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‘Abysmal’ was the word used to describe the accessibility of Canadian civil justice in a recent major report. Access to justice is simultaneously a social problem, a professional obligation for the legal profession, and a market opportunity for law firms. Are there any signs of significant progress on any of these fronts? This short Correspondent's report will review recent Canadian efforts to connect people of modest means with the expert legal services they urgently need.

In common law Northern Europe and in Australasia, a wave of reform has been transforming legal services regulation since roughly 1980. Old structures and approaches, based on the principles of professionalism and lawyer independence, are being replaced in these jurisdictions by new ones that prioritize competition and consumer interests. In the United States this has conspicuously not happened, leaving intact a regulatory approach whose broad outlines have changed little in the past 100 years.

High prices and lack of innovation have placed expert legal services beyond the reach of too many Americans and Canadians. Is legal services regulation exacerbating common law North America’s access to justice problem? Does regulatory maintenance of a unified legal profession, and insulation of that profession from non-lawyer influence, make it more difficult for people here to meet their legal needs? This article argues that, although regulatory liberalization is not a magic bullet for the accessibility of justice, there is strong evidence of a link between regulation and access. North American lawyer regulators need to understand, and work to reduce, the effects of their policies on the accessibility of justice.

This paper considers the different types of challenges that technological innovation poses to the Legal Services Act 2007’s regulatory framework, and whether the framework is capable of supporting technological innovation that benefits consumers while also addressing the risks it poses to them.The paper makes some recommendations about how the current regime could be adapted to better address these challenges, but its overall conclusion is that the LSA regime remains capable, for the time being, of responding to them.

When an intimate relationship breaks down and one of the people involved seeks money from the other, should it make any difference to the law whether or not they were formally married? This article argues that it should make a difference, at least when spousal support is being sought and the parties were never parents together. Winner of the 2008 Falconer Memorial Student Essay Competition in Family Law.

Research paper prepared for the Law Commission of Ontario.

When lawyers elect the leaders of their self-regulatory organizations, what sort of people do they vote for? How do the selection processes for elite lawyer sub-groups affect the diversity and efficacy of those groups? This article quantitatively assesses the demographic and professional diversity of leadership in the Law Society of Upper Canada.

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear "children's evidence," which comes either directly from the child, or from a neutral professional with child-related expertise. To determine the prevalence of children's evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children's evidence. Among the various varieties of children's evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

This article proposes a theoretical foundation for measuring legal service value. It aims to support efforts to compare the value of offerings from different law firms, as well as alternative legal service providers. The value of any legal service depends on (i) its effectiveness, (ii) its affordability, (iii) the experience it creates for its clients, and (iv) third party effects (the impact the service-provider has on people other than the client). These four elements of value can be quantified through various metrics applied to firms or entities that provide a given service. Output metrics evaluate either the actual real-world impact of a legal service service, or the written and oral work products of the firm. Internal metrics check for processes or structures within a firm that demonstrably support high value outputs. Input metrics focus on the attributes and credentials of the individuals who provide the service.This article concludes that measuring legal service value is challenging, and may be dangerous if done poorly. Nevertheless, the rewards justify the challenge. Higher quality legal professionalism, more effective and less burdensome regulation, and consumer empowerment are among the payoffs if we can find better ways to measure legal service value.

A life-evaluation question asks a person to quantify his or her overall satisfaction with life, at the time when the question is asked. If the goal of public policy is to make individuals’ lives better, does it follow that maximizing aggregate life-evaluations constitutes policy success? This paper argues that life-evaluation data provides a solid basis for welfare-consequentialist policy-making. This is illustrated by the successful argument for expanding state-funded mental health services in the United Kingdom.However, life-evaluations do not always provide a complete account of individual welfare. Policy-makers therefore must sometimes inquire into the extent to which individuals’ preferences would be fulfilled, if different policies were to be adopted. This article proposes synthesizing life-evaluationist and preferentist data about individual welfare, as a basis for rational policy-making.

"Personal plight" is the sector of the legal services industry in which the clients are individuals, and the legal needs arise from disputes. This article proposes that competition among personal plight law firms is suppressed by three demand-side phenomena. First, consumers confront high search costs. Identifying competing law firms willing and able to provide the needed services often requires significant expenditure of temporal and psychological resources. Second, comparable price and quality information about firms is scarce for consumers. Both of these factors impede comparison shopping and reduce competitive pressure on firms. A third competition-suppressing factor is observed in tort legal service markets, where offerings are typically priced on a contingency basis. Contingency fees have relatively low salience to consumers, and this reduces consumers' willingness to negotiate and comparison-shop on the basis of price. This analysis is supported by the author's empirical research with Ontario personal plight lawyers as well as the existing literature. The article concludes by suggesting possible consequences of this analysis for regulatory policy.

Innovation in family law firms can tangibly improve access to justice in Canada. This article develops that claim by drawing on empirical data and scholarship about Canadian family law. Part 1 explains how and why legal needs arising from the dissolution of intimate relationships are so difficult for the parties to meet. This Part draws on civil legal needs surveys, surveys with lawyers, and data from interviews with litigants. The focus shifts to family law firms (including sole practitioners) in Part 2, using new empirical data about the Canadian lawyers who do this work. Three promising opportunities to innovate for accessibility in family law practice are identified: (i) innovative fee structure; (ii) innovative service variety; and (iii) innovative division of labour. A "third revolution" in Canadian family law is proposed in Part 3. Our family law doctrine was revolutionized beginning in the 1960s, and family law alternative dispute resolution was similarly transfigured beginning in the 1980s. It is now time to foment a third revolution, in family law practice accessibility, to bring the benefits of family justice to all Canadians who need them.

When proposals are made to reform legal procedure, improving access to justice is often identified as the goal. What does access to justice mean in this context? This article proposes that “better access” and “better justice” should be understood as two distinct goals. Access improves when procedural costs confronting litigants (and potential litigants) are reduced. Justice has three qualities – substantive justice, procedural justice, and public justice – which legal procedure can produce to a greater or lesser degree. Although access and justice are sometimes in tension as goals for procedural reform, they are also harmonious. Better access to better justice is a worthy goal for procedural reformers. Welfare-consequentialism is introduced in the final part of the article, as a way to focus access to justice reforms and make the necessary tradeoffs. This article’s argument is illustrated throughout by three procedural reform trends – mandatory mediation, small-dollar procedure, and inquisitoriality.

Forthcoming, The Political Quarterly.This article is about two ideologies. Welfare-consequentialism holds that government should adopt the policies that can rationally be expected to maximize aggregate welfare. Populism states that society is divided into a pure people and a corrupt elite, and holds that public policy should express the general will of the people. The responses of world governments to the coronavirus pandemic have clearly illustrated the contrast between these ideologies, and the danger that populist government poses to human well-being.I argue that welfare-consequentialism offers a vaccine for populism. First, it rebuts populism’s claims about who government is for and what it should do. Second, the pessimism and distrust that make people crave populism can be satiated by successful welfare-consequentialist government. Finally, welfare-consequentialism’s sunny narrative of progress can be just as compelling to people as populism’s dark story has proven to be.

This article asks which individuals should count in welfare-consequentialist analysis of public policy. Possible answers to this question fall along a spectrum between parochial and inclusive. The most parochial impartial answer is that only welfare effects experienced by the living human subjects of a government should be considered in analysis of its policy options. At the other end of the spectrum, the most inclusive answer would be that welfare impacts on all individuals who are capable of having welfare should be weighed equally. A two-level response to the “who counts” question is proposed. A specification of welfare-consequentialism serving as an ethical ideal might give equal weight to non-human individuals, to foreigners, and to the unborn. However, a welfare-consequentialist decision procedure must take into account the error-proneness of human analysts’ welfare predictions. Predictions of a policy’s welfare impacts on individuals who are more dissimilar from the predicting government are more likely to be wrong, compared to predictions regarding living human subjects. The paper concludes by considering alternative answers to the “who counts” questions that might minimize the combined rate of exclusion and misprediction errors.

This paper is based on my LL.M thesis, which I successfully defended on June 10, 2009.

What does access to justice have to do with legal services regulation? Can we make it easier for people to defend their legal rights and pursue social justice by liberalizing rules about the provision of legal services? This brief paper will begin by reviewing the economic argument that legal services regulation impedes access to justice. Although this argument has strong appeal in theory, deregulatory reforms have not always delivered their accessibility benefits which the economic critique promises. Moreover, economic criticism of legal services regulation tends to assume that lawyers are simply market actors, as opposed to members of an independent profession whose maintenance has value to clients and to the public. The paper will therefore conclude by suggesting that empirical inquiry using a new legal realist (NLR) methodology can make a constructive contribution to this debate.

If I emit greenhouse gases, and as a result the climate changes and you consequently suffer damage to your property or person, the law should allow you to sue me in tort. This article explains why this is so, and how we could reform Ontario law to make it a reality. (Winner of the 2007 CBA NEERLS Student Essay Competition.)

Populist candidates and causes have scored a series of remarkable victories in Europe and the Americas since 2015. It is too soon to say whether we are living in a populist “moment,” or at the dawn of a new populist age. It is not, however, too soon to think carefully about the consequences of populism for public policy. Nor is it too soon to consider policy decisions by non-populist governments today that might affect the likelihood that this will be only a moment and not an age.This paper considers the relationship between two ideologies: welfare-consequentialism and populism. Welfare-consequentialism, reviewed in Part 1, holds that governments should always try to adopt the policies that are most likely to make individuals’ lives go best. Part 2 juxtaposes it with populism, defined as the view that (i) society is divided into a pure people and a corrupt elite, and (ii) public policy should give effect to the general will of the pure people (Mudde 2004). The paper then argues that welfare-consequentialism and populism are diametrically opposed ideologies. They are fundamentally incompatible in their representations of “the people,” and in the weight they give to public opinion. Populism’s anti-elitism may sometimes be reconciled with welfare-consequentialism, but not in the many cases where it takes the form of anti-intellectualism. Part 3 concludes by asking whether, in the long-term, welfare-consequentialism makes a polity more or less vulnerable to populism.

The servers and data streams which make up the internet in Canada are owned and controlled by corporations like Rogers and Bell. These businesses have potentially enormous power to control how the internet works, and how much it costs you to use it. Should the government regulate the ways they use this power? The answer, as I argue here, is both yes and no. (Winner of the IT.Can 2007 Student Essay Competition.)