The conscious mind of most Americans recalls but a handful of powerful speeches. Short as the list is, these addresses are part of the nation's common lexicon: Abraham Lincoln recalling "four score and seven years ago" at Gettysburg; Franklin Delano Roosevelt imparting "a date which will live in infamy"; Martin Luther King's ringing "I Have a Dream"; and, John F. Kennedy imploring us to "ask not what your country can do for you, ask what you can do for your country." Beyond these standouts, the balance of American oratory is largely the province of the history cognoscenti. . . . [for full article click the PDF below]

Participants: Judith Resnik (moderator), Chief Justice Leroy Rountree Hassell, Sr., Chief Justice Margaret H. Marshall, Chief Justice Clifford W. Taylor, Lucy A. Dalglish, Luke Bierman, and Mark S. Curriden.

As will be apparent, I do not believe our world bears much relationship to Pound's. I do not think people are discontented with the judiciary in anything approaching the way they were then, or for much in the way of related reasons. There clearly are pockets of discontent. Criticism of the judges may be quite voluble at times, which creates the impression of more widespread unhappiness. I will say a word about why this may be a healthy thing. I will also suggest some trends in politics that may indicate that real trouble still could lie ahead. I will not offer a solution, though my remarks hint in that direction. Ultimately, like Pound, I am merely diagnosing. . . . [for full article click the PDF below]

If the public is predisposed to resent litigation outcomes that impose unwelcome restraints, it begs the question of whether the public really wants an independent judiciary in the first place, or would prefer judges who are subject to popular control and will render the decisions that the public favors. The question of whether the public really wants an independent judiciary has two parts: What is an independent judiciary? And does the public want one? The first part seemingly invites a protracted disquisition on the meaning of judicial independence, but that would be unnecessarily digressive. For purposes here, it will suffice to isolate, from the many facets of judicial independence that scholars have identified, those of central relevance to the public judicial independence debate. With those meanings in hand, I will then turn to the second part of the question and peel back the layers of the public's views on judicial independence, like an onion, to reveal the nature and extent of the public's ambivalence.. . . [for full article click the PDF below]

Lengthy service as a judge or in law enforcement sometimes makes a person a bit paranoid. After sixteen years on the bench, The Honorable Patricia D. Marks, the Supervising Judge for the Criminal Courts in New York's Seventh Judicial District, worried that pop cultural works might be affecting the jurors in her courtroom. Hollywood films, she thought, could make potential jurors leery of serving. Television shows could influence the jurors' understanding of their role. Was Judge Marks being unduly concerned? She perhaps asked herself that very question. But then, after working to guarantee her jurors were not biased by popular culture, she saw an Internet posting from a man who had been summoned for jury duty and actually was doing his "homework" by watching Jury Duty (1995), Trial By Jury (1994), and 12 Angry Men (1957).

For jurors in other courtrooms and for average citizens as well, it seems likely that popular culture affects what they think of the courtroom and courtroom proceedings. In the first section of this essay, I proffer a definition of popular culture and raise the question of how we might study its impact. In the second section, I present a short overview of the way portrayals of the courts have been central in American popular culture during the last century and point out how comfortable Americans are with the courtroom as cultural convention. In section three, I explore the impact of court-related popular culture on what Americans think of and expect from their courts. In the conclusion, I suggest a few steps that could be taken to limit popular culture's impact. . . . [for full article click the PDF below]

I have had the opportunity to meet Oleksandr Potylachak, a Justice of the Supreme Court of Ukraine who joined his colleagues in declaring invalid the 2004 presidential election due to massive voter fraud. That decision marked the first time the judiciary of a former East bloc country had overturned the illegitimate action of a ruling political party.

It was a bold move; it was a courageous act. During a visit to Columbus, Ohio in March of 2005, Oleksandr described the fear of retaliation that accompanied the court's decision. The names of the twenty justices participating in the decision were not public; children were kept home from school until the fear subsided. . . . [for full article click the PDF below]

Roscoe Pound first presented his lecture The Causes of Dissatisfaction with the Administration of Justice in 1906. It was the heyday of the Progressive Era, a government reform movement that coupled concern for social justice with efforts to improve government efficiency. Progressives opposed waste, corruption, and ward politics and sought to change both the quality and scope of government services. Reformers addressed what they viewed as an anemic government response to substantial social problems and widespread corruption.

Fast forward to today: Justice Shepherd asks us to address The Causes of Dissatisfaction Roscoe Pound Never Thought About. In framing this discussion, one needs to consider how judges can affect satisfaction with democratic government and how that satisfaction, in turn, affects them. For courts to satisfy the citizenry, ensure the efficacy of their institutions, and maintain democratic accountability, they need to adapt to significant changes occurring in the delivery of public goods and the exercise of public authority. . . . [for full article click the PDF below]

State courts are vulnerable to political pressure. Judges in most states are subject to election and their budgets are subject to approval by the executive and legislative branches. In many states, the courts' constitutional structure and authority can be changed through the referendum and initiative processes.

One hundred years after Roscoe Pound's famous speech, "The Causes of Popular Dissatisfaction with the Administration of Justice," parts of the speech still sound contemporary. One of Pound's targets was the election of judges. In 1906, about eighty percent of state court judges were elected; today, the number is close to ninety percent, including judges who are subject to retention elections.

Through judicial elections and the legislative process, courts are involved in politics. This is discomfiting. The court system's challenge is to maintain its integrity as the third branch of government. We need to insulate courts as best we can from political pressures that may affect—or give the perception of affecting—judicial decisions. Supporters are essential.

Unpopular decisions—even by federal courts or courts in other states—can be the focal point of anger that is used to drive turnout in judicial elections, either primarily to defeat a sitting judge or to bring out the angry voters for other purposes, or both. . . . [for full article click the PDF below]

To begin addressing the central question at hand, I believe that Americans do want an independent judiciary, although many may not know it. My statement reflects the fact that many Americans are of two minds about the judiciary. Several national public opinion surveys conducted by the American Bar Association, the National Center for State Courts, and the Justice at Stake campaign, as well as other state-specific surveys, show that Americans want judges who are free from political influence.However, at the same time, many people favor judicial decisions that reflect their political preferences and values, and many express a desire to hold judges more directly accountable to the public.The root cause of these conflicting and malleable attitudes towards the judiciary, I believe, is a fundamental lack of knowledge. Too many Americans are uneducated about our system of government, and particularly about the constitutionally prescribed roles and responsibilities of the judicial branch. . . . [for full article click the PDF below]

For our state judges today, let us put aside what might be thought their appropriate "reward" compared to the "reward" for private-sector lawyers. Of course judges earn less than they would in private practice, and of course judges enjoy "rewards" other than salaries. What is surprising is how severe the gap is between the pay for judges and for the private bar—and, strikingly, the gap between the pay for judges and for other public employees. What is deeply disturbing, indeed dangerous, is how the gaps are worsening. Our compensation for judges is so low, that by reducing the caliber and stature of those who are in "the pool . . . willing to serve," this treatment is the most widespread, persistent, and damaging attack on judicial independence—as Chief Justice Roberts said. . . . [for full article click the PDF below]