Cook, Beverly Blair

English

Washington University St. Louis: Open Scholarship

Washington University Law Review Volume 1972 Issue 3 Symposium: One Hundred Years of the Fourteenth Amendment—Its Implications for the Future January 1972 Review of “Managing the Courts,” By Ernest C. Friesen, Jr., Edward C. Gallas, and Nesta M. Gallas Beverly Blair Cook University of Wisconsin Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Courts Commons Recommended Citation Beverly Blair Cook, Review of “Managing the Courts,” By Ernest C. Friesen, Jr., Edward C. Gallas, and Nesta M. Gallas, 1972 WASH. U. L. Q. 594 (1972). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1972/iss3/12 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. BOOK REVIEWSMANAGING THE COURTS. By Ernest C. Friesen, Jr.,' Edward C. Gallas,2and Nesta M. Gallas.' Indianapolis: Bobbs-Merrill, 1971. Pp. vii,341. $9.50.Managing the Courts is the first of a new genre in court administrationliterature: a textbook for the students in the present graduate programsfor court executives at the University of Denver, American University,and the University of Southern California. Since there are few researchmonographs on court administration to serve as a foundation for sucha text, the authors developed generalizations based primarily on theirown personal experiences. The pioneering nature of their effort isrevealed in the situation which they describe (p. 9):No person in academic life today is known as a specialist in courtmanagement. The lawyers in judicial administration have concen-trated on procedures and jurisdictional law. The public administratorshave concentrated their efforts on the executive and legislative branchesof government.These three professionals in cognate fields have pooled their talentsand experiences with state and federal courts to persuade the readerof the value of management to the third branch. Ernest Friesen wasExecutive Director of the Administrative Office of the U.S. Courts andunderstands the delicate and hazardous nature of executive, judicialconference, and trial judge relationships. Edward Gallas was ExecutiveOfficer of the multi-judge Superior Court of Los Angeles County duringthe developmental stages of the office, and Nesta Gallas is a Professor ofPublic Administration with a research interest in court administration.In their effort to avoid personal reminiscences and case examples, theycontrive a cold didacticism and deprive their text of richness and flavor.1. Executive Director, Institute for Court Management, University of Denver LawCenter.2. Personnel Director, The Port of New York Authority.3. Associate Professor of Public Administration, John Jay College of CriminalJustice.594Washington University Open ScholarshipVol. 1972:594]The lack of a bibliography and extensive footnotes further weakens itsutility as a textbook. Although the literature in the field is sketchy anddiverse, there are a number of relevant books and articles which couldhave been recommended to the student.' The chapter on automationfails entirely to cite any studies although a Jurimetrics Journal has beenpublished since 1959 and there exists a community of scholars interestedin the subject.The literature on court administration provides three traditions tothe authors of a comprehensive work. The muckraking tradition, fromLincoln Steffens to the contemporary reporting of complaints about thejudiciary, focuses a spotlight on corrupt judges, decrepit facilities, con-gested dockets, and inequitable outcomesA The public administrationtradition provides a choice of models from the rigid hierarchial modelto the flexible systems models. The reform tradition stemming fromHerbert Harley,7 currently represented by the American JudicatureSociety and its publication JudicatUre, preaches the benefits of structuralrearrangements, from the interior design of courtrooms to the unificationof state courts.This book does not fit any one of the three traditions, but to someextent draws upon each. The authors assume that their readers arefully aware of the current distress of the courts and avoid morbidanecdotes in favor of a sophisticated systems-structural analysis of con-straints, inherent power, and government relations. The book resemblesa muckraking product only in a few solemn simplifications. Politicalscientists would prefer to subject to further inquiry purported statementsof fact such as "the courts as institutions differ dramatically from otherinstitutions in our society" (p. vi) and "If there were no courts, no4. See P. FISH, THE REVOLUTION OF THE FEDERAL JUDICIAL ADMINISTRATION(1972); E. LEMERT, SOCIAL ACTION AND LEGAL CHANGE: REVOLUTION WrrHN THEJUVENILE COURT (1970); Gazel, State Trial Courts: An Odyssey Into FalteringBureaucracies, 8 SAN DiEoO L. REv. 275 (1971); Wettick, A Study of the Assignmentof Judges to Criminal Cases in Allegheny County-The Poor Fare Worse, 9 DUQUESNEL. REv. 51 (1970).5. The original name of the Jurimetrics Journal was Modern Uses of Logic inLaw. See also Loevinger, Law and Science as Rival Systems, 19 U. FLA. L. REV.530 (1966-67); Mermin, Computers, Law and Justice: An Introductory Lecture, 1967WIS. L. REV. 43; Zeisel, Methodological Studies in Sentencing, 3 LAw & Soc' REv.621 (1969).6. See, e.g., L. DowNIm JR., JUSTICE DENIED: THE CASE FOR REFORM IN THECotRrs (1971); H. JAMEs, Cnis IN Ti COURTS (1968).7. 55 AM. JUDICATURE SOC'Y J., No. 5 (1971).BOOK REVIEWShttps://openscholarship.wustl.edu/law_lawreview/vol1972/iss3/12WASHINGTON UNIVERSITY LAW QUARTERLYinstitutional means would exist for the peaceful settlement of conflict"(p. 18).The authors recognize organization theory as a potentially useful toolfor examining and understanding court systems. However, they pointout that studies of complex organizations usually concern business in-stitutions and that the uniqueness of judicial institutions requires specialmodifications of existing models. An organizational chart of positionsin the judicial branch and related offices in the executive branch wouldreveal very little about the realities of the judicial process. They expectan administrator to have a thorough understanding of the "shadow"power structure underlying the authoritative structure and to workthrough it to achieve court goals. In effect, they suggest that under theguidance of the administrator each court experiment with variousmanagement designs to solve its own idiosyncratic problems. Theauthors, then, do not offer a panacea but simply an approach whichemploys some administrative concepts and suggests some general prop-ositions. In the chapter on "The Utilization of Judicial Manpower,"they offer some testable propositions; for example, that "The more worklawyers are required to do, the less court time a case will take," (p. 166)and "The greater the number of professionals . . . the more complexthe problems of manpower utilization become" (p. 149).Although the authors reject the typical structural concerns of thereformist tradition, they assert that the real key to effective judicial per-formance is professional management and the application of manage-ment principles to entire court systems and urban courts. Their pleais for the training and employment of administrators in courts. Thus,the book fits the reform tradition with a new emphasis on the status,salary, and selection, not of judges, but of court managers. They rec-ommend as a rule of thumb, that a court of general jurisdiction withsix judges needs an administrator (p. 124), and warn that the lack oftrained court executives is a drain on the time and energy of trialjudges (p. 120). The court administrator particularly needs a tem-perament to handle situations involving power by facilitating the accomo-dation of conflicting interests (p. 127). A legal education does notprepare a court administrator for his role (pp. 128-29).The repetitions and contradictions in the book stem partly from thejoint authorship and the newly turned academic ground. However,some of the disorganization is a byproduct of the effort to fit material[Vol. 1972:594Washington University Open ScholarshipVol. 1972:594]already published in article form into a crossword puzzle of a book. Thepieces entitled "Constraints and Conflicts in Court Administration" byFriesen and "The Court as a Social Force" by E. Gallas were publishedin the same issue of Public Administration Review (vol. 31, pp. 120-33,March-April 1971) and appear without credit in expanded form aschapters three and eleven. The first five chapters overlap to the pointof extreme irritation.In contrast to the confusion in the opening chapters, the appendiceshave clarity and utility. Appendix C excerpts the rules of the SuperiorCourt of Los Angeles County which apply to the organization of courtbusiness, the structure of internal decision-making, and the office ofcourt executives. Since the fifty state court systems are often strangersto each other because of lack of data collection and channels of com-munication, the printing of this document is a real service to urbancourts throughout the country. Appendix A outlines a research designdeveloped by N. Gallas for the study of the court executive role in LosAngeles County and presents in tabular form the executive's role relationswith public and private actors in the judicial process. This tabular for-mat is presented more effectively than the explication in the body ofthe text.Chapters six through ten, at the heart of the book, vindicate thepublication. They are distinct and well-organized chapters on therelationships, tasks, and techniques of modem court administrators.For the reader new to the field the chapters on case assignment andon automation are detailed and informative. Less concrete but moreimportant is the discussion of judicial responsibility for drawing up thepolicy guidelines for the court and the correlative responsibility of theadministrator to gather data and present alternatives for the judges'consideration. This mutual dependency seems to echo the role relationsof the city manager and the collegial city council. In fact, the authoris indirectly proposing an expansion of the scope of court rule-makingpower to bring consistency to decision-making, inevitably at the expenseof the individual judge's discretion. A prescription which might maketrial judges nervous is that "[t]o dispose of individual cases, all personnelin a judicial system must be coordinated under a team leader-usuallythe judge." (p. 146). The gains in court performance are worth theprice of individual autonomy, from the point of view of a public ad-ministration expert utilizing a welfare economics analysis. Despitetheir insistence that the expert is a servant of the court, who molds his597BOOK REVIEWShttps://openscholarship.wustl.edu/law_lawreview/vol1972/iss3/12598 WASHINGTON UNIVERSITY LAW QUARTERLYrole to fit the peculiar structure and environment of the court he serves,the potential power of such a position is evident. The message of thebook is two-fold: first, that the court as a system must stop payingdeference to the independence of individual judges for the sake ofstrength and unity; secondly, it must resist the countervailing powerof lawyers in the private sphere and of executive and legislative officers ofgovernment. The court executive apparently has the know-how toachieve cohesiveness to the end of the aggrandizement of the judicialbranch.The authors of this book have a very clear perception of the properrole of the judge. He has dual functions "as a decider of controversiesand as a dispenser of social services" (p. 36). The traditional functionof case disposition requires the service of a court manager where thevolume of work is large (some variables useful in gauging the workloadare listed on pp. 120-21). The second task of the courts, to solvesocial problems, demands the coordination by a court manager of thediverse professional staff which supports the judge. Friesen sees thejudge as a "rehabilitator, counselor, conservator, and protector" (p.210). The judge is also concerned with many diverse establishmentswhich render various services. These include prisons, jails, juvenilefacilities, mental health clinics, legal service centers, child care centers,counseling clinics, rest homes, and law enforcement offices. Withoutliaison help from an administrator the judge has no adequate tactic formeeting his responsibility to monitor the impact of every decision.If this social justice function were to be fully implemented, then theincorporation of agencies supporting the court would expand the thirdbranch into a full-blown bureaucracy. The emphasis on the exactequality of the judicial branch to the legislative branch in the role ofdecision-maker may be illustrated by the facing diagram.The diagram shows that the public requires broad statements of publicpolicy from the legislature, which in turn finances general programs andservices for the public welfare through the executive branch. Thepublic requires resolution of particular conflicts from the courts, whichchannel their dispositions through service agents. Some of these agentsare in the judicial branch, such as marriage counsellors in state trialcourts and probation officers in federal district courts. Most of themare in the executive branch or the private sphere, but when the facilitiesare in the executive branch, their transfer to the judicial branch would[Vol. 1972:594Washington University Open ScholarshipVol. 1972:594]iisgI II -j Ii -a sI Ill• IIIa.4C r!I~ 12. H2.Mto Iiw Ifacilitate coordination." Services now provided on a voluntary basis,such as big brothers for delinquents, are likely to come under public reg-ulation and financing, if the historical course of other welfare functions8. Fish, The Politics of Judicial Administration: Transfer of the Federal Proba-tional System, 23 WEST. POL. Q. 769 (1970).BOOK REVIEWShttps://openscholarship.wustl.edu/law_lawreview/vol1972/iss3/12600 WASHINGTON UNIVERSITY LAW QUARTERLYis predictivef The diagram suggests the probable growth of administra-tive services directly controlled by the courts and the channeling of thefinancial support for these agencies through the budget for the thirdbranch. The failure of legislative bodies to perform adequately theirduty to oversee prisons and law enforcement agencies might suggest thetransfer of responsibility for these agencies to the courts. In this pro-jection the position of court administrator would be of prime signifi-cance. The prophecy itself may be self-filling, as newly trained courtadministrators with a social justice mission flex their muscles and employtheir lobbying skills to expand the boundaries of the third branch.BEVERLY BLAIR COOK*TOWARD A RATIONAL POWER POLICY-ENERGY, POLITICS AND POLLU-TION. By Neil Fabricant and Robert M. Hallman. New York: GeorgeBraziller, 1971. Pp. vi, 292. $3.95.In some ways, it is a pity that this volume does not fulfill the promiseof its title. We badly need serious thought about the requisites of arational power policy that would address not only the engineering as-pects of such an enterprise, but also the politics and economics thatwould be necessary to make it feasible. Rather, the writers have cho-sen to make a case against the power industry, the regulatory bodiesand Governor Rockefeller. Since they are spokesmen for the LindsayAdministration, the animus against the Governor was perhaps inevita-ble. Unfortunately, the authors' perspective has given their work theair of a polemic rather than that of a balanced and hence more credibletreatment of the principal issues involved. It is the work of an environ-mental prosecuting attorney rather than a serious effort to see the worldnot in terms of sheep and goats but in terms of cost benefits, trade-offsand compromises between conflicting values. The end result is moral-izing of a tendentious sort, where a more sober recognition of the in-9. Leenhouts, Volunteers in the Lower Courts-The Weak Become Strong, 55AM. JUDICATURE Soc'y . at 239 (1972).* Associate Professor, Department of Political Science, University of Wisconsin-Milwaukee.[Vol. 1972:594Washington University Open Scholarship

Review of “Managing the Courts,” By Ernest C. Friesen, Jr., Edward C. Gallas, and Nesta M. Gallas

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Review of “Managing the Courts,” By Ernest C. Friesen, Jr., Edward C. Gallas, and Nesta M. Gallas

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