Sharyn Roach Anleu

`Getting Through the List': Judgecraft and Legitimacy in the Lower Courts:

This article examines the judgecraft required when judicial officers actively manage the time pressures created by long and unpredictable case lists. It considers the implications of this time management for the legitimate exercise of judicial authority. In particular, we focus on the strategy of altering the temporal sequence of the list by standing matters down and recalling them later in the list. This strategy, especially when initiated by the judicial officer, is analysed in light of the temporal goals of getting through the list on the day and moving cases along towards final resolution, and the ideological and practical requirements of legitimate judicial authority within the adversary system. The article is based on a court observation study of the general criminal list, concentrating on the role of the presiding judicial officer — the magistrate — in the lower courts of Australia. The research demonstrates that magistrates exercise considerable judgecraft which achieves temporal goals and can create space for a more engaged and therefore more legitimate decision-making process; however, their capacity to do so is limited by the judicial role and the roles allocated to others by conventional adversarial norms and practices.

SURROGACY: For Love But Not for Money?

Recent cases in the United States and Australia have catapulted surrogacy into the forefront of debates and public policy regarding new procreative technologies, even though gestating and birthing a baby for another woman does not necessarily involve artificial insemination or in vitro fertilization. Feminists have condemned commercial surrogacy because it borders on baby selling and exploits women. Similar criticism has appeared in the mass media, but these forums, as well as the medical profession, have considered noncommercial surrogacy as more acceptable because of the absence of monetary exchange. Using two cases of surrogacy, this article argues that the distinction between commercial and altruistic surrogacy is socially constructed rather than based on self-evident or intrinsic differences. Both types of surrogacy involve the application of pervasive gender norms specifying that womens motivations to have children should be based on emotion, selflessness, and caring, not on self-interest, financial incentives, or pragmatism. Applying these norms renders commercial surrogacy deviant, but altruistic arrangements more acceptable. However, the articles central argument is that both types of agreement can entail exploitation, the denial of the birth mothers rights, and the severe reduction of her autonomy.Recent cases in the United States and Australia have catapulted surrogacy into the forefront of debates and public policy regarding new procreative technologies, even though gestating and birthing a baby for another woman does not necessarily involve artificial insemination or in vitro fertilization. Feminists have condemned commercial surrogacy because it borders on baby selling and exploits women. Similar criticism has appeared in the mass media, but these forums, as well as the medical profession, have considered noncommercial surrogacy as more acceptable because of the absence of monetary exchange. Using two cases of surrogacy, this article argues that the distinction between commercial and altruistic surrogacy is socially constructed rather than based on self-evident or intrinsic differences. Both types of surrogacy involve the application of pervasive gender norms specifying that womens motivations to have children should be based on emotion, selflessness, and caring, not on self-interest, financia...

Magistrates, Magistrates Courts, and Social Change

Relatively little attention has been paid to lower courts’ capacity to bring about social change, despite the fact that most citizens who come into contact with the judicial system will have their case considered (and most likely only considered) by these courts. Often these citizens experience a range of problems that are social in origin, including precarious employment, welfare dependence, financial hardship, and various health problems, including mental health and drug dependency. Magistrates courts must respond to social change and its human fallout and, in so doing, can contribute to progressive social change in a local, personal, and incremental way.

Researching Emotion in Courts and the Judiciary: A Tale of Two Projects

The dominant image of judicial authority is emotional detachment; however, judicial work involves emotion. This presents a challenge for researchers to investigate emotions where they are disavowed. Two projects, one in Australia and another in Sweden, use multiple sociological research methods to study judicial experience, expression, and management of emotion. In both projects, observational research examines judicial officers’ display of emotion in court, while interviews investigate judicial emotional experiences. Surveys in Australia identify emotions judicial officers generally find important in their work; in Sweden, shadowing allows researchers to investigate individual judicial emotion experiences and expression. Evaluating the different methods used demonstrates the limitations and effectiveness of particular research designs, the value of multiple methods and the challenges for researching emotion.

Reinforcing Gender Norms: Commercial and Altruistic Surrogacy

Surrogate motherhood agreements have stimulated widespread public, governmental and academic debate. Much ot the discussion focuses on commercial contracts which are generally condemned, whereas mo...Surrogate motherhood agreements have stimulated widespread public, governmental and academic debate. Much ot the discussion focuses on commercial contracts which are generally condemned, whereas more support exists for altruistic agreements. The paper argues that the distinction between commercial and altruistic surrogacy is neither self-evident nor natural. By examining two recent surrogacy cases it concludes that the distinction is based on gender norms specifyng that love and affection not self-intercstedness or financial gain should underlie womens motivations to have children.

Third Party Policing and Insurance: The Case of Market-Based Crime Prevention

This paper examines a relatively new trend: market-based crime prevention. The insurance firm is an exemplary agent of this new type of crime prevention. Although the traditional focus of insurance has been on losses sustained after a crime or other catastrophe, we explore the shift from reactive to proactive crime management by the insurance industry. This trend is part of a more general decentralization of policing, from state-controlled agents to community- and market-based third parties. New ideologies support these shifts, including an actuarial logic about crime and a view of the prudent person.

Job satisfaction in the judiciary

This article examines job satisfaction among judicial officers in Australia. Increasing numbers of women have entered the judiciary and their job satisfaction is a key route to understanding their experiences of this elite role. This paper applies concepts of job satisfaction to the judiciary and investigates gender differences. Data from two national surveys demonstrate that women and men across the Australian judiciary express very high levels of overall job satisfaction, though areas of dissatisfaction exist, in particular regarding work–life balance. Gender differences do not appear to be direct, but mediated by other characteristics which are gender-related. Broadly, these findings demonstrate that a full understanding of job satisfaction now requires attention to family/domestic demands and commitments and the workplace context, as well as to the intrinsic nature of the work and the extrinsic characteristics of the job.

Judging in lower courts: Conventional, procedural, therapeutic and feminist approaches

Recent theorising about feminist judging has concentrated on appellate courts and their judgments. This paper develops a conceptualisation of feminist judging in lower, first instance courts, which are dominated by high case volume and limited time for each matter, with decisions given orally and ex tempore rather than in elaborated written judgments. Through careful accounts of the philosophy, goals and practices of conventional as well as newer, more engaged approaches to judging, the paper compares and contrasts feminist judging with other approaches to judging in the lower courts. This entails considering dimensions such as the judicial officers orientation to substantive law and practice in court, concepts of fairness, ethical commitments, the view of the defendant, and judicial qualities and capacities.

Performing Authority: Communicating Judicial Decisions in Lower Criminal Courts:

In the courtroom legal authority must be performed by the presiding judicial officer. It is also a social situation where information and emotions must be managed in face-to-face interactions. This paper investigates how magistrates perform their authority in the delivery of decisions in open court. An observational study of criminal cases in Australian lower courts shows that magistrates communicate sentencing decisions in a distinct manner. Magistrates frequently look and speak directly to the person being sentenced (the defendant), in line with everyday conversational conventions, and preface their decision with explanations, which allow for some engagement with the defendant. When delivering other kinds of decisions (in criminal cases), such as adjournments, magistrates display less engagement with the defendant. These findings underscore the important ways in which the embodied presence of the defendant and the interactional dimensions of the courtroom can impact on the legal process and the legitimacy of judicial authority.

In-court judicial behaviours, gender and legitimacy

Two important recent developments are the increasing gender diversity of the judiciary and a turn towards newer forms of judging that rely on more direct judicial interaction with court users. Empirical research into the views and attitudes of men and women in the Australian judiciary reveals a strong shared commitment to core judicial values such as impartiality as the most essential qualities for judicial work. Slightly larger proportions of women express positive attitudes towards skills and practices such as communication and listening, while also expressing strong commitment to the importance of legal skills. Analysis of in-court behaviours of men and women in Australian courts, including the time taken to hear matters, the demeanours displayed towards those appearing in court and the frequency of judicial officers looking at and speaking directly to defendants, finds strong similarities and some differences between men and women. These findings provide important insights into the meanings of gender diversity in the judiciary, the increasingly contested nature of the judicial role and the legitimacy of different approaches to judging.