The Alarming Privatization of Our Judicial System

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.

Legal theorist Richard Susskind states in the Future of Our Courts: “An outdated, unaffordable, and unintelligible court system undermines the legitimacy of our judicial process.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.)

 

Comments

  1. While I cannot cite any data, I’ve long had a sense that this move from public to private adjudication has momentum, not only in Canada, but globally.

    Decades ago my first experience with a formal legal proceeding was as a member of a jury hearing a criminal case. It wasn’t a notable case and I didn’t feel that I learned much, but I was favourably impressed by the conduct of my fellow jurors.

    Years later I had my second experience, in a proceeding held in hotel rooms, with nothing recorded. That was a labour arbitration, with the arbitrator appointed by the two parties. That regime – labour arbitration – struck me as entirely lacking the safeguards we are told that adjudication in the courts offers us. But that regime remains in place and unreformed because it hasn’t been successfully challenged in any court.

    In fact the judiciary is supportive of that regime and the manner in which it has long operated.

    Evidence of that judicial support includes a keynote speech given at a conference of arbitrators and found here – https://naarb.org/proceedings/pdfs/2013-35.pdf .

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