{"title":"Editor’s Introduction","authors":"David Dyzenhaus","doi":"10.3138/utlj-2023-0089","DOIUrl":"https://doi.org/10.3138/utlj-2023-0089","url":null,"abstract":"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"375 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135690842","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Justice Rosalie Abella is closely associated with deference to administrative decision makers. I will argue that her deferential approach was multifaceted, much more sophisticated than might typically be assumed. Abella J’s administrative law jurisprudence is as much about administrative autonomy as it is about judicial deference. On one level, Abella J’s jurisprudence is a jurisprudence of judicial restraint, preaching limited judicial oversight of the administrative process. This reflects the conventional way of thinking about deference in administrative law as a doctrine requiring judicial restraint: it is a shield protecting administrative decision makers from judicial interference. Accordingly, she supported a broad presumption of deference to administrative decision makers and articulated a fairly non-interventionist conception of reasonableness review. But, on a deeper level, Abella J’s jurisprudence is more radical. As I explain, Abella J was not committed simply to a restrained approach to judicial review but, rather, to promoting the autonomy of public administration: she furnished swords to administrative decision makers, allowing them to carve out additional space in which to operate and articulate applied versions of legal norms. Her commitment to administrative autonomy, rather than simply to judicial restraint, prompts reflection about the basis of Abella J’s administrative law philosophy, which must ultimately be grounded in her trust of the administrative process, aligning her with the so-called ‘functionalist’ school of thought associated with progressive thinkers. I then turn to the Supreme Court of Canada’s recent rearticulation of Canadian administrative law in the Vavilov case – a rearticulation with which Abella J expressed firm disagreement. I reflect on why the majority and Abella J diverged in Vavilov and suggest that the key features of Abella J’s jurisprudence – restraint and autonomy – are rooted in a mode of thinking about administrative law that has fallen out of favour.
{"title":"The Autonomy of Administration","authors":"Paul Daly","doi":"10.3138/utlj-2023-0060","DOIUrl":"https://doi.org/10.3138/utlj-2023-0060","url":null,"abstract":"Justice Rosalie Abella is closely associated with deference to administrative decision makers. I will argue that her deferential approach was multifaceted, much more sophisticated than might typically be assumed. Abella J’s administrative law jurisprudence is as much about administrative autonomy as it is about judicial deference. On one level, Abella J’s jurisprudence is a jurisprudence of judicial restraint, preaching limited judicial oversight of the administrative process. This reflects the conventional way of thinking about deference in administrative law as a doctrine requiring judicial restraint: it is a shield protecting administrative decision makers from judicial interference. Accordingly, she supported a broad presumption of deference to administrative decision makers and articulated a fairly non-interventionist conception of reasonableness review. But, on a deeper level, Abella J’s jurisprudence is more radical. As I explain, Abella J was not committed simply to a restrained approach to judicial review but, rather, to promoting the autonomy of public administration: she furnished swords to administrative decision makers, allowing them to carve out additional space in which to operate and articulate applied versions of legal norms. Her commitment to administrative autonomy, rather than simply to judicial restraint, prompts reflection about the basis of Abella J’s administrative law philosophy, which must ultimately be grounded in her trust of the administrative process, aligning her with the so-called ‘functionalist’ school of thought associated with progressive thinkers. I then turn to the Supreme Court of Canada’s recent rearticulation of Canadian administrative law in the Vavilov case – a rearticulation with which Abella J expressed firm disagreement. I reflect on why the majority and Abella J diverged in Vavilov and suggest that the key features of Abella J’s jurisprudence – restraint and autonomy – are rooted in a mode of thinking about administrative law that has fallen out of favour.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135690838","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The public response to the UK Supreme Court’s decisions in Miller and Cherry invites reflection on the independence of the judiciary. Three questions are pertinent: what do we mean by the independence of the judiciary; how do we secure it; and why should we secure it? At its most basic level, the independence of the judiciary means that the justice system is a separate and independent branch of government. Securing it requires security of tenure and sufficient pay for judges, sufficient resources for the justice system to function properly, and an appointment process that is not unduly politicized. The independence of the judiciary is valuable as a necessary component of democratic government. One of the greatest enemies of the independence of our judiciary is the sheer lack of knowledge – among politicians, the media, and the general public – about the justice system. This makes public education an imperative if we are to preserve it.
{"title":"The Independence of the Judiciary and Some of Its Enemies","authors":"","doi":"10.3138/utlj-2023-0063","DOIUrl":"https://doi.org/10.3138/utlj-2023-0063","url":null,"abstract":"The public response to the UK Supreme Court’s decisions in Miller and Cherry invites reflection on the independence of the judiciary. Three questions are pertinent: what do we mean by the independence of the judiciary; how do we secure it; and why should we secure it? At its most basic level, the independence of the judiciary means that the justice system is a separate and independent branch of government. Securing it requires security of tenure and sufficient pay for judges, sufficient resources for the justice system to function properly, and an appointment process that is not unduly politicized. The independence of the judiciary is valuable as a necessary component of democratic government. One of the greatest enemies of the independence of our judiciary is the sheer lack of knowledge – among politicians, the media, and the general public – about the justice system. This makes public education an imperative if we are to preserve it.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"142 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135690839","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the course of her impressive legal career, Justice Rosalie Abella has been a champion for the administration of justice – a constitutional paradigm in which the legislative, executive, and judicial branches of government all share a fundamental duty to ensure that constitutional principles and values are sustained in practice. Thus, she has repeatedly urged judges to exercise restraint when assessing the legality of administrative decisions because administrative officials have valuable experience and expertise regarding the purposive interpretation of legislation. Understanding this constitutional paradigm helps one to identify unifying themes in Abella J’s administrative law jurisprudence and draw important connections between her work and other leading Canadian jurists like Justices Ivan Rand and Bora Laskin. Moreover, it helps one to distinguish this constitutional paradigm from another formalistic constitutional perspective that perceives the judicial role primarily in terms of maintaining an institutional hierarchy in which judges have an interpretive monopoly to determine the content of the law. While the tension between these two constitutional paradigms is apparent in Canada (Minister of Citizenship and Immigration) v Vavilov, Abella J’s work provides important insights on how to grapple with this tension in a productive and principled manner.
{"title":"The Administration of Justice: Justice Rosalie Abella’s Contribution to Canadian Administrative Law","authors":"Matthew Lewans","doi":"10.3138/utlj-2023-0069","DOIUrl":"https://doi.org/10.3138/utlj-2023-0069","url":null,"abstract":"Over the course of her impressive legal career, Justice Rosalie Abella has been a champion for the administration of justice – a constitutional paradigm in which the legislative, executive, and judicial branches of government all share a fundamental duty to ensure that constitutional principles and values are sustained in practice. Thus, she has repeatedly urged judges to exercise restraint when assessing the legality of administrative decisions because administrative officials have valuable experience and expertise regarding the purposive interpretation of legislation. Understanding this constitutional paradigm helps one to identify unifying themes in Abella J’s administrative law jurisprudence and draw important connections between her work and other leading Canadian jurists like Justices Ivan Rand and Bora Laskin. Moreover, it helps one to distinguish this constitutional paradigm from another formalistic constitutional perspective that perceives the judicial role primarily in terms of maintaining an institutional hierarchy in which judges have an interpretive monopoly to determine the content of the law. While the tension between these two constitutional paradigms is apparent in Canada (Minister of Citizenship and Immigration) v Vavilov, Abella J’s work provides important insights on how to grapple with this tension in a productive and principled manner.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135690843","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Section 718.2(e) of the Criminal Code directs sentencing judges to exercise restraint in the use of incarceration ‘with particular attention to the circumstances of Aboriginal offenders.’ In R v Gladue, the Supreme Court of Canada interpreted this as a remedial provision aiming to reduce the incarceration of Indigenous people. That has made it appear to be a failure by its own lights. Yet to write off section 718.2(e) and the Gladue principles would be to fail properly to understand their moral foundations and structure. Judges are called upon to reduce the incarceration of Indigenous people neither by working backwards from prison demographic targets nor merely by combating implicit bias. Rather, Gladue requires judges to open their minds to hitherto unappreciated reasons that many Indigenous offenders should be afforded mitigation, restorative justice, and community-based accountability. One reason, we argue, relates to the unfair criminogenic disadvantages disproportionately faced by Indigenous offenders. Another reason is that the Canadian state’s complicity in such disadvantages calls into question its legitimate authority and its standing to blame Indigenous offenders. In sum, Gladue calls upon our courts to widen the horizon of fairness in their treatment of Indigenous people. This matters for its own sake in each and every case, whether or not it brings about an appreciable reduction in Indigenous incarceration in the aggregate. Our reconstruction of Gladue not only rescues it from cynical dismissals but also helps to solve the central doctrinal puzzles surrounding it: how Indigenous offenders’ unique life circumstances must be connected to their offences to be mitigating; how Gladue principles should apply differently to more and less serious offences; how a variant of Gladue principles should be extended to members of other disadvantaged groups such as Black Canadians; and how judges should weigh the interests of Indigenous victims when sentencing Indigenous offenders.
《刑法》第718.2(e)条指示量刑法官在使用监禁时应保持克制，并特别注意土著罪犯的情况。在R v Gladue案中，加拿大最高法院将其解释为一项旨在减少土著人民监禁的补救条款。从它自己的角度来看，这似乎是一个失败。然而，取消第718.2(e)条和Gladue原则将无法正确理解其道德基础和结构。呼吁法官减少土著人民的监禁，既不能从监狱人口目标倒退，也不能仅仅通过消除隐性偏见。相反，Gladue要求法官开放思想，认识到许多土著罪犯应该得到减轻、恢复性司法和基于社区的问责的原因，而这些原因迄今尚未得到重视。我们认为，其中一个原因与土著罪犯所面临的不公平的犯罪不利因素有关。另一个原因是，加拿大政府在这些不利因素上的合谋使其合法权威和指责土著罪犯的立场受到质疑。总之，格莱杜呼吁我们的法院在对待土著人民时扩大公平的范围。这对每一个案件本身都很重要，无论它是否能显著减少土著居民的监禁。我们对Gladue的重建不仅将其从愤世嫉俗的驳斥中拯救出来，而且还有助于解决围绕它的核心理论难题:土著罪犯的独特生活环境必须与他们的罪行联系起来才能减轻;格拉岱格原则应如何以不同方式适用于严重程度不同的罪行;如何将格莱岱原则的一种变体推广到加拿大黑人等其他弱势群体的成员;以及法官在判决土著罪犯时应如何权衡土著受害者的利益。
{"title":"Reconstructing <i>Gladue</i>","authors":"Benjamin Ewing, Lisa Kerr","doi":"10.3138/utlj-2023-0017","DOIUrl":"https://doi.org/10.3138/utlj-2023-0017","url":null,"abstract":"Section 718.2(e) of the Criminal Code directs sentencing judges to exercise restraint in the use of incarceration ‘with particular attention to the circumstances of Aboriginal offenders.’ In R v Gladue, the Supreme Court of Canada interpreted this as a remedial provision aiming to reduce the incarceration of Indigenous people. That has made it appear to be a failure by its own lights. Yet to write off section 718.2(e) and the Gladue principles would be to fail properly to understand their moral foundations and structure. Judges are called upon to reduce the incarceration of Indigenous people neither by working backwards from prison demographic targets nor merely by combating implicit bias. Rather, Gladue requires judges to open their minds to hitherto unappreciated reasons that many Indigenous offenders should be afforded mitigation, restorative justice, and community-based accountability. One reason, we argue, relates to the unfair criminogenic disadvantages disproportionately faced by Indigenous offenders. Another reason is that the Canadian state’s complicity in such disadvantages calls into question its legitimate authority and its standing to blame Indigenous offenders. In sum, Gladue calls upon our courts to widen the horizon of fairness in their treatment of Indigenous people. This matters for its own sake in each and every case, whether or not it brings about an appreciable reduction in Indigenous incarceration in the aggregate. Our reconstruction of Gladue not only rescues it from cynical dismissals but also helps to solve the central doctrinal puzzles surrounding it: how Indigenous offenders’ unique life circumstances must be connected to their offences to be mitigating; how Gladue principles should apply differently to more and less serious offences; how a variant of Gladue principles should be extended to members of other disadvantaged groups such as Black Canadians; and how judges should weigh the interests of Indigenous victims when sentencing Indigenous offenders.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135472528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The public nuisance tort is now in a critical stage of development, mostly in the United States but also in other jurisdictions, including civil law systems. It is becoming ever more consequential in practice and, at the same time, widely misunderstood by courts and scholars. Our ambition is to defend a private law theory of public nuisance. Contrary to the view that the underlying rights protected by this tort contrast with private rights (say, to bodily integrity), we argue that these public rights are private rights like any other right in the law of torts since they protect private persons taken severally. And, yet, these private rights are also distinctively public in the sense that they protect the interests of private persons to use and enjoy the public sphere. In that, public nuisance imposes not merely ex post liability for undermining these interests but also, first and foremost, constructs a liberal public sphere. Our case for public nuisance shows that private law extends beyond the private sphere to capture entitlements and responsibilities that do not arise from, or attach to, ownership of land; it also resists the reduction of private law to rights of action and ex post determination of liabilities. More concretely, our reconstruction of public nuisance solves two key doctrinal challenges that the tort struggles with – concerning the standing to sue in public nuisance and the economic loss rule – and it also refines the potentially significant role of this tort in addressing the urgent threat posed by climate change.
{"title":"Public Nuisance for Private Persons","authors":"Hanoch Dagan, Avihay Dorfman","doi":"10.3138/utlj-2022-0112","DOIUrl":"https://doi.org/10.3138/utlj-2022-0112","url":null,"abstract":"The public nuisance tort is now in a critical stage of development, mostly in the United States but also in other jurisdictions, including civil law systems. It is becoming ever more consequential in practice and, at the same time, widely misunderstood by courts and scholars. Our ambition is to defend a private law theory of public nuisance. Contrary to the view that the underlying rights protected by this tort contrast with private rights (say, to bodily integrity), we argue that these public rights are private rights like any other right in the law of torts since they protect private persons taken severally. And, yet, these private rights are also distinctively public in the sense that they protect the interests of private persons to use and enjoy the public sphere. In that, public nuisance imposes not merely ex post liability for undermining these interests but also, first and foremost, constructs a liberal public sphere. Our case for public nuisance shows that private law extends beyond the private sphere to capture entitlements and responsibilities that do not arise from, or attach to, ownership of land; it also resists the reduction of private law to rights of action and ex post determination of liabilities. More concretely, our reconstruction of public nuisance solves two key doctrinal challenges that the tort struggles with – concerning the standing to sue in public nuisance and the economic loss rule – and it also refines the potentially significant role of this tort in addressing the urgent threat posed by climate change.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135444127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
"Modern Challenges for the Judicial System." University of Toronto Law Journal, 73(Supplement 1), p. 2
“司法系统的现代挑战。”多伦多大学法律学报，73(增编1)，第2页
{"title":"Modern Challenges for the Judicial System","authors":"Anthony Niblett, Albert H Yoon","doi":"10.3138/utlj-2023-0039","DOIUrl":"https://doi.org/10.3138/utlj-2023-0039","url":null,"abstract":"\"Modern Challenges for the Judicial System.\" University of Toronto Law Journal, 73(Supplement 1), p. 2","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136161800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract:Some countries have explored the idea of using artificial intelligence (AI) systems to help triage the backlog of cases and facilitate the resolution of civil disputes. In theory, AI can accomplish this by establishing the facts of cases and predicting the outcomes of disputes. But the use of AI in the courtroom gives rise to new problems. AI technologies help solve prediction problems. These solutions are typically expressed as probabilities. How should judges incorporate these predictions in their decision making? There is no obviously correct approach for converting probabilistic predictions of legal outcomes into binary legal decisions. Any approach that does so has benefits and drawbacks. Importantly, a balance of probabilities approach – where liability is established if the AI predicts a likelihood of liability greater than 50 per cent and not otherwise – is not suitable when converting a predicted outcome into an actual outcome. Adopting this approach would significantly alter the outcomes of legal cases and have a dramatic and disruptive effect upon the law. The most notable disruption would be observed in settlement behaviour and outcomes.
{"title":"Problems with Probability","authors":"A. Casey, Anthony Niblett","doi":"10.3138/utlj-2023-0006","DOIUrl":"https://doi.org/10.3138/utlj-2023-0006","url":null,"abstract":"Abstract:Some countries have explored the idea of using artificial intelligence (AI) systems to help triage the backlog of cases and facilitate the resolution of civil disputes. In theory, AI can accomplish this by establishing the facts of cases and predicting the outcomes of disputes. But the use of AI in the courtroom gives rise to new problems. AI technologies help solve prediction problems. These solutions are typically expressed as probabilities. How should judges incorporate these predictions in their decision making? There is no obviously correct approach for converting probabilistic predictions of legal outcomes into binary legal decisions. Any approach that does so has benefits and drawbacks. Importantly, a balance of probabilities approach – where liability is established if the AI predicts a likelihood of liability greater than 50 per cent and not otherwise – is not suitable when converting a predicted outcome into an actual outcome. Adopting this approach would significantly alter the outcomes of legal cases and have a dramatic and disruptive effect upon the law. The most notable disruption would be observed in settlement behaviour and outcomes.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"73 1","pages":"104 - 92"},"PeriodicalIF":0.6,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46646443","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract:There is a virtual consensus that there is an 'access-to-justice' crisis in Canada. Some of the more concerning elements of the crisis – namely, the inaccessibility of courts – were brought into sharp focus at the onset of the global COVID-19 pandemic, wherein the already strained Ontario courts seemed poised to incur more 'case debt' and add to their already lengthy backlog. Responsively, governments and courts mounted a series of immediate reforms that were aimed at coping with the acute crisis, many of which were generally helpful measures that access-to-justice proponents advocated for even in non-emergency contexts. The relatively swift, frictionless nature of the changes – surely abetted by the emergency context – suggests that access-to-justice proponents, who often advocate large-scale legal, policy, and regulatory reforms, should consider what other such immediate, 'low-hanging fruit' interventions are available. Civil procedure offers fertile ground for such interventions. To this end, this article seeks to inform future reform efforts with three contributions. First, I argue that the access-to-justice problem is properly characterized as a civil-procedural problem. Second, I offer a new typology of civil procedural rules to fill conceptual gaps in the scholarship. Third, relying on an emergent literature about the concept of 'procedural flexibility,' I argue that procedural rules are more negotiable than traditional accounts contemplate, which presents opportunities for the practice of procedural bargaining as an access-to-justice tool.
{"title":"Access to Justice and Civil-Procedural Bargaining","authors":"Abdi Aidid","doi":"10.3138/utlj-2023-0007","DOIUrl":"https://doi.org/10.3138/utlj-2023-0007","url":null,"abstract":"Abstract:There is a virtual consensus that there is an 'access-to-justice' crisis in Canada. Some of the more concerning elements of the crisis – namely, the inaccessibility of courts – were brought into sharp focus at the onset of the global COVID-19 pandemic, wherein the already strained Ontario courts seemed poised to incur more 'case debt' and add to their already lengthy backlog. Responsively, governments and courts mounted a series of immediate reforms that were aimed at coping with the acute crisis, many of which were generally helpful measures that access-to-justice proponents advocated for even in non-emergency contexts. The relatively swift, frictionless nature of the changes – surely abetted by the emergency context – suggests that access-to-justice proponents, who often advocate large-scale legal, policy, and regulatory reforms, should consider what other such immediate, 'low-hanging fruit' interventions are available. Civil procedure offers fertile ground for such interventions. To this end, this article seeks to inform future reform efforts with three contributions. First, I argue that the access-to-justice problem is properly characterized as a civil-procedural problem. Second, I offer a new typology of civil procedural rules to fill conceptual gaps in the scholarship. Third, relying on an emergent literature about the concept of 'procedural flexibility,' I argue that procedural rules are more negotiable than traditional accounts contemplate, which presents opportunities for the practice of procedural bargaining as an access-to-justice tool.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"73 1","pages":"3 - 33"},"PeriodicalIF":0.6,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47746929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract:Virginia adopted a risk assessment to help determine sentencing for sex offenders. It was incorporated as a one-way ratchet toward higher sentences: expanding the upper end of the sentence guidelines by up to 300 per cent. This led to a sharp increase in sentences for those convicted of sexual assault. More surprisingly, it also led to a decrease in sentences for those convicted of rape. This raises two questions: (a) why did sentencing patterns change differently across these groups, and (b) why would risk assessment lead to a reduction in sentence length? The first question is relatively easy to answer. While both groups saw an expansion in the upper end of the sentencing guidelines, only sexual assault had the floor lifted on the lower end, making leniency more costly. The second question is less straightforward. One potential explanation is that the risk assessment served as a political or moral shield that implicitly justified leniency for those in the lowest risk category. Even though the risk assessment did not change sentencing recommendations for low-risk individuals, it provided a 'second opinion' that could mitigate blame or guilt should the low-risk offender go on to reoffend. This decreased the risks of leniency and counterbalanced any increase in severity for high-risk individuals.
{"title":"The Counterintuitive Consequences of Sex Offender Risk Assessments at Sentencing","authors":"M. Stevenson, Jennifer L. Doleac","doi":"10.3138/utlj-2023-0014","DOIUrl":"https://doi.org/10.3138/utlj-2023-0014","url":null,"abstract":"Abstract:Virginia adopted a risk assessment to help determine sentencing for sex offenders. It was incorporated as a one-way ratchet toward higher sentences: expanding the upper end of the sentence guidelines by up to 300 per cent. This led to a sharp increase in sentences for those convicted of sexual assault. More surprisingly, it also led to a decrease in sentences for those convicted of rape. This raises two questions: (a) why did sentencing patterns change differently across these groups, and (b) why would risk assessment lead to a reduction in sentence length? The first question is relatively easy to answer. While both groups saw an expansion in the upper end of the sentencing guidelines, only sexual assault had the floor lifted on the lower end, making leniency more costly. The second question is less straightforward. One potential explanation is that the risk assessment served as a political or moral shield that implicitly justified leniency for those in the lowest risk category. Even though the risk assessment did not change sentencing recommendations for low-risk individuals, it provided a 'second opinion' that could mitigate blame or guilt should the low-risk offender go on to reoffend. This decreased the risks of leniency and counterbalanced any increase in severity for high-risk individuals.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"73 1","pages":"59 - 72"},"PeriodicalIF":0.6,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45341010","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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