Procedural Injustice and Emotions: An Experimental Investigation of the Role of Emotions in the Fair Process Effect

Abstract

This Article introduces a novel approach for improving and innovating upon the civil justice system, referred to as human-centered civil justice design. The approach synthesizes two interdisciplinary strands: human-centered design thinking and dispute system design. To begin, human-centered civil justice designers empathize with intended beneficiaries and stakeholders, surveying them, observing them, and interviewing them, immersing themselves to uncover their needs and experiences. Civil justice designers embrace and identify the needs of diverse stakeholders and court users (e.g., parties, lawyers, and judges), determining their interests and goals before narrowing the needs to be addressed. These designers ideate and brainstorm a range of human-centered options before winnowing them based upon technological feasibility and financial viability. Throughout this process, prototypes are harnessed to develop insight from stakeholders about the causes, conditions, and nature of problems. These prototypes are empirically tested with pilots and randomized-control trials to explore the many intended and unintended system-wide effects of a proposed intervention. Human-centered civil justice reflects the reality that the civil justice system seeks to reconcile and promote diverse process values, including efficiency and affording members of the public the ability to participate and human dignity.Further, human-centered civil justice draws on psychological and behavioral science on how members of the public experience the civil justice system and encounters with court officials, including psychological science on procedural justice. Decades of research reveal that procedural justice powerfully influences compliance with legal decrees, cooperation with legal authorities, and engagement in other pro-social and democratic participation. In his 2015 year-end report, the Chief Justice called for a legal culture turn toward efficient justice. This is highly consequential for federal judges now serve largely as managerial judges who manage pending cases. There are few explicit norms or standards that dictate how federal judges should manage cases, and despite the power of managerial judges to sculpt the scope of litigation and influence settlement, this discretion is virtually unreviewable. Legal culture shapes how managerial judges think, feel, and behave. Fundamentally, the Chief Justice’s call for legal culture change aims to alter the beliefs, values, and discourses of managerial judges. Troublingly the Chief Justice elaborated a monist theory of value, exalting the value of efficiency — reducing discovery costs and delays in civil justice — while procedural justice and the many process values that the federal civil justice system serves. In marked contrast, human-centered managerial judging would encourage federal judges to infuse their managerial practices beneficially with procedural justice to promote favorable experiences. By promoting these experiences, human-centered managerial judging advances the plural process aims that the federal civil justice system seeks to achieve. Rather than wishing tension between values away, human-centered managerial judging seeks to reconcile tension between efficient justice and procedural justice. Acknowledging this tension leads to precision. The Article then draws on the findings of the experiment and discusses human-centered civil justice design and rulemaking. Human-centered rulemaking would seek to infuse the rulemaking process with a human-centered ethos and a vision in which diverse stakeholders and court users experience the civil justice system as truly just. In this regard, formal and informal practices that grant the public procedural justice powerfully shape whether civil justice is perceived as fair and legitimate. When engaging in civil justice design, courts should empathize with court users and innovate solutions that meet the public’s need for a civil justice system experienced as just.Finally, human-centered civil justice design can also lead to innovations that address a pressing problem: access-to-justice in the United States. Human-centered access-to-justice innovations hold promise to serve the millions of low-income and middle-income Americans who face unmet legal needs that threaten their shelter, food, livelihood, physical safety, and their care of dependents.