, Clément Camion2, Karine Bates3, Siena Anstis4, Catherine Piché5, Mariko Khan6 and Emily Grant7
Faculty of Law, McGill University, Montréal, Québec, Canada
Montréal, Québec, Canada
Département d’anthropologie, Université de Montréal, Montréal, Québec, Canada
Toronto, Ontario, Canada
Faculté de droit, Université de Montréal, Montréal, Québec, Canada
Sheahan and Partners, Westmount, Québec, Canada
Montréal, Québec, Canada
Systems of civil justice comprise both rules of civil procedure and the organization of the court system. These rules, in addition to determining how cases get to and move through the courts, serve the broader purpose of ensuring the fair resolution of disputes in an efficient manner and providing for judicial intervention and creativity where appropriate. Beyond mere dispute resolution, civil procedure offers a means of balancing incentives and disincentives to litigation. If litigation is too costly or too complex to practise, then access to justice is compromised. Conversely, if litigation is too cheap or too accessible, the court system may be overburdened, and the costs of the administration of justice will rise.
Civil procedure must also reflect other needs, such as a judge’s need for time in order to give reasoned decisions or the various roles of each court. For example, appellate courts play the dual, and often conflicting, role of both deciding particular cases and shaping the law. These courts can neither be oblivious to the particular individual interests at issue nor choose to hear a case unless it serves more general interests. This puts a clear-cut limit on the right to appeal and access to justice, although one that is seen as justifiable . There are also economic issues at play, from the perspective of both the parties and the court system.1 To put it simply, civil procedure must reflect and serve a blend of private, public, and institutional interests.2
Generally speaking, it is clear that civil procedure has developed in response to historical contingencies. For instance, the allocation of power between the court and parties to a suit appears to be grounded in tradition rather than in a logical principle of necessity or the pursuit of specific, well-defined goals. Indeed, in France and most other civil law jurisdictions, control over the dispute resolution process is placed in the hands of the judge. In common law jurisdictions, parties are given this responsibility. In this light, reforms seeking to promote access to justice must identify historical contingencies that are irrelevant or detrimental to access to justice today and determine how they should be treated in civil justice reform.
The present chapter examines recent proposals for judicial reform and highlights the lack of available empirical data on which to base recommendations for reform. It also emphasizes that improving the efficiency of a justice system by reducing costs and delays is not, on its own, a sufficient response to issues of access to justice. In particular, the chapter draws attention to barriers to access arising from gender and racial bias, and to the need to be sensitive to the values acknowledged and promoted by the justice system, as a facet of access to justice.
Current Discourse on Civil Justice Reform
A Focus on Access to Justice
Over the past two or three decades, discourse on civil justice reform has shown a growing concern for access to justice . In his Final Report on Access to Justice in the United Kingdom, Lord Woolf noted that a civil justice system should meet the following criteria:
The system should:
be just in the results it delivers;
be fair in the way it treats litigants;
offer appropriate procedures at reasonable cost;
deal with cases with reasonable speed;
be understandable to those who use it;
be responsive to the needs of those who use it;
provide as much certainty as the nature of particular cases allows; and
be effective: adequately resourced and organised.3
The state of the UK court system did not reflect these normative ideals. Woolf’s concerns suggest that major civil justice reforms should target excess and lack of control over civil litigation, inadequate attention to cost and delay, the complexity of the civil justice system, and the absence of any significant judicial responsibility for the use of judicial resources. Lord Woolf noted:
[The judicial system] is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under-resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in the way it is organised since there is no-one with clear overall responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts and the rules of court, all too often, are ignored by the parties and not enforced by the court.4
Most of the proposed modifications to procedural rules in the United Kingdom emphasize a greater role for judges in controlling the hearing . Proposed reforms include making information more readily available to the parties, encouraging pretrial or early settlements and alternative dispute resolution (ADR), disclosing full information on costs, increasing efficiency in order to reduce both cost and delay, encouraging the use of summary disposition of cases whenever possible, encouraging agreements on facts and issues before hearings, setting out predetermined timetables, establishing a maximum length for hearings, resorting to discovery only when necessary, and simplifying procedural rules.5
Similarly, amendments have been made to civil procedure rules in other jurisdictions to increase the judge’s control over the proceedings . For example, in France, which follows an inquisitorial tradition, a 1998 decree6 granted new powers to the Tribunal d’instance, which is the first court to hear a case, including early disposition of the case based on oral proceedings. The decree, which applies to self-represented litigants as well, encourages recourse to ADR or conciliation, and provides a simplified procedure for settlement agreements. Moreover, the decree places judges in charge of controlling expert testimonies. More recently, in February 2014, the Conseil National des Barreaux issued a report with 44 further recommendations for additional changes to improve access to justice in France.7
Canadian jurisdictions have also given significant consideration to issues of access to justice in their proposals for civil justice reform. Lord Woolf’s recommendations were in part inspired by a 1994 report of Ontario’s Joint Committee on Court Reform8 and a 1995 Ontario Civil Justice Review report, which concluded, based on pilot projects in Toronto, Windsor, and Sault Ste. Marie, that “case management works, when properly planned for, supported and resourced. In general, case managed cases are disposed of in the system at approximately twice the rate of non-case managed cases.”9 Two reports published in 1996, the Ontario Civil Justice Review’s Blair Report and the Canadian Bar Association Report, aimed at creating an equilibrium between judicial actors, judges, lawyers, and parties. Taken together, the two reports favoured a simplification of judicial language in order to increase accessibility and emphasized the fact that some consequences of the adversarial system should be attenuated, particularly by placing increased managerial powers in the hands of judges to allow greater control over case flow, case timetables, and the intake of evidence . Specifically, the Blair Report argued for a reorganization of the rules for enforcement of court orders, and for the privatization of enforcement services, referring to the practice in Alberta. The report also recommended that contingency fees be allowed for lawyers, except in criminal and family cases.10 The Canadian Bar Association Report proposed limiting the scope, number, and length of preliminary examinations. It also asked that expert reports be divulged early in the process.11 In 2013, the association published another major report on access to justice in Canada. The report covered four “systemic barriers” to equal justice and included proposals on how to overcome them.12
In Ontario, significant reforms have been implemented to enhance access to justice and affordability of court proceedings,13 including the introduction of simplified procedures and an increased monetary limit for litigation eligible to be heard in Small Claims Court. Case management and mandatory mediation were introduced in Toronto, Ottawa, and Windsor following the successful case management pilot project endorsed by the 1994 Joint Committee on Court Reform and the 1995 Civil Justice Review reports, discussed above. In 2005, the rules relating to case management and mandatory mediation were modified in Toronto on a 3-year pilot basis by virtue of rule 78 of the Ontario Rules of Civil Procedure . In 2003, the Task Force on the Discovery Process in Ontario reported that discovery could result in unacceptable costs and delays in large and complex cases or where there is a lack of co-operation between opposing counsel, which would then impede access to justice. In light of these findings, the task force made recommendations geared toward the incorporation of enhanced cost- and time-saving mechanisms into the Rules of Civil Procedure. The task force also recommended that new best practices be adopted by the bench and the bar as appropriate conventions or norms for the conduct of discovery, acknowledging that many flaws in the discovery process could be attributed to the adversarial “culture of litigation” or the conduct of particular lawyers.14
In Québec, the 1991 report of the Québec Task Force on Access to Justice made recommendations on subjects such as legal aid, pre-aid legal insurance, the Small Claims Division, ADR, legal information and education, and the special needs of non-mainstream groups such as cultural communities and aboriginal people .15 Professor Roderick A. Macdonald , who chaired the task force, made numerous contributions situating the report in the broader context of non-judicial dispute resolution mechanisms and preventive law16 with a focus on cost, delay, the “multi-door” approach that encompasses ADR, the need for education and informed citizens, and the intelligibility of the system and its rules. In 2000, the Comité de Révision de la procédure civile reported a decrease in cases brought before the courts, which could be explained by various factors including changing cultural habits, in-house dispute resolution for a number of firms, recourse to the media as an alternative way to seek justice, and public indemnification regimes.17 In 2001, the Comité de Révision de la procédure civile underlined similar problems as those reported earlier: justice was still too costly, complex, and prone to delays, with the result that citizens continued to experience frustration and stress. The report also makes note of the development of a do-it-yourself attitude toward justice by self-represented parties.18 In 2008, representatives from the Observatoire du droit à la justice emphasized the near total lack of data on the performance of judicial institutions.19 In 2012, Professor Pierre-Claude Lafond published an extensive account of the situation of access to justice in Québec looking in detail at issues like participatory justice, mediation, the role of counsel, and potential solutions.20
In 2013, the Action Committee on Access to Justice in Civil and Family Matters published a comprehensive report, known as the Cromwell Report, recommending six guiding principles for access to justice reform efforts across Canada. Among other recommendations, the report suggested that tribunals prioritize the availability of case management and underlined that “[j]udges and tribunal members should not hesitate to use their powers to limit the number of issues to be tried and the number of witnesses to be examined.”21 Other provinces in Canada have also set up task forces to reflect on civil justice reform.22 In British Columbia, the Civil Justice Reform Working Group has insisted on case management measures and advocated increased managerial powers for judges, particularly with regards to discovery, the use of experts, and the streamlining of motion practice and the trial process. The British Columbia Ministry of Justice has also recently identified efficient case management as an immediate priority for the government.23
Lack of Data to Support Reform Discourses
Despite the growing movement advocating civil justice reform, the current discourse around such reform is based on very little sound data. A lack of data means that civil justice reforms are probably not being adequately tested, with the consequence that it is hard to ensure that such reforms are actually changing the system. Similarly, this absence of data makes it difficult to know what to change in the system to begin with. Existing Canadian studies are based primarily on US and UK data. In an important review of empirical data on the costs and delays of access to civil justice, the Canadian Forum on Civil Justice (CFCJ) concludes that there is essentially no Canadian data on access to justice (an opinion shared by Jean-Franç ois Roberge, a leading academic on civil justice reform)24 and too little robust data from other countries, which themselves are doing only slightly better than Canada. The Canadian Bar Association expressed the same concern in its report on equal justice in 2013.25
Some jurisdictions, however, have made progress. In the past few years, the European Commission on the Efficiency of Justice (CEPEJ) has developed a methodology for assessing and comparing data in the transnational context of the Council of Europe.26 In 2012, the commission released another report reviewing data gathered in 2010 on various issues of access to justice including public expenditures on justice, legal aid funding, court organization, alternative dispute resolution, and gender representation in the judiciary, among other topics.27 The commission had also issued a number of prior reports.28 In the Netherlands, the Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems has proposed standard assessment methods applicable in both national and international settings, focusing on the costs of justice, the quality of procedure, and the quality of outcomes from the user’s perspective.29 In 2009, Tamara Relis published a book based on a series of interviews, questionnaires, and observations from plaintiffs, defendants, lawyers, and mediators in the United States, providing an important source of qualitative data on civil justice. In particular, it shows that some advances have been made in terms of actually listening to litigants themselves about the judicial process, as was urged by William O’Barr and John M. Conley in 1990.30 Currently, Roberge is carrying out empirical studies, in co-operation with Québec trial courts, that aim to collect quantitative data concerning perceptions of the accessibility of justice among participants in judicial dispute resolution. He has recently released preliminary results regarding parties’ satisfaction with, and understanding regarding the limitations of, judicial settlement conferences.31 Despite these recent and promising projects, however, an absence of data was already a problem as long as 30 years ago32 and remains one today.
What has caused this lack of data? The Canadian Bar Association suggests that, while baseline data has increasingly been collected in other sectors such as health and education, justice has been “devalued ” and thus a limited effort has been put into gathering more information on what works and what does not in justice systems.33 Lack of capacity and of consistent methodology also remains a leading factor behind the failure to gather data on access to justice in Canada .34 In a 2010 CFCJ review35 attempting to offer important methodological insights regarding empirical research on costs and delays of access to justice, the authors acknowledge the limitations of the available data, in particular because sources vary in how they define and measure the costs of civil justice. The review, which looks at research on issues including the factors influencing the cost of litigation and the cost of litigation versus ADR, notes that “[e]xamination of the content of this wide array of sources underlines, however, the current lack of systematic methodological approaches to empirical investigation of when, how and why costs accrue throughout the legal process.”36
The main studies cited in research on the cost of litigation are gleaned from three countries, none of which are Canada. The data usually relied on is between 15 and 30 years old. Reviewed articles do not always divulge methodology satisfactorily. Overall, the task of measuring costs is enormous and thus unachievable by one study on its own, especially if a “pathway” or “multi-door” approach to civil justice is taken. Robust data is hard to obtain and such data is not currently available in Canada; empirical conclusions are therefore based on estimates and approximations. Inferred conclusions may thus not be generalizable or applicable to Canada’s current situation, considering the wide array of sources, multiple jurisdictions, and broad time span from which they are drawn.
Despite the lack of methodological consensus in the literature, the primary research questions identified in the 2010 CFCJ review do allow us to develop a multifactorial understanding of “access to justice”. They cover four large issues: the costs of pursuing the resolution of legal problems (which include analysis of the costs of resolution in and outside the courts), the costs of not achieving resolution, the question of whether the costs of achieving resolution are economically and socially warranted, and the costs of dispute prevention. These areas of inquiry demonstrate that access to justice reform requires going beyond the traditional notion of civil justice being limited to the courtroom and demands further consideration of the systemic costs of the court, as well as consideration of alternatives to dispute resolution such as ADR.37
In 2012, the CFCJ released a report titled The Cost of Justice: Weighing the Costs of Fair & Effective Resolution to Legal Problems as a follow-up to its 2010 review. The collection of data emerging from studies carried out in relation to the report was completed in 2014. The report proposes a follow-up study of the research reviewed above. The project will undertake new research on the issue of the cost of justice, which is intended to “provide the foundation of critical information needed for evidence-based decision-making about the civil justice systems in Canada and internationally.” The CFCJ aims to “fill an empirical gap that has persisted in spite of repeated calls for research.”38 The research questions proposed in the report are similar to those identified in the 2010 review.
A strategic choice by litigants to go to court in terms of costs and chances of success, as the CFCJ’s primary research questions describe, presupposes that litigants have access to sufficient information in order to make strategic choices. Unfortunately, this is not always the case. Accordingly, research on access to justice must encompass further study of a number of issues beyond the cost of justice. In a report titled Access to Justice Metrics: A Discussion Paper, the Canadian Bar Association offers further insight into what other issues must be quantified and studied in the pursuit of civil justice reforms.39 Furthermore, as noted in the Introduction, efficiency should not in and of itself be seen as a goal. Thus, before undertaking civil justice reforms, it is necessary to identify whether the system of dispute resolution is consistent with what society values and whether it leads to legitimate and definitive outcomes.
Other Factors Shaping Access to Justice
The Plain Language Movement and Access to Justice
The idea that the law should be accessible rests on the assumption that there is a functioning and accessible system of legal representation to address complex technicalities on behalf of the layman—otherwise most legal norms would be out of the grasp of the very persons they are supposed to assist. Unfortunately, this assumption is largely fallacious. Even without extensive data, it is readily apparent that the court system, which relies largely on the use of professionals as representatives in court, is expensive and thus inaccessible to many . Further, without even considering the costs of hiring professionals, legal illiteracy (not to mention illiteracy in general; the Organization for Economic Cooperation and Development (OECD) scores average literary proficiency in OECD countries at less than 60 % among those between 16 and 65 years old)40 makes it impossible for users to know their rights and to evaluate their initial chances of success without having to consult an expensive professional. This dilemma, in turn, has prompted a movement for plain and simple legal norms.
A movement toward simplification of legal jargon has made its way through Western countries beginning in the 1970s.41 The first occurrence of a plain language policy in recent history can be traced back to a letter from the US First National City Bank to its borrowers in 1975. The bank was worried by the quantity of lawsuits it had to file against its clients and attempted to deal with the problem through more accurate, plain language communications. The bank claimed that the number of lawsuits diminished significantly.42
The plain language movement has had a worldwide impact, affecting countries including the United States, Canada, the United Kingdom, Ireland, Sweden, Denmark, France, Germany, Italy, South Africa, India, Singapore, Hong Kong, New Zealand, and Australia.43 In October 2010, US President Barack Obama signed the Plain Writing Act of 2010 , following other legislation that required official publications, forms, and documents to be written in a clear manner in accordance with best practices of plain language writing.44 In Canada , guidelines are produced for jurilinguists who draft bills and forms for the public.45 A number of organizations, such as the Plain Language Network, have also been advocating plain language for several decades.46
The plain language movement has been hindered by a number of allegations, including that plain language involves a dumbing down of language and results in vague legal standards representing a danger to lawyers’ ethical obligations and the legislator’s need for precision.47 Critics have also viewed the ideal of clarity in plain language as ambiguous and thus, ironically, as unclear because it is comprised of both the linguistic goal of concision and readability, and the legal goal of precision and certainty .48 Other critics do not deny plain language’s value but argue that, although plain language legislation may play an important role in promoting access to justice, a better methodology is required to evaluate the quality of plain language texts.49
In the face of this resistance from practitioners, advocates of plain language have developed an important body of research on its advantages. Advantages include increased efficiency through the streamlining of procedures and paperwork, enhanced client satisfaction due to less confusion, and a drop in complaints and claims, particularly by persons with special needs.50 Plain language advocates also argue that both clarity and legal precision can be achieved at the same time. Some advocates have nuanced this argument by suggesting that plain language’s benefits lie not so much in ensuring access to justice for the layman, but rather in signalling to the courts and official interpreters of legislation that legislation should be interpreted from the perspective of its primary audience.51
On a more theoretical level, another virtue of plain language is that it challenges some of the untenable assumptions underlying positivist conceptions of the law, particularly the idea that the law or the judicial norm exists prior to its application merely because it is in written form and contained in books. Plain language drafters tend to blur the conventional distinction between text and context, thereby drawing attention to the malleable character of texts and the make-it-up-as-you-go character of law.52 Some positivists may, however, argue that the problem is not the existence of vagueness in judicial norms, but rather the lack of a uniform normative theory of law’s indeterminacy that courts could easily use to handle issues of vagueness.53
Commercialization of the Legal Profession
Another critical factor behind the delays and cost associated with civil justice is the “commercialization of the legal profession” ,54 sometimes called the “market model of lawyering”.55 A number of commentators believe that large firms foster a litigious society. Some argue that “defensive practice” should be constrained in order to relieve undue strain on the system that may limit access to justice.56 While large firms may view oppressive litigation practices as necessary in order to honour client demands, it should be noted that this argument seems inconsistent with the fact that corporate clients are cutting costs and trying to limit the amount of work given to large law firms. Clients insist more and more on working things out directly, without the interference of the lawyers and their adversarial mentality.57
In the past decades, large law firms have increasingly adopted corporate structures and commercial approaches to the practice of law. In 1991, Marc Galante r and Thomas Palay published a book documenting the relentless growth of large US law firms. The book puts forward several structural and historical factors to explain these patterns of growth, centring on the adoption of the promotion-to-partnership tournament as a fairly stable and constant set of rules that limit the options of associates and partners.58 In 2008, Galanter updated his account of the modern large law firm. The large-law-firm sector has gradually transitioned from the classic promotion-to-partner tournament to the “elastic” tournament, which promotes, laterally hires, or de-equitizes partners in order to maximize profits for a proportionately smaller equity class. This shift, in his view, is not the product of unrestrained greed or the loss of the profession’s moral compass, but rather of a large-scale adaptation to major changes in the marketplace, including the globalization of corporate clients, the bureaucratization of corporate legal departments, the lower cost and greater availability of information, and the erosion of cohesive firm culture. 59
The corporate structure of law firms has made zealous advocacy in the service of the client the centrepiece of ethical lawyering, creating the potential for strains on judicial systems . One of the consequences of zealous advocacy is that, whenever clients’ and lawyers’ interests overlap on litigation strategies, public resources in a judicial system may be unjustly used to pursue overly complex litigation . When one does not have the power to make a decision, one can always try and delay the decision-making process. Whenever this is the client’s position, the corporate lawyer’s interest is satisfied because such a situation represents a number of billable hours, while the client or the lawyer does not necessarily internalize the drain on public resources caused by dilatory tactics.60
Another negative cost of a large firm concerned about its profit margin exists in the form of limitations on its ability to pursue non-economic objectives such as promoting racial and gender diversity, or training the next generation of lawyers. Further, the firm culture that could have moderated lawyers’ self-interest in the past is now weakened by the sheer size and geographic dispersion of the modern large law firm. Galanter concludes that, although the model is stable in the economic sense and extremely effective at maximizing the financial return on human capital, it simultaneously undermines or hinders values cherished by the profession.61
Furthermore, commercial interests may enter into conflict with traditional professional ethics that may otherwise have encouraged practices more favourable to access to justice. While solo and small-firm practitioners are over-represented in disciplinary proceedings because of higher levels of client complaints and alleged ethics violations,62 partners in large firms have enjoyed a widespread assumption that their ethical standards are impeccable .63 However, Galanter observes a transfer of the necessary market power for a profession to exist as a constituted body from law firms to in-house counsels . This shift has induced the emergence of a bureaucratic structure that favours entrepreneurial lawyers who privilege the company’s commercial interests over strict standards of professionalism. As one commentator puts it, “With a few notable exceptions, the lawyers . . . were literally absorbed in a high-pressure corporate environment. They appeared far more concerned with pursuing corporate profits than with pursuing the public good.”64 There are obvious implications for outside counsel: “In this highly atomized economic climate, it is likely that ethical gray zones will get resolved in the client’s favor.”65 The conflict between economic efficiency and other values with the potential to undermine efficiency raises questions about the long-term viability of professional self-regulation66 and, we might add, the legitimacy of the profession qua profession.67
Research on civil justice reform must pay attention to large law firms, notably because institutional structures are important in shaping the values of those who are members of the institutions in question. Another factor shaping the values of lawyers working for corporate firms is competition , which can result in a loss of autonomy and in lowered moral standards, mostly because lawyers see themselves as facilitators rather than standard-setters. At the same time, however, large law firms also contribute to the promotion of access to justice: they have the resources to retrain lawyers whose fields of expertise cease to be relevant, and they have the ethic to do so; they contribute to many worthy endeavours carried out by bar associations and dedicate resources to pro bono work, although some partners feel that this practice is in decline.68
Access to Justice and Emerging Values in Civil Justice Reform
In this part, we review the literature dealing with gender, racial bias, and discrimination in judicial systems. We first approach the issue in terms of access to judicial office and by extension, effects on access to the courts for litigants or witnesses, and second, in terms of access to the legal profession by women and minorities. Considering that individuals and institutions influence each other, the absence or lack of women and minorities serving as judicial actors may explain the presence or resilience of gender and racial discrimination in civil procedure. The presence of such discrimination is indeed problematic since it undermines the legitimacy of judicial systems in society. Furthermore, a more inclusive judicial profession could lead to the inclusion of additional judicial values in civil justice reform, such as the value of care, and could modify our understanding of values already represented in reforms.
We cover two movements of legal scholarship: feminist legal theory and critical race theory. Feminist legal theory can be considered “an umbrella term for a wildly diverse, far-ranging set of approaches.”69 It “provides the basis for a self-consciously critical stance towards law” and “offers insights for a critical analysis of procedure.”70 Critical race theory is a movement in the United States that began in the mid-1970s “with the realization that the Civil Rights Movement of the 1960s had stalled and that many of its gains, in fact were being rolled back.”71 There is an extensive body of literature on these subjects, and a detailed review of the various currents in feminist legal theory72 or critical race theory73 exceeds the scope of our study. However, the following provides an idea of some of the main issues raised by this literature, which are relevant to civil justice reform.
An Unrepresentative Judicial System
Demographic unrepresentativeness on the bench is one cause of discrimination in judicial systems.74 Marcia Neave argues that the “decline in public confidence in the judiciary . . . may be partly attributable to the unrepresentative composition of courts.”75 Susan Smith agrees that “[t]he judiciary is a highly visible institution, and the racial and gender composition of the bench affect perceptions of that institution.”76 Empirical evidence indicates that, although there is an ever-increasing pool of candidates qualified for judicial office, there is still a clear under-representation of women and minorities on the bench.77 Smith therefore argues that, as long as the judiciary remains an institution dominated by white, male judges, it will only perpetuate “gender and race-based stereotypes, myths and biases” and “translate racial and sexist views into law.”78
Access to justice also encompasses meaningful participation, free of gender and racial discrimination. Various task forces set up in the United States over the years to study the issue of gender and racial discrimination report that there is a serious problem of institutional discrimination in judicial systems and that “the legitimacy of the entire system is compromised” by this fact.79 In 2012, the European Union published a report on efficiency and quality in European judicial systems. A section on gender issues noted that European courts had achieved near gender parity on average; however, there was a lack of gender equality in positions of heads of jurisdictions. The report noted that there appeared to be a “‘glass ceiling’ impeding … the hierarchical progression of women.”80
A bench that is representative of societal demographics may also be likely to be perceived as more legitimate , as political views and other social, cultural, and cognitive factors such as class, ethnicity, and sexual orientation can be perceived as influencing and explaining judicial decision-making.81 For this perception of legitimacy to exist, however, token diversification is insufficient.82 Carrie Menkel-Meadow argues that comprehensive institutional changes are needed in order to permit full and meaningful participation in judicial decision-making.83 The depth of such comprehensive institutional change may encompass law schools, which are central places for judicial acculturation. Unrepresentativeness is also a problem in law schools.84 Duncan Kennedy observes that “[t]eachers are overwhelmingly white, male, and middle class, and most (by no means all) black and women law teachers give the impression of thorough assimilation to that style or of insecurity and unhappiness.” From the first day of classes, the “teacher sets the tone—a white, male, middle-class tone,” and students can easily be co-opted into this “dominating mode of discourse,” which is confused with neutrality.85
An additional concern is that procedural law may not be gender or race neutral . White men have historically been responsible for the “making, interpretation and administration” of the law,86 and therefore the law and its institutions necessarily reflect white, male subjective perception.87 However, that subjective perception tends to be mistaken for the only “objective” standard to be applied, and as a result women’s and minorities’ subjective perspectives are usually rejected—precisely because they are “subjective” .88 For example, it has been argued that the notion of judicial impartiality as we understand it is misleading in its failure to adequately recognize the human nature of judges and judging.89
Whatever subconscious biases a judge may have because of his or her personal experience and perception will undoubtedly have an impact on his or her decision-making. Recognizing this humanity may, however, result in a loss of status and legitimacy for judges if the judicial office is no longer perceived as being above and removed from these flaws inherent to human nature.90 Indeed, a human is expected to vanish into the judicial robe. Does recognizing the humanity in the act of judging really entail a loss of legitimacy? Can we think of alternative ways to define the need for impartial judges that take into account the critiques made by feminist and critical race theories? These questions require further study if access to justice reform is to lead to meaningful change.
A feminist framework may help provide some answers reconciling the reality of personal experiences and perception with notions of judicial impartiality. Judith Resnik writes about the notion of impartiality and disqualification in the US federal judicial system. For her, “‘Impartiality’ is required; ‘bias’ is forbidden” is an oft-repeated and taken-for-granted aspiration for judges that is not only culturally dependent but also gender-biased. Moreover, subtle biases inherent to the nature of human beings, and which may influence judicial decision-making, cannot be controlled through disqualification. While “[e]xtrajudicial sources of prejudice are sufficient to disqualify, . . . judicial sources of prejudice are generally not the basis of disqualification.” Feminist theories “enlighten our understanding of what we demand of judges” because they recognize the existence of different perspectives. Indeed, Resnik argues that, generally speaking, no judge in reality ever meets the stated standard, as there is no “objective stance” but “only a series of perspectives.”91 As we will see further on, the inherent subjectivity of the notion of impartiality, as well as subtle biases identified by feminist legal theory, raises the issue of a “handmade” justice, in contradiction with the positivist approach often endorsed by legal practitioners and taught in law schools.
Gender and Race Discrimination in the Legal Profession
Another argument made in the literature on civil justice reform is that the legal profession is discriminatory . Alex Johnson writes that the reality of the legal profession is one of “disproportionately few minorities and women within the profession and unequal treatment of those individuals within the profession based on their racial identification and gender.” This is problematic, notably because “[h]ow those outside the legal profession perceive those within the legal profession is … an important component of our legal system,” not least in terms of the legitimacy of the legal profession itself and lawyers’ status “as special keepers and defenders of society’s norms and values.”92 Practice within elite law firms provides examples of this issue.93
Women face additional discrimination as a result of the tension between having children, which comes with “disproportionate family responsibilities,” and “the ‘24/7’ demands of full-time large firm practice.” In the case of both minority and female lawyers, “firm managers lack the leverage to impose a top-down policy” in order to remedy the ills described above because partners function according to different incentives.94 In both cases, there is evidence of “discriminatory dual tracking”.95 When race and gender overlap, women belonging to minority groups get it “both ways”.96
Critical and feminist studies often focus on the large elite corporate law firm , in part because of the prestige and the status that is associated with these firms and the belief that they have an important influence on the profession and its development .97 As a starting point for further research, however, one should question the extent to which large corporate law firms influence the profession, particularly with respect to the values at its heart. Is it really valid to focus primarily on these large firms rather than on other institutional players, such as law schools, bar schools, courts, or other places of legal activity?
In light of these concerns, we need to start framing research questions differently. Two questions should be asked: First, which institutional players should bear the responsibility of promoting and protecting the profession’s values, and in what fashion should this task be carried out? Second, how would feminist and critical race theories challenge, define, or replace traditionally important procedural values such as neutrality, impartiality, autonomy, or dignity?
A number of further questions, engaging different perspectives, are relevant to answering these broad queries: Are women and minority lawyers generally under-represented in the legal profession? Is there data on this issue? If so, what are the causes and the consequences of this under-representation? What transformations would a more inclusive legal and judicial profession bring about? Are there any trends that suggest a change is occurring? If a judicial system is not representative of the society within which it functions, and if procedural values are not gender and race neutral, should we conclude that women and minorities are institutionally relegated to a justice system’s periphery? If so, whose interests are at its centre? Does this lack of inclusion of women and minority members negatively affect the judicial system’s legitimacy? Do alternative or parallel means of seeking justice develop as a consequence of this defect in terms of access, representativeness, or legitimacy, and how do they develop? Do such alternatives put forward distinctive values? On the contrary, do these alternatives appropriate and reinterpret existing values? Is legal pluralism a consequence of discrimination in the normative or cultural legal universe? Are ADR mechanisms making justice more vibrant, for example through legal pluralism, or less vibrant because alternate means of seeking justice prove to be inadequate, less effective, or counter-productive?
Beyond the profession’s reputation, the judicial system’s legitimacy, and particularly the perception that justice is effectively rendered through official channels, may be under threat as well, with the consequence that ADR mechanisms may be considered more favourably. This could be a positive development where ADR mechanisms are effective and representative. It could also be detrimental, however, if justice is not channelled through appropriate doors—that is, where persons are forced to resort to second-class justice or even violence. Continued resort to non-official dispute resolution mechanisms may also result in the development of a plurality of normative orders that fails to involve the State and thus leaves more institutional forms of justice unchanged. Further research is needed to evaluate the consequences of such trends, and to determine whether ADR is a viable way of resolving disputes while ensuring representation of diverse perspectives and values.
Alternative Lawyering: The Ethics of Care
The literature on access to justice reform also draws attention to alternative forms of lawyering as a method of rendering justice systems more accessible. Menkel-Meadow has written extensively on the subject of the “feminization” of the legal profession. This issue boils down to whether one can draw a distinction between women’s and men’s lawyering styles.98