This book began as an anthropological study of judicial behavior in an American trial court. It became more than that. It became an analysis of the way ideological diversity is organized in legal discourses, both spoken and written. Throughout, my approach is to look at how meaning is constituted through the organization of discourse structure. I describe here each of these aspects of the study as an introduction to this book.
In the 1960s and 1970s, studies of the judicial behavior of trial court judges focused on recorded outcomes of legal procedures, specifically on sentencing behavior. Social scientists were interested in how much judges varied in their sentencing practices and in factors that might explain the variation, particularly the possible factor of bias against ethnic minorities. This work was motivated by public policy debates over how much leeway judges should be allowed in sentencing criminal defendants, a debate that led to laws creating greater constraints on judges' sentencing practices around the country. As public policy has gone this route, the interest in judges' behavior has waned. This book aims to revive the interest in judicial behavior but with a very different concept of "behavior." I found the earlier concept of behavior odd, for it usually referred to written residues of actual behavior--to records of what judges had done in court. Sentencing, for example, could be examined without ever setting foot in a trial court or encountering a trial court judge face to face. As a linguistic anthropologist interested in how speakers create realities through language use, to me behavior means people actually talking to one another, not the residue of their actions on paper. And this study as a whole argues for the idea that when we examine judges' courtroom behavior, we see judges constituting richly complex legal and nonlegal realities.
As I see it, then, speech by judges in the courtroom is judicial behavior. Stimulated in part by students of judicial behavior, but also by sociolinguistic studies of language