Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Judicial Performance Evaluation (JPE) is a systematic, objective process of assessing the performance of judges with two overriding institutional objectives: judicial self improvement and constituent education. First adopted by Alaska in 1975, JPE programs are presently mandated in 19 states and under consideration in several others. While JPE adoption and implementation patterns differ, all states have been attentive to balancing the critically important values of judicial independence and accountability.

Scholars and practitioners in human resource management are in general agreement that effective performance appraisal systems must meet the following criteria: clear objectives; reliability and validity of the appraisal methods; separation of personal judgments and bias from job-based performance assessments; employee acceptance of the evaluation system; leadership’s commitment to the appraisal process.

Based on data gathered from state reports, surveys, case histories, and the very few empirical analyses of judicial performance appraisal extant, this paper juxtaposes JPE and the criteria for effective appraisal systems. This research is aimed at determining whether JPE is an effective performance appraisal tool. Through assessing the applicability of 360-degree performance evaluation in a unique setting, findings contribute to the research on human resource management as well as state judicial policy and reform.

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: How strong is the analogy between judging and doctoring? I examine how close these two practices are by exploring the internal and external goods associated with each practice. In a recent book, Jerome Groopman argues that changes in society, technology, and medical education are changing what it means to be a doctor. He concludes by affirming the importance of the doctor-patient relationship. Groopman’s analysis is, to some extent, consistent with a virtue-centered approach to medical practice. After identifying common themes in Groopman’s book and virtue ethics, I conduct a similar inquiry on the practice of judging. As a reference point, I refer to Judge Richard Posner’s book on how judges think. Posner’s elaborate analysis is framed in terms of a judicial utility function that hinges on internal and external constraints on judicial behavior. He argues that the incentives of certain external constraints—money, promotion, and prestige, for example—do not adequately account for judge’s self-selection into the practice. He suggests there is something to be said for the internal constraint of a judge wanting to be a good judge. With this in view, I argue that Posner’s position is prima facie compatible with a virtue-centered theory of judging. To elaborate on what such a theory would entail, I refer to recent work on virtue jurisprudence. Next, I examine whether Posner’s judicial pragmatism is, indeed, compatible with a virtue-centered theory of judging. Finally, I attempt to show what a virtue-centered approach to the special case of the sentencing judge’s practice might look like.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: This paper will analyze material from Judge Barron's court notebooks which contain her case notes from over 30 years on the bench including 22 years on Boston Municipal Court and 10 years on Massachusetts Superior Court.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Much of the study of courtroom questioning in the fields of sociolinguistics and discourse analysis has focused upon lawyers’ questioning of witnesses on direct and cross-examination at trial. These studies have examined the discursive strategies by which lawyers shape these exchanges in order to control the evidence and impressions that are produced. However, another form of courtroom questioning—the questioning of lawyers by judges—has seldom been explored. Yet judges’ questioning of lawyers is both ubiquitous and consequential in courtroom settings, for through this questioning judges seek lawyers’ input, not only in the framing of the issues and the furnishing of authority (activities which are formally acknowledged to be the province of the lawyer and not the court), but also in their formulations of the interpretations by which they apply the law to the specific facts and issues that are before them. This chapter describes four questioning strategies that judges use to engage lawyers in interactive interpretation of the issues presented: taking candidate positions on the facts or law; displaying confidence or doubt in their own interpretations; posing ‘exam’ questions that engage lawyers in Socratic dialogue; and using humor or displays of virtuosity to challenge lawyers’ interpretations. Through the analysis of examples of judges’ questioning of lawyers in trial and appellate courts, I demonstrate how judges use these strategies to both clarify and challenge lawyers’ positions, and to resolve questions relating to those positions prior to making their rulings.