Tag: organizational theory

What is fueling the federal courts’ response to the judicial recusal crisis?

Everyone wants the same thing and Congress seems ready to act. So why is the court system trying to keep legislation at bay?

Recently, I have been diving back into organizational theory — a set of theoretical frameworks about how organizations operate which inspired the creation of this blog in 2017. I have been particularly curious about the extent to which the behavior of courts and court systems — as opposed to individual judges — can be explained by external pressures from the courts’ environment. Although much of organizational theory began as a way of explaining the behavior of private firms, it has been extended to the public sector, and I am now convinced that it can profitably explain a wide range of court system behaviors.

Take a very recent example: the Wall Street Journal investigation this month, which revealed that more than 130 federal judges had presided over cases involving companies in which they owned stock. Such financial conflicts clearly require recusal, and while many (perhaps most) of the judges who did notJudge_Jennifer_Walker_Elrod recuse gave plausible explanations that they had simply failed to keep tabs on their trades, the situation has been highly embarrassing for the federal judiciary. The Administrative Office of the U.S. Courts said that the report was “troubling” and that it was “carefully reviewing the matter.” And this week, Fifth Circuit Judge Jennifer Walker Elrod appeared before a subcommittee of the House Judiciary Committee to reaffirm that the federal courts “have taken and will continue to take action to ensure ethical obligations, including recusal and reporting requirements, are met.”

Such assurances may not be be enough for Congress. Bipartisan bills have been introduced in both houses to tighten recusal and reporting requirements. The Senate bill would also require the AO to develop a publicly accessible, searchable online database of judges’ financial disclosures. The federal court system therefore finds itself scrambling to avoid a legislative mandate by showing that it is able to police its financial conflicts internally. Even then, it may not be able to stave off new legislation.

This may seem like ordinary damage control. But the court system’s specific behaviors to date, and range of possible responses going forward, can also be understood through the lens of an organizational theory known as neo-institutionalism. And that theory suggests that the court system’s response is very deliberate and very calculated. Continue reading “What is fueling the federal courts’ response to the judicial recusal crisis?”

JOTWELL review of Reichman et al. on technology and the regulation of judges

I am delighted to have a new essay up on JOTWELL, reviewing Amnon Reichman, Yair Sagy, and Shlomi Balaban’s recent article, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges. It’s a terrific look at the Israeli’s courts’ development of case management technology, and the impact of that technology on its judges, all told through a subtle organizational lens. A snippet from the start of the review:

Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon Reichman, Yair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.

Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them.

Please read the whole thing!

 

Kavanaugh’s “open mind” on courtroom cameras

My latest post for the New England Faculty Blog explores why Brett Kavanaugh’s professed “open mind” about broadcasting Supreme Court arguments may be more than the ordinary confirmation hearing blather.

New research on the organizational role of court rulemaking

Flickr_-_USCapitol_-_Thurgood_Marshall_Federal_Judiciary_Building

I am delighted to announce that my new article, The Federal Courts’ Rulemaking Buffer, is now available on SSRN. Please download it early and often!

The article arose in response to two perplexing questions about the federal court system’s civil rulemaking process. First, why do the courts engage in rulemaking at all? The courts pride themselves on being highly efficient and countermajoritarian, but rulemaking is time-consuming, quasi-democratic, and policy-driven. Making rules by committee, then, seems particularly unsuited to the work of the judicial branch.

Second, why have the courts made the rulemaking process more complicated over time? Initially, the entire work of formulating and amending rules was assigned to a single committee. Today, the rulemaking process must navigate at least five levels of the court system hierarchy, with additional opportunities for public and special interest input. As a result, amending a single rule often taken three to five years.

So what gives? Why would the courts embrace a task outside of their expertise, and then make it more and more complex?

The article offers an explanation to both questions that is grounded in organizational theory. I explain that the court system initially developed the rulemaking process as a buffer, to protect its core work from the instability of its larger environment. The power to make procedural rules gives allows the court system to respond to a drop in resources, or a surge in cases, without the entire judicial process grinding to a halt. But the rulemaking process also requires external legitimacy to function, and when that legitimacy has been challenged from time to time, the courts have responded by making the process more open, complex, and transparent.

The article touches on many of themes of this blog, including the federal court system’s resource dependence, neoinstitutional theory, and the influential role of other organizations (such as executive agencies, the ABA, and Congress) in altering court-centered rulemaking over time. And it features appearances from William Howard Taft, Earl Warren, Warren Burger, Roscoe Pound, Tom Clark, and others.

The article will be formally published in the William & Mary Law Review later this year. I welcome any thoughts from readers, privately or in the comments.

Pictured: Thurgood Marshall Federal Judiciary Building

Interdependence Classics: Lawrence Mohr, Organizations, Decisions, and Courts; Herbert Jacob, Courts as Organizations

Two articles published seven years apart beautifully illustrate the explosion of organizational theory in the late 1970s and early 1980s, and the ways in which that theory began to be applied to the courts.  In a sense, they are perfect bookends for that era.  Lawrence Mohr’s 1976 Organizations, Decisions, and Courts is decidedly agnostic as to whether courts should even be considered organizations; by 1983, the answer was sufficiently obvious that Herbert Jacob simply entitled his piece Courts as Organizations.

Both articles carefully explore the organizational contours of court systems, and the ways in which courts operate differently from private sector firms. The articles also reflect the changing understanding of organizations In the 1970s.  The developments of that era opened the door for an entire field of court management.

More on both articles and their historical context after the jump.

Continue reading “Interdependence Classics: Lawrence Mohr, Organizations, Decisions, and Courts; Herbert Jacob, Courts as Organizations”