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)
