Sunday, December 27, 2009
Interveners at the Supreme Court of Canada
Benjamin Alarie and Andrew James Green have posted Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance to SSRN.
Abstract:
Do interveners matter? Under Chief Justice McLachlin the Supreme Court
of Canada has allowed an average of 176 interventions per calendar year
and interveners have cumulatively made submissions in half of the cases
heard by the Court. This level of activity suggests that interveners
are doing something. But what is it that they are doing?
In
the abstract, there are at least three functions that the practice of
intervention might perform. First, hearing from interveners might
provide objectively useful information to the Court (i.e., interveners
might promote the “accuracy” of the Court’s decision-making). A second
possibility is that the practice of intervention allows interveners to
provide the “best argument” for certain partisan interests that judges
might want to “affiliate” with. A third possibility is that
interventions are allowed mainly (if not only) so that intervening
parties feel they have had their voices heard by the Court and by the
greater public, including Parliament, regardless of the effect on the
outcome of the appeal (i.e., the Court might be promoting the
“acceptability” of its decisions by allowing for an outlet for
expression).
It is disconcerting that until now the effects of
interventions on the decision-making of the Supreme Court of Canada
have not been systematically explored through empirical analysis. A
growing body of literature has examined the role of amicus curiae at
the Supreme Court of the United States. To date, however, the related
literature in Canada is slim and, to the extent it exists, does not
deploy the empirical methods necessary to test independently for the
influence of interveners on the decisions of individual judges. This
work fills this gap in the existing literature and expands our
collective understanding of the consequences of the practice of
intervention at Canada’s highest court. We find evidence that
interveners matter more than many observers might expect.
RJE
https://lawprofessors.typepad.com/civpro/2009/12/interveners-at-the-supreme-court-of-canada.html