Special Issue on Procedural Fairness - American Judges Association

doubt that aspirations for, and satisfaction with, particular outcomesreign supreme in litigants’ minds. Distributive justicemight not be litigants’ favorite justice flavor, but it is the flavorthey care about the most. It is therefore the flavor that judgesshould care about the most as well.Procedures of the utmost fairness do not necessarily meanthat litigants will readily accept a court’s outcome or decision.Hence it is important for legal advisors, professionals, andjudges to be willing to explain outcomes and to express a willingnessto answer litigants’ questions, particularly if an outcomeis undesirable or unexpected. As mentioned in the individualdifferences section, supra, it is important further forlegal professionals to recognize that litigants are not cookiecutterreplicas. What makes people different will also influencehow they approach, interpret, and understand the law. Thiswill help to ensure that litigants have a better understanding oftheir outcomes and why those particular outcomes werereached, which would potentially lead to greater satisfactionwith the justice system and fewer appeals.Burke and Leben also emphasize the importance of socialscience research in helping legal professionals understand howthe general population interprets fairness in the legal system.We support this proposition with respect to distributive, aswell as procedural fairness. We similarly recommend that legalprofessionals not only educate themselves by becoming familiarwith the existing literature, but also support ongoingresearch. There are two ways in which judges can facilitate thisgoal. First, they can allow researchers to survey litigants abouttheir perception of legal outcomes as well as legal procedures.Second, they can serve as research participants themselves.Social scientists who conduct research on the legal systemknow much less about how judges make decisions than theydo about how juries (and especially individual jurors) makedecisions. This state of affairs exists for a number of reasons,but primarily because compared to the average juror (or mockjuror), judges are fewer, busier, harder to obtain access to, andless swayed by offers of token compensation for participatingin research studies.As fact finders, judges and juries are similar in manyrespects, yet they differ in subtle ways as well. 43 Judges differfrom jurors in terms of their training, background, legalknowledge, and experience with similar cases; evidentiaryrules also mean that judges might make decisions on slightlydifferent constellations of facts than juries. Moreover, preciselybecause of their experience and training, judges are muchmore likely than jurors to have reflected on the nature of theirtask and to have formulated principles to which they adhere inadjudicating the cases before them. Interviews with judges, aswell as judge-jury comparisons, could shed a great deal of lighton the justice principles that legal fact finders rely on in determiningtrial outcomes. Reflection by judges on the principlesand goals that they use, often unconsciously, in reaching verdictswould produce a more thoughtful and better informedjudiciary.Brian H. Bornstein, Ph.D. (University ofPennsylvania), M.L.S. (University ofNebraska), is Professor of Psychology andCourtesy Professor of Law at the University ofNebraska-Lincoln, where he is AssociateDirector of the Law-Psychology Program. Hismain research interests are jury decision making,eyewitness testimony, and perceptions ofjustice. He can be reached at bbornstein2@unl.edu.Hannah Dietrich (M.A.) is a doctoral student atthe University of Nebraska—Lincoln in the jointSocial Psychology PhD and Master of LegalStudies program. She can be reached at hl.dietrich@gmail.com.43. See, e.g., Brian H. Bornstein, Judges vs. Juries, 43 CT. REV. 56(2006).Court Review - Volume 44 77