Friday, February 17, 2017
Why Is It So Hard For the (Federal) Courts To Innovate?
Earlier this week, the House Judiciary Committee held a hearing which touched on a wide range of court transparency issues. Of particular interest to me was the testimony of Mickey Osterriecher, the general counsel of the National Press Photographers Association, who renewed the push for broadcast access to federal court proceedings. He noted that the recent live audio stream of the Ninth Circuit’s telephonic hearing on President Trump’s travel ban garnered more than a 137,000 connections on YouTube, with millions more tuning on cable TV news.
Given that the other branches of the federal government have long broadcast many of their proceedings (CSPAN has been on the air for nearly 40 years), and that courtrooms are traditionally open to the public anyway, there is no obvious reason reason why the federal court system would not provide video and audio access to their proceedings on a much more regular basis. Yet the Judicial Conference of the United States and the Supreme Court have repeatedly blocked efforts to do just that. Indeed, two years ago the Judicial Conference let lapse a nationwide pilot program that allowed volunteer district courts to record selected civil proceedings and make those recordings available to the public. (Only three district courts in the Ninth Circuit have been permitted to continue the project.) That pilot, whose success I documented here, and carried significant benefits for the legal profession and the public.
So why did the Judicial Conference end it?
The U.S. Courts website offers little guidance, only noting dryly that the "Committee on Court Administration and Case Management ... agreed not to recommend any changes" to the general policy of prohibiting cameras. The real reason for ending the cameras program--left unstated by the Judicial Conference--is that the introduction of cameras on a regular basis is seen as too risky. To understand why, it is helpful once again to think about the federal court system as a large organization.
Courtroom broadcasts would be an innovation, and organizations do not naturally innovate. Innovation is disruptive and places the organization's resources at risk. Therefore, innovation is typically justified only if: (1) the change will distinguish the organization from its competitors in the field (thereby allowing it to attract more resources), or (2) the change will conform the organization’s practices to those in the field (thereby allowing it to look more legitimate). The distinction incentive is more prominent in the private sector, where introducing a new product or new marketing campaign could garner new customers or new investors. The conformity (or isomorphism) incentive is more prominent in the nonprofit and public sector, where legitimacy is often tied to looking and acting like other respected organizations in the field.
The distinctiveness incentive is not very strong here. Broadcasting courtroom proceedings does not distinguish the federal courts from other court systems (where cameras are already allowed), and likely does not distinguish them positively from arbitrators or other private ADR providers.
The incentive to conform might seem more promising because it is so closely tied to an organization's legitimacy. As I noted in a previous post, legitimacy is perhaps the single most important resource to the federal courts. If the courts are not perceived as legitimate, they risk losing other key resources: funding, jurisdiction, a steady flow of disputes needing resolution, and goodwill. We might expect, therefore, that isomorphic pressures might push the federal courts toward conformity with other branches of the federal government, and many state courts, by allowing cameras to broadcast hearings in a regular basis. If isomorphic pressures are powerful enough, the courts would gain legitimacy from permitting cameras in the courtroom, and would lose legitimacy by resisting them.
Isomorphic pressures come in three forms. Coercive pressures come from the state, usually in the form of legislation or regulation. (A federal law requiring broadcasts of court proceedings would be an example.) Mimetic pressures are pressures to copy peer organizations, on the theory that a behavior signals legitimacy just because everyone else is doing it. Normative pressures derive from the culture and expectations of the professions associated with the organization. (For example, in making policy the federal courts often consult with the ABA, the American College of Trial Lawyers, and similar prominent bar groups.)
Here, however, the isomorphic pressures are not sufficiently powerful to induce change--at least, not yet. The coercive pressures on the courts are moderate at best: Congress has introduced a Sunshine in the Courts Act in almost every recent session, but they have never picked up serious steam. The mimetic pressures are also weak: state courts may use (and benefit from) cameras, but at least in this field the federal courts do not seem to view the state courts as peers worthy of imitation. And the normative pressures are too scattered: the arguments touting the benefits of broadcast proceedings come not from the organized bar, but rather from the media, politicians, and academics. It’s not accurate to say that courts find these views meaningless, but it is certainly safe to say that they do not find them powerful enough to move from a stable level of public legitimacy.
Conditions and external pressures can change. I hope that the federal courts will eventually come to recognize that the benefits of the cameras program outweigh the risks, and will adopt a full program on their own. In the meantime, friends of the court might want to rally the normative forces that counsel for such a change.
If you polled law professors and asked them how many would agree to have their lectures recorded and posted on Youtube, I suspect very few would agree. For better or worse, I tend to think the judicial reluctance follows from a similar mindset.
Posted by: Orin Kerr | Feb 17, 2017 11:58:47 AM
Well, that probably true, but I think the courts are different in some important ways. Judges are public servants; law professors are not. Courtrooms are open to any member of the public (except in unusual circumstances); law school classrooms are not. Law school lectures are potentially monetizable (if you're Arthur Miller or a bar prep lecturer, at least); judicial decisions are not. There is a stronger public interest in broadcasting courtroom proceedings, and at least a slightly stronger private interest in *not* broadcasting ordinary law school classes.
I think the more pertinent parallel is: what if a law school professor wanted to record and post videos of her lectures? Should the administration have a veto? What if an entire law wanted to post faculty videos? Should AALS or the ABA Section of Legal Education (for example) have a veto?
The courts have a strong interest in uniformity, but it does tend to make them exceedingly cautious.
Posted by: Jordy Singer | Feb 17, 2017 12:57:52 PM
Thanks for the response, Jordan. You offer plausible normative arguments for why, in the context of balancing competing interests, there should be a different rule that should apply in the two contexts. I took the focus of your post to be descriptive, though, not normative.
Posted by: Orin Kerr | Feb 17, 2017 2:13:43 PM
Thanks for the post , with all due respect , the respectable author of the post , raise none issues it seems . I can tell , that typically , the arguments , stands on the idea , that cameras , would affect the behavior of parties and lawyers , so , it may affect and induce the course of trial or witness and testimonies ( simply , staged behavior for the media ) .
I have understood , that some states in the US , have reached the same conclusion . You may read here some :
Posted by: El roam | Feb 17, 2017 4:22:12 PM
Just correcting my comment above :
mistakenly written by me , that some states in the US , have reached the same conclusion , I omit it here so , dubious for the time being ...... .
Posted by: El roam | Feb 17, 2017 4:33:36 PM
Just clarification to my comment :
Despite the explanation given by me , Yet the question still persists , why in states ,and not in federal ? I can only presume , that :
Federal courts treat the issue with more severity ( Senior judges and courts , and so , for the issues they deal with typically ) and , more independent of course, as they are in their status , less influenced by electorate or popular issues .
Posted by: El roam | Feb 17, 2017 4:49:05 PM