Public Administration, Judicial Administration and Management Theory

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Public Administration, Judicial Administration
and Management Theory 

• Selected Issues in Judicial Administration
• GS/Law 6720 3.0
• December 8, 2008

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Presentations

• Carl Baar, Integrated Justice Privatizing the
  Fundamentals, (1999) 42 Canadian Public
  Administration 42-68 David Rudoler
• Mary Parker Follett, The Process of Control
  (London School of Economics, 1932), later
  published in L. Gulick and L. Urwick, Papers on
  the Science of Administration (1938) Hilary
  Cameron
• James P. Womack, Daniel T. Jones, and Daniel
  Roos, The Machine That Changed the World (New
  York Harper Perennial, 1991), Chap. 1, pp.
  11-15 Judy Verbeeten

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Peter McCormick,New Questions about an Old
ConceptThe Supreme Court of CanadasJudicial
Independence Decisions

• 37(4) Canadian Journal of Political Science
  839-862

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Abstract

• In the age of the Charter, courts are an
  important part of the policy process, and
  judicial independence is the concept that
  structures the interactions between courts and
  other institutions.
• Historically, judicial independence in Canada was
  modelled on (and little different from) that of
  England but politically-led reforms in the
  1970s, and a string of more than a dozen Supreme
  Court decisions centred on the 1997 Remuneration
  Reference, are transforming the concept.
• At the same time, a parallel string of cases
  extends more limited but essentially similar
  guarantees to some other administrative bodies.
• Together, these developments represent an
  important and enduring change in the Canadian
  political landscape.

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Judicial Independence - English
StylePrototype Created by Act of Settlement
(1701)

• BASIC ELEMENTS
• First judges hold office on good behaviour and
  are (almost) impossible to remove, and then only
  for cause.
• Second salaries set by Parliament (for all
  judges on same bench, not for individual judges).
• Third judges not answerable to government or
  bureaucracy for judicial matters.
• Fourth judges drawn from/part of aggressively
  independent legal profession (implied).
• Fifth judicial discretion limited by formalism
  as guiding principle (implied) ? judges applied,
  but did not modify rules.

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Judicial Independence - Canadian Style Direct
Copy of English Experience

• Sections 96 100 of the Constitution Act, 1867
  closely parallel the relevant terms of the Act of
  Settlement.
• Judges of provincial superior courts appointed
  from provincial bars.
• Judges serve on good behaviour for life (or
  mandatory retirement age).
• Judges removable only for cause.
• Salaries established by Parliament.

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Judicial Independence - Canadian Style Omissions

• Judicial independence applies only to English
  superior courts and Canadas provincial superior
  courts (and SCC).
• Candidate for bench, must come from the bar, but
  ...
• other aspects informing the appointment decision?
• considerations re elevating judges to a higher
  court?
• No provision for disciplining judges except for
  dismissal.
• Nothing about managing judge-government
  judge-court staff relations.
• Nothing about setting or administration of the
  budget setting of judicial salaries.

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Judicial Independence - Canadian Style The
1970s 1980s

• Restructuring of SCC
• More experienced judges.
• More likely to have had judicial experience.
• Less likely to have been directly involved in
  politics.
• New style of judicial decision-making ? formalism
  ? contextualism ?
• Major changes to court system
• Judicialization of magistrate courts ? recognize
  of judicial independence.
• Judicial councils created ? screened judicial
  appointments, investigated complaints against
  judges.
• Chief Judge of Provincial Court ? institutional
  buffer between government judges.
• Changes
• Changes statutory not constitutionally
  entrenched.
• Politically driven (provincial federal).

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Impact of the Charter (1982)

• The Charter (s.11(d)) specifically guaranteed a
  persons right to an open and public trial
  before an independent and impartial tribunal.
• Valente (1985) identified 3 key elements of
  judicial independence
• Security of tenure.
• Financial security.
• Institutional independence on matters bearing
  directly on the exercise of the judicial
  function.
• Valente read the politically-driven reforms of
  the 1970s back into the Constitution itself
  (s.11(d) of the Charter).

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The Supreme Courts Judicial Independence
Cases

• The consolidation decision Valente (1985).
• The details decisions Beauregard (1986),
  MacKeigan (1989), Lippé (1991), Généreux (1992),
  Ruffo (1995).
• The blockbuster Remuneration Reference (1997).
• The follow-up decisions Tobiass (1997), 974649
  Ontario (2001), Therrien (2001), Mackin (2002),
  Moreau-Berube (2002), Ell (2003).
• The next wave? Bodner (2004).

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The Details Decisions
Beauregard (1986) judicial pensions addressed
MackKeigan (1989) Donald Marshall inquiry judges do not have to give any account to government other than their written reasons for judgment judges are accountable only to judicial councils
Lippe (1991) part-time judges approved
Genereux (1992) military officer-judges accepted not all tribunals have to be independent to same extent
Ruffo (1995) existing interactions between chief judges and judicial councils validated
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Remuneration Reference 1997 Novel Elements

• First a new grounding an unwritten
  constitutional principle exterior to any
  specific section.
• Second a new location the preamble (similar in
  principle to that of the United Kingdom).
• Third a new judicial function protectors of
  the Constitution.
• Fourth a new dimension a constrained role for
  chief judges.
• Fifth a new basic principle no relationship
  between the government and the court, involving
  even the appearance of negotiation.
• Sixth new institutional structure Judicial
  Salary Commission.

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Judicial Independence New Style

• What are the new issues?
• First judicial salaries (settled in
  Remuneration)
• Second court facilities (the BC skirmish)
• Third court budgets and administration (Bodner)
• Fourth constraining chief judges (Tobiass)
• Fifth empowering judicial councils (Ell,
  Moreau-Berubé)
• Sixth the judicial career (appointments/promotion
  s)

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The Supreme Courts Cases Dealing with
Independence of Other Institutions

• Labour relations board Consolidated Bathurst
  (1990), Ellis-Don (2001)
• Social affairs commission Tremblay (1992)
• Administrative tribunal Domtar (1993)
• Liquor licensing board 2747-3174 Quebec
  Inc.(1996), Ocean Port (2001)
• Public utilities board Wells (1999)
• Ad hoc arbitrations board C.U.P.E. v. Ontario
  (2003)
• Human rights tribunal Canadian Telephone
  Employees (2003)
• Forest appeals commission Paul (2003)
• Workers compensation appeals tribunal Martin
  (2003)

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Judicial Independence Judicial Career

• Independence of the judiciary clearly depends on
  the way judges are selected, but..
• Party political connections often play a part in
  selection of judges.
• Elevations (to chief justiceship, or to a higher
  court) are more problematic ? worry that
  particular decision(s) could affect prospects.
• Black v. Chretien (2001) ? Ont CA - Laskin,
  Goudge, Feldman.

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Black v. Chretien (2001)

• Tony Blair advised the Queen to elevate Conrad
  Black to the British Peerage.
• Chretien intervened and advised the Queen not to
  confer the peerage on Black.
• Queen, therefore, declined to ennoble Black.
• Black sued PM AG of Canada for abuse of power.
• Ont CA rejected Blacks case on the grounds that
  the advice tendered to the Queen by Chretien was
  non-justiciable.

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L. Sossin A Comment on Black v. Chretien(2002)
47 McGill L.J. 435

• Author is critical of courts use of doctrine of
  justiciability to shield executive officials from
  judicial review.
• Author maintains that justiciability should
  solely depend on legitimacy capacity of courts
  to adjudicate a matter. In his opinion, Blacks
  claim against the PM was justiciable.
• To allow such abuses of power to remain immune
  from judicial scrutiny appears on its face to
  eviscerate the supremacy of the rule of law.
• Can Roncarelli and Black be reconciled?
• Did the potential impact on the judges chances
  of being named to SCC if they found against PM
  Chretien, affect their decision?

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Toyotas Success ? Lean Production

• In 1990 (when book first published), Toyota was ½
  size of GM.
• Now Toyota has surpassed GM as worlds largest
  automaker and is most successful global
  enterprise of past 50 years.
• Toyotas success attributed to its lean
  production system.

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Other Forms of Production Craft Production
Mass Production

• Craft production
• uses highly skilled workers
• needs flexible tools
• makes customized products (low volume)
• Mass production
• uses narrowly skilled professionals to design
  products made by unskilled/semiskilled workers
• needs expensive, single-purpose machines
• makes standardized products (high volume)

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Lean Production

• combines advantages of both
• craft production without the high cost
• mass production without the rigidity

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Lean Production Efficiencies(versus Mass
Production)

• uses less (½) of everything
• human effort
• manufacturing space
• investment in tools
• new product development time
• inventory on site
• results in fewer defects
• produces greater variety of products

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Lean Production Ultimate Objectives(versus Mass
Production)

• goal of mass production ? good enough
• acceptable defects, maximum level of
  inventories
• narrow range of standardized products
• avoid doing better ? would increase costs and
  exceed human capabilities
• goal of lean production ? perfection
• zero defects, zero inventories
• endless product variety
• seek improvement/perfection ? look to decrease
  costs and expand human capabilities

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Work under Lean Production

• key objective of lean production is to push
  responsibility far down the organizational ladder
• responsibility ? freedom to control ones work
• ? anxiety re making
  costly mistakes
• must learn more professional skills and apply
  them creatively in a team setting (not in a rigid
  hierarchy)

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Lean Production

• two organizational features
• transfers maximum number of tasks and
  responsibilities to those workers actually adding
  value to the care on the line
• has system for detecting defects that traces
  every problem to its ultimate cause
• consists of all members within the system sharing
  information and resources in a team-oriented
  multi-functional environment

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Lean Production (contd)

• worker must learn far more professional skills
  and apply these creatively in a team setting
  rather than in a rigid hierarchy
• paradox ? better employee is at teamwork, the
  less he may know about a specific, narrow
  specialty
• employees must be offered continuing variety of
  challenges or else may feel they reached a dead
  end and will hold back their know-how and
  commitment ? negates the main advantage of lean
  production

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Lean Production (contd)

• welds the activities of everyone from top
  management to line workers, to suppliers, into a
  tightly integrated whole that can respond almost
  instantly to marketing demands from customers
• it can double production and quality, while
  keeping costs down

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Contradictory Goals of Lean Production

• please the customers by offering wide variety of
  models while reducing costs
• must make smaller quantities of a product without
  increasing cost
• need relentless dedication on the part of all
  employees to reduce costs
• ? inventory holding costs ?JIT delivery system
• ? retooling time for new model ? start building
  equipment pieces before design of new car
  completed
• 1/3 fewer hours to produce Japanese versus US car

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Shortcomings of Lean Production

• overemphasizes aspects of savings mechanization
  
• neglects categories such as know-how innovation
• brings about short-term improvement in
  efficiency, but not long-term increase in
  productivity

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Lean Production ?Unsuited to Dismantling
Complexity

• if want to reduce complexity of serialized
  production steps through individualized
  manufacture ? must understand more expansive
  processes in their entirety
• in theory ? highly innovative and flexible
  business organization with no hierarchy
  company of the future
• in practice ? weaknesses of lean production
  present

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Lean Production ?Taken to Extreme

• would lead to a lot size of one, returning to the
  craft production system whereby each care was
  made to the buyers specifications

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Lean Production Adoption

• adoption of lean production has spread beyond the
  auto industry
• lean production can be used not only in
  manufacturing, but also in every value-creating
  activity from health care to retail to
  distribution
• . to integrated justice (technological)
  processes?