Judging Judges: The Effect of Courtroom Ceremony on Participant Evaluation of Process Fairness-Related Factors

Abstract

In this Essay, we describe a study of the effects of ceremonial aspects of litigation on law student evaluation of a moot court oral argument exercise. That begs the question: why study the ceremonial practices of courts? Those practices seem on their face to have little relationship to the traditional proceduralist concerns of accuracy, efficiency, cost, and integrity. In our view, however, judicial ceremony has been understudied and underappreciated as a source of (or barrier to) the legitimacy of judicial institutions. Students of the social psychology of procedural justice have empirical support for the claim that litigant evaluation of a legal process is based in part on their assessments of procedures, and is to some extent independent of their evaluation of outcome fairness. Procedures judged to be fair by litigants have been found to increase compliance with adverse judgments and respect for the rule of law. It is a plausible-but until now unexamined-hypothesis that the ceremonial formality of court processes contributes to a positive evaluation of the process. Ceremonial practices common in American courtrooms have hardly been without controversy. In one of the most important critical treatments of judicial ceremony, the late American federal judge Jerome Frank mentioned three possible general effects, focusing on the judicial robe. (He tellingly called his essay "The Cult of the Robe.") First, the robe could enhance the prestige of the judge and, hence, respect for the judicial process. He cites Pascal to the effect that "august apparel" is necessary to promote respect for judicial decisions. In the same vein, uniform appearance of the judges could promote the idea that justice is itself "uniform," which also might increase respect for the "rule of law." Second, the robe could be a "harmless relic" that has no impact on anyone and is worn just as a matter of tradition. Finally, it could create "disquiet" in lawyers, litigants, and witnesses, which would reduce their satisfaction with the experience and interfere with efficient and accurate fact finding. Frank endorses the last point, mentioning with favor the few judges who do not wear robes in court and urging that the robe be abolished. His only evidence for the proposition that robes are harmful is anecdotal. Though Frank wrote over half a century ago, none of his hypotheses have been studied empirically.