The Alarming Privatization of Our Judicial System: The Need For More Resources

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This article was originally posted on Slaw.ca.

Some law firms last year experienced record profits, despite the pandemic. Part of the growth in revenue was due to the increase in private arbitration. As courts struggled to adapt, more litigants turned to private solutions, like mediation and arbitration.

In the article “As Trials Stalled, Shook Hardy Found Other Ways to Drive Revenue, Profits“, author Dylan Jackson explains that the law firm Shook, Hardy & Bacon saw their profits increase by 3.2% last year. The firm’s gross revenue increased to $364,776,000. Profits per partner increased to $995,000. The increase was attributed to a 50% increase in arbitrations and mediations. This amounted to about 200 arbitrations. On its surface, this move to private arbitrations seems rather inane, almost natural.

However, the privatizing of our court system should ring alarm bells. Starving our judiciary of resources and then expecting litigants to turn to the private sector is problematic. Privatizing our courts removes cases from the public record, stalls the growth of case law, creates a two-tiered system, and undermines an independent and vibrant judiciary. A strong, independent judiciary is integral for supporting a strong democracy.

Consistently shifting resources out of the public sector and into the private sector is problematic. As legal theorist Richard Susskind states in the Future of Our Courts: “An outdated, unaffordable, and unintelligible court system undermines the legitimacy of our judicial process. The overwhelming use of private sector services harms the development of jurisprudence and leads us to being governed more by unpredictable social norms than by the law.”

Beyond the courts, we see a similar resource issue for our tribunals in Ontario. As Professor Noel Semple points out in his article “Justice Delayed and Denied in Ontario’s Tribunals”, “Across four critical high-volume tribunals, the number of adjudicators fell from 160 in 2018 to 87 in 2020. Delay in justice is the inevitable result…Placing large policy areas effectively outside the rule of law, by sabotaging the legal systems which govern them… accelerates the erosion of trust in the government, the consequences of which are now so obvious south of the border”.

While we turn to private companies and citizens to provide technology solutions, we must see if there is a way to strengthen our judicial system and our administrative tribunals. Strengthening our three branches of government is worthwhile. If you are interested in learning more about the trend of privatizing traditional government services, I recommend “The New Corporation: The Unfortunately Necessary Sequel“.

(Views are my own and do not represent the views of any organization.)

heatherdouglaslaw.com

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