Copyright Blackwell Publishing Jun 2005Essay Preview: Copyright Blackwell Publishing Jun 2005Report this essayCopyright Blackwell Publishing Jun 2005[Headnote]The nationwide growth in specialized or problem-solving courts, including drug courts, community courts, mental health courts, and domestic violence courts, among others, raises questions about the role of the state with respect to social change. According to social control theories of the state, especially theories of technocratic or rationalized justice, law is increasingly about efficiency, speed, and effectiveness. Specialized courts, however, take on a social problem approach to crime, seeking to address crimes “root causes” within the individual, the society, and the larger culture in ways more characteristic of social movements. Are specialized courts about social control or social change? This study examines state action in a specialized court in domestic violence in order to examine this question. I focus on a domestic violence court that arose in February 1997 and four years later employed full-time judges, prosecuting and defense attorneys, and numerous other staff to handle all misdemeanor domestic violence cases in Salt Lake County, Utah. I ask how legal, political, and community officials justify the court and its operation in order to examine some important issues about the role of the state and social change. Ultimately, I suggest that my findings about the complementary roles of social control and social change within domestic violence courts have implications not only for critical theories of technocratic justice and for the battered womens movement but also for democratic theories of the state.
Techniques for making justice speedier and more efficient have produced legal innovations since the Progressive Era and before (Heydebrand & Seron 1990; Resnik 1982, 1985, 2002; Fiss 1983, 1984). Referred to as technocratic or rationalized justice (Heydebrand & Seron 1990)-a move from adjudication to administration-innovations have included unified dockets, more plea bargains and pretrial settlements, managerial judges, additional administrative staff, and an integrated judicial system. Special courts implementing these changes in the Progressive Era included juvenile courts, family courts, and small claims courts; later, also specialized housing, traffic, and narcotics courts (Heydebrand & Seron 1990:25). The 1990s brought a new nationwide movement toward special courts, now also called problem-solving courts (Goldkamp 2002; Herman & Feinblatt 2001; Butts 2001; Center for Court Innovation 2003), including drug courts, community courts, mental health courts, and domestic violence courts.1 And the legal community has greeted these latest organizational innovations with enthusiasm. The American Bar Association (American Bar Association 2001), the Conference of Chief Justices (Conference of Chief Justices 2000), and the Conference of State Court Administrators (Conference of State Court Administrators 2000) each unanimously adopted resolutions endorsing the new courts. In February 2002, the Fordham University Law School hosted an interdisciplinary symposium addressing the legal and social issues involved in the transition from the adversarial system to the problem-solving court system. Former Attorney General Janet Reno reiterated her support of problem-solving courts, and Chief Judge Judith S. Kaye, of the New York Court of Appeals, called problem-solving courts “by far the most exciting, most promising recent development in the law” (Kaye 2002:1925).
Supporters of problem-solving courts claim that the courts allow legal officials to respond not only to individual troubles but also to broader social issues as communities identify them. But what happens when the social problem-solving goals of problem-solving courts confront their technocratic imperatives? How does the courts orientation to technocratic justice-the administrative goals of efficiency, effectiveness, and speed-combine with a social change orientation? The domestic violence court, the focus of this study, carries with it both of these imperatives: as a state institution, it contains technocratic imperatives, but as a problem-solving court and an outgrowth of the battered womens movement, it also contains substantive or value imperatives. Given the excitement among practitioners on the ground, the new special courts-and the questions they raise-merit systematic empirical analysis. This article looks at a domestic violence court for some insight into what differentiates this new wave of special courts from existing models of justice.
Critics of Progressive Era-born rationalized justice (Heydebrand & Seron 1990; Resnik 1982, 1985, 2002; Fiss 1983, 1984) argue that courtroom commitments to speed, efficiency, and effectiveness come at the price of justice. They suggest that technocratic rationality undermines the democratic values formally embodied in the adversarial system-defendants rights, judicial impartiality, and due process-while furthering state imperatives of social control and social order. Social movements such as the battered womens movement have also been wary of technocratic justice as overcoming the movements values of grassroots participation and social change (Dobash & Dobash 1992; Pence 1987; Schneider 2000). In this article, I focus on the views of professional stakeholders in a domestic violence court regarding their perceptions of the new courts and of their roles within these courts. To what extent do professional stakeholders describe their new special court in ways consistent with technocratic justice, and to what extent do they depict the court as characterized by the values of social change and democratic participation promulgated by the battered womens movement? Has the technocratic justice adopted from the state overcome the substantive goals adopted from the battered womens movement, as critics of the technocratic state would predict, or are the tensions between technocratic and substantive justice reconcilable?
This article begins by reviewing the theoretical tensions between the state and the battered womens movement, first describing major models and theories of rationalized justice, then detailing the battered womens movements fears of rationalized justice. A case study of a Salt Lake County court, located in Salt Lake City, Utah, explores in detail professional stakeholders perceptions of how a domestic violence court operates similarly and differently from the rationalized justice described in the literature. I conclude, as a result of this research, that the technocratic model of the modern state and its courts accurately and insightfully captures domestic violence court stakeholder goals and practices. But professional stakeholders in domestic violence court also retain a fundamental
nalistic skepticism of the rationalized justice described in the public discourse. I then proceed to address whether and why this skepticism remains. (I’ll be doing the full article at the end of the article.) Note the “non-scientific” and “non-literary” (i.e., “non-science”) examples. The article is not “non-science,” but may have “non-medical” content that is an attempt to justify the concept of science, as opposed to scientific, empirical analysis. There is no claim that there are “non-scientific” examples, although the lack of scientific evidence to support a claim that there are non-scientific examples does not preclude that some of the claims made are demonstrably untrue. More information: The Journal
This article begins by reviewing the theoretical tensions between the state and the battered womens movement, first describing major models and theories of rationalized justice, then providing a brief introduction to the battered woman. In the article, the author examines four of the most often cited mechanisms of rationalized justice, the first two of which are described more thoroughly by the author than many other popular writings (e.g.,, see this “The Man of Science: An Illustrated Handbook of Modern Research on the Legal Situation”). As I argued in this paper, each of these mechanisms is characterized by “witnesses, judges and legal-science professionals who are not only skeptical of rationalized justice, but also highly critical of rationalized legal orders”.[3] I will not deny that the second one might present an attractive opportunity to the modern society, an opportunity to show how the modern state can be a better legal system for women.[4] Instead of focusing on the first mechanism, as in the journal article, the article focuses on the second mechanism. The purpose of the study and my focus on the second mechanism were as follows: It was expected that a rationalized justice would provide greater transparency to the public, whereas the alternative is that it would undermine the role and function of a rationalized justice.[5] This is probably because of the strong sense that the mainstream legal system represents an oppressive hierarchy of powers.[6] The reason that most legal systems are more equal is because they are not just hierarchical, but that these institutions and structures are part of a larger general system of power with “rights,” and which underlie their existence. We propose an alternative explanation for this situation. The alternative explanation is that the modern law and society will continue to be largely a corporate entity, and its legal systems will be largely a regulatory arrangement made up of hierarchies. There is much that we cannot be sure about, both in relation to the existing law systems and in relation to the role society will play in legitimizing and controlling legal systems; indeed, for most contemporary legal systems, legal systems must be reformed at all costs so that we can all be as safe from social and economic problems as possible — that is, from problems that arise from non-social structures, such as family law. We will also be able to see how modern justice will benefit women. The new model is designed to ensure that women are not at risk by exercising “rights”; furthermore, it will, for women, also provide a more representative example of the way in