Courts and Judges: The Legitimacy Imperative and the Importance of Appearances

AuthorKeith J. Bybee and Angela G. Narasimhan
Pages118-133
The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.
© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.
Introduction
The judiciary has long been a subject of study for socio‐legal scholars, and courts and
judges continue to figure prominently in debates over the significance of law both
within and between nations. In this chapter, we survey a wide range of new work
exploring the judicialization of domestic politics and the development of transnational
interaction between judiciaries. Our central claim is that this diverse constellation of
recent scholarship is unified by a single underlying theme: a concern with how courts
and judges maintain their legitimacy through the management of appearances.
We begin our assessment of new work with an old insight. One of the most durable
findings in socio‐legal scholarship is that judiciaries tend to operate in two different
registers at once. On one hand, courts are formally committed to impartiality and
fairness; on the other hand, courts consistently hand down decisions that favor some
groups more than others. Judges speak of law and equal justice, and they also
advance political agendas and advantage particular constituencies.
The oft‐made observation that judiciaries are bound up with high principle and
with mundane preference directs attention to a basic question of legitimacy: If the
acceptance of judicial power depends on the idea that judges are neutral arbiters,
how can courts regularly produce biased results and yet remain legitimate? We draw
out the implications of this foundational question, focusing on the importance
ofprojecting neutral appearances in order to ensure the continuing acceptability of
judicial power. We then argue that an interest in legitimacy and appearances runs
through a good deal of current scholarship.
To demonstrate our claim, we structure our review by scaling up from the individual
actor to the systemic level. We start with recent research on the motivations of the
Courts and Judges
The Legitimacy Imperative and the Importance
ofAppearances
Keith J. Bybee and Angela G. Narasimhan
8
Courts and Judges: The Legitimacy Imperative 119
individual judge and continue by considering new work on the buildings in which
judges sit and studies of how the public perceives law and courts. We then move to the
transnational context and consider recent scholarship on how national judiciaries
relate to one another. Finally, and most generally, we review research on the prerequi-
sites for the rule of law.
As we traverse from the micro‐ to the macro‐plane of analysis, we find a diversity
of scholars not only sharing a focus on legitimacy and appearances, but also
highlighting the same dynamic: in spite of the judiciary’s overall interest in appear-
ing neutral, judges often end up broadcasting partisan images of themselves and
their decisions. We of fer some reflections on the paradoxical relationship between
appearances of impartiality and bias, and we conclude by suggesting several new
lines of research that can be fruitfully developed by attending to how courts attempt
to secure their authority by regulating how they look.
Impartial Courts, Biased Outcomes: A Classic
Socio‐legal Finding
The classic socio‐legal analysis of the coexistence of judicial impartiality and biased
judicial outcomes was set forth by Galanter (1974). Galanter took court neutrality as
his premise, stipulating that judges impartially apply legal principles to the facts and
arguments before them. He then focused his attent ion on the resource differentials
and strategic dynamics of litigation, and used these factors to argue that judicial
decisions are consistently skewed.
Most ordinary individuals, Galanter noted, have only “occasional recourse to the
courts” (p. 97) and are invested in the outcome of their particular case. For such
one‐time litigants, the only result that matters is the disposition of the dispute in
which they are involved. By contrast, repeat players, with multiple and ongoing
engagements in the judicial process, have smaller stakes in specific outcomes; they
use their resources to manage their disputes with an eye toward influencing the rules
of the legal game that will govern litigation in the future. Repeat players are conse-
quently willing to settle when it makes strategic sense to do so, taking a loss in a
specific case for the sake of preserving favorable rules in an entire run of cases. The
individual, one‐time litigant facing an organized, well‐resourced repeat player may
push for a preferred outcome and manage to win her case. At the level of the specific
dispute, such a result lends law “a flavor of equality” (p. 135), suggesting that differ-
ences in position between the two parties do not determine judicial decisions. The
resource differences between parties are nonetheless reflected at the level of legal
rules where the careful management of victories and defeats permits repeat players
to structure the system to their advantage. Thus one‐time litigants as a class are ulti-
mately trapped in a “paradox of losing by winning” (Albiston 1999: 901): although
they receive favorable rulings from an ostensibly impartial judiciary, they still find
that the overall state of the law systematically privileges the concerns of powerful
actors.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT