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Empirical Gap in Jurisprudence

Empirical Gap in Jurisprudence: A Comprehensive Study of the Supreme Court of Canada

Copyright Date: 2007
Pages: 256
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  • Book Info
    Empirical Gap in Jurisprudence
    Book Description:

    Filling an important niche in the study of jurisprudence,The Empirical Gap in Jurisprudencedemonstrates that systematic studies based on large samples of cases will yield many insights that were obfuscated by prior efforts that relied on small and self-selected samples.

    eISBN: 978-1-4426-8489-8
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. List of Tables and Figures
    (pp. vii-x)
  4. Preface
    (pp. xi-xiv)
  5. Acknowledgments
    (pp. xv-xvi)
  6. Section I. Setting the Stage

    • 1 Introduction
      (pp. 3-16)

      Jurisprudential theories are typically based on anecdote, superficial observation, and the undocumented impressions of individual authors. In jurisprudential writing, single instances are regularly held up as being representative without any evidence being offered in support of their representativeness. Theorists indulge in normative prescription without first describing the work, behaviour, and capacities of judges. Taken together, these shortcomings constitute a serious empirical gap in jurisprudential scholarship. The hallmark of this gap is the chasm between theory and verification.

      Closing the empirical gap will require legal scholars to become more thorough and systematic in their examination of the caselaw and of other...

    • 2 Possible Solutions: A Case Study of the Supreme Court of Canada
      (pp. 17-28)

      In this chapter, I describe the history and jurisdiction of the Supreme Court of Canada. The description is not intended to be exhaustive, but an overview of the Court will be of assistance in understanding its decision making. After discussing the doctrine ofstare decisis, I describe the steps I took during my survey of the Court’s jurisprudence.

      I chose the Supreme Court of Canada because it occupies a middle ground between the final Courts in the United States and the United Kingdom. The period surveyed, 1950 to 2003, includes two decades ofCharterjurisprudence, which allowed me to study...

    • 3 Beginning to Close the Empirical Gap
      (pp. 29-38)

      Examples of jurisprudential allegations include Hart’s contention that law is characterized by an expanding core of settled meaning and Roach’s conclusion thatRJR-Macdonald v. Canada(1995) ‘did not mark the abandonment of the more deferential approach.’¹ Despite the fact that systematic investigation was available to test these allegations, neither author ventured the attempt. Empirical analysis discloses that Hart’s contention is only partially correct and that Roach’s conclusion is likely inaccurate.²

      The empirical gap in jurisprudence persists because jurists claim that empirical analysis is difficult. Some authors cite the overwhelming scope of the task as their reason for not seeking to...

  7. Section II. Measuring the Court’s Decisions

    • 4 Fact, Law, and Policy
      (pp. 41-49)

      There are three primary elements in judicial decision making: fact, law, and policy. The facts encompass what actually happened, especially the acts, deeds, or events in issue. That part of a decision wherein the court is deciding whether the traffic light was green, amber, or red when the defendant entered the intersection deals with fact. A case high infactis one that was decided by its facts. This means that, to the indicated extent, determining what the facts were determined the outcome of the case. To a lesser extent it may also indicate that the special facts of the...

    • 5 Modes of Legal Reasoning
      (pp. 50-63)

      The Supreme Court of Canada’s deliberations are now characterized by a wide variety of modes of reasoning, of which formal legal reasoning is the most common. In this mode, analogy predominates, but deduction and induction also play a role. Next in line is a more expansive contextualist mode.¹ This is followed by a mode that seeks to reconcile and rationalize the various doctrines relating to the issues at hand. Less common modes include reasoning based on pragmatic concerns or on principle or values. Cases where the specific facts determine the outcome used to be somewhat common but are now rare....

    • 6 Changing the Law
      (pp. 64-80)

      When one thinks of the law being changed, one thinks first of the legislature. But on occasion the Supreme Court also changes the law and in fact has been doing so with increasing regularity. The Court uses two methods to change the law: outright overruling and the hard distinguishing of prior judicial authority. As with its modes of legal reasoning and the proportion of fact, law, and policy, there was a crossover between these two methods in the early 1980s when hard distinguishing dipped and overruling increased. A full description of my findings in these regards follows the definitions.


    • 7 Other Trends: Bright Lines to Principles
      (pp. 81-86)

      Scholars of jurisprudence have sometimes described courts as using ‘bright-line’ or ‘open-standard’ tests. Debates have raged as to whether judges use foundational or non-foundational reasoning. Observers contest the extent to which the law leaves choices open to courts and the relative size of Hart’s core and penumbra. Some say that courts use legal propositions as the basis for their rulings, while others proclaim principle regnant.

      In order to test the claims of legal theorists as to the functioning of the Supreme Court of Canada, this chapter provides the results of my measurement of five binary poles that are reflected in...

    • 8 Judicial Attitudes and Other Interesting Findings
      (pp. 87-99)

      This chapter begins with a discussion of research relating to judicial personality. At its most adamant, this research postulates that underlying judicial attitudes determine the outcome of cases; the law plays a secondary, even tertiary, role. As the summary of the research in this area discloses, judicial attitudes are somewhat correlated with the outcome of cases. But other factors, most notably the law, play much more than a mere secondary role.

      It is sometimes said that judicial rulings are primarily dependent on which side of the bed the judge got up from that morning.¹ It would of course be farcical...

    • 9 Charter Cases Are Different
      (pp. 100-110)

      This chapter examines how Supreme Court of Canada cases involving theCharter of Rights and Freedomsare different from non-Chartercases. Measures for comparison include several items discussed more generally in the preceding chapters: overruling and dissents; hard distinguishing; modes of legal reasoning; apparent difficulty; the proportion of fact, law, and policy; and the five contrasting pairs analysed in chapter 7.

      A ‘Charter’ case is one where the application of a provision of theCharterhad a major impact on the outcome. For example, cases upholding an accused’s right to a trial within a reasonable time or the rights of...

  8. Section III. Testing Theories

    • 10 How Judges Judge: Testing Legal Theory
      (pp. 113-128)

      This chapter examines the theories of H.L.A. Hart together with the contrasting theories of Ronald Dworkin, Julius Stone, Peter Goodrich, and Allan Hutchinson in light of the empirical evidence described in the previous six chapters.¹ In the first part of this chapter, I summarize the theories of H.L.A. Hart and his critics. I then examine non-foundational legal theory. This is followed by an exploration of the set of decision-making tensions in the Supreme Court of Canada propounded by Justice Bertha Wilson. Finally, I re-examine these theories and tensions in light of the Court’sCharterjurisprudence.

      The empirical evidence, by and...

    • 11 Is Legal Reasoning Autonomous?
      (pp. 129-144)

      The legal profession’s claim that law is an autonomous form of problem solving is central to law’s legitimacy as an impartial arbiter of disputes. However, many critics question whether legal reasoning is really separate and apart from ordinary reasoning.¹ If legal reasoning is no different from that employed by non-judicial decision makers, why do we need courts, with all their ritual and expense?

      One method by which law seeks to establish its neutrality and thus maintain its impartial objectivity is through an autonomous form of argumentation and reasoning.² Proponents of the uniqueness of legal reasoning point tostare decisisas...

    • 12 Is the Supreme Court of Canada ‘Too’ Activist?
      (pp. 145-176)

      Activism is a matter of degree. At one hypothetical extreme, a Court that struck down each and every taxation statute passed by the federal government would be too activist. At the other hypothetical extreme, a Court that allowed a province to raise an army and declare war against a foreign state would not be nearly activist enough. Where is the happy medium, and how close, or how far, is the Supreme Court of Canada from its appropriate place?

      The trends tracked in chapters 4 through 9 indicate that the Supreme Court of Canada is gradually becoming more activist. Overrulings, policy-based...

    • 13 Conclusion: The Gap Has Been Narrowed
      (pp. 177-194)

      In this final chapter I will summarize the major findings resulting from this study of Supreme Court of Canada jurisprudence within the context of legal theory. This summary will document several significant narrowings of the empirical gap. The second section outlines the overall efficacy of the empirical method for the study of adjudication. The third section details the modifications that need to be made to the existing paradigm of legal reasoning.

      Several important findings, of general relevance to jurisprudence, have emerged from this study. First, the ways and means by which judges decide cases have changed over time. What counts...

  9. Notes
    (pp. 195-234)
  10. Glossary (Selected and Summarized)
    (pp. 235-236)
  11. Bibliography
    (pp. 237-254)
  12. Index
    (pp. 255-260)