Summary: Empirical study of civil justice systems: a look at the literature

By Michael Lines, MA MLS

Learning and Research Librarian

Diana M. Priestly Law Library, University of Victoria

Some time ago I was asked, as librarians are, to find the text of an older work of great significance. In this case, it was Roscoe Pound's famous 1936 address to the American Bar Association, The Causes of Popular Dissatisfaction with the Administration of Justice. I located the speech,[1] and noted another work by Pound that seemed on topic: A Bibliography of Procedural Reform Including Organization of the Courts[2]. When I looked at the titles that Pound had collected, I was struck by how familiar they seemed. Here is a selection from Pound that refers to the problem of delay in the courts:

  • Report of the Special Committee to Prevent Delay and Unnecessary Costs in Litigation.
  • Efficiency in the Administration of Justice.
  • The Struggle for the Simplification of Legal Procedure.
  • Preliminary Report on Efficiency in the Administration of Justice.
  • Committee to Consider the Simplification of New York Procedure: Report.
  • Experiment in Simplified Procedure.
  • Administration of Justice – Its Speeding and Cheapening.

Today, civil justice reform, including initiatives aimed at delay, remains a steady source of reports from government, bar associations, and other law-related groups.

  • Excessive Costs and Delay: Is There a Solution?
  • L'accélération du temps juridique
  • Part 24 of the Alberta Rules of Court: Delay in Prosecution of Actions
  • Caseflow Management: A Delay Reduction Tool 
  • The Ontario Law Reform Commission Report on Delay and Multiple Proceedings: A Critique
  • Executive Summary: Inventory of Delay Reduction Strategies and Techniques
  • National Time Standards for the Disposition of Civil Cases: A Discussion Paper.[3]

The 1917 titles read like they could have been produced last year, and the modern titles could sit inconspicuously in Pound's collection. This has unfortunate implications for the administration of justice. Is delay really such an intractable problem that 100 years of reform suggestions has not found a workable solution?

Further, there is an arresting similarity in the content of many works across the period: a scarcity of validly derived empirical data, and a corresponding lack of compelling evidence-based evaluations of the problem of delay.

I am not the first to admonish the legal community for this weakness: the tradition is long, and found often violent expression in Jeremy Bentham's work. He attributed the promotion of weak or useless reforms to the "sinister interests" of lawyers, and generally his opinion was that "[a]ll the industry of lawyers has been hitherto employed to prevent the grounds of law being canvassed."[4] Pound was more moderate:

It has been felt for some time that the entire separation of jurisprudence from the social sciences, the leaving of it to itself on the one hand and the conviction of its self-sufficiency on the other hand, was not merely unfortunate for the science of law on general considerations, in that it necessitated a narrow and partial view but was in large part to be charged with the backwardness of the law in meeting social ends, the tardiness of lawyers in admitting or even perceiving such ends, and the gulf between legal thought and popular thought on matters of social reform.[5]

More recently this comment was made: "[m]any lawyers and judges appear to believe that thinking like a lawyer means relying on law books, logic, speculation, argument, and - when it comes to addressing problems of societal reality - invoking intuition … [W]e are face to face with an old truth: lawyers are suspicious or fearful or both when they confront the methods and findings of the social sciences."[6]

Not that empirical studies are always required: there are situations where the facts are obvious and common sense is sufficient.  And not that valid evidence is readily available, either. Many categories of basic data that one assumes the courts generate in the regular course of business simply are not collected in Canada.[7]

Unless a renewed and sustained effort is made to support the empirical study of civil justice systems in Canada, our conceptions of our own legal system will remain distorted by ignorance, and we will continue to struggle to counter seemingly intractable problems such as delay.

[1]Roscoe Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice" (1936-1937) 20 Journal of the American Judicial Society 178 originally delivered at the 1906 annual meeting of the American Bar Association.

 

[2] Roscoe Pound, "A Bibliography of Procedural Reform Including Organization of the Courts" (1917) 11 Illinois Law Review 451.

[3] These materials were selected from results obtained by searching the Canadian Forum on Civil Justice's online database, the Civil Justice Clearinghouse, using the subject heading "Court Administration--Congestion and Delay" accessed Sept. 1, 2004. See the Canadian Forum on Civil Justice, Civil Justice Clearinghouse [www.cfcj-fcjc.org, select “Clearinghouse”]. 

[4] Book of Fallacies, in Jeremy Bentham, The Works of Jeremy Bentham (New York: Russell and Russell, 1962) vol. 11., v.2 at 479.

[5] Roscoe Pound, "The Scope and Purpose of Sociological Jurisprudence [part 3]" (1912) 25 Harvard Law Review 489.at 510.

[6] Maurice Rosenberg, "The Impact of Procedure-Impact Studies in the Administration of Justice" (1988) 51 Law and Contemporary Problems 13. at 13.

[7] A shortcoming recognised, in the specific context of self-represented litigants, in D. A. Rollie Thompson, "No Lawyer: Institutional Coping with the Self-Represented" (2002) 19 Canadian Family Law Quarterly 455.