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May 22, 2013

"[W]hen viewed through the lens of organizational science, courts boggle the mind."

The title of this post is a sentence from this interesting new commentary by Babak Armajani and Judge Kevin Burke, which is headlined "Creating the Courts Americans Want: The public is dissatisfied with our courts; What the judicial system needs is a culture of performance-based innovation." (Hat tip: How Appealing.)  Here is what follows the insight in the title of this post:

External sources (the voters or elected officials) select the "partners of the firm" (the judges) with little or no input from the court or even any understanding of what needs a court may have.  Judges' vision of sharing power with each other is often no more than an office-sharing arrangement, as if they were solo-practitioner lawyers whose practice specialty is being a judge.  The result is that it is a challenge for courts to establish and maintain a sense of unity, let alone an organizational culture of innovation.

There are some bright spots on the court landscape.  Arizona, Colorado, Maryland and Nebraska are among states giving a lot of attention to how to create stronger court organizations and, more important, conditions that foster change and innovation.  The courts in Maryland, for example, have partnered for several years with Johns Hopkins University's Institute for Policy Studies to enhance the courts' leadership capabilities.

Leadership is especially important when it comes to creating a culture of performance in the courts.  As in other organizational settings, meaningful change is initiated not by using technology to pave the cow paths of past practice but by first defining the outcomes the courts seek and then getting all involved to focus on improving those outcomes.

One outcome that most courts have the capacity to measure is the speed or timeliness of their decisions.  Many courts, among them those in Maryland and Minnesota, are working to improve this crucial measure.

Another important measure is the "customer" experience.  Was the litigant heard?  Did the litigant understand the reasoning and terms of a ruling?  The response to questions such as these on simple surveys can provide valuable information about the customer experience.  A decade ago, no court focused on these types of performance measures. Today, the court systems in Alaska, Colorado and Washington State have initiatives focused on measuring and improving the litigant experience, and many local courts have moved in a similar direction.

Where there is measurement, change usually follows. In places where such measures are used as tools for learning how to improve rather than to assign credit or blame, we are seeing the beginnings of dramatic changes in the culture and operations of our courts.

This article is not focused only on sentencing decision-making or criminal case adjudication.  But concerns about the timeliness of decisions are especially acute in death penalty litigation, and I surmise many sentencing "customers" (prosecutors and defendants and their lawyers) are rarely fully satisfied with their court experiences. Thus, I think the themes and ideas of this article should be of special interest to sentencing fans.

May 22, 2013 at 11:34 AM | Permalink


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The adversarial system has no external validation. It originates in the Scholasticist practice of disputation to try to answer a difficult question.


"...they demanded dependence on traditional written authorities and the thorough understanding of each argument on each side."

That was an advance in the 13th Century. It is no longer acceptable today. First we have more investigational tools. These should be allowed for use by an inquisitorial judge. Argument by written authority is all they had in the 13th Century. Reliance on precedent causes a sclerosis into a backward, anti-change culture. We now have to wait for the deaths of judges before change can take place.

Because Scholasticism originates in the Church and had no basis in reality, nor any external validation, it violates the Establishment Clause. I have read the Sharia hornbook. Most of it is pretty good. Only a small fraction is the wacky stuff the public knows about. However, it would be totally unacceptable as a model for the jurisprudence of this secular state. The Church based method is no more acceptable.

So, no validation + church based = unacceptable.

Posted by: Supremacy Claus | May 23, 2013 7:48:38 AM

There appears to be NOTHING to motivate a Federal judge to make decisions in a timely manner.

Posted by: folly | May 23, 2013 8:48:11 AM

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