Questions CONFIRMED on exam Flashcards
What’s the difference between the adversarial and inquisitorial system?
Adversarial system: Parties are in direct opposition with each other and solely responsible for defining the issues in a dispute and bringing them forward (judge is passive)
Inquisitorial system: court has an active role in investigating/uncovering case facts
What is the difference between the adversarial and inquisitorial system’s search for “truth”?
Adversarial: judge is passive and chooses between two “competing” truths - none of which may be the actual truth. more focused on winning and ending the case than discovering the truth.
Inquisitorial: Judges are actively involved and both parties are committed to discovering the “truth” - no pleading out, etc. because the goal here isn’t to ‘win’ the case
What are the 7 roles of the court, according to Vago and Nelson?
Establish norms, Ratification, Increase costs, Educate about common societal issues, Staff Mediate & encourage settlement, Narrow decisions, and END cases
What are the main principles of the adversarial system & why it’s good, according to Brooks?
1) Party Autonomy: assumes parties are 2 separate entities and in direct conflict with each other -limits judge’s function and leaves parties solely responsible.
2) Party Prosecution: Adversarial outcome more legitimate, adversarial system has “greater accuracy” in fact-finding
What is party autonomy and its 2 aspects, as proposed by Brooks?
Assumes parties are 2 separate entities and in direct conflict with each other
a) Limits judge’s function – can only decide cases that are brought to them
b) Parties are solely responsible for defining the dispute
What are the 4 reasons behind why Brook’s proposes the adversarial system is more legitimate?
Lines up with dominant liberal-political ideology, cathartic effect, role of counsel-team, appearance of impartiality
What are the 2 reasons Brooks proposes the adversarial system has greater accuracy in fact-finding?
1) More thorough investigation because parties are individual and self-interested
2) “Trier of fact” (judge) is unbiased and passive, thus more likely to reach a correct decision
What does Frank propose in his truth vs. fight theory?
Frank argues that economic factors (like how much money a person has) will inevitably determine who wins a case, because the courts are not interested in the truth, but rather winning the case and facilitating “legal fights”
True or False - according to Frank, we are “selling justice”
TRUE
What are the 4 alternatives to the adversarial system, as proposed by Roach?
More active role for judges, innocence procedures (“pleading innocence”), fact appeals, innocence commissions
What is alternative dispute resolution (ADR?)
An alternative method of dispute resolution in instances of civil disputes between private individuals (tort, divorce, custody, etc.)
What’s the difference between ADR and restorative justice?
ADR is for civil/tort law (private wrongs), restorative justice is for criminal law (public wrongs)
What are the four aspects of ADR?
CASE - cost, accessibility, speed, efficiency
Cost: cheaper for parties and criminal justice system
Accessibility: greater accessibility for more people in terms of money and time
Speed: much faster to get into than the courts
Efficiency: less resources needed to reach an outcome - less stages, more direct and quick
As you move along the ADR spectrum, what core factors do you see changes in?
Cost, party-autonomy, role of 3rd party, formalism, rules of evidence, bindingness
What does the ADR spectrum look like, from left to right?
Negotiation, Mediation, Arbitration, Adjudication (NMAA)
According to Sargent, what are the 3 broad critiques against ADR?
Liberal/consensus critique, Conflict perspective, Feminist perspective
Who argues for the liberal position critique against ADR, and what are it’s assumptions?
Professor Fiss - assumes the justice system merely reflects social consensus and “shared values”, that everyone is equal before the law, and that adjudicative trials are the best way to ensure fairness
What are the liberal position’s critiques against ADR?
Haven’t been invested in enough, will inevitably create a “second-class justice” where people will only partake in ADR because they have to, not because they want to.
Who argues for the conflict perspective against ADR, and what are it’s assumptions?
Nader - assumes that society is defined by conflict, and thte justice system orders society by maintaining certain systemic inequalities.
What are the Conflict perspective’s critiques against ADR?
Will take away the “publicness” and “openness” of the courts, and push conflicts into the private sphere, which makes them lose the potential to deal with them at a societal level and mobilizes people to maintain the status quo. Also depoliticizes issues and individualizes conflict
What does the feminist critique assume, and what are it’s critiques against ADR?
Assumes there are power imbalances between men & women, and that the legal system both maintains & challenges these imbalances.
Critiques that ADR has no safeguards to protect women, depoliticizes issues of gender inequality and pushes them into the private sphere (rendered invisible - Dangerous)
What are Sargent’s TWO overarching themes on ADR?
(1) Inadequate promise of ADR (liberal) - no formal protections like due process or the rule of law (which guarantees addressing power imbalances), thus ADR is inadequate
(2) False promise of ADR (conflict + critical) - Liberal system fails to see current system’s role in maintaining inequality, but ADR doesn’t address this, it maintains the status quo and may minimize voices in favour of consensus
In Nader’s harmony ideology, what does he propose to real source of ADR is?
Intolerance for conflict, attempting to prevent the EXPRESSION of discord rather than the actual causes
What is restorative justice?
Focuses on the wrong done to the person & community rather than the state
What are the goals of restorative justice?
Repair relationships between victim, offender, and community, prevent future crime, give victims a “voice” to express themselves
According to DALY, what are the core elements of restorative justice?
FAIRPA -
Face-to-face meetings, active role for victims, informal (not limited by expertise), recovery to status quo, penalty-phase stage of conviction, and accountability of offender (in a future/oriented and non-stigmatizing way)
What are Daly’s limits on restorative justice?
Limits of what RJ is and isn’t are unclear, penalty phase may be too late, FAIRNESS EASIER TO ACHIEVE THAN RESTORATIVENESS, sincere apologies hard to achieve, every victim is different, RJ is not a “cure-all”
What is the problem with drug-treatment courts, according to Moore?
There’s an odd hybrid of legal & medical knowledge - judges are trained in law, not medicine (yet act like doctors), and punitive law might FORCE people into treatment which takes away from the ethics of drug treatment, also the medicalization of deviance
TRUE or FALSE: Moore proposes that drug-treatment courts lead to a breakdown of due process, because principles of fairness are compromised to serve therapeutic goals.
TRUE
According to Sanders, what are the 3 wats law is different from science?
1) Law deals with a specific case at hand (more problem-solving), science is more general
2) Law requires certainty and is not probabilistic - either something did or did not happen
3) Expert knowledge is a “partisan resource” (WEAPON) in law is meant to be independent
Who was Dr. Charles Smith, and how did he contribute to many wrongful convictions?
A highly respected and renowned forensic pathology who performed 1k+ children’s autopsies and testified his expertise in court to convict people responsible for child’s death. Was highly invested in cases, but lacked basic knowledge of forensic pathology. In 2005, it was found over half of his autopsies had significant mistakes and led to wrongful convictions of innocent people. He claims this was never intentional.
What does former Chief Justice McLachlin say about the Canadian Justice system?
Middle-class Canadians are increasingly “frozen out” of the judicial system due to cost & lengthy delays (which may increase crime)
What does Galanter argue in terms of “the haves” advantage?
Argues that the basic structure of the legal system BOTH CREATES AND LIMITS the possibility of redistributive change (formal equality –> redistributive change)
The legal system is composed of FOUR elements, which inevitably allow the “haves” to come out ahead. What are they?
Parties, Courts, Rules, Lawyers (PCRL)
What are the two different kind of parties, and what’s the difference between them?
One-Shotters (OS) and Repeat Players (RP)
One-Shotters: most people in the CJS, will only encounter the courts once for their one “big issue” (ex convicted of a criminal act, divorce, etc.) Involved in the courts for a very limited time, stakes/risks extremely high, short-term interest in law
Repeat-Players: use the courts in many similar litigations over time (ex., an insurance company, prosecutors, etc.) Larger units that have a long-term interest in the rules and want to change them. Stakes are low for each individual case. Have a BIG ADVANTAGE compared to One-Shotters
What is the main advantage of repeat-players in the criminal justice system?
They can “play for the rules” – instead of immediate gains – to get what they want (lobbying & litigation - influencing a public official and carrying on a lawsuit)
Why aren’t all lawyers considered RPs?
They tend to identify with other lawyers more than their clients, but they prefer RPs because they seek to foster long-term relationships
What are the 2 reasons behind why the courts favour RP’s over OS’s?
“Passive” role of the courts and resource overload
True or false - the rules themselves are NOT THE BEST MEANS by which to know the state of law
TRUE
What are the four strategies of reform?
RISS
Rule change, Improved legal institutions, improved legal services, and improved strategic position of have-nots
What are the two models of legal aid, and how are they different?
JUDICARE and LEGAL SERVICES
Judicare: Private lawyers, “fee for service”, some service for all, mostly criminal cases, problem-solving focus, lawyer’s role to assure client’s day in court, maintain status quo, specialized knowledge
Legal Services: clinics (~80 in ON), staffed lawyers, focus on issues affecting the poor / marginalized, range of services, problem-preventing focus, role to mitigate & eliminate power inequalities, elimination of poverty, neighbourhood-oriented
What model does legal aid in Ontario follow?
A hybrid of judicare and legal services
TRUE OR FALSE - according to Gathercole, lawyer’s role in relation to the poor must stay exactly the same
FALSE - requires a significant cultural-shift
What’s the difference between criminal law and tort?
Criminal law = public wrongs, focus on conviction & punishment, state vs. offender, guilt –> punishment
tort = private wrongs, focus on compensation, plaintiff vs. defendant, liability for damages
What are the two basic elements of a crime?
Mens Rea (guilty mind) and Actus Reus (guilty act)
What are the three elements of mens rea?
1) The accused made a choice to do something against the law
2) The choice was made FREELY
3) The accused must be able to recognize that the choice was wrongful (mentally stable & proper capacity)
What does recklessness mean, and what is it also referred to as?
Willful blindness- it means you know the potential consequences of your actions but choose to ignore it
What does carelessness mean, and what is it also referred to as?
Negligence, it means you don’t know the potential consequences of your actions but based on a reasonable standard of care, you SHOULD
What are the 2 major procedural issues in criminal law?
1) Intention (expertise vs. lay knowledge) - mens rea
2) Discretion (systemic vs. individual failure / responsiblization)
What are the 2 major substantive issues in criminal law?
1) What role should victims play in the criminal justice process?
2) Who decides what is a crime, and what is merely “deviant” or a private wrong?
What are the 4 levels of intent?
Knowledge, intent, recklessness, carelessness
What are the 3 elements of actus reus?
1) Conduct - voluntary act of crime
2) Circumstances - facts relevant in the courts
3) Consequences (Result) - results of a voluntary action
What are some defenses against criminal law?
Mistake of fact, durress, self-defense, age/youth
Is drunkenness a defense?
No
TRUE OR FALSE - actions must be “voluntary” in order to fulfill the actus reus in criminal law
TRUE
Explain Hunt’s Ideological Domination
Hunt argues that the state doesn’t rely solely on punishment, but also LEGITIMIZES/DELEGITIMIZES certain behaviours through our ACTIVE CONSENT, convincing us that some actions are more acceptable than others
What does it mean if a group is overrepresented in the criminal justice system?
They are disproportionately higher represented in the CJS than in the general population, and encounter the CJS with more frequency
What are the 2 likely factors that explain overrepresentation?
1) Social and economic inequality (systemic)
2) Differential enforcement
What are some solutions to over-representation in the criminal justice system?
Tension btwn systemic-oriented and actor-oriented change (we need systematic reform), race-based data, judicial inquiries, cross-cultural training, indigenisation, gladue reports
VICTIMS are reduced to one of 3 roles:
CEL
1) To supply the system with raw materials / conflict
2) To supply evidence
3) To serve as a “symbolic presence” that legitimizes the state’s action against the accused
Patricia Clarke says that, if we’re serious about crimes, we must…
FUND AND ADVERTISE UNIVERSAL COMPENSATION SCHEMES (LIKE OHIP) FOR VICTIMS OF CRIME
According to Green, what is crown culture?
The adversarial system’s desire to “win” a case rather than discover the truth, which leads to tunnel vision and wrongful convictions
What is the PRIMARY GOAL of tort law?
Compensation (also deterrence, moral education, revenge, money)
TRUE OR FALSE – Tort is not supposed to be about punishment, but can still lead to punitive damages
TRUE
What are the 3 actions of tort?
Intentional, negligence, accident
What is NEGLIGENCE in tort? **
Failure to meet standard of care
What is the primary failure of the government’s response in the R. v. Bedford case?
Asymmetrical criminalization of prostitution provides a PATERNALISTIC approach instead of RIGHTS-BASED: putting prostitutes under further scrutiny but painting it as “helping them” and “safety”
