Theoretical Issues:  Day 3
Adie & Thomas, “The Social Meaning of Organizational Life”
-negative perception of public bureaucracies
-Young Marx:  bureaucracies become cut off, inhumane, self-serving.  Old Marx:  bureaucracy will wither away.
-Weber:  both socialist & capitalist govt’s need bureaucracies.
-bureaucracies promote “social leveling” because of recruitment needs
-merit principle may lead to “gov’t by the wealthy” through bureaucracy
-impersonality of bureaucracy will cause antipathy & may spread

Weber developed the theory of bureaucracy:  merit, legal relations (job descriptions), clear hierarchical authority structure, impersonal

Robert Michels:  Iron law of oligarchy:  who says organization says oligarchy
-goal displacement prevents bureaucracies from achieving their goals
Lord Hewart (1929):  “The new despotism”
-place a gov’t dept beyond control of Parl or courts, and despots will take advantage for their own gain

Hayek:  democracy can survive only in a capitalistic system
-collectivism destroys individual initiative

Milton Friedman:
-bureaucracies with laudable goals fail because of resentment of their coercive powers

Neoconservatism tends to be anti-bureaucratic
-smaller government

New Public Management movement
-began with Osborne & Gaebler:  "reinventing government," 1991
-originally promoted strategies for bureaucracies to cope creatively with budget cuts
-eventually became a movement that claimed that government should be run like a business, and all that's necessary to
  run government can be learned from a business administration degree.  NPM currently appears to have lost credibility.

Downsizing has led to even more resentment
The human cost
-bureaucracies tend to serve middle-class best
-cultural bias
-pressure to conform
-makes whistle-blowing legislation difficult

Alternatives to bureaucracy:
-client-centred, street level
-dialectical organization:  characteristics opposite to those of  bureaucracy (more flexible)
-Did the desire to release accountability controls lead to HRDC & sponsorship scandals?

"Democratic administration" movement
-appropriate pubic consultation in policy-making
-democratic principle of mutual respect applied within the bureaucracy
-consciousness of impact of bureaucracy on democratic consciousness of society
-York offers a Graduate Diploma in Democratic Administration (in addition to the Graduate Diploma in Justice System Administration), which can be taken concurrently with any graduate degree.  Contact Ian Greene for details about both diplomas.

David Dyzenhaus: The Politics of Judicial Deference
How should judges respond to administrative determinations of law?
Theoretical background
-Bentham:  common law too messy to have positivity:  democratic positivist
-Blackstone:  common law is product of the people:  liberal antipositivist
-Dicey:  a positivist who supported common law
-rule of law made an obstacle to growth of public service
-public service grew anyway because of demand
-privative clauses introduced, but they only increased judicial power (not concern about bureaucracy, but about rule of law)

Liberal antipositivists
-common law is the basis for judicial review
Democratic positivists
-no legislative intent to the contrary
-some tribunals get their power through a contract rather than legislation

Submissive deference (Dicey) vs. Deference as respect

CUPE case (1979):  courts should defer to administrative determinations of policy.  (But containted seeds of expansion of judicial review)
Nicholson case (1979):  intervene to promote “fairness” (relevant principles of natural justice).

-CUPE case:  doctrine of “patently unreasonable”
-Beetz advocated a “pragmatic & functional” approach
-Does “patently unreasonable” mean the same as “incorrect”?
-Madame Justice Wilson wrote in a 1990 decision:   the court has “...a tendency ... To return to a less stringent test for judicial review than the one established
in CUPE.  This backsliding has been largely predicated upon a rather Dicean view of the rule of law...."

Deference as respect implies a respect for equality in proceedings.  In spite of unpopularity of public sector, there is still public support for equality.  The substance of the rule of law is equality before the law.  Courts should intervene when tribunals cannot demonstrate that they have lived up to the substance.

David Beatty: Constitutional Law in Theory & Practice
-Judges criticized for inconsistency in constitutional interpretation
-good judges apply two principles to interpretation:
    -Rationality:  public interest is of sufficient importance that it justifies restrictions created by the law
    -Proportionality:  gains to the community outweigh loss of freedom or encroachment on another govt’s jurisdiction.   Means used must be best available.
-Good judges ought to apply these two principles.  The bad decisions are the ones where they haven’t.
-Politics is subordinate to law
-this approach promotes democratic accountability and therefore democracy

Friedland:  Performance Evaluation
-like professors, judges (and tribunal members) should develop a system of self-evaluation
-questionnaires could be kept confidential to protect judicial independence
Stein:  Cult of efficiency
-prof of international relations at U of T.  Asked to give 2001 Massey Lecture & chose efficiency
-much of book focuses on “public markets” in education and health care.
-Health care:  costs can be reduced without losing quality if choice is reduced
-Education:  choice produces higher satisfaction, but no cost savings.
-we need to know what publicly-funded services are accountable for
-evaluations should be driven by the fundamental right of every person in a democracy to dignity and respect.
-Evaluations should be public and should be comprehensible
(Fed. Gov’t mandates program evaluations every 5 years.  Most evaluations are not useful because of internal politics, lack of cooperation of programs, and asking the wrong questions.)

Margaret Allars: Discretion
K.C. Davis
-delegation of discretion to independent agencies is necessary
-unnecessary discretion must be eliminated
-checks must be placed on necessary discretion:  clear policy,  open procedures, admin & judicial supervision
Ronald Dworkin:
-discretion is a hole in a doughnut:  ringed by restrictions
-discretion in weak sense means exercising judgment about application of standards
-discretion in strong sense means power to establish standards

McCormick & Greene: trial court decision-making
-Two major variables:
        -extent to which a formal decision-making process is described (formalism) &
        -degree to which judge consider that the rules leave him/her with discretion (discretion)
-Improvisers:  low formalism, low discretion (10%)
-strict formalists:  high formalism, low discretion (22%)
-pragmatic formalists:  high formalism, high discretion (44%)
-intuitivists:  low formalism, high discretion (24%)
n = 41

McCormick: winning & losing
-Party capability theory:  litigants experienced at trial will do better than “one-shotters”

-Success rates from highest to lowest:  crown, big business, fed/prov govts, mun govts, other business, individuals, unions

Final Appeal The human element in judicial decision-making
Conventional wisdom:  judges exercise discretion in a minority of cases where the law is unclear (Charter).  Left and right critics:  judicial discretion is dangerous for democracy

This analysis, in contrast, shows
-judges may have more discretion than previously thought
-procedures developed by individual courts also impact outcomes
-judicial collegiality on panels has an impact on decision-making

Decisions in appeal courts are the result of
-the law
-personal values of judges
-procedures developed by courts
-interpersonal relations amongst judges

Discretion is unavoidable - neither good nor bad
-Therefore improve judicial & admin tribunal selection & promotion procedures
-more effective procedures in courts/tribunals
-continue to research decision-making (pragmatic approach)
-continuing legal education

Morton & Knopff
-Professors of political science at University of Calgary
-Morton was active in advising reform/alliance & new conservative parties
-Critical of judicial activism because they claim it’s anti-democratic
-“interpretivist” judges attempt to apply the principles of the constitution’s framers
-“non-interpretivist” judges claim the principles of the framers can never be fully understood, and don’t always apply to future times
-“oracular” judicial decision-making style is to proclaim the existence of a particular truth.  Activist judges often adopt an “oracular” style
-“papal” style:  judges declare what the constitution means
-“protestant” style:  judges and legislatures both have a role in constitutional interpretation
-A more recent book by Morton & Knopff claims that Charter litigation has been hijacked by left-leaning lawyers and interest groups (like LEAF)

Michael Mandel
-A left-wing law professor at Osgoode Hall
-Like the right-wing critics, Mandel claims that judicial activism is anti-democratic.  However, he claims that the Charter is being used by big business and other advantaged groups to extend their advantages.  He analyses Charter decisions to show how each one erodes the cause of the disadvantaged.
-He shows that since the Charter, the gap between rich and poor has increased.  As well, the debate about rights has diverted attention away from the plight of the disadvantaged.

Richard Sigurdson (UNB) has argued that there are only a few academics (Morton, Knopff, Mandel) who have taken extreme positions on judicial activism.  Most academics and politicians take much more moderate positions.