Clerking at the Supreme Court of Canada (original) (raw)
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Open Chambers: High Court Associates and Supreme Court Clerks Compared
Melbourne University Law Review, 2007
Adjudication is globalizing. The apex courts of domestic systems – supreme courts or constitutional courts – are leading examples. This practice is propelled by the now familiar globalization of judicial dialogue, as well as the globalization of the legal profession and legal education. Yet this globalization is uneven, across courts and across legal areas. There are subtle institutional reasons that account for the convergence and divergence of judicial practice. These reasons are revealed by close, qualitative comparison. This Essay, from 2007, focuses on the role of the law clerk. Responding to the study by political scientists Artemus Ward and David Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, this Essay analyzes their framework for assessing clerk influence and their findings for the U.S. Supreme Court. It compares these findings with material from the Australian High Court. Ward and Weiden’s data suggests that U.S. clerks enjoy considerable – and ever growing – influence in the Supreme Court, by reviewing petitions for cert, assisting judges in decision-making, and drafting opinions. While this influence is prone to exaggeration, if accurate, it contrasts well with the more muted Australian role, where judges employ fewer clerks and delegate fewer adjudicative tasks. This Essay attributes this variance to the differences in life tenure versus compulsory retirement in the two courts, the role of oral argument, judicial appointment processes, norms of consensus in opinion-writing, and the content of the judicial docket. These conclusions portray aspects of convergence and divergence in the role of the clerk. In particular, they suggest that the greater number of clerks per judge, the greater the opportunity for influence. Other apex courts, such as the South African Constitutional Court, or even the International Court of Justice, employ several clerks, and include foreign clerks. These findings have implications for understanding the importance of clerkship education, diversity and hiring, and, more fundamentally, for understanding the delegation by judges of the adjudicative role.
98 Marquette Law Review 1, 2014
Law clerks have been part of the American judicial system since 1882, when Supreme Court Justice Horace Gray hired a young Harvard Law School graduate named Thomas Russell to serve as his assistant. 1 Justice Gray paid for his law clerks out of his own pocket until Congress authorized funds for the hiring of "stenographic clerks" in 1886. The Gray law clerks, however, were not mere stenographers. Justice Gray assigned them a host of legal and non-legal job duties. His clerks discussed the record and debated the attendant legal issues with Justice Gray prior to oral argument, conducted legal research, and prepared the first draft of opinions. Today all nine Justices of the United States Supreme Court follow the institutional practices established by Justice Gray. Each Justice is entitled to hire four clerks (five, in the case of the Chief Justice), most of whom are recent graduates of an elite law school who serve for a single term. What is more, the practice of hiring newly graduated attorneys to serve as clerks has spread beyond the Supreme Court to become a well-established feature throughout both the federal and state courts. The institution of the law clerk, as we will discuss, has generally received little scholarly attention. But it has never been entirely ignored, and at least some initial reviews of the practice were promising. In 1960, Karl Llewellyn wrote of the rise of the law clerk in almost excited terms. After noting that Gray had started the practice, and
International Journal for Court Administration, 2016
Although largely invisible to the public, behind the scenes, judicial assistants/law clerks frequently play a vital role in the process of adjudication. Yet, especially outside of the U.S., little is known about their role and duties in the judicial decision-making process. This article provides insight into the organization of the employment and the duties of judicial assistants in three different jurisdictions: the U.S., England and Wales, and the Netherlands. In particular, this article aims to gain an understanding of the effects different organizational structures have on the potential influence of assistants on the judicial process and to observe what restrictions are employed to prevent assistants from wielding too much influence.
The Supreme Court of Canada and the Judicial Role: An Historical Institutionalist Account
2009
This dissertation describes and analyzes the work of the Supreme Court of Canada, emphasizing its internal environment and processes, while situating the institution in its broader governmental and societal context. In addition, it offers an assessment of the behavioural and rational choice models of judicial decision making, which tend to portray judges as primarily motivated by their ideologically-based policy preferences. The dissertation adopts a historical institutionalist approach to demonstrate that judicial decision making is far more complex than is depicted by the dominant approaches within the political science literature. Drawing extensively on 28 research interviews with current and former justices, former law clerks and other staff members, the analysis traces the development of the Court into a full-fledged policy-making institution, particularly under the Charter of Rights and Freedoms. This analysis presents new empirical evidence regarding not only the various stages of the Court's decision-making process but the justices' views on a host of considerations ranging from questions of collegiality (how the justices should work together) to their involvement in controversial and complex social policy matters and their relationship with the other branches of government. These insights are important because they increase our understanding of how the Court operates as one of the country's more important policy-making institutions. The findings have significant implications for debates over judicial activism and the relationship between courts and the other branches of government when dealing with the Charter. The project also concludes that the justices' role perceptions-the ideas, norms and rules that govern their role as judges and that of the institution-both shape and constrain their decision making behaviour. Understanding judicial behaviour with a focus on role perceptions allows for bridge-building between the competing explanations of judicial decision making and for theory-building in the broader judicial politics literature.
Administering Justice and Serving the People
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Canada has a complex system of courts that seek to serve Canadians in view of the traditional objectives of civil justice-principally accessibility, efficiency, fairness, efficacy, proportionality and equality. The Canadian court system is generally considered by its users to work well and to have legitimacy. Yet, researchers have found that 'there is a tendency for people involved in a civil case to become disillusioned about the ability of the system to effect a fair and timely resolution to a civil justice problem'. This article will discuss the ways in which reforms of procedural law and civil justice have originated and continue to be made throughout Canada, both nationally and provincially, as well as the trends and influences in making these reforms. With hundreds of contemporary procedural reforms having been discussed, proposed and/or completed since the first days of Canadian colonisation on a national basis and in the Canadian provinces and territory, providing a detailed analysis will prove challenging. This article will nonetheless provide a review of civil justice and procedural reform issues in Canada, focusing principally, at the provincial level, on the systems of Ontario and Quebec. Importantly, I will seek to reconcile the increasing willingness to have an economically efficient civil justice and the increased power of judges in managing cases, with our court system's invasion of ADR and its prioritisation of informal modes of adjudication.
A Context of Justice: Ontario\u27s Justices of the Peace – From the Mewett Report to the Present
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This paper considers the evolution of justices of the peace in Ontario, from Alan Mewett’s landmark report in 1981 – which was commissioned by the Attorney General – to the present. It explains how an office that, according to Mewett and others, was in a state of neglect and dysfunction at the time has been completely transformed through a process of reform. This process addressed key deficits in the professionalism and independence of the justices, and comprised three key steps: the legislative reforms of 1989, the establishment of remuneration commissions for justices of the peace in the 1990s, and more recent legislative reforms undertaken in 2006. As a result of this process, there is little resemblance between the office that Mewett described and today’s justices of the peace, who have been brought into closer alignment with other judicial officers in the province. The paper also considers the roles justices of the peace play, and comments on their place in the overall scheme o...