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The Cost of Justice (Research)

At the end of Rules for a Flat World[1], Gillian Hadfield offers five steps to improve how legal systems operate. In this post, I want to elaborate a little on the fourth of her recommendations: catalyze and fund research.

Hadfield describes the state of knowledge about legal infrastructure as “abysmal”. She notes the lack of data about how legal systems work and about who has access to them. She exhorts governments to collect more data about legal institutions and make this data available to researchers, making the case that more and better research is necessary to improve our legal systems. In her words:

The dearth of public research dollars devoted to law is just the starting point. More troubling is the fact that legal infrastructure is simply not on the research agenda in our universities. Most fields of research, even those that reach out into the private and government sectors, depend on the presence of a vibrant body of university-based research – to generate a scholarly agenda, develop methodologies, conduct peer review, and supply young researchers to universities, industry, government, and non-profit research institutes alike. Within universities, however, law schools have been almost exclusively oriented to professional education, and the research done within law faculties is largely organized around the internal issues generated by our existing bodies of law: how to interpret the decisions coming out of our courts, what rules we should have to achieve justice or policy goals, how effective those rules are in practice, and so on.[2]

In Canada, this call for more research on aspects of the legal system should be particularly familiar to those interested in access to justice. Over the past several years, a number of access to justice reports have noted this lack of research, and have called for more. For example, the CBA’s Reaching Equal Justice report stated that “Canada is plagued by a paucity of access to justice research”[3], and noted that “we still know relatively little about what works to increase access to justice and how and why it does.”[4] That same report noted that “[r]esearch on access to justice is not a priority in all Canadian law faculties.”[5] In A Roadmap for Change, then-Justice Cromwell’s Action Committee on Access to Justice in Civil and Family Matters devoted two of its nine goals to issues of research and funding.[6]

How much access to justice research is funded in Canada?

The Social Sciences and Humanities Research Council of Canada (SSHRC) is one of the federal government’s major research granting bodies, and the one most directly responsible for funding research in law-related fields. While there are other legal research funders in Canada (e.g. law foundations in various provinces and territories, the Legal Research Fund, etc.), nothing comes close to SSHRC in terms of total funding. In 2015, according to data from SSHRC’s Open Government Expenditures File, the Council gave over $700 million in research grants and other indirect support (adjusted to 2017 dollars; see Figure 1; all data in this post contains information licenced under the Open Government Licence – Canada). Of this, over $12 million went to fund research in which law was identified as the primary research discipline (see Figure 2).

Across all SSHRC-funded research and projects, approximately $800,000 (adjusted to 2017 dollars) went to access to justice-related research in 2015 (see Figure 3). (These projects were identified by searching the dataset for any research including the words “access to” in the title or keywords. These projects were examined to determine if they included topics that might be considered related to access to justice. For example, “access to civil justice” and “access to rights” were included in the count; “access to the internet” was not.) This was close to a high-water mark over the past 15 years. It was also a high-water mark in terms of number of projects funded (see Table 1).

While this increase in recent years is to be applauded, it remains the case that a problem regularly described as one of the greatest problems facing the legal sector in Canada receives – on a good day – about one thirteenth of all law-related research funding. In even more stark terms, that’s about one tenth of one percent of SSHRC’s total research and project budget.

Obviously, looking at funding levels is a crude way of assessing research. But still, for such an apparently significant problem, this seems like a very low level of research support. What do you think?

Andrew Pilliar
PhD Candidate, Peter A Allard School of Law

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[1] See also http://www.slaw.ca/2016/11/07/everybody-wants-to-rule-the-world/.

[2] At 351.

[3] At 145.

[4] At 32.

[5] At 120.

[6] At 23.

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