Monday, May 6, 2013
Jordan Singer (New England Law) and Judge William Young (D. Mass.) have posted two articles about bench presence to SSRN.This Article considers what it means for a federal district court to be productive, and how such productivity might be assessed. Previous studies have focused almost exclusively on the speed of case processing, equating a court’s productivity (explicitly or implicitly) with the court’s rate of docket clearance or a case’s average time from filing to disposition. This thin definition of “productivity,” however, is not consistent with either classical economic understandings of the term or common public expectations of the courts. In particular, analyzing the speed or efficiency of a court says nothing about whether the parties or the public view the adjudicative process as accurate, fair, transparent, and dignified.
We seek to bridge the disconnect between existing measures of court productivity and real-world expectations of the district courts by offering a more robust model of district court productivity that explicitly incorporates measures of accuracy and procedural fairness. We then introduce a new metric for procedural fairness called bench presence. Bench presence is a measure of the time that a district judge spends on the bench, presiding over the adjudication of issues in a public forum. Bench presence provides a rough but meaningful proxy for many components of procedural fairness, by quantitatively capturing the degree to which parties and the public are directly exposed to the judge’s practices and procedural safeguards. It also refocuses the discussion of court productivity on the core role of the district judge: presiding over trials and open hearings.
In a companion piece, the authors argued for a more comprehensive model of federal district court productivity which included, among other things, a measure of each court’s capacity and commitment to provide procedural fairness to litigants. The authors further proposed a new procedural fairness metric called bench presence, a measure of the time that district judges spend adjudicating issues in an open forum.
This article examines real-world bench presence data from the Administrative Office of the U.S. Courts. On the surface, the numbers are disappointing for those who view courtroom time as integral to procedural fairness protections. Specifically, the data reveal a decline in total courtroom hours in more than two-thirds of the federal district courts between FY2008 and FY2012, and an overall national decline in total courtroom hours of more than 8 percent during that same period.
But there is encouraging news in the data as well. Strong levels of bench presence are not restricted to courts of a particular size, circuit, or docket composition, suggesting that there are no persistent structural barriers to any district court increasing the amount of time that its judges spend in the courtroom. In addition, there is only a weak correlation between a district court’s average courtroom hours per judge and its average time to case disposition, indicating that district courts need not choose between efficiency and procedural fairness in addressing their caseloads. Based on these findings, the authors urge judges to increase courtroom hours in their own districts, and invite scholars and court administrators to further investigate the potential of the bench presence metric.