`Getting Through the List': Judgecraft and Legitimacy in the Lower Courts

Abstract

This article examines the judgecraft required when judicial officers actively manage the time pressures created by long and unpredictable case lists. It considers the implications of this time management for the legitimate exercise of judicial authority. In particular, we focus on the strategy of altering the temporal sequence of the list by standing matters down and recalling them later in the list. This strategy, especially when initiated by the judicial officer, is analysed in light of the temporal goals of getting through the list on the day and moving cases along towards final resolution, and the ideological and practical requirements of legitimate judicial authority within the adversary system. The article is based on a court observation study of the general criminal list, concentrating on the role of the presiding judicial officer — the magistrate — in the lower courts of Australia. The research demonstrates that magistrates exercise considerable judgecraft which achieves temporal goals and can create space for a more engaged and therefore more legitimate decision-making process; however, their capacity to do so is limited by the judicial role and the roles allocated to others by conventional adversarial norms and practices.

The Limits of Procedural Discretion

“…In terms of scheduling, our findings concur with Mack and Anleu's (2007) conclusion that scheduling and judicial discretionary actions are closely related and represent an embellishment of work that has highlighted that certain decisions are more likely after a break (Danziger et al, 2011) by emphasizing patterns of judicial behaviours across weekdays (as distinct to within them). The fact that the analysis suggested that helpfulness declined through the week may point to the effect that repetition, and even boredom, can have over procedural discretion (see Cowan and Hitchings, 2007).…”

“…Most published studies of judicial behaviour rely upon (i) information from judges themselves in response to interviews, questionnaires or in formal written opinions; (ii) the judgements reached in actual cases; or (iii) experimental results (Conley and O'Barr, 1988). Observational methods, for their part, have often been seen as separate to quantitative analysis rather than as complementary to it (Mack and Anleu, 2007). Our approach fuses observational work with quantitative methodologies, offering innovative new insights.…”

In-Court Judicial Behaviours, Gender and Legitimacy

“…Gender diversity is thought to increase public confidence, to better reflect society as a whole in the judiciary, to widen access to positions Nussbaum (1996); Popovic (2002), p 129;Shaman (1996). 20 Mack and Roach Anleu (2007, 2010a, 2013. Tyler (1984Tyler ( , 2003; see also Lind and Tyler (1988).…”

Gender, Judging and Job Satisfaction

“…1 All magistrates are paid; the minimum statutory qualification for appointment includes admission as a barrister/solicitor/legal practitioner. Magistrates preside over highvolume, first instance courts with a wide general jurisdiction in less serious criminal cases and lower value civil matters (Lowndes 2000;Mack and Roach Anleu 2007). Magistrates sit alone (without juries) and make many decisions, typically extemporaneously, on law and facts.…”