The responsibility of judges to assure due process: Tension among neutrality, rights protection, and role

Barnard College, New York NY

Investigators

Abstract

Abstract SES-1456772 The Responsibility of Judges to Assure Due Process: Tension Among Neutrality, Rights Protection, and Role PI - Larry Heuer Co-PI - Steven Penrod The decision of the US Supreme Court in Turner v. Rogers (2011) has prompted consideration of the role of judges in cases in which a party, or parties, are not represented by counsel. In Turner, the Court held that judges in child support cases have a specific duty to ensure that judicial processes are fair to parents who are not represented by counsel. Turner has given rise to debate about how judges can fulfill the duty to ensure that judicial processes are fair to parties without counsel while at the same fulfilling the duty to apply the law neutrally to all parties. The question has considerable currency. In communities across the country, state courts are inundated by millions of people unable to afford private counsel and unable to secure the limited free services made available by the civil legal aid bar. Communities are therefore weighing a range of options to helping to assure the fair resolution of cases for people without lawyers. Many states have modified their respective codes of judicial conduct, or have developed other guidance for judges, to provide that a judge may take steps to ensure that judicial processes are fair to unrepresented parties without violating the judge's duty to apply the law neutrally to all parties. Yet, how these changes will be realized on the ground is a complicated matter. Two studies carried out by this project will examine different aspects of the question of whether and how judges can fulfill their duty to ensure that judicial processes are fair to unrepresented parties while at the same fulfilling their duty to ensure that the law is applied neutrally to all parties. The research findings are expected to advance theory on procedural justice and inform practice and policy on judicial education. The project also has a broader educational impact, including training and mentoring of undergraduate students, law students, and a postdoctoral fellow. Both studies will be carried out in the New York City Housing Court, specifically focusing on the role of Housing Court Judges in reviewing the fairness of proposed stipulations of settlement in cases in which a landlord has brought an action seeking recovery of an apartment from an unrepresented tenant based on the tenant's alleged nonpayment of rent. The first study--a courtroom experiment--asks whether training judges to preserve procedural fairness in cases involving unrepresented parties can a) increase judicial engagement with the unrepresented party, b) help the unrepresented party understand the information needed in the case, and/or c) increase the unrepresented party's perception of procedural fairness and of the legitimacy of the court. The experiment will train 40 judges in procedural fairness and survey the judges (and litigants and attorneys in their cases) on five trials prior to the judges' training and five trials after training (thus permitting controlled testing of training effects). Four hundred target cases will be observed and the behaviors of the participants and outcomes systematically coded (with the above dependent variables in mind). A team of trained law students will code the case files. The second study--a controlled experiment--asks whether educating all the parties about the role of judges in preserving procedural fairness for unrepresented parties can minimize the parties' possible perception of judges as biased in favor of unrepresented parties. The experiment involves a 3 (Party Representation Balance: Balanced, Neither party represented vs. Imbalanced, tenant represented vs. Imbalanced, landlord represented) x 2 (Judge is engaged as per training vs. passive) x 2 (Party: Tenant vs. Landlord) x 2 (Outcome: Favors landlord vs. favors tenant) x 2 (Procedure Overview: Present vs. absent). The two studies are expected to cast light on additional underlying questions, including the following: a) do unrepresented parties' views on the treatment they deserve have a bearing on their perceptions of whether the judicial processes are fair, and b) is procedural fairness as important to the parties as it is to the judges?