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Beverley Spencer

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After Nadon: Now what?

By Beverley Spencer June 3, 2014 3 June 2014

The Supreme Court of Canada’s surprising decision in the Nadon case didn’t simply decide the fate of one supernumerary judge from the Federal Court of Appeal: it also clarified the top court’s specific role in the Constitution. And according to academics who gathered last week in Ottawa to parse the decision, the Court’s answer will reverberate for years to come.

The federal government opened up a can of worms in the Nadon Reference when it asked the Court whether Parliament could enact legislation to change sections five and six of the Supreme Court Act which govern general eligibility requirements.

The problem, as Prof. Paul Daly of the University of Montreal points out, was that Part V of the Constitution Act, 1982 protects the Supreme Court of Canada from changes to its composition. And the federal government’s move arguably raised questions of whether changing the eligibility criteria fell within federal parliamentary authority or whether a constitutional amendment was required.

The Attorney-General had argued that Parliament has the power under the Constitution Act, 1867 to unilaterally amend the eligibility criteria under sections 5 and 6.  The Court begged to differ. The Constitution Act, 1982, it said, reflects the understanding that the Court’s essential features – its independence and its jurisdiction as the final general court of appeal, including in matters of constitutional interpretation – are protected under the Constitution. Parliament is responsible for maintaining  the essence of what enables the Court to perform its role and can enact amendments for the continued maintenance of the Court, but it cannot unilaterally modify its composition or other essential features.

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Bright ideas

By Beverley Spencer May 5, 2014 5 May 2014

Why the buzz about design thinking?

As senior editor Yves Faguy learned earlier this year at the ReInvent Law Conference in New York, there’s a lot of talk about how lawyers can use design tools to make law more accessible and user-friendly for consumers of legal services.

What does this mean? The concept of design thinking has been around for a long time: Herbert Simon, one of its pioneers, defined it as “a creative process based around the building-up of ideas” and set out a protocol that starts with targeting the right problem to solve, then framing it in a way that invites creative solutions. (Fast Company nicely sums it up this way: Question: “How many designers will it take to screw in a light bulb” Answer: “Why a light bulb?”)

As changing trends and consumer values disrupt business as usual, more companies are turning to design thinking for the tools to become innovators rather than passive victims of the marketplace. It’s only natural that legal innovators are getting onboard.

What’s striking is how far the legal profession is being pushed outside its notional comfort zone.  Design thinking challenges lawyers to rethink how legal services are delivered — it’s about what clients actually want and can use, not what has worked in the past. More importantly, it recognizes that lawyers do not have all the answers for what ails the legal industry; other professions have valuable lessons to impart about how to think through the challenges ahead. (For more, read “Law by design” in this issue.)

You might not be ready to use Google Glass to record depositions (yes, it’s already happening.) But there’s lots of other ways to get outside your comfort zone and hone your competitive edge — and lots of reasons to pay close attention to all the buzz  about design thinking and what it all means for the future of law.

Send your comments to comments@nationalmagazine.ca.

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Women & leadership

By Beverley Spencer March 6, 2014 6 March 2014

Women & leadership

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When giants fall

By Beverley Spencer March 6, 2014 6 March 2014

The commotion over the stunning break-up of Heenan Blaikie will have died down by the time you read this, but the reverberations will be felt for a long time. 

The firm’s demise in February was blamed on a number of factors, including dissension in the ranks, the fragile nature of professional partnerships and the leadership vacuum created with the departure of chairman Roy Heenan in 2012. But the reporters and commentators who parsed the situation after the collapse kept coming back to the same point: the legal business isn’t what it used to be.

When industry giants fall, it’s a wake-up call for the rest of the profession, as CBA president Fred Headon wrote in an opinion piece published in The Globe and Mail. The firm was profitable — it earned $75-million last year — but it was hard-pressed to compete with bigger firms operating in the global marketplace. And it was too big to match the ability of smaller players to find creative solutions for clients seeking lower costs.

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A Path Forward

By Beverley Spencer February 22, 2014 22 February 2014

CBA Council has endorsed the path forward to equal justice envisioned by the CBA Access to Justice Committee's report.

Now the next phase of work can begin on what committee chair John Sims describes as “the central issue in justice for our time.” The scope of the report’s recommendations is “ambitious but possible,” he told members of council, and targets all of the barriers to justice the committee have identified.

Council passed a resolution Saturday to endorse the vision of equal justice presented in the report, in which the justice system is equally accessible to all, regardless of means, capacity and social situation; and to allot sufficient financial and other resources to allow for the success of the Equal Justice Initiative.

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