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Reality Check: On the Uses of Empiricism

Published online by Cambridge University Press:  20 July 2015

Peter J. Carver
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Extract

This Critical Notice deals with two recent books that report the findings of statistical analyses of Supreme Court of Canada judgments over extensive periods of time. The authors of both studies argue that empirical analysis can make significant contributions to theories of law and the understanding of what high court judges do, and in fact, that theoretical approaches on their own are necessarily inadequate to this task. The review questions whether the studies succeed in meeting the ambitions set for them. In Attitudinal Decision-making in the Supreme Court of Canada, Ostberg and Wetstein fail to establish that the attitudinal model of jurisprudence developed by American political science provides a strong explanation of the performance of the Supreme Court of Canada. In The Empirical Gap in Jurisprudence, Daved Muttart employs such broadly stated measures of judicial reasoning that his conclusions about the Court’s performance remain general in nature and do not pose serious challenges to the major, competing schools of jurisprudential thought he seeks to examine. Both studies fall back on unconvincing arguments about the prevalence of judicial activism in Supreme Court decision-making in the absence of stronger findings on their principal themes.

Type
Critical Notices
Information
Canadian Journal of Law & Jurisprudence , Volume 21 , Issue 2 , July 2008 , pp. 447 - 457
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2008

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References

1. In the sense of large-scale statistical studies, empiricism may not be as foreign to Canadian legal scholarship as the authors of these two books suggest. In a recent article which itself reports an empirical study of Ontario Court of Appeal decision-making, Professors Moin Yahya and James Stribopoulos give a comprehensive account of similar studies carried out in recent years—see “Does a Judge’s Party of Appointment or Gender Matter to Case Outcomes? An Empirical Study of the Court of Appeal for Ontario” (2007) 45 Osgoode Hall L. J. 315.

2. Muttart describes his understanding of empirical method in these terms: “I maintain that all studies that systematically compile and analyse large data sets are empirical. Some of the indicators I studied are quantitative; others have important qualitative components. My study of the Supreme Court of Canada is empirical because it attempts to test theories based on methodically gathered evidence” (supra note at 34).

3. See Segal, Jeffery A. & Spaeth, Harold J., The Supreme Court and the Attitudinal Model Revisited (New York: Cambridge University Press, 2002)CrossRefGoogle Scholar and Segal, Spaeth & Benesh, Sara C., The Supreme Court in the American Legal System (New York: Cambridge University Press, 2005).CrossRefGoogle Scholar

4. “Collectively these theories constitute three of the most prominent accounts used in explaining judicial decision making and conflict in US appellate courts. Although advocates of each theory might contend that their perspective provides the best description of judicial behaviour, we believe that each of the approaches can be perceived as different layers of a large onion, with each school providing an added element of explanation for how justices arrive at their final legal outcomes” (supra note * at 9-10).

5. See for instance, Sisk, Gregory C. & Heise, Michael, “Judges and Ideology: Public and Academic Debates about Statistical Measures” (2005) 99 Nw. U. L. Rev. 743.Google Scholar

6. “In short, we believe that the Canadian justices will engage in a unique hybrid of attitudinal decision making that, although prominent, will not be as ideologically driven as that found in the US Supreme Court” (supra note * at 41).

7. With respect to the measure of prime ministerial ideology, the authors score Prime Ministers Trudeau and Chretien at + 1 for their ‘liberal’ orientation to judicial appointments, while scoring Prime Minister Mulroney at ’0’ for “the seemingly more moderate tenor of his [nine] appointments to the bench” (ibid. at 49). Without further explanation, this scoring itself betrays a political bias and perhaps an over-reliance on right-of-centre sources in analyzing Canadian politics.

8. Ibid. at 89.

9. Supra note 1 at 316. Stribopoulos and Yahya state the following:

Third, and equally notable, is the variation we found in the way male and female judges vote. Although in many categories there is no discernible difference in their voting patterns, in some categories, gender appears to matter greatly. For example, in criminal cases involving sexual or domestic violence, as well as in family law cases involving disputes about custody or support, there is a statistically significant tendency on the part of female judges to favour the interests of complainants and mothers. The converse of male judges voting in favour of the interests of accused persons and fathers is also true. Again, these effects are dampened on panels that include judges of both genders. These findings signal a need for greater gender diversity on appellate court panels, especially in cases where polarization of the genders is more likely.

Ostberg and Wetstein make a similar prescription when, having noted that female Supreme Court of Canada Justices “have been far more likely than their male colleagues to protect the interests of vulnerable minorities in all equality cases and in non-unanimous equality and free expression cases”, they suggest that “the prime minister and Justice Department officials” need to be made aware of this difference between the genders. Supra note * at 221. One question would be “Why, and to what purpose?” Whether the findings of large-scale empirical analyses of judicial per-formance should inform the process for appointing individual judges is beyond the purview of this critical notice, but the tendency to assume this is the case is worth questioning.

10. For example, Chapter 7, “Attitudinal Consistency in the Post-Charter Supreme Court,” starts with this statement: “Chapters 4 to 6 have shown that judicial attitudes and values constitute one of the most powerful predictors of voting behaviour in most of the non-unanimous cases decided by the Supreme Court of Canada, and play a significant role in several of the equations examining all cases” (ibid. at 193).

11. Ibid. at 137.

12. See Dworkin’s, most recent summation of his jurisprudential thinking in Justice in Robes (Cambridge, MA: Harvard University Press, 2006).Google Scholar

13. See Figure 5.1, supra note at 54.

14. R.S.C. 1985, c. S-26, s. 40. Although Muttart refers to the granting of docket control to the Court in his historical overview in Chapter 2, he does not mention its likely impact on the Court’s modes of legal reasoning in his later analysis of that matter.

15. Supra note at 25.

16. Ibid. at 66.

17. One example cited is a dissenting opinion by Justice Sopinka in Central Alberta Dairy Pool v. Alberta Human Rights Commission, [1990] 2 S.C.R. 489.Google Scholar

18. “The empirical evidence, by and large, supports the thesis that the Supreme Court of Canada functions largely in accord with the tenets of foundational positivism. The Court almost always rules based on legal materials (statute, precedent) and not on moral or sociological grounds. Law is preferred over policy” (supra note at 113).

19. Ibid. at 122.

20. See Roach’s, Kent useful critique on this point in Part I of his The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto, ON: Irwin Law, 2001).Google Scholar

21. Supra note * at 77.

22. 347 U.S. 484 (1954).

23. [1959] S.C.R. 121.

24. Ibid. at 145.

25. Muttart notes that the court engaged in activism in 11 of the 18 cases, including in such unanimous and relatively uncontroversial decisions as Trociuk v. British Columbia [2003] 1 SCR 835 Google Scholar, Martin & Laseur v. Nova Scotia (Workers’ Compensation Board) [2003] 2 SCR 504 Google Scholar, and R. v. Powley [2003] 2 SCR 207.Google Scholar