Vol. 19 No. 5 (May, 2009) pp.326-330
TRIAL COURTS AS ORGANIZATIONS, by Brian J. Ostrom, Charles W. Ostrom, Jr., Roger A. Hanson and Matthew Kleiman. Philadelphia: Temple University Press, 2007. 204pp. Cloth. $56.50. ISBN: 9781592136308.
Reviewed by Paul Lermack, Department of Political Science, Bradley University. Email: pnl [at] bumail.bradley.edu.
This small book reports on a large study. Court administrators and others who are trying to make court communities more modern and efficient will find it useful. Scholars will find it timely, and perhaps suggestive, in light of the present interest in empirical studies of law and courts.
Brian J. Ostrom, Charles W. Ostrom, Jr., Roger A. Hanson and Matthew Kleiman are empirical researchers who have previously separately studied various aspects of judicial process. Here they attempt something more general, and more ambitious. They want to create a model that can be used to describe the trial court communities of various cities, and within which these communities can be compared. They focus on organizational culture, those bundles of shared norms, values and expectations that grow up in any community. They assume that differences between communities can be accounted for by differences in cultures, and that differences in how well various communities accomplish their goals, operate justly, and satisfy the demands of their constituents are similarly affected by cultural differences. In looking to culture as a critical variable both for study and for policy changes, the authors follow the pioneering work of Robert Quinn, who has studied organizational culture in the business world.
They also draw on a thought-provoking, if not very large, heritage in the field of judicial process. As early as 1978, Church, et al. determined that differences between court systems in the speed of disposition of cases were largely the product of cultural differences between them. Various cultural differences also explained differences in the ability to reform procedures, clear up case backlogs, and modernize in general.
At about the same time, James Eisenstein and Herbert Jacob (1977), who were studying court systems as organizations, discovered that plea bargaining was conducted quite differently in the three large cities that they observed. The differences were partly attributable to differences in organization, including such things as how closely together the offices of the various negotiators were located. But in large part, the differences reflected differing expectations about how negotiations should be conducted and what outcomes were appropriate. Differences in court organization and procedure – for example, in where leadership originated and degree of centralized decision making – also seemed to have as much to do with cultural differences as they did with formal legal requirements. [*327]
Individuals who work together constantly can be expected to develop shared values and norms. It is perhaps surprising that observed court communities vary so much from one another considering that all, at their cores, are applying the same laws, respect the same standards of professional ethics, and must obey the same formal rules that govern procedural fairness. But court communities work in relative isolation from each other. (Before the days of extensive professional organization activity and required continuing education, when travel was harder, court communities were even more isolated.) And, as Abraham Blumberg (1966) argued, their members come to depend on each other. Inevitably, they will share their own values, habits and even crotchets, and pay little attention to those of outsiders.
Eisenstein and his collaborators moved cultural considerations to the center of their work, eventually arguing that shared norms and values contribute greatly to differences between criminal courts (e.g. Nardulli, et al. 1988; Eisenstein, et al. 1987). There the state of theory remained for perhaps twenty years: culture is generally considered an important variable, and distinctive local values have been described for some communities, but little has been done to permit systematic comparisons, and little is known about how values encourage or work against change and modernization.
The present authors, reviewing Church’s work, conclude that “local legal culture is a needed and a welcome starting point to examine how things are done in trial courts, but a fuller understanding of its nature and significance calls for more extensive conceptualization and measurement making it possible to connect different norms to differences in performance in a coherent analytical framework” (p.9). This book is their attempt to provide, and to begin to test, that framework.
The authors construct their model along lines commonly used in the business world, and reflecting the work of Quinn (1988), Goffee and Jones (1998), and others. They define one bundle of variables as constituting a dimension of variability they label “solidarity.” Communities high in solidarity pursue shared goals and tasks through agreed-on procedures; those low in this attribute stress “independence, autonomy and individuality among the judges and court staff in how they carry out their work” (p.37). A second dimension is labeled “sociability.” High-sociability communities are “closely connected in a communal or clan-like way” (p.37), while low-sociability communities manifest little social interaction.
When these two dimensions are set at right angles on a sheet of paper, they divide it into a graph with four quadrants. Real court communities can be located in this graphic space according to how closely their observed attributes approach one or another of four ideal-types, constructs that represent the extremes. High-sociability/high-solidarity courts, for example, the type that the authors label “networked,” are agreed on their tasks and goals, and work out among themselves how they will achieve these objectives. Low-low communities (“autonomous” types) allow the various members to conduct business as they see fit, with limited discussion of their differences. [*328]
The authors then must determine whether observable communities can be reliably plotted within the model. For this purpose, they study twelve described communities in three states. They develop and administer a questionnaire, the “Court Culture Assessment Instrument,” to judges and administrators. The CCAI asks about case management style, interpersonal relations, leadership, internal organization and change management. Based on their analysis of the responses, they assign each community an overall culture location within the model’s four quadrants. None of the observed court communities is located anywhere near the extremes of the model. But other findings surprise them nevertheless; they caution that courts vary within themselves more than expected, and that community culture may very well be different when different tasks are being discussed. “[P]ublic organizations may not have the luxury of a single culture and instead face multiple or competing cultures” (p.67). On one level, this seems intuitively plausible. Professionals who may work together amiably on routine tasks, and mouth unexamined platitudes about goals, may then develop independent streaks – and become distinctly less sociable – when they are forced to confront unpleasant change.
But on a different level, this observation also reveals a limit of the model itself. The authors locate the twelve observed courts precisely within the model’s physical space. No court community approaches the extremes that are defined in the ideal types. But the authors have no other tool to interpret what the locational placement means except the ideal types. They devote a full chapter to elaborating these four ideal cultures, based on “extensive and structured conversations” (p.68), beyond the CCAI, with court personnel. The conversations ask respondents about their perceptions of actual court culture, and their ideas about what court culture ought to be. Based on this, the authors provide detailed portraits of what the idealized “communal,” “networked,” “autonomous” and “hierarchical” courts would be like if they existed.
But there are no portraits of, say, half-hierarchical, half-communal courts. Nor are there portraits of courts that are 0.734 hierarchical, or 0.132 communal. It is as though mathematicians had worked out the value of pi to many decimal places, but then, when they plug pi into equations, must treat it as though it were sometimes exactly three and sometimes exactly four. As a result, any observed court will inevitably show characteristics of more than one ideal type. Analysis will have to be more or less – or when and where – rather than either/or. In this context, it is a valuable finding that the various respondents are aware of the “distinctive patterns to ‘the ways things are done’ in their courts” (p.69), that they perceive cultural differences, and that this awareness shows in the stories that they tell. It should be possible to compare observed courts directly, without reference to the ideal types, and to induce verifiable conclusions about the effects of, say, greater or lesser solidarity.
The authors then test a number of hypotheses, all subdivisions of the general claim that court culture is an independent variable that affects court performance. Culture seems to affect the timeliness of case processing, as [*329] expected. When they ask prosecutors and defense attorneys about their perceptions of access to procedural fairness and managerial effectiveness, the authors find that their respondents tend to rate courts with similar cultural types similarly. The data provide some support for the conclusions that community culture exists, can be measured reliably, and can be a useful research variable.
The model seems most useful when discussing those aspects of organizational life that most resemble those in the business world. There is a sense in which case management, like the flow of parking ticket paperwork through a court clerk’s office, resembles, say, the flow of claims through an insurance company. Court administrators, especially, will be interested in the unexamined norms and customs that govern this flow; the model’s insights will serve them well when they have to decide how much time to allow, for example, for community members to become comfortable with a new computer system. The model can potentially show them, if nothing else, which neighboring court communities are similar enough, in appropriate ways, to serve as guides and good examples. As courts adapt to change, they will find many uses for this approach.
The need to adapt quickly to change is a running theme in this book, and perhaps reflects the business-world origin of so much that the authors have borrowed. Quinn (1988) and others argue that quick adaptation is critical to survival, since less-successful business communities have to mimic, or at least adapt to, innovations and changes that have given their successful rivals their advantages. In the business world, there is no concept of due process, which may require slowness (for research, for deliberation, for repeated appeals) as often as it requires speed.
In this sense, court communities are emphatically not like businesses. Economists do not make moral distinctions. They make no distinction between, say, the vending of tobacco and the running of a charity hospital. But in courts, questions of justice, fairness and equity are never far from the surface. Moral values are as much a part of community culture as attitudes toward leadership, efficiency and sociability. There is little attention to this distinctive feature of court communities here. (Even when the authors ask about procedural fairness in the “extended conversations” summarized in Chapter 4, they record only the respondents’ perceptions about how well courts provide this critical value, and they do not provide an objective definition of fairness itself.)
The centrality of justice as a value is most visible when courts hold jury trials, which are never efficient. But it is also central in plea bargaining. Many scholars, prominently including the Eisenstein group, have found that plea bargaining works most efficiently, and is most equitable, when it is done in a community that shares values not only about how to do it but about what outcomes are fair. The “going rate,” the generally accepted punishment for a given crime, is a moral, as well as an economic, concept. It is the achievable, and perhaps optimal, goal of the bargaining process. But it also reflects accepted notions of what is fair and [*330] appropriate. Even parking ticket processing is not entirely arbitrary.
For this reason, the Ostrom approach will be less useful for scholars of plea bargaining. It may not be as useful for studying the ways in which court communities change in response to, say Apprendi as it is for calculating which cultures will be quickest to embrace a new computer system.
Blumberg, Abraham. 1966. “The Practice of Law as a Confidence Game,” 1 LAW AND SOCIETY REVIEW 15-39.
Church, Thomas W. Jr., Alan Carlson, Jo-Lynne Q. Lee, and Teresa Tan. 1978. JUSTICE DELAYED: THE PACE OF LITIGATION IN URBAN TRIAL COURTS. Williamsburg, Virginia: National Center for State Courts.
Eisenstein, James, and Herbert Jacob. 1977. FELONY JUSTICE: AN ORGANIZATIONAL ANALYSIS OF CRIMINAL COURTS. Boston: Little, Brown.
Eisenstein, James, Roy Fleming and Peter Nardulli. 1987. THE CONTOURS OF JUSTICE: COMMUNITIES AND THEIR COURTS. Boston: Little, Brown.
Goffee, Rob, and Gareth Jones. 1998. THE CHARACTER OF A CORPORATION. New York: Harper.
Nardulli, Peter F., James Eisenstein and Roy B. Fleming. 1988. THE TENOR OF JUSTICE: CRIMINAL COURTS AND THE GUILTY PLEA PROCESS. Urbana, Illinois: University of Illinois Press.
Quinn, Robert E. 1988. BEYOND RATIONAL MANAGEMENT. San Francisco: Jossey-Bass.
© Copyright 2009 by the author, Paul Lermack