How do America's founding documents express the nation's commitment to the rule of law?

Answer 1

357

Cite as: 18 Minn. J. Int'l L. 357 (2009)

Rule of Law Symposium

Understanding the International Rule of

Law as a Commitment to Procedural

Fairness

Judge Kevin Burke*

An international commitment to the rule of law has in

recent years become the mantra for many lawyers, judges, and

human rights activists. What rule of law means exactly is far

more problematic than it appears at first blush. Surely rule of

law means judicial independence, but judicial independence is

not an end in and of itself; rather it is a means to the end of

creating an effective judiciary. Judges need to be independent,

fair, and accountable for achieving fairness for every litigant

they see. In essence, the rule of law should be defined by a

commitment to procedural fairness in court.

Some of the current discussion about the rule of law does

little to help courts respond to criticism, constructive or

otherwise. There will always be debate and occasional tension

between the branches of government. There will always be

tension between lawyers and judges and, not infrequently,

tension between the public and the judiciary. Those debates-

and even those attacks-can strengthen courts. In response to

the criticism of courts, too often defenders of courts note how

much work courts do. But as former UCLA Basketball coach

John Wooden said, we should "[n]ever mistake activity for

achievement."1 To ensure that the discussion about the

* Judge Kevin Burke, Hennepin County, Minnesota District Court. This article

is adapted from Judge Burke's remarks at the Minnesota Journal of International

Law's Rule of Law Symposium on November 14, 2008.

1. THE 101 GREATEST BUSINESS PRINCIPLES OF ALL TIME 64 (Leslie Pockell,

358 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

international rule of law is directed toward achievement, not

just slogans, the dialogue needs to become focused on

guaranteeing procedural fairness as well as measuring

procedural fairness.

Shifting to a focus on procedural fairness has the potential

of providing substantial benefits. While there is far more trust

and satisfaction with many court systems than critics might

lead one to believe, it is easy to feel a bit under siege at times.

Changing the focus to fairness can simultaneously improve both

judicial performance and public satisfaction, while helping

judges avoid preoccupation with judicial critics.

In another context, former Vice President Al Gore wrote

that the quality of debate in America has deteriorated, but that

the problem is not altogether new:

Why has America's public discourse become less focused and clear, less

reasoned? Faith in the power of reason-the belief that free citizens

can govern themselves wisely and fairly by resorting to logical debate

on the basis of the best evidence available, instead of raw power-was

and remains the central premise of American democracy. This

premise is now under assault. We often tend to romanticize the past,

of course, and there was never a golden age when reason reigned

supreme, banishing falsehood and demagoguery from the deliberations

of American self-government.2

Gore's words are an apt description of the political

environment that courts throughout the world face. Despite

this political environment, judges must believe that citizens will

see through the demagogues and understand what their courts

are about. The question is, then, what can judges, lawyers, and

others committed to the rule of law do to ensure better

understanding and support for courts in the future?

Too often, the political discourse of our time consists of

taking the other person's idea, mischaracterizing it, and then

announcing profound outrage. This approach, of course, does

not enrich the debate. As former Senator Daniel Patrick

Moynihan once said, "[y]ou're entitled to your own opinions.

You're not entitled to your own facts."3 Judges need public

support to thrive as an independent branch of government.

Irrational and inaccurate public discourse about courts

undermines public trust and confidence. Although it is not

ed. 2004).

2. AL GORE, THE ASSAULT ON REASON 2 (2007).

3. Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX. L. REV. 959,

968 n.48 (2008).

2009] COMMITMENT TO PROCEDURAL FAIRNESS 359

entirely the fault of courts, some of the irrationality of the

debate about courts is fostered by the fact that too few courts

present relevant, readily accessible factual information about

court performance.

The first goal of the justice system is to provide people with

justice. Judges need to decide individual cases and seek to do so

in ways that lead participants to accept and abide by the

decision. Judges have an opportunity with each case that they

handle to ensure that litigants retain and even enhance their

trust and confidence in the courts, judges, and the rule of law.

There have always been judges who are intuitively very

effective in implementing procedural fairness in their

courtrooms. But, until recently, few judges gave it much

thought. Most analyses of courts focus on how to get outcomes

right, not how to handle procedural matters in a way that

enhances perceptions of fair treatment.

The concept of procedural fairness emanates from decades

of research showing that how disputes are handled has an

important influence upon people's evaluations of their

experience in the court system. Research has shown that

litigants have a powerful need to express themselves during

court proceedings. That need can be a simple expression of "I'm

sorry I did this," or a more complicated desire to explain a

sophisticated commercial or human rights issue. If enough

judges fully embrace the concept of procedural fairness through

action, public support for the courts will rise, and there is every

reason to expect greater compliance with court orders. So this

subject is not merely of importance to judges-it is of great

importance to the public as well.

LESSONS FROM EIGHT COUNTRIES ON THE RULE OF

LAW

Today the United States is uniquely positioned to make

major changes in how we think of the rule of law in the world.

If we do not seize this moment, we do so at our own peril. I am

an amateur at the analysis of how other countries provide

justice. I have traveled to observe the systems of justice in 38

states and Albania, Ireland, Canada, Mexico, China, India, and

Egypt, but I make no claim that I am an expert in comparative

law. I have been a judge in Minnesota for 24 years. But I do

know that the interchange we have with other nations' (or even

other states') systems of justice gives us the opportunity to learn

360 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

about someplace else, and also to learn more about ourselves.

The first time I went to a foreign country to observe the

delivery of justice was a trip to Albania in the mid-1990s. I was

asked to monitor a trial for international human rights

violations. Five ethnic Greeks were arrested and charged by the

Albanian government. The prosecution alleged that the

defendants were spies. If convicted, they faced the death

penalty. The trial was before a three-judge panel. On paper the

rights of the accused in Albania appeared reasonable. The trial

attracted heavy security and many international observers.

There was fear that this trial could provide an excuse for

Albania and Greece to go to war.

The Albanian trial was far from perfect, and yet there was

an amazing amount of openness. The trial was televised

nationally. The trial was to Albania what O.J. Simpson's trial

was to the United States; everything virtually stopped. One

could walk down the streets and see people watching it. Even

while the trial was being conducted, the presiding judge was

willing to talk to me about trial procedures and the challenges

facing the Albanian judiciary. The prosecutors and the defense

lawyers were also willing to talk to me. There was a degree of

transparency that was far greater than one might expect in a

similar situation in the United States. In a major spy case in

the United States, there is no chance the participants would be

as open with foreign observers.

The trial began by the court reading the charges. However,

after the charges were read, the presiding judge asked, "Who

would like to go first?" My immediate reaction was that

obviously this court does not understand the basics of the rule of

law. This was the Albanian trial of the decade, with

international attention focused on the process of Albanian

justice, and the judge was starting the testimony with a

question of who would like to go first. Incredibly, the

defendants all raised their hands with their lawyers and said

they wanted to go first. I carefully took note that this was an

obvious defect in their system. The reaction of a prominent

Greek lawyer was far more pointed than mine. To an assembled

group of reporters he asked, rhetorically, "Did these judges go to

matchbook law school?" That comment led to his deportation

the following morning.

I talked to the defense lawyers that night and asked about

their reaction to the presiding judge's offer to "let them go first."

What the lawyers said was, "Look, our clients were going to

2009] COMMITMENT TO PROCEDURAL FAIRNESS 361

testify anyway. We wanted to get our case out first. We wanted

the people to know what our clients were going to say. We

wanted the judges to know what our clients were going to say."

I left Albania not entirely impressed with that nation's

understanding of the rule of law, but I learned a valuable lesson

about the importance of giving people an opportunity to be

heard.

A short time later I went to Ireland. At that time in

Ireland, like many places in the world, the judiciary had no

infrastructure. There were independent judges, but court

administration-the back room of the judiciary-worked for the

Justice Ministry. It is hard to have a truly independent

judiciary if courts are entirely dependent upon the Executive

Branch for their infrastructure. My mission in Ireland was to

conduct a series of workshops for the newly created Irish court

administration, the focus of which was on customer service.

Unfortunately for too many judges, the word "customer"

freaks them out. Courts do have customers and should aspire to

be the Neiman Marcus of courthouses. If you go to Neiman

Marcus and you stand looking lost, somebody inevitably will

come up and say, "May I help you?" Unlike Neiman Marcus, if

you go into many of the courts and stand looking lost, the

security guards will kick you out at the end of the day. Respect

is part of the foundation for the rule of law. The atmosphere of

respect in a courthouse is created not just by judges, but by all

of the court personnel. The Irish understood that and

successfully took steps to establish an infrastructure to support

the courts that was answerable solely to the judiciary. Creating

an atmosphere of respect in the courthouse enables people to

feel like they will be listened to and believe that the judges are

trying to do their best to serve the community's needs.

In 2002, I went to India. At the time, the average time for

disposition of criminal cases was approximately ten years. As a

result, there was an intolerably low conviction rate. India had

created a national commission charged with the task of making

recommendations to reform a broken system. I was asked to

speak to the commission. I remember wandering through the

courts in New Delhi and seeing that they were inundated by the

volume of cases waiting to be heard. New Delhi made the

busiest and most chaotic court in the United States appear quite

dignified. People could not go to India's lower courts and have

any sense that they could be heard, and they certainly could not

leave with a sense that they would understand why the decision

362 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

was made. Chaos prevailed, and there was a great despair

about the status of the India courts-despair not just from the

lawyers, judges, and officials charged with trying to improve the

system, but also despair by the cab drivers and merchants who

would openly talk about the state of their courts.

Volume is an impediment to the rule of law, not necessarily

because it overworks judges, but because volume can interfere

with the ability for a litigant to be heard, to be treated with

respect, and the right of the litigant to understand why the

decision was made. Crowded dockets, however, are not simply a

by-product of a lack of resources. India faces enormous

challenges; its overloaded criminal justice dockets preclude any

semblance of an effective civil justice system. But India is not

alone. For example, there was a time in the 1980s when the

City of Newark had a docket problem as severe as India's, with

an almost ten-year delay in their docket. A federally appointed

special master was making all the bail decisions. As rich as we

are, as sophisticated as we believe our country is, we have had

parts of our country where the courts operated no better than

India's criminal justice system.

Over the years, I have spent considerable time in Canada

working with judges. The Canadians are quite accepting of the

fact that they are a bilingual country. Canadians have a right

to have their trial in French. If someone wants a trial in

French, the government will find a French-speaking judge and

have the trial in French. It is a fact that can appear to many of

us as a rather quaint quirk of Canadian law. It is not. There is

a lot our nation can learn from Canada.

I was once part of a consortium of major urban courts in the

United States. The topic of the consortium's agenda at a

meeting in Los Angeles was about how to build community

courts. That morning I walked for blocks in Los Angeles, and in

block after block not a single person spoke English. It was a

Hispanic neighborhood in which everybody spoke Spanish.

At one point during the meeting I naively said, "You know,

we're going to have to confront the idea that at some point,

maybe a community court ought to be conducted in Spanish and

we will get an interpreter for the people who cannot speak

Spanish as opposed to the other way around." Quite a number

of the participants were appalled with the idea that in the

United States we could have a court conducted in Spanish. I

said, "Well, if the Canadians have figured out how to do it,

surely we can."

2009] COMMITMENT TO PROCEDURAL FAIRNESS 363

A few years later in Maricopa County, the chief judge

decided to set up a small DWI night court. The court was postadjudication.

No statute or rule required the creation of the

court. None of the defendants in this particular court could

speak English-they only spoke Spanish. Like many drug

courts, the idea was to have periodic monitoring by a judge of

how a defendant was performing on probation and maintaining

sobriety. The difference was that everything would be

conducted in Spanish. The judge grew up in the United

States-she was a native of Arizona-but her parents were from

Mexico and she did not learn English until she started

kindergarten. The local prosecutor sued the court to stop the

proceedings from being conducted in Spanish even though the

potential effect of the lawsuit was to eliminate the court. The

lawsuit certainly did not focus on the benefit of allowing

someone to speak about their own struggles with sobriety.

Language in our nation too often scares us. We cannot afford

that fear in the legal system because voice is part of the rule of

law. Canada has its own set of challenges when it comes to the

rule of law, but it may be more sophisticated in understanding

the need for allowing voice in a court than we are in the United

States.

I once brought a delegation of judges to Mexico at that

country's invitation. According to the Mexican officials, there

were approximately 700,000 Mexicans living in Chicago at the

time. What they asked us in not very subtle terms was, "do you

know what it would do to the City of Chicago's economy if you

got rid of those 700,000 people tonight?" Deport 700,000

Mexicans from Chicago and the city would be economically

devastated.

Economy is important, but family is vital. The rule of law is

rarely thought of as a family law issue, but it is. Mothers,

fathers, and children going back and forth across the United

States/Mexican border is going to continue. They move to

Chicago, work, and frequently send money home. When there is

a ruling on a child custody case in a Cook County court, most of

us expect that other states will honor that custody order. What

if the other state is Mexico? In the long run, we need to

acknowledge that an increasing number of people in Cook

County will view Mexico as home rather than any of the fortynine

other U.S. states.

Mexico is not going to go away. The United States could

build a wall that is one thousand feet high and a million kids

364 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

will still have parents on both sides of that wall. The rule of law

needs to be practical. Although there are treaties and

conventions that purport to address the issue of international

family law, they are, to put it charitably, not user-friendly for a

poor or middle class self-represented mom or dad. Compliance

in family law is driven by procedural fairness. If on either side

of the border there is a perception that the family law dispute

was procedurally defective, there is every reason to believe that

parent will consider fleeing across the border to try again.

In 2004, I went to China. I spoke at the National Judicial

College in China. Chinese judges, at least at the time, were

paid a base salary plus a yearly bonus. The symposium focused

on the question of legitimate performance measures for courts.

Part of the interest in performance standards was to rationalize

the payment of bonuses, but there was also a deep interest in

trying to build a better system of justice. The Chinese method

of judicial pay could be roughly characterized as performance

pay for judges. Many in the United States like the idea of

performance pay for teachers, but for judges it is dangerous.

How do we decide who gets the bonus? Performance pay for

judges strikes many as the ultimate threat to judicial

independence.

China has a different political system than ours and a

vastly different judicial history. Today's Chinese judiciary is, at

best, ten years old. Many of the judges are not lawyers, but

instead are former military officers. The judiciary was far

different under Mao, but Mao died in 1976. The Chinese, at

some level, understand that it is important to China's economic

success that the international business community not have a

complete lack in confidence about the Chinese judicial process or

fear that their business dispute will end up in a Chinese court

system.

I learned from the Chinese that it takes time to build the

rule of law. It takes time to build a strong judiciary. But most

importantly, it is not the words that are on paper, it is the

actions that follow them that are really the most important.

Recently I was in Egypt. There are five thousand judges in

Egypt and about eighty million people. The judges sit in threejudge

panels. The Egyptians, like the Chinese, Mexicans,

Canadians, Irish, and Albanians, know that an effective

judiciary is necessary for economic growth. For many countries,

it is a struggle to develop a strong and effective judiciary when

it comes to the criminal docket. Criminal law raises issues

2009] COMMITMENT TO PROCEDURAL FAIRNESS 365

regarding individual rights and national security, and it

therefore often collides with political power and governance

issues. Our founding fathers were seen by Americans as

patriots. The tea dumpers of Boston were seen by King George

III as vandals or terrorists. Civil law is more often than not

about money. It is sometimes an easier starting place to

introduce a commitment to procedural fairness. Perhaps greed

is the bond that can drive us all to elevate the rule of law. The

desire for good economic growth can drive judiciaries to become

even better than they were before. But in the end, civil, family,

and criminal cases must all be procedurally fair.

A system measures what it cares about. If that is true, a

case can be made for the proposition that the United States, like

most other nations, does not care about fairness in courts.

Courts care about efficiency because we regularly measure it.

But we do not care about fairness because, until recently, there

were few, if any, courts that are prepared to measure their

fairness. Courts will put a reference to fairness in a mission

statement or their strategic plan, but courts need to put it in

their operation. Just like the experience in Albania, it is not the

words, but the action that makes fairness part of the rule of law.

What is critically needed now is a simple way to measure a

nation's commitment to the rule of law.

There are three questions to ask when building a

measurable rule of law. First, were the litigants listened to?

Second, were they treated with respect? Finally, did they

understand why the decision was made?

As the courts of India so painfully demonstrated, volume is

an impediment to being listened to. The danger volume poses is

not judges complaining about being overworked-that is the

wrong paradigm. The danger posed is that litigants are not

heard. The rule of law in part must be defined as a right to be

heard 100% of the time.

Respect is the second part of the rule of law. The rule of

law must create an atmosphere in the courthouse that allows

litigants to feel that they are important and their case is not

trivial. Respect must occur 100% of the time regardless of the

wealth, status, gender, or ethnic background of the people who

appear in court.

Finally, people have a right to leave the courthouse

understanding the reason for the outcome of their case. Not

every litigant has a right to win, but they do have a right to

understand why that decision was made. For the rule of law to

366 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

become meaningful, there must be universal norms in which all

countries in the world, no matter what their particular legal

system is, measure and assess whether people leave the

courthouse understanding why the decision was made.

A lot of decisions are made from the bench. The judge says

what the order is and occasionally may even say why. However,

a lot of the decisions are in writing. Candidly, a lot of decisions

that judges make are not written very well. They are written in

legal language which often is not understandable to the litigant.

Courts around the world need to understand that they are

communicating now in a whole different era. We live in an era

when court opinions are posted on the Internet, so judges need

to recognize it is no longer just about writing for lawyers. But

even in the case of oral orders, why is as important as what the

order is.

If courts achieve the goal of having 100% of people who

come to court listened to, treated with respect, and made to

understand why the decision was made, the court system, even

if it is as crowded as those in India, can become the basis for

building an independent, strong judiciary that can withstand a

lot of political attacks.

Although in many respects we have a terrific system of

justice in our courts, the United States can learn from and build

strong systems of justice with other countries. Our nation is in

a prime position to talk to other countries, not as the imperialist

Yankee who knows everything, but as a colleague who is willing

to work with, and learn from, other countries on how to build a

worldwide sense of fairness that can support the international

rule of law. With a new administration in Washington, D.C.

and a person who is perceived more positively around the world

than anybody else elected in our lifetime, our nation is uniquely

positioned now to make a major change in the rule of law.

A number of people have thought that after 9/11 the world

forgave our nation for every sin that we were perceived to have

committed, whether we committed it or not. There was great

goodwill towards the United States, but it quickly dissipated.

We lost an opportunity to build relationships around the world.

We cannot afford to do that again, and should take this

opportunity to build an international consensus about what the

rule of law should mean to all of us.

The academic research regarding the role of procedural

fairness in courts shows that this is a universal norm.

Regardless of gender or ethnic population, people are driven by

2009] COMMITMENT TO PROCEDURAL FAIRNESS 367

the need to feel like they were listened to. People want to win,

but they also desire to understand why judges made the decision

in their case. Despite this, most judicial education around the

world is entirely focused on getting the outcome right, and little

attention is given to getting procedural fairness right. In short,

if the judge got the decision right and applied the rule of civil

procedure correctly, what more do people want? Actually people

do want more than that and they can get it. People want a

system in which they can say they were treated fairly.

For judges and many lawyers, the single most difficult

concept to accept is that most people care more about procedural

fairness-the kind of treatment they receive in court-than they

do about winning or losing the particular case.4 This discovery

has been called "counter-intuitive"5 and even "wrong-headed,"6

but researcher after researcher has demonstrated that this

phenomenon exists.7

4. See generally TOM R. TYLER, ET AL., SOCIAL JUSTICE IN A DIVERSE SOCIETY

82-84 (1997) ("[P]rocedural justice significantly affect[s] personal satisfaction with

outcomes received from third parties."); Jonathan D. Casper, et al., Procedural

Justice in Felony Cases, 22 LAW & SOC'Y REV. 483, 493-95 (1988) (showing that

procedural justice substantialy and independently influences litigant satisfaction,

even in high stakes cases); Jason Sunshine & Tom R. Tyler, The Role of Procedural

Justice and Legitimacy in Shaping Public Support for Policing, 37 LAW & SOC'Y

REV. 513, 525-26 (2003) (showing that legitimacy of police forces influences

compliance with the law).

5. M. SOMJEN FRAZIER, CTR. FOR CT. INNOVATION, THE IMPACT OF THE

COMMUNITY COURT MODEL ON DEFENDANT PERCEPTIONS OF FAIRNESS: A CASE

STUDY AT THE RED HOOK COMMUNITY JUSTICE CENTER 3 (2006),

http://www.courtinnovation.org/_uploads/documents/ Procedural_Fairness.pdf.

6. TOM R. TYLER, WHY PEOPLE OBEY THE LAW 22 (2006).

7. See E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF

PROCEDURAL JUSTICE (1988); JOHN THIBAUT & LAURENS WALKER, PROCEDURAL

JUSTICE A PSYCHOLOGICAL ANALYSIS (1975); Jerald Greenburg, Determinants of

Perceived Fairness of Performance Evaluations, 71 J. APPL. PSYCHOL. 340 (1986);

Jerald Greenberg, Looking Fair Versus Being Fair: Managing Impressions of

Organizational Justice, in 12 RESEARCH IN ORGANIZATIONAL BEHAVIOR 111 (Barry

Staw & L. L. Cummings eds., 1990); Jerald Greenberg & Robert Folger, Procedural

Justice, Participation, and the Fair Process Effect in Groups and Organizations, in

BASIC GROUP PROCESSES 235 (Paul B. Paulus ed., 1983); Larry Heuer et al., A

Deservingness Approach to Respect as a Relationally Based Fairness Judgment, 25

PERSONALITY & SOC. PSYCHOL. BULL. 1279 (1999); Tom R. Tyler, Psychological

Models of the Justice Motive: Antecedents of Distributive and Procedural Justice, 67

J. PERSONALITY & SOC. PSYCHOL. 850 (1994); Tom R. Tyler, The Relationship of the

Outcome and Procedural Fairness: How Does Knowing the Outcome Influence

Judgments about the Procedure?, 9 SOC. JUSTICE RES. 311 (1996); Kees van den Bos

et al., Evaluating Outcomes by Means of the Fair Process Effect: Evidence for

Different Processes in Fairness and Satisfaction Judgments, 74 J. PERSONALITY &

SOC. PSYCHOL. 1493 (1998); Kees van den Bos et al., Sometimes Unfair Procedures

368 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

People have high expectations for how they will be treated

during their encounters with the judicial system. In particular,

they focus on the principles of procedural fairness because

"people view fair procedures as a mechanism through which to

obtain equitable outcomes."8 People value fair procedures

because they are perceived to "produce fair outcomes."9

Psychology professor Tom Tyler, the leading researcher in this

area, suggests that there are four basic expectations that

encompass procedural fairness:10

•Voice: the ability to participate in the case by

expressing their viewpoint;

•Neutrality: consistently applied legal principles,

unbiased decision makers, and a "transparency"

about how decisions are made;

•Respectful treatment: individuals are treated with

dignity and their rights are obviously protected;

•Trustworthy authorities: authorities are benevolent,

caring, and sincerely trying to help the litigants-

this trust is garnered by listening to individuals

and by explaining or justifying decisions that

address the litigants' needs.11

Procedural fairness matters to every litigant who appears

before a judge, but "[w]hat is striking about procedural justice

judgments is that they also shape the reactions of those who are

on the losing side."12 People are actually more willing to accept

a negative outcome in their case if they feel that the decision

was arrived at through a fair method. Significantly, even a

judge who scrupulously respects the rights of litigants may be

perceived as unfair if he or she does not meet these expectations

for procedural fairness.

Procedural fairness does not imply that people are happy if

they lose in court. No one likes to lose, but litigants will accept

losing more willingly if the procedure that is used is fair.

Studies suggest that procedural fairness issues remain

Have Nice Aspects: On the Psychology of the Fair Process Effect, 77 J. PERSONALITY &

SOC. PSYCHOL. 324 (1999).

8. TYLER ET AL., supra note 4, at 75.

9. Robert J. MacCoun, Voice, Control, and Belonging: The Double-Edged

Sword of Procedural Fairness, 1 ANN. REV. L. & SOC. SCI. 171, 182 (2005).

10. TYLER, supra note 6, at 23.

11. See id. at 22-23; David B. Rottman, Adhere to Procedural Fairness in the

Justice System, 6 CRIMINOLOGY & PUB. POL'Y 835, 835 (2007).

12. TYLER, supra note 6, at 23.

2009] COMMITMENT TO PROCEDURAL FAIRNESS 369

important when the monetary stakes are high, litigants are very

invested (such as child-custody cases), or where there are

important moral or value-based questions at issue. The

elements of procedural fairness-voice, neutrality, respect,

trustworthy authorities-dominate people's reaction to the legal

system across ethnic groups, across income and educational

levels, and across gender.

While the public desires fair procedures, judges and

attorneys focus on fair outcomes, often at the expense of meeting

the criteria of procedural fairness that are so important to the

public's perception of the court. Perhaps because of this

different focus, in California, "[o]n average, attorneys tend . . . to

view procedures in the California courts as fairer than do

members of the public: an average of 3.0 for attorneys compared

to 2.85 for the public."13 Attorneys may perceive procedures to be

fairer because they do not pay as much critical attention to

them,14 or because they are more familiar with the court's

typical procedures and thus do not feel as lost during the

process.15

The difference in perceptions between attorneys and the

public may be more than just a little problematic because

perceptions of procedural fairness have a substantial impact on

both satisfaction and compliance for the public. However, it is

not a difference that affects only judges and litigants; it is

perhaps the inherent dissonance that exists between all decision

makers and decision recipients. Social psychology professor

Larry Heuer conducted an experiment in which college students

were randomly assigned to be either the decision maker or the

decision recipient. He found that the "decision recipients [were]

oriented primarily to procedural information, while

decisionmakers [were] oriented primarily to societal benefits."16

Judges and lawyers are trained to think about, and

hopefully provide, due process. Litigants, witnesses, and

courtroom observers are not trained in due process, but they do

13. JUDICIAL COUNCIL OF CAL., ADMIN. OFFICE OF THE COURTS, TRUST AND

CONFIDENCE IN THE CALIFORNIA COURTS A SURVEY OF THE PUBLIC AND ATTORNEYS

25 (2005)

14. See Rottman, supra note 11, at 840.

15. See JUDICIAL COUNCIL OF CAL., supra note 13, at 11, 18.

16. Larry Heuer, What's Just About the Criminal Justice System? A

Psychological Perspective, 13 J.L. & Pol'y 209, 218 (2005).

370 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2

form opinions. The new admonition, if procedural fairness is the

core performance of adherence and fidelity to the rule of law is,

are your constituents treated fairly in our courts?

But how do courts measure fairness? The box score for the

rule of law might look like this:

Trial Court: Measuring Fairness

• The judicial officer listened carefully to what I (or my

lawyer) had to say.

• The judicial officer appeared to be a caring person.

• The judicial officer treated me with respect.

• The judicial officer gave reasons for his or her decision.

• The judicial officer made sure I understood the decision.

If we concentrate on fairness as the essence of what the rule

of law is, we create opportunity for all nations to learn from

each other. We can compete in a constructive way to find

solutions for the historic challenge of how civilized people can

peacefully and honestly resolve disputes. A generation of social

science research tells us a lot about litigants. Those millions of

people who came to court had expectations that the court would

"get the right result" and, for the most part, courts did get the

right results. Moreover, what the social scientists tell us is that

those people who knew they might not win, although

disappointed, can accept and obey court orders with which they

disagree. Their willingness to comply with orders, however, is

driven by their perception of how they were treated in court,

whether they were heard, and whether they understood the

order or expectations of the court.weiner