Adversarialism vs Equality? How Legal Culture Impedes the Equality Project

Inaugural Lecture with Dr. Emma Cunliffe

This lecture explores how legal culture contributes to the failings of the equality project in law. It particularly seeks to understand the courts’ unfulfilled promise to reject reasoning based on myths and stereotypes and instantiate a more egalitarian approach to fact determination within legal processes. This discussion examines two fundamental aspects of truth-seeking within common law systems: the concept of adversarialism; and the emphasis on cross-examination as the greatest legal tool for uncovering truth (e.g. Wigmore, rev. ed 1974). Through four case studies, each examining narratives crafted by lawyers about marginalized girls or women and about the legal system itself, Dr. Cunliffe contends that adversarialism and cross-examination are often misconstrued within legal culture as ends rather than means. These misunderstandings can lead to inaccurate fact-finding, and they cause real harm to substantive equality and dignity. 

Similar misconceptions emerge in discussions about the ethical obligations of lawyers and judges, where claims to the principles of zealous advocacy and deference to professional judgment can operate to deflect scrutiny from the harms inflicted on marginalized individuals by legal processes. Although challenges to these misunderstandings exist, particularly in some parts of the Supreme Court of Canada’s jurisprudence, legal principles aimed at advancing substantive equality are frequently disregarded in legal practice or challenged as conflicting with legal values that are posited as more fundamental, such as the opportunity to test credibility through cross-examination. Ultimately this lecture asks: how does legal culture itself impede the quest for accurate and egalitarian factual determination?

The Inaugural Lecture tradition at the Peter A. Allard School of Law celebrates the promotion of faculty members to full Professor with a public lecture addressed to broad themes of their scholarly work.

Lecture 5-6 pm
Reception 6-7 pm

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Speaker

Dr Emma Cunliffe is a Professor in the Allard School of Law.  Dr Cunliffe studies how courts decide the facts of contested cases.  She is particularly interested in expert evidence, the operation of implicit bias, and legal processes regarding gendered and racialized violence, particularly those regarding Indigenous people. Dr Cunliffe is also a member of the evidence-based forensic initiative, which is based at the University of New South Wales.

From 2021 – 2023, Dr Cunliffe served as the director of research and policy for the joint Federal-Nova Scotia Mass Casualty Commission which was tasked with studying the “context, causes and circumstances” of a mass casualty incident that occurred in Nova Scotia in April 2020. The Commission’s Final Report was delivered in March 2023.

Dr Cunliffe’s 2011 book Murder, Medicine and Motherhood was the first to argue that Australian woman Kathleen Folbigg had been wrongly convicted of killing her four children. Her work played an important role in Ms Folbigg’s eventual exoneration. She is now preparing a 2^nd edition of the book, describing Ms Folbigg’s pathway to freedom.

With funding from SSHRC, Dr Cunliffe is presently analyzing how facts are “found” in Canadian trials, inquests and commissions of inquiry that engage with gendered and racialized violence.  She is particularly investigating whether expert knowledge (such as forensic medicine and psychiatric testing) operates as a Trojan horse by which discriminatory knowledge and beliefs reinforce implicit and structural biases within the legal system. She is also studying examples of legal processes in which discriminatory beliefs are successfully countered.  Her major work in progress is a monograph, Judging Experts.  This book explores examples of judicial engagement with expert evidence to assess how effectively Canadian legal processes ensure that expert witnesses provide independent and reliable expert testimony.