rests largely on the judicial opinion of Lord Atkin in the case and his enunciation of the neighbour principle, which heralded the modern law of negligence. Among Donoghue devotees, it is well known that May Donoghue’s counsel cited only seven cases in written argument — in contrast to the roughly two dozen cited by Lord Atkin. So even without Atkin’s cryptic modesty ("I speak with little authority on this point, but my own research, such as it is . . . "), we can infer that he must have pursued his own research agenda. What has so far been an inference is now a certitude, with the startling discovery of a bundle of papers relating to the case. Written in a spidery and sometimes illegible hand and merely initialled "JRA" (that is, James Richard Atkin), they reveal Atkin’s research process, his innermost thoughts about the state of the law, his efforts to lobby his judicial colleagues, and his excitement as the judgment took shape. The Donoghue Diaries — transcribed by the author before being lost in a fire — are therefore a must read for legal historians, lawyers, jurisprudes and all aficionados of the legal imagination. Footnotes have been added for clarification or reference, and citations and other conventions have been updated where warranted.
Page 1. From Brouhahas to Brehon Laws: Poetic Impulse in the Law John C Kleefeld* As poet and mat... more Page 1. From Brouhahas to Brehon Laws: Poetic Impulse in the Law John C Kleefeld* As poet and mathematician, he would reason well; as mere mathematician, he could not have reasoned at all. Edgar Allan Poe1 When Pennsylvania ...
The year 2014 marks the seventieth anniversary of Saskatchewan's Contributory Negligence Act,... more The year 2014 marks the seventieth anniversary of Saskatchewan's Contributory Negligence Act, which, in its present form, provides for the apportionment of liability according to fault in a tort action and the rights of those at fault to seek contribution inter se for amounts paid to a successful plaintiff.In human life, 70 is a respectable age to celebrate, reflect on, and recount one’s life — perhaps not even too late an age to reform oneself. As in life, so with statutes. What are the Act’s vital statistics? What are the factors that gave rise to its birth? Who are the people who have interacted with it? How has it fared through childhood, youth, adulthood, and middle age and what are its prospects for its more mature years? In light of changes recommended over many decades by the Uniform Law Conference of Canada and law reform bodies in Alberta, Ontario, British Columbia, Saskatchewan, Nova Scotia, and Manitoba, is it time to entertain change?By asking and attempting to answer these questions, we will be heeding a call by UK scholars Arvind and Steele to redress the dearth of scholarly attention paid to legislation in tort law — to take up their challenge of seeing statutes not just as “operating at the margins of the common law…[but] as contributing to the pattern of principles to be found in the law.”
This article reviews the 4th edition of OSCOLA, the Oxford Standard for Citation of Legal Authori... more This article reviews the 4th edition of OSCOLA, the Oxford Standard for Citation of Legal Authorities, suggesting that it poses a four-pronged challenge to other contenders in the world of legal citation. The first aims at the "hegemony of uniformity." The second, at a tendency to what Posner has declaimed as "hypertrophy" in the size of legal citation manuals. The third, at barriers to accessing such manuals. And the fourth prong, gentler and more tentative than the others, aims at the notion that footnoting and referencing legal materials is purely a question of function, with little role for beauty, elegance, or style.
This article is an extended case comment on the 1998 decision of the Supreme Court of Canada in W... more This article is an extended case comment on the 1998 decision of the Supreme Court of Canada in Westcoast Energy Inc. v Canada (National Energy Board). The Court revisited the tension between Canadian nation-building and "local ambition," resolving it in favour of centralism and deciding that the National Energy Board had jurisdiction to hear an application to approve the construction of natural gas processing facilities.The case gave the Court the opportunity to review the rich body of transportation and communication case law under section 92(10)(a) of the Constitution Act, 1867, as well as section 92A, the 1982 resource amendment clause. However, the case was decided with little reference to competing visions of federalism or organizing principles of the Constitution. Instead, the majority put a premium on the applicant's description of its business and the extent to which its business components and facilities were subject to common management. That methodology provides an easy touchstone for determining jurisdiction, but comes at the cost of a deeper analysis that puts more weight on ascertaining the structure and purpose of the Constitution's division of powers between federal and provincial governments.The structural or purposive analysis is evident in the dissenting opinion, which the article suggests is an approach that can yield more principled solutions in what has long been an overly fact-specific and enigmatic area of Canadian constitutional law.
For some students, law school leads to a perception of legal education as favouring technical pro... more For some students, law school leads to a perception of legal education as favouring technical proficiency and structural similarity over innovation and creativity, leading to disengagement in learning. To address this, we offered a creative option in two first-year law courses, worth 20% of the grade. Students who chose this option created a diversity of artistic works, including short stories, visual arts, literary criticism, culinary art, music and lyric composition, film, a blog, a video game, and a board game. Some of these works were of startling originality; all engaged in law in unconventional ways. We assessed the work using a rubric with descriptors relating both to artistic merit and legal knowledge or law studies. Later, we surveyed all 30 students who had submitted a creative project. The survey instrument used both open-ended questions and a set of statements that students rated on a 1-5 Likert scale. When asked to rank whether the project positively contributed to their law school experience, the response was overwhelmingly in agreement. The students said that completing a creative project developed their understanding of property or tort law, the two subjects in which the option was offered; that it helped them to develop practical legal skills; and that, for some, it contributed to a sense of belonging and community, thereby assisting with overcoming some of the alienation associated with law school. Based on our experience, we enthusiastically encourage other law schools to try offering a creative option to their students, particularly in first year.
The year 2016 was a milestone for the law-and-apology field, marking the thirtieth anniversary of... more The year 2016 was a milestone for the law-and-apology field, marking the thirtieth anniversary of the first general law aimed at enabling apologies for civil wrongs, introduced in Massachusetts in 1986, as well as the tenth anniversary of the Apology Act, enacted in British Columbia in 2006. The Apology Act seeks to promote apologies and apologetic discourse as an important form of out-of-court dispute resolution, chiefly by making apologetic statements inadmissible for proving liability in civil wrongs. It has served as a benchmark from which subsequent law reform efforts in Canada and abroad have been measured. In 2017, that benchmark was passed with the enactment in Hong Kong of the most ambitious apology law yet, which privileges not only statements of remorse, but also statements of facts embedded in apologies. This article summarises global apology legislation and court decisions to date. Part I considers each major jurisdiction, starting with the USA and concluding with Hong Kong. Part II draws some conclusions about where we have been and where we are going in our efforts to promote or protect apologetic discourse, including recommendations on interpreting existing laws and on drafting or redrafting apology legislation.
Page 1. ADMINISTRATIVE TRIBUNALS AND THE CONSTITUTION: RECLAIMING THE GRAIL John С Kleefeld* Art ... more Page 1. ADMINISTRATIVE TRIBUNALS AND THE CONSTITUTION: RECLAIMING THE GRAIL John С Kleefeld* Art thou so bold and has not seen the Grail? The Holy Grail by Alfred, Lord Tennyson1 No ... er ... no ... I... er... I... er ... I certainly wasn't giving up ... ...
Law education, like the common law itself, develops incrementally. Thus the notion that law's... more Law education, like the common law itself, develops incrementally. Thus the notion that law's rationality makes it amenable to scientific inquiry — the so-called Langdellian revolution in which law is seen as a science, the library its laboratory, case study its method — took some three-quarters of a century to become the dominant form of legal pedagogy in Canada. And while there have been other cross-currents, pedagogical movements and forms of instruction, the dominant mode of teaching students how to "think like a lawyer" is still the study of common law doctrines and the manipulation of rules within those doctrines. This is unsatisfactory for producing either first-rate practitioners or legal scholars. As law schools enter the 21st century and as new conceptions of law and lawyering emerge, we need a first-year course that, in an integrated fashion, aims to instill a culture of professional competence and ethics while at the same time laying the foundation for reflective and critical thinking about law. The course envisioned here — one that would supplement, rather than supplant, doctrinal analysis — aims to nurture both types of competency. The course content falls in three broad subject categories: philosophy of law and jurisprudence; history and development of the justice system and the legal profession; and law practice. The categorization is hardly unique, though the grouping of subjects in a single course may seem novel. The idea is to provide the foundation for both a scholarly, thoughtful professionalism and an approach to scholarship that is confident about its ability to critique the legal community because it knows something of what lawyers actually do. Moreover, it aims to build this foundation at the outset, when students are impressionable, excited about starting law school, and keen to learn.
Copyright (c) 2005 Queen's Law Journal and Author, Jointly Queen's Law Journal.... more Copyright (c) 2005 Queen's Law Journal and Author, Jointly Queen's Law Journal. Spring, 2005. 9 Queen's LJ 449. LENGTH: 19711 words Resolving Mass Wrongs: A Command-Consensus Perspective. NAME: John C. Kleefeld* and Anila Srivastava**. ...
Teaching and learning negotiation typically involves using simulations to illustrate concepts, st... more Teaching and learning negotiation typically involves using simulations to illustrate concepts, stimulate reflection, and integrate theory and practice. Face-to-face exercises are the most common, and though effective in some ways, fail to address the increasing reality of electronic modes of communication and typically focus on a single meeting rather than developing a negotiating relationship over time. Building on previous work in which law students negotiated a private transaction by email, we extended the idea to plea bargaining, a form of dispute resolution essential to the functioning of the criminal justice system and one in which the paramount consideration is the public interest. Using materials from the scenario and excerpts from the students\u27 learning journals, we hope to show that such simulations can contribute to better integration of skills and theory and to deeper and more satisfying learning
The authors use the Supreme Court of Canada's decision in Bruker v. Marcovitz as a lens for e... more The authors use the Supreme Court of Canada's decision in Bruker v. Marcovitz as a lens for examining the problem of Jewish divorce, which pits two religious freedoms against each other: a man’s freedom not to grant a get or Jewish divorce to his wife, and his wife’s freedom to remarry according to the tenets of Judaism. The authors outline the case history starting with the decisions of the Quebec Superior Court and Court of Appeal, explain the questions that the majority and minority asked themselves in the Supreme Court of Canada, and conclude by analyzing that Court’s decision and its implications for Jewish spouses and spouses of other religious minorities going through the divorce process. First, though, the authors explain the nature of a get, the consequences of not obtaining one, and the responses of both Jewish and secular law, all crucial to understanding how Bruker v. Marcovitz was decided and how comparable cases should be decided in a multicultural society like Canada.
Imagine a world in which every single person on the planet is given free access to the sum of all... more Imagine a world in which every single person on the planet is given free access to the sum of all human knowledge. That's what we're doing.-Jimmy Wales, Wikipedia founder 1
This article situates the action in ADR theory by viewing it as a hybrid process that draws on bo... more This article situates the action in ADR theory by viewing it as a hybrid process that draws on both the command and consensus portions of a rational dispute resolution continuum. Class action legislation does this in a number of ways, the most important being the scope it gives to courts to approve or disapprove class settlements that have been privately negotiated by defence and class counsel. The rationale is to protect the interests of absent class members and ensure that the legislative goals of class actions-access to justice, judicial economy and behaviour modification-are well served. Class actions can thereby render moot some of the private/public debate over settlement by taking disputes out of the purely private realm and placing them in the quasi-public realm. However, this places courts in an unaccustomed role and calls for the need for more empirical research on settlement quality to help judges evaluate negotiated outcomes. A recently completed study by the Rand Institute for Civil Justice is suggested as a model for fulfilling this research need in Canada. The article's focus is comparative and Canadian, drawing on legislation and case law in Quebec, Ontario and British Columbia.
It has become de rigeur to assert that class actions have three advantages: judicial economy, acc... more It has become de rigeur to assert that class actions have three advantages: judicial economy, access to justice and behavior modification. But the third of these has received scant attention, and such as it has received has failed to adequately account for Homo legislativus. This species of defendant, closely related to Homo economicus, responds to class action threats, not by modifying the allegedly wrongful behavior, but by seeking legislative relief for class action pain. To better understand what is going on, we need a framework or schema that better takes account of defendants' legislative-seeking behavior in the context of class actions and other large-scale claims.Drawing chiefly from Canadian claims experience, the article sets out such a schema based on pre- and post-dispute phases. A prominent example of pre-dispute behavior is the enactment of 'private legislation' to preclude class claims through contractual clauses that mandate arbitration and bar class actions or class arbitration. Alternatively, defendants may seek to forestall, eliminate or cap liability by lobbying for legislation. When sought to preclude an action, the behavior may be called proactive or preemptive; when sought to reverse a judicial decision, the behavior may be called reactive or retaliatory. Examples of both behaviors are provided. Another type of behavioral response is to seek to legalize or to regulate activities that were previously illegal or unlawful. The Canadian payday loan industry's success in using this strategy to fight off 'criminal interest' class actions is a remarkable example of Homo legislativus at work. In post-dispute phases, defendants may be able to frustrate the ability of a class to collect a remedy or counsel to collect a fee; alternatively, defendants may simply be able to absorb or spread the costs of the action and the remedy across other consumers, as one gas distribution utility did by seeking a rate increase to pay for the legal and settlement costs associated with a class action.Responses to Homo legislativus include such things as consumer protection statutes to limit the use of pre-dispute arbitration clauses (proving that Homo legislativus is alive and well in plaintiffs as well as defendants) and close judicial scrutiny of class action settlements to ensure that wrongful behavior is corrected rather than rewarded. Such efforts go some way to providing a countervailing influence to defendant behavior, but more work is needed if society is to realize the behavior modification goal that has been suggested to be an advantage of class actions.
The ability to make good decisions is key to personal and professional success for students. In t... more The ability to make good decisions is key to personal and professional success for students. In this case study, we outline a set of in-class exercises that we have used for students in business, law, human resources, and public policy to help them understand and internalize their susceptibility to cognitive errors. Specifically, we illustrate an experiential way to teach and learn the anchoring effect: a cognitive bias that causes decision-makers to rely too heavily on initial information when making subsequent judgments. We describe an anchoring exercise that can be easily adapted to various settings, and show its effectiveness in achieving the learning outcomes based on aggregated classroom data and our own experiences of student reactions. We show the robustness of the exercise to adaptation-including the various iterations of the exercise that have evolved over the course of our teaching-and highlight the challenges we encountered. We also discuss how the exercise can be used to encourage students to consider anchoring's ethical implications, as well as strategies to safeguard against being anchored.
judiciaire dans le contexte du « lieu de résidence » du point de vue de la jurisprudence canadien... more judiciaire dans le contexte du « lieu de résidence » du point de vue de la jurisprudence canadienne, mais aussi des perspectives internationales et comparatives, pour conclure qu'une loi provinciale qui exige le consentement de l'exécutif pour transférer un juge d'un district judiciaire à un autre est inconstitutionnelle.
Donoghue v Stevenson is justly the most well-known legal case, at least in Commonwealth legal sys... more Donoghue v Stevenson is justly the most well-known legal case, at least in Commonwealth legal systems, and its fame rests largely on the judicial opinion of Lord Atkin in the case and his enunciation of the neighbour principle, which heralded the modern law of negligence. Among Donoghue devotees, it is well known that May Donoghue’s counsel cited only seven cases in written argument — in contrast to the roughly two dozen cited by Lord Atkin. So even without Atkin’s cryptic modesty ("I speak with little authority on this point, but my own research, such as it is . . . "), we can infer that he must have pursued his own research agenda. What has so far been an inference is now a certitude, with the startling discovery of a bundle of papers relating to the case. Written in a spidery and sometimes illegible hand and merely initialled "JRA" (that is, James Richard Atkin), they reveal Atkin’s research process, his innermost thoughts about the state of the law, his efforts to lobby his judicial colleagues, and his excitement as the judgment took shape. The Donoghue Diaries — transcribed by the author before being lost in a fire — are therefore a must read for legal historians, lawyers, jurisprudes and all aficionados of the legal imagination. Footnotes have been added for clarification or reference, and citations and other conventions have been updated where warranted.
Page 1. From Brouhahas to Brehon Laws: Poetic Impulse in the Law John C Kleefeld* As poet and mat... more Page 1. From Brouhahas to Brehon Laws: Poetic Impulse in the Law John C Kleefeld* As poet and mathematician, he would reason well; as mere mathematician, he could not have reasoned at all. Edgar Allan Poe1 When Pennsylvania ...
The year 2014 marks the seventieth anniversary of Saskatchewan's Contributory Negligence Act,... more The year 2014 marks the seventieth anniversary of Saskatchewan's Contributory Negligence Act, which, in its present form, provides for the apportionment of liability according to fault in a tort action and the rights of those at fault to seek contribution inter se for amounts paid to a successful plaintiff.In human life, 70 is a respectable age to celebrate, reflect on, and recount one’s life — perhaps not even too late an age to reform oneself. As in life, so with statutes. What are the Act’s vital statistics? What are the factors that gave rise to its birth? Who are the people who have interacted with it? How has it fared through childhood, youth, adulthood, and middle age and what are its prospects for its more mature years? In light of changes recommended over many decades by the Uniform Law Conference of Canada and law reform bodies in Alberta, Ontario, British Columbia, Saskatchewan, Nova Scotia, and Manitoba, is it time to entertain change?By asking and attempting to answer these questions, we will be heeding a call by UK scholars Arvind and Steele to redress the dearth of scholarly attention paid to legislation in tort law — to take up their challenge of seeing statutes not just as “operating at the margins of the common law…[but] as contributing to the pattern of principles to be found in the law.”
This article reviews the 4th edition of OSCOLA, the Oxford Standard for Citation of Legal Authori... more This article reviews the 4th edition of OSCOLA, the Oxford Standard for Citation of Legal Authorities, suggesting that it poses a four-pronged challenge to other contenders in the world of legal citation. The first aims at the "hegemony of uniformity." The second, at a tendency to what Posner has declaimed as "hypertrophy" in the size of legal citation manuals. The third, at barriers to accessing such manuals. And the fourth prong, gentler and more tentative than the others, aims at the notion that footnoting and referencing legal materials is purely a question of function, with little role for beauty, elegance, or style.
This article is an extended case comment on the 1998 decision of the Supreme Court of Canada in W... more This article is an extended case comment on the 1998 decision of the Supreme Court of Canada in Westcoast Energy Inc. v Canada (National Energy Board). The Court revisited the tension between Canadian nation-building and "local ambition," resolving it in favour of centralism and deciding that the National Energy Board had jurisdiction to hear an application to approve the construction of natural gas processing facilities.The case gave the Court the opportunity to review the rich body of transportation and communication case law under section 92(10)(a) of the Constitution Act, 1867, as well as section 92A, the 1982 resource amendment clause. However, the case was decided with little reference to competing visions of federalism or organizing principles of the Constitution. Instead, the majority put a premium on the applicant's description of its business and the extent to which its business components and facilities were subject to common management. That methodology provides an easy touchstone for determining jurisdiction, but comes at the cost of a deeper analysis that puts more weight on ascertaining the structure and purpose of the Constitution's division of powers between federal and provincial governments.The structural or purposive analysis is evident in the dissenting opinion, which the article suggests is an approach that can yield more principled solutions in what has long been an overly fact-specific and enigmatic area of Canadian constitutional law.
For some students, law school leads to a perception of legal education as favouring technical pro... more For some students, law school leads to a perception of legal education as favouring technical proficiency and structural similarity over innovation and creativity, leading to disengagement in learning. To address this, we offered a creative option in two first-year law courses, worth 20% of the grade. Students who chose this option created a diversity of artistic works, including short stories, visual arts, literary criticism, culinary art, music and lyric composition, film, a blog, a video game, and a board game. Some of these works were of startling originality; all engaged in law in unconventional ways. We assessed the work using a rubric with descriptors relating both to artistic merit and legal knowledge or law studies. Later, we surveyed all 30 students who had submitted a creative project. The survey instrument used both open-ended questions and a set of statements that students rated on a 1-5 Likert scale. When asked to rank whether the project positively contributed to their law school experience, the response was overwhelmingly in agreement. The students said that completing a creative project developed their understanding of property or tort law, the two subjects in which the option was offered; that it helped them to develop practical legal skills; and that, for some, it contributed to a sense of belonging and community, thereby assisting with overcoming some of the alienation associated with law school. Based on our experience, we enthusiastically encourage other law schools to try offering a creative option to their students, particularly in first year.
The year 2016 was a milestone for the law-and-apology field, marking the thirtieth anniversary of... more The year 2016 was a milestone for the law-and-apology field, marking the thirtieth anniversary of the first general law aimed at enabling apologies for civil wrongs, introduced in Massachusetts in 1986, as well as the tenth anniversary of the Apology Act, enacted in British Columbia in 2006. The Apology Act seeks to promote apologies and apologetic discourse as an important form of out-of-court dispute resolution, chiefly by making apologetic statements inadmissible for proving liability in civil wrongs. It has served as a benchmark from which subsequent law reform efforts in Canada and abroad have been measured. In 2017, that benchmark was passed with the enactment in Hong Kong of the most ambitious apology law yet, which privileges not only statements of remorse, but also statements of facts embedded in apologies. This article summarises global apology legislation and court decisions to date. Part I considers each major jurisdiction, starting with the USA and concluding with Hong Kong. Part II draws some conclusions about where we have been and where we are going in our efforts to promote or protect apologetic discourse, including recommendations on interpreting existing laws and on drafting or redrafting apology legislation.
Page 1. ADMINISTRATIVE TRIBUNALS AND THE CONSTITUTION: RECLAIMING THE GRAIL John С Kleefeld* Art ... more Page 1. ADMINISTRATIVE TRIBUNALS AND THE CONSTITUTION: RECLAIMING THE GRAIL John С Kleefeld* Art thou so bold and has not seen the Grail? The Holy Grail by Alfred, Lord Tennyson1 No ... er ... no ... I... er... I... er ... I certainly wasn't giving up ... ...
Law education, like the common law itself, develops incrementally. Thus the notion that law's... more Law education, like the common law itself, develops incrementally. Thus the notion that law's rationality makes it amenable to scientific inquiry — the so-called Langdellian revolution in which law is seen as a science, the library its laboratory, case study its method — took some three-quarters of a century to become the dominant form of legal pedagogy in Canada. And while there have been other cross-currents, pedagogical movements and forms of instruction, the dominant mode of teaching students how to "think like a lawyer" is still the study of common law doctrines and the manipulation of rules within those doctrines. This is unsatisfactory for producing either first-rate practitioners or legal scholars. As law schools enter the 21st century and as new conceptions of law and lawyering emerge, we need a first-year course that, in an integrated fashion, aims to instill a culture of professional competence and ethics while at the same time laying the foundation for reflective and critical thinking about law. The course envisioned here — one that would supplement, rather than supplant, doctrinal analysis — aims to nurture both types of competency. The course content falls in three broad subject categories: philosophy of law and jurisprudence; history and development of the justice system and the legal profession; and law practice. The categorization is hardly unique, though the grouping of subjects in a single course may seem novel. The idea is to provide the foundation for both a scholarly, thoughtful professionalism and an approach to scholarship that is confident about its ability to critique the legal community because it knows something of what lawyers actually do. Moreover, it aims to build this foundation at the outset, when students are impressionable, excited about starting law school, and keen to learn.
Copyright (c) 2005 Queen's Law Journal and Author, Jointly Queen's Law Journal.... more Copyright (c) 2005 Queen's Law Journal and Author, Jointly Queen's Law Journal. Spring, 2005. 9 Queen's LJ 449. LENGTH: 19711 words Resolving Mass Wrongs: A Command-Consensus Perspective. NAME: John C. Kleefeld* and Anila Srivastava**. ...
Teaching and learning negotiation typically involves using simulations to illustrate concepts, st... more Teaching and learning negotiation typically involves using simulations to illustrate concepts, stimulate reflection, and integrate theory and practice. Face-to-face exercises are the most common, and though effective in some ways, fail to address the increasing reality of electronic modes of communication and typically focus on a single meeting rather than developing a negotiating relationship over time. Building on previous work in which law students negotiated a private transaction by email, we extended the idea to plea bargaining, a form of dispute resolution essential to the functioning of the criminal justice system and one in which the paramount consideration is the public interest. Using materials from the scenario and excerpts from the students\u27 learning journals, we hope to show that such simulations can contribute to better integration of skills and theory and to deeper and more satisfying learning
The authors use the Supreme Court of Canada's decision in Bruker v. Marcovitz as a lens for e... more The authors use the Supreme Court of Canada's decision in Bruker v. Marcovitz as a lens for examining the problem of Jewish divorce, which pits two religious freedoms against each other: a man’s freedom not to grant a get or Jewish divorce to his wife, and his wife’s freedom to remarry according to the tenets of Judaism. The authors outline the case history starting with the decisions of the Quebec Superior Court and Court of Appeal, explain the questions that the majority and minority asked themselves in the Supreme Court of Canada, and conclude by analyzing that Court’s decision and its implications for Jewish spouses and spouses of other religious minorities going through the divorce process. First, though, the authors explain the nature of a get, the consequences of not obtaining one, and the responses of both Jewish and secular law, all crucial to understanding how Bruker v. Marcovitz was decided and how comparable cases should be decided in a multicultural society like Canada.
Imagine a world in which every single person on the planet is given free access to the sum of all... more Imagine a world in which every single person on the planet is given free access to the sum of all human knowledge. That's what we're doing.-Jimmy Wales, Wikipedia founder 1
This article situates the action in ADR theory by viewing it as a hybrid process that draws on bo... more This article situates the action in ADR theory by viewing it as a hybrid process that draws on both the command and consensus portions of a rational dispute resolution continuum. Class action legislation does this in a number of ways, the most important being the scope it gives to courts to approve or disapprove class settlements that have been privately negotiated by defence and class counsel. The rationale is to protect the interests of absent class members and ensure that the legislative goals of class actions-access to justice, judicial economy and behaviour modification-are well served. Class actions can thereby render moot some of the private/public debate over settlement by taking disputes out of the purely private realm and placing them in the quasi-public realm. However, this places courts in an unaccustomed role and calls for the need for more empirical research on settlement quality to help judges evaluate negotiated outcomes. A recently completed study by the Rand Institute for Civil Justice is suggested as a model for fulfilling this research need in Canada. The article's focus is comparative and Canadian, drawing on legislation and case law in Quebec, Ontario and British Columbia.
It has become de rigeur to assert that class actions have three advantages: judicial economy, acc... more It has become de rigeur to assert that class actions have three advantages: judicial economy, access to justice and behavior modification. But the third of these has received scant attention, and such as it has received has failed to adequately account for Homo legislativus. This species of defendant, closely related to Homo economicus, responds to class action threats, not by modifying the allegedly wrongful behavior, but by seeking legislative relief for class action pain. To better understand what is going on, we need a framework or schema that better takes account of defendants' legislative-seeking behavior in the context of class actions and other large-scale claims.Drawing chiefly from Canadian claims experience, the article sets out such a schema based on pre- and post-dispute phases. A prominent example of pre-dispute behavior is the enactment of 'private legislation' to preclude class claims through contractual clauses that mandate arbitration and bar class actions or class arbitration. Alternatively, defendants may seek to forestall, eliminate or cap liability by lobbying for legislation. When sought to preclude an action, the behavior may be called proactive or preemptive; when sought to reverse a judicial decision, the behavior may be called reactive or retaliatory. Examples of both behaviors are provided. Another type of behavioral response is to seek to legalize or to regulate activities that were previously illegal or unlawful. The Canadian payday loan industry's success in using this strategy to fight off 'criminal interest' class actions is a remarkable example of Homo legislativus at work. In post-dispute phases, defendants may be able to frustrate the ability of a class to collect a remedy or counsel to collect a fee; alternatively, defendants may simply be able to absorb or spread the costs of the action and the remedy across other consumers, as one gas distribution utility did by seeking a rate increase to pay for the legal and settlement costs associated with a class action.Responses to Homo legislativus include such things as consumer protection statutes to limit the use of pre-dispute arbitration clauses (proving that Homo legislativus is alive and well in plaintiffs as well as defendants) and close judicial scrutiny of class action settlements to ensure that wrongful behavior is corrected rather than rewarded. Such efforts go some way to providing a countervailing influence to defendant behavior, but more work is needed if society is to realize the behavior modification goal that has been suggested to be an advantage of class actions.
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