Canada’s Supreme Court decides cases with far-reaching effects on Canadian politics and public policies. When the Supreme Court sets cases on its agenda, it exercises nearly unrestrained discretion and considerable public authority. But how does the Court choose these cases in the first place?
Tournament of Appeals investigates the leave to appeal process in Canada and explores how and why certain cases “win” a place on the Court’s agenda and others do not. Drawing from systematically collected information on the process, applications, and lawyers that has never before been used in studies of Canada’s Supreme Court, Flemming offers both a qualitatively and quantitatively-based explanation of how Canada’s justices grant judicial review.
The first of its kind, this innovative study will draw the attention of lawyers, academics, and students in Canada as well as in the Commonwealth or Europe, where the appeals process in the high courts is similar to that of Canada.
From the safe refuge as a professor at Texas A & M University, the author defines the Supreme Court of Canada as a political institution subject to the usual incentives and constraints as those experienced by members of more recognizable political institutions. In assessing how the Supreme Court decides what cases to hear the author postulates how it is done and while so doing is helpful to lawyers seeking leave to appeal. The author has prepared tables of variables that lawyers may look at to find a fit. This book is a must for trial lawyers.
The study described in Tournament of Appeals is interesting and timely. Which appeals the Supreme Court chooses to hear will affect the development of law and policy in Canada. How they choose these appeals should therefore be of great interest to the public at large, and the legal profession in particular. If the Court itself will not tell us how it is done, this study narrows the possibilities, and expands our understanding, not only of the Supreme Court of Canada, but also of the United States Supreme Court and the highest courts of other countries.
I cannot count the times I have heard lawyers put forward their various theories on their own successes and failures, so they may well find this little text very illuminating.
Figures and Tables
Preface and Acknowledgments
1 Judicial Review and Agenda Setting: American Accounts and the Canadian Setting
2 Tournaments and Stratification of Canada’s Supreme Court Bar
3 Litigants, Lawyers, and the Tournament of Appeals
4 Tournament Rules and the Consequences of Institutional Choices
5 The Court Game: Strategy and Consensus among the Tournament’s Judges
6 Conclusion: Canadian Variations of American Themes
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