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Tuesday, February 07, 2017

The Organizational Character of Courts

In the last few years, there has been a miniature explosion in legal scholarship concerning how courts operate as organizations.  I say “miniature” because this recent literature, to date, has largely been limited to a few interesting studies, mostly by Israeli scholars.  I say “explosion” because this sort of concerted effort to situate courts within a larger framework of organizational theory hasn’t been attempted in earnest since the 1980s.

If these new studies signal a coming renaissance in court organization scholarship, it would be a welcome development.  The studies of the late 1970s and 1980s primarily centered on lessons for court administration—the degree to which state court systems should be centralized, for instance, or how trial courts could be structured to reduce delay in case processing.  That work was important for its time, but it was also narrowly focused.  Broader investigations into how court systems operate as organizations, and how they structure their interactions with other organizations, still have not been conducted on any significant scale. 

It is also an opportune time to reopen court organization scholarship because theories of organizational behavior have advanced markedly in the last thirty years. 

American scholarship on organizational theory began in earnest after World War II, originally embracing the rational bureaucratic model described by Max Weber.  But by the 1970s, it had become clear that much organizational behavior  (whether applied to the private sector, nonprofits, or government entities) was not fully rational, and instead was heavily influenced by each organization’s external environment.  This “open systems” view suggested that organizations must interact with other people and entities in order to survive and accomplish their goals. The external environment can provide resources, marketplaces, and information, and can be the source of political, economic, or cultural forces that affect the organization’s ability to achieve its mission. 

In the late 1970s, open systems theory and the fertile intellectual soil of Stanford Business School gave rise to a variety of related but distinct approaches to organizational behavior, among them resource dependence theory, population ecology, and neoinstitutionalism. While disagreeing on certain key points, these theories did agree on two general aspects of the open system perspective. First, nearly all organizations are resource-dependent, meaning that they rely on their external environment for some combination of raw materials, labor, funding, networks, or legitimacy.  Second, resource dependency affects an organization’s behavior and strategy.  Organizations tailor their interactions and behaviors (ranging from aggressive interaction to pure acquiescence, depending on the circumstances) to reduce uncertainty and continue their mission.

The early court organization studies of the 1970s and 1980s borrowed some of these ideas, particularly resource dependence and the importance of securing and maintaining legitimacy.  Court structure and case processing efficiency were accordingly couched as ways in which courts could more wisely use their limited resources, and secure more resources by appearing legitimate in the eyes of external audiences.

Since the 1980s, however, these emerging theories have been much more rigorously tested, and repeatedly refined.  Many of their fundamental assumptions have held up to empirical scrutiny.  Other assumptions have not held up as well, or have been shown to apply primarily to the private sector.  The modern iterations of these theories invite a reassessment of how they might be applied to courts, and what lessons we might draw about the behavior of courts and court systems as they interact with other government entities, the legal profession, and the public.

In the coming days, I will offer some concrete examples of how modern organizational theory might explain (at least in part) certain court behaviors, ranging from the inclusion/exclusion of cameras in the courtroom to Chief Justice Roberts’s history lessons in his Year-End Reports.  More generally, I hope to make the case for viewing courts as protagonist organizations, actively working to secure key resources, build and maintain legitimacy, protect their core mission, and ultimately ensure their survival.  

Posted by Jordan Singer on February 7, 2017 at 03:44 PM in Judicial Process | Permalink

Comments

Terrific and important project. I'm working on a related project, so I'll look forward to your series.

Posted by: Adam Zimmerman | Feb 7, 2017 7:20:03 PM

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