A Vision for Enhancing Public Confidence in the Judiciary

By Burke, Kevin S. | Judicature, May/June 2012 | Go to article overview
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A Vision for Enhancing Public Confidence in the Judiciary


Burke, Kevin S., Judicature


Commit to Fairness in Court

"There is a Chinese curse which says, 'may he live in interesting time.' Like it or not, we live in interesting times. They are times of danger and uncertainty; but they are also the most creative of any time in the history of mankind. And everyone here will ultimately be judged - will ultimately judge himself - on the effort he has contributed to building a new world society and the extent to which his ideals and goals have shaped that effort." - Robert F. Kennedy

A century ago, Roscoe Pound gave a speech entitled "The Causes of Popular Dissatisfaction with the Administration of Justice," in which he spoke of the many factors that contributed to dissatisfaction with the American system of justice. A century later there have been enormous improvements in the structure of the administration of justice, yet we have still not met the fundamental challenge of reducing popular dissatisfaction.

Today the dissatisfaction with the administration of justice is at a level that none of us should tolerate or accept. The nation's dissatisfaction with the administration of justice is our issue of homeland security.

In Pound's speech (See also the article The Chief Justice as Advocatein-Chief in this issue of Judicature for more on this speech), he spoke first of the popular belief that the administration of justice is an easy task, which he in turn believed fostered public dissatisfaction. Pound incorrectly thought it was wrong to suggest the administration of justice was easy. Pound was right about many things, but this central premise of his now famous speech was wrong. The administration of justice is simple: courts must be fair, effective, and efficient. The judiciary must be committed to building a strong organization, which then and only then can create the environment for courts to be an effective branch of government. The judiciary cannot be an effective branch of government if judges' vision of sharing power with each other is no better than an office-sharing arrangement of solo practitioner lawyers whose practice specialty is being a judge. Professor Doris Marie Provine put it this way: "The basic problem, crudely put, is that judges don't want to govern themselves, but they don't want anyone else to do it either."1

A second factor Pound said contributed to public dissatisfaction was the political jealousy, stoked by the other branches of government, who resent the judiciary due to the doctrine that courts have the final say in interpreting the Constitution. Not much has changed in the last century: today, it is fair to say that too many in the executive and legislative branches have many of the jealousies of their predecessors. Some political leaders are still too easily prone to speak of judicial tyranny when there is mere disagreement with the outcome of a case.

The third cause of dissatisfaction Pound described as the sporting theory of justice. This is the view that the legal process is nothing but two modern gladiators in a pitted war, with the role of the judge simply a referee of the combat. A century later the sporting theory of justice is so rooted in the legal profession in America that many (but certainly not all) accept it as a fundamental tenet. The sporting theory explains why so many lawyers and judges feel that litigant satisfaction - or fairness - is predominantly driven by outcomes, whereas litigants overwhelmingly view satisfaction as deeply rooted in notions of procedural fairness.

Pound argued that the sporting theory of justice disfigures judicial administration. It leads the most conscientious judge to feel that he or she is merely to decide the contest as attorneys present it according to the rules of the game, and not to search independently for truth and justice. The sporting theory also leads attorneys to forget that they are officers of the court and to view the rules of law and procedure like the professional football player deals with rules of football.

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