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Public Administration, Judicial Administration and Management Theory

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... case on the grounds that the advice tendered to the Queen by Chretien was non-justiciable. ... adoption of lean production has spread beyond the auto industry ... – PowerPoint PPT presentation

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Title: Public Administration, Judicial Administration and Management Theory


1
Public Administration, Judicial Administration
and Management Theory 
  • Selected Issues in Judicial Administration
  • GS/Law 6720 3.0
  • December 8, 2008

2
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

3
Peter McCormick,New Questions about an Old
ConceptThe Supreme Court of CanadasJudicial
Independence Decisions
  • 37(4) Canadian Journal of Political Science
    839-862

4
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.

5
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.

6
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.

7
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.

8
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).

9
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).

10
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).

11
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
12
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.

13
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)

14
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)

15
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.

16
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.

17
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?

18
(No Transcript)
19
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.

20
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)

21
Lean Production
  • combines advantages of both
  • craft production without the high cost
  • mass production without the rigidity

22
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

23
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

24
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)

25
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

26
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

27
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

28
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

29
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

30
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

31
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

32
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?
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