Theoretical Perspectives on Public Law and Administration

Theoretical Perspectives on Public Law and Administration GS/Law 6761 March 27 2010 Instructor: Ian Greene

: Research issues • If conducting interviews, fill out a research ethics form on the Faculty of Graduate Studies web page • Ensure anonymity of interviews • There needs to be “informed consent” to conduct the interview • Through an informed consent form or • a letter • See http://www.yorku.ca/grads/policies/ethics.htm

Saturday, March 27, 2010 • Beyond the classics: Public Choice, Organizational Theory, Performance Evaluation, Judicial Discretion, Judicial Activism • Public Choice Theory • Organizational Theory • Evaluation • Discretion • Judicial decision-making • Charter dialogue • Judicial Activism • Conclusion

Jerry Mashaw on Public Choice • Jerry Mashaw: Greed, Chaos and Governance: Using Public Choice to Improve Public Law (1997) • Jerry L. Mashaw is Sterling Professor of Law at Yale Law School, where he teaches courses on administrative law, social welfare policy, regulation, legislation, and the design of public institutions. His many books include Administrative Law: Introduction to the American Public Law System, Bureaucratic Justice (1983), and Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997).

Public Choice Theory • Public choice theory is the uses theory from the discipline of economics to attempt to provide insights into the public policy and judicial system process. • In general, public choice treats members of the public, elected officials, and members of the executive as motivated primarily by self-interest. In some ways, public choice theory is similar to Bentham’s theories of utilitarianism. Public choice theorists employ 3 major approaches, “voting theory,” “interest group theory,” and “game theory.” (All are mathematical studies of strategic interactions amongst people). • There may be some parallels between conclusions of public choice theory, and the judicial test of the “rational man” or “rational person.” • The following pages summarize the contributions of 3 major public choice theorists who wrote prior to Mashaw.

Kenneth Arrow • Nobel prize in economics, 1972 • His research analyses the making of decisions using imperfect information, and the bearing of risk. • Election results rarely, if ever, represent “the public will.” There are too many variables that enter into the voting decision, and choices are malleable. • Studies have shown that human being like to express opinions even if they are not solid opinions. Eg. Studies about public ownership of electrical utilities.

George Stigler • Nobel prize in Economics, 1982 • Developed the “capture” theory. Government regulatory agencies are prone to being “captured” by so that these groups can attempt to impact the enactment of laws and regulations in a self-interested way. • He also argued that most costs of production are relatively small, and companies don’t worry about small costs. The result is that they don’t worry about total costs very much, and thus fail to maximize profits. Most enterprises are therefore inefficient.

James Buchanan • Nobel prize in economics, 1986 • Judges ought to apply U.S. “founding principles” – judicial independence, separation of powers, protections of original individual rights – to counteract selfish tendencies of human nature. • “People who were supposed to know didn't really know what democracy was about…” • “We were taking the tools of economics, looking at something like the structure of American politics in the way James Madison had envisioned it. That is, it was clearly not a majoritarian democracy, which would be the parliamentary model.…” • “We were the first to start analyzing the Constitution from an economic point of view. … I considered us to be simply writing out in modern economic terms more or less Madison's framework of what he wanted to do, as opposed to anything new and different.”

Mashaw • The first part of the reading in the course kit is a brief explanation of how one of the branches of public choice theory operates – “voting theory.” Although highly speculative, the mathematical calculations based on behavioral assumptions indicate that elections are very imperfect reflections of the “public will.” Therefore, those who criticize judicial review for countering “the will of the majority” are making faulty assumptions about election results. • The second part of the reading summarizes some of the insights Mashaw says that public law can gain from public choice theory.

Mashaw • Voting theory indicates that legislation is not necessarily a true indication of the consensus of the legislature. It is susceptible to reflecting the will of special interest groups. • Game theory suggests both that legislative changes and judicial decisions may not lead to compliance. • Interest group influence needs to be checked. How? • Leaders of federal bureaucracies ought to make important political decisions. Bureaucratic controls in the executive ensure greater accountability than in the elected branches. Bureaucrats need enough independence to be protected from “capture.”

Mashaw • Politicians are prone to serving particular interests. Eg a California law that prohibited retail car dealerships within 300 miles of existing ones – clear attempt to placate existing dealers. But the Court was persuaded that this was a reasonable attempt to prevent unfair trade practices! • Courts should attempt to serve the “public interest” when there is doubt. As per Arrow, elections do not necessarily reflect the “public interest.” • People act from both altruistic and selfish motives.

Barker and Kernaghan: Organizational Theory • Hilary Blain

Martin Friedland • David Gisser • Martin Friedland, University of Toronto

Janice Gross Stein • John Mayr Janice Gross Stein, University of Toronto

Margaret Allars • Kumar Sriskanda • Margaret Allars, University of Sydney

McCormick & Greene Delia Lewis • Peter McCormick: B.A. (Alberta), M.A. (Toronto), D.Phil. (LSE) • Peter McCormick grew up in Lacombe, Alberta. He graduated from the University of Alberta in 1968, received his Master's degree from the University of Toronto in 1969, and graduated from the London School of Economics and Political Science in 1974. His Ph.D dissertation was entitled "Social Contract and Political Obligation: A Critique and Reinterpretation.” • Appointed to the Department of Political Science at the University of Lethbridge in 1975. He was Chair of the Department from 1980 to 1985, and became Chair again in 1996. His research interests include appellate courts, the constitutional law of federalism, political parties and voting behavior, provincial politics, and political theory.

Peter McCormick, Canada’s Courts • Megan Marrie “Winning and Losing in Canada’s Courts” • This chapter first appeared as a journal article • Featured on page 1 of Globe and Mail: “judges biased” • G&M editorial: shoddy research • My interviews at SCC: research service had read original article and advised judges that G&M summary was very inaccurate

Greene, Baar, McCormick, Szablowski & Thomas • Lisa Mallia: Final Appeal: “The Human Elements of Judicial Decision-making”

Hogg and Bushell: Charter Dialogue • Brian Blummenthal

Knopff & Morton • Charter Politics • Tom Jarmyn Ted Morton, MLA, Alberta (formerly University of Calgary)

James Kelly: Governing with the Charter • James Young

Greene: The Courts • Ian Greene: “The Courts and Democracy” • Ciaran Buggle • Court decisions have always had an impact on public policy. • To what extent have these decisions promoted democratic values of inclusiveness & participation? • Are courts representative of diversity of Can society? • To what extent do they facilitiate appropriate participation? • Are courts responsive to public demand for fair, impartial, expeditious dispute-resolution services?

Montesquieu’s description of separation of powers too simplistic. • Judges need appropriate control over court administration or executive could interfere with judicial impartiality • Courts need to be accountable for the quality of work they do – if accountabily means “ability to demonstrate publicly the quality of one’s work” • Often, critics of “judicial activism” are critical only when a court makes a decision they disagree with. Harper is critical of activist judges, even though he used the courts to strike down Elections Act prohibition of 3rd pty adv • When the law is not clear, judges are necessarily “activist” • Judges are to resolve disputes fairly, impartially, expeditiously. They need to be able to demonstrate they are doing so.

Participation • The courts exist to provide a public service; therefore lay persons need more effective input into judicial selection and court administration • Effective public participation is hampered by unnecessary delays and adjournments • Perhaps we could learn something from other jurisdictions, including civil law jurisdictions • If jury system is to survive, it needs reform to prevent abuse • Use of social science evidence in court open to abuse (eg court’s misuse of evidence in Askov & Morin)

Inclusiveness • Law profession becoming more representative of Canadian diversity, but more work to be done. Similarly, judiciary and court support staff becoming more representative. • Lack of access to legal representation a major problem • Should all lawyers be required to represent 100 cases a year pro bono? Should community legal clinics be expanded (and an effective public defender model implemented)?

Institutional Responsiveness • Most Canadians satisfied with quality of judicial decisions • System of justices of the peace is problematic • Some administrative tribunals problematic (lack of independence and expertise) • Too much room for patronage in federal superior court appointments, & fed ct & SCC • Complaint avenues re judges not widely known • Lawyers should be prohibited from using delay as a tactical weapon in codes of ethics

Judicial decision-making responsiveness • Courts perform an essential function by adjudicating disputes about basic democratic values, such as those in the Charter. • Charter decisions have resulted in greater inclusion of visible minorities, mentally & physically handicapped, gays & lesbians, and Aboriginals in Canadian society. • Overall, SCC’s decisions since 1982 have advanced democracy • Our constitution allows legislatures to counterbalance judicial decisions – s. 33, re-enacting legislation, amendment • “To limit the judicial role in democracy would be to limit democracy itself.”

Overall evaluation of courts • Courts doing well in some areas of advanced reasoning • Contribution to understanding of independence & impartiality, interpretation of Charter • Areas for improvement • Public participation in court admin & jud selection • Tackling unnecessary delay • Support for unrepresented litigants • Respectful treatment of juries, witnesses & litigants. Disrectful treatment is really abuse of power.

A.C. Grayling: Liberty and Betrayal • Cara Wilkie

Theoretical Perspectives on Public Law and Administration