Saturday, August 04, 2007

What's wrong with "Access to Justice"?

Mr. Justice Bouck's blog centres on his ideas for civil justice reform, a hot topic in BC these days. There is no doubt that litigation is too expensive -- moreover, the explosion of e-mail discovery is making things much worse, and the trend shows no sign of abating. So good ideas for making the resolution of civil claims cheaper are urgently needed. Of course, so much has been said ad nauseum and the problem gets worse.

One critical issue is how we frame the question. It has become a cliché to characterize the aim of civil justice reform aVia Moin Yahya, I see that Bouck J. of the B.C. Supreme Court has started a blog. This is a pretty adventurous thing to do for a Canadian judge, and we wish him a hearty welcome to the 'sphere.
s better "access to justice." For a while, I just thought of this as synonymous with resolving legal claims more cheaply and quickly. But reading some of the discussion at The Court about class actions, I realize that the phrase imports a pro-litigation and pro-plaintiff bias. "Justice" is implicitly equated with legal process: more is better and the problem is that not everyone gets enough.

The trouble with conceiving these things is two-fold. First, litigation, like every other economic good, has opportunity costs. We want those to be internalized by those who are responsible for making the litigation necessary. Canadian cost rules are better at this than those in the US. But in the name of "access to justice", we have abandoned these rules for class actions and increasingly for constitutional challenges the courts approve of. Since the resources of the system are necessarily finite, this makes it harder for other valid claims to go forward, as well as imposing costs on defendants who may have no valid claim against them.

Second, unlike most economic goods, litigation isn't consensual. The defendant is there unwillingly. If the claim isn't valid, then there is an injustice in any of the costs and delay -- even if the claim is valid, then there is an injustice when those costs and delay are greater than they should be.

The insight that exploding litigation costs are preventing people with small claims from getting justice is a good one. But we need to be clear on what we should be trying to achieve: a system that determines the validity of claims as cheaply and quickly as is consistent with reasonable accuracy and public confidence.

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