357
Cite as: 18 Minn. J. Int'l L. 357 (2009)
Rule of Law Symposium
Understanding the International Rule of
Law as a Commitment to Procedural
Fairness
Judge Kevin Burke*
An international commitment to the rule of law has in
recent years become the mantra for many lawyers, judges, and
human rights activists. What rule of law means exactly isfar
more problematic than it appears at first blush. Surely ruleof
law means judicial independence, but judicial independenceis
not an end in and of itself; rather it is a means to the endof
creating an effective judiciary. Judges need to beindependent,
fair, and accountable for achieving fairness for everylitigant
they see. In essence, the rule of law should be defined by a
commitment to procedural fairness in court.
Some of the current discussion about the rule of law does
little to help courts respond to criticism, constructive or
otherwise. There will always be debate and occasionaltension
between the branches of government. There will always be
tension between lawyers and judges and, not infrequently,
tension between the public and the judiciary. Those debates-
and even those attacks-can strengthen courts. In response to
the criticism of courts, too often defenders of courts notehow
much work courts do. But as former UCLA Basketball coach
John Wooden said, we should "[n]ever mistake activity for
achievement."1 To ensure that the discussion about the
* Judge Kevin Burke, Hennepin County, Minnesota District Court.This article
is adapted from Judge Burke's remarks at the Minnesota Journalof International
Law's Rule of Law Symposium on November 14, 2008.
1. THE 101 GREATEST BUSINESS PRINCIPLES OF ALL TIME 64 (LesliePockell,
358 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2
international rule of law is directed toward achievement,not
just slogans, the dialogue needs to become focused on
guaranteeing procedural fairness as well as measuring
procedural fairness.
Shifting to a focus on procedural fairness has the potential
of providing substantial benefits. While there is far moretrust
and satisfaction with many court systems than critics might
lead one to believe, it is easy to feel a bit under siege attimes.
Changing the focus to fairness can simultaneously improveboth
judicial performance and public satisfaction, while helping
judges avoid preoccupation with judicial critics.
In another context, former Vice President Al Gore wrote
that the quality of debate in America has deteriorated, butthat
the problem is not altogether new:
Why has America's public discourse become less focused andclear, less
reasoned? Faith in the power of reason-the belief that freecitizens
can govern themselves wisely and fairly by resorting to logicaldebate
on the basis of the best evidence available, instead of rawpower-was
and remains the central premise of American democracy. This
premise is now under assault. We often tend to romanticize thepast,
of course, and there was never a golden age when reasonreigned
supreme, banishing falsehood and demagoguery from thedeliberations
of American self-government.2
Gore's words are an apt description of the political
environment that courts throughout the world face. Despite
this political environment, judges must believe that citizenswill
see through the demagogues and understand what their courts
are about. The question is, then, what can judges, lawyers,and
others committed to the rule of law do to ensure better
understanding and support for courts in the future?
Too often, the political discourse of our time consists of
taking the other person's idea, mischaracterizing it, andthen
announcing profound outrage. This approach, of course, does
not enrich the debate. As former Senator Daniel Patrick
Moynihan once said, "[y]ou're entitled to your own opinions.
You're not entitled to your own facts."3 Judges need public
support to thrive as an independent branch of government.
Irrational and inaccurate public discourse about courts
undermines public trust and confidence. Although it is not
ed. 2004).
2. AL GORE, THE ASSAULT ON REASON 2 (2007).
3. Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX.L. REV. 959,
968 n.48 (2008).
2009] COMMITMENT TO PROCEDURAL FAIRNESS 359
entirely the fault of courts, some of the irrationality ofthe
debate about courts is fostered by the fact that too fewcourts
present relevant, readily accessible factual informationabout
court performance.
The first goal of the justice system is to provide peoplewith
justice. Judges need to decide individual cases and seek to doso
in ways that lead participants to accept and abide by the
decision. Judges have an opportunity with each case thatthey
handle to ensure that litigants retain and even enhancetheir
trust and confidence in the courts, judges, and the rule oflaw.
There have always been judges who are intuitively very
effective in implementing procedural fairness in their
courtrooms. But, until recently, few judges gave it much
thought. Most analyses of courts focus on how to getoutcomes
right, not how to handle procedural matters in a way that
enhances perceptions of fair treatment.
The concept of procedural fairness emanates from decades
of research showing that how disputes are handled has an
important influence upon people's evaluations of their
experience in the court system. Research has shown that
litigants have a powerful need to express themselves during
court proceedings. That need can be a simple expression of"I'm
sorry I did this," or a more complicated desire to explain a
sophisticated commercial or human rights issue. If enough
judges fully embrace the concept of procedural fairnessthrough
action, public support for the courts will rise, and there isevery
reason to expect greater compliance with court orders. Sothis
subject is not merely of importance to judges-it is of great
importance to the public as well.
LESSONS FROM EIGHT COUNTRIES ON THE RULE OF
LAW
Today the United States is uniquely positioned to make
major changes in how we think of the rule of law in theworld.
If we do not seize this moment, we do so at our own peril. Iam
an amateur at the analysis of how other countries provide
justice. I have traveled to observe the systems of justice in38
states and Albania, Ireland, Canada, Mexico, China, India,and
Egypt, but I make no claim that I am an expert incomparative
law. I have been a judge in Minnesota for 24 years. But I do
know that the interchange we have with other nations' (oreven
other states') systems of justice gives us the opportunity tolearn
360 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2
about someplace else, and also to learn more aboutourselves.
The first time I went to a foreign country to observe the
delivery of justice was a trip to Albania in the mid-1990s. Iwas
asked to monitor a trial for international human rights
violations. Five ethnic Greeks were arrested and charged bythe
Albanian government. The prosecution alleged that the
defendants were spies. If convicted, they faced the death
penalty. The trial was before a three-judge panel. On paperthe
rights of the accused in Albania appeared reasonable. Thetrial
attracted heavy security and many international observers.
There was fear that this trial could provide an excuse for
Albania and Greece to go to war.
The Albanian trial was far from perfect, and yet there was
an amazing amount of openness. The trial was televised
nationally. The trial was to Albania what O.J. Simpson'strial
was to the United States; everything virtually stopped. One
could walk down the streets and see people watching it. Even
while the trial was being conducted, the presiding judge was
willing to talk to me about trial procedures and thechallenges
facing the Albanian judiciary. The prosecutors and thedefense
lawyers were also willing to talk to me. There was a degreeof
transparency that was far greater than one might expect in a
similar situation in the United States. In a major spy casein
the United States, there is no chance the participants wouldbe
as open with foreign observers.
The trial began by the court reading the charges. However,
after the charges were read, the presiding judge asked, "Who
would like to go first?" My immediate reaction was that
obviously this court does not understand the basics of the ruleof
law. This was the Albanian trial of the decade, with
international attention focused on the process of Albanian
justice, and the judge was starting the testimony with a
question of who would like to go first. Incredibly, the
defendants all raised their hands with their lawyers andsaid
they wanted to go first. I carefully took note that this wasan
obvious defect in their system. The reaction of a prominent
Greek lawyer was far more pointed than mine. To an assembled
group of reporters he asked, rhetorically, "Did these judges goto
matchbook law school?" That comment led to his deportation
the following morning.
I talked to the defense lawyers that night and asked about
their reaction to the presiding judge's offer to "let them gofirst."
What the lawyers said was, "Look, our clients were going to
2009] COMMITMENT TO PROCEDURAL FAIRNESS 361
testify anyway. We wanted to get our case out first. Wewanted
the people to know what our clients were going to say. We
wanted the judges to know what our clients were going tosay."
I left Albania not entirely impressed with that nation's
understanding of the rule of law, but I learned a valuablelesson
about the importance of giving people an opportunity to be
heard.
A short time later I went to Ireland. At that time in
Ireland, like many places in the world, the judiciary had no
infrastructure. There were independent judges, but court
administration-the back room of the judiciary-worked for the
Justice Ministry. It is hard to have a truly independent
judiciary if courts are entirely dependent upon theExecutive
Branch for their infrastructure. My mission in Ireland wasto
conduct a series of workshops for the newly created Irishcourt
administration, the focus of which was on customer service.
Unfortunately for too many judges, the word "customer"
freaks them out. Courts do have customers and should aspireto
be the Neiman Marcus of courthouses. If you go to Neiman
Marcus and you stand looking lost, somebody inevitably will
come up and say, "May I help you?" Unlike Neiman Marcus, if
you go into many of the courts and stand looking lost, the
security guards will kick you out at the end of the day.Respect
is part of the foundation for the rule of law. The atmosphereof
respect in a courthouse is created not just by judges, but byall
of the court personnel. The Irish understood that and
successfully took steps to establish an infrastructure tosupport
the courts that was answerable solely to the judiciary.Creating
an atmosphere of respect in the courthouse enables people to
feel like they will be listened to and believe that the judgesare
trying to do their best to serve the community's needs.
In 2002, I went to India. At the time, the average time for
disposition of criminal cases was approximately ten years. Asa
result, there was an intolerably low conviction rate. Indiahad
created a national commission charged with the task ofmaking
recommendations to reform a broken system. I was asked to
speak to the commission. I remember wandering through the
courts in New Delhi and seeing that they were inundated bythe
volume of cases waiting to be heard. New Delhi made the
busiest and most chaotic court in the United States appearquite
dignified. People could not go to India's lower courts andhave
any sense that they could be heard, and they certainly couldnot
leave with a sense that they would understand why thedecision
362 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2
was made. Chaos prevailed, and there was a great despair
about the status of the India courts-despair not just fromthe
lawyers, judges, and officials charged with trying to improvethe
system, but also despair by the cab drivers and merchantswho
would openly talk about the state of their courts.
Volume is an impediment to the rule of law, not necessarily
because it overworks judges, but because volume caninterfere
with the ability for a litigant to be heard, to be treatedwith
respect, and the right of the litigant to understand why the
decision was made. Crowded dockets, however, are not simplya
by-product of a lack of resources. India faces enormous
challenges; its overloaded criminal justice dockets precludeany
semblance of an effective civil justice system. But India isnot
alone. For example, there was a time in the 1980s when the
City of Newark had a docket problem as severe as India's,with
an almost ten-year delay in their docket. A federallyappointed
special master was making all the bail decisions. As rich aswe
are, as sophisticated as we believe our country is, we havehad
parts of our country where the courts operated no betterthan
India's criminal justice system.
Over the years, I have spent considerable time in Canada
working with judges. The Canadians are quite accepting ofthe
fact that they are a bilingual country. Canadians have aright
to have their trial in French. If someone wants a trial in
French, the government will find a French-speaking judge and
have the trial in French. It is a fact that can appear to manyof
us as a rather quaint quirk of Canadian law. It is not. Thereis
a lot our nation can learn from Canada.
I was once part of a consortium of major urban courts in the
United States. The topic of the consortium's agenda at a
meeting in Los Angeles was about how to build community
courts. That morning I walked for blocks in Los Angeles, andin
block after block not a single person spoke English. It wasa
Hispanic neighborhood in which everybody spoke Spanish.
At one point during the meeting I naively said, "You know,
we're going to have to confront the idea that at some point,
maybe a community court ought to be conducted in Spanish and
we will get an interpreter for the people who cannot speak
Spanish as opposed to the other way around." Quite a number
of the participants were appalled with the idea that in the
United States we could have a court conducted in Spanish. I
said, "Well, if the Canadians have figured out how to do it,
surely we can."
2009] COMMITMENT TO PROCEDURAL FAIRNESS 363
A few years later in Maricopa County, the chief judge
decided to set up a small DWI night court. The court waspostadjudication.
No statute or rule required the creation of the
court. None of the defendants in this particular court could
speak English-they only spoke Spanish. Like many drug
courts, the idea was to have periodic monitoring by a judgeof
how a defendant was performing on probation and maintaining
sobriety. The difference was that everything would be
conducted in Spanish. The judge grew up in the United
States-she was a native of Arizona-but her parents were from
Mexico and she did not learn English until she started
kindergarten. The local prosecutor sued the court to stopthe
proceedings from being conducted in Spanish even though the
potential effect of the lawsuit was to eliminate the court.The
lawsuit certainly did not focus on the benefit of allowing
someone to speak about their own struggles with sobriety.
Language in our nation too often scares us. We cannot afford
that fear in the legal system because voice is part of the ruleof
law. Canada has its own set of challenges when it comes tothe
rule of law, but it may be more sophisticated inunderstanding
the need for allowing voice in a court than we are in theUnited
States.
I once brought a delegation of judges to Mexico at that
country's invitation. According to the Mexican officials,there
were approximately 700,000 Mexicans living in Chicago at the
time. What they asked us in not very subtle terms was, "doyou
know what it would do to the City of Chicago's economy ifyou
got rid of those 700,000 people tonight?" Deport 700,000
Mexicans from Chicago and the city would be economically
devastated.
Economy is important, but family is vital. The rule of lawis
rarely thought of as a family law issue, but it is. Mothers,
fathers, and children going back and forth across the United
States/Mexican border is going to continue. They move to
Chicago, work, and frequently send money home. When there is
a ruling on a child custody case in a Cook County court, mostof
us expect that other states will honor that custody order.What
if the other state is Mexico? In the long run, we need to
acknowledge that an increasing number of people in Cook
County will view Mexico as home rather than any of thefortynine
other U.S. states.
Mexico is not going to go away. The United States could
build a wall that is one thousand feet high and a millionkids
364 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2
will still have parents on both sides of that wall. The rule oflaw
needs to be practical. Although there are treaties and
conventions that purport to address the issue ofinternational
family law, they are, to put it charitably, not user-friendlyfor a
poor or middle class self-represented mom or dad. Compliance
in family law is driven by procedural fairness. If on eitherside
of the border there is a perception that the family lawdispute
was procedurally defective, there is every reason to believethat
parent will consider fleeing across the border to try again.
In 2004, I went to China. I spoke at the National Judicial
College in China. Chinese judges, at least at the time, were
paid a base salary plus a yearly bonus. The symposiumfocused
on the question of legitimate performance measures forcourts.
Part of the interest in performance standards was torationalize
the payment of bonuses, but there was also a deep interestin
trying to build a better system of justice. The Chinesemethod
of judicial pay could be roughly characterized asperformance
pay for judges. Many in the United States like the idea of
performance pay for teachers, but for judges it isdangerous.
How do we decide who gets the bonus? Performance pay for
judges strikes many as the ultimate threat to judicial
independence.
China has a different political system than ours and a
vastly different judicial history. Today's Chinese judiciary is,at
best, ten years old. Many of the judges are not lawyers, but
instead are former military officers. The judiciary was far
different under Mao, but Mao died in 1976. The Chinese, at
some level, understand that it is important to China'seconomic
success that the international business community not have a
complete lack in confidence about the Chinese judicial processor
fear that their business dispute will end up in a Chinesecourt
system.
I learned from the Chinese that it takes time to build the
rule of law. It takes time to build a strong judiciary. Butmost
importantly, it is not the words that are on paper, it isthe
actions that follow them that are really the most important.
Recently I was in Egypt. There are five thousand judges in
Egypt and about eighty million people. The judges sit inthreejudge
panels. The Egyptians, like the Chinese, Mexicans,
Canadians, Irish, and Albanians, know that an effective
judiciary is necessary for economic growth. For manycountries,
it is a struggle to develop a strong and effective judiciarywhen
it comes to the criminal docket. Criminal law raises issues
2009] COMMITMENT TO PROCEDURAL FAIRNESS 365
regarding individual rights and national security, and it
therefore often collides with political power and governance
issues. Our founding fathers were seen by Americans as
patriots. The tea dumpers of Boston were seen by King George
III as vandals or terrorists. Civil law is more often thannot
about money. It is sometimes an easier starting place to
introduce a commitment to procedural fairness. Perhaps greed
is the bond that can drive us all to elevate the rule of law.The
desire for good economic growth can drive judiciaries tobecome
even better than they were before. But in the end, civil,family,
and criminal cases must all be procedurally fair.
A system measures what it cares about. If that is true, a
case can be made for the proposition that the United States,like
most other nations, does not care about fairness in courts.
Courts care about efficiency because we regularly measureit.
But we do not care about fairness because, until recently,there
were few, if any, courts that are prepared to measure their
fairness. Courts will put a reference to fairness in amission
statement or their strategic plan, but courts need to put itin
their operation. Just like the experience in Albania, it is notthe
words, but the action that makes fairness part of the rule oflaw.
What is critically needed now is a simple way to measure a
nation's commitment to the rule of law.
There are three questions to ask when building a
measurable rule of law. First, were the litigants listenedto?
Second, were they treated with respect? Finally, did they
understand why the decision was made?
As the courts of India so painfully demonstrated, volume is
an impediment to being listened to. The danger volume posesis
not judges complaining about being overworked-that is the
wrong paradigm. The danger posed is that litigants are not
heard. The rule of law in part must be defined as a right tobe
heard 100% of the time.
Respect is the second part of the rule of law. The rule of
law must create an atmosphere in the courthouse that allows
litigants to feel that they are important and their case isnot
trivial. Respect must occur 100% of the time regardless ofthe
wealth, status, gender, or ethnic background of the peoplewho
appear in court.
Finally, people have a right to leave the courthouse
understanding the reason for the outcome of their case. Not
every litigant has a right to win, but they do have a rightto
understand why that decision was made. For the rule of lawto
366 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2
become meaningful, there must be universal norms in whichall
countries in the world, no matter what their particularlegal
system is, measure and assess whether people leave the
courthouse understanding why the decision was made.
A lot of decisions are made from the bench. The judge says
what the order is and occasionally may even say why.However,
a lot of the decisions are in writing. Candidly, a lot ofdecisions
that judges make are not written very well. They are writtenin
legal language which often is not understandable to thelitigant.
Courts around the world need to understand that they are
communicating now in a whole different era. We live in anera
when court opinions are posted on the Internet, so judgesneed
to recognize it is no longer just about writing for lawyers.But
even in the case of oral orders, why is as important as whatthe
order is.
If courts achieve the goal of having 100% of people who
come to court listened to, treated with respect, and made to
understand why the decision was made, the court system, even
if it is as crowded as those in India, can become the basisfor
building an independent, strong judiciary that can withstanda
lot of political attacks.
Although in many respects we have a terrific system of
justice in our courts, the United States can learn from andbuild
strong systems of justice with other countries. Our nation isin
a prime position to talk to other countries, not as theimperialist
Yankee who knows everything, but as a colleague who iswilling
to work with, and learn from, other countries on how to builda
worldwide sense of fairness that can support theinternational
rule of law. With a new administration in Washington, D.C.
and a person who is perceived more positively around theworld
than anybody else elected in our lifetime, our nation isuniquely
positioned now to make a major change in the rule of law.
A number of people have thought that after 9/11 the world
forgave our nation for every sin that we were perceived tohave
committed, whether we committed it or not. There was great
goodwill towards the United States, but it quicklydissipated.
We lost an opportunity to build relationships around theworld.
We cannot afford to do that again, and should take this
opportunity to build an international consensus about whatthe
rule of law should mean to all of us.
The academic research regarding the role of procedural
fairness in courts shows that this is a universal norm.
Regardless of gender or ethnic population, people are drivenby
2009] COMMITMENT TO PROCEDURAL FAIRNESS 367
the need to feel like they were listened to. People want towin,
but they also desire to understand why judges made thedecision
in their case. Despite this, most judicial education aroundthe
world is entirely focused on getting the outcome right, andlittle
attention is given to getting procedural fairness right. Inshort,
if the judge got the decision right and applied the rule ofcivil
procedure correctly, what more do people want? Actuallypeople
do want more than that and they can get it. People want a
system in which they can say they were treated fairly.
For judges and many lawyers, the single most difficult
concept to accept is that most people care more aboutprocedural
fairness-the kind of treatment they receive in court-thanthey
do about winning or losing the particular case.4 Thisdiscovery
has been called "counter-intuitive"5 and even"wrong-headed,"6
but researcher after researcher has demonstrated that this
phenomenon exists.7
4. See generally TOM R. TYLER, ET AL., SOCIAL JUSTICE IN ADIVERSE SOCIETY
82-84 (1997) ("[P]rocedural justice significantly affect[s]personal satisfaction with
outcomes received from third parties."); Jonathan D. Casper, etal., Procedural
Justice in Felony Cases, 22 LAW & SOC'Y REV. 483, 493-95(1988) (showing that
procedural justice substantialy and independently influenceslitigant satisfaction,
even in high stakes cases); Jason Sunshine & Tom R. Tyler,The Role of Procedural
Justice and Legitimacy in Shaping Public Support for Policing,37 LAW & SOC'Y
REV. 513, 525-26 (2003) (showing that legitimacy of policeforces influences
compliance with the law).
5. M. SOMJEN FRAZIER, CTR. FOR CT. INNOVATION, THE IMPACT OFTHE
COMMUNITY COURT MODEL ON DEFENDANT PERCEPTIONS OF FAIRNESS: ACASE
STUDY AT THE RED HOOK COMMUNITY JUSTICE CENTER 3 (2006),
http://www.courtinnovation.org/_uploads/documents/Procedural_Fairness.pdf.
6. TOM R. TYLER, WHY PEOPLE OBEY THE LAW 22 (2006).
7. See E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGYOF
PROCEDURAL JUSTICE (1988); JOHN THIBAUT & LAURENS WALKER,PROCEDURAL
JUSTICE A PSYCHOLOGICAL ANALYSIS (1975); Jerald Greenburg,Determinants of
Perceived Fairness of Performance Evaluations, 71 J. APPL.PSYCHOL. 340 (1986);
Jerald Greenberg, Looking Fair Versus Being Fair: ManagingImpressions of
Organizational Justice, in 12 RESEARCH IN ORGANIZATIONALBEHAVIOR 111 (Barry
Staw & L. L. Cummings eds., 1990); Jerald Greenberg &Robert Folger, Procedural
Justice, Participation, and the Fair Process Effect in Groupsand Organizations, in
BASIC GROUP PROCESSES 235 (Paul B. Paulus ed., 1983); LarryHeuer et al., A
Deservingness Approach to Respect as a Relationally BasedFairness Judgment, 25
PERSONALITY & SOC. PSYCHOL. BULL. 1279 (1999); Tom R. Tyler,Psychological
Models of the Justice Motive: Antecedents of Distributive andProcedural Justice, 67
J. PERSONALITY & SOC. PSYCHOL. 850 (1994); Tom R. Tyler, TheRelationship of the
Outcome and Procedural Fairness: How Does Knowing the OutcomeInfluence
Judgments about the Procedure?, 9 SOC. JUSTICE RES. 311 (1996);Kees van den Bos
et al., Evaluating Outcomes by Means of the Fair Process Effect:Evidence for
Different Processes in Fairness and Satisfaction Judgments, 74J. PERSONALITY &
SOC. PSYCHOL. 1493 (1998); Kees van den Bos et al., SometimesUnfair Procedures
368 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2
People have high expectations for how they will be treated
during their encounters with the judicial system. Inparticular,
they focus on the principles of procedural fairness because
"people view fair procedures as a mechanism through which to
obtain equitable outcomes."8 People value fair procedures
because they are perceived to "produce fair outcomes."9
Psychology professor Tom Tyler, the leading researcher inthis
area, suggests that there are four basic expectations that
encompass procedural fairness:10
•Voice: the ability to participate in the case by
expressing their viewpoint;
•Neutrality: consistently applied legal principles,
unbiased decision makers, and a "transparency"
about how decisions are made;
•Respectful treatment: individuals are treated with
dignity and their rights are obviously protected;
•Trustworthy authorities: authorities are benevolent,
caring, and sincerely trying to help the litigants-
this trust is garnered by listening to individuals
and by explaining or justifying decisions that
address the litigants' needs.11
Procedural fairness matters to every litigant who appears
before a judge, but "[w]hat is striking about proceduraljustice
judgments is that they also shape the reactions of those whoare
on the losing side."12 People are actually more willing toaccept
a negative outcome in their case if they feel that thedecision
was arrived at through a fair method. Significantly, even a
judge who scrupulously respects the rights of litigants maybe
perceived as unfair if he or she does not meet theseexpectations
for procedural fairness.
Procedural fairness does not imply that people are happy if
they lose in court. No one likes to lose, but litigants willaccept
losing more willingly if the procedure that is used is fair.
Studies suggest that procedural fairness issues remain
Have Nice Aspects: On the Psychology of the Fair Process Effect,77 J. PERSONALITY &
SOC. PSYCHOL. 324 (1999).
8. TYLER ET AL., supra note 4, at 75.
9. Robert J. MacCoun, Voice, Control, and Belonging: TheDouble-Edged
Sword of Procedural Fairness, 1 ANN. REV. L. & SOC. SCI.171, 182 (2005).
10. TYLER, supra note 6, at 23.
11. See id. at 22-23; David B. Rottman, Adhere to ProceduralFairness in the
Justice System, 6 CRIMINOLOGY & PUB. POL'Y 835, 835(2007).
12. TYLER, supra note 6, at 23.
2009] COMMITMENT TO PROCEDURAL FAIRNESS 369
important when the monetary stakes are high, litigants arevery
invested (such as child-custody cases), or where there are
important moral or value-based questions at issue. The
elements of procedural fairness-voice, neutrality, respect,
trustworthy authorities-dominate people's reaction to thelegal
system across ethnic groups, across income and educational
levels, and across gender.
While the public desires fair procedures, judges and
attorneys focus on fair outcomes, often at the expense ofmeeting
the criteria of procedural fairness that are so important tothe
public's perception of the court. Perhaps because of this
different focus, in California, "[o]n average, attorneys tend .. . to
view procedures in the California courts as fairer than do
members of the public: an average of 3.0 for attorneyscompared
to 2.85 for the public."13 Attorneys may perceive procedures tobe
fairer because they do not pay as much critical attention to
them,14 or because they are more familiar with the court's
typical procedures and thus do not feel as lost during the
process.15
The difference in perceptions between attorneys and the
public may be more than just a little problematic because
perceptions of procedural fairness have a substantial impacton
both satisfaction and compliance for the public. However, itis
not a difference that affects only judges and litigants; itis
perhaps the inherent dissonance that exists between alldecision
makers and decision recipients. Social psychology professor
Larry Heuer conducted an experiment in which collegestudents
were randomly assigned to be either the decision maker orthe
decision recipient. He found that the "decision recipients[were]
oriented primarily to procedural information, while
decisionmakers [were] oriented primarily to societalbenefits."16
Judges and lawyers are trained to think about, and
hopefully provide, due process. Litigants, witnesses, and
courtroom observers are not trained in due process, but theydo
13. JUDICIAL COUNCIL OF CAL., ADMIN. OFFICE OF THE COURTS, TRUSTAND
CONFIDENCE IN THE CALIFORNIA COURTS A SURVEY OF THE PUBLIC ANDATTORNEYS
25 (2005)
14. See Rottman, supra note 11, at 840.
15. See JUDICIAL COUNCIL OF CAL., supra note 13, at 11, 18.
16. Larry Heuer, What's Just About the Criminal Justice System?A
Psychological Perspective, 13 J.L. & Pol'y 209, 218(2005).
370 MINNESOTA JOURNAL OF INT'L LAW [Vol. 18:2
form opinions. The new admonition, if procedural fairness isthe
core performance of adherence and fidelity to the rule of lawis,
are your constituents treated fairly in our courts?
But how do courts measure fairness? The box score for the
rule of law might look like this:
Trial Court: Measuring Fairness
• The judicial officer listened carefully to what I (or my
lawyer) had to say.
• The judicial officer appeared to be a caring person.
• The judicial officer treated me with respect.
• The judicial officer gave reasons for his or her decision.
• The judicial officer made sure I understood the decision.
If we concentrate on fairness as the essence of what therule
of law is, we create opportunity for all nations to learnfrom
each other. We can compete in a constructive way to find
solutions for the historic challenge of how civilized peoplecan
peacefully and honestly resolve disputes. A generation ofsocial
science research tells us a lot about litigants. Those millionsof
people who came to court had expectations that the courtwould
"get the right result" and, for the most part, courts did getthe
right results. Moreover, what the social scientists tell us isthat
those people who knew they might not win, although
disappointed, can accept and obey court orders with whichthey
disagree. Their willingness to comply with orders, however,is
driven by their perception of how they were treated incourt,
whether they were heard, and whether they understood the
order or expectations of the court.weiner
