Measuring Procedural Justice

The rationale for measuring citizen/court user satisfaction has rested mostly on the argument that we should improve courts on the basis of what we learn from those served (or not so well served) by the courts, rather those who run the courts.  Two new developments make this argument more compelling: the emergence of the theory of procedural justice (or procedural fairness) and the finding that our desire for being heard, for having a voice in matters, is hard-wired into our brains.

Procedural Justice

Here is what Kevin Burke, District Court Judge in Minnesota, current President of the American Judges Association, and a long-time proponent of court performance measurement, recently had to say about the importance of procedural fairness (Judicature, Viewpoint, May/June, Volume 95, Number 6, 251 -254):

Better performance is the key to building public support for the judiciary… A court or a judiciary
that is as good as its promise is known not just for speed or efficiency (heaven knows many courts
are good at that), but also for other, less quantifiable aspects of justice—things like fairness and respect,attention to human equality, a focus on careful listening, and a demand that people leave our courts understanding court orders…. For courts to build public trust and enhance the legitimacy of judicial decision making, there must be a willingness to commit to measuring procedural fairness. It can be done. .. Some courts are already doing this. At least at a rudimentary level the measurement tools are largely available in The National Center for State Courts CourTools #1. .. Procedural fairness develops from research showing that how disputes are handled has an important influence upon people’s evaluations of their experience in the court system. How people and their problems are managed has more influence than case outcome based upon two key issues: 

• Whether people accept and continue to abide by the decisions made.
• How people evaluate judges, the court system and the law. 

Giving people a voice – the opportunity to participate in their case by expressing their viewpoint, telling their story – is seen as an important element of procedural justice. People who are allowed to have their say in court are more willing to accept a negative outcome and comply with the law.  

Neuroscience 

One reason that people who are allowed to have their say in court are more compliant with law may be that talking about oneself is pleasurable at the level of brain chemistry. Psychological research, as well as recent neuroscience reported in the Proceedings of the National Academy of Sciences (Wall Street Journal, May 8, 2012) indicates that talking about ourselves, especially self-disclosure, triggers the same sensation of pleasure in the brain as food or money.  It is rewarding, at the level of cells and synapses, to give voice to our thoughts and feelings.  

Although talking about oneself is not the same as “giving voice” to ones opinions in a survey of court user satisfaction such as Measure 1 of the CourTools, it may trigger similar sensations of pleasure. 
The takeaway lesson from these two new developments is this: Quite apart from the value to performance measurement and management provided by surveys of court user satisfaction, the active engagement of litigants and other court users with issues of procedural justice and fairness in such surveys without more may enhance trust and confidence in the courts.
© Copyright CourtMetrics and the National Center for State Courts 2012. All rights reserved.

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