Making Waves or Keeping the Calm? Analyzing the Institutional Culture of Family Courts through the Lens of Social Psychology Groupthink Theory

By Breger, Melissa L. | Law and Psychology Review, Annual 2010 | Go to article overview

Making Waves or Keeping the Calm? Analyzing the Institutional Culture of Family Courts through the Lens of Social Psychology Groupthink Theory


Breger, Melissa L., Law and Psychology Review


I. INTRODUCTION

The study of the institutional culture of family courts offers a fascinating glance into the inner workings of courthouses. Yet, family court culture has been largely overlooked in legal and cultural literature. While there is no dearth of scholarly writing on the issue of culture, and a growing body of work on the culture of courthouses, (1) there is a paucity of literature pertaining to the specific organizational culture of family courts. (2) This article seeks to commence a meaningful dialogue concerning the organizational culture in family courts nationwide. It will utilize the social psychology theory of groupthink as a backdrop to hypothesize why family court culture is unique and worthy of further study and to suggest ideas for reform.

Why is the study of courthouse culture so critical? "It has long been recognized by court administrators and judges that culture plays an important role in how courts function." (3) Culture may have an impact upon access to fairness, justice, (4) due process, dignity, (5) and the perspectives of parties before the court. As such, analyzing courthouse culture, especially criminal and family court culture, is essential to ensuring that these ideals do not go unfulfilled. These are the courts which "are called upon to resolve some of society's most insoluble problems and to handle people with whom other social institutions have failed miserably," yet which "often operate under a cloud." (6) Hence, "[t]he invisibility of [trial court] activities contributes further to the public's skepticism of these courts" and "reinforce[s] perceptions ... to further undermine their credibility and legitimacy." (7)

My thesis is that the institutional culture of family courts across the nation too often stifles conversation and innovation, muffles the voices of the disenfranchised, and serves as a disincentive for zealous legal advocacy. The social psychology phenomenon known as "groupthink" can be shown to be a contributing factor to this culture. In particular, lawyers, court administrators, caseworkers, and judges involved in family court cases often operate in a groupthink-like modality, and that modality--while admittedly possessing some positive attributes--can be harmful to parties involved in family court proceedings and undermine perceptions of fairness and justice. Therefore, breaking groupthink bias would be a forward step towards rethinking the culture of family courts.

There are some remarkably prominent patterns of thinking and decision making that occur in the family court setting, parallel to groupthink, when crisis is injected into adversarial decision making involving the same courthouse actors interacting in the same setting day after day. Hopefully, awareness of these patterns will encourage courthouse actors to consciously avoid faulty group decision making that adversely impacts parties and families in the family court system.

Part II defines groupthink and discusses how its original proponent and others have expanded and refined its contours over the years. Part II.A. discusses the three principal antecedents of groupthink. Part II.B. outlines three overarching symptoms of groupthink. Part II.C. discusses the link between faulty decision making and bad decisions. Part III.A. defines culture as it is utilized in this article. It then discusses the original intentions of family court and certain aspects of its culture, and identifies the power imbalance in family court proceedings. Part III.B. analyzes family court institutional culture through the lens of the principal groupthink antecedents. Part III.C. examines how the overarching symptoms of groupthink intersect with family court institutional culture. Part IV outlines ideas for reforming family court institutional culture by drawing from groupthink reform ideas. Part IV.A. discusses maintaining institutional accountability and control and limiting the practice of judges appointing particular attorneys to their cases, the first reform idea. …

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