My Research
My doctoral research consists of an empirical study of Supreme Court of Canada decisions with a view to re-examining extant theories of jurisprudence. To date, legal philosophers have based their conclusions on a small, self-serving, selection of cases. For example, Hart's seminal The Concept of Law1, refers to only 17 cases. Dworkin's Law's Empire2 cites a total of fifty-one cases. On the other hand, my sample comprises all cases reported in the Supreme Court Reports since 1950: over 4,900 cases.
During my survey of these cases (which I expect will number approximately 4,950 by the end of 2003), I have tracked the extent to which the Court has relied on the facts, on the law and on policy to reach its decisions. I have documented the Court's increasing tendency to reverse its prior decisions and changes in the methods it employs to this end. I have noted a shift from almost total reliance on formal legal reasoning to an increasing willingness to engage in contextual interpretation and other more expansive forms of discourse. These are all related to changing patterns of unanimity and division on the Court.
A major cross-over occurred at the end of the nineteen seventies and the beginning of the nineteen eighties. The Court became much more forthright in admitting that it was effecting a change in the law. As well, its reliance on the facts of the individual case sharply declined and its willingness to grapple with policy concerns expanded. During this period the Court's reliance on prior decisions remained constant and predominant. In the past ten years, there has been a move towards deciding more and more cases on policy grounds: twenty years ago the proportion of law to policy was three to one, now it approaches two to one.
My Current Level of Graduate Studies and Supervisor
I entered my second year of doctoral studies at Osgoode Hall Law School (York University) in September of 2003. I have completed the requisite course work including the Graduate Seminar which focussed on legal theory. I have done a wide-ranging review of jurisprudential literature and, in the process, compiled a 106 page annotated bibliography; I contemplate the need for some small amount of additional reading once my statistical analysis has been completed. I have drafted an introductory chapter which will require major revision after I have written the conclusion of my dissertation. I will shortly begin to outline chapter two which will describe my findings. Then I will analyze extant theories of jurisprudence based on this new empirical evidence.
My supervisor is Allan C. Hutchinson. Professor Hutchinson is an eminent jurisprudential theorist and has written extensively in this field. I believe that he is far and away the best person to guide my research due to his thorough knowledge of the strengths and weaknesses of current and past theories of jurisprudence. Notwithstanding his accumulated learning, Professor Hutchinson is open to new ideas. He will thus ensure that my work speaks to existing academic discourse and that any radical ideas I might propose are capable of being expressed in a coherent theoretical framework. The other members on my committee are Dean Patrick Monahan and Professor Bruce Ryder. Professor Liora Salter has given me many useful suggestions.
What Accomplished and Still To Be Accomplished
I have completed my survey of Supreme Court of Canada cases to date. After the Court has finished its fall 2003 term, I will tabulate these cases as well. Some findings which emerged during my research will require that I re-examine the past five years of the Court's jurisprudence to confirm (or contradict) several apparent trends. I will then perform several analytical calculations.
I am currently subjecting some, if not all, of my findings to statistical verification. I will then thoroughly analyze and cross-reference the quantitative aspects of my data with my qualitative observations. My dissertation will then use these empirical findings to point out instances where my existing theories of legal decision making are supported and instances in which these theories require revision.
Contribution to Knowledge
Existing research has done a good job of mapping out a spectrum of legal theories ranging from the foundational positivism of Hart1 and Dworkin,2 to Hutchinson's non-foundational theories3 and to the anti-foundational nihilism of the critical legal studies movement.4 Preliminary indications of my research show that due to the limited sample size on which they are based, none of these theories accurately describe judicial decision making. For example, Dworkin postulates that Courts decide based on principle. However the Supreme Court only very rarely used principle to decide an issue. Critical Legal Theory proclaims that judges use politics (policy) to arrive at their decisions. While policy is increasingly important, my survey discloses that most decisions are based primarily on law and that the Court almost always wrestles mightily with past precedent before it deviates therefrom. While non-foundationalism has made important contributions by highlighting the multivariate modes of judicial decision-making but has failed to document how these various modalities interact with each another and change over time. In short, it has abdicated the obligation of theory to predict outcomes.
My dissertation will be designed to fill in the gaps in existing theories of jurisprudence, to show where they have and where they lack empirical support and to put forth a more comprehensive and textured theory of judicial decision-making.
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1 H.L.A. Hart, The Concept of Law, (2nd Ed.), (Oxford; Clarendon Press, 1994)
2 R. Dworkin, Lawís Empire, (Cambridge, Mass.; Harvard University Press, 1986)
3 See for example, A. Hutchinson, Itís All in the Game: A Non-foundational Account of Law and Ajudication (Durham, NC; Duke University Press, 2000)
4 See J.W. Singer, The Player and the Cards: Nihilism and Legal Theory, (1984) 94 Yale L.J. 1