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ABSTRACT: In several countries, governments have embarked on major building expansion programs for their judiciaries - exemplified in this discussion by the United States and France. The new buildings posit the courtroom as their center and the judge as that room’s pivot. These contemporary projects follow the path laid out in Medieval and Renaissance town halls, which repeatedly deployed didactic symbolism aiming to inscribe normative lessons. Dramatic depictions then reminded judges to be loyal subjects of the state.In contrast, modern buildings narrate not only the independence of judges but also the dominion of judges, insulated from and celebrated by the state. Significant allocations of public funds to courthouse construction reflect the prestige accorded to courts by governments dispatching world renowned architects to design buildings aiming to be monuments to the state. The investment in spectacular structures represents a tribute to the judiciary but should also serve as a reminder that the ideology of judicial independence needs to be tempered by recognizing how dependent judges are on other branches of government for budgets and jurisdictional authority.A double narrative comes as well from the design choices. The frequent choice of glass facades for new courthouses is valorized for denoting the accessibility and transparency of the law. Under democratic norms, “everyone” is entitled to public and fair hearings.But demands for adjudication are often met by way of ordinary tribunal and agency office buildings that have not received infusions of funds to mark their significance.Moreover, courthouse interiors tell yet another story, in which segregated passageways (“les trois flux”) have become the norm. Substantial space and resources are devoted to isolating participants from each other. Further, administrative offices consume the largest percentage of the square footage. These floor plans represent the expansion of the bureaucratic apparatus within courts as well as the trends away from public adjudication and towards alternative dispute resolution. These rules promoting non-adjudicated outcomes raise questions about the continuing vitality of courtrooms as central to the experiences of litigants and jurists. Thus, new courthouse construction can be read to represent the mélange of practices now extant. But, without a re-commitment to public adjudicatory practices, these buildings risk becoming monuments to past aspirations of obligations of justification for law’s force.
LSN: Judges (Courts) (Topic). 10/2011;
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ABSTRACT: This chapter, in the book Representations of Justice, examines the history of public displays of the power of rulers, who relied on the open rituals of judgment and punishment to make and to maintain law and order. We map how the ritualistic performance for the public became a right of the public to participate in and to observe adjudication. Using the United States as an example, we show why courts can serve as rich sources of information about legal, political, and social conflict. Yet, despite new technologies facilitating access, information about conflicts and their resolution is being limited through laws, doctrines, and practices that devolve court authority to low-visibility tribunals inside administrative agencies, outsource decision making to private providers, and reformulate court-based processes to promote private management and settlement in lieu of public adjudication. These new processes reveal the contingency of the public's role and require analyses of the premises for public rights of audience. The argument we make for public processes relies not only on courts' capacity to provide insights into the uses of both public and private power but also on how court-based public practices generate and reflect democratic norms. Open courts welcome popular input into the production of norms. Further, they provide an opportunity to observe the ordinary, bureaucratic imposition of authority. Whether expressing and creating commitments to human dignity, fair treatment of equals, and government accountability or demonstrating aggressive retribution that can foster sectarian strife, the display of conflicts (with its attendant cross-claims, fights over facts, decisions, and sanctions) enables contestation, change, or reaffirmation of the practices and rules shown. Open courts enact commitments to living in a social order in which disputes are neither the private and exclusive domain of those in disagreement nor owned by governmental authorities holding the power to impose law.
Negotiation & Dispute Resolution eJournal. 03/2009;
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ABSTRACT: All over the globe, nations rely on a statue of a large hulking woman (sometimes named Justice, sometimes Justicia, sometimes Themis, and usually holding scales and sword) to symbolize that their justice systems have aspirations of fairness and impartiality and also to lay a claim to power. The attributes associated with this Justice image - a woman with scale, sword, and sometimes a blindfold - have a remarkable longevity, as can be seen in cartoons and advertisements, as well as in courthouses.This Lecture provides a multi-century, cross-cultural visual narrative of both continuity and change in the use of adjudication by governments seeking to legitimate their authority to impose their law through judges. From the story of the Judgment of Solomon to the Town Halls of Siena and Amsterdam, one can find examples of adjudication, a task of governance that predates democracy. From those walls and the allegories that they represent, one can learn how adjudicatory practices contributed to democratic ideology by generating norms that decisionmakers not be corrupted by payments from one side, that their decisions be predicated on information rather than be arbitrary, and that they hear both sides (audi alterum partem).But democracy has radically increased the demand for adjudication as it provided rights of access to all persons, now seen as equal before the law. That demand in turn has transformed the function and some of the processes of adjudication. The pattern of an expansion of adjudicatory rights is echoed around the world, as can be seen by the many countries with major new buildings of courts and the growth of transnational courts. This Lecture thus also maps the challenges that democracy poses for adjudication. The responses to the growth in demand has resulted in a shift of many decisions to alternative forms of decisionmaking that limit public access to adjudication. In the United States federal system, for example, fewer than two of one hundred civil cases start a trial. Further, administrative adjudication is increasingly important, as tens of thousands of hearings are held annually in federal agencies dealing with federal benefits, employment discrimination, veterans and immigration. But these proceedings are not readily accessible to street traffic. By reviewing the pictorial history of adjudicatory processes, we raise the question of the future trajectory of adjudication. Even as new courthouses are built around the world, the opportunities for persons to use them may be narrowing. Moreover, the didactic messages conveyed are often more celebratory than reflective of the obligations, under democracy to make accessible justice and to respond to injustice. With rare exceptions (such as the Constitutional Court of South Africa), the iconography of justice has not yet come to reflect the infusion of norms that democracy brings to adjudication.
Yale Law School, Public Law & Legal Theory Research Paper Series. 12/2007;
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ABSTRACT: In this essay, our interest is the regulation of criminal defense lawyers. Our goal is also more general - to bring attention to the relationship between client markets and the regulation of attorneys. While many have addressed how the availability of lawyers varies with clients' capacity to pay, few have looked at how remedies for incompetent or inadequate legal services also vary directly with the financial wherewithal to pay lawyers. The many sources of regulation of lawyers at the top of the legal hierarchy stands in sharp contrast to those mechanisms that exist for lawyers who serve indigent criminal defendants. Given the bleak landscape of criminal defense, we are in no way starry-eyed. But it is the very bleak and grievously impoverished landscape that prompts us to look for alternatives, and thus to believe that state-based grievance processes are worth exploring. The disciplinary system offers not only another option in a world that seems to have too few but also something else: it provides concrete examples to the bar of specific instances of unsatisfactory practice by a diverse set of lawyers at the less profitable end of legal practices. From such sources could come new insights into the problems that would in turn prompt refinement of rules and norms. Poor provision of criminal defense services is a grievous injury not only for clients but for the legal profession and the public. Public grievance processes are one way to mark the fact of such injury and to begin to piece together responses.
Yale Law School, Public Law & Legal Theory Research Paper Series. 10/2004;
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ABSTRACT: In this essay, we explore some of the problems that billing poses for lawyers in practice and in the academy. As our title "teaching billing" suggests, we believe that although billing is a central practice of lawyers, it receives little sustained attention from either law firms or law schools. We map some of the problems embedded in a call for "truth in billing" and explore some of the conceptual and practical issues raised by the equation of time with value. While the literature on billing tends to focus on the institutional problems and the responses at law firms, we argue that the roles played by courts and law schools in shaping norms of acceptable billing also need to be considered. Judges are interesting participants in this debate. A good deal of law addresses the question of fees, as judges sit in judgment of lawyers' bills when asked to award fees either under statutory fee-shifting provisions or when a common fund is created. On one hand, as some judges campaign for higher salaries, they use law firm partner compensation as exemplary of how much money they are missing. Moreover, some judges resign - attracted by the fees available in the private practice of law or of judging. Yet judges are also public servants who in fact work at salaries less than many of their contemporaries and whose own life choices reflect valuation in terms other than dollars. When judges rule on lawyers' fees, they express concerns akin to those of regular clients, upset about the large numbers of hours spent and the many lawyers claiming compensation for time on a particular project. Sometimes, judges respond by scouring records to eliminate duplication and, in other instances, by developing means to escape the tedium of oversight by awarding fees independent of the hours spent. Yet hourly bills remain central in the law of fees, in part because of doctrine requiring judges to use that method of value (known as the lodestar) when statutes oblige losing parties to pay their victorious opponents. Therefore, lawyers who rely on statutory fee provisions garner more judicial attention than lawyers able to gain court-awarded fees in antitrust, consumer, or tort aggregates. Yet even in cases in which fees are awarded under the "percentage of the fund" approach, many courts describe themselves as using a "hybrid" method, which compares the dollars netted by the percentage method with how much money would have been paid through a lodestar calculation. Similarly, even those law firms that rely on lock-step compensation systems (rather than linking salaries and bonuses to hours) also obtain and evaluate hourly billing records. We appreciate efforts to invent alternative forms of billing, both in and out of court. But we conclude that, given how much fee law and law firm practices remain rooted in calculations of time, hourly billing will retain a significant place in lawyers' lives. Therefore, we consider pressures at the individual or institutional levels for change within the rubric of the hourly bill. Law schools have a good deal at stake in the present system, which creates a market for their students and which helps those students pay law school debt. Because law schools help to generate conditions that support unreflective efforts to bill aggressively, we argue that law schools ought to join in the conversation about the role of hourly billing in shaping concepts of professionalization. In some respects, the terms of such a conversation would be familiar, as law schools are much engaged in discursive reflection about commodification, property rights, and liability rules. But, as we explain, lurking behind the question of hourly billing is the question of hourly law school course credits - for law schools, like law firms, rely on hours as a measure of value. Teaching billing will therefore require legal institutions, be they educational, adjudicative, or service providing, to take on the challenges of exploring the normative implications and pragmatic effects of the practice of measuring the value of lawyers and their education by the number of minutes that they devote to their tasks.
Yale Law School, Public Law & Legal Theory Research Paper Series. 08/2003;
