Educating Judges: Towards Improving Justice : A Survey of Global Practice. Edited Reprint with Updated Research [1 ed.] 9789004279261, 9789004279254

Citation preview

Educating Judges: Towards Improving Justice. A Survey of Global Practice

Nijhoff Classics in International Law VOLUME 4

The titles published in this series are listed at brill.com/ncla



Educating Judges: Towards Improving Justice A Survey of Global Practice Edited Reprint with Updated Research

By

Livingston Armytage

LEIDEN | BOSTON

Cover illustration: Seng Sophea had worked on the Stung Mean Chey rubbish dump in Phnom Penh for three years when photographed in 2006. The royalties of this book are applied to enable her children to attend school. Photograph: © L. Armytage, 2006. Library of Congress Cataloging-in-Publication Data Armytage, Livingston, author. Educating judges : towards improving justice : a survey of global practice / edited reprint with updated research by Livingston Armytage. pages cm -- (Nijhoff Classics in International Law ; 4) Includes bibliographical references and index. ISBN 978-90-04-27925-4 (hardback : alk. paper) -- ISBN 978-90-04-27926-1 (e-book) 1. Judges--Education (Continuing education) 2. Law--Study and teaching. I. Title. K100.A85 2015 340’.0715--dc23 2015016645

issn 2214-2436 isbn 978-90-04-27925-4 (hardback) isbn 978-90-04-27926-1 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

For those who administer justice under challenging circumstances

∵

Contents Foreword xi Acknowledgments xiii Prologue to the Second Edition: 2015 xv 1 Introduction xv 2 Framing Perspective: A Global Overview xvi 3 Original Edition xix 4 Research Methodology xxiv 5 The Data xxv a Significant Recent Developments xxv b Institutional Issues and Challenges xxviii c Trends in Professionalising Practice xxxiii d Evolving Goals, Curricula, Methods and Approaches xxxvi e Building Knowledge – Research and Evaluation xlii f Exchanging Knowledge – Global, Regional Networks xlix g Information Technology – Impact and Applications lii h Official Development Assistance lvi i Globalisation of Judging and Judicial Education lix 6 Conclusions lxii Bibliography to this Prologue lxiv Preface to the Original Edition lxix Foreword to the Original Edition lxxi

PART A The Issue of Need 1 Introduction 3 I Professionalization 4 II Concept of Competence 7 III Quest for Accountability 10 IV History 13 V Outline 21 2 The Need for Judicial Education 23 I Educational Need 24 II Philosophical Debate 29

viii

Contents

3 Judicial Selection 42 I Criteria 43 II Extraneous Considerations 54 III Models of Selection 60 IV Consultation 65 4 Assessment of Need 69 I Methodology and Technique 73 II Empirical Research 78 III Findings in Australia 87 IV Observations 102

PART B Educational Considerations 5 Adult Learning 111 I Application of Adult Learning Theory 112 II How Adults Learn 121 iii Observations for Judicial Educators 135 6 Judges as Learners 137 I Professional Development 139 II The Practice of Judicial Education 152 III Foundations of a Model of Continuing Judicial Learning 158

PART C Effective Program Delivery 7 Frameworks of Policy and Practice 165 i Mission, Goals and Objectives 166 ii Formulation of Policy 169 iii Domain 174 iv Standards 179 v Prescription 181 vi Educational Planning 190

Contents

8 Educational Evaluation 194 i Techniques 195 ii Methodology 207 iii Models 213 iv Practice of Judicial Education 217 v Critique 223 9 Conclusions 228 i Summing Up 228 ii The Challenge Ahead 230 Appendices 233 Bibliography to the Original Edition 238 Subject Index to the Original Edition 249

ix

Foreword The need to promote and develop judicial training is now recognized worldwide. Globalization and the availability of the internet have opened new opportunities before professional educators, enabling an ease of excess to international data and the exchange of knowledge and experiences among judges and educators. Globalization has blurred physical and cultural borders and has contributed to the strengthening of the rule of law and of the different judicial systems. It has made possible the implementation of new developments in the methodology of judicial education within the different domestic systems. Understanding the benefits of learning from each other, sharing the same dilemmas and applying similar solutions led to the establishment of the iojt – The International Organization for Judicial Training. The iojt has a membership of 120 Judicial Training Institutes from 73 countries worldwide. Dr. Livingston Armytage is a distinguished member of the iojt and a permanent contributor to its activity; He serves as the editor of its international journal and as a member of the scientific committee of the organization. He  was the first to write comprehensive and novel compositions about the need of judicial training as prerequisite for the proper operation of the judiciary. Dr. Armytage was one of the “founding fathers” of judicial education in Australia. He is the author of two other books describing the Asia-Pacific and Asian experiences of judicial reform. Being one of the world’s experts in the field of judicial education with high standards of academic excellence and experience has enabled him to produce this excellent manuscript. Educating Judges is one of the major studies in judicial training and certainly the most comprehensive research of the principles, history, methods and predicted developments in the field. It combines practical guidelines and theoretical insights, empirical data and outstanding analysis of the doctrines of judicial education. It is an outcome of a precise and thorough research based on interviews and literature. It sheds light on many crucial issues regarding the education of judicial officers. Since the first edition of the book was published judicial education has developed. From its starting point as a poorly developed and unappreciated field, the necessity of which was in doubt – to a modern sophisticated widely adopted practice which it has become. The current edition describes those changes by presenting empirical data and findings gathered in a global survey of leading judicial educators (in the first part of the book) and renewed descriptions of the original well-articulated insights about judicial training which remained relevant even today (in the second part).

xii

Foreword

The need to promote efficiency in the administration of justice and at the same time safeguard judicial independence poses complicated dilemmas for the judicial educator. The need to offer speedy legal decisions and at the same time ensure the proper application of due process is not an easy task for the judiciary; the author succeeds in this outstanding manuscript to point at desirable solutions. Dr. Armytage makes it clear that although the long established judicial preference was characterized by self-led education, it is now apparent to all that the participation of external professionals is indispensable to the success of judicial education. The book is an essential tool for judicial officers, and judicial educators. It will no doubt stimulate the discussion and develop the understanding of the pedagogic methods as described in this unique comparative research. Eliezer Rivlin, President – The International Organization for Judicial Training Professor of Law, The University of Jerusalem Deputy Chief Justice (retired), Supreme Court of Israel Ombudsman for the Israel Judiciary.

Acknowledgments The author thanks the following experts for generously contributing many valuable insights to this research, including: Adolf Azcuna Gilles Blanchi Edith Van Den Broeck William Brunson Maureen Conner Jeremy Cooper Diane Cowdery Brettel Dawson Alistair Duff Mary-Fran Edwards Charles Ericksen Jeremy Fogel Anne Goldstein Mira Gurarie Rainer Hornung John Hudzik Faqir Hussain Ljiljana Lalovic Eduardo Aldunate Lizana Jessica MacDonald Luis Maezono Kathleen Mahoney Yigal Marzel Janine McIntosh John Meeks Shreekrishna Mulni Muhammad Munir Lundendorj Nanzaddorj Geeta Oberoi Nataliya Petrova John Phillips Wojciech Postulski

Philippine Judicial Academy, Philippines International advisor, France Institut de Formation Judicaire, Belgium National Judicial College, usa jeritt and Michigan State University, usa Judicial College, United Kingdom Judicial Council of California, USA National Judicial Institute, Canada Judicial Institute for Scotland International adviser, usa International advisor, usa Federal Judicial Center, usa International Women Judges Association Federal Judicial Center, usa Deutsche Richterakademie, Germany jeritt and Michigan State University, usa Federal Judicial Academy, Pakistan Courts of Bosnia and Herzegovina Academia Judicial, Chile Judicial Institute for Scotland Academia de la Magistratura, Peru University of Calgary, Canada International Organization for Judicial Training (iojt), Israel Institute of Judicial Studies, New Zealand National Center for State Courts, usa National Judicial Academy, Nepal Punjab Judicial Academy, Pakistan Judicial General Council, Mongolia National Judicial College, India fair Justice Project, usaid, Ukraine Judicial College, United Kingdom European Judicial Training Network, Poland

xiv Regina Sagu Stacie Strong George Thomson Jean-Francois Thony Christy Tull David Vaughn Maria Rai Mendes da Veiga Clifford Wallace Tom Welsh Ruth Windeler

Acknowledgments Centre for Judicial Excellence, Papua New Guinea School of Law, University of Missouri, usa National Judicial Institute, Canada Ecole Nationale de la Magistrature, France Judicial College, Ohio, usa International adviser, usa Escola Nacional de Magistrados, Brazil us Court of Appeals, 9th Circuit, usa Judicial Institute for Scotland Judicial Commission of nsw, Australia.

Prologue to the Second Edition: 2015 1 Introduction Over the past twenty years, judicial education has grown very substantially around the world in both size and sophistication. In 1996 when the first edition of Educating Judges: Towards a New Model of Continuing Judicial Learning was published, this endeavour was in its infancy.1 Much has happened since then. Judicial education has become well established in many countries. It is now recognized as a field of professionalization with a defined role, standard package of activities and an identifiable body of practitioners. Over the past two decades, experience and expertise have been consolidated. Where once some judges saw judicial education as being unnecessary, an oxymoron or even an insult, it is now recognized as an indispensible part of judicial life in both the civil and common law systems of justice. An increasing number of judges and other justice professionals participate routinely in continuing education. While this may not seem radical for some in the civil law tradition, it is a quiet revolution in the common law tradition of judging. The purpose of re-issuing this book is two-fold. It aims to provide new entrants to this important field an opportunity to read the first edition. Much of the content remains as relevant today as when originally published. In particular, this book enables judicial educators to develop a more effective pedagogy by focuses on the learning needs, styles and preferences of judges, and deepening understanding of judges as distinctive learners.2 Additionally, this second edition provides readers with the opportunity to gauge what has happened – or not – in the world of judicial education over the past two decades. It reports on the findings of the first survey ever conducted of leading judicial educators around the globe. These experts represent the diverse spectrum of experience: from well established to new institutes in the civil, common law and sharia traditions of justice. In doing so, it critically examines 1 In this book, I will use the term judicial education principally to describe the process of educating judicial officers, that is, judges (and magistrates) in the common law tradition; and judges and prosecutors in the civil law tradition. Occasionally, the term may extend more generically to judicial branch actors such as court clerks. It does not include either officers of the executive branch or lawyers. 2 The initiative to re-issue this book was first suggested by James Buchanan, senior education specialist, at the Federal Judicial Center, Washington DC., in discussion after a seminar conducted by the author in November 2013. The author gratefully acknowledges this interest which sparked and encouraged the research which is presented in this prologue.

xvi

Prologue to the Second Edition: 2015

the current state of judicial education across a range of issues in order to inform and stimulate critical reflection and continual improvement in this vibrant field. Equally important, this edition challenges judicial educators to sharpen understanding of our purpose in building judicial competence by addressing the question: “competence for what?” I will present two major arguments: first that the vision of judicial education is to help judges to promote justice in ways that are ultimately measurable in improved wellbeing; and second that judicial educators are responsible as leaders to realise this vision. This edition comprises two parts: the first is this Prologue that presents the empirical data gathered from this global survey, spliced with a review of the emerging literature. The second part embodies the original text, unchanged, as published in the first edition. 2

Framing Perspective: A Global Overview

Over the centuries, judges in all societies have undergone some form of education as a part of different traditions of justice, variously through apprenticeship, tutelage or guilds.3 What is distinctive of the present era is the institutionalization of judicial education, which was formally introduced in France with the establishment of what is now called L’Ecole Nationale de la Magistrature (enm) in 1959.4 The United States followed in 1963.5 Since then, and in particular during the last two decades, judicial education has become broadly established across diverse justice systems around the world, and has undergone significant growth.6 This is reflected in the contributions to Judicial Education & Training, the journal of the International Organization for Judicial Training (iojt), which was launched in 2013. The first three issues of this journal included contributions from Australia, Bangladesh, Belgium, Canada, European Judicial Training Network, Finland, Germany, Israel, Mexico, Mongolia, New Zealand, Romania, Scotland, Singapore, Spain, Sweden, Trinidad & Tobago, Vietnam, United Kingdom, and United States among others.7 3 Brundage J, 2008, Medieval Origins of the Legal Profession, University of Chicago Press. 4 Ecole Nationale de la Magistrature, then called Centre National d’Etudes Judiciaires; http:// www.enm-justice.fr/anglais/home.php. 5 The National Judicial College was established in 1963; http://www.judges.org; and the Federal Judicial Academy in 1967; http://www.fjc.gov. 6 Chief Justice of Australia, French R, “Judicial Education – A Global Phenomenon,” iojt, 26 October 2009, Sydney (unpublished); and Wallace C 2014, “Globalisation of Judicial Educa­ tion,” Judicial Education & Training, 2, 13–19. http://www.iojt.org/journal/iojtjournal002.pdf. 7 Judicial Education & Training, the Journal of the iojt.

Prologue To The Second Edition: 2015

xvii

Over the past 20 years, judicial education has grown widely around the world.8 While it is difficult to quantify the full dimensions of this size and growth, what can be said on the basis of available data is that the world of judicial education is characterized by its expansion and diversity. In Europe, for example, the European Parliament estimates the number of judges in Europe to be 82,022.9 The European Commission for the Efficiency of Justice (cepej), collects data on the justice systems of the Council of Europe’s member states, and reports that judicial populations in Europe range from Russia with 33,232 judges to Andorra with just 24 judges.10 cepej quantifies the rate of judges per 100,000 of population at a European average of 21, spanning from 102.4 (Monaco) to 3.1 (Ireland).11 Of these, in 2011, the European Parliament reported that 136,769 judges, prosecutors and court staff had participated in 5,609 training activities each year across that continent.12 In 2012, the European Network of Judicial Training (ejtn), which represents some 160,000 judges, prosecutors and judicial trainers, 8

9 10

11

12

On the basis of best available data, if the European average of 21 judges per 100,000 of popu­lation is accepted as a norm and extrapolated to the world’s population of 7 billion people, then this might suggest a global population of almost 1.5 million judges. There are defensible arguments each way: that this norm may either be too high or too low for estimating the global population. If each underwent five days of continuing judicial education, then the business of judicial education may in due course comprise some 7.5 million training days each year around the world. European Parliament, 2011, Judicial Training in the European Union States; http://www.europarl. europa.eu/RegData/etudes/etudes/join/2011/453198/IPOL-JURI_ET(2011)453198_EN.pdf. cepej collected data from 45 of the 47 member states in 2012: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Republic of Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom; http://www.coe.int/t/ dghl/cooperation/cepej/evaluation/2014/Rapport_2014_en.pdf, 156. cepej 2014, 162. This data raises interpretive issues about who is a judge, and such threshold questions vary from country to country despite major efforts to harmonise – for example, between common law and civil jurisdictions, and between individual countries. It estimated that these providers had a combined annual budget of over € 179 million and spend some € 52 million on providing continuous training. European Parliament, 2011, Judicial Training in the European Union States; http://www.europarl .europa.eu/RegData/etudes/etudes/join/2011/453198/IPOL-JURI_ET(2011)453198_EN.pdf, at page 11.

xviii

Prologue to the Second Edition: 2015

reported that 2,756 participants attended its training activities totaling 17,180 training days.13 In the United States, the National Judicial College estimates that there are some 54,000 federal and state judges. Of these, the Federal Judicial Center estimates there are some 3,600 federal judges (of whom just 850 are “Article 3” tenured judges) as well as 20,000 court officers. The largest state of California provides training for 2,000 judicial officers and 19,000 court employees.14 Elsewhere, in the People’s Republic of China, it is estimated that there are more than 100,000 judges, however defined, who undergo some measures of continuing education.15 Since the mid-1990s, judicial education has been supported across the Pacific through official development assistance in the form of the Pacific Judicial Development Program.16 In Latin America, the Chilean Academia Judicial, which was established in 1994, recently celebrated its twentieth anniversary by hosting a regional colloquium attended by judicial educators from Argentina, Brazil17 and Peru, and other experts from around the world.18 Judicial education is similarly well established in South Asia where the National Judicial Academy of Nepal hosted a regional conference in 2013, attended by representatives from Bangladesh, Bhutan, India,19 Malaysia, the Maldives, Nepal,20 Pakistan,21 and Sri Lanka. Judicial education

13 14 15 16

17

18 19 20

21

ejtn; http://www.ejtn.eu/About-us/. California’s Center for the Judiciary Education Research (cjer) was established in 1994; http://www2.courtinfo.ca.gov/cjer/511.htm. While the source of this data was credible, it was not possible to validate this figure. Efforts to obtain data from prc were fruitless. Training began based at the University of the South Pacific, Fiji, in 1996. pjdp formally commenced as a regional program in 1998 http://www.fedcourt.gov.au/home. Some training is also provided through outreach by the us 9th Circuit (Wallace C). In Brazil, the origins of judicial education began at the state level with the establishment of AJURIS (1962), Edesio Fernandes (1977) and EMES (1985); and at the national level, with the establishment of Escola Nacional de Formacao e Aperfeicoamento de Magistrados (ENFAM) in 2004. http://www.academiajudicial.cl; in relation to Latin America, see Hammergren L 1998, Judicial Training and Justice Reform, usaid. http://pdf.usaid.gov/pdf_docs/pnacd021.pdf. In India, the National Judicial was established in 1993 and has trained over 18,000 federal judges over the past decade in more than 600 activities; http://www.nja.nic.in/the-institution.html. The National Judicial Academy of Nepal was formally established in 2004; http://njane pal.org.np. See also: Bhattarai A, The Nepal Experience, in Armytage L (ed) 2009, Searching for Success in Judicial Reform: Voices from the Asia Pacific Experience, oup, (hereafter: Armytage 2009), 263–294. In Pakistan, the Federal Judicial Academy was established in 1988, and additionally there are now training institutes in each province; http://www.fja.gov.pk/intro.htm.

Prologue To The Second Edition: 2015

xix

is institutionally provided in numerous countries across Asia from Cambodia22 and the Philippines,23 to Mongolia.24 In Africa, judicial education is more recent.25 In terms of the global community of practice, the International Organization for Judicial Training (iojt) has a membership of 120 judicial training organizations from 73 countries.26 It maintains a mailing list of some 200 active ­institutions and individuals. In 2011, 250 delegates from 74 countries attended its biennial conference in Bordeaux.27 As the evidence of the following interviews reveals, much foundational work has been accomplished over the past 20 years – though much still remains to be addressed. 3

Original Edition

When written in the mid-1990s, the first edition of Educating Judges opened with the words: Continuing judicial education is new to the common law tradition of judging. It was first introduced in the United States in 1963 as a means to assist judges to enhance performance. This was followed in Canada, Britain, Australia and New Zealand over the next three decades. The original purpose of Educating Judges was threefold: firstly to document the introduction and establishment of judicial education to the common law tradition; secondly to identify a range of formative issues to be addressed in institutionalising this process, and finally to frame the argument that judicial education was a distinctive professionalising endeavour that should be built on principles of adult learning and continuing professional development. 22

23 24 25

26 27

In Cambodia the Royal School for Judges and Prosecutors was established in 2002, and graduated its first cohort of 55 new judges and prosecutors in 2005, a significant landmark one generation after the genocide. Sathavy Kim and Ly Tayseng in Armytage 2009, 233–255. The Philippines Judicial Academy (philja) was established in 1996; http://philja .judiciary.gov.ph/history.html. In Mongolia, the Judicial General Council has administered a program of judicial education since the mid-1990s. For example, in South Africa, the Justice College was established in 2008; http://www .justice.gov.za/juscol/about.htm; and in Kenya, the Judiciary Training Institute was also established in 2008; http://www.judiciary.go.ke/portal/page/judiciary-training-institute. E Rivlin, 2015, “Introduction,” Educating Judges (this edition). iojt; http://www.iojt.org/index.html.

xx

Prologue to the Second Edition: 2015

At the time, I was working with colleagues on establishing judicial education in Australia.28 Working with the judicial leadership in creating an altogether new program was a fascinating and challenging experience. Each element had to be thoughtfully designed and painstakingly piloted in order to win the endorsement of the judiciary. More than anything else, we had to make a compelling case for change. My earlier professional experience in educating lawyers only partially equipped me for educating judges for whom there was at that time no precedent. So I researched the available literature using all the key words that I could think of: judge, judicial, court, education, training, development and so on. Nothing! While that is certainly no longer the case, at that time it seems as though I had somehow overlooked the literature. But the more I searched, the more apparent the gap in the literature became. This lack of knowledge impelled me to research the key issues in educating judges in order to inform myself as much as anyone else who might be interested. Educating Judges was the first book on judicial education in the world.29 Foremost, it aimed to identify and frame the key issues, structured in three parts to address need, educational considerations and effective program delivery. The opening chapter framed the global context, overviewed the history and growth of judicial education, and presented the argument for judicial professionalisation around notions of competence and accountability.30 I argued that competence was an aggregate of knowledge skills and attitudes required for proficient practice.31 Even then, the growth in judicial education was being described as an “explosion.”32 Chapter Two traversed what was then a controversial philosophic debate over the need to educate judges. Chapter Three considered judicial appointment and its role in setting the threshold for entry to the judiciary and the premise for induction and continuing education. Chapter Four surveyed the methodologies of need assessments and presented the available empirical data from Australia, the United States and elsewhere. The middle part of the original edition of this book then focused on the core educational challenges of understanding and stimulating a meaningful process of continuing learning for judges. The breadth of this educational inquiry 28 29 30 31 32

As Education Director of the Judicial Commission of New South Wales, between 1991–6. As a commercially published monograph; jeritt launched its “monograph series” of handbooks around the same time. I cited with approval: Nicholson RD, 1993, “Judicial Independence and Accountability: Can They Co-exist?” Australian Law Journal, 67, 404–426, 425. Citing with approval Gold N, “Towards Training for Competence,” Journal of Professional Legal Education 1983, 1, 1–11, among others. Sallmann PA, 1993, “Comparative Judicial Education in a Nutshell,” Journal of Judicial Administration, 2, 245–255, 252.

Prologue To The Second Edition: 2015

xxi

captivated me. Chapter Five provided a synthesis of the fascinating domain of adult education, building on the formative work of Knowles33 who laid the foundations for a distinctive approach to facilitating adult learning.34 I argued that the principles of adult learning should lie at the foundations for any program of judicial education. These principles recognize that adult learning is characterized by its autonomy, self-direction, preference to build on personal experience, the need to perceive relevance through immediacy of application, its purposive nature, and its problem-solving orientation.35 From this analysis, I argued that the ­application of learning theory provided a range of useful insights into the process of judicial learning. Specifically, humanist theory is relevant to self-understanding, behaviorism is useful in teaching practical skills, and developmental theory offers insights on intellectual or moral development – all of which are directly relevant to the continuing learning of judges.36 Chapter Six sharpened the educational focus and surveyed the domain of professional development. I applied the work of Houle who argued that professional education is distinctive to adult education and identified the factors that rendered professionals to be distinctive learners. I then analyzed the particular needs, styles and preferences of judges as learners.37 Building on Catlin’s foundational research on judges’ learning preferences, I argued that judicial learning is a complex process, which has characteristics that have direct and important implications for educators. Judges are distinctive learners in a number of ways which arise from (a) the process and criteria of judicial appointment and the nature of tenure; (b) judges’ preferred learning styles and practices; (c) doctrinal constraints of judicial independence and the nature of the judicial role; and (d) judges’ needs and reasons for participating in continuing education.38 I was – and remain – galvanized by Schon’s  research on the question “what makes an exemplary professional?” 33 34 35 36 37

38

Knowles MS, 1980, The Modern Practice Of Adult Education: From Pedagogy to Andragogy, Chicago: Follett. In particular, Chapter 5 referenced the work of Kolb, Cross, Knowles, Houle, Brookfield, Maslow, Tyler, Friere, and Knox among others – see Part B of the original edition for details. Armytage L, 1996, Educating Judges: Towards a New Model of Continuing Learning, Kluwer Law Int., The Hague & Boston (ie. the original edition, hereafter: Armytage 1996). Referencing with approval: Cross KP, Adults as Learners, San Francisco: Jossey-Bass, 1981, 233–4. Houle identifies a range of professionalising characteristics, relating to admission requirements, mastery of special knowledge, and setting of standards and codes of behavior; Houle CO, Continuing Learning in the Professions, San Francisco: Jossey-Bass, 1980, 19–33. Additionally, Chapter 6 referenced the work of Schon, Cervero, Houle, Cross, Gold, Bloom, Catlin, Claxton & Murrell, and Hudzik among others; see Part B of the original edition. Armytage, 1996, 149.

xxii

Prologue to the Second Edition: 2015

His recognition of problem-setting as the vital prelude to problem-solving and his notion of “professional artistry” – we know it when we see it, however hard that excellence may be to articulate in words – which rests on what he describes as “reflection-in-action.”39 Equally enriching was Kolb’s thinking on experiential learning.40 I reflected on how these insights could collectively illuminate this new field of judicial education. I argued that judges as learners are characterized (at least in the common law tradition) by their rigorous autonomy, intense problem-solving orientation, and exceptional motivation to pursue competence for its own sake rather than for promotion or material gain. Those judges who are appointed within a merit system also represent a professional elite possessing extraordinary levels of pre-existing professional competence.41 This research suggested that to promote effective judicial learning, a distinctive model should be developed for judges. That model should be an independent, “judge-led” and individualized process which emphasized “procedural knowledge” – that is, it should focus on promoting knowing how, as much as knowing what.42 The final part focused on effective program delivery. Chapter Seven explored frameworks of policy and practice. It surveyed the international experience and examined the stated mission goals and standards of judicial education. It proposed facilitated learning as a preferred instructional modality for judges, and debated the educational merits of voluntary learning over mandatory training. I argued then – as now – that voluntary schemes place the onus for success on the educational provider to stimulate judges’ learning by being relevant and practical, rather than on the learner by being obligatory. I adapted Tyler’s classic work on planning and curriculum development,43 and built on

39

40

41 42 43

Schon DA, The Reflective Practitioner, New York: Basic Books, 1983 (hereafter: Schon 1983); and Schon DA, Educating the Reflective Practitioner, San Francisco: Jossey-Bass, 1987 (hereafter: Schon 1987). Kolb argued that learning is the process whereby knowledge is created through the transformation of experience; he developed a “Learning Style Inventory” which consists of (a) concrete personal experience; (b) observations and reflection on that experience reworked into (c) abstract concepts and generalisation which are (d) tested in new situations: Kolb DA, 1984, Experiential Learning: Experience As The Source Of Learning And Development, Englewood Cliffs New Jersey: Prentice Hall, 142–5. Armytage 1996, 130. Armytage 1996, 152. Tyler devised a model of education comprising five elements for identifying needs, defining objectives (preferably in behaviourist terms), identifying learning experiences to meet those objectives, organizing learning experiences into a plan with scope and sequence, and evaluating program outcomes in terms of attainment of behaviours

Prologue To The Second Edition: 2015

xxiii

Houle’s work to develop a “cycle of judicial educational practice.”44 In Chapter Eight, I turned to the issue of evaluation. While acknowledging that the assessment of judicial competence and performance is an immensely complex and sensitive task, I argued that evaluation was essential in identifying a causal relationship between educational intervention and enhanced performance outcomes. Using Kirkpatrick’s hierarchy, and endorsing Hudzik’s ground-­ laying work in surveying the practice of judicial education across the United States, I critiqued the prevailing practice of evaluating judicial education as being deficient and of limited utility in either measuring effectiveness through learning gain or providing social accountability through any measurable results.45 The final chapter of the original edition concluded by framing the following challenge: The recent recognition of the need for continuing education by the judiciary itself marks the end of the beginning in terms of the introduction of continuing judicial education, and opens the way to addressing the new challenge of continuing professional development for the judiciary. In essence, this challenge is to consolidate an approach to judicial education which builds on doctrinal imperative and educational principle to focus on the particular learning needs and practices of judges. In addition to facilitating self-directed learning and rigorous self-critique, this approach should promote the art of judging and explore the still largely uncharted domain beyond the boundaries of technical competence. The success of this endeavour will be found in continuing enhancements to the quality of justice. How the judiciary and educators collaborate to embrace this challenge, and what useful lessons may be found within the experience of the civil law tradition of judging, remain to be seen.46 What Has Changed? Some 20 years have passed since writing those words. Hence this second edition of Educating Judges provides a timely opportunity to reflect on what has

44 45

46

specified; Tyler RW, 1949, Basic Principles of Curriculum and Instruction, Chicago: University of Chicago Press. Houle, note 35, above. This hierarchy classifies four levels of evaluation: reaction, learning, performance (transference of behaviour), and organisational /community impact (results). Kirkpatrick DL, Evaluating Training Programs, Madison, Wis.: American Society of Training and Development, 1975. Armytage, 1996, 218.

xxiv

Prologue to the Second Edition: 2015

changed over that period. Data collected from the interviews with judicial educators, which are outlined below, indicates that judicial education has continued to grow substantially, and is now firmly established around the world. It has become institutionalized, with an increasingly imposing paraphernalia of competences, standards, policies and frameworks. Extensive work has been devoted to developing a range of curricula. Networks at the regional and international levels now promote a vibrant exchange of knowledge and experience between similar jurisdictions, and more importantly, between developed and developing jurisdictions, and between civil law and common law systems. Judicial education is also grappling to find the best balance between the efficiencies of it delivery and preserving the social power of peer-based learning. At the same time, it is poised to address the opportunities that globalisation may offer the community of judicial educators. These are substantial achievements. – and What Hasn’t? And yet, much also has not changed: there is still a lack of data and knowledge about what we do as educators; programs are at risk of being routinized with insufficient regard for education theory and principle; there is a startling lack of rigorous evaluation and no systematic process of continuous improvement. We don’t really know what works because we rarely measure; we don’t even try to evaluate education in terms of improved performance. And there is a lack of participation from the academic community in judicial education that on reflection is disturbing, and suggests that the issue of leadership warrants ongoing consideration. There is much to hear and reflect on in the diverse experiences and perceptions of judicial practitioners which are outlined below. It is my hope that these voices provoke critical reflection – however uncomfortable – to spur further inquiry and innovation for the future. 4

Research Methodology

In the following section, I present the findings of empirical research on the state of judicial education around the world. This research was undertaken using three methodologies: a qualitative survey of leading experts in judicial education, web-searches of judicial training institutes and research of the academic literature. This is the first survey of judicial educators who practice around the world, from well established to new institutes in the civil, common and sharia law traditions of justice. While I make no claim that this is a comprehensive

Prologue To The Second Edition: 2015

xxv

census, these informants are broadly representative of the diverse spectrum of experience of judicial educators.47 Consultations were conducted with 42 of the world’s most experienced judicial educators between July and December of 2014. The list of these informants prefaces this work. These experts are presently working in more than 23 countries. The largest cohort of informants comes from the United States and/or Canada (33%), followed by Europe/Middle-East, and Asia/LatinAmerica (each 29%), and “international” or “multi-national” (9%). Most in­­ formants come from developed jurisdictions, though a substantial minority (31%) comes from developing jurisdictions. The gender of the informants was appro­x­ imately even (M:57% and F:43%). The informants either lead national or regional judicial education institutes or manage the education programs within those institutes. Their relevant experience ranges from 40 years to six months, with an average of 15.7 years. Interviews of approximately one hour were conducted remotely (by telephone, Skype or in writing) using a standardized instrument of questions, occasionally using an interpreter. These interviews were conducted on the assurance of anonymity. The research questions were open-ended and solicited informants to share their experience and perceptions on the following issues: significant recent developments in the field of judicial education; major institutional issues and challenges being addressed; trends in professionalizing the practice of judicial education; evolving goals, curricula, methodologies and approaches; building knowledge of pedagogy through systematic research and/or evaluation; exchanging knowledge through global or regional networks; the impact and applications of information technology; use of judicial training in official development assistance; and how globalisation is affecting judging and the education of judges. These consultations provided a rich vein of original data that constitutes the core of this research. Responses were recorded manually. The data gathered has been condensed, and its synthesis is presented below. In addition, research was extended to an analysis of relevant material on the websites of 47

The English-speaking world was best represented in this research, though very active efforts were made to ensure adequate representation from the European region and the Spanish-speaking world. Additionally, active efforts were made to ensure that developing as well as developed jurisdictions were adequately represented. Despite these efforts, the author acknowledges that this research of the global experience was largely confined to English-language speaking judicial educators and also to web-sites which published English-language pages (eg enm). Every effort was made to ensure that the scope of this research was as thorough as reasonably possible though it was not possible to engage with representatives from some jurisdictions (eg prc).

xxvi

Prologue to the Second Edition: 2015

major judicial training institutes and networks around the world, as well as academic databases, where appropriate, which is also presented below. 5

The Data

a Significant Recent Developments When informants were asked to identify the most significant developments in judicial education over the past 20 years, they universally highlighted the establishment and growth of judicial education as a field of endeavour. This growth was measured in both the prevalence of training institutions in most jurisdictions and the increase in the range of training activities that they provide. Simultaneously, they described a transformation in judicial attitudes to the need for continuing education from rejection to acceptance. There is now a uniform recognition that courts and judges accept judicial education and training as being incidental to the judicial role, irrespective of location, tradition or experience. This headline finding is a clear indication of the profound change in the  standing of judicial education. In the mid-1990s, the judicial leadership debated the worthiness of judicial education. Its potential merits started to be recognized.48 Progressive judges championed the virtues of improving judicial competence;49 while conservatives argued that it was unnecessary, inappropriate and possibly insulting.50 That debate has altogether faded out. The notion of judicial education is now universally seen as being incidental to the judicial function. The need for orientation to the bench is recognized as being not just useful but essential for the transition from lawyer (in the common law system) or student (in the civil system) to judge. At the same time, in-service training in updating and up-skilling judges are being increasingly routinized into court management practices. Mandatory orientation training is now virtually the norm, and continuing education is endorsed 48

49 50

While the notion of judicial competence is relatively new, it has been a visible part of the discourse since the 1980s; see, for example: Cavanagh R and Sarat A, 1980, “Thinking about Courts: Toward and Beyond a Jurisprudence of Judicial Competence,” Law & Society Review, 14, 2, 371–420. Burger WE, 1964, School for Judges, Federal Rules Decisions, 33, 139–150; also, Kirby MD, 1983, The Judges, The Boyer Lectures, Sydney: abc, 25–6. Samuels G (formerly a judge of appeal and of New South Wales), 1980, “Judicial Competency: How It Can Be Maintained,” Australian Law Journal, 54, 581–587, 585; Dowsett JA (a justice of the Supreme Court of Queensland), 1991, Judicial Education: Where Are The Emperor’s New Clothes? Brisbane: unpublished conference paper, 2.

Prologue To The Second Edition: 2015

xxvii

and encouraged in many jurisdictions.51 In the United States, continuing education is overwhelmingly mandatory in most states, while in Europe it generally tends to be voluntary.52 Participation in continuing education of between 3–5 days per year is emerging as a de facto global standard.53 Informants commented on the institutionalisation of judicial education by judiciaries around the world. They described an ongoing process of courts formalising their approaches to managing and developing the processes that direct, regulate and administer the delivery of training services. As we have seen, these featured a paraphernalia of “principles” and “standards” of judicial education, “core competencies,” “model curricula,” “frameworks for best practices,” and educational “policies.”54 While the extent of formalised planning varies, many informants remarked that the practice of delivering judicial education is now no longer “ad hoc” and that training activities form a part of a curriculum that aims at promoting designated competencies. Another important development relates to an evolution in the relationship between judicial independence and continuing education. In the past, judicial independence was seen as being sacrosanct – a monolithic doctrinal precept that was rigidly-held and intrinsically insular. While the imperative for judicial independence is now seen as being no less important, informants commented that courts now recognize an instrumental relationship of judicial education: that is, by building competence, judicial education provides a bridge with the community, promoting credibility and public trust in the courts being accountable for their independence. A number of informants extended this observation to remark that the courts have become more outward-looking over the past two decades. In the past, judges conventionally ensured probity by reserving a proper distance from the community in order to avoid any appearance of impropriety. Now the demands of public accountability are more likely to require judges to demonstrate that 51 52

53 54

Mandatory continuing judicial education is the norm in the United States at the state level; jeritt, 2005, Issues and Trends in Judicial Branch Education, 131. Thomas C, 2006, Review of Judicial Training and Education in Other Jurisdictions, Judicial Studies Board, 20. Continuing education was non-mandatory in 78% of jurisdictions surveyed. European Parliament, 2011, Judicial Training in the European Union States; http:// www.europarl.europa.eu/RegData/etudes/etudes/join/2011/453198/IPOL-JURI _ET(2011)453198_EN.pdf, at page 11. Thomas C, 2006, 20. See also: jeritt, 2005, Issues and Trends in Judicial Branch Education. This is a summary of data provided by the informants; it does not purport to provide an inventory of global practices. Examples of the above may be found on the website of a range of institutions including: nasje, jeritt, ejtn, nji among others.

xxviii

Prologue to the Second Edition: 2015

they are in touch with the communities they serve and understand their needs for justice. This trend started in the 1990s in response to public complaints about gender and racial bias, and is embodied in the ascendency of “social context” training in many judicial education programs. More broadly, informants referred to community input in their programming, a previously unheard of practice. Others described judicial education performing a public outreach and engagement function to mitigate the insularity of the judicial role. This more external orientation marks a radical shift over twenty years, when previously bench books and training courses were routinely “strictly confidential.” While judicial education portals may continue to restrict public access, many course catalogues and materials are now readily accessible in the public domain. Indeed, initiatives that promote competence are now seen as  legitimizing mechanisms that garner public trust and confidence in the courts.55 Of course, the world of judicial education is characterized by its diversity. Some caution should be exercised in rendering generalizations. While most informants remarked on these developments, some “older hands” expressed misgivings about a direction and progress of judicial education. These misgivings related to a loss of vision and the slow rate of adaptation to change and improvement. For these informants, there are concerns that a new managerialism of judicial education is replacing the dynamism of earlier inquiry. b Institutional Issues and Challenges When asked about significant current issues in judicial education, informants identified a range of challenges, the most universal of which related to resources, capacity, leadership and identity, and change. 55

At one extreme, in the United States, California’s cjer publically sells “California Judges Benchbook: Civil Proceedings After Trial, 2d” http://legalsolutions.thomsonreuters.com/ law-products/Other/California-Judges-Benchbook-Civil-ProceedingsAfter-Trial -2d/p/100250246. The fjc provides public access to judicial writing manuals, the district court (6th Edition, 2013), and its catalogue of courses for judges: http://www.fjc.gov/ library/fjc_catalog.nsf. In Australia, similarly, the Judicial Commission of New South Wales now displays all its bench books on-line: http://www.judcom.nsw.gov.au/benchbooks. At the other extreme, the Judicial College of England and Wales (formerly Judicial Studies Board which was established in 1979) retains a more conservative approach to the confidentiality of judicial education though it innovative in other respects, formulating a judicial skills and abilities framework comprising judicial skills and abilities as well as leadership and management elements; an E-Learning strategy, and publishing a prospectus and learning management system on-line; http://www.judiciary.gov.uk/wp -content/uploads/JCO/Documents/judicial-college/judicial-college-prospectus -2014-15-v8.pdf.

Prologue To The Second Edition: 2015

xxix

Foremost, informants invariably identified budget-cuts and financial contraction as being the biggest challenge that they confronted. This is not surprising, framed within the context of the “global financial crisis” of 2008, sovereign debt and shrinking public sector budgets. Informants described feeling simultaneously “squeezed” and “stretched” by the phenomena of shrinking resources and increasing demand for services. For some providers of judicial education, budgets have shrunk by as much as 30% in real terms. These contractions have imposed drastic strictures on the provision of education services and are reported by many to be driving the adoption of information technology. While this is occurring in any event, informants reported that financial imperatives are causing many to look to technologybased delivery systems for improved efficiency and value-for-money. Some expressed concerns that financial pressures may trump educational effectiveness in organisational decision-making, which will be discussed in greater detail below. Budgetary contractions have also imposed pressures on the courts to improve their own productivity. This has in turn increased judicial workloads and reduced the availability of judges to participate in educational activities. Some providers reported reductions as high as 45% in participation, obliging them to become more innovative in their programming. Others described a reduction in judges’ participation rates from about 5 to 3 days per year. Evidently, these financial challenges are substantial. They are imposing a heightening focus on improving efficiency, productivity and measurable outcomes. While informants remarked on the marked disjunction between the increasing demands and shrinking resources, none however described this as being a terminal threat to existence. Hence it may be timely to acknowledge the resilience of judicial education funding. In the private sector, times of austerity are usually characterised by the suspension of professional educational services, as being “nice to have but not must-have.” This has not happened to judicial education, perhaps because judges are constitutional office-holders who may be somewhat better insulated from direct cost-cutting. In any event, the overarching trend towards expansion should be seen as being indicative of the sustainability of judicial education as an emerging discipline of professionalising endeavour. Another substantial challenge identified by many providers of judicial education was their own institutional capacity. As one observed: “We need more training ourselves before we can train others!” This challenge exists at two levels: first, as a consequence of shrinking resources, judicial training institutes have experienced endemic staff shortages. Secondly, many were candid about the limits of their own capabilities in terms of experience, know-how, and ability to deliver judicial education effectively. A surprising number of informants

xxx

Prologue to the Second Edition: 2015

reported lacking expertise in Training of Trainers (ToT) and it. These challenges exist most commonly in “developing” or transitional jurisdictions. Here informants often reported struggling to provide the basics of educational programming, such as undertaking training-needs assessment, developing curricula and establishing a faculty of trained trainers. Many remarked on systemic disincentives that confine capacity. These include staffing policies that result in training institutes being perceived as a dead-end for ambitious personnel or the dumping ground for the least able, which are compounded by constant rotation of staff. Others expressed frustration at the imbalance of resources to address the demands that they confront, commenting on the compromises that they are obliged to make when accepting foreign aid, which will be discussed further below. These challenges are by no means confined to developing jurisdictions. Many established institutes in developed jurisdictions also reported difficulty in finding adequately experienced educators. The slow rate of institutional acquisition of expertise should not be seen as surprising, considering the recency of judicial education. What may be more surprising is the lack of lateral transfer from academe or other branches of professional education. While professional educators do populate the world of judicial education, notably in the United States, they remain relatively rare. This may be due to the culture of insularity that has traditionally coexisted with judicial independence, at least until recently. A third substantial challenge arises from the imperative for independence, and it relates to issues of leadership and identity in judicial education. Informants observed that judicial education has many competing masters: the judiciary at large, the community, professional educators, training faculty, justice partners (defenders, interest groups, ngos) – each of whom impose competing expectations and demands on the program and its training agenda. Within this context, informants often remarked on the lack of clear leadership in judicial education to moderate complex and divergent expectations and guide overall direction. As a matter of convention, they reported that chief justices usually chair the executive committee of judicial training institutes, but that academe, the practicing bar or representatives of the community are often not represented on these committees. The selection of professional staff is evidently also relevant to the quality of leadership. Retired judges head some institutes, though this trend may be decreasing. In the United States, there are various paths to becoming a judicial educator – adult educators, social scientists of many kinds, lawyers and sometimes judges; in Europe, the pathway is less easy to describe but often includes civil servants who have practised as judges or prosecutors. Many institutes employ lawyers, who are only rarely formally trained in education.

Prologue To The Second Edition: 2015

xxxi

The nub of the leadership challenge stems from judges not being educators, and consequently being unsure how to provide educational direction. In practice, professional educators are sometimes associated with institutes in an implementation role where they manage the educational quality of activities. But their contribution is rarely at the level of policy decision-making. As a consequence, there is often a gap in the leadership of judicial education. This gap is evident in the scant research, theory or evaluation, which presently characterises global practice, and will be discussed in further detail below. As a consequence of this lack of leadership, some informants observed a lack of any clear theory for judicial education as a field. In other words, it is not really clear what judicial education is ultimately supposed to do. They saw judicial education as lacking any systematic longer-term vision and process of scientific inquiry into what works and what does not. Some informants considered that judicial education was trending towards a coherent professional identity, while for others this progression was neither assured nor completed. They perceived confusion over core issues of leadership and method. Ultimately, this confusion arises from the lack of any clear consensus over the professional identity of judicial educators. They framed a question, which at present remains unanswered: where do judicial educators belong: in justice or education or management, and what is their relationship to the judiciary and academe?56 At present, the relationship between judicial education and academe is not altogether clear. This may be because there are few conventional pathways to the judiciary. In the common law system, with two notable exceptions, there is virtually no structured tradition of judicial studies and formal academic requirements for judging,57 while in the careerist, civil tradition, judges’ schools are generally judicial or bureaucratic establishments.58 Integral to any discussion of leadership, informants routinely intoned the mantra of “judge-led” education. It is not altogether clear what is really meant by “judge-led” education, beyond shared exhortations for judges to actively participate. Clearly, all agreed that judges should train other judges in the 56

57

58

When this question was asked in the us in the 1980s, the answer was criminal justice: jeritt was established as a network for judicial educators attached to the school of criminal justice at the University of Michigan. These exceptions are at Duke University https://law.duke.edu/judicialstudies/judicial studies/, and the University of Reno, Nevada, http://www.judges.org/jsp/index.html, both of which offer Masters and PhD programs for serving judges. These programs may be respectively described as being more scholarly and research-focused at Duke, and more practice-orientated at Reno. For example: enm, note 2 above.

xxxii

Prologue to the Second Edition: 2015

specialist and arcane aspects of judge-craft. But beyond that, some expressed concerns about the danger of judges remaining too insular and impervious to the needs for change. For some informants, the issue of leadership was most problematic when viewed through the lens of “education as reform and change.” For these informants, judicial education is charged with a responsibility to mitigate the insularity that may result from an excess of independence. They see judicial education being concerning to redress the judiciary being unrepresentative, out of touch, even parochial and self-interested in its interests and values.59 For these informants, “judge-led” education is problematic because it embeds the status quo, suspending critical (self)-reflection which educators like Schon see as fundamental to any process of reorienting values.60 Some informants expressed concerns about the intellectual dynamism of judicial education and queried its future vision and sustainability in the absence of external “drivers” and funding for ongoing development. They recalled that in the formative era of judicial education in the United States in the 1970s, this driver was public concern over rising crime rates that directed attention to strengthening law enforcement, corrections and the courts. In the 1980–90s, they recalled another driver of judicial education across many jurisdictions was public outrage at judicial insensitivity to issues of gender and racial equality, and demands for improved access and substantive justice for the poor.61 This explanation of issues-driven demand for judicial education goes some way to explaining the zeitgeist of “promoting the rule of law” after 9/11 and the proliferation of oda-supported judicial training across the “developing” world as an antidote to state failure.62 This raises another as yet unanswerable question: what will drive judicial education into the future?

59

60 61

62

For example, in the 1990s with tensions over gender and racial bias which was a prominent driver of judicial education in the us, uk, Canada and Australia, among other jurisdictions. Schon 1983 and Schon 1987; note 34 above. See, for example: Hecht Schafran L who wrote prolifically on gender bias: 1986, “Educating the Judiciary abour Gender Bias,” Women’s Rights Law Reporter 9, 109; Hecht Schafran L 1989, “Gender Bias in the Courts: an Emerging Focus for Judicial Reform,” Arizona State Law Journal 21, 237; Hecht Schafran L 1995, “Credibility in the Courts: Why is There A  Gender Gap?” Judges Journal, 34, 5. Also, Armytage L, 1995, “Judicial Education on Equality – with particular reference to gender and ethnicity,” The Modern Law Review, 58: 160–186. See also the work of the International Association of Women Judges (iawj). Humphreys, S. 2010, Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice, Cambridge University Press.

Prologue To The Second Edition: 2015

xxxiii

A fourth significant challenge commonly identified by informants was the  extent of change that has beset the field. Over recent years, informants reported that ever-shifting social expectations have engulfed the courts in structural, organizational, substantive and procedural change. Informants reported that new laws and procedures have imposed considerable pressures on the judiciary – and in particular on their training institutes – to constantly be in “catch-up” mode, rather than to lead more strategically. This is reflected in increasing demands for improving substantive justice outcomes and responsiveness – currently relating to domestic and sexual violence, race, diversity, unrepresented litigants and related social justice issues. c Trends in Professionalising Practice When informants were asked to describe trends in the “professionalisation” of judicial education, its meaning was left unspecified in order to allow them to describe the concept as they understood it. They did so in different ways, raising issues that led to some equally complex responses. Invariably, informants associated the process of professionalisation with adult education. They framed responses around a discussion of pedagogy and  on moves towards improving educational effectiveness. They described practice as increasingly conforming to an orthodoxy of adult learning and to adopting adult learning methodologies. Informants used improvement in the participants’ learning as a benchmark, and defined their roles in terms of being managers of a learning process – rather than as being judicial leaders, judges, teachers, academics or researchers. This orientation was generally illustrated by reference to conducting training needs assessments and faculty development. Experienced providers also reported becoming more engaged in developing curricula in a more sequenced delivery strategy.63 They often mentioned an improvement in their structural approach and operational systems, and consistently noted reduction in the “ad hoc” nature of topic selection and program management. Informants universally embraced the importance of adult and professional learning techniques in principle. In practice, however, there was a considerable divergence in terms of the application of adult learning methodologies. Some informants manage an ongoing “training cycle” of assessment-designdelivery-evaluation, and have established faculties of experienced trainers; while others can only plan to do so at some future stage. Quite a number 63

See, for example: Tull C, Appellate Judges Curriculum, and Juvenile Judges: Curriculum at a Glance, Judicial College, Supreme Court of Ohio; and Tull C and O’Connell A, 2012, Future Trends in State Courts: Investment in human capital pays dividends, ncsc.

xxxiv

Prologue to the Second Edition: 2015

acknowledged a continuing lack of formalised needs assessment or educational research, faculty development, curriculum-design or program evaluation. Many reported transitioning from lectures to smaller interactive seminars and more activity-based participatory workshops. However, an analysis of sample courseware indicates a preponderance of formal (didactic) or informal  (socratic, Q&A) lectures characterises many programs, which is indicative  of a  lag between rhetoric and practice in the adoption of educational methodologies. In step with the adoption of adult learning methodologies, informants also often reported on a migration from substance-based “hard” topics (relating to aspects of law or procedure), to skills (for example, decision-making or case management) and values (for example, human rights, social context and gender) and “soft” topics (for example, stress). They tended to describe this migration as being towards the more holistic, and seeking to address the needs of the judge as a person rather than a functionary. Again, an analysis of courseware reveals that this migration is more a rebalancing rather than a redefining characteristic of available offerings. For the most part, global practice remains steadfastly focused on facilitating the transmission of technical knowledge on which skills and values are applied, in operationalizing a reduced concept of Bloom’s taxonomy of knowledge, skills and attitudes.64 While there is evidently some lag in time between new rhetoric driving what is seen as educationally progressive and what is actually still being delivered, informants often commented on what they described as a “culture change” in both the form and content of judicial education. This rhetoric is about becoming more practical, broader in scope, less substantive in focus, more self-directed in application, and more experiential in method. More experienced informants were however candid that most programming remains relatively traditional and could become considerably more interactive in practice. Informants also associated the notion of professionalisation with a dis­ cussion of competence. Some focused on judicial competence while others focused on the competence of judicial educators. Some discussed the

64

Bloom classified educational objectives into knowledge, comprehension, application, analysis, synthesis and evaluation; in the practice of professional development practice, this taxonomy is been appropriated to differentiate training approaches for three domains of learning: cognitive, affective and psychomotor – thi.e., at is, to transfer knowledge, build skills and promote attitudes; Bloom BS, 1956, Taxonomy of Educational Objectives, Longmans, London.

Prologue To The Second Edition: 2015

xxxv

relationship between the educator and the judge, but they generally shied away from discussing how this relationship should be formally measured. The notion of competence is generally recognised as being so core to the best practice of judging that it is specified as one of the six “values of judging” formulated in the Bangalore Principles of Judicial Conduct. These Principles rank competence (and diligence) as highly as independence, impartiality, integrity, propriety and equality.65 The increasing prominence of ethics in many programs is in step with increasing concerns about corruption and to the lack of judiciaries’ immunity to this problem.66 Judicial education has long been associated with promoting judicial competence. But what does that really mean? The concept of a profession generally arises when any trade or occupation transforms itself through “the development of formal qualifications based upon education, apprenticeship, and examinations, the emergence of regulatory bodies with powers to admit and discipline members, and some degree of monopoly rights.”67 The notion of a profession has been described as embodying six criteria that are relevant for ­educators. These relate to having a professional association, a cognitive base, institutionalised training, licensing, work autonomy, colleague control and a code of ethics. Members of a profession are workers who possess a number of special attributes that include a high degree of systematic knowledge; strong community orientation and loyalty; self-regulation; and a system of rewards defined and administered by the community of workers. At the core of any idea of professionalism exists a body of special knowledge that can be taught. Put another way, professionalisation is the establishment of a legitimate domain of knowledge that is monopolized by a body of actors organized into a profession. That profession is then empowered – and responsible – to regulate and credentialise the use of that knowledge, for example, legal advice by the legal profession and medical advice by the medical profession. A study of best practices in the training of judges and prosecutors in Europe in 2014 provides a timely step in the professionalisation of judicial education, at least at the regional level. The aim of that study was to identify examples of “best,” “good” and “promising” practice in the training of judges and prosecutors

65 66

67

Bangalore Principles of Judicial Conduct, 2002; http://www.unrol.org/doc.aspx?d=2328. Transparency International: Global Corruption Report 2007: Corruption and judicial systems, http://www.transparency.org/whatwedo/publication/global_corruption_report _2007_corruption_and_judicial_systems. Magali Sarfatti Larson, 1977, The Rise of Professionalism: a Sociological Analysis, Berkeley, California: University of California Press, 208 onwards.

xxxvi

Prologue to the Second Edition: 2015

across the European Union, using a framework of peer-based appraisal.68 This study surveyed 28 eu member states to make a number of findings, the principal of which was that judicial training for judges and prosecutors is generally in a “healthy state.”69 Significantly, it found little basis for what it described as the “oft-held assumption” that common law and civil justice systems are sufficiently different for there to be little to share between one another in the field of training; sharing experience was most useful in developing judicial skills and exchanging educational methodologies. It offered a number of recommendations promoting interactive “judge-led” participatory education – observing that “judges generally learn best by doing” – and forecast that the emergence of a greater interest in judicial skills and judge-craft training (as compared to substantive laws and procedures) was significant and likely to become of greater importance in the future.70 In relation to evaluation practice, this study found that only a few judicial training institutions referred to evaluation tools and methods that entirely or partially cover Kirkpatrick’s Levels 3 and 4 (behaviour and environment).71 Additionally, very few institutes have introduced or are planning to introduce evaluation systems and methods that aim to assess how much of the new knowledge/know-how acquired throughout the training is used by judges in the longer term, or how it impacts upon the performance of the judicial system more generally.72 Informants’ experiences generally conformed to these findings. At the heart of this issue lies another unanswered question: what is judicial education: is it a profession, a field or an occupation? Other questions spring up around this question: where should judicial education live: is it a satellite of the judiciary, academe or practice? Who should lead judicial education (chief justices, law deans or heads of judicial associations)? Who are its constituents ( judges, clerks, prosecutors, lawyers, others)? These questions may not be reducible to uniform answers; situations vary, and traditions of judging will differentiate how the civil and common law systems address the issue of constituency.73 These questions are fundamentally important, but the evidence of 68 69 70 71 72 73

European Commission 2014, “Study on Best Practices in Training of Judges and Prosecutors”; https://e-justice.europa.eu/content_the_european_judicial_training_policy-121-en.do; 7. ec, 2014, Best Practices, 112. ec, 2014, Best Practices, 113. ec, 2014, 108. ec, 2014, 116. In Pakistan and Nepal, for example, as with other developing jurisdictions, the scarcity of resources often impels an expanded training role to not only to lawyers and prosecutors, but also para-judicials and prison officers.

Prologue To The Second Edition: 2015

xxxvii

practice indicates that they are going largely unanswered at present or, at best, are answered only sporadically and intuitively. d Evolving Goals, Curricula, Methods and Approach Reference has already been made to informants’ experiences in adopting adult learning methodologies when describing their perceptions of professionalising judicial education. Self-identification with and alignment to the field of adult education is clearly on the rise. Informants described this alignment by reference to the systematisation of core competences, educational standards, training principles and most recently the development of curricula. As we have already seen, they have also remarked on a migration from a substancefocused process to one that focuses on the development of skills and attitudes and additionally is more learner-centred. An analysis of the publicly available activities of judicial training institutes around the world reveals what may be described as a “standard package” of offerings in terms of both structure and content. The structure of this package usually differentiates induction (or orientation) from continuing (or in-service) education. A predominance of “in-person” activities (lectures, seminars, workshops) persists, though publications (bench books and manuals) are a significant feature of some more established programs. Most institutes are exploring the application of distance-learning technologies both in terms of “in-person” activities (whether synchronous or asynchronous) and publications. However, there is an extremely marked divergence in their application, which will be discussed further below. In terms of content, analysis of induction training reveals a focus on dispositional aspects of judging (transition, role, outlook and ethics) and core skills (research, case management, decision-making and communication). The content of continuing training is characteristically more adaptive to change and consequently focuses more on substantive updates on new laws and procedures. Continuing training also aims to consolidate judicial skills and provides some opportunities for peer-based problem-solving and the exchange of experience. Over recent years, values-based topics (diversity, fair trial, social context) have increasingly populated some curricula. Altogether, it is evident that judicial training activities remain substancefocused and didactic in many training institutes. Notwithstanding the existence of a lag between the rhetorical (what providers say they do) and action (as indicated by an analysis of their published activities), informants were nonetheless clearly describing fundamental changes in their outlook and approach that can be seen as a significant transitional phenomenon. When asked about the goals and purpose of judicial education, informants consistently remarked that these have remained steadily focused on the

xxxviii

Prologue to the Second Edition: 2015

promotion of judicial competency. This conforms to the so-called competencybased approach that pervaded judicial development during its formative phase in the 1980-90s, and has continued to characterize its self-image. What is Competence? Informants’ discussion of competence was interesting. For most, competence refers to the capability to perform an inventory of key functions to a required standard in terms of knowledge, skills and outlook. Hence it is legitimate to measure the professionalisation of judicial education by identifying “core competences” as training targets, planning curricula to provide the processes for attaining those targets, and expanding focus from knowledge to skills and values. This conventional view of competence aims to support the development of efficient and effective judges – though what that means and how it will be measured remains under-specified. This view sees competence through an essentially occupational lens as being both functional and technocratic – that is, judicial training is concerned with supporting new or existing judges to become more capable of “doing” something – which is usually quite complex: for example, delivering robust decisions or managing busy dockets efficiently. Crucially, however, this view becomes blurred when focusing on Schon’s notion of professional “artistry,” being that exemplary quality of excellence to aim for.74 Moreover it focuses on philosophic aspects of the role of judging or comparativistic assessments of different traditions of jurisprudence by exception only. Interestingly, on further analysis, informants did however express a range of views that go beyond this functionalistic approach to promoting competence. These views are variously more humanistic, holistic and outcome-focused. Firstly, some informants emphasized what may be described as an evolution towards a more humanistic approach. They saw the process of learning as being human-focused, rather than content-focused, in the sense that the proc­ ess to be facilitated is individual and unique. Initiatives in Canada, for example, have started to evolve the notion of competence to acquire a distinctively humanistic dimension. This goes beyond the technocratic requirements of training towards a “social context” – to “see” or “be” something is starting to be  articulated in terms of the well being of either the participating trainees or, even more importantly, the community that they serve.75 More recently, the National Judicial Institute (nji), which was established in 1988, 74 75

Schon, note 34 above. In the 1990s, Canada pioneered a distinctive approach to judicial education that emphasised social justice, specifically gender equality, racial diversity, human rights and in

Prologue To The Second Edition: 2015

xxxix

has consolidated this tradition, to become an exemplar of this form of education.76 This discourse on social context has spread globally,77 and a humanistic conception of competence has increasingly been appropriated to promote higher-level values such as judicial excellence that contribute to public trust in the courts and/or improvement in the quality of justice.78 Other informants reported that they approach the relationship with judges as learners more holistically. They see their role as facilitating the learning of the whole person, and not being confined to professional or technocratic aspects. This approach asserts that a fulfilled learner will perform better as a judge, so the educator’s preoccupation is to facilitate that fulfillment. The implications of either of these approaches are potentially profound in restructuring the educational process from being a group-based transaction to a personalized one, extending its content, for example by satisfying an appreciation for literature that was in vogue in the United States some years ago. A third perspective on the vision and purpose of judicial education is more concerned about the outcome of improving judges’ competence. Informants of this perspective were more interested in addressing the question: more competent for what? While rarely explicitly asked, this is far from a superficial question. One informant, for example, observed: “(n)o doubt judges are now trained to write better decisions – but so what?” This perspective is preoccupied by the

76

77

78

particular the rights of indigenous peoples. See, for example, Mahoney K and Martin S, 1987, Equality and Judicial Neutrality, Carswell, Toronto. nji links judicial education to promoting respect for the rule of law and Canadian Charter values; sustaining mutual understanding in an increasingly diverse world; supporting judicial independence; expanding the pool of knowledge and experience available to judges; which are essential to the effective administration of justice, thereby preserving public confidence in the courts. It has also incubated a stream of intellectual leadership in judicial education promulgating “Ten Principles of Social Context Education,” and “Twenty Principles of Judicial Education.” These guiding principles, which frame judicial education as being a key component to ensuring high standards of judicial performance and support for the rule of law, reflect how the National Judicial Institute conceptualizes and implements judicial education in Canada. They relate to the judicial role, independence, judicial leadership, curriculum development, program design and pedagogy; https://www.nji-inm.ca/nji/inm/a-propos-about/index.cfm. See for example: Goodman S and Louw-Potgieter J, 2012, “A Best Practice Model for the Design, Implementation and Evaluation of Social Context Training for Judicial Officers;” African Journal of Legal Studies 5, 181–197. See also the Judicial College of England and Wales (formerly Judicial Studies Board) “Framework of Judicial Abilities and Qualities”; http://www.judiciary.gov.uk/about-the -judiciary/training-support/judicial-college/; which has been adopted by the Judicial College of Victoria; http://www.judicialcollege.vic.edu.au/judicial-education.

xl

Prologue to the Second Edition: 2015

ultimate purpose of the training; it sees judges as social actors, leaders and reformers, and ascribes a function to judicial education to support those roles. Towards a Shared Vision? The quest for a unifying vision for judicial education is more elusive that might first appear. Obviously, there is a consensus that the purpose of judicial education is to promote competence – being an aggregate of knowledge, skills and values. But the more difficult question remains: competence for what? Without a clear articulation of the answer to this question, judicial education has no unifying goal and in its absence lapses into the pursuit of technocratic proficiency. While the ultimate purpose of judicial education is seldom explicitly articulated beyond homilies of promoting more efficient and effective judges, it is nonetheless evident that the informants do in fact have a range of visions that reveal different purposes. Further analysis of their perceptions reveals a variety of visions for judicial education that range from accountability, to socialization, to reform and change. For example, many see judicial education promoting competence for accountability – to show that the judiciary is concerned with the effective admini­ stration of justice, that is, to protect its professional domain. Others see judicial education promoting competence for socialisation – to build stronger links between the judiciary and the community so that judges understand – and are seen to understand – better the needs of women, indigenous peoples or minorities. Others see judicial education promoting competence for reform and change – to expose the judiciary to ever-shifting needs and expectations that precipitate a process of “judge-led” change in order to improve particular aspects of justice: to become more accessible, more efficient, cheaper and fairer, etc. Various experts have cast judicial education in this reforming role over the past decade, starting in the 1990s by addressing complaints of gender and racial bias.79 The implications of this reformist vision are no less profound: the judicial educator and the judicial learner become responsible to articulate the improvements that judicial education will support and how success will be measured. These visions for judicial education vary according to the conception of competence – whether to promote technocratic competence; to inspire excellence rather than minimum standards; to promote the well-being of either the 79

See earlier reference to Hecht Schafran, note 55 above; also Van den Broeck E, 2014, New Training Vision: the Judicial Training Institute as a driver for reforms in the judiciary, igoifj (Judicial Training Institute) Belgium (hereafter: Van den Broeck 2014); the Judicial Training Institute of Belgium was established in 2009; and Armytage L, 2003, “Judicial Education as an Agent of Leadership and Change,” philja Judicial Journal, 5/15.

Prologue To The Second Edition: 2015

xli

judge or those in the community s/he ultimately serves; to deliver measurable improvements in substantive fairness to victims of sexual assault; or to instill public confidence in the courts. For the most part, in general practice, the diversity of these visions remains under-illuminated, hampering reflection and debate. Yet articulation of these visions is crucial because it affects not only the content of any curriculum but, equally importantly, how success will ultimately be measured. As we shall shortly see, the challenges associated with what some informants describe as a more outcome-based orientation, place  heightened importance on the role of evaluation as a mechanism of ­professional accountability. These challenges remain among the most underaddressed at this time. That said, there is evidently an increasing recognition that to confine the vision of judicial education to the attainment of technical competence is impoverished because this fails to address the real question: competence for what? I have separately argued that: The challenge, which we must confront, is to expand our vision as judicial educators. There are infinite examples of injustices that blight people’s lives (but) … judicial reform efforts which frequently included judicial education and training have too often been blind to these injustices. By realigning judicial education to focus on promoting justice, there is a much greater prospect of it contributing measurable improvement across all aspects of civic wellbeing. This challenge requires the judicial educator to adopt a leadership role in exploring innovative workable relationships between “judicial education” and “justice reform” for the purpose of improving “justice system outcomes” for citizens. While more acute in some developing jurisdictions, this challenge nonetheless exists wherever we may be working.80 As an emerging body of practice, we need a distinctive vision for the continuing education of judges. This vision should build on the principles of adult and professional education to address the justice needs of citizens whom the courts are constitutionally mandated to serve. As judicial educators, we have a challenging but inescapable professional responsibility to look beyond competence to actively promote the quality of justice – that is, to guide and support 80

Armytage L, 2015, “Leadership for Judicial Educators: Vision for Reform,” “Judicial Education & Training” (3: 16–34; http://www.iojt.org/journal/page~journal.html). See also: Armytage L, 2012, Reforming Justice, Cambridge University Press (hereafter: Armytage 2012).

xlii

Prologue to the Second Edition: 2015

the learning of judges towards improving justice procedurally and substantively, however that is to be defined. While it is clear that many share this reforming vision, others may not.81 As we shall shortly see, this question of “competence for what?” has been answered more explicitly in the context of official development assistance, which has appropriated judicial training as a commonly used capacitybuilding strategy. Here the visions or theories that provide purpose to judicial education are more explicitly articulated. Foreign aid has explicitly instrumentalised judicial training for a variety of purposes depending on the context: for example, to promote or restore the rule of law in fragile states; to promote investment confidence in developing economies; to spread and strengthen human rights values in transitional jurisdictions; to promote access and equality before the law in poor and uneven societies; and to improve substantive justice outcomes for victims of crime.82 In order to satisfy funding requirements in the delivery of foreign aid over the past decade, judicial trainers have been obliged to grapple with the manifold philosophic, conceptual and technical challenges of evaluating for results with considerably more rigour than what occurs at present in the field of judicial education. Judicial educators on the domestic scene could benefit from studying this experience more closely. e Building Knowledge – Research and Evaluation Informants were asked to comment on the processes of building knowledge through research or evaluation. Uniformly, they agreed that any formalised processes of building knowledge through research was at best ad hoc, and that evaluation was non-existent beyond Kirkpatrick’s activity and learning levels. For a nascent educational endeavour, these are startling findings, though they are not altogether bleak. A closer inspection reveals a number of initiatives that have contributed foundationally to the building of knowledge in the field of judicial education. First was the work undertaken in the United States through Judicial Education Reference Information and Technology Transfer (jeritt) project. jeritt was based in the School of Criminal Justice at Michigan State University. Particularly prolific during the 1990s, this work was led by John Hudzik, Dennis Catlin and most recently Maureen Conner. jeritt 81

82

See, for example, Van den Broeck E, 2014, New Training Vision: the Judicial Training Institute as a driver for reforms in the judiciary, igo-ifj (Judicial Training Institute) Belgium. “Judicial Education & Training” 3: 35–46. Armytage L, 2012, Reforming Justice, Cambridge University Press, 29–48.

Prologue To The Second Edition: 2015

xliii

incubated and published a number of monographs83 and research bulletins including Issues and Trends in Judicial Branch Education.84 It also maintained a database and professional network for members of the National Association of State Judicial Educators (nasje), which was separately established in 1975. Over the years, nasje has conducted national conferences that continue to provide fora to showcase innovation, exchange experience in the United States and network with judicial educators from farther afield.85 Collectively, the work of jeritt and nasje provided consistently impressive intellectual leadership that consolidated the establishment of judicial education in the common law tradition. This formative contribution has been influential in defining the boundaries of the field by formalising 12 core competences of judicial education; prescribing principles and standards;86 developing curriculum designs;87 and providing a clearing-house for the development 83

jeritt was established in 1989 and has published 13 monographs: 1. Judicial Education Needs Assessment and Program Evaluation; 2. Mentoring in the Judiciary; 3. Education For Development: Principles and Practices In Judicial Education; 4. Curriculum, Program, and Faculty Development: Managing People, Process, and Product; 5. Program Management: Managing Deadlines, Details, Activities, and People; 6. Education for Development: The Voices of Practitioners in the Judiciary; 7. Professional Education and Development of nasje Members; 8. Ability-Based Learning and Judicial Education: An Approach to Ongoing Professional Development; 9. Claiming Status in an Emerging Occupation: A Study of State Judicial Education in America; 10. Courts and Judicial Branch Education: Creating Their Future in the New Millennium; 11. Conducting Impact Evaluation for Judicial Branch Education; 12. Preparing Organizations for Distance Learning Technologies; 13. Developing a Court Leadership and Management Curriculum; and 14. An Evaluation of the Judicial Branch Education Programming Response to Contemporary Court Challenges; http://jeritt.msu.edu/monographs.asp. 84 This series built on survey data to document numerous aspects of judicial education across the United States relating to: personnel, budget and finance, programs and services; organisation and governance; http://jeritt.msu.edu/documents/IssuesandTrends _PDF.pdf. 85 http://news.nasje.org/about/. 86 These principles relate to: need, organisation, career, adult education, faculty, resources, outreach and international judicial branch education; nasje 2001, Principles and Standards of Judicial Branch Education; http://nasje.org/resources/principles.pdf. 87 nasje has published curriculum designs for each of the following 12 competencies: 1. Governance: roles, responsibilities, structures, and functions; 2. Developing and implementing curriculum and program development; 3. Instructional design; 4. Faculty development; 5. Selecting and managing instructional delivery mechanisms; 6. Managing logistical arrangements needed for instructional delivery mechanisms; 7. Building and maintaining support for judicial branch education budgets and resources; 8. Human resources management; 9. Leadership, visioning, organizational planning; 10. Needs

xliv

Prologue to the Second Edition: 2015

and exchange of educational materials. Other organizations, such as the National Center for State Courts, continue to undertake some judicial research though this is less focused on education.88 Over the past decade funding from the State Justice Institute has however dwindled, and the mantle of intellectual leadership has migrated across the Atlantic to the European Judicial Training Network (ejtn) as we shall shortly see. Another stream of knowledge sprang from scholarly research. In the early 1980s, Dennis Catlin started this tradition with his doctoral research on the motivation and incentives of judges to participate in continuing learning.89 In the mid-1990s, I researched the first edition of this book.90 Shortly afterwards, Maureen Conner contributed her research on judicial education claiming status as an emerging occupation.91 Then, in 2010, Charles (Chuck) Ericksen contributed his doctoral case study on judges’ characteristics.92 Most recently in 2013, Geeta Oberoi published her doctorate on creating a judicial discourse.93 To this writer’s knowledge, there are ongoing doctoral research projects on aspects of judicial learning in the United States, United Kingdom and Pakistan at the time of writing.94 This slender but resilient thread of scholarly inquiry offers unquantifiable value to the future professionalisation of endeavour. A third dimension of knowledge arose with the establishment of the International Organization for Judicial Training (iojt) in 2002. The mission of iojt is to support the work of judicial education institutions around the world by facilitating cooperation between institutes; assisting developing countries with the training of judges; and providing members with information about assessment; 11. Evaluation; and 12. Diversity, fairness and access. http://news.nasje.org/ nasje-curriculum-designs/. 88 http://www.ncsc.org/About-us.aspx. 89 Catlin DW, “An Empirical Study of Judges’ Reasons for Participating in Continuing Professional Education,” The Justice System Journal, 7, 2, 1982, 236. 90 Armytage L, 1996, Educating Judges: towards a new model of judicial learning, Kluwer Law Int., The Hague/Boston. 91 Conner, ME. 1999. Claiming Status in an Emerging Occupation: A Study of State Judicial Education in America: jeritt Monograph Nine. East Lansing, mi: jeritt Project. 92 Ericksen CA, Essential Characteristics of an Highly Resilient Judge, ProQuest llc, 2010. 93 Oberoi G, Developing the Judicial Education Discourse, Thomson Reuters, Mumbai, 2013. 94 To this writer’s knowledge, at least three doctoral research projects are currently ongoing in the United States, United Kingdom and Pakistan among other places. See, for example, ongoing doctoral researches presented at the “Judicial Education and the Art of Judging” Symposium, University of Missouri, October 2014; http://law.missouri.edu/csdr/­ symposium/2014/speaker.html.

Prologue To The Second Edition: 2015

xlv

judicial training methods in different countries.95 It conducts biennial international conferences that provide opportunities for judges and judicial educators to discuss issues of common interest, and manages a web-based library of materials on judicial education. In 2013, it launched a journal, Judicial Education and Training, which has published three issues at the time of writing with contributions from around the world. This journal provides a medium for informed discussion, exchange of professional experience and promulgation of knowledge on current issues in judicial education.96 Additionally, there are some contributions to professional journals and newsletters that, while fragmentary, offer some potential to cohere into a ­discernible discourse on judicial education.97 Reference has already been made to the recent European report on best practices in judicial education.98 Professional networks such as jeritt, nasje, iojt and ejtn provide platforms for judicial educators to publish their research and ideas.99 95 http://www.iojt.org/page~aboutus.html. 96 In these issues the articles have showcased innovations in aspects of experience from diverse countries around the world promoting a range of topics including building a learning community of judicial educators; research, curriculum development, evaluation, globalisation and the application of oda. Articles were written by chief justices and senior judges, judicial educators and academic researchers. Contributions for the first three issues of this journal came from Australia, Bangladesh, Belgium, Canada, European Judicial Training Network, Finland, Germany, Israel, Mexico, Mongolia, New Zealand, Romania, Scotland, Singapore, Spain, Sweden, Trinidad & Tobago, Vietnam, United Kingdom, and United States. The writer is the editor of this journal; http://www.iojt.org/journal/page~journal.html. 97 In the United States, there was an initial spike of academic interest in the early 1960s – see, for example: O’Connell K, 1963, “Continuing Legal Education for the Judiciary,” Journal of Legal Education 16, 405–415; Leflar R, 1965, “Continuing Education for Appellate Judges,” Buffalo Law Review, 15, 370; Karlen D, 1966, “Judicial Education” American Bar Association Journal, 52, 11, 1049–1054; Gutman D, 1968, “An Experiment in Judicial Education,” Judicature 52, 366–369. Since then, there has been a steady smattering of articles on judicial education in the literature: Armytage L, 1993, “Need for Continuing Judicial Education,” University of New South Wales Law Journal, 16: 536–584; Claxton C, “Characteristics of Effective Judicial Education Programs,” 1992, Judicature, 76, 11–14; Li P, 1995, “How Our judicial Schools Compare to the Rest of the World”, Judges Journal 34, 17; Schwarzer W, 1995, “The Federal Judicial Center and the Administration of Justice in the Federal Courts,” U.C. Davis Law Review, 28, 1129–1168. 98 Study on best practices in training of judges and prosecutors, undertaken for the European Judicial Training Network (ejtn), 2014: https://e-justice.europa.eu/content_the_euro pean_judicial_training_policy-121-en.do. 99 Open-ended web-searching using “Google-scholar” with various combinations of key words including “judicial” “court” “judge” “education” “training” and “development” will yield an eclectic smattering of relevant results; with further refinement and perseverance

xlvi

Prologue to the Second Edition: 2015

Beyond these initiatives, informants reported what may seem as a surprising under-investment in the systematic creation of knowledge. They described their building of knowledge as an informal process of “learning-by-doing.” This finding is significant – as much as it may be ironic – because it suggests that judicial education is not systematically knowledge-driven as a discipline. This may reflect the practitioner-orientation of most judicial educators who as judges or ­lawyers are performing a service to meet immediate training needs rather than as a­ cademics or theorists building a domain of knowledge for the future. Informants from the civil tradition of judging however provided an illuminating insight in relation to building knowledge. They observed that common law strictures of judicial independence may have resulted in cultural insularity that discourages interdisciplinary cooperation and collaboration, not only with other ­justice service professionals such as prosecutors and lawyers but also with ­academics, thereby impeding the development of research in judicial education. Evaluation On the related issue of the nature and extent of educational evaluation, informants were uniformly monosyllabic: there is “none”; it is a “void.”100 To clarify, this is not to suggest that there is no evaluative activities whatsoever in the “Kirkpatrick” sense of reaction, learning, behavior and results.101 To the contrary, they reported that there is a considerable amount of activity-based evaluation, which is directed mainly at assessing Kirkpatrick’s levels 1 and 2, being participant’s reaction (satisfaction) and learning. Additionally, there are occasional programmatic or organisational evaluations. But, crucially, there is little systematic assessment of behavioral changes in participating judges, and none of impact or results in terms of justice system performance or improved outcomes for beneficiaries.102 this searching may ultimately locate some of the authors already cited though much earlier work precedes electronic cataloguing and remains elusive to all but the most determined interrogators. 100 Other informants described existing evaluation practice as being hopeless, laughable, a joke, a formality, very sad and woeful. 101 Kirkpatrick DL, Evaluating Training Programs, astd, Wis., 1975; also, Donald L. Kirkpatrick DL and Kirkpatrick JD, 2009, Evaluating Training Programs, Berrett-Koehler Publishers; www.bkconnection.com. 102 An impact evaluation was conducted of judicial training in Ohio though the data was confined to assessing impact on participants’ learning rather than on results for court users – ie Kirkpatrick levels 1 and 2, but not 3 and 4; O’Connell A 2011, Impact Evaluation of Judicial College Education for Juvenile Court Judicial Officers, Ohio State University.

Prologue To The Second Edition: 2015

xlvii

For more than 20 years, experts from Hudzik to Conner, Tull and Edwards have critiqued the paucity of evaluating judicial education and advocated the cause for improved evaluation as a means to promote continual improvement in both judicial education and performance.103 Despite this, practice remains characterised by the lack of any systematic evaluation of results.104 It is bizarre that we, as practitioners, have not addressed the question that is key for the financial sustainability of our practice: “Does it work, if so, how?” In a recent review of global practice, Thomas observed that when it comes to judicial appraisal or evaluation schemes for the judiciary, common law countries do not have much to offer in the way of models. Civil law systems, however, where career progression is possible, have more highly developed criteria for assessing judicial performance, especially those of France and Germany.105 In the civil careerist system, judicial inductees can fail to qualify for admission or promotion if they perform poorly on the rigorous and defensible assessment processes and procedures administered by judicial training institutes. She observed that there is no equivalent in the common law tradition where the leadership continues to evade issues of educational evaluation and judicial performance assessment. Interestingly, she identified a potential co-dependency between education and evaluation that has to date gone under-recognized within the common law tradition:

103 Hudzik JK & Wakeley JH, 1981, “Evaluating Court Training Programs,” Judicature, 64, 8, 369–375; and Hudzik JK, 1991, Judicial Education Needs Assessment and Project Evaluation, Lansing, Michigan: Michigan State University; Judicial Education Reference, Information and Technical Transfer Project (jeritt); Conner ME 2002, Conducting Impact Evaluation for Judicial Branch Education, jeritt; Tull C & Goldstein A, 2013, “Judicial Education Program Evaluation,” 6th International Conference on the Training of the Judiciary (unpublished paper); Edwards MF, 2013, “Evaluation of Continuing Judicial Education Programmes,” Judicial Education and Training, 1, 113–122. 104 I have previously argued that the evaluation of judicial education was generally inadequate, inappropriate and of limited utility; to rectify these deficiencies, it proposes a systemic judicial performance model that uses indicators of judicial performance including trial disposal, appellate disposal and complaints to contribute means to assess and demonstrate impact without infringing judicial independence; Armytage L, 1994, “Evaluating the Impact of Judicial Education,” Journal of Judicial Administration, 4: 35–63. 105 Thomas C, 2006, Review of Judicial Training and Education in Other Jurisdictions, Judicial Studies Board, 4.

xlviii

Prologue to the Second Edition: 2015

(A)s public and government demands grow for guarantees of quality standards in the justice system, judicial evaluation is likely to be an increasingly important issue for the judiciary in all jurisdictions. This in turn is only likely to increase both judicial needs and demands for further training and education.106 Informants agreed that any available evaluative data is essentially anecdotal. There is a scarcity of any baseline data or data collection for the purpose of systematic evaluation. They suggested that this lack of reliable data is due in part to the unwillingness of funding bodies to invest in empirical data. Additionally, this deficiency of evaluation arises from acute sensitivities surrounding judicial performance, the lack of consensus on how it can be measured, and concerns about judicial independence that have morphed from the doctrinal to the dogmatic.107 Notwithstanding the legitimacy of these concerns, judicial education will atrophy into enervating routine and static ritual should this deficiency be permitted to persist. The lack of research interest in judicial education is all the more surprising when the role, responsibilities and powers of judging are considered. The importance of judges is substantial in any society. Additionally, they are a ­readily identifiable for research purposes. Yet academic interest in judicial education and development is undeveloped. Why is that? As has been seen, one explanation may be that the common law conception of judicial ­independence – with its culture of separation – keeps other disciplines at a distance. There is no question that judicial ownership of its continuing education is doctrinally fundamental to protect judicial independence, as much as it is important to ensure authenticity. But once it morphs into insularity and shelters the judiciary from any rigorous evaluation of the effectiveness of education on its performance, then it becomes unaccountable. At that point, the notion of “judge-led” education becomes a shibboleth – that is, a sacred cow – that shelters judges from confronting what might be uncomfortable but 106 Thomas C, 2006, 136. 107 For example, Dawson, who is Education Director of the National Judicial Institute of Canada, is discernibly circumspect: “Any form of evaluation must respect judicial independence …. Of the four levels of evaluation posited by Kirkpatrick (1. Reaction; 2. Learning; 3. Behavioural change; and 4. Results or Impact), only Levels 1 and 2 are considered broadly acceptable and achievable in the Canadian context.” Dawson TB, 2014, Twenty Principles of Judicial Education: Annotated, nji. Other experts observe there is no consensus on what constitutes good judicial performance and how it can be measured systematically. Reiling, D., Hammergren, L. and Di Giovanni, A. 2007, Justice Sector Assessments – A Handbook, World Bank, Washington, dc.

Prologue To The Second Edition: 2015

xlix

nonetheless much needed. It then obstructs continual improvement that replenishes vibrant models of professional development. Judge-led: Necessary but Insufficient Clearly, “judge-led” should not only mean what judges want – as distinct from what judges may need in educational terms. In practice, many programs of judicial education already understand this. But this does raise the question: if judge-led education is necessary but not sufficient, who else should assume a leadership role? The answer to this question can only be that there is a pressing need for educators to contribute more actively in the leadership role. Vexing as these issues undoubtedly are, it is unlikely that common law institutes can become any more serious about research and evaluation until some orthodoxy is reached on the doctrinal parameters of independence. Rigorous evaluation will remain suspended so long as judicial education remains sheltered by excessive sensitivities of judicial independence. Training institutes will doubtless persevere to promulgate standards and principles of education, but this will be meaningless without any relationship to the attainment of measurable results in terms of Kirkpatrick’s levels 3 and 4. What is problematic about this deficit of evaluation is that it impedes continuous improvement through critical reflection of experience. If there is no accepted means of ­measuring, and then acting on, the difference between success and failure – whether of judicial learning, its relationship to improving performance or the effectiveness of educational institutions in terms of results however defined – then the existing rhetoric of evaluation will remain just that, and evaluative endeavour of educational practice will remain tokenistic. At present, informants did not know whether judicial training worked because none was measuring its impact on improving performance and promoting wellbeing. The best that they could say is that they hoped it does. This situation must raise concerns for judicial leaders and educators. It means that the field of judicial education will remain unable to measure or demonstrate whether it has attained its stated goal(s) of improving competence, promoting excellence and/or building public trust. So long as this persists, any serious argument to sustain the funding of judicial education is at essence whimsy. f Exchanging Knowledge – Global, Regional Networking Informants supplemented their earlier responses to building knowledge, sometimes significantly, when describing their experiences of exchanging experience through global or regional networks. Evidently, professional networking has and continues to play a significant role in the establishment of judicial education. Informants generally reported finding these networks to be

l

Prologue to the Second Edition: 2015

useful, though some described the exchange of knowledge as being limited, haphazard and spasmodic. Networks exist at the national, regional and international levels. In the United States, reference has already been made to the role and pervasive influence of nasje and jeritt, though curiously informants agreed that there is little crossover between federal and state systems. Some older hands critiqued the quality of these exchanges as having diminished in recent years, while others commented that they were becoming more generic. The situation in Europe is more complicated – at least, for non-Europeans. This is because informants defined “Europe” in different ways: the European Union (eu) comprises 24 states; the European Commission (ec) has 28 member states while the Council of Europe (CoE) has 47 member states. It is also because Europe comprises both civil and common law systems. Within this labyrinth, there are two networks of considerable relevance to judicial educators. Historically, the first was the “Lisbon Network,” which was established in 1995 to promote cooperation and exchange of information in judicial education between the 47 member states of the Council of Europe.108 Since 2011, the activities of this network have been integrated into the European Commission for the Efficiency of Justice (cepej), when it refocused its training on promoting judicial efficiency.109 More recently, the European Judicial Training Network (ejtn) was established in 2000 to promote training and exchange of knowledge within the European judiciary. ejtn works with European Union (eu) national judicial training bodies to coordinate an increasingly formidable catalogue of judicial training activities across Europe – including induction, continuing training and judicial exchanges.110 Thematically, it focuses on training methods, the life cycle of training, institutional leadership and change, and evaluation. ejtn has developed training curricula that aim “at contributing to the development of a genuine European judicial culture based on diversity of legal systems of the member states and unity through European law in different fields of activity.”111 It has also recently published a handbook on 108 http://www.coe.int/t/dghl/cooperation/cepej/Lisbon/default_en.asp. 109 The European Commission for the Efficiency of Justice (cepej) was established in 2002 with the aim to improve the efficiency and functioning of justice in the 47 member states of the Council of Europe; http://www.coe.int/T/dghl/cooperation/cepej/default_en.asp. 110 In 2013, ejtn reported offering 279 training activities attended by 9335 participants; http://www.ejtn.eu/PageFiles/3/EJTN_Annual_Report_2013.pdf. Additionally, it coordinated some 1280 judicial exchanges; http://www.ejtn.eu/Catalogue/Catalogue-2014/ Catalogue-Landingpage-2014/. 111 http://www.ejtn.eu/Resources/EJTN-recommended-training-curricula/.

Prologue To The Second Edition: 2015

li

Training-of-Trainers.112 Informants described this network as being active and useful though tending towards the basic in its offerings. Others observed that useful exchanges between common law and civil systems were confined to educational methodology and to some extent skills, but not to substance. Again, it is curious to observe that interaction between the major networking systems of the us and Europe is virtually non-existent. It seems as though the universe of judicial education is developing for practitioners through parallel but separate hemispheres of endeavour for reasons that are not altogether compelling in the era of globalisation. Farther afield, reference has already been made to regional exchanges in South Asia and Latin America. Additionally, a loose regional network exists in the broader Asia/Pacific region, which has sponsored some useful exchanges of experience.113 Additionally, considerable exchange occurs at the bilateral level between two or more jurisdictions, sometimes on a court-to-court basis.114 As we shall see, official development assistance (oda) routinely brokers twinning arrangements between courts in developed and developing jurisdictions where training and other institutional capacity-building processes are supported. These arrangements are usually though not invariably between “developed” and “developing” jurisdictions.115 In South Asia, for example, the National Judicial Academy of Nepal convened a sub-regional conference of judicial educators in 2012 involving Bangladesh, India, the Maldives, Pakistan and Sri Lanka all of whom share an inheritance of common law jurisprudence and traditions. Other bilateral arrangements exist directly between judicial education institutes.116 At the international level, we have already seen that the iojt directly promotes networking and the exchange of experience through its biennial conferences. It also consolidates a global community of learning in judicial education 112 ejtn, 2014, Handbook on Judicial Training Methodology in Europe; http://www.ejtn.eu/ PageFiles/6343/EJTN_TT_Handbook_Final.pdf. 113 The Asia Pacific Judicial Reform Forum (apjrf) meets periodically and sponsored publication of Searching for Success in Judicial Reform, published by Oxford University Press, and edited by this writer, with financial support of undp. This book case-studied the experiences of Cambodia and Nepal in judicial education. 114 At a court level, the Federal Court of Australia has entered memoranda of understanding with courts in a number of countries including prc and Indonesia, over recent years. 115 See for example, the Commonwealth Judicial Education Institute (cjei) which was established in 1998 in Halifax, Canada, to provide training and networking to an expanding “alumni” of judges from former Commonwealth jurisdictions. 116 For example, the National Judicial Institute of Canada has a formal partnering or “twinning” relationship with the Judicial College of Scotland.

lii

Prologue to the Second Edition: 2015

through its journal, library, website and training activities. Over the past decade, this network has positioned itself in a role of leadership and best practice of sorts, though the significance of this positioning exists mainly in its potential at present. Major questions exist relating to the extent to which experiences can usefully be exchanged at the international level between common law and civil systems, and between developed and developing jurisdictions. If the regional experience of ejtn serves as any guide in terms of traversing differences in the civil and common traditions, then there is much potential for more useful exchange between regions. Certainly, some European informants relied on their experience to observe that ejtn is useful in exchanging experiences relating to educational methodologies and generic skills development irrespective on the common or civil traditions of the justice system. In this event, it seems likely that the iojt will in due course usefully extend such exchanges at the international level.117 g Information Technology – Impact and Applications Some of the biggest and most exciting issues confronting judicial educators exist in the application of information technology which, over the past two decades, has already changed many of the ways in which we work, and promises to transform how judicial education will be organized and delivered in the future. The impact of information technology is manifold and affects everyone. Informants uniformly reported that they are engaged in and grappling with the application of information technology in their daily practices. What distinguished these informants was not whether they practice in the common law or civil traditions, nor whether they operate in developed or developing jurisdictions, but the rate of their adaptation to technological change. Evolving technologies offer a seemingly infinite promise of improving efficiency and expanding the delivery and reach of judicial education services 117 I note that this may be contested; see, for example, Guthrie who argues that the types of curriculum, classroom teaching and teacher education that are appropriate for “developing” country classrooms are increasingly contested. The complexities are illustrated from a regional exchange about “zero pedagogy,” an alleged absence of pedagogical knowledge brought by students to teacher education which is a Eurocentric concept blind to the deep cultural grammar that students and teachers can co-construct in cultures influenced by tradition. The way forward may be methodology that elicits teaching and its improvement as cultural acts that provide a constructive path for the development of authentic teaching styles for Southern classrooms; Guthrie G, 2015, “Culturally-grounded Pedagogy and Research Methodology,” Compare, 45(1): 163–168.

Prologue To The Second Edition: 2015

liii

around the world. They variously promise improved access, timeliness and convenience; and to create a “community of learning” by bridging the distance between metropolitan and remote judges, between judges in one jurisdiction and another, between one time zone and another. These are seductive promises for judicial educators who have long struggled with the logistical problems of scheduling activities around inflexible court rosters. The promise of cutting costs and increasing value-for-money becomes all the more alluring in these times of shrinking budgets. Informants reported on an ever-widening universe of new applications. Some institutes – notably in the United States – have already restructured their delivery systems. They routinely now offer “synchronous” (in real time) and “asynchronous” (on-demand) “webinars” and “webcasts.”118 They conduct a range of “on-line,” “self-study” and “self-pacing” courses that include case studies, exercises and tests undertaken by judges remotely. They communicate using “intranet,” manage databases and publish electronic libraries that judges can download to their I.Pads. They facilitate peer-based learning using “electronic white-boards” and “virtual chat rooms.” Many institutes around the world are exploring “blended learning” applications, which integrate distance with in-person learning in various configurations. The notion of blending is multifaceted: at the modest end, it refers to the electronic publication of mainly static materials; and at the more ambitious end, it refers to web-based learning modules that integrate components of face-to-face interactions with a facilitator and between learners. Some publish catalogues and publications, course registration and “learning management systems” on the web; while others remain content to record and distribute lectures using dvds, flash-drives or even audiotapes. Across Pacific jurisdictions, which are characterized by their smallness dispersion and diversity, recent initiatives have concentrated on publishing web-based “toolkits” across a range of court support activities that supplement class-based training as a strategy to promote local autonomy, reduce dependence on visiting advisers and reallocate delivery costs.119

118 A webinar describes a range of technological applications using the Internet to conduct meetings, lectures, seminars or workshops using computers between different locations. 119 These toolkits include: Judges’ orientation; Producing annual court reports; Developing codes of judicial conduct; Establishing and running national judicial development committees; Conducting family violence and youth justice workshops; Setting time-standards for case management; Promoting access to justice; Trainer’s Toolkit: designing, delivering and evaluating training programs. The writer is team leader of the Pacific Judicial Development Program (pjdp); http://www.fedcourt.gov.au/pjdp/pjdp-toolkits.

liv

Prologue to the Second Edition: 2015

Despite marked differences in the application of remote technologies around the world, most informants acknowledged that they are still experimenting, and reported that they offer only a fraction of activities that are fully remote or largely blended. The standout exceptions to this generalization are in the United States at the National Judicial College in Reno,120 the Federal Judicial Center in Washington dc,121 and the National Center for State Courts in Williamsburg.122 Each of these institutes has confronted the challenge of delivering services across multiple time zones over the past decade or two. They report that up to half their offerings are now on-line, remote or blended. The position in Europe is more mixed: informants from some of the larger jurisdictions report up to a quarter of their offerings can be remotely accessed. Some of the smaller jurisdictions, for example Holland, seem more adaptive than others. Farther afield, it becomes more difficult to generalize beyond observing that developing jurisdictions generally lack the resources to develop it modalities without dedicated foreign assistance to infuse know-how.123 Interestingly, most informants – wherever located – reported that their rate of adaptation was slower than expected. They intimated feeling frustrated by the rate of take-up. Certainly, many of the increasingly conventional “open learning” applications in tertiary education are yet to infiltrate the domain of judicial education. Despite the undisputed allure of information technology, they remarked on two significant factors that affected their rates of adaptation: the preferred learning cultures of judges, and the tension between financial efficiency and educational effectiveness. In relation to the preferred learning cultures of judges, informants reported that many judges are eager “early adapters” to technology; but equally many other judges continue to feel uncomfortable with and suspicious of it – often though not invariably older and more senior members of the judiciary. While older generations of judges will continue to retire in due course, judicial 120 njc was established in 1963 under the chairmanship of Justice Tom Clark and Dean Ernest Friesen, and presently offers 6 web-based courses on: Criminal evidence; Evidence challenges for administrative judges; Handling small claims effectively; Ethics and judging; Rural court judging; Ethics for the administrative law judges (x2); http://www.judges .org/courses/index.html. 121 The fjc was established in 1967; http://www.fjc.gov. 122 ncsc was established in 1971 under the stewardship of Chief Justice Warren Burger, and now publicly offers a number of on-line courses on judicial management and administration and court performance standards (CourTools) in addition to in-person courses; http://www.ncsc.org/Education-and-Careers/ICM-Catalog.aspx. 123 For example, the courts across Mongolia are now fully networked for a range of services including case management and judicial training.

Prologue To The Second Edition: 2015

lv

preferences have evidently not yet swung fully across judiciaries from traditional to electronic media over the past twenty years. This reality requires training institutes to moderate two variables in formulating their technology strategies: the availability of “supply” and the preferences of “demand.” Some informants expressed concern that “supply” rather than “demand” is attempting to drive the pace of adaptation – intimidating rather than exciting some judges from participation. More significantly, however, they reported that planning it strategies was not just about transitioning intergenerational change. The preferences of judges for traditional face-to-face delivery raise more fundamental issues of educational effectiveness. Efficiency versus Effectiveness In relation to the second factor, while informants uniformly embraced the potential of technology-based learning, some observed that there is an institutional tension between the unrelenting financial pressure to improve efficiency and an overarching concern to ensure educational effectiveness. At its essence, this tension relates to discovering the managerial “sweet spot” of optimal value-for-money. Evidently, most institutes around the world are still exploring how best to do this. Most reported satisfactory experiences when transmitting information – for example, asynchronous webcasts of substancebased updates on new laws and procedures. But beyond this application, they reported that webinars have offered limited – if any – educational utility in developing skills or values to date. While most informants were positive about realizing the potential of remote technology, many more experienced educators were cautious about its effectiveness. Their major concern relates to preserving what they described as the “social power” of peer-based or face-to-face learning. Many experienced providers in the United States have found themselves emphasizing the transformational value of peer-based learning, which has special relevance for judges whose daily occupations are essentially solitary and even monastic. These informants reported making the case for preserving face-face delivery on the basis of pedagogic principles. They emphasized the merits of participatory learning, collaborative problem-solving and peer-based exchange of experience as being fundamental preconditions for reflective learning and improved comprehension. In their experience, demonstration and feedback is required in developing skills, which is still best provided face-to-face, and dialogue and debate between peers is indispensible for forming values. Experienced informants also cautioned that there are often an invisible but substantial development costs in designing good courseware, which may have a relatively short shelf life. Once these costs are included, web-based courseware

lvi

Prologue to the Second Edition: 2015

may not really be any cheaper when comparing its relative cost-effectiveness with traditional delivery modalities. Over the past two decades, judicial educators have evidently accumulated considerable experience in applying information technology to the management and delivery of judicial education, as these interviews have shown. Some applications are piloted and functioning smoothly on a day-to-day basis; and these are already available for sharing with other jurisdictions through professional networks. Many others remain under experimentation. While it is clear that new communication technologies will continue to relocate the boundaries and methods of judicial education, it remains to be seen how ‘blended learning’ will continue to evolve. In short, the unrelenting demands for greater efficiency will continue to challenge the domain of in-person learning in the years to come, though it remains to be seen what the optimal delivery modalities will be. h Official Development Assistance Over the past twenty years, judicial training has been very actively supported through foreign aid as a way of reforming justice systems in many parts of the developing world. While niche – comprising about 2 per cent of official development assistance (oda) – support for judicial reform and training has grown very substantially.124 These reforms have ranged from supporting economic investment by building courts’ capacity to protect title and contract, to strengthening institutions of good governance in transitional democracies, to promoting human rights and the rule of law in fragile states. Support for judicial education has grown commensurately as an essential element of justice reform. Donors have aimed to build the capacity of judicial training institutions while, at the same time, providing assistance in terms of training. They have relied heavily on training using a variety of approaches to building capacity which can be classified into five strategies: professional, institutional, organisational, policy and knowledge management.125 This support has been provided multilaterally by development agencies such as the World Bank126 and the United Nations; regionally by development sponsors 124 Armytage L 2012, Reforming Justice: a journey to fairness, Cambridge, 30. 125 Armytage L. 2011, “Judicial Reform in Asia Case Study of adb’s Experience: 1990–2007,” Hague Journal on the Rule of Law, 3, 70–105. 126 The World Bank observes: Judicial independence requires a well trained and educated judiciary. ….(a)lthough some seminars are offered, they are not done so systematically. More recently continuing education is seen as a judicial responsibility and a common element of legal and judicial reform programs; http://go.worldbank.org/FXI46E8C00. See

Prologue To The Second Edition: 2015

lvii

such as the European Union and the Asian Development Bank; and bilaterally by “developed” nations on a country-by-country basis such as Australia,127 Canada, Germany, Japan and the United States.128 In France, L’Ecole National de la Magistrature (enm) has been very active in offering training most commonly to former colonies across the African continent.129 Courts have also participated as providers and recipients of foreign aid. In the United States, the nscs serves both as a provider and clearing-house;130 in Canada, the Judicial Council has proclaimed that participation by a judge in international judicial activities is not incompatible with the judge’s obligation to discharge his or her domestic judicial duties;131 in Australia, the Federal Court manages a substantial judicial development program for fourteen Pacific Island Nations as well as assisting other jurisdictions.132 also: Leroy A-M, 2014, “World Bank Support for Judicial Systems Serving Good Governance,” Judicial Education & Training, 2, 92–98. 127 In Australia, judicial education is primarily administered on a state-basis, for example by the Judicial Commission of New South Wales which was established in 1986 with a judicial complaints investigative function which was supported by education and research, and the Judicial College of Victoria established in 2002. Some training is also administered nationally by the Australian Institute of Judicial Administration (aija) which was established in 1987, and the National Judicial College of Australia (njca) which was ­established in 2002. njca has promulgated a national standard of professional education for judicial officers (Roper C, 2006) – this standard benchmarked 5-days for participation in continuing judicial education each year – and a curriculum (Roper C, 2007). 128 There is a panoply of development agencies and providers specializing in the Rule of Law arena – without any attempt at being comprehensive, the usual players commonly include the United Nations Development Programme (undp), osce, usaid and State Department, etc; as well as specialised providers like cjei, idlo and ingo’s like The Asia Foundation and the International Commission of Jurists (icj). In the Asia Pacific region, the Pacific Judicial Development Program (pjdp), presently funded by the Government of New Zealand, is almost 20 years old. 129 Piana argues that the enm catalogue of courses provided recipients with both a blueprint for reform of their justice systems and a legitimate transnational network to socialize judicial staff; Piana D, 2007, “Unpacking Policy Transfer, Discovering Actors: The French Model of Judicial Education between Enlargement and Judicial Cooperation in the eu,” ProQuest. 130 http://www.ncscinternational.org. 131 Canadian Judicial Council, Policy on International Judicial Activities, http://www.cjc-ccm .gc.ca/cmslib/general/news_pub_other_PolicyIJA_2007_en.pdf. 132 The Federal Court of Australia manages the Pacific Judicial Development Program for 14 Pacific Island Nations, and also provides extensive judicial development assistance to developing jurisdictions in the region, including Indonesia, Vietnam, Vanuatu and png; http://www.fedcourt.gov.au/about/international-programs. The Judicial Commission of

lviii

Prologue to the Second Edition: 2015

Informants from both developed and developing jurisdictions had par­ ticipated in foreign-aid-supported projects, though their perspectives varied, sometimes dramatically.133 Recipients in developing jurisdictions uniformly – and perhaps dutifully – appreciated support for judicial training, which might otherwise not be available. They reported that donors supported projects that provided technical assistance for the four key spokes of Tyler’s “training cycle,” that is: conducting training needs assessments, program design, training-oftrainers, and evaluation.134 These projects usually included Trainingthe-Trainer (ToT) in presentation skills; study tours; training on judicial independence, fair trial, ethics and aspects of human rights; and workshops on delay reduction, money-laundering, drug enforcement or terrorism. Some reported major improvements in institutional capacity through the provision of technical assistance. For example, with the support of multiple donors, the National School of Judges of Ukraine, which was established in 2010, has formulated a strategic development plan that articulates its mission vision and values, growth priorities and goals, together with an inventory of professional competences and personal qualities for selection and training purposes.135 These benefits were not without qualification however. Informants from both developed and developing jurisdictions expressed misgivings about the appropriation of judicial education by foreign aid. Some saw this relationship as being neo-colonial and condescending, expressing concerns about problematic “legal transplants,” which are well documented in the literature.136

133

134 135

136

nsw also provides some assistance; the National Judicial College of Australia coordinates training of and by other courts. While there is no established convention for the designation of “developed” and “developing” countries, this generally refers in practice to the ranking of countries by the un’s Human Development Index which is a statistical measure that gauges a country’s level of human development. While there is a strong correlation between having a high hdi score and a prosperous economy, the hdi also takes account of other factors such as education and health opportunities. The hdi ranks the world’s 187 countries into quartiles: “very highly human development,” “high human development,” “medium human development” and “low human development.” This classification is seen as being contentious by some; other rankings exist. http://hdr.undp.org/en/content/table-1-human-development-index-and -its-components. See note 41 above. Judicial training in the Ukraine has been supported by numerous donors including the Council of Europe, the American Bar Association Central European and Eurasian Law Initiative (aba-ceeli) and usaid, and the Canadian Government (cida). The development legacies of “legal transplantation” have been assessed ­econometrically – see for example: La Porta, R., Lopez-de-Silanes, F., Shleifer, A. and Vishny, R. 1998, “Law and Finance,” Journal of Political Economy, 106, 6: 1113–55. For a critique of this discourse,

Prologue To The Second Edition: 2015

lix

Others experienced difficulties in coordinating the competing agendas of donors, which are likewise well documented.137 Some expressed exasperation at the constant diversion of having to “chase the money”; the piece-meal and fragmented nature of much foreign aid; and the allocation of assistance in directions not of their choosing but beyond their control. These misgivings generally arose from the instrumentalisation of judicial training to address the imperatives of foreign policy. While recipients agreed that foreign aid is often indispensible, there is an associated risk of their agendas being “highjacked.” They asked “whose agenda is it?,” when donors supported pre-selected issues without regard to local training needs and conditions. Recipients often reported that donors transplanted “western” or “northern” agendas relating to human rights, social context and/or gender equality at the expense of what was locally perceived to be more pressing needs like infrastructure, equipment, train-the-trainer and basic training in aspects of criminal law and court procedure.138 These concerns had increased after 9/11 with western preoccupations about “failing states” when support for “law and order” (ie. policing) had spiraled as part of “the war on terror,” at the expense of support for “law and justice” (ie. courts). Interestingly, informants who had delivered these trainings often shared the same misgivings. One provider remarked “(d)onors love training, but we’re doing a terrible job!” Others reported that donors held unrealistic expectations of training, but endeavoured to do the best possible job within the constraints imposed by difficult operating conditions and truncated timelines. They expressed concerns about the lack of international best practices or proven methodologies, the shortage of time to make a visible difference, and the evaluative challenges of demonstrating sustainable results. Many of these concerns are in fact characteristic of official development assistance at large.139 In 2005, the international community of donors under the coordination of the Organization for Economic Cooperation & Develop­ ment (oecd) formulated what has become known as the “Paris Principles” to address these and associated concerns relating to improving the coordination,

see, for example: Berkowitz, D., Pistor, K. and Richard, J. 2003, “The Transplant Effect,” American Journal of Comparative Law, 51: 163–90. 137 See, for example, Bhattarai A, “The Nepal Experience,” in Armytage 2009, 263–294; and Sathavy K and Ly Tayseng, “The Cambodian Experience,” in Armytage 2009, 233–255. 138 There is an extensive critique of “transplantation” in oda – for an overview of this and “the legal origins” debate, see Armytage L 2012, Reforming Justice, 112–113. 139 Armytage L, 2009, Searching for Success: Voices from the Asia Pacific Experience, oup, 30.

lx

Prologue to the Second Edition: 2015

effectiveness and sustainability of foreign aid.140 But until agreement is reached on how to evaluate the impact of judicial training, it will remain unclear how successful this endeavour will be seen to be. i Globalisation of Judging & Judicial Education Oddly, while all informants readily acknowledged that globalisation is a phenomenon that has transformed markets over the past 20 years, it was not immediately clear to many whether this is a useful conceptual lens for judicial educators. Many informants intuitively see law as being a domestic mechanism that casts judges as state-based actors who administer justice locally. Hence they confined their visions for judicial education within the provincial domain. For them, the issue of globalisation was esoteric, raising more questions than answers. Some had difficulty offering comments that went beyond any earlier discussion of networking. Yet traditional concepts of domestic law are increasingly at odds with the reality that international law has burgeoned over the past 50 years. Globalizing trade and commerce have driven much of this expansion in the private domain. Yet this expansion is as equally marked in the public domain in areas of criminal, humanitarian and human rights law, each of which has established legitimate, robust and vibrant bodies of jurisprudence since the Second World War. The proliferation of both international and regional treaties and tribunals has transformed both the instruments of law and arenas of justice. More recently over the past 20 years, there can be little argument that globalisation has changed the world we live in, obliging both lawmakers and judges to expand their horizons and capabilities. Framed in this context, informants were more comfortable to describe the impact of globalisation in terms of the need for judicial training to address matters of super- or supra-national law: for example, cross-border crime, money-laundering, financing terrorism, commercial arbitration, human rights, refugees, the Hague Convention on foreign adoptions and the trafficking of people, drugs or money are now all a routine part of many judicial training curricula. In some de facto ways, the practice of judicial education has already recognized the notion of judicial globalisation. Informants broadly acknowledged the multi-directional benefits of study tours and judicial exchanges between 140 The Paris Declaration highlighted 5 key challenges to be addressed in improving development effectiveness: ownership, alignment, harmonization, managing for results and mutual accountability; http://www.oecd.org/dac/effectiveness/34428351.pdf.

Prologue To The Second Edition: 2015

lxi

jurisdictions because of – rather than in spite of – the diversity of their experiences. In Europe, the experience of ejtn suggests that judges share a body of core skills, including research, decision-making, communication, case management and the like. While legal comparativism might be seen as too academic to satisfy the workaday needs of busy trial judges, it is clear that many already look beyond domestic jurisprudence for legal authority. Judges in superior courts in particular increasingly refer to global or transnational legal norms when addressing novel or difficult questions. Indeed, a glance at the curricula of the ejtn showcases the increasingly routine nature of this reality.141 Some jurists go farther to argue that international norms of justice now transcend national borders. Slaughter, for example, argues that “judges are globalizing.”142 Globalisation – and to a lesser extent regionalization – p ­ rovides a new lens through which to contemplate judicial activities in the 21st Century. The International Framework of Judicial Excellence (ifce), and European Commission for the Efficiency of Justice (cepej) both reflect this reality. More specifically in relation to judicial education, Wallace argues that the rule of law and the concept of justice are fundamental principles that are applicable worldwide. He argues that the principles of judicial education are generic and apply equally to all judicial systems no matter the size or type of the underlying legal system.143 Some informants see globalisation as driving educators to go beyond the contemplation of how to exchange courseware on shared substantive law and core judicial skills. They see judicial education as performing a legitimate and essential role in challenging the parochialism of what one described as “old white men’s values.” Doubtless less provocatively, another observed that “we have much to learn from each other.” Whether we’re comfortable or not, the notion of globalisation has been pervasive in reshaping traditional local concepts of law and justice. It’s now time for judicial educators to acknowledge that globalisation is changing not only the practice of judging, creating a range of new training needs to address, but also our own roles and methods. Globalisation presents judicial educators with major new opportunities to contribute leadership through a vibrant 141 http://www.ejtn.eu/PageFiles/9777/2015_calendar_%20training_activities_Final.pdf. 142 Slaughter AM, 2000, “Judicial Globalization,” Virginia Journal of International Law, 40, 1103–1124. 143 Wallace C, 1999, “Judicial Education and Training in Asia and the Pacific,” Michigan Journal of International Law 21, 849–865; and Wallace C, 2003, “Globalization of Judicial Education,” Yale Journal of International Law, 28, 355–364, 364.

lxii

Prologue to the Second Edition: 2015

international community of practice. It is no longer either adequate or accurate to claim that justice is local. Notions of justice are evolving profoundly into international norms in step with globalisation and related forces. This evolution has fundamental implications for judicial educators in terms of the goals, content and results of our endeavour. We must now explore, discuss and debate these implications directly and with deliberation as a way of guiding the process. Addressing this challenge may be novel, but it is far from esoteric or idealistic. Now that judicial education is established, resilient and sustainable, it is altogether time for judicial educators to start addressing our ultimate challenge: this is to contribute educational leadership in promoting a more just world. It is now time to contemplate what that means. 6 Conclusions The data from this survey of judicial educators around the world illuminates many topical issues and provides a wealth of new insights on the global practice of judicial education. While considerable diversity characterises this body of experience, a number of unifying themes emerge, which present a mixed bag of achievements, opportunities and challenges to address. First, it is timely to acknowledge the many achievements in judicial education over the past 20 years. Most significant, these achievements highlight the establishment, growth and institutionalisation of this endeavour. Informants confirm that continuing education is now universally seen as being necessary and incidental to the role of judging. Moreover this nascent endeavour has been remarkably resilient even in times of pronounced austerity. In effect, it’s here to stay. Evidently considerable energy has been devoted to laying the foundations of judicial education by formalizing the competences of judging, defining principles and setting standards, and adopting educational methodologies. Increasingly routinely, institutes are establishing faculties of judges who are experienced in training other judges. Equally significant, training agendas are evolving from ad hoc lectures on substantive law and procedure into programs that integrate developing skills, attitudes and values in more holistic curricula. Information technology is already improving the way judicial education is managed and delivered. Simultaneously, educators are building vibrant communities of practice for the exchange of experience at the regional and international levels. These are substantial achievements in establishing a global

Prologue To The Second Edition: 2015

lxiii

practice of judicial education, which opens the way for the next phase of professionalisation. Second, it is evident from the data that a number of current opportunities still remain to be fully addressed. Prominent among these, judicial educators are actively collaborating with technologists to extend experience, experiment and refine delivery of “blended” learning applications into effective modalities for judicial development. At the same time, we are starting to explore meaningful ways of sharing experience between different traditions of justice, notably in Europe. In doing so, we are introducing notions of international best practice that will then more usefully transfer technical assistance between developed and developing jurisdictions. How we address these formative challenges in the years immediate ahead will define the nature of future endeavour. Rather than lamenting a slackening of intellectual vigour over recent years, as some have, it’s fairer to observe that progress has been slower than was expected. Much still remains to be done. Third, equally evident, a number of unmet challenges remain to be addressed for the mastery of this practice. While it is clear that various aspects of judicial education have been systematised over recent years, there is a lack of clarity in the vision or ultimate purpose of this endeavour. Informants had difficulty articulating what specifically they aimed to achieve beyond intoning wellworn mantras on building competence and familiar homilies about “judge-led” participatory learning. While some practitioners are animated by a passion for inquiry and improvement, others seem incurious about the needs of judges as distinctive learners and how this affects our practice. Much of what is done remains intuitive: yes, we are “learning by doing,” and doubtless we are doing our best. But we invest in building our knowledge erratically and work with scant empirical data. It is disconcerting that as practitioners we are busy working without any guiding theory to provide our direction. Simultaneously, we operate in a silo of judicial independence that tends to insulate experience from parallel disciplines of professional education. Moreover, we make no serious efforts to evaluate the impact of our efforts – not only on judges as learners but also on the communities that they serve. These are unsettling observations of an nascent endeavour that aspires to build professionalism. Why is This, and What Should We be Doing about It? The answer is to be found in our fundamental need for a new model of leadership. As professional educators, we are confronting the risk that doctrinal insistence on “judge-led” education as the means of consolidating independence will become a shibboleth that constraints the vibrant promise of judicial

lxiv

Prologue to the Second Edition: 2015

education. There is now a pressing need for judicial educators to more actively support chief justices by contributing as educators in the leadership role – whether as practitioners or academics. The collaboration of educators will enliven judicial education to attain its potential. We need more collaborative leadership to clarify our vision of what goals judicial education should ultimately aim to achieve; we need leadership to research and use proven methodologies that promote meaningful learning; and we need leadership to rigorously evaluate our endeavours to assess their measurable impact not only on judicial performance but also its demonstrable contribution to a more just society. Addressing these challenges will transform the practice of judicial education in the years ahead. *** Bibliography to this Prologue Armytage L, 1993, “Need for Continuing Judicial Education,” University of New South Wales Law Journal, 16: 536–584. Armytage L, 1994, “Evaluating the Impact of Judicial Education,” Journal of Judicial Administration, 4: 35–63. Armytage L, 1995, “Judicial Education on Equality – with Particular Reference to Gender and Ethnicity,” The Modern Law Review, 58: 160–186. Armytage L, 1996, Educating Judges: Towards a New Model of Continuing Learning, Kluwer Law International, Boston/The Hague. Armytage L, 2003, “Judicial Education as an Agent of Leadership and Change,” PHILJA Judicial Journal, Manila, 5/15. Armytage L, (ed.), 2009, Searching for Success in Judicial Reform: Voices from the Asia Pacific Experience, Oxford University Press. Armytage L, 2011, “Judicial Reform in Asia Case Study of ADB’s Experience: 1990–2007,” Hague Journal on the Rule of Law, 3: 70–105. Armytage L, 2012, Reforming Justice: a Journey to Fairness in Asia, Cambridge University Press. Armytage L, 2015, “Leadership for Judicial Educators: Vision for Reform,” Judicial Education & Training, 3: 16–34. Armytage L, 2015, “Judicial Education: where to from here?” Journal of Dispute Resolution (in-press). Bangalore Principles of Judicial Conduct, 2002; http://www.unrol.org/doc.aspx?d=2328. Berkowitz D, Pistor K and Richard J, 2003, “The Transplant Effect,” American Journal of Comparative Law, 51: 163–90.

Prologue To The Second Edition: 2015

lxv

Bhattarai A, “The Nepal Experience (of Judicial Education),” in Armytage 2009, 263–294. Bloom BS, 1956, Taxonomy of Educational Objectives, Longmans, London. Brundage J, 2008, Medieval Origins of the Legal Profession, University of Chicago Press. Burger WE, 1964, School for Judges, Federal Rules Decisions, 33: 139–150. Canadian Judicial Council, Policy on International Judicial Activities, http://www .cjc-ccm.gc.ca/cmslib/general/news_pub_other_PolicyIJA_2007_en.pdf. Catlin DW, 1982, “An Empirical Study of Judges’ Reasons for Participating in Continuing Professional Education,” The Justice System Journal, 7: (2), 236. Cavanagh R and Sarat A, 1980, “Thinking about Courts: Toward and Beyond a Jurisprudence of Judicial Competence,” Law & Society Review, 14: (2), 371–420. Claxton C, 1992, “Characteristics of Effective Judicial Education Programs,” Judicature, 76: 11–14. Conner ME, 1999, Claiming Status in an Emerging Occupation: A Study of State Judicial Education in America: JERITT Monograph Nine, JERITT, Michigan. Conner ME, 2002, Conducting Impact Evaluation for Judicial Branch Education, JERITT, Michigan. Cross KP, 1981, Adults as Learners, Jossey-Bass, San Francisco. Dawson TB, 2014, Twenty Principles of Judicial Education, National Judicial Institute, Ottawa. Dowsett JA, 1991, Judicial Education: Where Are The Emperor’s New Clothes? Brisbane, unpublished paper. Edwards MF, 2013, “Evaluation of Continuing Judicial Education Programmes,” Judicial Education and Training, 1: 113–122. Ericksen CA, 2010, Essential Characteristics of an Highly Resilient Judge, ProQuest. European Commission for the Efficiency of Justice (CEPEJ), “European Judicial Systems – Edition 2014 (2012 data): Efficiency and Quality of Justice,” Council of Europe, http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp. European Judicial Training Network (EJTN), 2013, Annual Report; http://www.ejtn.eu/ PageFiles/3/EJTN_Annual_Report_2013.pdf. European Judicial Training Network (EJTN), 2014, Handbook on Judicial Training Methodology in Europe; http://www.ejtn.eu/PageFiles/6343/EJTN_TT_Handbook _Final.pdf European Judicial Training Network (EJTN), 2014, Study on Best Practices in Training of  Judges and Prosecutors”, European Commission; https://e-justice.europa.eu/­ content_the_european_judicial_training_policy-121-en.do. European Parliament, 2011, Judicial Training in the European Union States; http://www .europarl.europa.eu/RegData/etudes/etudes/join/2011/453198/IPOL-JURI _ET(2011)453198_EN.pdf. Federal Court of Australia, Pacific Judicial Development Program (PJDP); http://www .fedcourt.gov.au/about/international-programs.

lxvi

Prologue to the Second Edition: 2015

Federal Court of Australia, PJDP Toolkits; http://www.fedcourt.gov.au/pjdp/pjdp-toolkits. French R, 2009, “Judicial Education – A Global Phenomenon,” 4th International Conference on the Training of the Judiciary IOJT, Sydney, unpublished paper. Gold N, 1983, “Towards Training for Competence,” Journal of Professional Legal Education, 1: 1–11. Goodman S and Louw-Potgieter J, 2012, “A Best Practice Model for the Design, Implementation and Evaluation of Social Context Training for Judicial Officers,” African Journal of Legal Studies, 5: 181–197. Guthrie G, 2015, “Culturally-grounded Pedagogy and Research Methodology,” Compare, 45(1): 163–168. Gutman D, 1968, “An Experiment in Judicial Education,” Judicature, 52: 366–369. Hammergren L, 1998, Judicial Training and Justice Reform, USAID; http://pdf.usaid.gov/ pdf_docs/pnacd021.pdf. Hecht Schafran L, 1986, “Educating the Judiciary about Gender Bias,” Women’s Rights Law Reporter, 9: 109. Hecht Schafran L, 1989, “Gender Bias in the Courts: an Emerging Focus for Judicial Reform,” Arizona State Law Journal 21: 237. Hecht Schafran L, 1995, “Credibility in the Courts: Why is There A Gender Gap?” Judges Journal, 34: 5. Houle CO, 1980, Continuing Learning in the Professions, San Francisco: Jossey-Bass, San Francisco. Hudzik JK & Wakeley JH, 1981, “Evaluating Court Training Programs,” Judicature, 64: 8, 369–375. Hudzik JK, 1991, Judicial Education Needs Assessment and Project Evaluation, JERITT, Michigan. Humphreys S, 2010, Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice, Cambridge University Press. International Organisation for Judicial Training (iojt); http://www.iojt.org. Judicial College of England and Wales (formerly Judicial Studies Board) “Framework of Judicial Abilities and Qualities”; http://www.judiciary.gov.uk/about-the-judiciary/ training-support/judicial-college/. Judicial Education & Training, Journal of the IOJT, http://www.iojt.org/journal/iojtjournal 002.pdf. Judicial Education Reference, Information & Technology Transfer project (JERITT), 2005, Issues and Trends in Judicial Branch Education, Michigan. Judicial Education Reference, Information & Technology Transfer project (JERITT), Monographs, Michigan; http://jeritt.msu.edu/monographs.asp. Karlen D, 1966, “Judicial Education,” American Bar Association Journal, 52, 11, 1049–1054.

Prologue To The Second Edition: 2015

lxvii

Kirby MD, 1983, The Judges, The Boyer Lectures, Australian Broadcasting Corporation, Sydney. Kirkpatrick DL, 1975, Evaluating Training Programs, American Society of Training and Development, Wisconsin. Kirkpatrick DL and Kirkpatrick JD, 2009, Evaluating Training Programs, BerrettKoehler Publishers; www.bkconnection.com. Knowles MS, 1980, The Modern Practice Of Adult Education: From Pedagogy to Andragogy, Follett, Chicago. Kolb DA, 1984, Experiential Learning: Experience As The Source Of Learning And Development, Prentice Hall, Englewood Cliffs New Jersey, 142–5. La Porta R, Lopez-de-Silanes F, Shleifer A and Vishny R, 1998, “Law and Finance,” Journal of Political Economy, 106, 6: 1113–55. Leflar R, 1965, “Continuing Education for Appellate Judges,” Buffalo Law Review, 15: 370. Leroy A-M, 2014, “World Bank Support for Judicial Systems Serving Good Governance,” Judicial Education & Training, 2: 92–8. Li P, 1995, “How Our judicial Schools Compare to the Rest of the World,” Judges Journal 34, 17. Magali Sarfatti Larson, 1977, The Rise of Professionalism: a Sociological Analysis, Berkeley, California: University of California Press. Mahoney K and Martin S, 1987, Equality and Judicial Neutrality, Carswell, Toronto. National Association of State Judicial Educators (NASJE), Curriculum Designs, http:// news.nasje.org/nasje-curriculum-designs/. National Association of State Judicial Educators (NASJE), 2001, Principles and Standards of Judicial Branch Education; http://nasje.org/resources/principles.pdf. National Judicial Institute of Canada (NJI), “Twenty Principles of Judicial Education,” Ottawa. NJI, “Ten Principles of Social Context Education,” Ottawa. Nicholson RD, 1993, “Judicial Independence and Accountability: Can They Co-exist?” Australian Law Journal, 67: 404–426. Oberoi G, 2013, Developing the Judicial Education Discourse, Thomson Reuters, Mumbai. O’Connell A, 2011, Impact Evaluation of Judicial College Education for Juvenile Court Judicial Officers, Ohio State University. O’Connell K, 1963, “Continuing Legal Education for the Judiciary,” Journal of Legal Education 16: 405–415. OECD-DAC, 2005, Paris Declaration; http://www.oecd.org/dac/effectiveness/34428351 .pdf. Piana D, 2007, “Unpacking Policy Transfer, Discovering Actors: The French Model of Judicial Education between Enlargement and Judicial Cooperation in the EU,” ProQuest.

lxviii

Prologue to the Second Edition: 2015

Reiling D, Hammergren L and Di Giovanni A, 2007, Justice Sector Assessments – A Handbook, World Bank, Washington, DC. Roper C, 2006, “National Standard of Professional Education for Judicial Officers,” National Judicial College of Australia (NJCA), Canberra. Roper C, 2007, “Curriculum,” NJCA, Canberra. Sallmann PA, 1993, “Comparative Judicial Education in a Nutshell,” Journal of Judicial Administration, 2: 245–255. Samuels G, 1980, “Judicial Competency: How It Can Be Maintained,” Australian Law Journal, 54: 581–587. Sathavy K and Ly T, “The Cambodian Experience (of Judicial Education),” in Armytage 2009, 233–255. Schon DA, 1983, The Reflective Practitioner, Basic Books, New York. Schon DA, 1987, Educating the Reflective Practitioner, Jossey-Bass, San Francisco. Schwarzer W, 1995, “The Federal Judicial Center and the Administration of Justice in the Federal Courts,” U.C. Davis Law Review, 28: 1129–1168. Slaughter AM, 2000, “Judicial Globalization,” Virginia Journal of International Law, 40: 1103–1124. Thomas C, 2006, Review of Judicial Training and Education in Other Jurisdictions, Judicial Studies Board, London. Transparency International, 2007, Global Corruption Report: Corruption and Judi­ cial Systems, http://www.transparency.org/whatwedo/publication/global_corruption _report_2007_corruption_and_judicial_systems. Tull C and Goldstein A, 2013, “Judicial Education Program Evaluation,” 6th International Conference on the Training of the Judiciary, unpublished paper. Tull C and O’Connell A, 2012, Future Trends in State Courts: Investment in human capital pays dividends, NCSC, Williamsburg. Tull C, Appellate Judges Curriculum, and Juvenile Judges: Curriculum at a Glance, Judicial College, Supreme Court of Ohio. Tyler RW, 1949, Basic Principles of Curriculum and Instruction, University of Chicago Press. UNODC, 2003, 8th Survey of Crime Trends and Operations of Criminal Justice Systems, (2001–2002); http://www.unodc.org/pdf/crime/eighthsurvey/8sv.pdf. Van den Broeck E, 2014, New Training Vision: the Judicial Training Institute as a Driver for Reforms in the Judiciary, IGO-IFJ (Judicial Training Institute), Belgium. Wallace C, 1999, “Judicial Education and Training in Asia and the Pacific,” Michigan Journal of International Law, 21: 849–865. Wallace C, 2003, “Globalization of Judicial Education,” Yale Journal of International Law, 28: 355–364.

Preface to the Original Edition I would like to thank the judicial officers of New South Wales with whom I have had the privilege to develop programs of continuing education between 1991– 1996. These years have been filled with much challenge and reward, not the least being the innovation and dramatic growth in judicial education. The needs and benefits of continuing education within the common law system are increasingly recognized: in addition to gaining improved access to information and the exchange of professional experience, judges are now seeking to refine previously intuited skills and are actively reflecting on the disposition of judging. Much has already been accomplished, and much remains to be done. I extend my gratitude to the Honourable Sir Anthony Mason and Justices Michael Kirby and James Wood for providing leadership and inspiration in these developments, and for their generosity of spirit in assisting me in my work. I owe special thanks to John Hudzik for welcoming me into the judicial education community in the United States, and for his good counsel and friendship along the road; Terry Carney for mentorship, chastisement and encouragement at those times when I most needed them; Ernie Schmatt for his stewardship of my endeavours as education director at the Judicial Commission of New South Wales, and for enabling me to use data prepared in the course of my duties; Peter Sallmann for generously sharing his experience and insight on addressing our mutual challenges; my professional colleagues for their many acts of help along the way: Dennis Catlin, Ron Cervero, Nicholas Chesla, Chuck Claxton, Maureen Conner, Margot Costanzo, Diane Cowdrey, Helen Cunningham, Blanche D’Alpuget, Neil Gold, Cynthia Kruska, Paul Li, Kathleen Mahoney, John Nelson, Ronwyn North, Martin Partington, Maggie Ramsay, Jim Richardson, Chris Roper, Michael Runner, Donna Spears, Phillip Taylor and Jim Toner; Patrizia Poletti for collating and presenting the quantitative data contained in Chapter 4; and, Anna Johnston for editing the manuscript and rendering into oblivion “andragogical epistemology”, “universal consensus” and a number of my other verbal flourishes – Thank you! Earlier versions of certain segments of this study have been published elsewhere: selected extracts were drawn upon to explore the issue of gender equality in volume 58 of The Modern Law Review edited by Richard Rawlings and published by Blackwell Publishers of Oxford in 1995; parts of chapters 2 and 4 appeared in volume 16 of the University of New South Wales Law Journal, edited by George Winterton and published in 1993; parts of Chapter 7 appeared in volume 11 of the Journal of Professional Legal Education, edited by Neville

lxx

Preface to the Original Edition

Carter and published in 1993 by the College of Law, Sydney; and parts of Chapter 8 appeared in volume 4 of the Journal of Judicial Administration, edited by Peter Sallmann and published by The Law Book Company in 1995. Those segments which are reprinted are done so with permission; all have been updated, and many substantially revised. Wahroonga, Sydney L.A. 10 February 1996

Foreword to the Original Edition Mr Armytage’s study on “Educating Judges” is a comprehensive review of the topic. It argues convincingly that there is a need to develop a distinctive model of judicial education which is designed to address the specific learning requirements of judges. Part A explores the need for judicial education. That need, which is increasingly recognized within the judiciary itself, extends to judicial education in the form of orientation courses for newly appointed judges and continuing education courses for serving judges. The necessity for judicial education will become all the more pressing if we appoint as judges lawyers who lack continuous and solid experience in the actual conduct of cases in court. As the author demonstrates, the requirements of judicial education vary according to the criteria and process for appointment to judicial office. Judicial selection determines the standards of entry to the judiciary. Hence difference in selection practices in Australia, the United Kingdom and the United States generate different needs for judicial education, including continuing judicial education. The author undertakes a comparative analysis of the findings of empirical research which he has conducted in Australia with overseas findings. The result of this analysis is that there is a need to develop a distinctive approach to judicial education. The fact that it is necessary to maintain the independence of the judiciary is in itself a reason for adopting a distinctive approach to judicial education. Part B undertakes a comprehensive analysis of the practice of judicial learning. That analysis provides insights into significant and distinctive characteristics of judges as learners, and proposes in the light of an assessment of the application of educational theory to judges the development of a Model of Continuing Judicial Learning. Part C critically examines the existing processes of providing judicial education and finds them deficient. The author argues for a policy-based orientation to the process of judicial education and urges the adoption of an approach to it which extends beyond technical competence. He postulates a Cycle of Judicial Educational Practice and a Judicial Systemic Performance Model to rectify specific deficiencies on existing practice. One final point should be made. Neither existing schemes for judicial education nor the author’s proposals contemplate that judicial education involves instruction in the law. It is always assumed that those appointed as judges have a sufficient knowledge of the law and how to find it, and that they will

lxxii

Foreword to the Original Edition

continuously update their knowledge. The validity of that assumption is dubious when you bear in mind that these days persons appointed as judges will be called up to hear and determine cases raising issues outside the particular area of their professional expertise. No doubt the persons appointed have an obligation to fill the gap in their knowledge but in discussing judicial education we should take account of the facts and not be beguiled by the assumption. In my view, this is an extremely valuable work which will enhance our understanding of issues which are likely to be of critical importance in the near future. A.F. Mason

Chief Justice of Australia, 1987–1995

Part A The Issue of Need

∵

chapter 1

Introduction Lawyers don’t become good judges by the wave of a magic wand. Not even the best lawyers.1 [The increase in judicial education] might well be described without exaggeration as an explosion of activity in the field in the last decade.2 Judicial education is now an accepted part of judicial life in many countries. It is an enhancement of the mental qualities necessary to the preservation of judicial independence. …Judicial independence requires that the judicial branch is accountable for its competency and the proposition is now accepted as beyond debate.3 Continuing judicial education is new to the common law tradition of judging. It was first introduced in the United States in 1963 as a means to assist judges to enhance performance. This was followed in Canada, Britain, Australia and New Zealand over the next three decades. At this formative stage, it is timely to survey the experience gained across the common law world in order to illuminate the role and direction of judicial education. This study seeks to provide such a vision and to cast light on the emerging challenges associated with facilitating the continuing learning of judges. Central to this study is the argument that there is a need for a distinctive approach to the continuing education of judges. This approach should build on the foundations of adult and professional learning theory. But, more importantly, this approach should accommodate the specific learning needs and practices of judges, and preserve judicial independence. In the process, the study addresses a number of issues which underpin endeavour. This includes the questions: Why educate judges?, Is continuing ­education needed?, What makes a good judge? What role can education play?, How should judicial education be provided?, and, How can benefits be measured? The study explores the application of educational theory and critiques the 1 Catlin DW, “Michigan’s Magic Touch in Educating Judges,” The Judges’ Journal, 1986, 25, 6, 32–45. 2 Sallmann PA, “Comparative Judicial Education in a Nutshell,” Journal of Judicial Administration, 1993, 2, 245–255, (hereafter, Sallmann 1993), 252. 3 Nicholson RD, “Judicial Independence and Accountability: Can They Co-exist?” Australian Law Journal, 1993, 67, 404–426 (hereafter, Nicholson, alj, 1993), 425. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279261_002

4

chapter 1

practice of judicial education which has developed in various countries. Premised on Australian experience, the study surveys the United States and Britain in detail, with added reference to Canada and New Zealand. Assessment of the civil or “continental” approach to a career judiciary, where law graduates nominate to enter the judicial profession from the outset, falls beyond the ambit of this work. The study identifies a number of deficiencies, and proposes a model of continuing judicial learning which can serve as a template to assist judges operating in common law systems. For any proper understanding of the introduction of continuing judicial education, and its significance to the judiciary, it is necessary to recognize the overarching importance of the process of professionalization, and the significance of two themes in that process, namely the pursuit of competence and the provision of accountability. It will be seen that there is a need for the judiciary to formalize a means to enhance its performance in the light of public criticism, and to demonstrate its concern for improved performance to the community in an appropriate way. Study of the introduction of judicial education is as timely as it is inevitable. It is no coincidence that the early 1990’s marks a period of soul-searching for judiciaries in many countries confronted with often virulent criticism and diminishing social credibility.4 This is a period of intense critical public scrutiny of the judiciary. There is nothing either unusual or incidental about this scrutiny; rather, it is a predictable part of refining the role of the judiciary in society. Professionalization is an essential element of this evolving relationship, and provides the judiciary with an important means to demonstrate its competence while preserving the integrity of its independence. i Professionalization The process of professionalization describes the response of professions to recent and continuing public criticism generally, and to increasingly ­vociferous 4 This is illustrated in Australia, for example, recent public calls for the “re-education” of judges; simultaneous reviews of judicial selection by the federal Attorney-General and Senate; inquiries conducted by the Senate’s Standing Constitutional and Legal Affairs Committee and the Australian Law Reform Commission; and trenchant media criticism of the judiciary for “gender bias,” and failure to reflect changing social attitudes, similar to that in the United States one decade earlier. See, for example, “Judges go back to school” cartoon in the Sydney Telegraph on 11 February 1993, and newsstand poster headline for The Australian “Sexist Judges Must Go: Evatt” 10 June 1993 [Appendix 1.1 and 1.2].

Introduction

5

demands for accountability. For the judiciary, this criticism centred, for the most part, not on ignorance of the law, technical deficiency, ethical misconduct or individual behaviour, but on the performance of the judicial system at large and on a perceived failure of the judiciary to reflect the society over which it was seen to preside. Public criticism of the professions became increasingly vocal throughout the western world during the 1960’s. Houle describes this criticism as relating to inadequate service systems to care for the needy, and to what he describes  as excessive self-interest, incompetence and malevolence. The professions were criticized by their own members (both within and between branches of the profession), by consumers (the revolt of the client, citizen and special interest group advocates), by the mass media, and by government.5 This criticism has imposed pressures on all professions to carry out their duties at the highest possible standards of competence. Houle postulates that it is within this context that the concept of systematized continuing professional education evolved: Until then, it was almost universally taken for granted that the acquisition of general or special competence coupled with the expectation that every professional would voluntarily maintain, apply and advance his or her knowledge and skills throughout a lifetime would be sufficient guarantees of continued excellence of performance. But…it is now widely accepted that there should be periodic reassessments of competence to ensure to the individual professional, the people he or she serves, and society in general that a high level of performance is being maintained.6 This criticism – bringing with it threats of governmental regulation and intrusion into their privileged domain – led the professions to take steps to consolidate their identity in order to maintain their continuing existence. These steps included the introduction of a panoply of formalized requirements relating to entry standards, codes of conduct, rules of membership and discipline, and involved the linking of professional performance with continuing education. Continuing education became seen increasingly to be a means for professions to improve performance, disarm criticism and thereby to resist pressures to impose external standards on the professions. The incorporation of education 5 Houle, Continuing Learning in the Professions, San Francisco: Jossey-Bass, 1980, 14, 271 and 273. Such criticism attacks the professional entity, and ultimately threatens to precipitate government regulatory intervention to protect the public interest. 6 Houle, 279.

6

chapter 1

services became an integral part of this institutional response to public criticism. From the profession’s perspective, these education services provided a means of, first, implementing progressive and preventative measures to redress any public criticism of professional incompetence, and second, to visibly demonstrate measures of self-help as a disincentive to external regulation by government.7 Continuing professional development became recognized as an important response to establishing patterns of growth within the professions, and a means of managing both personal and systemic change. In this sense, the introduction of continuing education is but one part of a broader strategy to improve professional performance. The trend towards professionalization, which is seen as a particular process of occupational formalization and self-regulation, can be found in the formation of professional bodies with self-regulatory powers throughout the western world. The introduction of professional development programs has been an integral part of this trend towards professionalization. Between 1969 and 1978, the us Census Bureau reported a twenty per cent growth in professional development.8 While the legal profession tended to operate in the rearguard of this trend, it too responded by introducing schemes of continuing legal education for members, and appointing lay representatives to its disciplinary panels. The bar and the judiciary have been influenced by these developments most recently. The introduction of mandatory continuing education, as much for judges as for practising lawyers in the United States, exemplified this trend and demonstrated its intensity. While the formative role of the judiciary, and the metamorphosis of judges from legal practitioners, tends to obscure direct comparisons being made between the judiciary and other professions, the process of professionalization provides important insights on the judiciary and the changing nature of its role. First, it marks the transference of responsibility for competence and performance from the individual to the group, which reflects the on-going evolution of the judiciary as a social institution within society; and second, it is indicative that this group elects to see itself primarily as a body of professionals rather than as public servants or an arm of government. At a time when accountability is being demanded of all social entities in government, business and the professions, it is noteworthy that the judiciary chooses to see its role in 7 This is usually accompanied by other self-regulatory responses relating to entry-level requirements and codes of ethics and practice as means of forestalling government intervention. 8 This should be compared with increases in participation for personal and recreational reasons of less than ten per cent during the same period; Cross KP, Adults as Learners, San Francisco: Jossey-Bass, 1981, 94.

Introduction

7

professional terms. This choice sheds light on the deeper question “What is the judiciary?” It remains to be seen whether this self-perception is ultimately found to be appropriate or adequate.9 Professionalization describes the evolving relationship between the judiciary and society; what is unique about this process for the judiciary is that it must find a means of enhancing competence while balancing the competing precepts of independence and accountability. For the judiciary, the introduction of continuing judicial education is demonstrably more appropriate than the spectre of intervention by the executive. ii

Concept of Competence

The purpose of any program of continuing judicial education is to provide a process, which is more or less formalised, to promote the continuing learning of judges. It will be argued that the mission of judicial education is distinctive from other forms of occupational training or professional development in the extent to which it should promote learning and the pursuit of professional excellence which lie beyond the domain of technical competence. Ultimately, the purpose of this learning is to improve judicial performance and, thereby, the quality of justice. Judicial Competence The notion of competence, as the goal of judicial education, is central to this study. Competence is variously defined. For these purposes, it will be argued that judicial competence should be seen as the mastery of the knowledge, practical skills and disposition of judging. Competence is the ability to perform a range of tasks through the application of knowledge and skills to the resolution of particular problems according to certain standards, within a framework of rules of conduct and ethics of the judicial profession. The notion of competence – while a fundamental concept in most professional development models – can be problematic. On the one hand, it can imply a minimalist threshold of capability towards which the education program is aimed. On the other hand, it can be seen as an ideal concept in terms of being a non-specific educational objective rather than any finite quality 9 Although this may not be surprising, it is an inherently contradictory feature of a judiciary operating as an arm of government within the doctrine of separation of powers. Reconciling the effects of this contradiction lies at the foundations of the conflict between judicial independence and accountability.

8

chapter 1

defined by quantifiable behavioural benchmarks. In this sense, it is synonymous with optimal states of proficiency, excellence or expertise. Commentators have variously described the application of these qualities as professional artistry and judicial authenticity.10 This duality of meaning raises two important questions for judges and educators alike: first, whether judicial competence should be seen as a benchmark or as an aspirational standard? Second, should competence be seen as a static concept, or as a dynamic phenomenon which increases with experience throughout the judicial career? The answers to these questions are hardly polemic, and influence the nature of any program of judicial education. If the answers to both questions are the latter choice – as it will be argued that they should be – then judicial education is fundamentally distinguished from prevailing models of continuing education and occupational training. To support this distinction, it will be argued that judges generally possess unusually high levels of pre-existing professional competence by virtue of the process of merit selection. It is within this context that the mission of continuing judicial education should be seen to extend beyond conventional notions of technical proficiency to embrace professional excellence or artistry. Assessment of judicial competence is difficult.11 While the competence of professionals is normally assessed through the quality of their performance, any qualitative assessment of judicial performance is fraught with both practical and doctrinal difficulties. It will be seen that the essence or artistry of judging is too complex to be readily amenable to predetermined behavioural criteria; moreover, quantitative assessment provides an incomplete and clumsy measure of performance at a personal level. More significantly, measurement of the quality of a judge’s work performance other than through formal appellate procedure has the potential to subvert the integrity of the trial process and thereby the independence of the judiciary. For these reasons, few useful examples can be found to illustrate consensus on satisfactory means of measuring judicial competence using conventional procedures. Measurement tends to be 10 11

See discussion of the work of Schon DA, and Catlin DW, respectively, in Chapter 6. There has been limited comprehensive work on defining judicial competencies, but, see: Gold N, “Towards a Curriculum for Continuing Judicial Education – Establishing Judicial Competences: Professionalisation, Quality and the Public Interest,” 1994, (as yet unpublished article). There has been more work in relation to legal competencies, which may be applicable to the judiciary; see, most recently, aba, Legal Education and Professional Development – an Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Chicago, 1992 (MacCrate Report); also, Blasi G, “What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory,” Journal of Legal Education, 1995, 45, 313–386.

Introduction

9

proffered in quantitative terms, however arbitrary.12 Overcoming these difficulties remains a challenge for judicial educators. Incompetence An alternative means of defining the notion of judicial competence is provided by an assessment of its absence, that is, from a review of the indicators of incompetence. Owing to the doctrinal and practical obstacles already discussed, there are limited opportunities and highly formalized mechanisms for any such review. Assessment of judicial performance is, however, a normal part of judicial administration and is constantly undertaken through a number of means which include formal complaints, appeals and the scrutiny of the public media. Since the Act of Settlement 1701, judges devolving from the British system have enjoyed security of tenure as a necessary protection against political and other pressure and influence. A judge will hold office during good behaviour. The approach taken by the Australian Constitution 1901, for example, is typical: s 72ii [Justices of the High Court] shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity. Formal complaint procedure may or may not be provided, but tends to be complex, clumsy and potentially politically charged. In practice, the most obvious and usual means of review of judicial performance is to be found within the court structure itself, in the ordinary appellate processes. Gleeson remarks that, The working of the appellate courts is the primary means which the system provides for identifying and correcting judicial error. In this context the word “error” is used in the widest sense. …The possibility that a judge at first instance, or an intermediate court of appeal, will ultimately be held to be in error is an inescapable part of our system of administration of justice.13 12

13

Time standards for designated classes of proceedings are an example; similarly, in the United States, recommended minimum levels of attendance at judicial education programs each year are another; see related discussion in Chapters 7 and 8. Gleeson AM (now, Chief Justice of New South Wales), “Judging the Judges,” Australian Law Journal, 1979, 53, 338–347, 344.

10

chapter 1

In addition, the competence of the judiciary is constantly reviewed by public scrutiny, frequently through the media. Of this public scrutiny, Bentham remarked: Where there is no publicity there is no justice…Publicity is the very soul  of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.14 It follows that while the notion of judicial competence is complex, problematic and resists ready translation to conventional measurement, a variety of mechanisms do exist and operate to measure judicial performance at a number of levels. From the perspective of judicial education, it will be argued that compelling reasons exist to extend the measurement of judicial competence to integrate these mechanisms which operate at a systemic rather than a ­personal level. iii

Quest for Accountability

It has already been foreshadowed that the introduction of judicial education should be seen within the over-arching context of the need to demonstrate judicial accountability. Accountability is another complex and problematical issue for the judiciary.15 For judges, the question is not whether there should be  judicial accountability, but how accountability should be balanced with independence.16 As Lord Hailsham has put it,

14 15

16

Bentham cited by Lord Shaw of Dunfernline, Scott v Scott, 1913, Appeal Cases (House of Lords), 417, 477. See, McGarvie RE, “The Foundations of Judicial Independence in a Modern Democracy,” Journal of Judicial Administration, 1991, 1, 33; McGarvie RE, “The Ways Available to the Judicial Arm of Government to Preserve Judicial Independence,” Journal of Judicial Administration, 1992, 1, 236–277; Gleeson M, Judicial Accountability, Canberra, 1994 (Conference on Courts in a Representative Democracy; as yet unpublished paper); and Nicholson RD, “Judicial Independence and Judicial Organisation: A Judicial Conference for Australia?” Journal of Judicial Administration, 1993, 2, 143–161 (hereafter: Nicholson, jja, 1993); and Nicholson, alj, note 3, above. Shetreet S, “The Limits of Judicial Accountability: a Hard Look at the Judicial Officers Act 1986,” University of New South Wales Law Journal, 1987, 10, 4, 7.

Introduction

11

The problem is how to reconcile the divergent and to some extent inconsistent requirements of public accountability, judicial independence, and efficiency in the administration of justice.17 Precept of Independence Independence is a precept for any judiciary operating within the Westminster system of government. This precept has been defined as the capacity of the courts to perform their constitutional function free from actual or apparent interference.18 For jurists, judicial independence is an essential element of democracy. Hailsham sees the independence of the judiciary as a bastion against the “absolutist theory of democracy”.19 Under the Westminster system, the separation of p ­ owers doctrine provides a system of mutual checks and balances between the executive, legislative and judicial arms of government, so that one branch of g­ overnment is incapable of abrogating power to itself at the expense of the other two. It is within this context that jurists see an imperative for an independent judiciary to act as an impartial arbiter of disputes between ­citizens and the state.20 Judicial Accountability At the same time, judges find themselves torn between preserving the need for judicial independence while increasingly having to provide accountability to the community.21 This accountability is, according to Nicholson, manifest in many ways: The business of all courts is, except in extraordinary circumstances, conducted in public. Judges resolve disputes under the obligation to publish full reasons for their decisions. Each decision…is subject to being appealed. Appeal court criticisms may be published without limitation. 17 18 19 20 21

Lord Hailsham, “Democracy and Judicial Independence,” University of New Brunswick Law Journal, 1979, 28, 7, 8; cited by Nicholson, at 408. Green G (Sir Guy), “The Rationale and Some Aspects of Judicial Independence,” Australian Law Journal, 1985, 59, 135–162, 135. Hailsham, 7. Nicholson, 410. See, for example, Basten J, “Judicial Accountability: a Proposal for a Judicial Commission,” The Australian Quarterly, 1980, 468–485, which presaged the introduction of the Judicial Commission in New South Wales six years later.

12

chapter 1

Academic lawyers are free to criticise judicial reasoning. Media attend hearings.…22 Ultimately, the judiciary is confronting an ever increasing need to provide accountability, to justify and demonstrate its value and effectiveness. Nich­ olson, continues: [D]espite these structural guarantees of exposure of the business of the courts to the scrutiny of legal examination and the glare of public scrutiny, it is sometimes considered that the judicial branch needs to become more accountable.23 This problem of providing justification is described by the Chief Justice of Australia, Sir Anthony Mason: The defence of existing professional structures and professional practices on the basis that they contribute to the just and efficient disposition of litigation is likely to be greeted with a degree of robust scepticism unless the soundness of that basis is clearly demonstrated. …The plain fact is that, in contemporary society, people are not prepared to accept at face value what professional people tell them.24 The key to reconciling this dilemma is provided by Nicholson who relates the need to provide increased accountability with the issue of continuing judicial education: Judicial education is now an accepted part of judicial life in many countries. It is an enhancement of the mental qualities necessary to the preservation of judicial independence. …Judicial independence requires that the judicial branch is accountable for its competency and the proposition is now accepted as beyond debate.25 22 Nicholson, 413. 23 Id. 24 Mason A, “The Independence Of The Bench; The Independence Of The Bar, And The Bar’s Role In The Judicial System,” Australian Bar Review, 1993, 10, 1–10, 1. 25 Nicholson, footnote 3, above. The relationship between judicial education and the preservation of independence has been recognized for some time in Canada, and is enshrined in the rationale for continuing education. For example, the charter of the National Judicial Centre declares its mission to be: “To foster a high standard of judicial performance through programs that stimulate continuing professional and personal growth; to

Introduction

13

It is now recognized within the judiciary that judges should participate in continuing education because this is, among other reasons, an appropriate means to increase accountability which, in turn, consolidates judicial independence in a democratic society. iv History A study of the history of judicial education illustrates the manner in which the judiciary has addressed these issues over the past thirty years. This study demonstrates the universality of issues for judges operating within the common law, the intensity with which they have confronted the judiciary, and the dispatch with which they have been resolved. This history commences with a review of the American experience which has set the lead. While this history is short, the rate of development in judicial education has been described, in the words of Sallmann, “without exaggeration as an explosion of activity in the field in the last decade.”26 United States In the United States, continuing judicial education is accepted as an “integral and essential part” of the judicial system.27 Indeed, it is increasingly seen as a basic necessity, made so by pressures of workload, the size of courts, the complexity of modern judicial programming and the invasion of technology.28 Formalized judicial education commenced in the United States with the establishment of the National Judicial College in 1963, and the call of Chief Justice Warren Burger in the following year for judges nationally to participate in continuing judicial education.29 In 1967, the Federal Judicial Centre was established to provide federal judges with a range of services including

26 27 28 29

engender a high level of social awareness, ethical sensitivity and pride in excellence, within an independent judiciary; thereby improving the administration of justice.” National Judicial Institute (formerly, Canadian Judicial Centre), Annual Report 1991–1992, Ottawa, 4. Sallmann 1993, note 2, above. Riches AL, “Judicial Education – A Look at the Overseas Experience,” The Australian Law Journal, 1990, 64, 189–202, 190. Hudzik JK, “The Continuing Education of Judges and Court Personnel,” Judicial Education Network, 1989, (hereafter, Hudzik 1989), 5. Burger WE, School for Judges, Federal Rules Decisions, 1964, 33, 139–150; see also, Li P, “How Our Judicial Schools Compare to the Rest of the World,” The Judges Journal, Winter 1995, 17–51.

14

chapter 1

c­ontinuing education. Subsequently, the provision of judicial education evolved predominantly on a state basis. At the forefront, the Californian Centre for Judicial Education and Research conducted its first orientation program for trial judges in 1976.30 In the following year, the Michigan Judicial Institute commenced its education program. In relation to the development of judicial education, Catlin has observed: Lawyers don’t become good judges by the wave of a magic wand. Not even the best lawyers. To reappear behind the bench as a skilled jurist is a tricky manoeuvre. Going from adversary to adjudicator means changing one’s attitude, learning and using new skills, and in some cases severing old ties. In many jurisdictions, judges must learn their new roles by the seat of their pants. In Michigan though, both new and veteran judges are trained extensively.31 By 1986, all states provided some form of education for judges, and judicial education was well established.32 Most state programs are in fact mandatory.33 The average number of training leave days allowed for education and training is approximately five per year.34 Most programs are conducted to designated “principles and standards of continuing judicial education.”35 Formalized post-graduate judicial education programs are also conducted for judges.36 Most recently, Hudzik observes: 30 31 32 33

34 35

36

McCabe HH, “California’s Approach to Judicial Education,” Judicature, 1967, 51, 2, 58–63. Catlin, 32; Catlin is the founding head of the Michigan Judicial Institute. Murray FK, Judicial Education: A Guide to State and National Programs, Foundation for Women Judges: Washington dc, 1986, 6. 70% of state-based judicial education is mandatory, with a notable exception being Michigan; Hudzik JK, Issues & Trends in Judicial Education, Michigan State University: Judicial Education Reference, Information and Technical Transfer Project, 1993, (hereafter, Hudzik 1993), 127; see also Houle, 1980, 283–284; Phillips LE, “Trends in State Relicensure,” in Stern MR (Ed) Power and Conflict in Continuing Professional Education Belmont, California: Wadsworth, 1987. Hudzik 1993, 138. Various policy-based formulations of judicial education have been developed in the United States; most recently, nasje, Principles & Standards of Continuing Judicial Education, National Association of States Judicial Educators (nasje), 1991; for more detailed discussion, see Chapter 7. For example, University of Virginia launched a graduate program in 1980. Meador DJ, “The Graduate Degree Program for Judges at the University of Virginia,” Judges Journal, 1983, 22, 3, 19–56.

Introduction

15

The most striking trend of the last twenty years in continuing judicial education is its virtual spread throughout the United States and its emergence as a big business…programming (in 1990) was provided annually to nearly 57,000 participants…(In 1992 these are) now estimated at nearly 72,000 participants annually.37 Analysis of judicial education activities in the United States reveals that most effort is focused in two areas. These are orientation programs for new appointees, and continuing education which is usually updating on recent developments. The content of these activities is not confined to the law but is, in Hudzik’s words, “substantively heterogeneous” in character and tends to focus on substance.38 However, about 25% of all topical offerings during  the year related to organizational and personnel management: topics related to social sciences, humanities, ethics and discipline and domestic relations account for nearly another 18% of topical offerings. Nor is it ­confined to judges. Judicial education is usually offered to all court and justice system employees, which extends the clientele for judicial education ten-fold.39 A significant factor influencing the character of judicial education in the United States is the process of judicial appointment, which is predominantly by election. Judicial election allows appointees to join the bench with a broad range of backgrounds in the United States, but with less insistence on extensive forensic experience which is characteristic of systems of merit appointment operating in jurisdictions such as Britain and Australia. It follows that the threshold of competence for new judges is affected by the appointment proc­ ess and, as a result, the need for judicial education may vary between respective common law systems. Britain In Britain, judicial education is administered by the Judicial Studies Board which found its origins in a one-day sentencing conference organized by Lord 37 38 39

75% of these programs are state-based, 17% are for the federal judiciary, and the remainder are nationally-conducted; Hudzik 1993, 205. Hudzik 1993, 188; “the majority of programming relates to the fundamental business of courts – the law, sentencing, procedure and so forth.” Catlin DW, A Composite Picture of State Judicial Education Programming in the United States, unpublished conference paper, Vancouver: The Commonwealth of Learning, March 1992. Catlin estimates that judicial support staff in the United States totals some 300,000 for purposes of continuing judicial education. In 1986, 46 states reported that they provided some training to non-judges: Murray, 7.

16

chapter 1

Parker in 1963. In the mid 1970’s, a working party on judicial studies was formed under the chairmanship of Lord Justice Bridge which resulted in the establishment of the Board which commenced operations in 1979.40 The Board was established with the object of providing a range of education services to the judiciary, magistracy and lay magistracy. The Board confined its role to training in the criminal jurisdiction until 1985 when it was expanded under the direction of Lord Hailsham to cover the provision of training in the Civil and Family jurisdictions.41 The British approach to judicial education is less formalized than is the case in the United States. The Board conducts a range of judicial orientation and updating programs, and has a substantial clientele which predominantly consists of lay magistrates and tribunal members.42 Regarding the standing of judicial education in Britain, the Board observed in 1988 that, Judicial studies are no longer a novelty. …No competent and conscientious occupant of any post would suggest that his performance is incapable of being improved, and, since there is a limit to what can be done simply by self improvement, almost all judges are able to perceive the need for organized means of enhancing performance.43 By 1995, this position had dramatically consolidated, when Lord Justice Henry reported what he described as a “sea-change in judicial attitudes to training over the past 25 to 30 years.” He added, “judges have accepted, appreciated, and benefited from training in a way that has confounded the sceptics.”44 This is confirmed by Partington:

40

41 42

43 44

Working Party on Judicial Studies and Information, chaired by Lord Justice Bridge in 1978, known as the Bridge Report: a principle recommendation was for the establishment of the Judicial Studies Board. The terms of reference for this report were (1) to review the machinery for disseminating information about the penal system and matters relating to the treatment of offenders; and (2) to review the scope and content of training and the methods whereby it is provided: Judicial Studies Board, Report for 1983–1987, London: hmso, 1988, 7; and Judicial Studies Board, Report for 1987–1991, London: hmso, 51. Judicial Studies Board, Report for 1983–1987, 8–9. In addition to judges and “embryo-judges” (3,000), the Board provides services to magistrates (30,000) and members of tribunals (30,000), in all a total clientele of 60,000; Judicial Studies Board, Report for 1991–1995, 1995, hmso, London, 3. Judicial Studies Board, Report for 1983–1987, 13. Judicial Studies Board, Report for 1991–1995, 4.

Introduction

17

Twenty years ago, a majority of judges would have denied there was any need for training. Today only a minority would share that view.45 In the same year, the Board completed a thorough review of its remit and is now in the process of developing and extending arrangements for judicial training. Other Common Law Countries Numerous other common law countries have recognized the need for continuing judicial education and some, most notably Canada, have established specialist judicial education bodies. In 1992, a Commonwealth conference on judicial education noted: While none of the Commonwealth countries could boast as comprehensive a system for the training and the continuing education of judges as could be found in the United States of America, there was, however, a wide variety of programmes already in existence, ranging from established institutes to local programmes.46 In Canada, the Canadian Judicial Council conducted its first educational activities in 1972, followed by the establishment of the Canadian Institute for the Administration of Justice in 1974, and the Canadian Judicial Institute in 1988.47 Other educational bodies also operate at a state and local level, such as the Canadian Association of Provincial Court Judges, and the Western Judicial Education Centre. Similarly, in New Zealand, an active program of court-based continuing judicial education operates within the District Court structure which commenced with the launching of a judicial induction program in 1988.48

45

46 47

48

Partington M, “Training the Judiciary in England and Wales: The Work of the Judicial Studies Board,” Civil Justice Quarterly, 1994, 319–336, 322. This is supported by calls outside the judiciary for more education; see, for example, Holland A, “Training Judges,” New Law Journal, 1993, 143, 895. “Continuing Judicial Education,” Commonwealth Law Bulletin, July 1992, 1037. The Canadian Judicial Institute, recently renamed the National Judicial Institute, was established following the recommendations of Stevenson J, Towards the Creation of a National Judicial Education Service for Canada, 1986. Cartwright S (Dame Silvia), “Judicial Studies in New Zealand’s District Courts,” Journal of Judicial Administration, 1993, 2, 162–170.

18

chapter 1

As of early 1996, the judiciaries in both Canada and New Zealand are reexamining the need for continuing education and are exploring the options for its institutionalization. At a regional level, a number of entities operate to provide judicial education within a framework of developmental projects. Among these is the Commonwealth Magistrates and Judges Association which was established in 1971. Presently operating from Canada, the cmja formed the Commonwealth Judicial Education Institute in 1994 to coordinate and provide educational activities to judiciaries operating in developing countries.49 Australia Judicial education in Australia is similarly in its infancy.50 It is however gathering considerable momentum and, in the words of Sallmann, “heralds the advent of potentially significant changes in the Australian judicial culture.”51 Traditionally, judicial education was non-existent in any formalized sense and relied heavily, in the words of one senior judge, on “the gifted amateur.”52 During the 1970’s various courts took initiatives to conduct conferences and seminars usually on a national, biennial or ad hoc basis. The history of judicial education in Australia can be traced to the formation of the Australian Institute of Judicial Administration by judges in 1975, and by a call in 1983 from Justice Michael Kirby for the introduction of formalized judicial education to assist new appointees in the transition to the bench and to keep judges abreast of change.53 These calls were met with a mixed response within the judiciary. It was not however until the establishment of the Judicial Commission of New South Wales in 1986 and the formation of the aija secretariat in 1987 that any permanent infrastructure was dedicated to judicial education. Since 1987, both bodies have conducted an increasing range of judicial conferences and workshops for judges and judicial administrators on a national and state basis respectively.54 In 1991, Victoria followed the example set by 49 50 51 52 53 54

Oxner S, Judicial Education in the Commonwealth, 1994 (as yet unpublished paper). Riches AL, “Continuing Judicial Education in New South Wales,” Journal of Professional Legal Education, 1989, 6, 2, 149–162, 151. Sallmann PA, “Judicial Education: Some Information and Observations,” Australian Law Journal, 1988, 62, 981–1005, (hereafter, Sallmann 1988), 981. Kennedy GA, “Training for Judges?” University of New South Wales Law Journal, 1987, 10, 47–59, 48. Kirby MD, The Judges, The Boyer Lectures, Sydney: abc, 1983, 24–26. Sallmann 1992, 37–38; and, Armytage L, “Continuing Judicial Education: The Education Program of the Judicial Commission of New South Wales,” Journal of Judicial Administration, 1993, 28–46.

Introduction

19

New  South Wales by enacting legislation for the establishment of a judicial studies board.55 Western Australia is presently investigating the options in establishing a similar body to assist the judiciary of that state. In recent years, there have been major increases in the provision of judicial education. Government has provided substantial funding particularly in response to high levels of criticism for alleged “gender bias” and cultural insensitivity.56 Additionally in 1994, the first judicial orientation course was conducted on a national basis by the aija and Judicial Commission of New South Wales. This course was opened by Chief Justice Mason: [In the past] new judges were expected somehow to acquire almost overnight the requisite knowledge of how to be a judge. Perhaps it was thought that judicial know-how was absorbed by a process of osmosis… One of the myths of our legal culture was that the barrister by dint of his or her long experience as a advocate in the courts was equipped to conduct a trial in any jurisdiction.57 This course was attended by new appointees from across the spectrum of judicial office and, owing to high levels of support from the courts, will be conducted on a regular ongoing basis.58 New South Wales New South Wales has the oldest and most extensive program of judicial education in Australia and has adopted the more recent American approach of 55 56

57 58

Judicial Studies Board Act (Vic) 1990. The establishment of that body has been delayed indefinitely owing to the pallous fiscal condition of that state. The response in New South Wales has been to develop judicial education on equality, integrating issues of gender as much as race, culture and wealth; Armytage L, “Judicial Education on Equality – With Particular Reference to Gender and Ethnicity,” The Modern Law Review, 1995, 58, 160–186. The English response is similar: Judicial Studies Board Report 1991–1995, 8. These are contrasted to the approaches taken in the United States and Canada where specialist programs on gender equality are conducted. Mason A, The Role of the Judge, Inaugural Judicial Orientation Program, Sydney, 1994, (as yet unpublished paper). This national Judicial Orientation Program was jointly developed by the Australian Institute of Judicial Administration and the Judicial Commission of New South Wales; see Wood J, “The Prospects for a National Judicial Orientation Programme in Australia,” Journal of Judicial Administration, 1993, 3, 75–95; and Armytage L, Judicial Orientation: Six Factors Influencing Program Development, unpublished paper, 25th biennial conference of the International Bar Association (iba), 1994.

20

chapter 1

­ roviding state-based education for judicial officers. This program is provided p by the Judicial Commission, which was established under “highly controversial circumstances” in 1986.59 The Commission has been described by one commentator as “revolutionary”, in that it established for the first time in Australia a formalized system of judicial accountability.60 Consistent with the process of professionalization discussed above, the spur for the establishment of the Judicial Commission was, at least in part, to redress criticisms of judicial impropriety and the erosion of confidence in the judiciary.61 As Riches outlines: The standards of judicial conduct and competence were not, until recent times, a matter of particular public concern in Australia. However, criminal charges, trials and a Commission of Inquiry into the particular conduct of the late Mr Justice Murphy, criminal charges against a District Court judge and the conviction of a former Chief Magistrate led to closer scrutiny of judicial standards and to the New South Wales Government taking steps inter alia to soothe [sic] over those discomforting events.62 The Commission commenced providing formalized, structured educational services in 1988, initially for magistrates of the Local Court, which were expanded in 1991 to judges of all courts in the form of conferences and workshops, publications, an electronic sentencing database and computer training.63 The Commission now provides an extensive program of conferences and 59

60

61

62 63

Sallmann 1988, 993. This extraordinary controversy spilled beyond the ranks of the judiciary and was reflected in a debate between the then Chief Justice, Sir Laurence Street, and other members of the judiciary in the local press: see, inter alia, Sydney Morning Herald 8/9/86, 13/9/86, 17/9/86, 18/9/86, 1/10/86, 14/10/86. Morabito V, “The Judicial Officers Act 1986 (nsw): A Dangerous Precedent or a Model to be Followed?” University of New South Wales Law Journal, 1993, 16, 481–512, 482. While much of the controversy within the judiciary was directed to the provisions contained in this legislation relating to complaints and the removal of judges, some antipathy attached to the associated provisions relating to conducting a scheme of continuing judicial education. “The current depressing lack of confidence in the justice system demanded to be addressed and rectified,” Sheahan T (Attorney General), New South Wales Parliamentary Debates, Legislative Assembly, 24/9/1986, 3874. Riches AL, “Continuing Judicial Education in New South Wales,” The Journal of Professional Legal Education, 1988, 6, 150–162, 150. Armytage, 1993, 33–37; in 1994–5, the Judicial Commission conducted 1236 days of judicial education, a notional average attendance of some five days annually for each judicial officer, which is similar in level of participation to the United States; Annual Report of

Introduction

21

publications for all courts, and has most recently been described by Sallmann as the “Rolls Royce of judicial education…in Australia.”64 Despite these inroads, however, Sallmann argues that in Australia there is, as yet, a lack of national judicial leadership and committed governmental support for continuing judicial education: The present Australian position is patchy, unsystematic and uncertain, especially when compared with America, Britain and Canada, and increasingly, New Zealand.65 v Outline In the following chapters, it will be argued that there is a need to develop a distinctive model of judicial education which is designed to address the specific learning requirements and practices of judges while preserving judicial independence. Part A explores the question of the need for judicial education, where it is argued that need is increasingly recognized within the judiciary itself. While the question of need has been the subject of vigorous debate throughout the judiciary during the past decade, a consensus is now emerging among judges which acknowledges both the need and the benefit of continuing education in enhancing competence and consolidating independence. Recognizing that different selection practices give rise to different needs, an assessment of the nature of those needs is then undertaken through a comparative analysis of empirical research conducted in the United States and Australia. This reveals that judges participate in continuing education for reasons which are different to other adults or professionals and, when taken in conjunction with other features of judges as learners, gives rise to the need for the development of a distinctive approach to judicial education. Part B undertakes an assessment of the application of educational theory to judges, and argues that the foundation of any program of judicial education must lie in the theory of adult and professional learning. A comprehensive analysis of the practice of judicial learning is undertaken which identifies

64 65

the Judicial Commission of nsw, 1994–5, Sydney, 1995, 8; Topics ranged from Aboriginal custom and perception, and Assessment of credibility, to Sentencing powers, Stress, and Working with interpreters, 66. Sallmann 1993, 253. Sallmann 1993, 254.

22

chapter 1

distinctive features of judges as learners and leads to the formulation of a Model of Continuing Judicial Learning. Part C examines the prevailing process of providing judicial education which it finds is lacking in any consistent approach or direction. There is a need to develop a policy-based orientation to the process of judicial education, and a more useful means of assessing the value of this educational endeavour in terms of its impact on judicial performance. Finally, it is proposed that judicial educators should embrace as their mission the pursuit of judicial artistry which extends beyond technical competence, using a Cycle of Judicial Education Practice, and a Judicial Systemic Performance Model. Central to any study of the development of judicial education is the question: What sort of judicial education is required? The answer depends on a related question: What sort of judges are required? This answer in turn is determined by another question: What sort of justice system is required? These are the fundamental questions which confront the judiciary and, more broadly, the community. While it falls beyond the domain of this study to answer these questions, there is however an overriding need for judges and educators to search for their answer: to challenge the way the judiciary sees itself, to critique the quality of its relationship with the community, and to discern and explore the communal values which it is charged to reflect in the system of justice. Searching for these answers is as fundamental to any understanding of the purpose of justice and the role of the courts, as it is to illuminating the mission of judicial education. The challenge of judicial education is to devise and provide a means to promote the continuing improvement of judicial competence. Once the formalizing requirements of professionalization have been met, it remains the task of educators to facilitate a process of meaningful learning. In essence, this is the challenge to promote and develop a process of continuing learning for those who are already the most expert and able in their field, who are charged by reason of this expertise and ability to both lead and reflect the community’s values yet retain their independence. Developing a more or less formalized process which retains these elements in harmony is the task ahead.

chapter 2

The Need for Judicial Education It is assumed that years of practice as a barrister is the necessary and sufficient qualification for judicial office. So it has been for hundreds of years. I believe we could do better…we need a national (judicial training) institute.1 The last thing we need is educated judges. Educated, that is, not in the law but in the various fashionable theories and political orthodoxies which are current among feminists, environmentalists, social reformers, deconstructionalists or whatever.2 The best way of maintaining judicial competency is to appoint reasonably competent judges, who already know enough to embark on their task with tolerable efficiency. If it is recognized that a large proportion of new appointees cannot perform competently without prior instruction, then the system of selection has failed, and basic training is little more than a means of propping it up.3 The education of judges is predicated on need. In this chapter, it will be argued that the question of whether there is a need for judicial education should be determined primarily in terms of its recognition within the ranks of the judiciary itself, for a number of doctrinal and educational reasons.4 The views of the community should, however, play a very active role in defining the nature of that need. Over the past thirty years, judges operating in the common law system around the world have been polarized over the issue of continuing education. Progressives have advocated the systematisation of judicial education in order to meet a variety of needs, most obviously, transition to the bench and keeping  up to date with changes in the law. Conservatives have challenged that 1 Kirby MD (a justice of the High Court of Australia), The Judges, The Boyer Lectures, Sydney: abc, 1983, 24–6. 2 McGuinness P, “No Case For Judgment By The Instant Lynch Mob,” The Australian 20 January 1993, 11; reprinted in Australian Law Journal, 1993, 67, 324–5. 3 Samuels G (then a judge of appeal, and now governor of New South Wales), “Judicial Competency: How It Can Be Maintained,” Australian Law Journal, 1980, 54, 581–587, 585. 4 An earlier version of chapters 2 and 4 have been published in University of New South Wales Law Journal, 1993, 16, 536–584.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279261_003

24

chapter 2

formalized education is not needed, that it should not be used to cure any deficiencies in the selection process, and that it undermines the independence and credibility of the bench. Much of this debate will be seen to focus, not so much on the need for continuing learning itself, but rather on the need for continuing education, the extent of formalization required, and the counterbalancing need to preserve judicial independence. Most recently, a consensus has emerged within the judiciary which recognizes the benefits that continuing education can offer. These benefits include enhancing the quality of justice, assisting judges to keep up to date, preventing and remedying judicial error, and reducing the cost of justice. Judicial recognition of the need for formalized continuing education is an inherent characteristic of the process of professionalization. For the judiciary, this process consists of two elements: first, the need to organize a means to enhance professional competence and, second, the need to be accountable to the community. Following the lead set in the United States, judiciaries in Canada, Australia and Britain are increasingly coming to recognize that continuing education can meet these needs while, at the same time, consolidating their independence. i

Educational Need

Discussion of the need for continuing judicial education should, from the outset, define the concept of educational need upon which it is based. The concept of need connotes issues of some complexity. There are difficulties in distinguishing an “authentic” need from a “felt” need;5 the fact that needs are probably infinite in number and cannot all be identified; that there are often conflicting needs; and, finally, that needs may not be conscious in the person having them. Pennington observes that each of these complexities conspire to make needs assessment a poorly understood concept: 5 Knowles describes an educational need in terms of “something people ought to learn for their own good, for the good of an organization or for the good of society.” Knowles MS, The Modern Practice of Adult Education: From Pedagogy to Andragogy, Chicago: Follett, 1980, 88–90. Ulschak discusses two types of deficiency: deficiencies of skills, and deficiencies of execution. Deficiencies of skills are training targets: when skill is needed, a training intervention is appropriate. However, deficiencies of execution are not effectively addressed by training interventions: they include task interference, such as interruptions or a lack of motivation. Ulschak F, Human Resource Development: The Theory and Practice of Needs Assessment, Reston: Reston, 1983, xv–xvii.

The Need For Judicial Education

25

It is impossible to plan without the type of data generated by such studies but much work remains to be undertaken to improve such studies before they can be used in a routine way.6 Various Approaches There are a variety of different definitions of need each of which, if adopted, would have the effect of profoundly changing the purpose and role of judicial education. To the extent that these various formulations, however implicit, may be influential in defining the need for judicial education, they warrant explicit consideration. As an illustration, need is frequently defined as a deficiency between an actual situation and a preferred situation, in terms of job performance, knowledge, skills, abilities and competences.7 Queeney, for example, sees needs as identified gaps between prevailing knowledge, skill and performance levels and the desired levels.8 It is hardly surprising that this process is sometimes referred to as gap analysis. A second approach is to describe need in terms of want or preference. Although, as Suarez points out, there are many purists who oppose the use of this definition, many needs assessments are in fact heavily based on this approach, and it is perhaps the most popular in practice.9 Another less used approach to the concept of need is that of a deficit, which brings with it the notion of a problem or weakness. A need is said to exist if the absence or a deficiency in the area of interest is harmful – a state in which a minimum satisfactory level has not been reached or cannot be maintained. Few practitioners use this method owing to the difficulty in determining the point at which a deficit or minimum satisfactory level can be said to exist. Observation however suggests that this is the definition most commonly adopted by critics of the need for continuing education, who claim that any call for education is by implication a disparagement of existing levels of proficiency.10 6 7

8 9 10

Pennington FC, “Needs Assessment in Adult Education,” in Husen T and Postlethwaite TN (Ed) International Encyclopaedia of Education, Oxford: Pergamon, 1985, 3495. See, for example, Hudzik JK, Judicial Education Needs Assessment and Project Evaluation, Judicial Education Research and Information Technology Transfer Project (jeritt), Michigan State University, 1991, 7; and, Ulschak F, 1983, at xiv. Queeney DS, Needs Assessment, Adult Education Perspectives for Judicial Education, Judicial Education Adult Education Project (jeaep), University of Georgia, 1992, 3.2. Suarez TM, “Needs Assessment in Adult Education,”in Husen T & Postlethwaite TN, 3497. Suarez, 3496–7.

26

chapter 2

Finally, need can be defined in terms of discrepancy. Sork argues that discrepancy, like the notion of deficiency, involves identification of a gap between what is and what ought to be but, additionally, incorporates a developmental connotation: The use of the word “discrepancy” accommodates both a remedial orientation in which the purpose of the assessment is to uncover deficiencies (discrepancies between actual and expected mandated standards) and a growth orientation in which the purpose of the assessment is to reveal differences between acceptable present conditions and more desirable future conditions.11 It follows that the threshold of need upon which any educational intervention may be based can vary depending on whether that need is defined as a deficiency, a want, a discrepancy or a deficit. For the purposes of this study, the most appropriate definition of need is that of a “discrepancy”, that is, the gap between what is and what ought to be in terms of professional competence and performance which can be redressed through education, training and professional development.12 This meaning is both the most useful and the most consistent with adult learning theory by defining the issue in terms of an opportunity for development, and a benefit, rather than as the remedy for a deficit. The distinction between deficiency and discrepancy in defining the competence “gap” is important in providing a general improvement thrust to the notion of needs assessment, rather than a remedial focus. It will be seen that this difference between a positive and a 11

12

Sork TL, “Needs Assessment as Part of Program Planning,” in Gessner Q (Ed), Handbook on Continuing Higher Education, New York: Macmillan, 1987,128. This approach to need is also endorsed by Pennington: Pennington FC, “Needs Assessment: Concepts, Models and Characteristics,” in Assessing Educational Needs of Adults: New Directions for Continuing Education (No. 7; Pennington FC Ed), San Francisco: Jossey-Bass, 1980, 5; and Pennington 1985, 3490–5. An important distinction exists between education, training and development: “Training prepares an individual to acquire a skill that will result in a specific kind of behaviour, whereas education generally provides opportunities to live and perform better in every dimension of life. Thus, training narrows whereas education broadens an individual’s range of responses.” Grabowski SM, “How Educators and Trainers can ensure on-the-job Performance,” in Grabowski SM (Ed) New Directions for Continuing Education: “Strength­ ening Connection between Education and Performance,” San Francisco: Jossey-Bass, 1983, 6. There is a need in any adult education to reconcile the tension which exists in balancing these two major roles of education: that is, in learning for the sake of learning (knowing), and in learning as an agent of change (doing).

The Need For Judicial Education

27

negative disposition affects the mission of judicial education at large and is hardly semantic in its significance.13 Doctrinal Constraints An orthodox approach to assessing educational need would normally rely heavily on sources of data beyond the client body, in order to attain objectivity and perspective. In particular, to the extent that the judiciary as a body is charged to reflect communal values, the community would normally be expected to play a critical role in assessing these needs. It is, however, argued that in the case of the  judiciary, this approach raises unique and fundamental doctrinal problems which impinge on the actual and perceived independence of any judiciary operating within the separation of powers doctrine and the Westminster system.14 The peculiar difficulties which flow from responding directly to calls from beyond the judiciary for continuing education are described by McGuinness. Such calls, he argues, are inescapably value-laden and reflect particular sectional interests. He asks how can a judiciary – charged as it is with a formative social role – discern which interests are representative of a broad social interest as distinct from a disproportionately vocal lobby group? Any so-called social interests, if genuinely communal, should doubtless be already reflected within the judiciary: It is clear that the chorus of condemnation [concerning a judge’s handling of a particular trial]…is meant to intimidate…the judiciary into behaving according to the “politically correct” views of those who have invented, or subscribed to, the false theory that the judiciary should reflect the views not just of society (as they inevitably do) but of the most vocal and aggressive advocates of a particular view of society which is not held by the community as a whole.15 This dilemma raises some of the unique considerations which surround any independent judiciary operating as a separate third branch of government. It reflects some of the complexities which must be addressed as part of the broader issue of judicial accountability, and how a judiciary should balance

13 14

15

See more detailed discussion of the judges as learners in Chapter 6, and of the mission of judicial education in Chapter 7. The constitutional imperative for judicial independence, and its impact on continuing education, is well recognized and acknowledged; see, for example: Judicial Studies Board, Report for 1991–1995, London: hmso, 1995, 5. McGuinness, note 2, above.

28

chapter 2

the precepts of its independence with its need to provide accountability.16 For an independent judiciary, this issue is in large part one of proximity and the visibility of independence. The visibility of independence is a double-edged sword. On the one hand, there is a danger that the judiciary may appear insular, arrogent and out of touch with the community it is charged to serve; on the other, it can not respond, or even to give any appearance of responding, to one interest at the expense of another. The dangers associated with responding too closely to external calls for any change through education may be the very antithesis of independence. These doctrinal constraints are significant and have a profound impact on the judiciary. As a result, the role of education in the process of profes­ sionalization acquires a distinctive and even unique character for judges. Accommodating this process in an appropriate manner is a challenge confronting judicial educators. Self-Assessment For this reason, it is necessary to modify the conventional means of recognizing the need for judicial education, by researching the literature in terms of its recognition within the ranks of the judiciary itself. Judicial self-assessment is controversial at both an ideological and an educational level. Normally, there would be compelling arguments in favour of appropriate community involvement in the establishment of any body, such as the judiciary, charged to reflect and protect its values. Similarly, it has been demonstrated that there are limitations on the efficacy of adult learners to diagnose their own learning needs, and there is evidence of the limited competency of individuals to conduct self-assessments.17 Notwithstanding these arguments, however, there are a number of overriding considerations which warrant self-assessment: 16

17

How should the doctrines of independence and accountability be reconciled? American jurists point to the election of judges as a providing a democratic mechanism. For a more detailed discussion of the problems see, for example, McGarvie RE, “The Foundations of Judicial Independence in a Modern Democracy,” Journal of Judicial Administration, 1991, 1, 3–45; and, McGarvie RE, “The Ways Available to the Judicial Arm of Government to Preserve Judicial Independence,” Journal of Judicial Administration, 1992, 1, 236–280; and Nicholson RD, “Judicial Independence and Accountability: Can They Co-Exist?” Australian Law Journal, 1993, 67, 404–426. See discussion in Chapter 1. See discussion of “The Dr Fox Effect” in Chapter 8 on educational evaluation. Just as a patient is not asked to diagnose his/her own ailment, beyond describing the symptoms, so it can be argued that the any self-assessment is inevitably limited by the prescience and self-interest of the subject.

The Need For Judicial Education

29

• Doctrinal: judicial independence has the effect of imposing considerable doctrinal, ideological and constitutional obstructions across the path of any other course, as has been discussed.18 • Technical: the judiciary is best informed on its own affairs and has the greatest interest in their resolution. • Psychological: the extent of input, control and decision-making power that judges can exercise over the development of their own education has a direct relationship with their stake in the process, its authenticity, their perception of relevance, and resulting levels of motivation and voluntary participation. In educational terms, these ingredients are essential for learning to offer meaningful and effective outcomes in performance terms. Sork endorses this self-assessment approach.19 He argues that the primary strengths of self-assessment are that it places the educator in direct contact with the client, creates awareness that the educator is available and willing to provide educational services, causes the client to examine the nature of what he or she does, and places responsibility for making value judgments about the desirable state of affairs with the people who have to act to make it happen. Once the judiciary has recognized its need for continuing education, however, the adequacy of self-assessment should not depend solely on the intuitive sensitivity of the judiciary to diagnose and meet its own needs. In later discussion, it will be seen that the community plays a central role in identifying the indicia of need. ii

Philosophical Debate

In common law countries, with their preference for mid-career-appointments, the process of judicial education has until recently been entirely informal.20 18

19 20

Notwithstanding the very real doctrinal obstructions and the judicial protocol of remaining aloof of public debate, it is observed that the judiciary is sensitive to external criticism and protective of its credibility. It does, as a result, monitor, evaluate and respond to external indications of need on an informal basis. An example of the judiciary’s concern to redress community complaints of the judiciary being out of touch is seen in initiatives to develop education programs on gender bias and cultural diversity in the United States, Canada, Australia and Britain in recent years. Sork, 1987, 130. In civil law countries, with their tradition of career appointments, the training needs of aspiring or probationary judges have been traditionally recognized and formalized in career development terms, which may offer some useful insights.

30

chapter 2

Since the mid–1960’s, a debate has developed which has polarized the judiciary into those advocating change and those seeking to preserve the status quo. This debate has centred on the existence or otherwise of any need for judicial education but, in the process, has raised a variety of associated and important considerations. Most recently, there has emerged an increasing recognition of the benefits of formalized training, education and professional development for the judiciary. This emerging consensus has not, however, emerged without considerable controversy within the ranks of the judiciary. Case for Change The introduction of judicial education has been advocated by judges on a variety of grounds which include that it assists new appointees prepare for their responsibilities, that it assists judges to keep up to date with change, that it promotes a discerning and self-critical outlook, and that it contributes to the enhancement of the administration of justice. It has been observed that recognition of the need for formalized judicial education by judges first occurred in the United States some thirty years ago.21 According to Li, The American judiciary, in addressing the long-pressing needs of the state courts, has come to realize that judicial education is one of the most effective, and perhaps an indispensable, means of enhancing the fair and efficient administration of justice.22 Shortly afterwards in Britain, the Lord Chancellor commissioned an investigation into preparing judicial officers for sentencing, in 1974. The report of the committee chaired by Lord Bridge found a need for a more formalized approach to judicial induction which ultimately led to the establishment of the Judicial Studies Board.23 This report recognized that neither the process of self-tuition nor the occasional one day conference was adequate to prepare judges in Britain for their responsibilities.24 21 22 23 24

Burger WE, School for Judges, Federal Rules Decisions, 1964, 33, 139–150. See preceding discussion in Chapter 1. Li PM, “Keeping Judges Awake to Contemporary Needs,” The Judges’ Journal, 1976, 15, 78–103, 78. Judicial Studies Board, Report for 1983–1987, London: hmso, 1988, 6: Working Party on Judicial Studies and Information, chaired by Lord Justice Bridge in 1978. Judicial Studies Board, Report for 1983–1987, 6; and Judicial Studies Board, Report for 1987–1991, London: hmso, 1992, Appendix 1, “strategies”, 51–59.

The Need For Judicial Education

31

In Australia, the call for a more formalized approach to judicial education was first made in 1983 by Justice Michael Kirby, then chairman of the Australian Law Reform Commission and later a justice of the High Court: It is assumed that years of practice as a barrister is the necessary and sufficient qualification for judicial office. So it has been for hundreds of years. I believe we could do better…we need a national [judicial training] institute.25 Kirby argued that the reasons necessitating judicial education included the rapid change in the law, the need to provide a more self-critical approach to judicial functions, and the need to promote a greater awareness of principled and conceptual thinking. Kirby observed that: The replication of specialist judges from specialist barristers, with only the most occasional external stimulus, is the surest formula for narrow tunnel vision, resistance to reform ideas and complacent selfsatisfaction. These attitudes have no proper place in a modern [Australian] court room.26 Objections As Kirby had foreshadowed, the response to the call for judicial education was at first “very unpopular.” Members of the judiciary raised a variety of objections including that formalized judicial education was not needed, it was incapable of meeting whatever need might in fact exist, it was inappropriate for the standing of judges, and that it was inconsistent with the notion of judicial independence. In Britain, opposition was taken up Lord Devlin and enjoined by Lord Hailsham who attacked what he described as the “ignorant clamour” in support for the findings of the Bridge Report that judges should be made to undergo specialized training: I also regard with a degree of indifference verging on contempt the criticism of judges that demands for them a type of training which render  them more like assessors or expert witnesses than judges of fact and law… The judge’s function is to listen intelligently and patiently to evidence and argument…to evaluate the reliability and relevance of oral 25 Kirby, 25–26. 26 Id.

32

chapter 2

testimony…and finally to reach a conclusion based on an accurate knowledge of law and practice… The capacity of being a judge is acquired in the course of practising the law.27 In Australia, Dowsett objected that any acknowledgement of need gave rise to implications which might be deleterious. He argued that systematized judicial education constituted a “serious threat” to the status and independence of the judiciary, and challenged the existence of need: I have never seen a new judge flounder because he was a new judge, nor have I heard of such a thing. Indeed, my experience is that very few judges really improve in the job. We seem to be either good at it or bad.28 Other fundamental objections were raised. Samuels argued that there is no need for judicial education on the grounds that merit selection procedure should obviate any such need: The best way of maintaining judicial competency is to appoint reasonably competent judges, who already know enough to embark on their task with tolerable efficiency. If it is recognized that a large proportion of new appointees cannot perform competently without prior instruction, then the system of selection has failed, and basic training is little more than a means of propping it up.29 For Samuels, the argument came down to consideration of the technical equipment, experience, and character which the new judge could, or could not, 27 28

29

Lord Devlin, The Judge, Oxford University Press, 1979, 34–48; and, Lord Hailsham, Hamlyn Revisited: The British Legal System Today, London: Stevens & Sons, 1983, 50–1. Dowsett JA (a justice of the Supreme Court of Queensland), Judicial Education: Where Are The Emperor’s New Clothes? Brisbane: unpublished conference paper, 1991, 2. While Dowsett acknowledges that continuing education is a theoretically essential element of all professional life, he postulates: “Why can we not trust judges to keep up to the extent necessary without creating another level of bureaucratic supervision? Of course, there is no reason.” Dowsett, 4 and 6. Concerns at the possible adverse impact on the standing of the judiciary, and potential incursion of its independence are also raised by Kennedy GA, “Training for Judges?” University of New South Wales Law Journal, 1987, 10, 47–59, 48. McGuinness argues that whenever the term education is used as a substitute for indoctrination it ought to be treated with the greatest suspicion: McGuinness, note 2, above. Samuels G (then a judge of appeal and now governor-designate for New South Wales), “Judicial Competency: How it be maintained,” Australian Law Journal 1980, 54, 581–587, 585.

The Need For Judicial Education

33

muster. He concluded that these characteristics should be addressed at the level of selection, not training: Most of [these judicial characteristics] are qualities which cannot be instilled in the classroom. If they are to be acquired at all, it is through a good many years of experience. I wonder therefore whether it may not too readily be assumed that basic judicial training can supply not only deficiencies in legal knowledge and procedural acumen, but defects of judicial character as well.30 Samuels distinguished the Australian position from that of the United States. He argued that while the need for judicial education might be recognized in the United States, this should not be readily adopted in Australia because of differences in the legal systems, operation of the courts and the basis of selection and appointment of judges. He observed that the American method of judicial selection on the one hand, and the English and Australian practices on the other, are significantly different. In the majority of American States judicial selection at some point involves a form of election; in Australia judges are appointed, generally after extensive consultations, from the ranks of experienced advocates. This difference in methods of selection has, in Samuels’ view, a critical impact of the existence and nature of any educational need: The system of orientation training now well established in the us has developed in response to a specific need stemming from methods of judicial selection which permit, or even entail, the choice of judges who lack the fundamental knowledge and techniques which the office demands.31 The objections from the judiciary to continuing education have traditionally rested on two principal grounds: first, that no need exists by virtue of the proc­ ess of merit selection and, second, that any formalized educational response is inappropriate, on the basis that it is redundant, that it lacks practical utility, and that it violates judicial independence. Much of this debate within the judiciary surrounding recognition of the need for education has, in effect, been 30 31

Samuels, 586–7. Samuels, 587. This perception of different thresholds of forensic competence for judicial appointees in different jurisdictions is generally recognized and supported in personal discussions with senior members of the judiciary in the United States and Australia. The relationship between levels of competence of appointees and the needs for judicial education is discussed in Chapter 3.

34

chapter 2

concerned with the need for the introduction of an organized process of judicial education, and the extent to which it need be formalized. Although few judges have argued against the principle of continuing learning, many are concerned by what they see as the practical effects of formalizing their learning through an education process. While these concerns are significant and forceful, they however affect the nature, scope and method of any educational program and the means by which it can promote and facilitate effective learning, rather than the existence or otherwise of the need for continuing education. Emerging Consensus Most recently, there are consistent indications of recognition of the need for continuing education within the ranks of the judiciaries across the common law world which follow the lead set in the United States. This recognition is generally expressed in terms of recognition of the benefits which educational assistance can provide. Judges in Britain and Australia in particular are now adopting the position of their counterparts in Canada in coming to recognize that their position, status and indeed the substance of their independence, can be consolidated rather than subverted through the introduction of an appropriate program of continuing judicial education. Britain In 1988, the Judicial Studies Board described judicial studies as no longer being “a novelty” in England, and reported that almost all judges were then able to perceive the need for an organized means of enhancing performance.32 As has already been seen, this position was dramatically consolidated by 1995, when Lord Justice Henry reported what he described as a “sea-change in judicial attitudes to training over the past 25 to 30 years.” He added, “judges have accepted, appreciated, and benefited from training in a way that has confounded the sceptics.”33 Australia In 1987 Kennedy joined Kirby to advocate a more formalized approach to judicial education. He argued that the previous practice in Australia had been to rely almost exclusively upon the selection of the “gifted amateur,” the selfeducation of judges and the acquisition of the necessary knowledge by

32 33

Judicial Studies Board, Report for 1983–1987, 13. Judicial Studies Board, Report for 1991–1995, 4.

The Need For Judicial Education

35

informal consultation with colleagues.34 In practice, he observed that there was the expectation that newly appointed judges are fully equipped immediately to discharge their responsibilities in whatever field of law they may be called upon. This derived from a confident belief that there is no better training for judicial work than active practice as a barrister. However, Kennedy argued, it cannot be doubted that the transition from advocacy to adjudication is as substantial as it is abrupt. The difference between counsel seeking to persuade a court to the point of view which s/he is advocating and a judge having to determine a dispute is profound, and is as substantial as it is abrupt: There does appear to be a special need for assistance to be made available for newly appointed magistrates and trial judges… The purpose of that assistance would not be, of course, to improve the general level of knowledge of substantive law on the part of new appointees, but to inform them of possible solutions to particular problems which they might encounter and of which they might not have had previous experience.35 Kennedy concluded that there are very considerable advantages to be gained from a more structured process of learning to enable judges to add to their knowledge, for example, in sentencing, evaluation of witnesses, computer technology and the social and behavioural sciences, while at the same time ensuring that the independence of the judiciary is safeguarded. For this reason, education should not be compulsory. In New Zealand, this approach was endorsed in 1991 by Sir Ivor Richardson who argued that judges can no longer depend almost entirely on self education: a more systematic and professional approach is needed.36 Richardson argued that the reservoir of knowledge and social experience of judges needs to be supplemented by a formalized educational program: [F]ormal judicial education programmes are, I believe, the most effective means of gaining information and insights; of stimulating awareness of changing social and economic perspectives and values; and generally

34 35 36

Kennedy GA (a justice of the Supreme Court of Western Australia), “Training for Judges?”, University of New South Wales Law Journal 1987, 10, 47–59, 47/50. Kennedy, 56. Richardson I (President of the New Zealand Court of Appeal), “Changing Needs for Judicial Decision-Making,” Journal of Judicial Administration, 1991, 1, 61–68, 61.

36

chapter 2

of enabling us to keep abreast of all those facets of our work in changing times.37 Most recently in a seminal review of the need for judicial training in Australia in 1992, Wood argued that benefit rather than need should be the criteria for justifying the introduction of judicial training: The justification for judicial orientation should not depend upon proof that it has become necessary. It would be almost impossible to prove whether that was the case or not. The more relevant consideration is whether such a system would be desirable and beneficial for judicial officers in this country.38 Unlike Samuels, Wood asserted that the fact that continuing judicial education is rapidly growing in the us and Canada is a good starting point; and the fact that it is strongly accepted and is expanding in England and Wales, is stronger evidence of its value. Wood argued from an examination of judicial education in various countries that judicial orientation training and continuing education are valuable and should be pursued. He justified judicial education – specifically orientation – in terms of the prevention of error: Avoidable errors in the conduct of trials, whether civil or criminal, involve considerable wastage of direct costs to the parties and the community. They are measurable; the indirect costs in terms of delayed lists, wasted demands on hard pressed prison and support services and the social services system, and the social and emotional harm to prisoners and civil litigants are not so easily measurable but they are nonetheless real.39 Wood justified judicial education on the need to prevent “avoidable” judicial error. Inevitably, he argued, there will be error and serious error, at first instance. Much of that error is obvious to experienced judges sitting at appellate level, and commonly the impression is gained that with orientation training and systematic dissemination of relevant decisions, it could have been 37 38

39

Richardson, 68. Wood J (a justice of the Supreme Court of New South Wales), “The Prospects For A National Judicial Orientation Programme In Australia,” Journal of Judicial Administration, 1993, 3, 75–95, 86. Wood, 87.

The Need For Judicial Education

37

prevented. The possibility that a judge will ultimately be held to be in error is an “inescapable” part of any system of administration of justice which had earlier been acknowledged by Gleeson in 1979.40 Wood argued that the avoidance of obvious mistakes in even a small proportion of the many thousands of trials conducted each year, would justify orientation training in the crude terms of cost benefit alone; however, the benefits are much wider, because what is on offer is the enhanced respect for a judiciary which is able to deliver justice more efficiently and effectively.41 Wood’s recognition of the benefits of judicial orientation marks an important turning point in the development of judicial education in Australia, and laid the foundation for conducting the inaugural judicial orientation program for new judges in 1994. The judicial ground swell of support for this innovation resulted in a majority of courts from Australia and Papua New Guinea participating in this course. The value of continuing judicial education has now also been endorsed by the chief justice of the High Court of Australia, Sir Anthony Mason, marking its formal recognition at the pinnacle of the judiciary. In commenting on a high level of participation in judicial education, Mason noted that, There has been some apprehension that educational programmes… [could compromise] judicial independence. So long as these programmes are left in the hands of the aija, the Judicial Commission and the courts, I do not think these apprehensions will be realized.… The need to maintain judicial independence is no argument against the desirability of judges becoming better informed.42

40

41

42

Gleeson AM (then leader of the Bar, and now Chief Justice of New South Wales), “Judging the Judges,” Australian Law Journal, 1979, 53, 338–347, 344; see also discussion of selection and competence in Chapter 7. Wood, 87. Dowsett earlier dismissed a similar argument as reflecting a “rather superficial and crude approach” to the function of appeals (Dowsett, 10); Wood cites 783 new appeals filed in the Court of Appeal, and 885 additional new appeals in the Court of Criminal Appeal in the Supreme Court of nsw during 1991. In the Court of Criminal Appeal the overall success rate of appeals ran at about 40%, although it obviously differed according to the type and origin of the appeal. He argues that any fractional reduction in the volume of these appeals would create substantial cost savings in direct and systemic terms. Mason A, “The State of the Judicature,” Monash University Law Review, 1994, 20, 1, 1–11; “Education programs for newly appointed judges may become more important if we appoint judges less well versed in trial procedure,” Mason A, “The Role of the Courts at the Turn of the Century,” Journal of Judicial Administration, 1993, 156–167, 166.

38

chapter 2

Similarly, Nicholson has now explicitly articulated the importance of continuing education to the judiciary as a profession: Judicial education is now an accepted part of judicial life in many countries… Judicial independence requires that the judicial branch is accountable for its competency and the proposition is now accepted as beyond debate.43 This recognition of the relationship between judicial education and independence is critical to the process of professionalization of the judiciary, having regard to the fundamental doctrinal importance of independence. Nicholson is not alone in identifying this relationship, which had previously been formally acknowledged as a rationale for continuing education in Canada.44 The policy of the Canadian National Judicial Centre includes: “To foster a high standard of judicial performance through programs that stimulate continuing professional and personal growth; to engender a high level of social awareness, ethical sensitivity and pride in excellence, within an independent judiciary; thereby improving the administration of justice.” Empirical data confirms that this recognition of the need for judicial education extends broadly throughout the ranks of the judiciary and the legal profession.45 Observations Following the first calls to introduce judicial education, the judiciary has been polarized into two factions. On the one hand, the progressives have advocated continuing judicial development to meet a variety of needs, most obviously transition to the bench and keeping up to date with changes in the law. On the other, conservatives have challenged the existence of any need for formalized education on the basis that properly selected judges should not need any assistance and, in any event, formalized education impugns public confidence in their competence and independence. Most recently, it has been seen that a consensus has emerged in favour of recognizing the benefits which judicial education may offer.

43 Nicholson RD (a justice of the Supreme Court of Western Australia), “Judicial Independence and Accountability: can they co-exist?” Australian Law Journal, 1993, 67, 404–426, 425. 44 National Judicial Centre, 1991–1992 Annual Report, Ottawa, 4. 45 The detailed findings of this research are outlined in Chapter 4.

The Need For Judicial Education

39

For the non-judge, the intensity of this debate may, at first, seem surprising – that is, until the significance of any suggestion of an underlying threat to judicial independence, and the traditionally informal and self-directed approach to professional development of judges, are fully recognized. Notwithstanding the recent recognition of the need for judicial education within the judiciary, many of the objections to continuing education raise substantive and valid doctrinal and educational concerns which must be accommodated in the development of any educational program. In essence, these concerns relate to the non-infringement of judicial independence, which can be addressed by the program being “judge-led” rather than externally imposed,46 and the importance of any education providing practical benefits which can be recognized by judicial learners themselves, rather than what others may think they ought to know. Formalization This debate centres, at least in part, around the issue of the extent to which continuing learning must be prescribed through formalized education and, ultimately, to what extent the process should be systematized. At one extreme, the spectre of formalized indoctrination is understandably anathema to successful self-directed lawyers appointed to the bench: it appears to be unnecessary, disempowering and doctrinaire. Many judges clearly have had a difficulty in acknowledging a need for formalized continuing education, particularly if it is externally imposed. For Hailsham, Samuels and Dowsett, for example, judicial education is seen as being at odds with merit selection: properly selected appointees to judicial office are innately experienced and skilled – if a lawyer is good enough to become a judge, then he or she is axiomatically good enough not to need to be educated how to become a judge – a delightfully self-serving proposition. For those at the other extreme, such as Burger, Mason, Richardson and Nicholson, any practical assistance provided through training and education is seen as an essential benefit. Such judges recognize a need to redress public perceptions of any judicial failure to reflect prevailing social values, for example in regard to gender or racial equality. 46

See, for example, Wood, 94. The concept of judicial education needing to be “judge-led” has become something of a mantra for judges. This concept is widely supported within the judiciary and has obvious importance in doctrinal terms by preserving independence and preventing external indoctrination; as an educational concept it is, however, limited in recognizing the need for educational expertise to enhance the process; see discussion in Chapter 7.

40

chapter 2

Professionalization, Independence and Accountability At yet another level, this debate reflects the process of professionalization. In this sense, the trend towards judicial education epitomizes the emerging recognition of the need for the judiciary to provide a means of social accountability, and to demonstrate that it is committed to address community concerns. Nowhere surrounding this debate is there any serious suggestion of systemic judicial incompetence; rather there is the submerged suggestion of judicial insensitivity and an aloofness too easily confused with the arrogance of a profession regarding itself above the community which it serves. In this sense, the importance of judicial education lies equally in the visibility of a concern to meet expectations of professionalism as it does in providing actual means of providing it; judicial education is as much about accountability as it is about competence. Most recently, there is growing evidence of an emerging moderate view which acknowledges that continuing education can assist judicial officers perform their duties. It is argued by Kennedy and Wood, proponents of this middle view, that judicial induction training and continuing professional development can reduce or remedy the incidence of what Gleeson described as “inescapable” judicial error, and facilitate the continual enhancement of judicial competence. Ultimately, this debate must be resolved at the philosophical level, and it is within this context that Nicholson’s articulation of the underpinning relationship between education and independence is of critical significance. On detailed analysis the objections of opponents to judicial education are predicated on the view of need as a deficit. This presupposes shortcomings in the competence of the judiciary and, arguably, implies judicial incompetence. Having regard to the merit selection process operating in Britain and Australia, for example, this may be inappropriate and perhaps provides grounds for departing from the American precedent. If need can be seen in terms of development rather than deficit, however, then the force of this objection loses its relevance in any debate on education. The effect of this is to refocus the debate from the need to remedy deficiency to the need for ongoing professional development. What remains of the arguments opposing the need for education are in fact arguments against excessive institutionalization of the education proc­ ess, which relate essentially to the means of providing education, rather than whether or not it is needed. The question to what extent judges should continue to meet educational need through informal self-directed learning, rather than through a formalized  education program, becomes critical at the curriculum development and  instructional design stages in providing that education. And at that

The Need For Judicial Education

41

point, objections relating to impairment of status and independence should, quite properly, be addressed through the means by which any education is provided.47 Elements of Need We have seen that there is an imperative for the judiciary to recognize the need for continuing education. This recognition has taken some thirty years to occur across the common system of justice, dawning first in the United States in 1963, and thereafter in Canada, Britain about a decade later. In Australia, since the need for judicial education was first broached by Kirby, a vigorous debate divided the judiciary. There are now crystalline indications that this debate has already resolved culminating in the endorsement of Chief Justice Mason in 1993. This recognition has also been confirmed by a significant shift in rhetoric from notions of “inescapable error” by Gleeson in 1979, to notions of “avoidable error” by Wood in 1993. This marks the end of the period of establishment of judicial education, and has foundational ramifications in terms of the evolving professionalization of judiciaries operating within the common law system. Recognition of the need for continuing education by the judiciary comprises two principle elements. These elements are, first, the need to train and educate new appointees to assume judicial office, to facilitate the transition from advocate to adjudicator, and to bridge the gap between inexperience and experience. Second, there is an acknowledged need to facilitate the ongoing professional development of judicial officers and to keep them abreast of change. In future chapters, an assessment will be made of the actual nature of these needs. As a part of this assessment, the threshold of judicial competence will be defined through an examination of the process and criteria of judicial selection which will provide the point of departure for any program of continuing education. A comparative analysis of empirical data gathered in the United States and Australia will then be made to provide a basis for defining underlying factors influencing these needs, and exploring means in which educational theory can be applied to meet them in practice. 47

In the past, judicial apprehension of continuing education was compounded by inappropriate connotations of a schools-based pedagogical approach arising from nomenclature of training and even education. These problems have been the subject of specific comment by the Judicial Studies Board: Judicial Studies Board, Report for 1983–1987, 13.

chapter 3

Judicial Selection Now search for able men among all the people, men who revere God, and are honest, men who despise unfair profit…and let them judge the people at all seasons.1 The quality of justice in any society is very much dependent upon the men selected to occupy the seats of judgment in that society.2 The actual procedures taken leading to judicial appointment tend to be clouded in secrecy and mystery.3 Judicial selection – in particular, the criteria and process of appointment to judicial office – has direct and major implications in defining the need for judicial education. It determines the standards of entry to the judiciary. In doing so, it provides insights on the issue of what makes a good judge.4 It also defines the threshold of judicial competence and, thereby, determines the point of departure for any program to meet the needs for continuing judicial education. While there is universal agreement that judicial selection should be based on merit, there is limited agreement on what constitutes merit. At a minimum, merit imports fundamental qualities of competence, integrity and temperament. There are, however, divergent views on what constitutes merit beyond this point. Analysis of selection practice in the United States, for example, discloses what will be seen as a formalized and relatively humanistic approach to selection which permits the appointment of academic and other non-practising lawyers, usually as the result of an elective process. In Britain and Australia selection is by appointment, and is based on a concept of merit which is viewed narrowly in terms of a forensic mastery of legal knowledge and 1 Exodus 18.21 and 22: Jethro to Moses. 2 Shetreet S, “Who Will Judge: Reflections On The Process And Standards Of Judicial Selection,” Australian Law Journal, 1987, 61, 766–778, 766; and see, generally, Shetreet S, Judges on Trial – a Study of the Appointment and Accountability of the English Judiciary, Oxford: North-Holland Publishing, 1976. 3 Kirby M, “The Judges,” The Boyer Lectures, Sydney: abc, 1983, 22. 4 An answer to this central question is sometimes sought from polling practising lawyers to obtain insights on what they perceive are the cardinal competencies. See, for example, Young P (commenting on a recent English survey of barristers), “What Makes a Good Judge?” The Australian Law Journal, 68, 485/6.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279261_004

Judicial Selection

43

court-craft, and operates in an informal process which lacks uniformity or transparency. Extraneous considerations, relating to political or social factors such as the emerging “fair reflection” doctrine, play a discernible role in the selection process. These considerations affect the application of the merit criteria and thereby the threshold of competence. Consequently, they also influence any assessment of the need for judicial education. A review of practice in the United States, England and Australia reveals that the needs for judicial education is affected by these different selection criteria and procedures. It will be observed that these needs can differ significantly in each common law system. In the United States, for example, new judges appointed by election may reflect prevailing social values and possess perhaps only elemental levels of trial experience. Conversely, such appointees in Britain or Australia may be selected on the basis of extensive forensic experience without necessarily taking into account broader humanistic qualities. Consequently, the needs for judicial education may vary. In the United States, it will be argued that the need for judicial education is to provide judicial competencies pertaining to knowledge of substantive law and procedure, and trial-based judicial skills for appointees lacking extensive practical experience and expertise. In Britain or Australia, it will be argued that the need for judicial education is to develop the art of judging which lies beyond the domain of technical competence, and to look outward in terms of the broader role and relationship of the judge in society.5 It follows that educators operating in the common law systems should assess the criteria and procedures for selection as an explicit and critical component of any assessment of the need for judicial induction and continuing education. Considerable caution should be exercised in the adoption of different models owing to the profound effects of selection practices on the need for judicial education. i Criteria Candidates for judicial office are generally required to meet two sets of criteria for appointment. These are eligibility and merit selection criteria. 5 See, for example, Mason A, “The State of the Judicature,” Monash University Law Review, 1994, 20, 1, 1–11, at 10: “I do not think that judicial education should be confined to the discussion of legal principles, judicial activities and court administration. Judicial education should extend to aspects of the intereaction between law and society.”

44

chapter 3

Eligibility Eligibility criteria formally determine who can be considered for judicial appointment by reason of education and professional qualifications. To be qualified for appointment to the High Court of Australia, for example, a person must either be or have been a judge of the Supreme Court of a state or a practising barrister or solicitor of not less than 5 years standing.6 Similar requirements exist for the Federal Court of Australia.7 A person must be a barrister of not less than 5 years standing or a solicitor of not less than seven years to be eligible for appointment to the Supreme Court of New South Wales.8 Broadly similar qualifications and experience are required for other courts throughout the common law world. Such criteria are exclusionary to the extent that only practitioners with a minimum of five years standing are eligible for consideration. In any merit system of appointment, these eligibility criteria have little practical impact on whom is selected; the more influential criteria operate at the selection level to determine whom among those practitioners who may be formally eligible is actually appointed. These are generally known as “merit” criteria although it will be seen that these criteria vary from country to country. Merit It is generally recognized that the quality of appointment to judicial office is critical to the quality of justice at large. In the words of Shetreet, The quality of justice in any society is very much dependent upon the men selected to occupy the seats of judgment in that society.9 What, then, are the qualities sought from candidates to judicial office in order to preserve and enhance the quality of the system of justice at large? Over 850 years ago, Maimonides, author of the Code of Jewish Law, chronicled ethical rather than intellectual qualities as the characteristics of a good judge: he proclaimed that wisdom, humility, fear of god, disdain of money, love of truth, love of one’s fellow men and a good reputation were the essential qualities of the judge.10

6 7 8 9 10

High Court of Australia Act (Aust) 1979, s 7. Federal Court of Australia Act (Aust) 1976, s 6. Supreme Court Act (nsw) 1970s 26. Shetreet 1987, 766. Shetreet 1987, 771.

Judicial Selection

45

More recently, Lord Halisbury, when asked as Lord Chancellor whether the best man would be appointed to a judicial position, is reported to have replied in a moment of aberration, Ceteris paribus be damned, I’m going to appoint my nephew.11 Since then, merit has become universally recognized as the basis for judicial selection. The International Bar Association Code provides in Standard 26, for example, that “[s]election of judges shall be based on merit.”12 Few would now dissent from the proposition put by Sir Harry Gibbs, Chief Justice of the High Court of Australia between 1981 and 1987, that merit – once comprehensively defined – ought to be a condition precedent to the appointment of a judge:– The selection of judges is of critical importance in the administration of justice and for the welfare of society as a whole. The work of a judge is too important to entrust it to a person of doubtful competence.13 The importance of the process of judicial appointment, and the qualities which it uses as the criteria for selection to judicial office, is underscored by Gibbs: Confidence in the laws, and in the judges who administer them, is an essential condition of an ordered, stable and civilized society. The confidence of the public in the judiciary can be maintained only if the judges are seen to be not only fully competent to perform their functions, but also independent, impartial and of complete integrity.14

11 Heuston RFV, Lives of the Lord Chancellors 1885–1940, Oxford: Clarendon Press, 1964, 37. 12 International Bar Association Code of 1982 of Minimum Standards of Judicial Independence (the iba Code); see also, Article 3, Syracuse Draft Principles on the Independence of the Judiciary: “Applicants for judicial office shall be individuals of integrity and ability, well trained in law and its application;” and, Article 5 provides for equality of access, without distinction on grounds of race, color, sex, religion, political opinion. See also: Article 2.11, Universal Declaration on the Independence of Justice. For a detailed discussion of international standards, see Shetreet, 1987. 13 Gibbs H, “The Appointment & Removal of Judges,” Federal Law Review, September 1987, 17, 141–150, 145 (hereafter: Gibbs, September 1987); See also Gibbs H, “The High Court and Judicial Appointment,” Judicial Officers Bulletin, Sydney: Judicial Commission of nsw, 1993, 5, 81–82. 14 Gibbs, September 1987, 141.

46

chapter 3

On the broad issue of merit, Shetreet agrees: If [judges] are professionally qualified and personally men of integrity and good character, the justice they administer will undoubtedly be of superior quality. Likewise, if they are independent, courageous and maintain high moral standards, the people will be judged fairly and justly and will enjoy adequate protection under laws of the society in which they live.15 At a systemic level, a consensus exists among jurists and commentators on the importance of merit appointment to the quality of justice. This consensus recognizes a close relationship between the concepts of merit and competence. It also recognizes certain common elements of merit appointment, including competence, independence, integrity, high moral standards, impartiality and fair treatment. The concept of professional competence is of particular importance to judicial educators, and is pivotal in any program of continuing professional development. In simple terms, the development of professional competence is the primary goal of continuing professional education.16 For present purposes, the reference to competence as being one of the fundamental criteria of merit selection postulates an important point of departure for judicial educators in defining the critical relationships between judicial selection, competence and education. Beyond these broad formulations of principle, however, there is less consensus on the notion of what “merit” means. Analysis reveals two fundamentally different approaches to implementing any process of merit appointment: the British approach, which is characterized by its informality, and the American approach which is formalized and relies on explicitly defined criteria. In Australia, the informal British approach has been consistently adopted at both a federal and state level, although more detailed analysis reveals a divergence of views on the subject. It follows that merit selection can mean a variety of things in practice, giving rise to different qualities and considerations in the process of selecting candidates to judicial office.

15 16

Shetreet, 1987, 766. In this context, competence is defined as the aggregate of knowledge, skills and attitudes required for proficient practice or, alternatively, the ability to perform a designated range of tasks through the application of knowledge and skills to the resolution of problems to measurable standards. For related discussion of competence, see chapters 1, 5, 6 and 7.

Judicial Selection

47

Informal Approach The British approach to merit appointment is hallmarked by its informality and lack of codification. This should not, however, imply any inconsistency of practice in approaching merit selection. The clearest statement of this approach was provided by Lord Hailsham in 1985, when he outlined the policy which he followed as Lord Chancellor in selecting candidates for the bench in England and Wales:– My first and fundamental policy is to appoint solely on merit the best potential candidate ready and willing to accept the post. No consideration of party politics, sex, religion, or race must enter into my calculations and they do not. Personality, integrity, professional ability, experience, standing and capacity are the only criteria… My overriding consideration is always the public interest in maintaining the quality of the bench and confidence in its competence and independence.17 This approach to the selection of judges concentrates on the outcome of the selection process, rather than attempting to codify its process. This emphasis has been described by Sir Robert Megarry, in similar terms to Lord Hailsham, as being, A cautious, informed, concentrated, professional, non-political search for the best person for the job, based on first-hand professional knowledge of each candidate’s status as an advocate and a person, and conducted among a relatively small field of well-seasoned and carefully selected advocates who have already had considerable judicial experience.18 These statements have been frequently quoted and endorsed by subsequent jurists in both Britain and Australia as distilling the principles of merit selection. Notwithstanding, it will be seen that these pristine principles are frequently, and perhaps consistently, diluted in the practice of the appointment process by the application of considerations extraneous to merit.

17

18

Lord Hailsham, Law Society’s Gazette, 28, Aug 1985, 2335; see also Judicial Appointments – The Lord Chancellor’s Policies and Procedures, London: Lord Chancellor’s Department, 1986. Megarry R, “Seventy-five Years On – Is the Judiciary what it was?” The Edward Bramley Lecture, 1984, 13; cited with approval by Gibbs H, “The Appointment of Judges,” Australian Law Journal, January 1987, 61, 7–11, 7 (hereafter: Gibbs, January 1987).

48

chapter 3

Formal Approach The American approach to judicial selection tends to emphasize a concern with the process as the means to ensuring merit appointment. The merit selection process is considerably more formalized than the British approach, and generally involves the codification of both criteria for appointment and standards of judicial conduct. This is most visible at the federal level but is also emulated in a variety of ways at a state level. Such formalization of approach has no equivalent in either Britain or Australia. At the federal level in the United States, nominees for judicial appointment are the subject of numerous investigations by governmental and professional bodies which include the Department of Justice, the Federal Bureau of Investigation, the American Bar Association, Congress and, finally, the White House. In particular, the aba conducts a highly detailed appraisal of each candidate which results in the Association providing a public advisory assessment for use in both elective and appointive processes. The aba’s Standing Committee on Federal Judiciary evaluates the qualifications of persons considered for appointment to the us Supreme Court, Circuit Courts of Appeal and federal District Courts. The Committee applies “predetermined and objective” evaluation criteria to assess the professional qualifications of the nominee, but not his/her ideology or philosophy. Assessments are made using three criteria: integrity, professional competence and judicial temperament. Following rigorous formalized investigations, nominees are rated as “well qualified” (“at the top of the legal profession” and “of outstanding ability”; or, in the case of candidates for the us Supreme Court, “of exceptional professional qualifications”), “Qualified” (meeting the Committee’s “very high standards”), and “not qualified”.19 Integrity is regarded by the Committee as being “self-defining”. The prospective nominee’s character and general reputation in the legal community are investigated, as are his or her industry and diligence.20 The Committee defines professional competence as encompassing such qualities as intellectual capacity, judgment, writing and analytical ability, knowledge of the law and breadth of professional experience. Substantial court-room and trial experience is important; additional experience which is similar to court trial work such as serving on administrative agencies or teaching trial advocacy is considered, as is significant evidence of distinguished accomplishment in the field of law. The Committee also makes explicit 19 20

aba Standing Committee on Federal Judiciary – What it is and how it works, American Bar Association, 1991, 7. aba, 1991, 3.

Judicial Selection

49

reference to principles of equal opportunity by recognizing the status of “women and members of certain minority groups” who may have had limited opportunities for advancement in recent years. Although trial experience is recognized as important, the Committee recognizes that this experience is of less importance as a qualification for appointments to appellate courts.21 In investigating judicial temperament, the Committee specifically considers the prospective nominee’s compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice. The aba Code is a model only and has no legal effect unless it is enacted as a statute or court rule. The current 1990 revision adds a preamble to the Code, which describes the importance of an independent, fair, and competent judiciary, and states that “judges must respect and honour the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.”22 Once appointed, judges in the United States are then subject to the Code of Judicial Conduct. Canon 3 of this Code provides that a judge should perform the duties of his or her office impartially and diligently, and specifies that:– a judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamour, or fear of criticism.23 Despite codification of appointment in the United States, some observers express scepticism about the effectiveness of formalizing that process. Public furore surrounding the recent appointment of Justice Clarence Thomas to the Supreme Court highlights the view that candidates may be appointed on considerations extraneous to professional merit – in this instance, for the political expedient of preserving a black jurist on the court of last resort. There can be little doubt that this nomination – having been justified without any reference to the fair reflection doctrine24 – impugned the transparency of the selection process and, thereby, perceptions of the integrity of the justice system in the eyes of many observers.25 21 22 23 24 25

aba, 1991, 4. Shaman JM, Lubet S and Alfini JJ, “The 1990 Code of Judicial Conduct: An Overview,” Judicature, 1990, 74, 21–27, 21. aba Code of Judicial Conduct, Canon 3, reprinted in Judicature, 1985, 69, 77–81, 77. See discussion on the fair reflection doctrine at 2, below. This assessment is based on numerous discussions between the author and jurists, academics, judicial educators and practitioners throughout the United States shortly following this appointment. The issue of extraneous considerations is discussed at 2, below.

50

chapter 3

Australian Practice Merit is the basis for appointment to judicial office throughout Australia, at both the federal and state levels. The Australian approach to judicial selection is informal and is based on the British rather than the American approach. This process lacks explicit criteria, and is not prescribed or codified in any formal way other than by customary protocol; and, to this extent, the process of judicial selection can be observed to change from attorney-general to attorney-general.26 Despite the lack of any formal, explicit or codified process in Australia, there has been an extensive discussion of merit appointment within both the judicial and executive domains. This discussion sheds much light on defining the criteria of merit. An analysis of this discussion establishes a clear and essential relationship between the concepts of merit and professional competence; however, there are two diverging schools of thought on what professional competence comprises, which can be described as the forensic and the humanistic concepts of merit. Forensic Concept of Merit Since the classic approach to the criteria for selection were chronicled by Maimonides, the forensic view of merit has in recent years become the dominant, traditional and prevailing approach to judicial selection in most systems. Advocates of the forensic, or rationalistic, interpretation of merit assess the qualities of candidates to judicial office within a narrow framework of technical competences which emphasises juristic knowledge and skills of court craft. Many jurists place paramount importance on qualities gained through experience as trial advocates at the bar. Gleeson, for example, argues that a judge ought to have: [A] close working knowledge of the rules of procedure and evidence, as well as the substantive rules of law that call for application in the jurisdiction in which he is sitting, and he ought also to be well versed, from personal experience, in the ways of advocates, litigants and witnesses (and, if he sits on an appellate court, of judges).27 26

27

The extent to which the attorney-general consults the head of the jurisdiction or the profession, and the extent to which any advice is accepted provides significant opportunity for different decision-making processes in selecting judicial candidates. Gleeson AM (prior to assuming the office of Chief Justice of New South Wales), “Judging the Judges,” Australian Law Journal, 1979, 53, 338–347, 340.

Judicial Selection

51

Humanistic Concept of Merit Advocates of the humanistic interpretation of merit assess the qualities of candidates to judicial office within a broader framework of human competences and the qualities which the judge, as a person, needs to provide in serving the community. Samuels describes the process of defining merit as being one which fills sitting judges with a “poignant appreciation of their own inadequacies, or, at least, of those of their colleagues.”28 He argues that the description of the ideal judge is similar to that of the ideal legal practitioner, with a few changes of emphasis and the express recognition that a little sound knowledge of legal principle is desirable: The ideal [judge] would have good powers of recall and of analysis, and an imaginative understanding of human nature…he would be a good listener with an instinctive capacity for understanding the significance of facts and for ordering, in a systematic way, a wealth of factual infor­ mation; he would have a feeling for ordered, concise presentation and good powers of communication; last but not least, he would have a sense of fairness and justice… Very few judges possess all these characteristics.29 Kirby emphasizes the personal qualities of common sense, courteousness, courage, honesty, and independence as essential for a judicial appointee.30 This view of the importance of broader characteristics of candidates for judicial office is endorsed by Kennan, when he argued that while the fundamental purpose of a judge is to be able to run a court, the judicial appointee needs to: show courtesy towards litigants, humility rather than arrogance, a good mind and a sense of compassion…and some interest in the technique of judicial administration.31 28 29 30

31

Samuels G, “Judicial Competency: How It Can Be Maintained,” Australian Law Journal, 1980, 54, 581–587, 585/6. Samuels, 586. Kirby M (then head of the Australian Law Reform Commission and subsequently a justice of the High Court of Australia), quoted in “Law Report,” Law Institute Journal, 1984, 58, 748–9, 748. Kennan J (a former attorney-general for Victoria), quoted in “Law Report,” Law Institute Journal, 1984, 58, 748–9, 748.

52

chapter 3

While it is acknowledged that these two approaches to the interpretation of merit are arguably gradations along a shared scale, the respective points of focus have important implications in determining from where candidates should be selected. Selection from the Bar The debate between the forensic and humanistic approaches to merit appointment determines not just the criteria for appointment but also the source of candidates. Advocates and barristers, as members of the trial bar, have traditionally dominated judicial appointments in both Britain and Australia, whereas in the United States non-advocate attorneys and legal academics are more regularly appointed. In Australia, this debate has until recently been dominated by the holders of the narrow, rationalistic view of merit who argue that the acquisition of forensic knowledge and skill is essential to judicial competence and can only be developed at the trial bar. It may not be altogether surprising that many of the staunchest proponents of this view are judges who were themselves barristers. Most recently, however, calls have emerged to reform and broaden this pool of selection. The practice of appointment from the trial bar is “unquestionably correct” in the view of Mason who argues that the fundamental task of the trial judge is to resolve disputes justly. This is accomplished by deciding the case on the evidence and applying principles of law which are for the most part well settled: Those who are experienced in court work, who know how to apply the rules of evidence and are accustomed to sifting and weighing evidence, will make the best judges.32 This view is supported by Gleeson who argues that judges require a close working knowledge of the rules of procedure, evidence and the substantive rules of law: the people most likely to have those qualities are, in his opinion, normally to be found amongst the more “experienced and eminent” members of the 32

Mason A, “The State of the Australian Judicature,” Australian Law Journal, 1987, 61, 681–688, 686. See also, Mason A, “The Independence of the Bench; The Independence of the Bar, and the Bar’s Role in the Judicial System,” Australian Bar Review, 1993, 10, 1–10, 3: “It has always been recognized that a career at the bar is more likely than any other to fit a person with the necessary independence of mind and skills to serve as a judge.… [T]he notion that lawyers inexperienced in court work can readily be transformed into competent judges by the simple expedient of a crash course is a dangerous prescription.”

Judicial Selection

53

bar.33 However Kennan adopts a softer line. He argues that judicial appointees require an understanding of court procedures, a good understanding of the rules of evidence and an understanding of forensic skills which are, for the most part, to be found in experienced or senior barristers, rather than solicitors or academics.34 In practice, the bar has been regarded by governments of all political persuasions as constituting the “natural and primary source” from which judges are drawn. But that is not to say that they are, or should be, the exclusive source, according to Gleeson: Skill in advocacy is not necessarily a qualification for judicial office. Indeed some of the qualities that are displayed by, and perhaps even account for the success of some of our leading advocates, are antithetical to the qualities required of a judge.35 Beyond the ranks of the judiciary and bar, there is increasing questioning of this narrow selection practice in the media, and calls for inclusion of other legal professionals to judicial appointment to emulate the broader American approach.36 Observations A consensus does emerge on the essential criteria for merit selection. These criteria are professional competence, integrity and temperament. The most important of these criteria, professional competence, has been alternatively defined in terms of requisite knowledge and skills in narrow forensic terms and more broadly in humanistic terms. Divergent concepts of judicial merit are apparent in approaches adopted in Britain and Australia, on the one hand, and the United States on the other. The former reflects a narrower, more traditionalist perspective which emphasises the forensic competencies normally attained from practising law as a trial advocate. These qualities relate to mastery of legal knowledge, evidence, 33 34 35 36

Gleeson, 340. Kennan, 748. Gleeson, 340. These calls are frequently reported in the press, and usually advocate selection criteria similar to those of the aba in order to promote the appointment of more women, solicitors and legal academics to the bench. For example, see Lawson V, “The Invisible Bar: How Women Lawyers are Kept Out in the Cold,” Sydney Morning Herald, 28 November 1992, 43; and, Voumard S, “Benchmark: what it takes to be a judge” Sydney Morning Herald, 3 June 1993, 11.

54

chapter 3

procedure and court-craft. This approach, which is markedly narrower than the American approach, favours trial advocates at the expense of other practising or academic lawyers. The alternative approach adopted in the United States tends to encompass a broader humanistic perspective and to place greater prominence on qualities such as fairness, human understanding, analysis and communication skills. Most recently, there are some emerging signs that moves are being made to modify the traditional forensic approach in response to calls to accommodate broader humanistic considerations. Any such shift, if apparent, is however being made informally. As merit criteria play a fundamental role in the selection of candidates to judicial office, these criteria also play a significant role in defining the threshold of judicial competence. Consequently, they are critically relevant in determining the nature of any program of continuing judicial education. It follows that ultimate resolution of this debate will in due course have a significant practical impact on the nature of judicial education both in terms of actual need (affecting content), and preferred learning styles (affecting instructional design).37 ii

Extraneous Considerations

Beneath the rubric of merit selection, a number of extraneous considerations play an informal but influential role in the outcome of the selection process. These considerations, which are predominantly covert, are of equal significance to judicial educators and must be identified and assessed in terms of their impact on the threshold of judicial competence and the nature of judicial education. These extraneous factors are most frequently political considerations and, depending on the context, can be seen as both proper – or, at least acceptable – and improper. Questions arise regarding the extent to which these considerations should be taken into account, and what effect they should play. These questions are extremely important to judicial educators as they affect the underpinning relationship between merit and competence: Must merit and competence invariably converge? Must the selected candidate also be the most 37

See discussion of need in Chapter 4, and of the application of learning theory to judges in Chapter 6. It will be argued that learning styles and practices are as significant as need in any education program. The learning styles and practices of judges, as former trial advocates, are distinctive and affect not just the content but also the instructional design of any program of judicial education.

Judicial Selection

55

competent? It will be seen that the answers to both these questions may on occasion be in the negative. Extraneous considerations are both inevitable and acceptable provided that they do not displace the fundamental criteria of merit. Thus, politically expedient appointees must also be competent; and, this competence must be assessable in forensic terms unless alternative humanistic criteria have been espoused. Political The existence of political considerations within the judicial appointment proc­ ess is highly sensitive. In simplest terms, many lay observers find a paradox in the doctrine of judicial independence resting, as it ultimately must, within an executive prerogative of appointment. This paradox gives rise to a questioning of the credibility of judicial independence which is seen as vital within any system of government based on the separation of powers doctrine and, more specifically, the Westminster system. It is perhaps for these reasons that selection authorities prefer to rely on the competency-based conception of merit as a trial advocate as the dominant quality for judicial appointment. Such explanations are however a public fiction; it is informally but universally acknowledged within executive, judicial and professional circles that a competency-based explanation of merit provides only a partial explanation of judicial selection practice. This situation presents a dilemma for the selection authority: on the one hand it is improper to violate the impartiality of justice; on the other, it is naive to disregard the existence of political considerations (which can be variously described as expediency or opportunism), that may not be entirely consistent with either a rationalistic or humanistic explanation of competence, integrity or temperament. The existence of political considerations, or patronage, is not isolated or unusual. In the American system, for example, it has been asserted that 92% of federal judges appointed by President Nixon were Republicans and 95% of the federal judges appointed by President Carter were Democrats.38 America, however, is not alone: in Canada, a special committee on the appointment of judges found in 1985 that political considerations were taken into account: Although the quality of the Canadian judiciary is good, it is uneven, with some of the more manifest weaknesses being attributable to patronage appointments.39 38 39

Megarry, 8; quoted with approval by Gibbs, September 1987, 144. The Canadian Bar Association, The Appointment of Judges in Canada, 1985, 49–50, quoted by Gibbs H, January 1987, 9.

56

chapter 3

In Britain, the standards espoused by Lord Hailsham have not always prevailed. As recently as 1932, Laski complained that political influence played too great a part in the making of judicial appointments.40 Politics and patronage also play a role in the selection of judges in Australia.41 Appointees, in an executive appointment system, generally have to be acceptable to political leaders. Thomson argues that judicial appointments are purely political acts made by politicians with political considerations. Naturally, politicians of a particular colour would prefer that a judge be of their own hue.42 Shetreet however disagrees. He argues that: [T]oday the tradition is firmly established that political considerations should play no part in the appointment of judges.43 So, how can these conflicting views be reconciled? Gleeson provides an explanation from the perspective of the judiciary which is as illuminating as it is pragmatic: There is nothing that makes one person appear more enlightened to another person than that the former agrees with the latter’s view. It is only human nature that politicians, like anybody else, tend readily to accept the notion that a particular person is wise and enlightened when they know that person shares their opinion on matters affecting law and society… That is just human nature.44 This sentiment is endorsed by Enderby from the perspective of the executive when he candidly remarks that most appointments tend to be made simply on the basis of personal knowledge: “It is as simple and brutal as that.… There is nothing sinister about it.”45 Similarly, Evans dispels any lingering illusions about the influence of political considerations when he describes the role of the courts and especially courts of ultimate jurisdiction such as the us Supreme Court, the House of Lords or the High Court, as being essentially political organizations: 40 41 42 43 44 45

Laski H, Studies in Law and Politics, London: George Allen & Unwin, 1932, 170. Gibbs H, “The State of the Australian Judicature,” Australian Law Journal, September 1985, 59, 522–528, 527 (hereafter: Gibbs, September 1985). Thomson RT, The Judges, Sydney: Allen & Unwin, 1987, 71. Shetreet, 1987, 773. Gleeson quoted in Thomson, 72. Enderby (a former federal attorney-general), quoted in Thomson, 76.

Judicial Selection

57

True that most [judges] would hate to be thought of as having any kind of political role; true they wear the guise of umpires rather than competitors in the contests that come before them, but what they do in resolving those contests has an enormous impact on how the country is governed.46 Gibbs endorses Shetreet to argue that politics should not be a shortcut or an impediment to judicial appointment.47 He recognizes what he describes as an “heretical” view in the eyes of many Australian and British – but not American – lawyers: the notion that it is proper to appoint judges whose social and ideological outlook is in sympathy with that of the administration. He then makes a very important qualification to the meaning of merit selection: If merit, as Lord Hailsham defined it, is not the sole criterion, it should always be an essential and dominant criterion of judicial appointment.48 The effect of these political considerations – albeit no longer “heretical” – has been that governments have, according to Gibbs, made appointments from time to time which fall short of the standards set by Lord Hailsham: Some appointments are made of persons who have not achieved the highest standard of professional ability and experience.… [S]ometimes the criterion of appointment may not have been merit.49 Gibbs concludes that, to achieve the result that only the best men and women available are appointed to the bench, more appears to depend on “disinterested statesmanship” than on any formal procedural safeguards, which are not likely to be effective if the will to make appointment on merit is lacking.50 Clearly, political considerations do intrude into the practice of selecting judicial appointments. This intrusion occurs at a number of levels: Evans, for 46 47

48 49 50

Evans (another former federal attorney-general), quoted in Thomson, 62. Shetreet, 1976, 75; and quoted with approval by Gibbs, January 1987, 10. Governments of both persuasions in Australia have made “political” appointments of former attorneysgeneral to the office of chief justice of the High Court: for example, Barwick CJ and Murphy J. Gibbs, September 1987, 145. Gibbs, January 1987, 9. Gibbs, September 1987, 146.

58

chapter 3

example, acknowledges that ideology is one; Enderby indicates that collegiality, or what the press in Australia might describe as “mateship”, is another. A further extraneous factor in the selection process centres on democratic considerations and the extent to which judicial selection should represent society through the composition of the bench. Social Representation and the “Fair Reflection” Doctrine The “fair reflection” doctrine requires that the judiciary should reflect through its composition the interests of the community which it serves. At its farthest, this proposition asserts that representation of social interests is a specific democratic criterion which should at least be of tantamount importance to others in the selection process to the bench. Ironically, the debate surrounding the propriety of these considerations arises precisely from the strictures which are imposed by any process of merit selection. In simple terms, proponents of this doctrine argue that the cast of eminent advocates, so extolled by its own members, lacks certain essential social qualities precisely because the forensic approach to merit is too narrow. Once again, this debate challenges the exclusive domain of the trial bar to serve as the reservoir of candidates for judicial office. Proponents argue that the trial bar is an excessively narrow reservoir from which to concentrate judicial selection, and that an inappropriate homogeneity, or bias, in the judicial value structure results which is non-reflective of broader societal diversity. Complaints of institutional bias are long-standing and their nature varies from critic to critic. Shetreet, for example, describes the concern that the judiciary does not reflect at all the diversity and variety of its national life, and observes that criticism of the narrow social, ideological or geographical background of judges has been recorded in numerous countries.51 These concerns are embodied in what he describes as the emergence of a conceptual approach which supports the “principle of fair reflection” of society by the judiciary.52 51

52

Shetreet, 1987, 776. See also, Neumann E, The High Court of Australia: A Collective Portrait 1903 to 1972 (Ed 2) Sydney: University of Sydney (Department of Government), 1973, 106. See also Weisbrot D, Australian Lawyers, Melbourne: Longman Cheshire, 1990; and, Galligan B, Politics of the High Court, Brisbane: University of Queensland Press, 1987. There are indications that reform of judicial selection may be imminent in Australia, for example: the fair reflection doctrine has been postulated for discussion by the federal Attorney-General of Australia: Lavarch M, Judicial Appointments: Procedure and Criteria, 1993, Canberra: Parliament House, 6. See also the Report of the Senate Standing Committee on Legal and Constitutional Affairs, The Cost of Justice, (Report 2): Checks and Imbalances, August 1993, in particular, Recommendation 2.

Judicial Selection

59

He argues that this doctrinal approach is mandated by the doctrine of substantive independence and is imperative for maintaining the value of public confidence in the courts: The process and standards of judicial selection must ensure fair reflection of social classes, ethnic and religious groups, ideological inclinations and, where appropriate, geographical areas…compliance with the principle of a reflective judiciary is subject to the requirement of maintaining the professional quality and the moral integrity of the judiciary.53 Traditionalists counter-argue that judicial independence and, indeed, the competence of the bench itself, would be imperilled by responding to extraneous considerations to redress these concerns. Gleeson is succinct in rebuffing the concerns: Judges are drawn from the ranks of lawyers. The “average” judge will only be a “typical” Australian to the same extent as the “average” lawyer is a typical Australian. To hear that the average judge does not have the same sociological characteristics as the “average Australian” is not a matter of great significance. What is of more significance is the extent to which he has the same characteristics as the “average Australian lawyer.”54 Meagher is reported to have gone further in scornful response to criticism of parochialism and insularity in the profession: An ideal legal profession should obviously be composed of 5% convicted criminals, 5% drug addicts, 5% dole bludgers and 30% cretins – just like the rest of the community.55 The doctrine is undeniably politically attractive because of its obvious populist appeal, however strenuously challenged by traditionalists. Equally, its effects on the nature and outcome of the judicial appointment process are potentially dramatic. For these reasons, the outcome of this debate will have important implications for judicial educators.

53 Id. 54 Gleeson, 341. 55 Meagher RP (a member of the nsw Court of Appeal); Stephens A, “Roddy Meagher: a Law unto Himself,” Sydney Morning Herald, 5 December 1992, 39.

60

chapter 3

Observations Three propositions emerge from this discussion. First, despite a superficial consensus on the criteria for judicial appointment, more detailed analysis reveals significant and generally concealed differences of opinion. Second, the diversity of opinion surrounding what properly constitutes criteria for selection is too fundamental to be concealed in the hope that it will resolve itself: the furore surrounding the appointment of Clarence Thomas in the United States, and the resistance surrounding a number of recent non-traditional appointments elsewhere, illustrate discord on issues of fundamental principle. Third, resolution to these differences will only become forthcoming through the formulation of explicit criteria which can be debated and agreed at a level of principle. The perceived integrity of judicial selection is enhanced by the extent to which it provides mechanisms for accountability. The United States approach aims to provide transparency through the formulation of process and the identification of explicit, ranked criteria. This approach appears more credible than the less formalized approaches operating in Britain and Australia which acknowledge merit as the only basis for appointment but which embody extraneous and covert considerations. Formulation of explicit criteria of merit is a difficult but crucial task, notwithstanding the example of Justice Thomas which illustrates that controversy cannot be eliminated altogether from the process. Formulation requires a clear definition of merit incorporating and ranking forensic competencies, humanistic qualities and any other appropriate considerations. Until a consensus on criteria can be agreed by the executive, judiciary and profession, it will remain difficult to predicate a threshold of professional competence to serve as the foundation for any program of continuing judicial education. iii

Models of Selection

Just as selection criteria determine the threshold of judicial competence, so the nature of the selection process underpins the application of these criteria to the point where it influences the outcome of selection and, thereby, that threshold of competence. The mode of selection is itself critical to the foundation of judicial education. It follows that a study of this process is illuminating in determining the need for judicial education. The process of judicial selection is determined by two main models within the common law tradition of justice. These are appointment, election and various combinations of each. The appointive method vests selection in the realm

Judicial Selection

61

of the executive, whether that be the head of state, a minister of state, or an agency of the executive such as a selection commission. Such appointments are subject to at least nominal confirmation by congress or cabinet. The elective method, on the other hand, involves some form of popular election. According to Shetreet, most countries employ the appointive method of judicial selection, and the general trend has been to move away from election.56 International and Regional Models At an international level, there is some uniformity of approach in various models to the principles of judicial selection. These models are notably general and conservative in their formulation, and have persuasive normative value but no prescriptive authority. Common to all is the paramountcy of the need for independence, rather than for merit as is found in most domestic, common law models. For example, Standard 3(a) of the International Bar Association Code of Minimum Standards of Judicial Independence, developed in Lisbon and Jerusalem and confirmed in New Delhi in 1982 provides that: 3a Participation in judicial appointments and promotions by the executive and legislature are not inconsistent with judicial independence provided that the appointments and promotions of judges are vested in a judicial body in which members of the judiciary and the legal profession form a majority. This model has acted as a touchstone for various subsequent formulations and, in the view of Shetreet, “represents a very good solution.”57 In the same year, lawasia adopted Article 10(c) of its Tokyo Principles which provide that there is no single mode of appointment essential for the proper appointment of judges; what is important is that persons appointed are fit to be judges, independent, and have capacity and integrity. Civil Law and Other Approaches Beyond the common law approach to justice, other models of appointment exist. These include a variety of elective processes involving the legislature and other bodies: in West Germany, for example, judges are appointed under a system of election by the legislature. In Israel, judges are selected by a committee 56 57

Shetreet, 1987, 768. Shetreet, 1987, 770.

62

chapter 3

comprising representatives of the legislature, executive, judiciary and bar. Under the civil or Roman system of law, judicial selection commences from the outset of a career in law when the graduate nominates a career-path in either the legal profession or the judiciary. These alternative approaches to judicial selection, and the ensuing career paths of judges under other systems, present fundamentally different needs for judicial education which, however potentially instructive, fall beyond the domain of the subject study. United States In the United States, judicial appointment is mixed at both the federal and state levels. Popular elections exist in some 33 states. In other states the method is appointive. In the federal system, appointment procedure is complex and protracted. At the level of the Supreme Court, selection is made by the President on nomination of the senior state senator, and is subject to investigation by the Department of Justice, the fbi, the White House and the American Bar Association prior to confirmation by the Senate’s Judiciary Committee. In some cases judicial selection combines elements of both election and appointment. Under this model, known as the Missouri Plan, the Governor of the state appoints a judge from a list of qualified candidates screened by a nominating committee. Within a year after appointment, the judge must stand for election, where he can be confirmed or recalled. The justification for judicial election is essentially democratic. The court system was established throughout the United States in the mid-nineteenth century when, according to Shetreet, Jacksonian democratic ideals were at their peak. The predominant justifications for the elective method of selecting judges are generally the desire to assure that judges are responsive to community wishes and views, to democratize the process of judicial selection and to assure balanced representation of all shades of opinion and social cross-sections on the bench.58 Supporters of the elective method argue that it provides accountability to the judiciary, and they point to the extreme difficulties of removing unsuitable judges who hold office under an appointive system. Detractors argue that the general electorate is ill-equipped to exercise effective accountability within the esoteric domain of the law and, in any event, the integrity and impartiality 58 Id.

Judicial Selection

63

of the law is compromised in the inevitable politicisation of the election process. Britain In Britain, the Lord Chancellor, the Law Lords and other superior court judges are appointed by the Queen on the advice of the Prime Minister. Other judges are appointed on the advice of the Lord Chancellor. The task of finding judicial candidates is performed by the Lord Chancellor’s staff who consult extensively with the judiciary and the profession in an elaborate selection system designed to discover the fitness of potential candidates. It is the practice of the Lord Chancellor to consult in particular with the Head of the Division in which he or she is called upon to fill a vacancy. This selection policy is bipartisan; it is supported by tradition and protocol only, and has no constitutional or legal foundation. The British approach incorporates an interim selection step into the judiciary. Under the Recorder system, barristers selected on merit for consideration to a judicial position on the bench of the Crown Court undertake the part-time duties of Recorder for one or two years under the tutelage of a sitting judge. This on-the-job judicial apprenticeship has much to commend itself for both the selection authority and the candidate, and provides both parties with an opportunity to assess prospects. This system of on-the-job judicial preselection has no equivalent elsewhere, other than in the Missouri Plan. Australia In Australia, selection is appointive. At the federal level, Section 72 (i) of the Australian Constitution provides that Justices of the High Court and of other courts created by the Parliament shall be appointed by the Governor-General in Council. Beyond this formality, there is no code or prescribed steps, nor is there even a check-list published to show new ministers how to find a new judge. What this means, according to Evans, is that “the privilege of appointing judges belongs solely to the executive government of the Commonwealth”.59 It also results in the development of informal protocols operating within the respective terms of successive ministers. Under the prevailing protocol, judicial appointments are made by the crown on the advice of the relevant minister, that is, the relevant attorney-general. Normally it is the attorney-general who offers the name of a nominee to cabinet. Except as to appointments to the highest or most sensitive judicial offices, it is the attorney-general who nominates and makes the selection. In the case 59

McMillan, Evans, Storey, 277.

64

chapter 3

of appointments to the High Court, and especially the appointment of the chief justice, the prime minister, however, usually takes a close interest. When the attorney-general is satisfied that he or she has the right potential candidate, he or she places the name before cabinet for formal endorsement.60 Theoretically, the attorney-general presents a list of prospective appointees for cabinet approval. In reality, postulates Thomson, cabinet is a rubber stamp:– Staff in the attorney-general’s department have been known to boast that they are “judge makers” because of the influence they have on the selection of judges by advising the AG [sic] on the likely talent.61 The operation of this protocol reveals that bureaucrats, being unelected “faceless” officials, can in practice play a potentially significant role in the process of judicial selection. Given the importance of the selection process to the quality of justice, the lack of accountability through any formal process, except at a political level, is inappropriate and discloses an extraordinary gap within the framework of civic safeguards. In certain states, including New South Wales and Victoria, a hybrid of the ministerial and the appointments commission models operates in the form of selection panels for appointment to magistrates’ courts.62 Implications for Judicial Education The distinctions between the appointive and elective models of selection have radical and far reaching implications for judicial educators. Under the appointive system, certain identifiable selection criteria – whether explicit or extraneous – determine the outcome in the process. As a result, an appointive process enables judicial educators to make certain precise assumptions of merit in terms of the competences, knowledge and skills of judicial appointees. Under the elective system, however, a limitless variety of considerations may influence the process and its outcomes. These considerations include assessments by professional associations such as the aba. They may also 60 61 62

Virtue B, “Choosing Federal Judges – is there need for a new approach?” Australian Law News, 1986, 21, 11, 7–9, 7. Thomson, 72. These selection panels advertise publicly for applications to the judicial office of magistrate. Applicants are screened and interviewed by this selection panel comprising the head of jurisdiction and senior representatives of government and both arms of the legal profession. The selection panel then prepares a short-list of suitable candidates for the consideration of the attorney-general who preserves his prerogative by selecting from this list. Formal selection criteria are generally not used by the panel.

Judicial Selection

65

include de facto political patronage in ostensibly non-partisan ballots. In addition, the media can play an active and substantial role in commenting on judicial elections and in promoting particular candidates editorially or through advertising campaigns, as it does in the United States. The elective process appears to be more dynamic, democratic and accountable than the appointive process. Equally, assessment of elected candidates is likely to be based on populist humanistic qualities rather than on their professional or forensic competence in an election campaign. It follows that the elective process shifts the assessment, evaluation and accountability of judicial candidates from the forensic criteria which prevail under an appointive system to predominantly humanistic criteria. Consequently, the role of the judicial educator is significantly affected by the nature of the selection process within which he or she operates. Under an appointive system, educators can draw reasoned inferences about the threshold and nature of professional competence of judicial appointees based on forensic criteria of merit; under an elective system, educators must specifically discern and measure the level of competence of appointees prior to laying the foundation of any program of judicial education or, more systemically, they must lay a foundation which by necessity may be more elemental in forensic terms than under an appointive selection process. iv Consultation One further aspect of any examination of the relationship between the selection process and judicial competence involves an assessment of the role of consultation on the final outcome of appointment. How does the process of consultation affect the outcome of judicial selection and, thereby, the need for judicial education? The appointive process embodies a consultative element, which is either formal or informal, that can play an active role in the selection process and can also have significant implications on the outcome of selection. The identities of the parties consulted, the nature of their relationships and the extent of formal or informal consultations can all have a significant influence on whom is finally appointed, the resulting threshold of competence and, thereby, the need for judicial education. Under the appointive model, there is a well observed although informal protocol of consultation undertaken by the selection authority which involves the executive, the judiciary and the legal profession. Given the operation of this protocol, the question then arises, to what extent do such consultations affect

66

chapter 3

selection? Before the effects of this consultation can be assessed, it is useful to analyse the nature of any consultative involvement. The nature of these consultations is determined by the nature of the relationship between the parties. In Australia, for example, these consultations are informal and normally embrace the head of jurisdiction of the relevant court, as well as representatives of the bar and the law society. Under the federal system, the attorneygeneral is required by the law to consult his or her state counterparts on proposed appointments to the High Court.63 However there is no constitutional or statutory obligation to do more than consult, and this obligation does not extend to other federal or any state courts.64 Indeed, according to Gibbs, there is in fact no settled practice to consultation on a prospective appointment: Sometimes an appointment may be made without any consultation. At other times the advice given by those consulted may be ignored.65 In New South Wales, there is an informal tradition for the attorney-general to consult with the chief justice, the relevant head of jurisdiction and the leader of the bar before submitting names to Cabinet.66 Gleeson remarks: There does not seem to be any settled practice as to consultation and inquiry. Presumably a good deal of informal consultation goes on.67 Peer Review It can be deduced that the informal consultative process of selecting judicial appointees involves a measure of peer group review. This review process embodies no formalized appraisal mechanism nor any notion of measurability of specific competencies. While the process evidently varies from selection authority to selection authority, it generally appears to consist of the selection authority sounding out informal responses from the other parties on his proposed nomination. It is understood that the head of jurisdiction can usually exercise an informal right of veto. However this veto is a matter for negotiation, 63 64 65 66 67

High Court of Australia Act (Aust) 1979, s 7. Kirby, 1983, 22. Gibbs, January 1987, 11. Personal discussions with senior members of the judiciary in New South Wales; see also, Shetreet, 1987, 767. Gleeson, 339.

Judicial Selection

67

and a certain amount of gentlemanly bargaining and even arm-bending has been suggested from time to time. There are examples of this veto being overruled by the selection authority, doubtless to the subsequent discomfort of the appointee. There are also examples of the process being reversed to the extent that the attorney-general may invite suggested nominations from the head of jurisdiction or, perhaps other parties. It is clear that the nature of this highly informal process is largely determined by an individual minister exercising the selection prerogative, and his or her ability to collaborate with chief judicial officers.68 While it has been seen that the American and British approaches to the assessment of merit are, respectively, more or less formalized, this assessment is ultimately dependent on the confidence of the judicial and practising profession in the competence of the appointee. As such, it is observed that the opportunity for peer review is an indispensible element in the assessment of judicial competence which is more important than the degree of formality of the process itself. In summary, a study of judicial selection provides important insights into the notion of what makes a good judge. It illuminates important relationships which exist for judicial educators between the selection process, the threshold of judicial competence, and the need for judicial education. This threshold of competence serves as a foundation for any program of continuing judicial education, and these relationships have important bearing on the content and direction of any program of judicial education. The nature of the relationships between selection, the threshold of judicial competence, and the need for judicial education is significantly affected by a number of extraneous factors. These factors most immediately include covert political considerations, and an emerging doctrine of fair reflection based on principles of social representation. In essence, these relationships arise from a universal recognition of merit as the basis for judicial selection. It has been seen that merit is a concept with two divergent meanings: the traditional and prevailing concept of merit is relatively narrow and focuses on a forensic, technically-based assessment of professional competence (relating to knowledge of substantive law and evidence, procedure and skills in court-craft); the alternative approach to merit is based on an assessment of broader humanistic considerations (relating to the capacity for fairness, attentiveness, analysis, and good communication). Radical and far-reaching implications emerge for judicial educators from the difference in the elective and appointive selection processes, in terms of 68

Personal discussions with senior members of the judiciary in New South Wales.

68

chapter 3

the need for judicial education. The process of appointive selection, on the one hand, tends to focus on forensic criteria of merit which render it reasonable to infer certain levels of technical legal competence in appointees to judicial office. The process of elective selection, on the other, tends to promote accountability and is better suited to applying broader humanistic selection criteria. From these observations, it can be reasoned that elective selection has the potential effect of lowering the forensic foundation of competence, whereas appointment has the potential to narrow the range of competencies of those new judicial office-holders. These observations do not infer that either those elected to judicial office lack competence or that those appointed lack sensitivity or social awareness. Notwithstanding, this distinction has fundamental implications at a systemic level for judicial educators, and gives rise to the major differences in the role of judicial education throughout common law systems, as seen in the United States, Britain and Australia. The nature and process of judicial selection is a dynamic and critical factor in determining the threshold of judicial competence and requires the specific attention of educators in laying the foundations of any program of continuing development for judges. The threshold of the need for judicial education is determined by notions of merit which can be discerned from the selection process. This threshold varies from one system of justice to another: in Australia, for example, it may be concluded from the application of eligibility and selection criteria that appointees to judicial office are forensically competent lawyers with a mastery of substantive law and court craft, integrity and, it is to be hoped, an appropriate temperament.

chapter 4

Assessment of Need As the cost of [education] programs increases, the importance of needs assessments increases.1 [Needs assessment has been described as] a difficult process surrounded by fuzzy thinking on the one hand, and the most persistent shibboleth in the rhetoric of adult education program planning on the other.2 Judges’ reasons for participation in continuing professional education revolve around a complex set of needs and may vary based on personal and professional characteristics.3 Once the need for judicial education is accepted, it is important to assess the nature of that need in order to define the rationale for any program of judicial education. Needs assessment plays a foundational role in the development of judicial education: it provides a means of accountability for any educational intervention, and a procedure for defining objectives, content and direction.4 The study of reasons for participation in continuing education discloses the nature of learners’ perceptions of need which is a fundamental, although incomplete, component of any educational needs assessment. This chapter reports on the findings of empirical research and analyses the reasons of judges and tribunal members for participating in continuing education. These reasons are compared with those of lawyers, other professionals and adult learners at large. In essence, the study finds that there are distinctive reasons for judges’ participation in continuing education relating to 1 Brackhaus B, “Needs Assessment in Adult Education: Its Problems and Prospects,” Adult Education Quarterly, 1984, 34, 233–239, 237. 2 Pennington FC, “Needs Assessment: concepts, Models, and Characteristics,” in Pennington FC (Ed) New Directions for Continuing Education (No 7): Assessing Educational Needs of Adults, San Francisco: Jossey-Bass, 1980, 1–13, 1. 3 Catlin DW, The Relationship Between Selected Characteristics Of Judges And Their Reasons For Participation In Continuing Professional Education, unpublished doctoral dissertation,  Michigan State University, 1981, (hereafter: Catlin, thesis), 119; see also, Catlin DW, “An Empirical Study of Judges’ Reasons for Participation in Continuing Professional Education,” The Justice System Journal, 1982, 7/2, (hereafter: Catlin, Justice System Journal), 236–256. 4 An earlier version of this chapter has been published in University of New South Wales Law Journal, 1993, 16, 536–584.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279261_005

70

chapter 4

professional competence, collegial interaction and professional perspective. These reasons distinguish judicial learners from the considerably broader personal-development purposes of adult learners, on the one hand, and the career-development purposes of professionals on the other. It will be argued that the development of competence is distinctively seen by judges as a reward unto itself, which is reinforced by a perception of public duty, job security, and an absence of any promotional prospects. In this sense, judicial education is seen as a dedicated means of continually enhancing competence, and epitomizes the process of judicial professionalization discussed in Chapter 1. These empirical findings have particular implications for judicial educators. First, they extend existing theoretical work by identifying three additional characteristics which affect the perception of need and thereby participation in continuing judicial education. These characteristics are “prior education” (or qualification), “position” (rank and/or nature of judicial duties), and “situation” (location and size of court). Second, analysis of these findings provides an important conceptual means to structure judges’ needs in a manner which is amenable to an educational response. By defining the nature of the need for judicial education in terms of “content”, “level of application”, and “manner of delivery,” it is possible to develop educational services for judges which operate within a sound policy-based and curricular framework.5 Finally, the data from these empirical findings serve as the benchmark of need against which educational effort can subsequently be evaluated in terms of its efficiency and effectiveness.6 Rationale for Assessing Needs Assessment of the need for judicial education, and the selection of an appropriate methodology for discerning the nature of this need, is of critical importance in determining the foundations of any program of continuing judicial education. The credibility of any program of judicial education depends, at least in part, on demonstrating that this assessment of needs has been undertaken in a way which has validity and reliability. This credibility depends on the methodology of the process (in terms of its research efficacy), its appropriateness (in terms of its acceptability within the judiciary), and its utility (in terms of the relevance, practicality and value of its findings). Accordingly, this study reviews the literature of needs analysis in order to discern the general criteria from which a methodology can be selected which is appropriate for judicial 5 The nature of this framework is the subject of detailed discussion in Chapter 7. 6 The evaluation of judicial education is discussed in detail in Chapter 8.

Assessment Of Need

71

education. This methodology will then be applied in a variety of comparative assessments in order to generate data upon which to base programs of judicial education. Education needs have been assessed informally over the centuries. However, it was only in the 1960’s that they became more formalized when federal grant programs for education responded to calls for increased accountability and performance in the United States. What has followed in the succeeding thirty years has been a steady increase in the systematization of this process.7 In Brackhaus’ words, Needs assessment is both cost effective and essential for adult education programs which are very expensive to run. Accountability is increased because needs assessments provide a rational basis for decisions and increase the likelihood that programs will be successful. As the cost of programs increases, the importance of needs assessments increases.8 Needs assessment, or “training needs analysis” as it is often described, is the means by which educators justify educational intervention. It is the first step in identifying educational activities that will help judges or any other personnel improve their performance.9 Hudzik defines educational and training needs assessment in terms of problem diagnosis. He see it as a process of gathering and analysing information which identifies problems and opportunities which can be addressed through education and training. Educational needs assessment is concerned with providing data which lead to instructional solutions for performance deficiencies for those working in the court system. Needs assessment helps identify what should be taught to whom, when, how and why. In a world of limited resources, needs assessment also helps set educational priorities.10 7

8 9

10

Grabowski SM, “How Educators And Trainers Can Ensure On-the-job Performance,” in Grabowski SM (Ed), New Directions for Continuing Education: Strengthening Connection between Education and Performance, San Francisco: Jossey-Bass, 1983, 5. Brackhaus 1984, 237. Queeney DS, Needs Assessment, Adult Education Perspectives for Judicial Education, Judicial Education Adult Education Project (jeaep), Georgia: University of Georgia, 1992, 3.1–3.19, 3.1. Hudzik JK, Judicial Education Needs Assessment and Project Evaluation, Lansing, Michigan: Judicial Education Reference, Information and Technical Transfer Project (jeritt), Michigan State University, 1991, (hereafter: Hudzik, Needs Assessment, 1991), 2 and 8–9.

72

chapter 4

Not all planning situations however may require a needs assessment. The resources of time, energy or money may not be available. As Sork argues: Needs assessment is not [sic] an essential step in designing effective and efficient continuing education programs. Some method of justifying and focusing programming efforts is often required, but there are legitimate alternatives to needs assessment.…11 The purpose of any training needs analysis is to provide information for planning and may result in identification of goals, determination of goal attainment, and the specification of what resources should be allocated for the exercise.12 Pennington argues that training assessments accomplish three purposes. They promote analysis of clientele, identify program topics or content, and provide a means for the systematic identification of discrepancies that can be reduced by instructional intervention.13 The results of needs assessment activities accordingly can have a major impact on persons who provide instructional leadership by supplying reasoned descriptions of the clients and their needs. In addition, needs assessment can be useful in eliciting political support for programs and services.14 Pennington recounts that needs assessment has been called “a difficult proc­ ess surrounded by fuzzy thinking” on the one hand, and “the most persistent shibboleth in the rhetoric of adult education program planning” on the other.15 He proposes a middle course: that training needs analysis brings with it the notion of methodological validity and systematic rigour which can make a potent contribution for allocating resources to plan, implement and evaluate programming for adult learners. He observes that the literature indicates widespread dissatisfaction with the infrequency of careful assessment activities and the lack of clear guide-lines for such activities, adding that,

11

Sork TJ, “Needs Assessment as Part of Program Planning,” in Gessner Q (Ed) Handbook on Continuing Higher Education, New York: MacMillan, 1987, 125–141, 127. 12 Suarez TM, “Needs Assessment Studies,” in Husen T & Postlethwaite TN (Eds), International Encyclopaedia of Education, Oxford: Pergamon, 1985, 3496–3498, 3496. 13 Pennington FC, “Needs Assessment in Adult Education,” in Husen T & Postlethwaite TN (Eds) International Encyclopaedia of Education, Oxford: Pergamon, 1985, 3492–6, 3493. 14 Hudzik, Needs Assessment, 1991, 9. Training needs analysis can serve as a marketing device for convincing the judicial education governing authority and potential participants that educational resources should be applied to addressing the problem or opportunity. 15 Pennington 1980, note (2), above.

Assessment Of Need

73

[N]eeds assessment studies do not necessarily produce sound “hard” data; rather, they are imperfect efforts for assessing, as yet, poorly understood concepts. It is impossible to plan without the type of data generated by such studies but much work remains to be undertaken to improve such studies before they can be used in a routine way.16 Despite these shortcomings, Pennington argues that results from needs assessment studies provide data for making judgments on program impact, and planning data for projecting alternative mechanisms to reduce the gap between current and desired circumstances. These results can, [H]elp curtail the application of anaemic interventions by zealous continuing education practitioners to problems of major complexity and substantial difficulty.17 For Hudzik, the outcome of the needs assessment process should include the documentation of a gap in performance terms, attributable to discrepancies in knowledge, skills, attitudes or competencies, which can be addressed and will stand a reasonable chance of positively affecting performance.18 In essence, the rationale for formalized needs assessment has historically been to provide improved accountability. Overlaid on this usually externallyimposed requirement has been a trend towards an increasingly “scientific” approach. This has often led, it may be suspected, to confound the obvious, thereby overburdening the means to research and plan any educational intervention to ensure its effectiveness. i

Methodology and Technique

It has been seen that educational needs analysis identifies instructional solutions for performance discrepancies. This process can be undertaken through a variety of methodologies and techniques. Selected techniques combine to provide an appropriate assessment methodology which offers validity, viability and utility within the context of judicial education. These techniques, 16 Pennington 1985, 3495. 17 Pennington 1980, 100. 18 Hudzik, Needs Assessment, 1991, 36. Well designed programs must deal directly with specific, achievable performance changes that are important to the adult learner, are amenable to an educational intervention, and can be readily documented.

74

chapter 4

which have been applied and tested in practice, are consultation (both within and beyond the judiciary), surveys, and appraisal of courts’ management data. For informed and systematic educational planning, there is clearly a need for data. This data plays an important role in integrating objectives to outcomes, and reconciling needs assessment to evaluation, in what Ulschak has described as a perpetual training cycle.19 There is no single “right” methodology to collect this data, provided that the data collected has validity and reliability.20 In fact, most needs assessments employ a variety of systematic methods to collect data from persons who can effect or are affected by the problem being examined.21 The data can be objective or subjective, and quantitative or qualitative.22 Traditionally, there has been a leaning towards an objective, quantitative, “scientific” approach to the collection of data as being the most credible means to supply reliable data on which to base educational planning decisions. More recently, however, the value of combining qualitative, even anecdotal, data has become increasingly recognized, resulting in greater integration of methodologies. Approaches There are a number of different approaches to assessment methodology. These include what Pennington describes as: 19

20

21 22

Training operates within a perpetual cycle comprising analysis of the performance problem, setting performance standards, conducting the assessment, defining training objectives, designing curriculum, selecting delivery methods, conducting training, evaluating results against objectives and, finally, refining the cycle. Ulschak F, Human Resource Development: The Theory and Practice of Need Assessment, Reston, Virginia: Reston, 1983, 10. Compare with classic model of adult education proposed by Tyler, comprising identifying needs, defining objectives (preferably in behaviourist terms), identifying learning experiences, organizing learning experiences, and evaluating program outcomes. Tyler RW, Basic Principles of Curriculum and Instruction, Chicago: University of Chicago Press, 1949. Witkin BR, Assessing Needs in Educational and Social Programs, San Francisco: JosseyBass, 1984, 29–60, 29. Witkin identifies a number of steps associated with nearly all systematic educational needs assessments, which include planning, data selection, sources, collection methods, and sampling issues; Witkin, 32–36. Pennington 1980, 8. “Qualitative” research favours the view of social reality which stresses the importance of the subjective experience; compared with a view which treats the social world like the natural world – as if it were a hard, external and objective reality, described as “quantitative”; see discussion on evaluation techniques in Chapter 8.

Assessment Of Need

75

• The diagnosis or medical model – this approach describes need in terms of a performance deficit, and views need as something whose absence or deficiency proves harmful. • The analytic model – defines a direction in which improvement would occur given information about the status of a person or a program, focusing on improvement rather than remediation. • The democratic model – involves interactive and collaborative efforts using a variety of techniques to diagnose problems, establish consensus and address dissension.23 In practice, realities of staff, time and money, availability of expertise and organi­ zational politics will contribute as much as any other reasons to the final selection of approach. Preferred Approach An approach frequently used in judicial education is the democratic model of assessment, although there may be greater use of other models in the United States stemming from externally and internally recognised performance deficits, for example in case management technique.24 Experience and observation of practice in Australia tends to indicate that the diagnostic model is not appropriate for judicial education. There are three reasons which militate against the diagnostic approach. First, judges appointed on merit generally challenge the existence of any implicit need for remediation which may be inherent in conventional approaches. Secondly, judges generally hold strong views on collegial equality, as an integral element of the doctrine of judicial independence (that is, judges must remain free from influence – both from outside and, also, within the judiciary). Finally, judges operating particularly within the English, Canadian and Australian systems tend to regard any suggestion of performance appraisal – other than through the formal appeal process – as anathema to judicial independence. As a result, educators prefer to utilize alternative assessment models. In practice, it is observed that most assessments adopt the democratic approach to identifying need. This methodology is usually selected as it is seen to be the most likely to secure judicial support and a sense of ownership in the process, rather than hostility and non-participation which could be anticipated from either the diagnostic or analytic approaches. This selection is not 23 24

Pennington 1980, 5–7. See also Ulschak F, 60–66, who identifies and defines a range of techniques including Nominal group, Delphi and Critical incident. Discussions, Hudzik JK.

76

chapter 4

without its shortcomings, however. These shortcomings are that it may on occasion lack critical or analytical vigour, and that its insights may be limited to the perspicuity of its participants. Reliance on self-perceived needs, while potentially useful, is hardly sufficient in itself. The limitation of individuals to diagnose their own needs, as distinct from wants, is well documented.25 Particular Techniques Within the framework of these broad approaches, there is a choice of techniques from which to select in any assessment situation. These techniques are outlined by Ulschak: • Classic methods – these consist of obtrusive techniques such as surveys and questionnaires, consultations, interviews, group discussions, functional job analysis and skill tests; and unobtrusive techniques, such as observation of work performance, inspection of records and work samples.26 • Workshop methods – these consist of more innovative, participatory techniques including search conferences, delphi, critical incident, nominal group technique, performance appraisal and exit interviews. Brainstorming is an essential element of many of these approaches where there is a need to obtain a broad range of ideas, without any initial critique, in order to undertake detailed analysis and appraisal subsequently.27 Many of the theoretical techniques of data collection are drawn from the literature of human resource development or corporate settings. In practice, 25

26

27

Queeney, 3.2. See also discussion on the “Dr Fox Effect” in Chapter 8; and, Williams RG, Ware JE (1976), Validity of Student Ratings under Different Incentive Conditions: a further study of the Dr Fox Effect, Journal of Educational Psychology 14, 449–457, cited in Houle CO, Continuing Learning in the Professions San Francisco: Jossey-Bass, 1980, 245–6. Selfdiagnosed needs are significant, whether described as authentic needs or subjective wants. They reflect the perceived concerns and priorities of the client body whose motivation and participation is integral to any effective educational response. There has been limited functional job analysis of judicial practice to date. Such analysis identifies in usually behavioural terms the component tasks and skills required to discharge the role. See in the related field of legal education: Gold N, “Taking Skills Seriously: A Research Perspective,” Journal of Professional Legal Education, 1987, 5, 64–71; and Towards a Curriculum for Continuing Judicial Education: Establishing Judicial Competencies, 1994, University of Windsor (unpublished paper). In practice, it is observed that “pure” clinical methodologies are rarely viable with judges owing to the constraining influence of practical or judicial mores; see Ulschak F, 1983, 60–66.

Assessment Of Need

77

many of these techniques are not appropriate or applicable in the judicial context where decentralized, independent or semi-independent trial court personnel systems predominate.28 Skills testing, for example, while conventional in occupational training or any schools-based systems, is unacceptable to judges who are sensitive to preserve the independence of their position, and uncomfortable in surrendering the authority and credibility of their role in any other way than a formal appellate process; inspection of management records may only be possible through the co-operation of separate court service departments; and appraisal of work is limited in any judicial management model to an analysis of appeals and complaints data. Data from surveys, questionnaires and participant interviews provides, at best, a barometer of participant satisfaction – a very distant measure of educational effectiveness. Such data frequently ranges from the incidental to the anecdotal and, in formalistic terms, has limited quantitative value. For this reason, Pennington observes that meaningful surveys are much more difficult to design and undertake than any of the other form of needs assessment.29 Notwithstanding, such instruments can have value as an important visible means to promote a sense of ownership within the client body, thereby instilling a participants’ stake in the process, and enhancing the perceived integrity of the outcome and its likely implementation. The practice usually adopted by judicial educators in the United States makes heavy use of information coming from surveys, questionnaires and occasional interviews of participants of programs. Hudzik observes that formal needs assessments are used only occasionally or not at all, owing to the technical difficulties and expense involved.30 Both national and state judicial education organizations rate the impact of “external influences” (that is, new

28 Hudzik, Needs Assessment, 1991, 10. Pennington has documented various different techniques as including the participation-demand approach (describes actual user-behaviour as the indicator of need); educational experts approach (rests on actual participation behaviour and vested interests of providers); key-informant approach (defines need in terms of perspectives of certain key persons or public officials, such as heads of jurisdiction); community forum approach (information gathered from broader community meetings); community survey approach (data collected directly from a sample of the entire population). Each of the above approaches has an implicit theoretical orientation towards the definition of need and each varies in the degree of reliability and validity of the obtained measures and utilized different measuring instruments. Pennington 1985, 3494–3495. 29 Pennington 1985, 5. 30 Hudzik, Needs Assessment, 1991, 17 and 45.

78

chapter 4

legislation or court decisions), as providing informational input to the planning process relatively highly.31 It is concluded that the general techniques of educational needs assessment are frequently not viable or appropriate in the judicial context. This gives rise to the need for the selection, development and application of modified needs assessment methodologies in judicial education. For this reason, the more recent practice in Australia seeks to adopt a broader methodology which will be outlined below. ii

Empirical Research

Study of the reasons for learners’ participation in continuing education provides valuable insights on the existence and nature of perceived educational needs, and illuminates the means of meeting those needs. An analysis of the reasons of adults, professionals, lawyers and judges respectively is undertaken below to ascertain insight on the nature of educational needs as perceived by these learners. From this analysis, it will be argued that quite distinctive characteristics and perceived needs attach to the judicial learner when compared with other professionals or to adults at large. These findings are of particular significance to judicial educators, and provide a cogent means for educators to design and develop programs of continuing judicial education. In essence, this analysis establishes that the reasons of judges are a successive refinement of the reasons of adults firstly and professionals secondly for participation in continuing education and are, consequently, quite distinctive. Comparative analysis discloses distinctive features in the reasons for judges’ participation in continuing education: adults participate for a variety of developmental purposes, which may be to reach a personal or social goal; professionals tend to be more specifically focused to attain a job-related or career development goal; judges, however, participate primarily to enhance their professional competence, to develop their professional perspective, and to interact with their peers. The empirical evidence on the educational needs of judicial officers, tribunal members and court registrars, although not extensive, is generally consistent. The findings confirm the existence of underlying relationships between three factors of judicial competence, collegial interaction and professional 31

Hudzik JK, Issues and Trends in Judicial Education, Lansing, Michigan: jeritt, 1991, (hereafter: Hudzik, Issues and Trends, 1991), 132.

Assessment Of Need

79

perspective, and designated characteristics of sex, years since graduation, tenure on current bench, level served on court, and levels of past participation. In addition, a number of previously unidentified characteristics influence participation in continuing education by judges, magistrates, registrars and tribunal members. These findings confirm recognized characteristics influencing participation, for example level of court and duration on bench; identify new underlying characteristics, such as education, position and situation; clarify reasons for participation; identify occupational practices which are conducive to educational intervention, and delineate the extent of judicial stress and burn-out. These features give rise to the imperative for educators to develop an educational approach which is specifically designed to meet these distinctive needs. It follows that caution should be exercised in designing programs of judicial education selecting from existing models of professional or adult education. Adults’ Reasons for Participation The formal study of reasons for participation in continuing education commenced in the United States with research of adult learning practices commencing in the mid 1960’s.32 The pioneer research into reasons for participation in adult continuing education was undertaken by Maslow, Havinghurst and Houle, among others, and has resulted in the development of a number of motivational models which have been widely endorsed and have served as the basis for most subsequent research.33 Research methodology was developed in 1964 with Sheffield’s Continuing Learning Orientation Index which assessed the learning, sociability, personal-goal, societal-goal and need-fulfilment orientations of adults.34 Shortly afterwards, the research of Johnstone and Rivera in 1965 recognized that adults participate in continuing education for a variety of reasons: to 32

33

34

This research enjoyed rapid growth in the 1970’s largely due to increases in funding flowing from the Omnibus Crime Control and Safe Streets Acts 1968 and 1976 under the federal Law Enforcement Assistance Administration program; Pennington, 1985, 4. See Maslow A, Motivation and Personality, New York: Harper & Row, 1970: Maslow, for example, developed a behavioural model of human need in a hierarchy of five levels: these levels are survival, security, acceptance, esteem and self-fulfillment. This model has been highly influential on subsequent theorists, and was endorsed and adopted by Knowles as a fundamental part of his theory of adult learning, discussed in Chapter 5, ante; Knowles SM, The Modern Practice of Adult Education: From Pedagogy to Andragogy, Chicago: Follett, 1980. Sheffield SB, “The Orientation of Adult Continuing Learners,” in Solomon D (Ed) The Continuing Learner, Chicago: Center for the Study of Liberal Education of Adults, 1964.

80

chapter 4

become a better informed person, prepare for a new job, improve present job abilities, spend spare time enjoyably, meet interesting people, carry out everyday tasks, and get away from daily routine.35 In 1971, Boshier developed an Educational Participation Scale which built on Houle’s classification of learners with a number of qualifications, noting greater complexity in his findings on the reasons for participation.36 At about the same time, Burgess developed a Reasons For Educational Participation Scale which identified 7 key factors or desires influencing participation. These were ranked as the desire to know, the desire to reach a personal goal, the desire to reach a social goal, the desires to reach a religious goal, to take part in social activity, to escape, and to meet formal requirements.37 While various formulations of adults’ reasons for participation have been developed as the result of empirical research, they generally correspond with the seven motivational factors classified by Burgess. A comparative analysis of the reasons of professionals participating in continuing professional education, however, reveals distinctive differences and refinements to these “generic” reasons for the motivation of adult learning. Professionals’ Reasons for Participation Professionals’ reasons for learning are different to adults at large, and are directed specifically to job-related problem-solving in the short term and to career development in the longer term. Despite a relative dearth of empirical research of professionals’ reasons for participating in continuing education, a number of cogent studies have demonstrated distinctive differences with adults at large.38 In 1979, as the result of 35 36

37 38

Johnstone JW and Rivera RJ, Volunteers for Learning, Chicago: Aldine, 1965. Boshier R, “Motivational Orientations of Adult Education Participants,” Adult Education, 1971, 21, 2, 3–26. Houle classified adults in terms of their learning predisposition from laggard, at the one extreme, to pace-setters at the other; and further developed a learners’ “typology” which classified learners as being goal orientated, activity orientated, or learning for its own sake: Houle CO, Continuing Learning in the Professions, San Francisco: Jossey-Bass, 1980; for a detailed commentary on Houle’s typology, see discussion on adult learning theory in Chapter 5, ante. Burgess P, “Reasons For Adult Participation In Group Educational Activities”, Adult Education, 1971, 22, 3–29, 17–18. There is relatively little comparative data on the learning needs of judges compared with other professionals; Cross and Houle have undertaken major studies across the professionals generally; Cervero has undertaken comparable studies involving other specific professions; only Catlin and this writer have studied judges’ needs against those of other professionals generally. In short, further comparative analysis would be illuminating.

Assessment Of Need

81

finding that prevailing general research methodologies and instruments were too broad to be of practical value in a study of continuing professional development, Groteleuschen Harnish and Kenny developed the Participants Reasons Scale (prs) for use in assessing the needs of business executives. This methodology refined existing survey instrumentation, and involved a more narrowly focused model with supporting instruments and research methods – including sophisticated factor analysis techniques39 – to identify reasons, variable characteristics and factors influencing the participation of professionals in continuing education.40 Subsequently, other researchers have adopted and developed the prs in a number of other studies of professionals’ reasons for participating in continuing education.41 In the following year, in a seminal study of 23 professional groups, Houle found that continuing professional education is distinct from other forms of adult education and involves a separate body of knowledge, inquiry, research and practice. Houle demonstrated that professionals’ reasons for participation 39

40

41

Factor analysis is a statistical method to determine the degree to which a large number of variables, in this case the judges’ responses to the prs items, cluster together to form identifiable underlying patterns of relationships. These empirically identified relationships, referred to as “factors”, theoretically represent the dimensions underlying judges’ reasons for participation. Many subsequent studies have used factor analysis to test this typology; also a number of instruments to operationalize the typology (see notes, above, for full citations):– Sheffield identified 5 factors: learning, sociability, personal-goal, societal-goal and need-fulfilment orientations; Boshier identified four factors: otherdirected advancement (probably vocational environmental pressure), learning orientation, self v other centredness, and social contact; Burgess identified factors of desire to know, reach a personal goal, reach a social goal, reach a religious goal, take part in a social activity, escape, or to meet formal requirements. Grotelueschen AD, Kenny WR and Harnish DL, Research On Reasons For Participation In Continuing Professional Education: A Statement Of Position And Rationale, Occasional Paper Number 7: Office for the Study of Continuing Professional Education, University of Illinois at Urbana-Champaign, 1980. The prs is based on three assumptions: that attendance is purposive, that reasons have a primarily educational focus, and that it is necessary to explore non-traditional reasons which are responsive to the demands of the professional role. Harnisch DL, The Continuing Education Reasons of Veterinarians, unpublished doctoral dissertation, University of Illinois-Urbana, 1980; Cervero R, “A Factor Analytic Study of Physician’s Reasons for Participation in Continuing Education”, Journal of Medical Education, 1981, 56, 29–35, where a 34 point prs was used; Roper C, Senior Solicitors and Their Reasons for Participation in Continuing Legal Education, Centre for Legal Education, Sydney, 1992; and, Nelson JW, A Study of the Continuing Legal Education Needs of Beginning Solicitors, Centre for Legal Education, Sydney, 1994.

82

chapter 4

in continuing education generally tend to be more refined than adults at large, and are usually job related. Professionals participate in continuing education for functional purposes rather than for the sake of learning per se, and focus more closely on the job relationship and career development. For most professionals, continuing education is seen as a means to assist them with new duties or to prepare them for promotion.42 In 1991, Roper undertook a study of the reasons of senior solicitors in New South Wales, and found that keeping up to date and improving abilities in areas of regular day-to-day work were the first two reasons for participation by respondents.43 Using a prs instrument modified on the methodology of Groteleuschen, Roper also found a strong client service orientation disclosed by respondents who then ranked meeting clients’ requirements, improved proficiency and productivity as the next most popular reasons for participation.44 Roper analysed the underlying factors influencing reasons for participation, and identified the dominant factor influencing participation to be professional improvement, which translates itself into service to clients.45 Collegiality,

42

43 44

45

Houle, 1980, 96–120. Grotelueschen endorses this conclusion, and argues that there is a need for an alternative approach to research reasons for participation in continuing professional education which will both address the particular needs of this area of practice and narrow the gap between educational theory and practice. He argues that the specialized status of cpe affects how we conceptualize, study and practice it; Grotelueschen AD, “Assessing Professionals’ Reasons for Participating in Continuing Professional Education” in Cervero R and Scanlon CL (Eds) Problems and Prospects in Continuing Professional Education, 1985, 33, 34. Roper, 180. Roper, 146–161: Roper researched the relationship between a number of practice-related variables and their influence on practitioners’ reasons for participation. These variables included demographic and work environment characteristics, respondent’ role in their practices, the extent of participation in cle, time in practice, and the extent of current work involvement. He identified and tested a number of underlying factors into which reasons for participation could be classified. These were immediate professional improvement and service, collegial learning and interaction, longer term professional improvement and service, professional commitment, preferred way of learning. Roper, 180. Of less significance as reasons for participation, Roper found that mandated requirements was ranked relatively lowly. He found that respondents did not see continuing legal education (cle) as a preferred way of learning by reason of its structure, digestibility and efficiency; improvement of income was not identified as a strong reason for participation, nor did specialists rate the reason “back to basics” highly; respondents did not rank the development of new professional knowledge or skills in new areas or other disciplines highly, nor was cle seen as a means to meet new clients.

Assessment Of Need

83

translated into learning and interaction with professional peers, was next in significance. Roper’s findings relating to the underlying factors influencing participation may be germane to both branches of the practising legal profession. Judges, at least in England and Australia are selected from the ranks of the practising bar. If this hypothesis is correct, and in the absence of any equivalent data on advocates, Roper’s findings would tend to suggest an intensely job-related motivation for participation in continuing education which may be characteristic of practising advocates from whom judges in these jurisdictions are ultimately selected. This hypothesis can be tested to the limited extent of comparing it with the empirical findings of the only available factor analysis of judges’ reasons for participation which was conducted by Catlin in Michigan in 1981. Judges’ Reasons for Participation The reasons for judges’ participation in continuing education were extensively researched by Catlin in 1981.46 The purpose of this study was to ascertain the relative importance judges as a group place on reasons for participation in continuing education, to identify factors which represent the underlying dimensions of reasons for participation, to analyse the relationships between selected judicial characteristics and the identified participation factors, and to examine the implications of the research findings for educational planning. Catlin surveyed all trial judges in Michigan in 1980 using a prs instrument, with a rate of response of 76%. Responses underwent factor analysis to identify participation factors representing underlying patterns of relationships in the responses. These findings were then employed to examine relationships between the empirically derived participation factors and the personal and professional characteristics of respondent judges.47 46

47

Catlin’s findings have considerable significance for judicial educators, and provide valuable data on the reasons for judges’ participation in continuing education. It should be noted that this data was provided in response to a survey by judges elected to office in Michigan. Catlin specifically observes that further research should be conducted in states where judges are appointed instead of elected (Catlin, Justice System Journal, 255). In view of the significance of selection practices in determining the needs for judicial education discussed in Chapter 3, above, some caution must be advocated in the application of these findings to judges appointed on merit, in the absence of any comparable studies. The independent variables tested were age, sex, marital status, time since degree, whether other degrees, tenure as judge, tenure on current bench, current court level, number of judges on court, status as chief judge, levels of past participation in continuing judicial education (cje): Catlin, thesis, 70.

84

chapter 4

The findings of this research disclosed that judges as a professional group place high importance on the reasons for participation which are related to keeping abreast of new developments in the law, being competent in their judicial work, matching their knowledge and skills with the demand for their judicial activities and improving their ability to better respond to the questions of law presented to them. Judges’ reasons for participation were found to be multidimensional and more complex than might previously have been believed.48 Three factors emerged from representing the underlying dimensions of the respondents’ reasons for participation which, in ranking order of importance, were judicial competence, collegial interaction, and professional perspective:49 • Judicial competence – the need to maintain an acceptable level of competence and develop new judicial skills, to develop proficiencies necessary to maintain quality performance, and to keep abreast of new developments are all regarded as very important reasons. The emergence of the judicial competence factor in these findings suggests that judges do place significant importance on maintaining and developing their professional skills and keeping abreast of the law. • Collegial interaction – relates to the need for interaction, exchange of ideas and thoughts, and to be challenged by the thinking of colleagues. This factor suggests that program design must allow adequate time for judges to constructively interact and learn from their colleagues through a variety of structured educational experiences including problem solving workshops, and small group discussions. • Professional perspective – items included in this factor are associated with the professional role of the judge, such as to assess the direction their profession is going and to maintain identity with their profession. This factor suggests that judges participate to reinforce their identity in that profession. The factor indicates that judges see the opportunity to develop a perspective of their professional role, review their commitment to their profession and develop leadership capabilities in their profession through participation in continuing judicial education.50 48 Catlin, Justice System Journal, 237 and 253. Catlin argues that it is wrong to assume that participation is primarily a function of program content, and thus to concentrate solely on assessing content needs in formulating curricula and designing programs. Other planning issues identified as factors and variables in this research must also be taken into account. 49 Catlin, Thesis, 120. 50 Catlin, Justice System Journal, 253.

Assessment Of Need

85

Catlin’s findings, in particular relating to the importance of the judicial competence factor, have particular significance in demonstrating empirically the centrality of the notion of competence to judges. In practice, judges are particularly concerned with their ability to dispense justice and, at a personal level, do recognize the value of continuing education in enhancing the quality of justice. In the case of the judicial learner, the development of competence must be a motivation and a reward in itself; as a corollary, the concept of judicial competence is a much broader underlying factor than it is for lawyers or other professionals. As a result, caution should be exercised in selecting from the experience of participation in adult education or professional development for models of judicial education. These findings have been informally confirmed by the findings of a survey conducted by the Canadian Judicial Centre in 1991: Judges felt the best part of the training was to meet and share with other judges, that the education was practical and the instructors good, as was the updating on substantive law.51 Catlin found that significant relationships exist between judges’ orientation to these participation factors which vary according to their sex, years since qualifying, tenure on current bench and court level currently served. No significant results were found with characteristics of age, marital status, number of judges in the court, and status as chief judge.52 The significant relationships include: • Sex of responding judges is significantly correlated to Judicial Competence – female judges placed a higher value on the participation reasons on this scale than did males. • Years since law degree is significantly correlated to Professional Perspective – for example, judges who had more recently graduated from law school were more orientated to the development of a professional identity. 51

52

Canadian Judicial Centre, Standards Survey Results, unpublished memorandum, March 2 1992. These findings reflect the strong and widely held view of most participants that judicial (or indeed any other continuing) education must be relevant and useful on the job: participants must acquire the knowledge and skills that constitute day to day practice. For example: more female judges placed a higher value on competence than did male – this was consistent with women professionals tending to be more highly concerned with their professional competence in order to prove themselves in their professional role (Catlin, thesis, 128–129); more recent graduates were orientated to the reasons associated with the professional perspective factor and development of a professional identity; newer judges placed greater importance on the judicial competence factor than did older judges, having new skills to learn; Catlin, thesis, 115–118.

86

chapter 4

• Tenure on the current bench is significantly correlated to Judicial Competence – newer appointees placed greater importance on this factor than those with longer tenure. • Level of court is significantly correlated to Professional Perspective and Collegial Interaction – members of certain courts differed from others in their orientation. • Level of past continuing judicial education (cje) participation is significant for all three factors – those judges who participated more often placed more importance on the participation reasons than those who participated less often.53 In the light of these findings, Catlin concludes that judges’ reasons for participation in continuing professional education revolve around a “complex set of needs” and may vary based on personal and professional characteristics.54 While these results confirm the findings of Groteleuschen and others that reasons for participation may vary within a professional group based on various personal and professional characteristics, they also display a number of significant differences with the findings of other comparable research. In particular, the judges’ factor scale, while similar to comparable prs’s administered by Cervero on physicians,55 displays some significant differences, which include: • Judges’ responses disclosed greater homogeneity as a professional group than was evident in the other studies of physicians and veterinarians. This may be consistent with judges really representing a specialty of a larger legal profession. • Factors relating to personal benefits, professional advancement and job security were ranked highly by physicians and veterinarians, but significantly lower by judges. This may be consistent with judges perceiving themselves as public officials, now behaving differently from professionals in the private sector. Catlin observes that “the difference appears most dramatic when the reward system is examined.”56 The lack of importance of job security, professional advancement and personal benefits have “serious implications” for purposes 53 Catlin, thesis, 113–115. 54 Catlin, thesis, 119. 55 Cervero RM, “A Factor Analytic Study of Physicians’ Reasons for Participation in Continuing Education” Journal of Medical Education, 56, 1981, 29–35. 56 Catlin, thesis, 125.

Assessment Of Need

87

of planning education programs. Comparison between groups suggests that for judges the concept of judicial competence is a factor much broader than professional service, as identified by Cervero or Roper. In addition, judges operate in an environment where there is a lack of any distinctly identifiable patient or client relationship. Thus, judges may participate to develop new skills in order to be more competent, but not to increase their income; the pursuit of competence, in the case of the judge, must be a reward in itself, embodying a sense of public duty. These distinctions have profound implications for judicial educators in terms of specially developing the content, planning, promotion and delivery of any program of continuing judicial education. iii

Findings in Australia

In New South Wales, the Judicial Commission has conducted a number of educational needs analyses as a part of its scheme of continuing education for judicial officers.57 These analyses apply a number of methodologies for a variety of purposes, which provide extensive data on the reasons of judicial officers for participating in continuing education and, more broadly, the needs for continuing judicial education. Empirical data obtained in the course of this experience is outlined below. The findings contained in this data confirm Catlin’s observations of underlying factors influencing participation (being pursuit of judicial competence, collegial interaction and professional perspective), and certain recognized characteristics influencing participation (specifically, level of court and duration on bench). Additionally, this empirical data supports the identification of new underlying characteristics influencing educational need and participation, which include factors such as past education, position in court and geographic situation. These new findings are significant in adding to any understanding of the need for continuing judicial education, and provide useful insights on means of meeting those needs; in particular, they equip judicial educators to develop programs of continuing judicial education in a more practical and useful way. Judicial Officers in New South Wales (1988) The first judicial education needs analysis provides a benchmark against which all subsequent developments can be measured. At the outset of the 57

Armytage L, “Towards a Charter of Continuing Judicial Education: The New South Wales Experience,” Commonwealth Judicial Journal, 1991, 9, 2, 3–8.

88

chapter 4

Commission’s operations, Riches reported that the Judicial Commission conducted a needs analysis in 1988 which was limited to a survey of reasons for participation by judicial officers in the state, with an overall rate of response of 80%. While this survey adopted the appearance of the prs model, the findings were not in fact submitted to factor analysis. These findings disclosed a very low level of continuing education practice. Almost half had not participated recently in any formalized education: fewer than 20% listed their last continuing education activity as a formal seminar or lecture, and a further 25% reported not having participated in any continuing judicial education at all.58 Riches reports that the findings of this survey disclosed that reasons relating to judicial competence were the strongest motivators. The most important reasons were to: – – – – – –

keep abreast of current developments maintain quality of my [sic] judicial service help me be more competent in my judicial work maintain my current abilities help me improve the quality of service being rendered to the public mutually exchange thoughts with other judicial officers.

Despite the absence of any factor analysis, Riches noted that the reasons for participation appeared to fall within the three factor groupings consistent with those identified by Catlin, being professional perspective, judicial competence and collegiate interaction. Judicial Officers in New South Wales (1991) A more extensive needs analysis was undertaken on completion of the pilot phase of the Commission’s education program which provided an opportunity both to refine insights into the need for judicial education and to undertake a preliminary evaluation of the formative program. The findings of this analysis revealed many of the complexities in judicial perceptions and reasons for participation which had been foreshadowed by Catlin, and which gave rise to an immediate imperative to recognize a multiplicity of needs which could only be addressed through the classification of different educational services defined by the substantive nature of the need, and by the level of application. 58

Riches AL, “Continuing Judicial Education in New South Wales,” Journal of Professional Legal Education, 1988, 6, 2, 149–162. Riches defined education for the purpose of this survey as any form of organized activity excluding informal reading of reports or journals; Judicial Commission of New South Wales, unpublished survey instrument, 1988.

Assessment Of Need

89

Consequently, the Commission’s education program has been developed on a matrix of educational services defined by content, level of application, and identity of court.59 In 1991, the Judicial Commission undertook a comprehensive educational needs analysis of judicial officers in New South Wales.60 The methodology triangulated a range of techniques.61 These included extensive consultations and brain-storming with standing judicial education committees, open and closed interviews of selected judicial officers and others, appraisal of courts’ management data, observations of judicial practice, resource analysis and occupational task analysis, and a survey of all judicial officers.62 This survey canvassed data in three principal areas: prior experience of continuing professional education, perceived needs for continuing judicial education, and an occupation/ task analysis.63 Analysis of the findings reveals valuable insights on the needs for judicial education, in particular judges’ perceptions, expectations and preferences for meeting those needs. Selected findings are outlined beneath to the extent that they illuminate these considerations:

59 60 61

62

63

See discussion on matrix-planning approach in Chapter 7, and appendix to Chapter 7, ante. Armytage L, “Continuing Judicial Education: The Education Program of the Judicial Commission of New South Wales,” Journal of Judicial Administration, 1993, 3, 1, 28–46, 31. Triangulation involves the use of multiple methods of data collection in the study of the same aspect of human behaviour, such as the use of both qualitative and quantitative data comprising observation, interviews, survey results and testing. This approach is suitable where a more holistic view of educational outcomes is sought, and provides a practical means of cross checking validity of data and findings. Methodology consisted of key consultations with the heads of jurisdiction of each courts designed to elicit perceptions on the role of judicial education, nominate preferred strategies, directions, priorities and domain of judicial education. These consultations were followed by interviews with those having an interest in judicial education within and beyond the judiciary including the profession, client representatives, public law officers and representatives of central governmental agencies. Findings from observations were supplied by judicial officers, senior administrators, practitioners and client representatives. Management data was appraised of courts’ annual reports, departmental case management data, analysis of appeals and complaints, and related data. Triangulation of data from all sources of information was relied upon for the findings. The data obtained was analysed to ascertain the mean and standard deviation, using cross tabulation, correlation and discriminant analysis techniques. Factor analysis technique was not used in this survey. Instead, it was proposed to test the particular findings within the factor framework already devised by Catlin.

90

chapter 4

(a) Underlying factors influencing participation. Analysis of these responses discloses a number of significant underlying factors influencing participants’ responses which are, in part, consistent with Catlin’s findings. These were identified as including: • Nature of court (which approximates Catlin’s “level of court” factor). • Seniority, as measured by the extent of judicial experience (which approximates a combination of Catlin’s “years since law degree” and “tenure on bench” factors). • Geography, including the location and size of the court, and the extent to which judges’ duties involve transient work on circuit, personal isolation and a lack of collegial support (none of which was tested by Catlin); these factors give rise to stronger relationships existing between judges and continuing education. (b) Reasons for, and barriers against, education usage. Respondents ranked in descending order of importance the following reasons for participating in continuing judicial education: keeping abreast of recent developments, maintaining current abilities, enhancement of professional competence and the development of new knowledge and skills. Shortage of time, geographic inconvenience and irrelevance or impracticality to work were ranked as the main barriers against usage; the issue of whether services were too basic or too esoteric was rated as being not significant. (c) Usefulness of education services. Respondents ranked as most useful the following areas in descending order: substantive law, procedure, and updates on recent developments. They rated social issues, and juristic dilemmas affecting the role of the judge as least useful. Significant differences were identified in these findings on further analysis by court and by seniority.64 64

Some very significant differences existed between members of respective courts on usefulness of services:– Substantive law was regarded as less useful by Supreme Court members; Caseload management was describes as more useful by members of the Supreme Court, and less useful by the District Court; Personal skills and developmental courses were more highly valued by magistrates, and least valued by the Supreme Court; Juristic dilemmas were more valued by the Supreme Court, and less by both the District and Local courts; Orientation courses were very highly ranked by the Local Court, and lowly ranked by both the Supreme and District Courts; Refresher Courses were valued by the District and Local Courts, but not by the Supreme; Specialist courses were least valued by members of the District Court;

Assessment Of Need

91

Respondents ranked a number of proposed services in the following order: production of a bench book for each jurisdiction, update seminars on major recent changes in law, publications on selected judgments with or without commentary, an induction handbook for new judicial officers, and annual court conferences. Proposed services least highly rated included visiting or exchange jurist programs, and a research project into public perceptions of the judiciary. Again, some significant differences were expressed between courts and members according to their seniority.65 (d) Preferred form of education. The universally preferred format was the small-group workshop, followed by informal collegial discussion, selfdirected research and reading, and then the large-group conference. Significant differences also emerged on analysis by seniority by years of experience:– Education areas most valued by more experienced judicial officers included: judicial skills and “the art of judging”; personal skills; judicial conduct and ethics; and juristic dilemmas affecting the role of the judge. Refresher courses were favoured by those with over 20 years experience. Education areas most valued by less experienced judicial officers included case management and complex-trials computer programs; access to legal databases; and personal computer facilities. Orientation and induction courses were favoured by those with less than 3 years experience. 65 These findings were rated significantly differently by court characteristic and seniority:– Judicial Fellowships for overseas study were highly rated by the District Court; Inter-curial conferences were very lowly rated by the Supreme and District Courts, but highly rated by the Local Court; An induction video was rated lowly by the Supreme Court, but highly by the Local Court; Orientation programmes were favoured by the District and Local Courts, but not by the Supreme; Bench observation programmes were favoured by the Local Court but not by the Supreme or District Courts; Learned articles were favoured by the District and Local Courts, but not by the Supreme; How-to-do-it guides were rated positively by the Local Court, but negatively by the Supreme and District Courts; Other differences emerged on analysis by seniority of experience:– New judicial officers rated the following proposed new services more highly than their seniors: an induction handbook, an induction video, an orientation programme, a bench-observation programme, visiting exchange scheme and how-to-do-it guides; Judicial Fellowships for overseas studies, and a mentor-judge scheme for new appointees were favoured by those with between 10–19 years experience; Research into the public perception of the judiciary was most highly rated by those with more than 20 years experience; Bench-observation programmes were most favoured by those with less than 3 years and more than 20 years.

92

chapter 4

Audio and video tapes were not favoured, nor were post-graduate studies  or correspondence courses. Judges were preferred as presenters, followed by qualified experts and then respected counsel. Solicitors were least regarded. Distinguished academics were favoured by the Supreme Court.66 (e) Supply of superior court and appeal decisions. There were significant levels of universal dissatisfaction recorded in all courts regarding the short supply of judgments. Interestingly, there were no complaints of excessive supply of judgments. Dissatisfaction was also recorded on the supply of appeal decision: more than half of all judicial officers indicated obtaining insufficient notification of appeals from their decisions.67 (f) Stress and burn-out. Most judicial officers described their work as stressful and lonely. Most, however, described this as a “minor” concern.68 Most judicial officers indicated that burn-out does occur on the bench, and two-thirds described this as a major concern.69

66

67

68

69

Use of education services – Respondents reported extremely high levels of regular usage of bench books and the Judicial Commission’s monthly bulletin. Seminars, and published monographs are rarely used, which mainly reflects availability at the time of survey. In those courts where bench books are available, they were used by 92.9% of District Court and 91.1% of Local Court members on a monthly basis. The majority coming from the Local Court, from where most appeals are disposed of in the District Court by conducting the hearing de novo. The implication of this is that magistrates have specific feedback from review of their decisions only in the relatively rare number of questions of law being stated in the Supreme Court. 80.5% of respondents reported stress, indicating that they worry about the consequences of decisions, and about making mistakes; and, more particularly, indicating that they find the job lonely (86%). In relation to loneliness, judicial officers working in the suburbs and country report markedly more loneliness to their counterparts working in the central business district (cbd). The causes of stress are ranked in order as high work-loads and case-loads, incompetent practitioners, and difficult cases or decisions. 85.1% of respondents reported burn-out. The onset of burn-out is reported to occur mainly in the period 11-plus years, but also between 6–10 years to a lesser extent. The reasons for burn-out are ranked in order as high work-load or case-load, lack of variety, repetition, pressure of work and stress. When further analysed by years of seniority, interestingly, we observe that as the number of years on the bench increases, so the problem of burn-out becomes described as less of a problem. This may suggest, firstly, that those in the burn-out stages perceive the problem differently from those at earlier stages, and/or that burn-out may be as much a problem of apprehension as it is one of preoccupation. Most judicial officers describe their work as “satisfying” and over a quarter describe it as “completely fulfilling”. Descriptions of what is most liked about work on a day-to-day basis include challenge, sense of usefulness, variety, stimulation, and problem-

Assessment Of Need

93

The perceptions of needs, expectations and preferences identified in this data, and in particular the insights it provides on issues of commonality and divergence, are essential in setting parameters to any program of continuing education which is likely to be seen as relevant and useful for judges. While some of this data does not directly relate to educational need in a conventionally narrow sense, it does illuminate a broader role for judicial education in assisting judges to perform their duties more effectively. For example, facilitating access to appeal decisions is an invaluable informational service for judges who are bound to make decisions according to precedent. Likewise, there is an increasing utility in acquiring electronic research skills which might be seen as nonspecific to judicial practice or presumed extant in other professions. Similarly, occupational practices affecting the incidence of stress or burn-out can fall within the educational domain where they impair performance and are amenable to behavioural improvement through training. New Magistrates in New South Wales (1991) Specific analysis of the needs of new appointees, assessed at about the time of appointment, is also directly indicative of the perceived needs, concerns and expectations of those confronting the transition to the judiciary. As it has been observed that the perception of need for judicial education is at perhaps its most acute phase at induction, analysis of these perceptions is of particular significance for educational planners. While analysis and observation of the needs of new appointees tends to indicate that many of these concerns involve a “crisis of confidence” as distinct from any substantive deficiencies in knowledge or skills, this itself gives rise to a pressing need to provide educational support to these new judicial officers at the time, in order to facilitate access to professional assistance, overcome fears of the unknown, and expedite their transition to the new judicial role. In 1991 the Judicial Commission conducted an analysis of the specific needs of new magistrates which combined survey and “brain-storming” technique, in order to identify the perceptions of appointees of their needs for induction, and to obtain an appraisal of perceived usefulness of the existing program.70 New magistrates ranked their perceived needs in the following order: collegiate networking and experience-sharing; skills development in the practice of court management and administration, court-craft and the “art of

70

solving. Descriptions of what is least liked about work on a day-to-day basis include inefficient or ill-prepared practitioners, and high workload. Armytage L, Some Insights into the Needs of Magistrates, Conference Paper, Annual Magis­ trates Conference, 1991: these findings were integrated with those of the comprehensive survey of judicial officers in 1991, respective to the Local Courts of New South Wales.

94

chapter 4

judging”;  information on substantive law; and, information on court procedure. Respondents ranked the usefulness of existing educational services.71 Calls were also made for the development of an orientation handbook, more update seminars/bulletins, and bench observation and mentor programs.72 Similarly, the need for judicial education can also be defined by those exercising a de facto or quasi-judicial role, though perhaps not formally judicial officers themselves: cases in point are members of tribunals charged with determining questions of fact, as distinct from formal questions of law, and court registrars responsible for determining interlocutory disputes and issues of procedure. A comparative analysis of findings from these sources sheds light on a range of shared and disparate needs warranting the consideration of educational planners. Australian Administrative Appeals Tribunal (1992) A comparative analysis of the professional development needs of tribunal members who exercise a similar role to judicial officers provides further insights into the needs of judicial officers.73 This analysis reveals similarities in the needs of judicial officers and tribunal members to the extent that they both make determinations of fact. It also highlights the significance of prior education as an underlying factor influencing the particular needs of tribunal  members in those situations where non-legally qualified persons are 71

72

73

Magistrates are judicial officers appointed to the Local Courts of New South Wales which is the oldest and largest court in Australia, and disposed of some 94% of caseload by volume in the state. They ranked needs in the following descending order: pre-appointment skills training on court-craft, bench books, and post-appointment refinement of skills based on experience. The court’s annual conference, regular update seminars and monthly digest were ranked significantly less highly. Armytage L, “New South Wales, Australia Mentoring Profile” in Mentoring in the Judiciary, Lansing, Michigan: Judicial Education Reference, Information and Technology Transfer Project (jeritt) Monograph 2, 1992, 52–59. The Local Court of New South Wales developed a formal mentor scheme in 1991 in response to this call, which was evaluated and refined in the following year and now operates to supplement the structured orientation program of the court. In Australia, there is a fundamental doctrinal distinction between the exercise of judicial and administrative powers. This distinction has been classically defined in the Boiler­ makers’ Case: tribunal members make determinations of fact; judicial officers make determinations of fact and law; while the border line of this distinction may be tenuous in any particular case, it is clear that both share the domain of making determinations of fact; R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 clr 254 (High Court), and (1957) 95 clr 529 (Privy Council).

Assessment Of Need

95

appointed to adjudicative roles within a dispute-processing system which inherits many of its characteristics from a court-based model, either explicitly or by inference. In 1992, the Administrative Appeals Tribunal, a national body responsible for reviewing administrative decisions made by the federal government, undertook a comprehensive training needs analysis of its members.74 As part of this assessment, the Tribunal administered a survey instrument to all members which was substantially based on data first obtained from key consultations, interviews within and beyond the Tribunal, observations and analysis of management information. This instrument was based on the model applied in the previous year to judicial officers. Like that survey, this instrument canvassed data in three categories relating to prior experience of continuing professional education, perceived needs for continuing judicial education, and an analysis of occupational tasks.75 Selected findings are outlined below as having specific bearing on the issue of defining the need for continuing judicial education: (a) Underlying factors influencing participation. Analysis of these responses discloses a number of significant underlying factors influencing participants’ responses.76 74

This assessment was undertaken by the writer in his capacity as Education Director of the Judicial Commission for the Administrative Appeals Tribunal. 75 The data obtained was analysed to ascertain the mean and standard deviation, using cross tabulation, correlation and discriminant analysis techniques. 76 Profiles of Respondents – From this data it is possible to profile the characteristics of respondents – which are consistent with those of aat members generally – in a number of ways which may be useful for planning purposes:– by class: presidential members (President, Judges and Deputy Presidents) are most likely to be full time (75%), have professional/academic qualifications in law (100%), have between 1–6 years experience on the Tribunal (75%), and be located at the New South Wales, Victorian or Queensland registries (75%); non-presidential members (Senior Members and Members) are most likely to be part time members (85%), have professional/academic qualifications other than law (77.6%), and be located at the New South Wales, Victorian or Queensland registries. by nature of appointment: full time members are most likely to have qualifications in law (100%), hold between 1–6 years experience (66.7%), and be located in the New South Wales, Victorian or Queensland registries (72.2%); part time members are most likely to be nonpresidential members (94.4%), hold non-legal qualifications (84.9%), have less than one year of experience (42.6%) and be located at the New South Wales, Victorian or Queensland registries.

96

chapter 4

These factors were, in part, consistent with Catlin’s findings and the Commission’s own earlier findings for judicial officers. These were identified as including: • Class: presidential members – judges and deputy-president, and nonpresidential – senior members and members (not tested by Catlin).77 • Nature of appointment: full or part-time (not tested by Catlin). • Registry size and location (not tested by Catlin). • Educational qualification: legal or other (not tested by Catlin).78

by registry: members from large registries are most likely to be non-presidential members (81.2%), part time (72.9%), and hold non-legal qualifications (62.2%); members from small registries are most likely to be non-presidential members (87.5%), part time (79.2%), hold non-legal qualifications (70.8%), and have more than 6 years of experience (41.7%) by qualification: legally-qualified members are most likely to be full time (66.7%), have between 1–6 years experience (62.5%) and be located at the New South Wales, Victorian or Queensland registries; those members without qualifications in law are most likely to be part time members (100%), non-presidential members (100%), have had one or less years experience at the Tribunal (46.7%), and be located at the New South Wales, Victorian or Queensland registries (62.6%). by seniority: those with 1 or less years are likely to be non-presidential (100%), part time members (100%), qualified other than in law (91.3%); those with 1–6 years are most likely to be nonpresidential members (64%), qualified in law (65.2%); those with more than 6 years are most likely to be non-presidential (87.5%), part time (75%), and qualified in other than law (69.6%). 77 The questionnaire was distributed to all 118 members of the Administrative Appeals Tribunal around Australia, with a rate of response of 61%. Membership of the Tribunal is classified as Presidential (President, Judges and Deputy Presidents), and Non-presidential (Senior Members and Members). The highest rate of response (68.1% of surveys distributed) and the largest number of responses (47 in number and 65.3% of total responses) was from Members, which is proportionately more than the number of Members in the Tribunal (69 in number and 58.5% of total membership). The lowest rate of response (25% of surveys distributed) and the smallest quantity of responses (4 in number and 5.6% of total responses) was from Judges, which is proportionately less than the number of Judges in the Tribunal (16 in number and 13.6% of total membership). 78 Experience and qualifications – The academic qualifications of members were widespread. For purposes of this report, analysis of variable responses is undertaken where appropriate on the basis of legally qualified and non-legally qualified members. The most common qualification was in law (34.8% of respondents); followed by medicine/ pharmacology and social work (27.5%); accountancy/economics (15.9%); physical sciences (14.5%) and defence forces (7.2%). Unlike courts in Australia, appointment to the Tribunal is offered on the basis of merit to both lawyers and non-lawyers. The non-

Assessment Of Need

97

• Seniority (approximates Catlin’s “years since law degree” and “tenure on current bench” factors). (b) Reasons for, and barriers against, education usage. The single most important reason for using education services was keeping abreast of recent developments, followed by maintaining current abilities and the development of new knowledge and skills; however, once the graduated scale of response was aggregated, the most important reason for education usage was enhancing professional competence. Socializing with colleagues, and ensuring that notice of important developments had not been missed, were the least important.79 The most important single reason against educational usage was rated as geographic inconvenience. Once the graduated scale of responses was aggregated, the most important reason against usage was irrelevant/impractical to work. The least significant reasons against usage were that services were too basic, in unsuitable format or of impaired quality. Further analysis by nature of appointment, class of member and qualification disclosed other significant variations.80

79



80

legal appointees are highly accomplished and drawn from many disciplines to provide specialist expertise to assist the Tribunal in determining disputes of fact. A number of differences in reasons for education usage emerged on more detailed analysis. By nature of appointment, full time members rated confirming that you have missed nothing (86.7%: 60%), and sense of public responsibility (80.4%: 62.5%) as significantly more important, and exchanging experience with peers as less important (66.7%: 77.4%) than part time members. These variations were reflected on an analysis of class of member, although presidential members rated the exchange of experience with peers (45.5%: 80.7%) and socializing with colleagues (27.3%: 46.4%) less importantly than non-presidential members. Similar characteristics emerged on analysis by qualification, however legally qualified members found keeping abreast of recent developments and enhancing professional competence were of paramount importance, and confirming you have missed nothing as significantly more important (84.2%: 55.5%) than non-legally qualified members.  Analysis by experience disclosed certain other significant differences which included: those with less than one year’s experience rated developing new knowledge more highly than other members, and confirming that you have missed nothing less importantly; those with between 1–6 years rated keeping abreast of paramount concern, and maintaining current abilities, exchanging experience with peers and socializing with colleagues to be of less importance; those with more than 6 years experience rated socializing with colleagues and sense of public responsibility more highly than their colleagues. Analysis by nature of appointment disclosed part time members rated too esoteric and geographic inconvenience as barriers significantly more highly that full time members (45.8% and 63.8%: 28.6% and 53.3%); full time members rated impaired quality and unsuitable format more highly than did part time members (46.7% and 46.7%: 37% and 34.7% respectively).

98

chapter 4

(c) Usefulness of education services. Overall, the areas for education rated the most useful by all members were in terms of content, procedure and substantive law, and in terms of pitch, updates on recent developments. The services rated least useful were social issues, ethical conduct and computer support and word processing training. The main topics described were new laws and recent amendments, and writing the reasons for decisions. Again, further analysis of variations disclosed some significant relationships with certain characteristics.81 Proposed new education services rated most useful by all members were the production of an





81





 Analysis by class of member disclosed presidential members rated impaired quality or unimpressive presenters, unsuitable format and too basic as more important barriers to usage; while non-presidential members assess geographic inconvenience more highly than presidential members (65.4%: 40%). In other respects these characteristics mirrored the variations identified on analysis by nature of appointment.  Other significant variations disclosed by qualification included: legally qualified rated shortage of time more importantly than non-legally qualified (71.4%: 54.8%); non-legally qualified members rated too esoteric as a significantly higher barrier than legally qualified (52.4%: 17.6%).  Analysis of seniority disclosed some interesting variations: those members with less than one year’s experience rated unsuitable format, irrelevant/impractical to work and too basic less importantly than their colleagues; those with between 1–6 years of experience rated geographic inconvenience as less important than other members; those with more than six year’s experience rated impaired quality, geographic inconvenience, too basic and too esoteric more highly than other members.  Finally, analysis by registry disclosed that those members in small registries rated geographic inconvenience more highly than their colleagues in large registries (70.8%: 55.3%). Further analysis disclosed a number of differences by nature of appointment: more full time members rated current technical problems useful than part time members (88.2%: 63.3%), and more part time members rated the following as useful: hearing management (72.9%: 52.9%), Tribunal skills (84%: 64.7%), personal skills (72%: 52.9%), managing transition (74.5%: 46.7%) and refresher (75.6%: 68.8%).  Analysis by class of member disclosed that there were significant variations. More presidential members rated substantive law and current technical problems useful (100% and 91.7%: 79.6% and 64.8%), while more non-presidential members rated the following useful: hearing management (75.9: 27.3%), caseflow administration (71.2%: 45.5%), Tribunal skills (85.7%: 45.5%), personal skills (76.4%: 25%), ethical conduct (61.1%: 27.3%), managing transition (75%: 30%) and update recent developments (96%: 72.7%).  Similar variations emerged on analysis by qualification, but the following warrant attention. Significantly more legally qualified members rated substantive law and current technical problems useful (100% and 90.9%: 73.2 and 56.1% respectively); while more non-legal members rated hearing management (78%: 47.6%), Tribunal skills (88.1%: 68.2%), managing transition (84.6%: 40%) useful.

Assessment Of Need

99

induction handbook, an orientation program for new members, training assistance in Tribunal decision making, publication of selected judgments with or without commentary, and a mentoring scheme between experienced and new members. Services rated as least useful by all members included tours of government departments, background briefings on other disciplines and fellowships for overseas study.82 (d) Preferred form of education. The form of education universally rated as the most effective was the small group workshop, followed by self-directed research or reading and informal collegial discussion. Correspondence courses, large group conferences and audio tapes were not considered effective. Self-directed research and reading was preferred by full-time,



82









 Analysis by experience disclosed other significant variations. More members with less than one year’s experience rated the following as useful: hearing management, caseflow administration, personal skills and ethical conduct; while more members with between 1–6 years experience rated current technical problems, computer support and personal computer facilities useful. More members with at least six years experience rated managing the transition useful than other members, while more senior members rated substantive law less useful than other groups of members.  Analysis by registry disclosed other variations. More respondents in large registries rated caseflow management, computer support and training useful; while more members in small registries rated juristic dilemmas and managing the transition as useful. Significant variations were identified on analysis by nature of appointment: more full time members valued background briefings, rotations with other jurisdictions, fellowships and visiting/exchange programs than part time members; and fewer found how-todo-it guides useful.  Analysis by class of member disclosed that more presidential members preferred bench observation programs, training in decision writing, overseas fellowships and exchange programs; more non-presidential members preferred induction videos, background briefings and how-to-do-it guides.  These variations are mirrored on analysis by qualification, with the following qualification: more legal members preferred learned articles than non-legally qualified members who, in turn, preferred how-to-do-it guides more frequently.  Analysis by experience disclosed the following particular variations: more members with less than one year’s experience valued training in procedural fairness and bureaucratic decision making than the mean of members; more members with between 1–6 years experience valued tours of government departments, how-to-do-it guides, overseas fellowships and bench books for the Tribunal; while more of those with at least six years experience valued an induction video, bench observation program, and selected judgments than did other groups of members.  Analysis by registry size disclosed generally low levels of variation but, significantly, members in small registries rated update seminars as paramount (100%, compared to 89.4% in large registries).

100

chapter 4

presidential or legally qualified members; small group workshops, audio tapes and video tapes were preferred by part-time, non-presidential, nonlegally qualified members or those in small registries; and post-graduate studies were preferred by those with less than one year’s experience. Qualified experts and respected senior counsel were seen as the most effective presenters by all members, followed by respected solicitors, superior court judges and finally distinguished academics.83 (e) Supply of superior court and appeal decisions. Most members described receiving “some” decisions from the High and Federal Courts which was “just right”. About one quarter of the overall membership described the supply of superior court decisions to be too low. Half of the respondents reported receiving all rulings; of those who were not normally supplied 83

Use of education service – The most frequently used educational service over the past twelve months on an aggregated monthly basis, the aat Bulletin was most heavily used, followed by Support Staff, Current Awareness Bulletin, loose-leaf update services, and District Registry Libraries. One quarter described their day to day engagements in professional practice and their experience on the job as their most useful professional development activity. Other useful activities described were formal studies, and mediation/ awareness courses, followed by self-directed research and reading. Predictably, all education services were more frequently used by full time members than part time members, although it should be noted that on an aggregated monthly basis the aat Bulletin was as regularly used part time members. However significantly less regular usage is made by part time members of the following: loose leaf update services, all library services, Tribunal databases and collegial advice. These findings are similar on analysis of responses by class of member, that is, non-presidential members behave in a generally similar manner to part time members (This is not surprising since 85% of non-presidential members are also part time). The characteristics are also generally mirrored on analysis by professional/academic qualification, although the disparity in regular loose-leaf usage becomes increasingly more pronounced, that is, non-legally qualified members use these services less than part time members. Analysis by seniority highlights a range of markedly divergent educational behaviours which are characterized by extreme differences in the groups of those with experience of less than one year and those with between one to six years. The most significant variant characteristics include the following: those with less than one year of experience tend to under-utilize education services and never or rarely use the Principal Registry Library and Tribunal databases, and use loose leaf services, library research assistance and support staff significantly less than other members; those with between one to six years of experience tend to use education services the most regularly and use a number of services significantly more than other members which include loose-leaf updates, library services and Tribunal databases; those with more than 6 years of experience tend to use these services less than the middle group and tend toward the mean behaviour.

Assessment Of Need

101

with all appeal rulings, three quarters indicated that they were supplied with too few. (f) Stress and burn-out. Almost one third of members described their job as stressful, of whom a further third considered the problem to be of “major” concern.84 Almost one third of respondents reported that burn-out did occur at the Tribunal, of whom one half described this as a “major” concern.85 Registrars in nsw (1993) In 1993, the Judicial Commission undertook an informal educational needs assessment for the Registrars of the Supreme Court. These registrars, who are all legally qualified, exercise a range of quasi-judicial duties in addition to an administrative role. Duties include conducting preliminary hearings usually relating to the application of procedure, or the resolution of minor or uncontested issues. The methodology adopted was simplified to combine critical incident, focus and nominal group techniques involving a specially formed education committee of registrars. This data was correlated with “client” feedback from the legal profession, and the professional assessment of the education staff of the Judicial Commission to identify the following findings: • Key professional competences – these included communication skills, analysis, decision-making, knowledge, management and dispute resolution. • Educational needs – these were ranked, in priority order, as decision making and decision writing, evidentiary and procedural issues in relation to conducting hearings.

84

85

The major cause of stress was reported to be high workloads and pressure to prepare and complete reserve decisions. Over half stated that they did worry about the consequences of their decisions, nearly two-thirds worried about making mistakes, and some found the job lonely. Further analysis disclosed that full time members find the job more stressful than part time members, and more lonely. The onset of burn-out was reported equally at 6–10 and 11+ years. The major cause of burn-out was reported to be repetition, lack of variety, and lack of government, administrative, and community support. Burn-out was reported to occur more frequently by full time and presidential members. Almost all members of the Tribunal describe their work as satisfying. Members described the most likeable aspects of their job as being challenging, stimulating and interesting, and sense of usefulness and importance. Members described the least likeable aspects of their job as being frequent cancellation of hearings at short notice – without remuneration, not enough work, and inefficient or ill-prepared representatives.

102

chapter 4

iv Observations The empirical findings on the educational needs of judicial officers, tribunal members and registrars in Australia are generally consistent; they also support and go beyond the findings from the United States which are contained in the literature. These findings provide an abundance of data on the existence and nature of perceived need for continuing education. The findings confirm the existence of underlying relationships between the three factors identified by Catlin (judicial competence, collegial interaction and professional perspective), and designated characteristics (sex, years since graduation, tenure on current bench, level served on court, and levels of past participation). In addition, this data reveals a number of previously unidentified characteristics which influence participation in continuing education by judges, magistrates, registrars and tribunal members. Summary of Empirical Findings The following findings are of particular significance to judicial educators: Confirmation of recognized characteristics influencing participation. Analysis of empirical data confirms many of Catlin’s relationships.86 For example: • Level of court – This was identified by Catlin, and confirmed empirically. The survey of judicial officers discloses some significant variations in responses between the level of court on which respondents served, giving rise to quite separate and distinct educational strategies being required for each respective court in order to respond to the differences in perception. The most marked differences are identifiable between responses from the Supreme and the Local Courts. For example, the Supreme Court responses reflect a consistently broader intellectual pre-occupation, while the Local (and District) Courts reflect a pre-occupation with more pragmatic, practical issues. • Duration on bench – Similarly, this was identified by Catlin, and confirmed empirically. The survey delineated significant variations in responses by reference to the duration of experience on the bench to the extent that separate layers of educational servicing have been implemented to meet the different needs of induction, updating, and replenishment. Thus, while

86

Testing of Catlin’s factor relating to sex was not undertaken owing to an insufficiency of sample; the other factor relating to previous history of participating in education was regarded as evident on Catlin’s findings and was not reassessed empirically in New South Wales.

Assessment Of Need

103

each layer may focus on substantive or skills-based approaches, each is conducted at different levels of application according to prior experience. Another related variation was identified regarding the perceived purpose of education: substantive law tended to be rated more importantly by newer and less senior judicial officers, while skills and the craft of judging became consistently more important with both seniority and experience. Identification of new underlying characteristics. Analysis of the New South Wales data gives rise to the need to extend recognition of additional underlying characteristics influencing educational need and participation to include other factors such as education, position and situation. It is observed that each of these additional characteristics has a significant impact on attitudes and behaviour of respondents to continuing education. • Education (or qualification) – Comparative analysis of findings of court and tribunal officers identified, in many regards, similar occupational tasks and attitudes, and permitted an assessment of the impact of prior formal education as a variable. The data supplied by non-legally qualified personnel calling for the supply of basic tools of legal trade with bench books and assistance in decision-making, for example, leads ultimately to the observation that prior qualification exercises a significant underlying influence on attitudes and behaviour.87 • Position (describes rank of office, nature of duties – judicial or administrative; and basis of appointment – full or part-time) – Significant variations were consistently identified in the responses of Tribunal members by reference to these underlying characteristics. • Situation (includes geographic location, and size of court/registry) – Significant variations were revealed relating to the distinctive needs of isolated or itinerant judicial officers and tribunal members. These variations consistently related to distinctive needs for information and formalized collegial support to substitute for a lack of access to formal interaction with peers, loneliness and the absence of informal networking arrangements. This factor was visible by reference to geographic description of location and size of court/registry.

87

Consequently, the Tribunal is now considering developing a two-layered strategy for legally and non-legally qualified members to assist them reach the same ultimate performance goals through different educational programs.

104

chapter 4

Reasons for participation. Judicial officers in New South Wales ranked keeping abreast of recent developments, enhancement of professional competence and the development of new knowledge and skills as the reasons for participation. By comparison, members of the Administrative Appeals Tribunal identified keeping abreast of recent developments, followed by maintaining current abilities and development of new knowledge and skills. These findings are consistent with Catlin’s observations on the pre-eminence of the judicial competence factor. Analysis of the data, however, reveals a more highly perceived need for education on substantive law than might otherwise be expected from the rhetoric objecting to judicial education. This finding reveals that judicial officers in Australia do recognise the need for and benefits of continuing education on substantive law at a practical level, albeit that some may argue that it should not be necessary at a philosophic level.88 Among judicial officers at large, substantive law is seen as the most useful reason for judicial education – particularly in the form of updates of recent developments – although this response is felt to be paramount by magistrates and is considered to be less useful by senior judges.89 Substantive law is also most appreciated by judicial officers with both the least and the most experience, rather than those at the mid-point of their tenure.90 Among Tribunal members, again, substantive law is ranked highly. Contrary to what might be expected, the perception of need for substantive law is higher among those members who are legally qualified than among those with non-legal qualification.91 Occupational practices. Analysis of responses relating to tasks and occupational practices provides valuable insights on educational needs not otherwise recognized by the respondents themselves: for example, the significance of unimpaired access to superior and appeal court decisions as a source of selfdirected learning on substantive law, and the extent to which the supply or

88

89

90 91

See discussion of arguments against the need for judicial education hinging on selection in chapters 2 and 3 where Samuels, for example, argues that judges appointed on merit should know the law and should not need to be trained in substantive law. It is observed that such arguments are most recently losing favour even within the judiciary. Substantive law was assessed at 97.3% overall, comprising 100% by magistrates, compared with 77.8% by judges of the Supreme Court; these judges do, however, rank updates on recent developments at 100% which may consist of substantive law. Less than 3 years (94.1), 3–10 years (95.0), 10–20 years (86.1), and 20 years + (100). Presidential, legally qualified, full-time members rated substantive law most highly (100%), compared with non-presidential, non-legally qualified, part-time members (76%).

Assessment Of Need

105

denial of support services in different courts affects the nature of the work undertaken by the members of those respective courts.92 Judicial stress and burn-out. Finally, the findings in relation to stress for judicial officers are significant in being consistent with other professionals, but singular in their causes and character.93 The Nature of Need It has been argued that the need for judicial education is most usefully measured in terms of the internal recognition of that need within the judiciary itself, for a variety of educational and doctrinal reasons.94 Most recently, a recognition of both needs and benefits has been observed among judges operating within the American, English, Canadian and Australian systems. This recognition has provided valuable insights on perceptions of need, and has opened the way to measure the actual nature of that need, integrating sources of data both within and beyond the judiciary. There is now an abundance of data to cast light on the nature of the need for judicial education. This data plays a critical role in the development and direction of any educational response. As a consequence of the analysis undertaken, it is possible to draw certain conclusions about the nature of the need for continuing judicial education: in essence, these needs are characteristic of 92 93

94

For example, magistrates spend significantly more of their non-sitting time undertaking administrative rather than legal tasks owing to a lack of secretarial support. The stress of judicial practice is a subject only recently discussed within the judiciary: see, for example, Kirby M, “Judicial Stress,” The Judicial Review, 1995, 2, 3. It has been the subject of some limited comment beyond the judiciary: Rogers J, Freeman S and LeSage P, “The Occupational Stress of Judges”, The Canadian Journal of Psychiatry, 1991, 36, 5, 317–322. The authors were particularly “intrigued” by finding that aspects of judicial work itself (that is, the specific tasks and functions of judging, for example sentencing, child custody cases, judgements, decision making and jury trials) are perceived by respondents to be the primary source of their occupational stress (cited by 95% of respondents). “Quantitative” overload stress (backlog, workload, time constraints, deadlines were cited by 56%); job-home interaction (social isolation and constraints, loneliness, lack of feedback) by 40%; “Qualitative” work overload concerns (lack of experience, difficulty keeping up with changes) by over one quarter. These findings are not consistent with most findings on occupational stress where workers view job factors (such as role conflict, employer/employee relationships, and career decisions as being more stressful than the actual work they perform. The authors consider this to be explainable by reference to judicial functions – burden of decision responsibility affecting lives of others, and having to do the right thing. It has been previously argued that need should be assessed using both internal and external indicators, with particular input for a community role, provided that judicial independence is preserved; see discussion in Chapter 2.

106

chapter 4

adults and professional learners in some respects and, in others, they are unique to judicial officers. For the purposes of developing an appropriate educational response, these findings are useful in defining need categorized by content, level of application and manner of delivery. In regard to the content of judicial education, there is a universally recognized need to provide judicial officers with information which keeps them up to date with substantive law and procedure.95 There is also a broadly acknowledged need to provide opportunities to develop particular skills of judging. Education is needed in the management of trials, case-loads and personnel, conduct and ethics. The need for education in the area of judicial disposition, attitudes and values is no less clear and though more educationally complex and perhaps controversial, should be the matter for specific analysis on a situational basis.96 Empirical research supported by actual experience confirms that a range of underlying factors should be taken into account in planning to meet the educationally distinctive needs of judges, in particular,  the pursuit of competence and the need for collegial interaction and perspective. In regard to the level of application of judicial education, there is a need to provide different levels of educational services rather than a single approach in order to accommodate the variety of different requirements. Thus, any program of judicial education should be segmented into five tiers of delivery 95 96

As distinct from teaching judges the law, which is not generally accepted as being the mission of continuing judicial education. Examples of possible needs for education relating to judicial disposition may include addressing media and community complaints that the judiciary fails to set, reflect and protect social values relating to gender, racial and cultural equality. Considerable attention has focused on these issues in the United States and Canada and, more recently Australia and Britain. See, for example, Claxton CS & Murrell PH, Education for Development: Principles and Practices in Judicial Education, jeritt Monograph 3, Michigan State University, 1992. In Australia, considerable recent work has been directed to implementing Recommendation 96 of the Royal Commission into Aboriginal Deaths in Custody, Canberra: Australian Government Publishing Service, 1991, proposing the introduction of judicial education to promote improved knowledge and understanding of contemporary Aboriginal customs; see Gaudron M, “Equality before the Law, with particular regard to Aborigines,” The Judicial Review, 1992, 1, 81–90. More recently, efforts have been made to implement the recommendations of the Australian Law Reform Commission Australian Law Reform Commission Reference on Equality before the Law (1994), and Gender Bias and the Judiciary, Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia (1994), and Report of Chief Justice’s Taskforce on Gender Bias, Perth, Western Australia, 1994.

Assessment Of Need

107

consisting of induction, updating, exchanging experience, specialist and refresher components.97 In regard to the manner of delivery of judicial education, there is a need to provide education in a manner which is conducive to meeting the distinctive needs of judicial officers within the constraints imposed by the doctrine of independence. There is a further need to accommodate the preferred practices of learning which exist within the judiciary which it will be argued are intensely self-directed. The significance of this inheritance of preferred learning practices has implications for program development and curriculum design. It will be argued in later chapters that there is a higher than usual need to promote facilitated self-directed learning through the provision of access to educational resources (such as bench books, digests, reports and appeal decisions), and relatively less reliance on classic formalized didactic instruction in classes and seminars.98 Notwithstanding, Catlin has correctly identified the subsidiary importance of group-learning processes in workshops and conferences to provide environments for collegial interaction and the development of professional perspective. These findings provide an important conceptual framework within which to develop activities to meet specifically-defined educational needs, and lay the foundations for the subsequent parts of this study. In the following chapters, these findings will be integrated with an application of educational theory to develop a distinctive practice which is appropriate for judicial learners. They will form the basis for a policy-based approach to meeting judges’ needs, and will provide the benchmark against which educational endeavour should be measured in terms of, first, efficiency in attaining educational objectives and, second, effectiveness in enhancing judicial performance.

97 98

See discussion of educational planning in Chapter 7. See discussion of the application of educational theory to judges in Chapter 6.

PART B Educational Considerations

∵

chapter 5

Adult Learning Learning is the process whereby knowledge is created through the transformation of experience.1 Adult learning is a complex phenomenon. While it shares commonalities with childhood learning, there are at the same time substantial differences.…The adult’s independent self-concept, ability to be a selfdirected learner, readiness, and orientation to learning are interactive factors that help explain not only the great diversity among adult learners, but also many of the commonalities.2 It does make sense to argue that, generally speaking, humanist theory appears relevant to learning self-understanding; behaviourism seems useful in teaching practical skills; and developmental theory has much to offer to goals of teaching ego, intellectual or moral development.3 The first part of this study examined the need for continuing judicial education, through its recognition within the judiciary itself and an analysis of empirical data to provide insights on its nature and character. In this part, a study will be made of the educational means available to meet these needs, commencing in this chapter with an assessment of the applicability of adult learning theory to judicial education. It is argued that the learning needs of judges are in certain respects quite particular, relating both to the nature and content of the learning, and to the education process supporting that learning. In order to design a process of judicial education, it is useful to define how this process is distinctive from the existing approaches of, first, adult education and, second, professional development. This chapter applies the theory of adult learning to the practice of continuing judicial education. It argues that the foundation of any program of judicial education is laid in the principles of adult learning. This study is useful in casting light on the issue of how any judicial education program

1 Kolb DA, Experiential Learning: Experience As The Source Of Learning And Development, Englewood Cliffs New Jersey: Prentice Hall, 1984, 38. 2 Darkenwald G & Merriam S, Adult Education: Foundations of Practice, New York: Harper & Row, 1982, 112. 3 Cross KP, Adults as Learners, San Francisco: Jossey-Bass, 1981, 233–4.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279261_006

112

chapter 5

should be designed. Using this insight, the chapter explores the implications of particular aspects of adult learning for judicial educators. i

Application of Adult Learning Theory

Educational theory provides a range of useful insights to the process of judicial learning. Adults learn in a manner which is generally seen as being distinctive to children, and requires the development of a particular educational approach. Adult learning is autonomous, self-directed, builds on personal experience, and requires immediacy of application in problem-solving. In this sense, judges epitomise adult learners. Participation in continuing education is usually a purposive activity: to prepare for a new job or improve present job abilities, and rewards such as improved employment and remuneration tend to dominate the choices of learning. Various schools of educational thought including humanism, behaviourism and developmental theory each contribute useful insights on the process of adult and judicial learning. Within this understanding, any model of adult education should be seen, primarily, as a process of facilitation based on self-directed learning, where the educator is cast in the role of facilitator in a process centred on the learner, rather than as an authoritarian model of teaching where the educator directs a learning process which focuses on the subject. This view of adult learning has fundamental and far-reaching implications for the designers of programs of continuing education. Andragogy versus Pedagogy The discipline of adult education is relatively young. It is generally recognized as having commenced in 1926 with the formation of the Adult Education Association in the United States, drawing from the disciplines of sociology, psychology, business and management. Cross has observed that there is a notable lack of theory in adult education, which she attributes to the market orientation of practitioners concerned with delivering services to clients, and to the multi-disciplinary nature of adult education which she considers to cause confusion and a lack of academic coherence.4 Notwithstanding, any examination of contemporary adult learning theory should arguably commence in the early 1970’s with Knowles’ controversial theory of andragogy which asserts that children and adults learn in different ways. 4 Cross, 109–111; see discussion of Cross’ models on developmental theory, below.

Adult Learning

113

Knowles defines andragogy as “the art and science of helping adults learn”, and contrasts it with pedagogy which is concerned with helping children learn.5 This concept of andragogy has been described by Brookfield as “the single most popular idea in the education and training of adults”, and one with which Knowles is most closely associated.6 Knowles postulates that the characteristics of the adult learner develop as the child matures into an adult, and include: – a self-concept moving from a dependent personality to being self-directed; – accumulation of a growing reservoir of experience that becomes an increasing resource for learning; – a readiness to learn which becomes orientated increasingly to the developmental tasks of his social roles; and, – a time perspective which changes from one of postponed application of knowledge to immediacy of application, and accordingly an orientation towards learning which shifts from one of subject centredness to one of problem centredness.7 This view, while serving as the de facto foundation of modern adult learning theory, has attracted considerable criticism.8 Indeed, in subsequent writing, Knowles modifies his earlier dichotomy of andragogy and pedagogy in to a continuum, and acknowledges that it may be preferable to now see adult learning characteristics as extremes on a spectrum of learning through the human development process, rather than dichotomous approaches.9 Despite this qualification, the work of Knowles has been extraordinarily influential in first 5 Knowles MS, The Modern Practice Of Adult Education: From Pedagogy to Andragogy, Chicago: Follett, 1980, 43–44, and 57–58 (note earlier 1970 edition bi-lined Andragogy versus Pedagogy, 39); see also Knowles MS, The Adult Learner: a Neglected Species (2nd Ed.) Houston: Gulf, 1973, 55–59. 6 Brookfield SD, Understanding and Facilitating Adult Learning, San Francisco: Jossey-Bass, 1986, 91. 7 Knowles 1980, 43–44. 8 See, for example, Brookfield, 95–96; also, the Nottingham Andragogy Group, Towards a Developmental theory of Andragogy, Nottingham: University of Nottingham, Department of Adult Education, 1983. The Nottingham Andragogy Group agrees with the role Knowles ascribes to past experience affecting how adults interpret their current personal and social worlds; but seriously qualifies his emphasis on the following features: self-directedness, that adult learners are invariably problem-centred, or that adults seek an immediate application of learning. 9 Knowles MS, “Andragogy Revisited Part 11,” Adult Education, Fall 1979, 30, 1, 52–53.

114

chapter 5

delineating the separate study of adult learning, and secondly in providing a foundation and point of departure for subsequent theorists. Darkenwald and Merriam, for example, endorse and build on these foundations. They argue that adult learning practices are different from those of young people, that education is an activity which emphasizes learning rather than teaching, there is some interplay between the intellectual and emotional elements in learning, a primary vehicle of adult learning is the group, and that emphasis is placed in adult learning on the individual as learner.10 Brookfield describes the principles of adult learning in terms originally outlined by Knowles as now amounting to the catechism of adult educators. He argues that adults learn throughout their lives: As a rule, however, they like their learning activities to be problem centred and to be meaningful to their life situations, and they want the learning outcomes to have some immediacy of application. The past experiences of adults affect their current learning.…Finally, adults exhibit a tendency towards self-directedness in their learning.11 Despite this support, the validity of these generalizations about adult learning remains questionable in the absence of unequivocal empirical evidence. An analysis of andragogy discloses certain flaws in the theory which deny it full credibility, and give rise to the criticism that the theoretical explanation is speculative and self-serving. For example, one feature of andragogy is the significance of experience to the adult learning process: yet, how is it edifying to claim that the process of adult learning is distinctive in its use of experience, other than to highlight the obvious feature that adults have a larger reservoir of experience on which to draw? Similarly, a second feature of andragogy is autonomy and self-directedness: yet, why should adults be considered distinctive in the autonomy of their preferred learning practices when the evidence of childhood education is hallmarked by institutionalized disempowerment? Cross goes further to challenge the problem-centred orientation to learning which is one of the basic assumptions of Knowlesian learning theory. She argues that the adult comes into the learning activity voluntarily, precisely because he/she is experiencing some inadequacy in coping with current life problems; circumstances impose that the time perspective is one of immediacy in application for adults, just as circumstances impose the converse on children: 10 11

Darkenwald G & Merriam S, 70 and 110–111. Brookfield, 31.

Adult Learning

115

Children have been conditioned to have a subject-centered orientation to most learning whereas adults tend to have a problem-centered orientation…the child’s time perspective towards learning is one of postponed application.12 If the theory of andragogy is so readily debunked, how can the evident consensus among adult educators on the usefulness of distinguishing between child and adult learners be explained? It is suggested that the answer can be found in the importance which andragogy provides to the process of adult and life-long learning, rather than to any comprehensive explanation of that process which it may or may not provide. It should be remembered that Knowles is more responsible than any other theorist for recognizing the importance of adult learning; in retrospect, it is argued – and he would probably agree – that he exaggerated its distinctiveness in order to establish this recognition. Notwithstanding, empirical testing of Knowles’ concept of andragogy continues to generate equivocal findings at best. This being the case, at least for the present, it is necessary to turn elsewhere for an authoritative explanation of adult learning. A starting point is provided by a study of adults as learners – who they are, why they learn, and how. Characteristics of Adult Learners A study of the adult learner, and his/her characteristics, is illuminating of the process of adult learning itself. Who, then, is an adult learner? Zimmerman defines an “adult” as “one who has arrived at a self-concept of being responsible for one’s own life, of being self-directed”. This definition, while in some measure self-serving, does distil an important and distinctive aspect of the adult learning process: The challenge of adult educators is to resolve conflicting expectations of adult learners: on the one hand they are conditioned to be passive learners (as they were as children), and on the other hand they have an expectation and deeper psychological need to be self-directed.13

12 13

Cross, 189, in critiquing the work of Knowles. Zimmerman G, Adult Learning – Andragogy vs Pedagogy, Reno: National Judicial College, unpublished workshop materials, 1988, 1–8, 1. He sees the distinction between adult and child learning in terms of andragogy being learner-centred, and pedagogy being instructor-centred.

116

chapter 5

Houle developed a typology, or classification, of adults as learners defined in terms of motivation which, according to Cross, “remains the single most influential motivational study today.”14 This classification was developed from a study of the reasons why a sample of active adult learners were so active. This study found common threads running through the reasons for the learners’ activities. Analysis of these reasons by Houle identified three categories of learners: those who seek specific concrete objectives, such as learning public speaking (whom he described as goal-orientated learners); those who wish to participate in order to do something, such as to make friends (activityorientated learners); and those who pursue learning for its own sake out of a fundamental desire to know and grow through learning, such as avid readers (learning-orientated). Additionally, Houle also classified learners in terms of their disposition to learn. He argued that professionals vary greatly in the extent to which they feel and act upon what he describes as the “zest for learning.” Learners can be classified according to the extent of their adoption of change into innovators who possess a zest for learning, pace-setters, the middle majority, laggards and facilitators.15 Although lacking any unequivocal support from the findings of quantitative research, this classification of professional learning is widely endorsed by researchers in the field, and has major curricular and instructional implications for educators. The value of this classification is in sensitizing the educator to the fundamentally different types of learners, grouped in terms of their readiness to learn actively. This classification is important in developing any formalized education process which must, by necessity, determine to whom it is directed: pace-setters, the middle majority or laggards. Tough has undertaken a more empirical analysis of adult learning characteristics. On analysis of a selection of learning projects undertaken by adults, he observed that self-direction and the ability of adults to plan and control their learning was a critical characteristic. He also found that efficiency is often the most important criterion for selecting the planner for learning activities – what is the fastest, easiest, cheapest way for me to learn what I want?16 14 Cross, 82. 15 Houle CO, Continuing Learning in the Professions, San Francisco: Jossey-Bass, 1980, 155–163. 16 Tough found that group situations in which a designated professional person (“instructor/ teacher”) is responsible for planning content and sequence, accounts for only 10% of learning projects, 73% was self-planned, and 13% with one-to-one helpers: Tough A, The Adult’s Learning Projects: A Fresh Approach to Theory and Practice in Adult Learning, Toronto: Ontario Institute for Studies in Education, 1971, 10 and 77.

Adult Learning

117

These findings are generally supported by Penland. When Penland inquired why adults preferred to learn on their own instead of taking a course, he found a positive desire to have more control over the learning situation predominated.17 Further analysis of the interests of sub-groups discloses what Cross describes as “not many surprises.”18 Professionals and college graduates are more likely to be seeking advancement in present jobs; whereas the poorly educated will be seeking education to get better jobs; men are more interested in job related learning than women, as are young people compared to old; interest in job related goals begins to decline at age fifty and drops off sharply after age sixty. Those who are not currently participating in learning activities are even more likely to express an interest in job related education than are their more advantaged peers, who can afford the luxury of education for recreation and personal satisfaction. These findings answer the question who is the adult learner, and cast light on the underlying process of adult learning itself. Houle’s classification of learners is important for educational planning. It highlights the need to recognize differences in the dispositions of learners, and provides a means to approach and select ways in which to meet the learning needs of different learners, rather than to adopt a single approach aimed either at the middle majority or, worse, at the laggards.19 Further light is cast on the process of adult learning when the related question is asked, why do these adults learn? Why Adults Learn The reasons for participation in continuing learning are elemental to any study of adult education because motivation is an integral and essential part of any process of meaningful learning.20 17 18 19

20

Penland P, “Self-Initiated Learning,” Adult Education 1979, 29 (3), 170–179, 174. Cross, 91. Houle, 164: “The two chief concerns of organized continuing education today in all occupations are the same: how to speed up the learning of the majority adopters and how to reach the laggards. Debate ordinarily concerns whether it is better to use the stick or the carrot.” It will be argued that the mandatory continuing education model is educationally limited in its effectiveness because it uses the stick indiscriminately against all professional learners; see discussion in Chapter 7. For this reason, many educators find the notion of mandatory continuing education to be problematic in terms of the effectiveness of the learning process because insufficient attention may be given to providing meaningful incentives to the process; see, for example, Cervero RM, Effective Continuing Education for Professionals, San Francisco: JosseyBass, 1987, 73–74; and, Cross, 42–46.

118

chapter 5

Extensive empirical data has been collected on the issue of participation in continuing learning. Owing to the complex technical issues in measuring the value of any learning, it is easier to measure the extent of success in education using quantitative rather than qualitative measures. Consequently, Houle argues that while the learner should be required to demonstrate increased competence or performance, rather than participation in a transfer of information, this is in practice rarely expected and more rarely undertaken.21 Instead, studies of participation are frequently relied upon to provide inferential indicators for both the assessment of need and evaluation purposes. The pioneer research into reasons for participation in adult continuing education was undertaken by Maslow among others and has resulted in the development of a number of motivational models.22 In 1965, the seminal research of Johnstone and Rivera recognized that adults participate in continuing education for a variety of reasons: to become a better informed person, prepare for a new job, improve present job abilities, spend spare time enjoyably, meet interesting people, carry out everyday tasks, and get away from daily routine: The major emphasis in adult learning is on the practical rather than on the academic; on the applied rather than the theoretical; and on skills rather than on knowledge or information.23 Cross endorses these findings and argues that subsequent research confirms that job improvement or advancement are the most frequent reasons for adult learning.24 Interpretation of the findings of empirical research of the reasons for participation tends to fall within two philosophically distinct camps: those who explain participation within the humanistic terms of motivation, and those who see the process in developmental terms.

21 22

Houle, 248–252. Maslow developed an influential model of human behaviour based on a conceptualization of motivation in a hierarchy of five levels of need, being: survival, security, acceptance, esteem and self-fulfilment. This model was built upon by Knowles as a fundamental part of his theory of adult learning; see Maslow AH, Motivation and Personality, New York: Harper & Row, 1954 (and subsequently, 1970); and Knowles, 1980, 28, respectively. See also Darkenwald and Merriam, 79–80. 23 Johnstone JW & Rivera RJ, Volunteers for Learning Chicago: Aldine, 1965, 3. Cross observes that nothing in the myriad of surveys since has changed that general conclusion – Cross, 91. 24 Cross cites data from the us Census 1969–1978 to support this proposition; Cross, 93–94.

Adult Learning

119

Burgess, for example, supports the humanist, purposive, approach to learning epitomised by Maslow’s construct of need.25 He identifies seven key factors or desires which influence participation. These are the desire to know, the desire to reach a personal goal, the desire to reach a social goal, the desire to reach a religious goal, to take part in social activity, to escape, and to meet formal requirements.26 This approach is supported by Cross who observes that most adults have practical goal-orientated reasons for learning. She argues that learning is generally to improve one’s position in life, though the nature of that improvement depends on position, sex, age and occupation.27 This learning tends to be pragmatic, with 75% focusing on practical, how-to-do-it projects. Vocational and practical education that leads to knowledge about how to do something is chosen by more adults than any other form of learning. Traditional discipline-orientated subjects are not popular with the majority of potential learners. Her research confirms a high interest in learning for immediate use, and practical courses can be observed ranking in popularity far above subjects that might satisfy intellectual curiosity. Most adults are not interested in storing knowledge for later use or in locating answers to questions they do not have. However, other research tends to support the developmentalist approach to learning: Aslanian and Brickell, for example, consider that the stimulus to learn surrounds major change, and tends in its nature to be more reactive to situational settings within the life cycle. They found that life’s transitions, such as changes in careers or employment, are a significant motivating factor to start learning.28 Tough offers another explanation for adult learning, which blends the behavioural with the intellectual:

25 26

27 28

The humanist approach to learning is outlined below. Burgess P, “Reasons for Adult Participation in Group Educational Activities,” Adult Education, 1971, 22, 3–29, 17–18. Burgess identified eight motivational clusters for participation in adult learning: a desire to know, to reach a personal goal, to reach a social goal, to reach a religious goal, to escape, to take part in a social activity, to comply with formal requirements, and desire for personal fulfilment and for cultural knowledge. Cross, 96. The developmentalist explanation of learning is outlined below. Aslanian & Brickell found that 83% of adult learners sampled named some transition in their lives as the motivating factor that caused them to start learning. Changes in jobs or careers were the most common causes for learning mentioned by more than half; Aslanian CB & Brickell HM Americans In Transition: Life Changes As Reasons For Adult Learning, New York: Future Directions for a Learning Society, College Board, 1980, cited in Cross, 95.

120

chapter 5

Most adult learning begins because of a problem or responsibility or at least a question or a puzzle, not because of a grand desire for a liberal education.29 Cross endorses Tough’s findings, observing that almost every learner has more than one reason for engaging in learning. While adult learners are most frequently motivated by the pragmatic desire to use or apply the knowledge or skill, she argues that most participants enjoy learning and gain satisfaction from attaining the knowledge or skill.30 It is argued that motivation is an essential ingredient of continuing adult learning. These findings relating to motivation can be interpreted in various ways. For the practical purposes of professional educators, however, it is argued that the most useful and compelling explanation for participation is supplied by the view of learning being predicted in response to motivation and incentives consistent with Maslow’s formulation of human need: that is, extrinsic rewards such as improved employment and remuneration tend to dominate the choices of learning. As such, this humanistic explanation of motivation in learning provides useful insights for the development of voluntary education services, and also provides an important empirical means for distinguishing judicial learners from all others. Barriers to Learning Any assessment of the reasons for participation must also canvass the research on the barriers to learning. A considerable body of empirical data exists on the reasons against adults participating in continuing education which provides other insights for educators on means to avoid disincentives to participation. Various researchers have identified a range of obstacles to participation in continuing education. Doa found nine categories of barriers which include insufficient time, personal problems (such as travel, health), fear of failure, social norms, negative feelings to institutions, negative prior education experience, doubts about the value of education, indifference, and lack of information. The most influential of these was found to be insufficiency of time and unawareness of availability.31 These findings are generally supported by other researchers, such as Scanlan and Darkenwald who have found disengagement (general apathy), 29 30 31

Tough, 1971, 72. Cross, 84–85. Dao MN, The Orientations Towards Non-participation In Adult Education, unpublished doctoral dissertation, University of Chicago, 1975, cited in Houle, 151–152.

Adult Learning

121

lack of quality, family and work constraints, cost, lack of benefit or worth and conflicting demands on time to be the dominant reasons against participation.32 Cross has analysed these findings to classify the various barriers and obstacles to learning into three principle types. She describes these categories as situational (lack of time or money), institutional (inconvenient practices or procedures of location, scheduling or costing) and dispositional (relating to attitudes and self-perceptions of learner) barriers.33 It is concluded that the study of the reasons for and against participation equips educators to take appropriate steps to facilitate participation in learning. These steps, at the most basic level, involve designing educational programs which can be recognized by potential learners as providing practical benefits in meeting essentially employment-related needs. Similarly, they involve dismantling the relatively arbitrary barriers created by inconvenience, inaccessibility or ignorance of what is available. These basic steps, alone, have a significant effect on facilitating the continuing learning of adults. ii

How Adults Learn

Education is a formalized process by which people learn. Pivotal to the development of any education process is the need to provide the means for effective learning. It is argued that adults in general and judges in particular learn in a distinctive way. These distinctive learning preferences and practices have direct implications for educators in terms of providing an education process which is most conducive to effective learning. Theorists have sought to understand and explain the learning process. Their investigations have focused upon the individual components of the learning act and the delineation of various types of learning. Explanations of how learning takes place have been assessed through various theoretical and clinical means which have included humanism, cognitive psychology, intellectual/ physiological functioning, developmental psychology and behaviourism among others. A number of theories and conceptual models have been developed by scholars to assist in answering the question “how do adults learn?” A survey of prevailing approaches to understanding how adults learn is outlined below. 32 Scanlan CL & Darkenwald GG, “Identifying Deterrents to Participation in Continuing Education,” Adult Education Quarterly 1984, 34, 155–166. 33 Cross, 98–108.

122

chapter 5

In essence, adult learning is characterized by its autonomy, self-direction, preference to build on personal experience, the need to perceive relevance through immediacy of application, and its problem-orientation. For most adults, participation in continuing education is a purposive activity: to prepare for a new job, improve present job abilities, spend spare time more enjoyably, to meet interesting people and so on. Extrinsic rewards such as improved employment and remuneration tend to dominate the choices of learning. The application of learning theory – specifically, humanistic and developmental explanations of learning – provide a range of useful insights to the proc­ ess of judicial learning. Generally speaking, it has been argued that humanist theory appears relevant to learning self-understanding; behaviourism seems useful in teaching practical skills; and developmental theory has much to offer to goals of teaching ego, intellectual or moral development. In broad terms, these theoretical explanations provide the most appropriate foundations for any model of judicial education. Learning Ability as a Function of Physiological Aging The foundation premise of any educational intervention rests on the outcome of the nature-nurture debate. Within the judicial arena this debate is transposed into the simple question, “Are good judges born, or can they be made?” The literature on judicial selection and competence is a witness to the contention within the judiciary itself on this fundamental issue. Unfortunately, the literature of other disciplines fails to resolve the question. There is no clear consensus among theorists on the relationship between learning, intellectual functioning, intelligence and physiological processes. Attempts to measure adult intelligence, for example, have suffered from a lack of consensus as to just what is being measured. It is now recognized that “intelligence tests” are a dubious measuring technique which are, arguably, not directed at learning capacity in any event. Factors other than intelligence, such as general health, energy, interest in learning and opportunity are now increasingly recognized as influencing the learning process.34 Neugarten describes the state of knowledge of the relationship between personality and aging as being in “a state of disarray” marked by methodological flaws and conceptual impoverishment.35 A further application of the nature-nurture controversy debates whether intellectual attainment peaks at about twenty-five years or continues to grow 34 Darkenwald and Merriam, 105–111. 35 Neugarten BL, “Personality and Aging,” in Birren JE & Shaie KW (Eds) Handbook of the Psychology of Aging, New York: Van Nostrand Reinhold, 1977, 644, cited in Cross at 165.

Adult Learning

123

with age until about seventy-five. Traditionally, intelligence has been measured by speed of reaction tests, which raises the question, “how important to adult learning abilities are speeded intelligence tests?” Indeed, it is now argued that iq testing tends to measure schooling, conditioning and practice rather than innate intelligence, and is demonstrably affected by the extent of formal schooling.36 Speed of response, which may get slower as one get older, is not necessarily related to the capacity to learn. While time associated with learning may increase with age, speed of response does not prevent learning; indeed, provided adults can control the pace, they can learn as much at fifty years as at thirty.37 If these so called intelligence tests in fact measure speed of response rather than the capacity to learn, then it is necessary to develop an alternative means to describe and measure learning capacity. In relation to the physiological process, it is valid to assess the relationship between the slow-down in cognitive function and any restriction in learning ability. It has been found that aging is not a significant handicap to learning processes until physiological degeneration sets in at about seventy-five years in the form of failure of hearing or eyesight: vision, for example, has been found to deteriorate with age from eighteen to forty years, then sharply from fifty-five onwards. It has also been found that impaired learning can occur through age for a variety of reasons. These can include a decline in short-term memory capacity, increased difficulty in organizing complex material, greater interference from previous learning, more difficulty in disregarding irrelevant aspects, and reduced ability to discriminate between stimuli. Darkenwald and Merriam argue that other non-cognitive factors impeding learning performance are speed, meaningfulness and motivation.38 However, as Cross points out, The discrepancies between cross sectional and longitudinal studies are more or less resolved, with the conclusion that normal healthy adults can expect to be efficient and effective lifelong learners well into old age. Researchers are now moving away from plotting omnibus intelligence 36

Catell RB, “Theory of Fluid and Crystallized Intelligence: A Critical Experiment,” Journal of Educational Psychology, 1963, 54 (1), 1–22. 37 Knox AB, Adult Development & Learning: A Handbook on Individual Growth and Competence in the Adult Years for Education and the Helping Professions, San Francisco: Jossey-Bass, 1977, 422. 38 Darkenwald & Merriam, 109.

124

chapter 5

test scores against chronological age towards looking at different kinds of cognitive functions.39 It can be seen that physiological aspects of intelligence – when taken alone – provide only limited explanations into the learning process. However, when assessed within the perspective of developmental theory, this study provides some important insights for educators. Catell argues that intelligence can be classified into two elements which comprise fluid intelligence (genetically based, neuro-psychologically bound, independent of education or life experience) and crystallized intelligence (dependent on experience, accumulated knowledge, and the interplay between the organism and its environment).40 Fluid intelligence has been measured to peak during late adolescence, while crystallized intelligence increases with age.41 These findings have significant implications for developmental theorists who argue that the physiological process of aging can be documented not so much in terms of degeneration and reducing abilities but, rather, in terms of changing learning abilities. Thus, younger adults are physiologically better equipped to acquire information, whereas older adults are better equipped to reflect on and apply that information within the context of their experience. In short, the physiological process generally plays a minor role only in the learning process, at least until adults are passed the professional years of their lives. However, a study of the learning process within the developmental context of the life-cycle generally and the career-cycle specifically reveals a number of relationships which have compelling implications for educators. Developmental Theory In the realm of adult learning, and particularly continuing professional learning, developmental theory offers particular insights to educators. Develop­ mental theorists see the various stages and phases of human development as an inevitable unfolding of predetermined patterns, and relate phases of the life cycle with developmental stages of growth and maturity. Havighurst identifies developmental tasks for the 3 periods of adulthood: early adulthood – selecting a mate, starting a family, managing a home, getting started in an occupation, finding a congenial social group; middle age – achieving adult civic and social responsibilities, establishing and maintaining 39 40 41

Cross, 161. Catell, note 42, above. Darkenwald & Merriam, 107.

Adult Learning

125

an economic standard of living, assisting one’s children to become adults, developing durable leisure-time activities, accepting and adjusting to physical change; and late maturity – adjusting to decreasing physical strength and to death, adjusting to retirement and reduced income, adjusting to death of partner, and finally adjusting to infirmity.42 Darkenwald & Mirriam argue that there is increasing evidence that adulthood can be seen in terms of a changing, fluctuating, developmental phenomenon, with time as the key element.43 Development is seen as a concept defined as those normal processes of the life cycle in which the organism is changed or transformed by interaction with the environment having biological, social and psychological dimensions. Developmental psychology attempts to determine the commonalities that exist for all human beings moving through the life cycle. Thus, the tasks of adulthood relate primarily to societal expectations and pressures; developmental tasks change according to the various roles one plays in life – worker, spouse, homemaker, citizen, neighbour. Knox views adult development and learning in terms of change events: leaving home, marriage, children, retirement; interspersed with death, health and new jobs. Change events follow a patterned sequence of pre-structure, anticipation, event, disorganization, post-structure.44 The interests of the middle class man are dominated by his career…In his twenties, dominant concerns are clarifying his self-concept and focusing his life largely through his career. In his thirties, a primary concern is in collecting his energies for a major drive towards his highest career goal. It is during this period that the rate of participation in adult education is highest, with much emphasis on education in anticipation of assumptions of more major responsibility…During middle age, middle class men shift from exerting and asserting themselves to maintaining their position and changing roles…The increase of men in liberal education programs or the arts or political affairs is evident in adult education enrolments figures…Adult education programs for this period in the life cycle, and for the next in which they decide whether to disengage from

42

43 44

Havighurst RJ, Human Development and Education, New York: Longmans Green & Co, 1953; and Havighurst RJ, Developmental Tasks and Education (3rd Ed), New York: McKay, 1972, 2. Time in this context is measured in three contexts: life time, social time and historical time; see Darkenwald & Merriam, 87–88. Knox, 1977, 514 and 537.

126

chapter 5

their career and how, are so infrequent that it is difficult to predict what the responses might be.45 Other stage theorists see development within processes of biological maturation, age-related developmental tasks and social roles, or psychological growth, all of which are relevant to adult educators. However, Darkenwald and Merriam caution against reliance on these theories: The newness of research into adulthood, the ambiguity of some of the findings, and the lack of a simple explanation of the link between learning and development can be problematic.46 While the research is tentative at this stage, Cross observes that educators find age-linked descriptions useful in providing a basis for education to play an role in pulling the individual into higher stages of development.47 Challenge and stimulation are seen as inevitable conditions in life. Thus the role of the educator is capable of being seen as helping the individual advance to the next level of cognitive development, through designing educational experiences which will challenge the learner to reach for growth-enhancing cognitive experiences. Within these terms, Cross has developed two conceptual models to assist educators work within this developmentalist framework. Her Characteristics of Adults as Learners (cal) model illustrates the need for educators to find a means of dealing with this process, by attributing characteristics to adults as learners. This model incorporates the major existing theories of adult learning (andragogy and developmental-stage and phase theory) into a generic context, and provides a framework for thinking about what and how adults learn.48 In her second, Chain of Response (cor) model, Cross builds on Houle’s learners typology to develop the hypothesis that different stages in life call for different learning abilities: youth for acquisition of information, young adulthood for achievement, middle age for responsibility, old age for reintegration.49 45 46 47 48

49

Knox AB, “Interests and Adult Education,” Journal of Learning Disability, 1968, 1, 2, cited in Knowles, 1980, 92. Darkenwald & Merriam, 98. Cross, 171, and 230–1. Cross, 235–248: Her CAL model consists of two classes of variables: personal characteristics (which include schemata of physiological/aging, socio-cultural/life phases, and psychological/developmental stages); and situational characteristics (full or part time learning, and voluntary or compulsory learning). Cross, 124–131, and 162.

Adult Learning

127

This cor model is a conceptual, analytical planning and research instrument, which can be used by educators across the spectrum of life-span education. It is designed to provide a conceptual framework for understanding the motivations of adult learning, permitting analysis of hypotheses in the context of an explanatory model. Cross hypothesizes that the model can be used for strategic planning to facilitate enhanced participation in adult learning by more effective intervention on the part of educators.50 This approach on the part of Cross invokes a different educational model to capitalize on relative learning strengths within the context of the lifedevelopment cycle, and has been acclaimed as a useful educational response by subsequent commentators.51 Developmental theory provides some useful explanations for the existence of particular phenomena pertaining to learning by reference to the stage of life or career at which the adult may be found. These explanations can be utilized by judicial educators using the models developed by Cross or others developed on the basis of individual experience. Humanism Another useful explanation of the learning process, which is allied to developmental theory, is provided by humanism. The humanistic approach to learning emphasizes that a person’s perceptions grow out of experience, and stresses the individual’s responsibility for becoming what one wants to become. The research of Tough supports the humanistic approach that there is a natural tendency for people to learn and that learning will flourish if encouraging environments are provided.52 Tough demonstrates that at least 90% of adults learn – that is, that learning is a basic human orientation. This approach has been highly influential in underpinning many approaches to continuing education. The humanistic explanation has been adopted by Maslow in constructing his theory of human motivation based on a hierarchy of needs.53 This hierarchy, in turn, has been relied upon by many subsequent theorists, including Knowles. Darkenwald and Mirriam argue that Knowles’ philosophy of andragogy is based on a view of “man in his wholeness” and the

50 51 52

53

Cross provides examples of the strategic application of this model, at 132–151. See, for example, Darkenwald & Merriam 98. Tough A, Why Adults Learn: A Study of the Major Reasons for Beginning and Continuing a Learning Project. Monographs in Adult Education (No 3), Toronto: Ontario Institute for Studies in Education, 1968, cited in Cross, 50. Maslow, note 22, above.

128

chapter 5

adult as a self-directed learner.54 This approach is also supported by Cervero and Brookfield, who argue that effective facilitation of learning is the goal towards which all continuing professional educators should strive.55 The implications of humanism for the educator is to cast the educator in the role of facilitator rather than as the agent to direct the learning process. Humanism conceives the education process being centred on the learner rather than the subject in order to give freedom to pursue self-directed development – when, how and where he or she wants. It will be seen that this explanation of the learning process is appropriate to the learning practices of judges, and can be useful in developing a model of continuing judicial education. Cognitive Psychology The cognitive concept of learning provides an important new perspective to finding an answer to the question “how do adults learn”. Cognitive psychology focuses on the acquisition of knowledge and knowledge structures rather than on behaviour. Cognition is the process of registering, storing, and retrieving information and manipulating that information to solve problems. The cognitive model of the learner is, based on the premise that learning is an active, constructive and goalorientated process that is dependent upon the mental activities of the learner. This view contrasts with the behavioural orientation…which focuses on behavioural changes requiring a predominantly reactive response from the learner to various environmental factors.56 A key assumption to cognitive theory is that learning is cumulative in nature and rests on prior experience. Thus in this model of education, the educator must take into account the prior level of knowledge because understanding and interpretation of the information presented depends on the availability of appropriate schemata: adults – and particularly professionals – must, according to Shuell, be able to test, evaluate and modify understanding and experience. Thus a major goal of this form of instruction is to teach learners how to interpret their experience in a manner that will be useful for their practice. Shuell concludes: 54 55 56

Darkenwald & Mirriam, 78. Cervero, note 20, above, at 57; and Brookfield, 283 and on. Shuell TJ, “Cognitive Conceptions of Learning,” in Review of Educational Research, 1986, 56, 411–436, 415, cited in Cervero, 40.

Adult Learning

129

The most salient concept from cognitive psychology is consistent with much of what has been described as good practice in teaching adults: without taking away from the important role played by the teacher, it is helpful to remember that what the student does is actually more important in determining what is learned than what the teacher does.57 Proponents of a cognitive psychological explanation of learning seek to understand mental processes, thinking, concept-formation and the acquisition of knowledge: they distinguish between reception (internalizes presented material) and discovery (discovered by learner then internalized) learning. Discovery learning is in its essence a matter of rearranging or transforming evidence in such a way that one is enabled to go beyond the evidence so assembled to acquire additional new insights. A major long-term objective of education, according to cognitivists, is the learner’s acquisition of clear, stable, and organ­ ized bodies of knowledge. The cognitivist approach to learning provides the foundations for the work of Kolb who re-examines the underlying principles of cognitive psychology in order to refine its application to the practice of adult education. Experiential Learning, and Kolb’s Learning Style Inventory The work of Kolb is valuable in any study of adult learning for the manner in which he integrates the application of cognitive psychology with human developmental theory.58 This work comprises two practical elements which are universally relevant to adult learners and have specific application to judges. The first element of Kolb’s work emphasizes the essential role of experience. It sees learning as being a continuous process grounded in experience, and places greater importance onto the process rather than its outcome59 In this process, learning rather than teaching becomes the dominant concern. 57 58

59

Shuell, 429. Kolb builds on the foundations of human developmental theory which recognizes three broad stages of human maturation. These are acquisition (birth to adolescence: acquisition of basic learning abilities and cognitive structures), specialization (extends through formal education and career training and early adult work experiences; person achieves a sense of identity, frequently reflected through work) and integration (pursuit of personal/ social fulfilment, often marked by a mid-life crisis; the challenge comes to shape one’s own experience rather than accepting them as they happen); Kolb, 142–145. Kolb, 26–27.

130

chapter 5

For Kolb, Learning is the process whereby knowledge is created through the transformation of experience.60 Learning occurs in a cycle consisting of four stages which Kolb describes as a “learning style inventory.” This inventory consists of (a) concrete personal experience; (b) observations and reflection on that experience reworked into (c) abstract concepts and generalization which are (d) tested in new situations.61 In instructional terms, this cycle involves the learner first in an immediate c­ oncrete experience (such as role plays, exercises, case studies) followed by reflection on the experience from different perspectives (small group discussions, processing of the experience). Learners then engage in abstract conceptualization ­(lectures, research, additional reading) to help integrate observations into conceptual frameworks; finally, through active experimentation, learners apply what they have learned to a practical situation (action plans, proposed system changes, procedures). The cycle then begins again, but at a higher and more complex level.62 The second element of Kolb’s understanding provides insights into learning preferences. Kolb asserts that learners can be classified into four predominant types: accommodators – who learn best through concrete experience and active experimentation, and are very good at implementing plans and working with people; divergers – whose great strength is imaginative ability, and who learn best through concrete experience and reflective observation; convergers – who learn best through abstract conceptualization and active experimentation, and are strong in applying theoretical notions to real life situations; and assimilators – who learn best through abstract conceptualization and reflective observation, and assimilate disparate data into sound theories. These preferred learning styles are conceived by Kolb not as fixed personality traits but as processing structures or orientations resulting from successful experiences between people and the world. Kolb’s analysis of experiential learning and his learning style inventory provides a simple but practical explanation of the learning process which can be readily validated, and has consequently been influential in contemporary understanding of the learning process.63 The learning style inventory creates 60 61 62 63

Kolb, 38. See Kolb; also Kolb & Fry, “Towards An Applied Theory Of Experiential Learning,” in Theories of Group Processes (Ed. Cooper CL), New York: Wiley, 1975. Kolb, 42. See the related work of Herrmann N, The Creative Brain, Lake Lure, N. Carolina: Ned Herrmann/Brain Books, 1989.

Adult Learning

131

illuminating insights for the design of integrated instructional strategies to promote effective learning. This classification of preferred learning styles can also provide a useful basis for facilitated learning equipping educators to design instructional programs which integrate each of the four major learning styles for group learning situations or, potentially more usefully, to design individualized learning programs tailored to meet both the particular styles and needs of individual judges. Behaviourism Behaviourism provides a contrasting explanation of the learning process. This approach is generally based on applying learned experiences for the attainment of functional outcomes and is frequently applied in skills training where the learning task is broken into segments where there is what Cross describes as “a correct response,” which is rewarded.64 The behaviourist approach, which is sometimes described as the “competency-based” approach to education, lies at the foundation of one of the largest and most visible segments of adult education, namely occupational training in the workplace. Implicit in this approach to the learning process is a model of education developed by Tyler which was designed as a means of defining good practice and providing a conceptual structure to assist educators.65 This model comprises five elements for identifying needs, defining objectives (preferably in behaviourist terms), identifying learning experiences to meet those objectives, organizing learning experiences into a plan with scope and sequence, and evaluating program outcomes in terms of attainment of behaviours specified. The Tylerian model of education has been highly influential in forming the basis for much subsequent work.66 Brookfield, however, argues that it distorts reality. He criticizes what he describes as the “classical Tylerian model” for its focus on attainment of predetermined objectives which he argues does not allow for unplanned, natural, dynamic outcomes which are an essential part of learning. It will often be the case then that the most significant personal learning adults undertake cannot be specified in advance in terms of objectives to be attained or behaviors [sic] of whatever kind, to be performed.67 64 65 66 67

Cross, 232–233. Tyler RW, Basic Principles of Curriculum and Instruction, Chicago: University of Chicago Press, 1949. Regarding the enduring influence of the Tylerian model, see Houle, 226; and Brookfield, 204. Brookfield, 213–214.

132

chapter 5

This concern is endorsed by Day and Baskett, who argue that the focus on the attainment of predetermined objectives does not allow for nature or unanticipated learning during the course of the programs and inadvertently leads the educator to view all learning in terms of demonstrable behaviour. The tendency to interpret objectives behaviourally poses ethical questions as to whether one person should attempt consciously to modify the behaviour of another.68 The most serious criticism of the behaviourist approach, however, is that it is contrary to effective learning. Brookfield argues that learning entails fundamental change in learners and leads them to redefine and reinterpret their personal, social and occupational worlds, in the process exploring affective, cognitive, and pyschomotor domains that they had not previously perceived as relevant: [T]o establish a set of objectives where attainment determines the format and focus of the teaching-learning transaction is to make it impossible to learners to reformulate their goals and make them correspond more closely with their perceptions of the world.69 For some more radical educationalists, such as Friere,70 the Tylerist approach to education denies learners their right and ability to determine their learning program by negotiation from a position of equality. For Brookfield, this is a “crucial” point. The element of dynamism and unpredictability is essential to learning: For the effective facilitation of learning…there can be no other alternative to this process of negotiation, change and alteration.71 Departure from the behaviourist model by reasons of its limitations gives rise to a need to redefine an alternative approach to education. A preferred 68

69 70 71

Day C and Baskett HK, “Discrepancies Between Intentions and Practice: Re-examining Some Basic Assumptions About Adult and Continuing Professional Education,” Inter­ national Journal of Lifelong Education, 1982, 1, 143–155, cited in Brookfield at 208. Brookfield, 214. Friere P, Pedagogy of the Oppressed, New York: Herder and Herder, 1970; and, Friere P, The Politics of Education, South Hadley, Mass.: Bergin and Garvey, 1985. Brookfield, 216.

Adult Learning

133

approach to the education of adults is provided within the notion of facilitation. Facilitated Learning The importance of autonomy in adult education leads to a recognition of the need to shift from the classic pedagogical model of instruction to a process of self-directed learning. Self-directed learning has unique values of its own – values which arise out of the intimacy with which the acquisition of knowledge must be interwoven with experience. Increasingly, studies are recognizing that this introspective mode of learning should not be treated as a secondary way of achieving educational goals in the absense of a group learning process.72 Ironically, the techniques of systematic self-education have not been taught to most professionals, simply because most professors believe that their students do not need such instruction. It is within this context, that much is heard of facilitation as a technique in promoting adult learning: what, then, is facilitation? Since the foundational work of Knowles through to the most recent works of Schon and Kolb, facilitation has become a raison d’etre of adult learning to the extent that it is now described as exercising something of a “conceptual stranglehold” on the notion of correct educational practice. Brookfield observes that talk of the role of the teacher is unfashionable and distasteful to some educators of adults who are at pains to stress the democratic and student-centred nature of their practice. Facilitators do not direct; rather, they assist adults to attain a state of selfactualization or to become fully functioning persons…[however] the problem with accepting this as the sum total of the educator’s responsibility is that it assumes a high degree of self-knowledge and critical awareness on the part of adult learners.73 Learners, as much as facilitators, have been socialized into a view of education as an authoritarian-based transmission of information, skills and attitudes from teacher to student. Yet, Brookfield argues, to give in to this temptation is to reaffirm precisely those patterns of dependency that prevent adults from becoming empowered, self-directed learners.74 A crucial role of the facilitator exists between the extremes of the authoritarian transmission of information 72 73 74

Brookfield, 214. Brookfield, 123–4. Brookfield, 296.

134

chapter 5

and the non-directive, free-flowing realization of learner-defined activities. This role must promote what Brookfield describes as a collaborative transactional approach with learners.75 Developing in adults a sense of their personal power and self-worth is seen by Brookfield as a fundamental purpose of all education and training efforts. Only if such a sense of individual empowerment is realized will adults possess the emotional strength to challenge behaviours, values, and beliefs accepted uncritically by the majority. Effective facilitation requires a philosophy of practice, and is present when adults come to understand that the belief systems, value frameworks, and moral codes informing their conduct are culturally constructed. Thus he argues that effective facilitation means that learners will be challenged to examine their previously held values, beliefs, and behaviours and will be confronted with those which they may not wish to consider. In this sense, the mission of continuing education is to engage learners in the continuous critical analysis of received assumptions, common sense knowledge, and conventional behaviours: Central to [the process of adult education] is a continual scrutiny by all involved of the conditions that have shaped their private and public worlds, combined as a continual attempt to reconstruct those worlds. This praxis [sic] of continual reflection and action might be accurately viewed as a process of lifelong learning.76 In this sense, Brookfield advocates a concept of facilitation which rejects equation with a non-directive service to learners who are essentially in total command of their learning activities. Instead, he argues that facilitated learning is a transactional drama in which the personalities, philosophies and priorities of the chief players (participants and facilitators) interact continuously to influence the nature, direction and form of the subsequent learning.77 Brookfield adds to any understanding of the principles of adult education by defining additional elements of effective practice in facilitated learning. These elements include the need for voluntary participation, mutual respect, collaborative spirit, praxis (a concept similar to Freire’s notion of alternating and continuous engagements by teacher and learner in exploration, action

75 76 77

Brookfield, 146. Brookfield, 293–4; and see, 287. Brookfield, viii.

Adult Learning

135

and collaborative analysis),78 critical reflection and self-direction.79 As such, Brookfield provides a cogent philosophic outlook of empowering the adult learner within any formalized approach to education, which is highly compatible with the preferred self-directed learning practices of judges and, perhaps more importantly, the doctrinal imperative to preserve judicial independence within the education process. Facilitated learning provides a philosophically compelling approach to judicial education, and postulates a dual answer to the “nature-or-nurture” debate: first, it asserts that good judges can be educated and not just born; second, it highlights that learning rather than teaching is the most important element in that education process. iii

Observations for Judicial Educators

There is a broadly-held consensus among educational theorists, commentators and practitioners that adults do learn in a manner which is different to children. Although this consensus remains largely an hypothesis, it is generally accepted as having utility for the purpose of developing a distinct educational paradigm for adult learners. The principles of adult learning should lie at the foundations for any program of judicial education. These principles recognise that adult learning is characterized by its autonomy, self-direction, preference to build on personal experience, the need to perceive relevance through immediacy of application, its purposive nature, and its problem-orientation. The application of learning theory, specifically humanistic and developmental explanations of learning, provide a range of useful insights on the process of judicial learning. For these purposes, the observations of Cross are endorsed: It does make sense to argue that, generally speaking, humanist theory appears relevant to learning self-understanding; behaviourism seems useful in teaching practical skills; and developmental theory has much to offer to goals of teaching ego, intellectual or moral development.80 78 79

80

Friere, note 86, above. Brookfield, 10. At the heart of self-directedness is the adult’s assumption of control over setting educational goals and generating personally meaningful evaluative criteria; thus, to present the learner with viable alternatives, is part of the role for the facilitator; Brookfield, 19. Cross, note 3, above.

136

chapter 5

In broad terms, judges epitomize adult learners. Within this understanding of the process of adult learning, any paradigm of formalized judicial education should be seen, primarily, as a process of facilitation based on self-directed learning rather than an authoritarian model of teaching. In the next chapter, this argument will be refined. It will be seen that the learning of judges is characterised by particular features which distinguish their needs for education and their preferred learning practices from most other adults or professionals. These distinctions have fundamentally important implications for educators in terms of the objectives, content and instructional design of any program of education for judges, and give rise to the need to develop distinctive principles of continuing judicial education.

chapter 6

Judges as Learners A corollary to the assumption that adults are largely problem-orientated learners is that the more sharply the potential learner has managed to define the problem, the less satisfactory traditional classes will be.1 In the varied topography of professional practice, there is a high, hard ground overlooking a swamp. On the high ground, manageable problems lend themselves to solution through the application of research-based theory and technique. In the swampy lowland, messy confusing problems defy technical solution. The irony of this situation is that the problems of the high ground tend to be relatively unimportant to individuals or society at large…while in the swamp lie problems of greatest human concern.2 In the swamp, the practitioner must find or construct problems from ambiguous situations. Thus, problem setting rather than problem solving is the key to professional practice.3 The learning needs, practices, preferences and constraints of judges are distinctive, for a number of professional, educational and doctrinal reasons, and warrant the development of a particular model of judicial education.4 This model should extend the foundations of adult and professional education, and go beyond training for functional competencies, to pursue professional artistry, and promote active self-analysis and critical reflection. Judicial learning is a complex process. In the last chapter, it was argued that educators see adult learning (andragogy) as being different to child learning (pedagogy), and place particular importance on the need for autonomy and relevance in the adult learning process. It is now argued that judges, as both adults and professionals, exhibit characteristics, styles and practices as 1 Cross KP, Adults as Learners, San Francisco: Jossey-Bass, 1981, 193. 2 Schon DA, Educating the Reflective Practitioner, San Francisco: Jossey-Bass, 1987, 3. 3 Cervero RM, “A Model of Professionals as Learners,” in Cervero RM, Azzaretto JF & Tallman D, Visions for the Future of Continuing Professional Education, Georgia: The University of Georgia, 1990, 163. 4 It will be argued that these particular features give rise to the need for a distinctive approach for judicial learners; this is not to say that other professional learners may not share some or many of these features.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279261_007

138

chapter 6

learners which are distinctive, and which have direct and important implications for educators. These learning characteristics arise from the process and criteria of judicial selection, the formative nature of the judicial role, doctrinal constraints relating to the imperative to preserve judicial independence, the environment surrounding judicial office, and the specific needs of judges which have been previously defined. While there is little empirical data available on how judges learn, it is argued from clinical experience and observation that there is emerging evidence to suggest that judges as a profession exhibit preferred learning styles and utilize preferred learning practices developed over the course of their careers. Judges as learners are characterised as being rigorously autonomous, having an intensely short-term problem-orientation, and being exceptionally motivated to pursue competence for its own sake rather than for promotion or material gain; those appointed within a merit system may also generally represent a professional elite possessing extraordinary levels of preexisting professional competence.5 These considerations affect the application of educational theory to judges in a number of significant ways. In particular, it will be argued that there is a need to recognize the intrinsically aspirational role of continuing judicial education. This role is determined by the above features which in turn cast the mission of judicial education as extending beyond the conventional domain of technical competence.6 Consequently, it will be argued that the application of adult and professional education practice should be modified for judicial learners to embody the particular importance of peer leadership in the education process, procedural knowledge (“knowing how,” as opposed to “knowing what”) and the facilitation of individualized learning. These qualities are however not yet reflected in the prevailing practice of judicial education, and remain to be developed and evaluated in due course.

5 The argument that judges possess extraordinary levels of pre-existing legal competence has been established in preceding argument, specifically relating to merit selection in Chapter 3: evidence that this argument is generally valid in terms of individual appointments, is anecdotal and through observation. This argument does not guarantee competence in every appointment, nor does it suggest that legal competence is the same as judicial competence – clearly it is not. It can be speculated that the educational characteristics of judges as elite professionals may be paralleled with tenured academics or medical specialists. While it would be illuminating to comparatively assess the learning characteristics of various professions – and is the subject of selected reference in this and other chapters – it falls beyond the scope of this work to do so comprehensively. 6 See discussion relating to competence and the mission of judicial education in Chapters 1 and 7, respectively.

Judges As Learners

i

139

Professional Development

Judges are professionals by training, career practice, and self-image. It has been previously argued that while elevation to the third arm of government tends to obscure ready comparison of judges with other professions, the reality of this self-image is illustrated in many ways, not the least of which being the judicial discomfort at being seen as public servants. It has been argued that the process of continuing judicial education should be understood within the broader context of professionalization: not only are judges professionals, but continuing professional education is itself increasingly a process integral to the concept of a professional entity, its formation and preservation.7 It follows that the process of judicial learning is illuminated through a study of the manner in which professionals, as distinct from adults in general, learn. From this study, similarities and differences will emerge between professional development generally and continuing judicial education. Central to this argument is the proposition that the practice of professional development is a separate and distinct application of continuing education. Houle argues that the way in which professionals learn requires the development of a specific professional education and involves a separate body of knowledge, inquiry, research and practice.8 This has been frequently endorsed by subsequent theorists.9 Houle demonstrates that professionals’ reasons for participation in continuing education generally tend to be more refined than adults at large, and are usually job related. Professionals participate for functional purposes rather than for the sake of learning per se, and focus more closely on the job relationship and career development; for most professionals, continuing education is seen as a means to assist them with new duties or to prepare them for promotion.10 7

8

9 10

Houle CO, Continuing Learning in the Professions, San Francisco: Jossey-Bass, 1980, 19–33: Houle identifies a range of professionalizing characteristics, relating to admission requirements, mastery of special knowledge, and setting of standards and codes of behaviour; see earlier discussion in Chapter 1. Houle advances two central propositions: first, that there is commonality between the continuing education of many professions (14–15); and second, that professional education is distinctive to adult education (49–73, and 121); see also, Cervero, RM, Effective Continuing Education for Professionals, San Francisco: Jossey-Bass, 1988, 15–16; and Grotelueschen AD, “Assessing Professionals’ Reasons for Participating in Continuing Professional Education,” in Cervero RM and Scanlon CL (Ed) Problems and Prospects in Continuing Professional Education, San Francisco: Jossey-Bass, 1985, 34–35. See, for example: Cross, 1981, 45–46, 82; Brookfield SD, Understanding and Facilitating Adult Learning, San Francisco: Jossey-Bass, 1986, 171; Cervero 77. Houle 1980, 121. Grotelueschen endorses this conclusion: Grotelueschen 1985, 34–35.

140

chapter 6

Cervero agrees that the study of professional learners builds on general adult learning theory to develop its own distinctive practice: Members of a specific profession are like all other adults [sic] in that they share basic human processes such as motivation, cognition, and emotions, like some other adults in that they belong to a profession, and like no other adults in that they belong to a particular profession. Each frame of reference implies important dimensions that need to be taken into account in the practice of continuing professional education.11 Schon, in developing a model of professional knowledge, argues that the context of a professional practice is significantly different from other contexts for the purpose of learning and education. Schon identifies the characteristics of professional practice. He argues that professionals, share conventions of action that include distinctive media, languages and tools. They operate within particular kinds of institutional settings – the law court, the school.… Their practices are structured in particular kinds of units of activity…and [are] made up of chunks of activity, divisible into more or less familiar types, each of which is seen as calling for the exercise of a certain kind of knowledge.12 Cross describes professional people as being among the most active selfdirected learners in society. This is due in part to the patterns of learning developed in attaining and retaining membership to a profession, and in part to the nature of the professional role itself. She argues that professionals have highly focused problems; they usually know what they need to learn, and consequently any general course will probably contain much that is redundant or irrelevant to the problem-orientated learner. Cross observes that: A corollary to the assumption that adults are largely problem-orientated learners is that the more sharply the potential learner has managed to define the problem, the less satisfactory traditional classes will be.13 In essence, professionals exhibit certain general characteristics as learners which are distinctive: they are more active, career-related and self-directed as 11 12 13

Cervero 1988, 15–16. Schon 1987, 32–33. Cross, 193.

Judges As Learners

141

learners than adults at large. A number of commentators have recognized the need to integrate these features in the development of a distinctive approach to continuing professional development, and have extended the application of educational theory previously discussed in relation to adult learning to continuing professional education.14 Some of these observations have overarching implications for judicial educators and give rise to a potentially radical departure from any classic model of education. Career Development Model Consistent with developmental theory, which has been previously discussed in its application to adult learners generally, recognition of an important relationship between the professional’s age and career stage and educational participation is emerging. While few formal theories yet exist, they do suggest differing learning needs exist at different stages of the professional’s career. Houle, for example, has developed a Professional Career Development model within the specific construct of professionalization, which is consistent with Cross’s Chain of Response model. Houle argues that the leaders of each profession and their social sponsors must design a system of life-span education: changes in career line occur with increasing age – some are moves up the hierarchy, some are moves into completely different roles. Lawyers, for example, tend to practise in the same area but with differing managerial responsibilities. He concludes that a great deal of work remains to be done to devise new measures of professional accomplishment: The greatest growth in professional education is likely to occur by the provision of a constantly growing number of closely defined and intricately detailed forms of career advancement learning experiences.15 Houle has developed principles of continuing professional education which postulate that while the primary responsibility for learning should rest on the professional, the profession has the collective responsibility to foster this zest for learning and to help its members develop ability to learn how to learn. Thus, the ultimate task of educators is to aid professionals to refine their sensitiveness, enlarge their conceptions, add to their knowledge, and perfect their skills so that they can discharge their responsibilities.16 14 15 16

See discussion on the application of developmental theory, behaviourism and cognitive psychology in Chapter 5. Houle, 1980, 290–1. Houle, 1980, 305–316.

142

chapter 6

The value of this model lies not simply in its transposition of appropriate adult learning theory to professional learners but, more specifically, the reinterpretation of this understanding within the distinctive process of professionalization.17 While the responsibility for continuing learning must properly rest with each individual judge, a concurrent responsibility lies on the judiciary collectively to aid and promote this process. A Master Skills Hierarchy The behaviourist approach to adult education has been previously described as all pervading within the broad domain of occupational training.18 This approach has proved to be highly useful in certain aspects of continuing professional education, in particular skills development. Gold, an educator in the domain of professional legal education (that is, both pre and post-admission training), argues that there has been relatively little work in developing a clear picture of the content of legal practice, and has adopted and applied the behaviourist approach to legal education and development: We do not know what lawyers actually do. Beyond this, we do not know what differentiates the exemplary from the ordinarily competent practitioner. In analysing lawyer performance, we need both to describe the elements of competent behaviour, and also to ascertain the standards of adequacy pertinent to it…19 To remedy this deficiency, Gold has overlaid Bloom’s taxonomy, or classification, of educational objectives,20 and applied behaviourist theory to his empirical 17

18

19 20

Houle identifies 14 characteristics of professionalization which serve as the goals of lifelong professional education. These include not only staying up to date with developments, but also to understand the evolving nature of its central mission, to improve competence, adopt innovation in practice, apply ethical principles, among others; Houle, 1980, 34–75. See discussion of behaviourism in Chapter 5; for an example of the application of behaviourism to lawyering skills, see the “MacCrate Report,” aba Legal Education and Professional Development – an Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Chicago, 1992. Gold N, “Taking Skills Seriously: A Research Perspective,” Journal of Professional Legal Education, 1987, 5, 64–71, 66. Bloom BS, Taxonomy of Educational Objectives, London: Longmans, Green and Co, 1956. This classic work, which defined three domains of learning being knowledge, skills and attitudes, has formed the basis of most subsequent educational modelling.

Judges As Learners

143

experience of how practising lawyers actually learn. He sees the goal of professional training as the acquisition of sufficient knowledge, skill and appropriate attitudes for competent practice: Competence is the aggregate of skills, knowledge and attitudes required for proficient practice. Without skills, knowledge itself is rarely of great use.21 Gold argues that the abilities or qualities requisite for the adequate performing of legal services are the knowledge, attitudes and skills pertinent to professional practice. These competencies determine the quality of performance: however, the adequacy of this performance can only be determined against standards or criteria set under typical practice conditions.22 All professionals, particularly lawyers, possess a great deal of information. However, information alone is insufficient. Gold argues that the development of refined, analytical skills is clearly at the root of effective lawyering: Knowledge required of the effective lawyer is therefore the well orchestrated co-ordination of information and intellectual skill. Knowledge on its own is rarely, if ever, powerful: knowledge must be coupled with knowhow… Beyond knowledge lie an array of both simple and complex abilities (which) require the newly admitted (lawyer) to acquire a wide variety of skills (or know-how)…23 He advocates the adoption of a competency-based Master Skills Hierarchy. This approach to training focuses on the skills, knowledge and professional attitudes which are necessary to prepare law students (or newly-admitted 21

22 23

Gold N, “Towards Training for Competence,” Journal of Professional Legal Education 1983, 1, 1–11, 3 and 10. Gold defines the elements of learning as follows: Knowledge “Knowledge required of the effective lawyer is therefore the well orchestrated co-ordination of information and intellectual skill. Knowledge on its own is rarely, if ever, powerful: knowledge must be coupled with knowhow;” Skills (or know-how): “beyond knowledge lie an array of both simple and complex abilities (which) require the newly admitted lawyer acquire a wide variety of skills;” and, Professional Conduct (attitudes) – “The way in which a lawyer carries out his work is often qualified or conditioned by rules, codes, conventions…of professional conduct. A professional approach is one which is supported by professional attitudes. One cannot be competent while being unprofessional.” Gold, 1983, 1–3. See discussion on measurability of standards of professional competence in Chapter 7, and evaluation in Chapter 8, respectively. Gold, 1983, 2.

144

chapter 6

practitioners) for competent practice, and is predicated on a thorough analysis and description of what lawyers actually do in practice.24 Gold’s rigorous analytical approach to identifying the respective components of professional practice which should be addressed in training does have much to commend it, despite the earlier criticisms of Brookfield on the limits of behaviourism and the competency-based approach to education generally. For the judge, however, the behaviourist approach has certain limitations caused by occupational considerations. The usefulness of behaviourism and any competency-based approach to education is limited to work tasks which depend on physical method, such as car assembly, and consequently are measurable physically. It follows that the application of behaviourism to judicial education is limited to those aspects of practice which are amenable to physical, observable method. Examples may include the provision of means for the transmission of tangible information on the law such as unreported judgments (but probably not including commentary on the implications for judges of using that case law), training on the use of computers and electronic research methods and, perhaps, techniques of judgment writing. The dilemma for professional educators is that behaviourism does not usefully extend to cognitive or affective processes, such as statutory interpretation or the application of discretionary powers. There are many further aspects of judicial practice, in particular, which involve tasks that are mental rather than physical in their nature. These tasks rely on the application of problemprocessing skills which interpret and integrate knowledge and experience to make just decisions. Such tasks defy the application of any formula-based physical methodology which can mechanically produce an outcome: the outcome of these tasks hinge on the interpretation of knowledge and experience to a unique solution the quality of which defies physical measurement or predictability. In effect, the notion of “good judgment,” while recognizable, cannot be readily explained in the behavioural terms normally part of an occupational competency analysis for training purposes.25 24

25

Gold, 1983, 6–7. A Master Skills Hierarchy is created as the outcome of conducting a needs assessment and competency analysis of the lawyering (or judging) role. The competency analysis identifies all of the tasks undertaken in the role, specified in terms of the knowledge, skills and know-how required. Each skill is described in performance terms with preset standards or criteria and conditions for the performance identified (instructional objectives for each skill in the hierarchy). This clear statement of instruction intent – the objective – then becomes the performance goal which the student must seek; see related discussion in Chapter 4. For a more detailed discussion of the role of competency analysis in identifying what makes “the good judge” and what judicial education should be striving to attain, see

Judges As Learners

145

As such, the philosophical adequacy and the practical application of behaviourism, while relevant and useful, is limited in the practice of judicial education. In this respect the practice of judicial education is distinguished from other models of continuing adult, vocational and occupational education that are adopted by business, industry and the professions and are primarily orientated towards the attainment of functional competencies. The true domain of judicial education is education for development. Philosophically, this is a never-ending process of active self analysis and reflection which goes far beyond training for functional competencies. It is concluded that the search for meaningful explanations of learning which can be applied to the practice of judicial education must be extended beyond the doctrines of behaviourism. Illuminating to this on-going quest are the findings of Schon in relation to the concept of professional artistry. Schon’s Model of Professional Knowledge The work of Schon has been useful in extending Kolb’s explanation of the learning process to explore the domain of professional competence or expertise. In simple terms, Schon seeks an answer to the critical question “What makes an exemplary professional?”26 Schon has developed a model of professional knowledge which consists of two inter-related concepts which have been highly influential in the field of continuing professional education. The first of these focuses on identifying the essence of professional competence in a concept which he defines as “artistry”; the second examines the ways in which highly successful professionals have accomplished their artistry, revealing the importance of reflection in the practice of learning. The application of both these concepts – that is, the notion of professional artistry, and the means by which professionals acquire it – is compelling and provides insights into the process of professional learning which are indispensable to the development of any effective approach to judicial education. Professional Artistry Schon uses the term professional artistry to refer to the kinds of competence  practitioners sometimes display in unique, uncertain, and conflicting

26

related discussion in Chapters 2, 4 and 7. The “MacCrate Report,” note 18 above, provides an example of an occupation function analysis to lawyers and, specifically, lawyering skills which are segmented into trainable components. Although an equivalent analysis has not yet been applied to judging skills, this is likely to be a fruitful endeavour. Schon, 1987; and, Schon DA, The Reflective Practitioner: How Professionals Think in Action, New York: Basic Books, 1983.

146

chapter 6

situations of practice – intelligence that cannot be defined in terms of intellect or know-how: Artistry is the competence by which practitioners actually handle indeterminate zones of practice… Inherent in the practice of the professionals we recognize as unusually competent is a core of artistry. Artistry is an exercise of intelligence, a kind of knowing, though different in crucial respects from our standard model of professional knowledge.… In the terrain of professional practice, applied science and research-based technique occupy a critically important though limited terrain, bounded on several sides by artistry. There is an art of problem framing, an art of implementation, and an art of improvisation – all necessary to mediate the use in practice of applied science and technique.27 Each profession, Schon argues, has a systematic knowledge base with four essential properties: “It is specialized, firmly bounded, scientific and stan­ dardized.”28 Professions select the appropriate information to apply in practice. Technical rationality does not adequately describe the forms of knowledge that distinguish the excellent practitioner from the merely adequate one. Thus Schon argues that technical rationality cannot account for the processes that are central to professional “artistry”.29 Professionals build up through their past experience a repertoire of examples, images, understandings and actions. When practitioners are confronted with a new situation, they require a new way of seeing that situation, and ask: can it be framed in such a way as to make it solvable? In effect, he postulates, professionals conduct an on-the-spot thought experiment to test its utility, evaluate the action and then incorporate new understanding into immediate action: Most situations of professional practice are, however, characterized by uniqueness, uncertainty and value-conflict; knowing-in-action (that is, mastery of knowledge, or past actual experience) is unlikely to solve such problems; the ability to resolve these situations is the essence of professional artistry.30

27 28 29 30

Schon 1987, 13. Schon 1983, 23. Schon 1983, 42; and Schon 1987, 22. Schon 1983, 198.

Judges As Learners

147

Schon sees professional artistry as being an integral element of professionalization as identified by Houle; for Schon, professional artistry implies the pre-eminence of systematic, preferably scientific, knowledge. However, as awareness of the crisis of confidence in professional knowledge has grown, Schon argues that educators have again begun to see artistry as an essential component of professional competence, and to ask how education for artistry can be included in the professional curriculum alongside applied science and technique. Reflection-in-Action Integral to Schon’s concept of professional artistry is his theory of how it is attained. In describing the learning process, Schon conceives two phenomena: knowing-in-action and reflection-in-action. For Schon, reflection-in-action describes a model of professional learning contrasting with the model of technical rationality which views practice as the application of knowledge.31 Schon defines knowing-in-action as being like learning to ride a bike: it refers to the sort of know-how revealed in intelligent action – publicly observable, physical performances. Once an adult has learned how to do something, he or she can execute a smooth sequence of activity, recognition, decision, and adjustment without having to “think about it”. Spontaneous knowing-in-action usually gets us through the day. However, on occasion it does not, and then, he argues, we may respond by reflection. Thus knowing-in-action encompasses what he describes as, a common body of explicit, more or less systematically organized professional knowledge…values, preferences and norms…[to] determine what constitutes acceptable professional conduct.32 Schon describes reflection-in-action, on the other hand, as the process of a professional practice where artistry is attained through learning new ways of using competences which are already possessed. Reflection-in-action is the 31

32

Schon 1983, 54. Schon argues that most spontaneous actions taken by professionals do not stem from a rule or plan that was in mind before acting. This form of knowing has 3 properties: practitioners know how to carry out certain actions without thinking about them in advance; they are unaware of having learned to do these things; and they are unable to describe the knowledge that the action reveals. Schon sees most situations of professional practice characterized by uniqueness, uncertainty, and value conflict; therefore usually knowing-in-action will not solve the problem; rather one needs to reflect on the situation to make it solvable: thus, the ability to reflect-in-action is the core of professional artistry. Schon 1987, 33.

148

chapter 6

process through which practitioners sometimes make new sense of uncertain, unique or conflicting situations of practice, where: [W]e will see students as having to learn a kind of reflection-in-action that goes beyond statable rules – not only by devising new methods of reasoning…by constructing and testing new categories of understanding, strategies of action, and ways of framing problems.33 This approach to learning focuses not simply on the process rather than the outcome, but also on the problem-setting rather than the problem-solving aspect of this process, by reference to what Schon describes as “the paradox of learning”: The paradox of learning a really new competence is this: that a student cannot at first understand what he needs to learn, can learn it only by educating himself, and can educate himself only by beginning to do what he does not yet understand.34 Schon’s explanation of professional learning offers valuable insights on the essence of professional expertise which help to distinguish exemplary professional performance from that which is basically competent. Schon’s focus on the domain beyond competence has particular relevance for judicial educators operating within any system of merit appointment: it addresses the higherorder skills of professional practice, and orientates the education process to the continual aspiration of excellence rather than to the bare attainment of competence. Cervero’s Model of Professionals as Learners Schon’s approach to learning is endorsed by Cervero as being specifically applicable to professional learning. Examining the role of the professional as learner, Cervero argues that professionals construct an understanding of current situations of practice using a repertoire of practical knowledge that has been

33

34

Schon 1987, 39; Reflection-in-action is distinguished from two more elementary forms of knowledge being, first facts, rules, and procedures (what he describes a technical training); and secondly the forms of inquiry by which competent practitioners reason their way in problematic instances to clear connections between general knowledge and particular cases (what he describes as “learning to thinking like” a lawyer). Schon 1987, 93.

Judges As Learners

149

acquired primarily through prior experience.35 This model has implications for the development of professional artistry; Cervero argues that current models of education do not appropriately reflect the artistry inherent in processional practice. Guiding principles should emphasize what the learner does rather than what the instructor does; and should focus on experiential methods, such as case-studies, which allow the learner to uncover and develop their practical knowledge and the processes by which they can use it. Cervero argues that continuing professional development should be seen as a self-managed process giving the individual ultimate control over his or her long-term learning and growth. He criticises current practice for having an excessively narrow emphasis on technical competencies and an inappropriate short-term focus. Instead of the conventional functionalist model of education – which sees professionals as service providers who apply a systematic body of fixed knowledge to specific and unambiguous problems, and knowledge and expertise as tangible – Cervero advocates an alternate critical model. Adopting this viewpoint, Cervero extends Schon’s metaphor of the artistry of professional learning occurring in the swamp, to argue: In the swamp, the practitioner must find or construct problems from ambiguous situations. Thus, problem setting rather than problem solving is the key to professional practice.36 Cervero explores the implications of this observation in terms of instructional design of education programs. Professionals use two methods to learn, which he describes as behavioural or procedural knowledge (knowing how), and cognitive or declarative knowledge (knowing what). Cervero argues that there is open debate about which kind of knowledge is learned first: if knowledge in a new domain always begins as declarative knowledge, then the transmission of information about a given topic to learners is clearly the method of choice; if, however, knowledge is an applied concept which is acquired by doing, then experience initiates the learning process and is subsequently transformed into understanding. The answer to this debate has evidently profound implications for any model of learning, and has a range of implications for professional educators. Because learning is an active process, the role of the educator necessarily involves more than the transmission of information. The educational context must be arranged so that professionals can test, evaluate and modify their 35 36

Cervero 1988, 44–46. Cervero, Azzaretto & Tallman, 163.

150

chapter 6

existing understanding and approach so that some resolution can be achieved between the learner’s existing knowledge structures and the new ones being proposed. Cervero argues that reflection-in-practice must become an explicit part of continuing education, which requires educators to combine the teaching of applied science with opportunities for practitioners to learn to reflect on their own tacit theories of the phenomenon of practice. Two forms of knowledge must be fostered through continuing professional education. First the focus must be on…practical knowledge and what cognitive psychologists call procedural knowledge and know-how… [that] repertoire of examples, metaphors, images, practical principles, scenarios or rules of thumb that have been developed primarily through prior experience.… The second form of knowing that must be fostered consists of processes by which professionals use their practical knowledge to construct an understanding of current situations of practice… variously called reflection-in-action, intuition, or problem-finding.37 Cervero’s observations highlight the difference between education based on the delivery of declarative knowledge (knowing what) and procedural knowledge (knowing how), and reveals a contradiction in the practice of judicial education. Observation of the practice of judicial education discloses a tendency for transmitting declarative knowledge, usually in the form of intensively technical information. However, it is argued that judicial education should also integrate procedural knowledge consisting of elements of behaviourism designed to develop practical judicial skills, with elements of humanism which are designed to promote the disposition of judging. Self-Managed Professional Development The application of facilitated learning – as espoused by Brookfield and Knox amongst others – as the preferred model for the continuing education of adults has been most recently endorsed by Smutz and Queeney as being specifically applicable to professionals. While recognizing the importance of facilitation in adult education and the need for adults to assume self responsibility for their own learning,

37

Cervero, Azzaretto & Tallman, 178; in seeking to develop either kind of knowing in an educational context, Cervero argues that the key is to provide experientially-based methods such as case-studies by which learners can uncover and develop their practical knowledge.

Judges As Learners

151

[I]t is evident that professionals require guidance and assistance in structuring their continuing professional education so that it will, in fact, benefit their practice.38 The nature of this guidance and assistance is described in the concept of “selfmanaged” professional development. Smutz and Queeney see the process of preparing the individual, providing learning resources, and building a supportive infrastructure as being the key ingredients to facilitate the adoption of systematic, self-managed professional development. Self-managed professional development requires both the learner and the educator to rethink their roles and goals. Rather than viewing professionals as independently self-directed in their learning activities, Smutz and Queeney support Brookfield in arguing that professionals are neither entirely independent nor dependent in the learning situation. Within this context, the concept of self-managed education implies providing assistance to promote more informed choices. These choices can enhance the potential for long-term development and create a systematic, comprehensive approach to the continuing development of professionals through the management of resources, and by providing expert assistance to bring structure, planning and a guiding framework to the process.39 The concept of self-managed professional development is a logical consequence of the application of adult learning theory to continuing professional education and, in turn, to judicial education. The precise nature of this application is affected by the characteristics of judges as learners, the assumptions of competence which can be reasonably inferred from the appointment proc­ ess, the continuing education needs of judges, the features of judicial tenure in terms of career development, and the environment surrounding the office of judge in society. Each of these factors plays a role in the development of any program of continuing education for judges and has an impact on its character. It can be concluded that a range of conceptual models extend the application of adult learning theory to the distinctive domain of continuing professional development. There is general endorsement of Houle’s recognition of 38 39

Smutz WD & Queeney DS, “Professionals as Learners: A Strategy for Maximizing Professional Growth,” in Cervero RM, Azzaretto JF & Tallman D, 1990, 183–205, 186. Smutz & Queeney, 1990, 189–192: This professional development framework is a modification of the classic Tylerian model, and consists of seven steps: assessment, analysis and reflection, integration of professional development plan, agenda of activities, integration of learning into practice, evaluation and reassessment.

152

chapter 6

the need to modify a career development model within the context of professionalization. In this model, Gold’s behaviourist explanation is of particular utility in assisting new appointees to attain judicial skills. Schon’s concept of professional knowledge, reflection-in-action and artistry focuses the attention of educators onto the relatively uncharted domain of continuing development of professional excellence, and is endorsed by Cervero. Smutz and Queeney translate the notion of facilitation in adult education specifically to professional learning. The application of this work provides a range of insights on what is known of continuing professional learning, and can serve as an educational framework applicable to judges. ii

The Practice of Judicial Education

Within the framework of adult and professional education outlined above, there have been some tentative indications of an emerging body of theoretical work on the practice of continuing judicial education. When combined with clinical experience and observation of practice, it is possible to identify characteristics and practices of judges as learners which give rise to the need to pose a particular model of judicial education. Judicial Disposition Detailed work has, for example, been undertaken on the reasons for judges participating in continuing judicial education, which has been the subject of detailed earlier analysis.40 This analysis revealed significant differences between judges and other professionals in their motivations and perceived needs for continuing education. Catlin found that appointment to judicial office and the environment surrounding judicial tenure created educational needs distinct from other professionals.41 These distinctive features related in 40 41

See discussion on the assessment of need for judicial education, in Chapter 4. Catlin DW, The Relationship between Selected Characteristics of Judges and their Reasons for Participating in Continuing Professional Education unpublished doctoral dissertation, Michigan: Michigan State University, 1981, 125; see also, Catlin DW, “An Empiric Study of Judges’ Reasons for Participation in cpe,” The Justice System Journal, 1982, 7, 2, 236–256. Catlin’s research has revealed that judges’ reasons for participation are complex and multidimensional. Three underlying factors emerged from analysis of judges’ reasons for participation which, in order of importance, were judicial competence, collegial interaction, and professional perspective. Catlin found that significant relationships exist between these participation factors and judges’ characteristics including their sex, years since qualifying, tenure on current bench and court level currently served. Thus, Catlin

Judges As Learners

153

particular to the motivational factors in continuing learning where personal benefits, professional advancement and job security were ranked significantly lower by judges, than by other professionals such as physicians and veterinarians.42 This is consistent with judges perceiving themselves as public officials, now behaving differently from professionals in the private sector. Catlin observes that “the difference appears most dramatic when the reward system is examined.”43 Judges may participate to develop new skills in order to be more competent, but not to increase their income; thus, the development of competence, in the case of the judge, must be a reward itself. The lack of importance of job security, professional advancement and personal benefits have “serious implications” for purposes of planning education programs; comparison between groups suggests that for judges the concept of judicial competence is a factor much broader than professional service; in addition, judges operate in an environment where there is a lack of any distinctly identifiable patient or client relationship.44 Added to this, the circumstances characterizing the process of appointment on merit to judicial office, in terms of the formal and informal criteria of selection, arguably have an impact on the type of person – and even personality types – selected for appointment; these circumstances may also have an impact on the preferred learning styles of those successful advocates who are likely to be considered for appointment to the bench, and thus on preferred forms of education. While little published work is yet available on how judges learn, clinical experience and observation of the practice of judicial education suggest that Kolb’s Learning Style Inventory is routinely modified by the imposition of predictable models of learning which are reinforced by work practices formed throughout a successful career as an advocate at the trial bar. In this hypothesis, it is argued that professional work practices impose particular patterns of learning on those who subsequently attain judicial office: throughout careers where briefs are frequently delivered at 4 pm presenting unique problems which require personal and immediate research in the application of law to

42

43 44

concludes that it is wrong to assume that participation is primarily a function of program content in formulating curricula and designing programs. See detailed discussion on the need for judicial education in Chapter 4; compare, also, the empirical findings of Catlin with those of Cervero relating specifically to physicians and veterinarians: Cervero R, “A Factor Analytic Study of Physicians’ Reasons for Participation in Continuing Education,” Journal of Medical Education, 56, 1981, 29–35. Catlin 1981, 125. Catlin 1981, 126.

154

chapter 6

particular facts, the planning of a conceptual approach, and the delivery of compelling argument within a highly competitive environment by 10 am the following morning. Herrmann argues that there is empirical evidence that the preferred learning styles of judges and lawyers tends to be “left brained,” that is: logical, analytical, problem-solving, controlled, conservative and organizational.45 The distinctive elements of continuing judicial learning include judges’ motivation to learn and their perception of the need to learn, learning practices predicated on the process of judicial selection, and their preferred learning styles: these elements are important distinguishing features in terms of any program of continuing judicial education, and have significant implications for both the content and the process of any program of continuing judicial education. This hypothesis has direct bearing on the instructional design of judicial education which operates, in some large part, on a classical “teaching” process. Instead, judicial education should incorporate alternative instructional models to include the application of autonomous, self-directed learning, facilitation of experiential learning, and structured exposure to the learning experiences of peers. Such education would provide a unique opportunity for critical self-reflection while preserving judicial independence. Catlin’s Model of Judicial Education The initial endeavour of developing a model of education for judges as learners has been undertaken by Catlin who has devised a model of judicial 45

Herrmann N, The Creative Brain, Lake Lure, N. Carolina: Ned Herrmann/Brain Books, 1989; Herrmann argues that judges tend to learn in a distinctively “left brained” style – characterized for being logical, analytical, problem-solving, controlled, conservative and organizational; additionally, judges tend to be intensely autonomous and self-directed in their preferred learning practices; see also comparison of left-mode and right-mode characteristics in Kolb, 49 and 141; Myers IB, Gifts Differing, Palo Alto: cpp Books, 1993 and application of the “Myers-Briggs Type Indicator” to lawyer types, American Bar Association Journal, July 1993 74–78. If these various observations of the characteristics of lawyers and judges are valid, this raises the vexed question whether the practice of law creates these characteristics in practitioners or whether persons with these characteristics are attracted to practice in the law. Detailed exploration of this issue, and its full implications for educators, remains a matter for further research. Claxton & Murrell, 1992 (see footnote 49, below) address a chapter on “Learning Styles of Judges,” however this work is an application of Kolb’s general work on experiental learning, and lacks any grounding in empirical data distinctive to judicial learning; see Kolb DA, Experiential Learning, Engflewood Cliffs nj: Prentice Hall, 1984; and see more detailed discussion of the application of Kolb’s work in Chapter 5.

Judges As Learners

155

education which identifies its three major goals as being new judge transition (induction into new responsibilities and preparation for change), continuing  education (refresher, maintenance and modernization), and career development.46 Using seven objectives of judicial education, Catlin links technical competence with what he describes as judicial authenticity, which as a concept offers some similar connotations to Schon’s notion of artistry. These objectives he describes as mastering theoretical knowledge, developing problem-solving capacity, developing collegiate identity, relating to allied professionals, conceptualizing the judicial mission, maintaining an ethical practice, and selfenhancement. This model is built in turn on seven characteristics of the judicial profession that must be acquired on becoming a judge. These characteristics include, according to Catlin, a transition which may be traumatic and unprepared; integration with a larger judicial body; isolation of practice;  unique decision-making obligation; absence of financial incentive to participation in learning; changing judicial roles; and extreme heterogeneity of new judges in age and experience.47 Catlin’s model is an important application of educational theory to judicial learning, and provides a foundation for any distinctive paradigm of continuing judicial education.48 In the following section, the most recent works of Claxton and Murrell, Cervero and Hudzik are studied to provide further evidence of the endeavour to apply educational research to the relatively informal practice of judicial learning.

46

47 48

Catlin DW, “Model of Judicial Education,” The Who and What of Judicial Education State Justice Institute, East Lansing: Michigan Judicial Institute, 1988, 5–9. This is consistent with Houle’s three-layered educational model comprising the academic stage, the professional stage (both institutional and in-training), and continuing education or training: Houle, 1980, 34 and 106. Similarly, applied to legal education in England and Wales in the “Ormrod Report”, Report of the Committee on Legal Education, London, Her Majesty’s Stationary Office 1971; and the “Pearce Report” on legal education in Australia: Pearce E, Campbell E and Harding D, Australian Law Schools: a discipline assessment for the Commonwealth Tertiary Education Commission, 1987, Canberra: Australian Government Printer. However, it is at odds with the two-tiered approach adopted in the nasje Standards of induction and continuing education: nasje, Principles & Standards of Continuing Judicial Education, National Association of States Judicial Educators (nasje), 1991, Standards 3.1 and 3.2, respectively. Catlin 1988, Figure 6, 15. See discussion on educational policy and practice in Chapter 7.

156

chapter 6

The “Judicial Leadership Institute” Most recently, Claxton and Murrell have developed a Judicial Leadership Institute based on Kolb’s approach to adult learning and the premise that the principal goal for judicial education is development. Education for development equips the judiciary for coping with the problems confronting the courts. These problems present as challenges to the judiciary; the institutional development of the judiciary depends on the ability of judicial officers to change, and is prompted through education. Thus education is seen as an agent of change which is promoted through effective learning.49 Claxton and Murrell argue that the importance of this ability to change is of unique significance to judging, owing to the unique characteristics of judging in our society: judges are important public officials charged to resolve disputes and apply complex laws; yet, clearly, judges cannot possess all the technical knowledge needed to decide all cases. Increasingly, the courts serve as a major formative institution in our society to uphold standards and to provide the value system which was previously provided at home and through the moral teaching of the church. Women and race are cited as two visible examples of the need for change confronting courts in the United States in the 1980’s, which epitomized the courts’ ability to respond to change. Claxton and Murrell argue that while judges come from a relatively homogeneous group – middle class, white, males – clients of the justice system increasingly comprise people with differing life experiences: Judicial education has an important role to play in helping the courts respond to these issues. However, simply training judges in court-room procedures or updating them on recent court decisions is not enough …(judicial education) must focus not only on helping judges to master content but also on helping them develop the more generalized abilities they need in order to meet the complex demands placed on them.50 To promote effective learning, Claxton and Murrell argue that education for development differs significantly from the classic, didactic “teaching-as-telling” approach, and endorses the application of Kolb’s learning cycle. This approach emphasizes the importance of integrating the four learning/teaching styles in 49

50

Claxton CS & Murrell PH, Education for Development: Principles and Practices in Judicial Education, jeritt Monograph 3, Michigan State University, 1992, 1–5: Claxton & Murrell argue that education is for development, development embodies change, thus education is an agent of change. Claxton & Murrell, 3–4.

Judges As Learners

157

order to match all learning preferences and all parts of the learning process, within a more comprehensive approach to knowing. This approach integrates subjective understanding in the sense of personal experience with the classical paradigm of knowing which is a detached, more sceptical, objectivist determination of truth.51 In this context, they argue judicial education should promote the personal developmental process in judges. Judicial Artistry: Judges as Reflective Learners Equally recently, Cervero applies and extends Schon’s concept of professional artistry to educating judges. Cervero argues that judges, like all professionals, rely on a repertoire of practical, non-abstract, knowledge or know-how as the basis of their expertise. Judicial problem-solving, however, involves a special form of artistry, in that these problems are always ill-structured, solutions are inconclusive, and important features of the problem become apparent only as the situation unfolds. Cervero argues that expert judges bring to bear their own implicit theories on situations – personal perspectives and values developed from prior experience, and this influences how they look at the particular case before them. It follows, according to Cervero, that the challenge for the judicial educator is to be able to integrate knowledge acquired from judicial practice with principles and theories to facilitate the best application of judgment.52 While it may be premature to discern support for this hypothesis, the clinical experience and observation of the writer in educating judges suggests that Schon’s approach to professional learning is apposite and appropriate to judges’ continuing learning and should, as a result, form an active element in any process of continuing judicial education. Judicial Curriculum Development Finally, Hudzik argues that there is a pressing need for the development of a career-development curriculum in continuing judicial education.53 A curriculum helps the educator to plan what is to be taught, to whom and why, and  implies that decisions have been made about the subject matter, the relationship between segments of knowledge, skills and abilities and their 51 52

53

Claxton & Murrell, 27 and following. Cervero RM & Conner ME, Educating Judicial Educators: Two Perspectives, Georgia: University of Georgia: Judicial Education Adult Education Project (jeaep), 1992, 1.1–1.17, 1.2–1.5. Hudzik JK, The Continuing Education of Judges and Court Personnel, Michigan: The Judicial Education Network, 1989, 54. See more detailed discussion on the need for curriculum development in Chapter 7.

158

chapter 6

organization and sequence. Such an approach would provide a means of bringing coherence to a body of knowledge delivered through a systematic progression of programs, rather than a list of independently conceived and discrete offerings which, according to Hudzik, typifies the existing state of judicial education.54 The issue of curriculum design is also relevant at another level of educational planning. Hudzik argues that curriculum design requires a determination of the content versus process debate. He observes that, with the possible exception of new judge orientation programming, there is a need to improve curriculum design of continuing judicial education programs, and to develop training strategies which increase the effectiveness of the learning experience. The value of curriculum development in continuing judicial education is that it offers a plan of the proposed learning outcomes and the means of reaching them. This enables educators to identify whether segments of the program are missing or operating ineffectively. The role of the instructional designer in this developmental process is to guide the subject specialist in the selection of the most appropriate teaching methods and the most appropriate media to support those methods so that learning efficiency is maximized. Despite the relative youth of formalized professional development and the even more recent emergence of a discipline of continuing judicial education, it is still too early to evaluate these applications of professional educational theory by Houle, Cross, Gold, Schon, Brookfield and Cervero to judges operating within common law systems of justice. More specifically, the hypotheses of Catlin, Claxton and Murrell, Cervero and Hudzik, within the domain of judicial education must remain unvalidated for the present. There is, however, no reason to presume that educational strategies designed to meet the specific learning preferences of judges should not promote more effective learning, provided that the resources are made available to facilitate individualized learning programs. While the attainment of more effective learning is the ultimate goal of any educational endeavour, it remains a task for future evaluation to measure the extent to which this may occur in practice. iii

Foundations of a Model of Continuing Judicial Learning

Notwithstanding the absence of unequivocal empirical evidence, the clinical experience and observations of the writer would suggest that a number of 54

Hudzik JK, Issues & Trends in Judicial Education, Michigan State University: Judicial Education Reference, Information and Technical Transfer Project (jeritt), 1991, 179.

Judges As Learners

159

hypotheses are appropriate to serve as tentative foundations for any approach to continuing judicial education. In summary, any model of formalized continuing judicial education must be based on foundations of adult learning, but must also reflect the distinctive characteristics of judges as learners. Judges as Distinctive Learners The characteristics of judges as learners are distinctive in a number of ways which are significant for educators, and arise from: – the process and criteria of judicial appointment, and the nature of tenure; – judges’ preferred learning styles and practices; – doctrinal constraints of judicial independence, the formative nature of the judicial role, and the environment surrounding judicial office; and – judges’ needs and reasons for participating in continuing education. Judicial Appointment and Tenure It has already been argued that the process of selection determines appointment to judicial office, and establishes a particular threshold of pre-existing competencies in legal knowledge and skills.55 Consequently, it is generally valid to claim that judges appointed on merit are likely to possess extraordinarily high levels of pre-existing professional competence, in terms of their knowledge of the law. In addition, Catlin has demonstrated that the distinctive nature of judicial tenure, specifically, its security and lack of promotional opportunity, have implications of systemic influences affecting individual judges’ motivation to learn, and place them in a different position to many other professionals who operate in working environments lacking these features. Preferred Learning Styles and Practices It has also been argued earlier in this chapter that there is emerging evidence of judges as a profession exhibiting preferred learning styles, and utilizing preferred learning practices developed over the course of their careers. Judges are generally autonomous, entirely self-directed, and exhibit an intensely shortterm problem-orientation in their preferred learning practices. Moreover, clinical experience tends to suggest that Schon’s approach to professional learning is apposite to judges’ continuing learning and should, as a result, form an active element in any process of continuing judicial education. 55

See discussion of judicial selection in Chapter 3.

160

chapter 6

Doctrinal Constraints of Judicial Independence Reference has been made to the imperative to preserve judicial independence within any Westminster system of government. The doctrinal significance of this precept has been seen to be highly influential in any judicial approach to the notion of continuing education. It follows that educators should make efforts to ensure that judges recognize the independence and integrity of the process, in order to appease any concerns of possible indoctrination. Equally, the formative nature of the judicial role can create a discomfort for some judges participating in continuing learning under conditions which could possibly be seen to erode the authority of their role. Both these considerations contribute to the need for an independent, discrete process of education.56 Reasons for Participating in Continuing Education Judges’ reasons for participating in judicial education have been discussed at length in Chapter 4. Precepts of Judicial Education These features of judges as learners are particular, and give rise to the need to develop a distinctive approach to educating judges. Taking these features into account, any model of judicial education should embody the following three precepts: 1.

2.

Voluntary, independent, judge-led process. There is a doctrinal imperative for a voluntary, independent education process, in addition to any humanistic rationale for learning which depends for its effectiveness on motivation, recognition of need and perception of benefit. The credibility of the education process for judges is critically dependent on the ability of the education providers to preserve judicial independence from any risk of indoctrination, whether actual or apparent. Procedural knowledge. Judicial education should explore the domain which extends beyond the conventional realm of professional competence. In simple terms, this involves developing the professional artistry of judges.

A study of the literature of educational philosophy reveals the need for the practice of judicial education to promote the behavioural development of skills and the humanistic promotion of reflection on attitudes, in addition to 56

See discussion of recognition of the need for judicial education, and its policy implications, in Chapters 2 and 7.

Judges As Learners

161

the cognitive acquisition of information. While there is active debate in the literature about which kind of knowledge is learned first – that is, declarative or procedural knowledge – the determination of this debate has fundamental implications for any model of the learner and, thus, any model of education to promote learning. A study of the prevailing practice of judicial education reveals an emphasis on a cognitive learning model which is orientated towards the transmission of declarative knowledge. It is argued however that the practice of judicial education should integrate behavioural and humanistic as well as cognitive approaches in any program of judicial education. 3.

Individualized learning. To be meaningfully effective, any formalized proc­ ess of judicial education should facilitate individualized learning which is self-directed and critically reflective, and accommodate the distinctive styles in which judges prefer to learn and practice.

The process of judicial learning is most usefully understood through a humanistic, rather than a behavioural explanation, which sees education as a means for judges to satisfy identifiable professional needs. When humanism is combined with developmental theory, it then becomes possible to see education as a means of facilitating judicial learning at predictable stages through the career spectrum (such as, for example, with orientation or refresher programs at either extreme). Behaviourism, on the other hand, which provides the foundations for the most commonly used model of occupational education – the competency-based approach – has limited application in judicial education to practices where behavioural outcomes may be found to exist. The essence of judicial practice exists beyond the domain of behavioural explanations of competence. Whether described in terms of judicial artistry (as defined by Schon),57 authenticity (as defined by Catlin),58 or simply expertise, the essence of judging is a highly complex intellectual, problem-solving process which resists procedural description or predictable outcomes (as discerned by Cervero and Conner).59 In place of behaviourism, experiential learning which is based on an application of the principles of cognitive psychology and developmental theory, provides a useful explanation of how judges actually learn (that is, through critical reflection and re-interpretation of experience applied to specific problems), and how educators can facilitate that learning. 57 58 59

Schon 1987, and Schon 1983. Catlin 1988. Cervero RM and Conner ME, note 52, above.

162

chapter 6

In practice judges place greater value than perhaps any other professional discipline on self-directed learning. It is important that this should be recognised in the development of any formalised process continuing judicial education. The educational adequacy of group learning for judges is limited. While instructional design and delivery based on group learning offers a valuable opportunity for the exchange of experience and values for judges, who otherwise practice in isolation, it is inadequate and inappropriate as a comprehensive delivery strategy. If learning rather than teaching is recognized as the critical element in adult education – and if judges are recognized as epitomizing autonomous learners – then the concept of facilitated learning acquires particular significance in any model of judicial education. Considerably more emphasis should be given to seeing judicial education as a process which builds on the preferred learning styles and practices of judges through facilitating self-education. Consequently, there is also a need for the  development of instructional strategies which promote self-managed learning, and are facilitative rather than instructive in technique. Facilitated learning implies an active collaboration between educator and learner on what is to be learned and how it can best be learned, involving direction, challenge and growth-enhancement. These strategies should be responsive to the variety of developmental learning needs which transpire throughout the course of a judicial career, and equally, the preferred methods of learning of those individuals appointed to the bench. Concluding Remarks A distinctive model of continuing learning should be developed for judges. This model should be independent and judge-led, and emphasize procedural knowledge and individualized learning in order to be effective educationally. A review of prevailing practice, however, indicates that the development of such a model must, at least for the present, remain an exploratory endeavour to be applied and critically evaluated at an early future date. In the meantime, this study poses two answers to the classic “nature/ nurture” debate as it applies to judicial education: first, good judges can be made; but, second, they make themselves through learning, rather than being taught. How this should be done – knowing what we do about both the nature of need for judicial education and judges’ characteristics as learners – raises issues of educational policy which are explored in the following chapter.

PART c Effective Program Delivery

∵

chapter 7

Frameworks of Policy and Practice The picture of the judge as learner is complex. The considerations of age, prior professional training, not to mention attitudes brought to the bench, make the design of a comprehensive continuing judicial educa­ tion program extremely complex.1 In previous chapters, studies have been made of the need for continuing edu­ cation, and the application of learning theory to judges. In this chapter, these considerations are integrated in an examination of the question of how to develop a program of continuing judicial education which can enhance judi­ cial competence and thereby promote the professionalization of the judiciary. In effect, this chapter addresses the question how to educate judges, knowing what we do about the need for judicial education and the learning practices of judges.2 Judicial education requires a framework of policy to operate effectively.3 This framework addresses a range of questions which are central to the issues of what makes a good judge, and what role education should play in that proc­ ess. These questions include: What should judicial education aim to do?, At what level should it operate?, Should it be prescribed?, What is its scope and content?, How should it be structured? How should it be provided? and, What should be the criteria for measuring its effectiveness? This study addresses these formative issues.

1 Catlin DW, The Who and What of Judicial Education, Michigan: Michigan Judicial Institute, 1988, 5. 2 An earlier draft of this chapter has been published in the Journal of Professional Legal Education, 1993, 11, 51–78. This material was based on a presentation made by the author to the Annual Conference of the National Association of States Judicial Administrators, Charleston, October 1992. 3 Despite its importance, there is a dearth of research on the practice of policy development in the arenas of professional development or judicial education. Cervero argues that this should not be surprising: “[Research] suggests that virtually no continuing educators use [these] planning frameworks… This does not mean that successful continuing educators do not think about and carry out their work in systematic ways, but that textbook planning frame­ works do not adequately describe those systematic processes.” Cervero RM, Effective Continuing Education for Professionals, San Francisco: Jossey-Bass, 1988, 112–3.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279261_008

166

chapter 7

Observation of the practice of judicial education reveals however that these issues are often considered in the absence of any policy context. In practice, judicial education is rarely managed as a policy-based process. On the con­ trary, it tends to be ad hoc in nature, eclectic in character and lacking any over­ riding curricular perspective. Determination of some issues is even perverse: for example, the issue of prescription. It will be seen that the rationale for mandatory judicial education is problematical in educational terms, and can only be justified in terms of the broader process of professionalization. In effect, mandatory judicial education has much more to do with demonstrating a concern for the pursuit of competence rather than implementing an effec­ tive means of attaining it. As a consequence, the prevailing practice of judicial education provides only limited developmental outcomes. To remedy these deficiencies, this study offers a Cycle of Judicial Education Practice to assist educators address these formative policy issues with a view to attaining the goals of judicial education more effectively. .

i

Mission, Goals and Objectives

We have previously seen that the over-arching goal of continuing education is essentially humanistic, to improve the quality of human life. More specifically, it is to help judges directly, and citizens indirectly, to acquire the tools for phys­ ical, psychological and social survival.4 In the highly refined environment of continuing judicial education, it is necessary to translate this over-arching pur­ pose for judicial education into distinctive goals and objectives which can be managed and administered effectively. At an operational level, the goals and objectives of judicial education are to meet the education, training, and development needs of judicial officers. These needs are defined through a variety of analysis techniques and then addressed through the provision of specific education services. Educational theorists have developed a number of models to describe this process, most almost universally built on the classic approach of Ralph Tyler.5 In the arena of con­ 4 Apps JW, “Problems in Continuing Education,” Purpose of Continuing Education, New York: McGraw-Hill, 1979, 101. Education is an important means for servicing Maslow’s hierarchy of needs discussed in Chapter 5; Maslow A, Motivation and Personality, New York: Harper & Row, 1970. 5 Tyler RW, Basic Principles of Curriculum Instruction, Chicago: University of Chicago Press, 1949.

Frameworks Of Policy And Practice

167

tinuing professional education, Houle’s Triple-Mode Model is most frequently endorsed as providing a conceptual means to strengthen professional perfor­ mance.6 Houle identifies two basic goals of professional education which are: [T]he mastery of new theoretical knowledge and practical knowledge and skill relevant to a profession, and the habitual use of this knowledge and skill to solve the problems that arise in practice.7 He argues that these goals are affected by certain characteristics of profession­ alization which he classifies into three types: conceptual (concerned with defining and developing a unifying concept of being a judge), performance (mastery of theoretical knowledge, capacity to solve problems and use of prac­ tical knowledge) and collective-identity (which bring together the judiciary as a profession by building systems which foster the other characteristics). Thus, for Houle, the goals of continuing professional education could extend to developing a judicial collegial culture, developing ethical practices, and relat­ ing to court users. Within the context of judicial education being seen to serve a broad human­ istic role, Houle’s professionalizing characteristics should be endorsed to serve as the basis of the goals of judicial education. Thus, performance goals are rela­ tively less important than might otherwise be the case and, as a corollary, con­ ceptual and collective-identity goals should play a more prominent role in judicial education. Catlin has gone farthest in refining an understanding of the goals and policy processes of continuing judicial education. Within the context of pro­ fessionalization, he translates Houle’s goals of continuing judicial education as being new judge transition, continuing education, and career development.8 Catlin then developed a model for the continuing learning of judges which 6 Houle, 230–232. This model comprises a number of steps which include developing a list of ideal standards of good practice, certifying that these standards can be accomplished, deter­ mining minimum standards, informing staff, collecting data on current performance based on the above criteria, measuring this data against the ideal and minimum standards, design­ ing an education program to meet identified performance problems, delivering instruction, remeasuring performance against earlier measurements, and developing any further pro­ grams based on evaluation findings. 7 Houle, 34. 8 Catlin 1988, 11; Houle proposes a three-layered educational model comprising: (1) the aca­ demic stage (2) the professional stage, both institutional and in-training, and (3) continuing education or training: Houle, 106. Similar approaches have been applied to legal education in England and Wales in the “Ormrod Report”, Report of the Committee on Legal Education,

168

chapter 7

adopts these goals of education, and identifies distinctive objectives which are built on what he describes as the characteristics of the judicial profession. These characteristics – which must be acquired on becoming a judge – involve a transition which may be traumatic and unprepared; integration with a larger judicial body; isolation of practice; unique decision-making obligation; absence of financial incentive to participate in learning; changing judicial roles; and extreme heterogeneity of new judges in age and experience. Catlin links the concept of technical competence with what he describes as “judicial authenticity.”9 This concept of competence, which is based essentially on Houle’s formulation, is illuminating on the question of what makes a good judge. It includes mastery of theoretical knowledge, developing problemsolving capacity, developing collegiate identity, relating to allied professionals, conceptualizing the judicial mission, maintaining an ethical practice and self-enhancement.10 It is argued that this formulation, which essentially adapts and applies the work of Tyler and Houle, has gone farther than any other in the discipline of judicial education. Catlin’s model of judicial education is useful in providing a formulation of professional competence as it applies to judges. Although this model is limited by its failure to make any explicit reference to the need for accountability or to providing any means for doing so, it is argued that Catlin’s work provides a compelling insight on the essential components of compe­ tence which is a central element to the process of judicial professionalization. Catlin’s conception of competence described within the notion of judicial authenticity bears some resemblance to that of Schon whose notion of professional artistry – that art of problem framing, implementation and improvisation – has been previously discussed.11 These views, taken together, provide a most useful description of the mission of judicial education as being

9

10 11

London, Her Majesty’s Stationary Office 1971; and was endorsed in the “Pearce Report” on legal education in Australia: Pearce E, Campbell E and Harding D, Australian Law Schools: a discipline assessment for the Commonwealth Tertiary Education Commission, 1987, Canberra: Australian Government Printer. Catlin 1988, 14; Catlin’s concept of judicial authenticity is compatible with Schon’s con­ cept of professional artistry. He cites attentiveness, intelligence, reasonableness and responsibility as qualities upon which the authenticity of a judge may depend, and as practical matters which are not reducible to techniques: Schon DA, The Reflective Practitioner, New York: Basic Books, 1983, and Schon DA, Educating the Reflective Prac­ titioner, San Francisco: Jossey-Bass, 1987. Catlin 1988, Figure 6, 15. Schon 1987, 13 and 22; see discussion in Chapter 6.

Frameworks Of Policy And Practice

169

an aspirational pursuit of professional excellence which builds on and exceeds conventional connotations of technical competence. If this, then, is the mission of continuing judicial education, how is this the­ oretical construct of judicial education useful to policy-makers and educators in practice? ii

Formulation of Policy

An examination of policy formulation reveals different approaches to continu­ ing judicial education in the United States, Britain, Canada and Australia. Different approaches exist not simply in the styling of those policies but more profoundly in the purpose and scope of various education programs. These differences illustrate a range of underlying issues to be addressed by policymakers and judicial educators alike. United States In the United States, various formulations of policy have been developed dur­ ing the past twenty-five years on a national and state basis. Most recently in 1992, the National Association of States Judicial Educators (nasje), an umbrella network of judicial educators throughout the United States, promulgated its Principles and Standards of Continuing Judicial Education which: frames continuing adult education activities within an organizational context – in this case, the Judicial Branch [sic] of government or courts.12 The objectives of the nasje Principles and Standards serve as a guide to advance the quality and quantity of educational opportunities for the judi­ ciary from minima to higher levels of accomplishment. The Principles and Standards define the goal of judicial education to be:– to maintain and improve the professional competency of all persons per­ forming judicial functions, thereby enhancing the performance of the judicial system as a whole.13 The nasje model outlines the objectives of judicial education to be:– 12 13

Principles & Standards of Continuing Judicial Education, National Association of States Judicial Educators (nasje), 1991, 1. nasje, Commentary on Preamble, 3 and 6.

170

chapter 7

to assist judges acquire the knowledge, skills and attitudes required to perform their judicial responsibilities fairly, correctly and efficiently; to promote judges’ adherence to the highest standards of personal and offi­ cial conduct; to preserve the integrity and impartiality of the judicial sys­ tem through elimination of bias and prejudice, and the appearance of bias and prejudice; to promote effective court practice and procedures; to improve the administration of justice; to enhance public confidence in the judicial system.14 Other institutions have distilled a variety of conceptions of continuing judicial education. One of the oldest in the United States, the National Judicial College, commenced operations on a national basis in Nevada in 1963. The College defines its role as being to: promote improvements in the system of justice by providing education and training programs for judges…supported by research, publications and technical assistance…and by promoting public understanding of the role and the needs of the judiciary in preserving our rights and liberties.15 Britain In Britain, the Judicial Studies Board has formulated a number of strategies within a five year time-frame. The Board was established to implement the recommendations made by the Bridge Working Party in 1977 and for the pur­ pose of providing the means to enable individual judges to perform their duties more effectively.16 The Board now operates within a strategy whose overall aims are: To continue to provide, and to expand and improve where necessary, facilities for the training and instruction of full-time and part-time 14 Id. 15 National Judicial College, Annual Report, Reno, 1988, 2. 16 The use of educational terminology – with its connotations of pedagogy which may be seen by judges and educators alike as inappropriate – is generally avoided. Such are these sensitivities that the Judicial Studies Board has remarked on the “awkward question of nomenclature” regarding the use of such words as “teach”, “train”, “instruct” and “student” in relation to professional judges. The Board overcame these sensitivies by using the term judicial studies, which it defines as “an organized means of enhancing (the judge’s) perfor­ mance…to enable him to perform his duties more effectively.” Judicial Studies Board, Report for 1983–87, London: Her Majesty’s Stationery Office, Paragraph 3.5, 13; and Paragraph 3.2, 12.

Frameworks Of Policy And Practice

171

Judges…[and]… To consider and advise on appropriate standards for, and the nature and content of, facilities for the training of lay Magistrates and of Chairmen and members of Tribunals.17 Within this strategy, the Board’s primary object is to determine objectives, standards and priorities for judicial studies. There is no evidence available to indicate that any such standards have yet been explicitly formulated, although this is not indicative that none operate on an informal level. Canada In Canada, the National Judicial Institute declares its mandate to be: To foster a high standard of judicial performance through programs that stimulate continuing professional and personal growth; to engender a high level of social awareness, ethical sensitivity and pride in excellence, within an independent judiciary, thereby improving the administration of justice.18 Similarly, the Canadian Association of Provincial Court Judges states that “judicial education is one of the principal means of ensuring judicial indepen­ dence, and of promoting the proper administration of justice.”19 Australia In Australia, formalized continuing judicial education is provided by two bod­ ies only. The Australian Institute of Judicial Administration (aija) provides a number of services at a national level to both judges and judicial administra­ tors. The aija has an “extraordinary” range of objects to promote improvement in the administration of justice throughout Australia. One of these objects is educational: To undertake and foster teaching in the administration of justice and in particular to arrange and conduct programmes of continuing education for judges, magistrates, officers of court, the practising members of the

17 18 19

Judicial Studies Board, Report for 1987–1991, London: Her Majesty’s Stationery Office, Strategies, Appendix 1, 51–59. National Judicial Institute, Annual Report 1991–1992, Ottawa, 4. Provincial Judges Journal, June 1989, 13, 2, 6.

172

chapter 7

legal profession, members of the legal profession employed by govern­ ments and professional teachers of law in Australia.20 The aija operates on a relatively small budget having regard to the dimensions of its brief and constituency, and is funded jointly by the federal and state governments and voluntary subscriptions.21 Within “the obvious limitations imposed by that background and framework”, the aija attains a prolific output by decentralizing its education and other activities on a project basis amongst its national membership. New South Wales conducts the only state-based program of continuing judicial education in Australia, which is conducted by the Judicial Commission. This education program is confined by the empowering legislation to “judicial officers”, being judges, magistrates, and masters of the Supreme Court. It does not formally extend to those court or tribunal officers exercising para-judicial functions, nor does it extend to judicial administrators.22 In relative terms, the Judicial Commission of New South Wales enjoys a larger budget than the aija, and it is perhaps for this reason that the Commission’s education program has been described by its national peer as “the Rolls Royce” of judicial education in Australia.23 The Judicial Commission of New South Wales is a body incorporated by statute with its principal object to: organize and supervise an appropriate scheme for the continuing educa­ tion and training of judicial officers.24

20

Sallmann P, “A Note on Judicial Education in Australia: An Australian Institute of Judicial Administration Perspective,” Journal of Judicial Administration 1992, 2, 28–38, 31: Rule (vii) of the Rules of the Australian Institute of Judicial Administration. 21 Sallmann reported that the 1992 budget of the Australian Institute of Judicial Administration was A$300,000; Sallmann, 1992, 32. 22 R v Kirby; ex parte Boilermakers’ Society of Australia [(1956) 94 clr 254, and (1957) 95 clr 529] established that the judicial role rests on judges making findings of law, as distinct from administrative decision-makers being confined to findings of fact. The distinction between those exercising judicial functions and others exercising administrative func­ tions (making findings of contested fact, or resolving interlocutory or procedural issues such as commissioners, assessors or registrars), is central to any definition of the domain and role of the judiciary in Australia. 23 Sallmann P, “Comparative Judicial Education in a Nutshell,” Journal of Judicial Administration 1993, 2, 245–255, 253. 24 Judicial Officers Act (nsw) 1986, Section 9 (1).

Frameworks Of Policy And Practice

173

The Commission commenced its educative role in 1988, and in 1991 developed a formal policy with which to implement its statutory charter. This policy adopts a broad treatment of “educational service” which extends beyond train­ ing and development to “any service which may facilitate the performance of… judicial duties and enhance the quality of justice.”25 The policy defines the mission of the education program, the range of its education services, and the roles and responsibilities of the parties involved. The mission of this education program is to assist judicial officers in the performance of their duties by: enhancing professional expertise, facilitating development of judicial knowledge and skills, and promoting the pursuit of juristic excellence.26 The policy builds on an approach to the provision of judicial education which is structured around a matrix of services defined by content (law, procedure, management and administration, and judicial skills), and application (induc­ tion, update, experience-exchange, specialization and refresher). These ser­ vices include orientation, update and refresher courses, regular bulletins and bench book publications, conference administration, judgment indexing, computer support and training, research and development. Comparative Assessment A number of significant differences can be observed in these formulations of policy which cast light on the variety of roles and goals ascribed to judicial education: • The United States approach to the content of judicial education, as formu­ lated in the nasje Standards and Principles, is considerably wider in its scope than that seen in the approach taken in Australia by the Judicial Commission, for example, and includes courts management as falling within the domain of judicial education. • The United States approach attributes to judicial education a broader role in the attainment of “public confidence,” which connotes a notion of external accountability. This approach is endorsed in Canada by the National Judicial College which similarly extends its mission to the broader social context within which the justice system operates. This compares to the New South 25 26

Judicial Commission of New South Wales, Continuing Judicial Education Survey, Preamble, 1991. Judicial Commission of New South Wales, Policy of Continuing Judicial Education, Preamble, 1992; in Appendix.

174

chapter 7

Wales reference to “enhancing the quality of justice”, which is arguably both more abstract and more introspective. • In Canada, judicial education is recognized as playing an explicit role in pre­ serving and enhancing judicial independence. Although it is argued that this relationship is of particular significance in the process of judicial pro­ fessionalization, it is one which has otherwise rarely been recognized.27 • Additionally in Canada, judicial education is seen as a means of promoting the personal growth of judges. Elsewhere, it is viewed more narrowly as a means of enhancing professional competence, rather than personal development. It can be seen that the approaches taken in the United States and Canada are relatively broad and more outward-looking in social orientation than is evi­ dent in Britain and Australia. iii Domain Within directions set by the over-arching goals discussed above, the domain of continuing judicial education is defined by the scope and content of program activity. Empirical analysis of program activity in judicial education under­ taken in the United States reveals a lack of organization and cohesion in the scope and nature of education services provided, and indicates that program­ ming decisions are often fragmentary and ad hoc. Observations suggest that these findings have a measure of universal applicability. Formal Domain versus Practice In the United States, the nasje Standards and Principles exemplify a compre­ hensive approach to defining the formal domain of judicial education. This formal domain comprises two spheres, being orientation and continuing education.28 In the orientation sphere, new judges participate in substantive 27 The importance of the relationship between continuing education and judicial independence and accountability has only recently been recognized: see, for example, Nicholson RD, “Judicial Independence and Accountability: Can they Co-exist?” The Australian Law Journal, 1993, 67, 404–426, 425; see discussion in Chapter 1. 28 nasje, Standards 3.1 and 3.2 respectively, 13. This allocation of two segments rather than three contrasts with the three-tiered approach taken by states such as Michigan or California; see Catlin DW, “A Composite Picture of State Judicial Education Programming in the United States,” The Commonwealth of Learning Conference, Vancouver, unpublished

Frameworks Of Policy And Practice

175

instruction and an adviser-judge program which includes transition to the bench, code of judicial conduct, fairness issues, effective use of court staff and resources, court system management, case management techniques, over­ views of substantive law, court-room communication skills, demeanour, com­ munity and media relations. After orientation, the judge enters the continuing education phase. Throughout the remainder of his/her career, the nasje Principles and Standards provide that a judge should participate in continuing education activities at least once a year for a minimum of fifteen hours. These activities can be basic, advanced or specialized in their level of application. The curriculum for these activities should include education in the areas of legal ability, comportment and demeanour, judicial management skills, con­ temporary and inter-disciplinary issues and personal development.29 How do these statements of formal domain reconcile with the reality of practice of continuing judicial education? The answer is not closely. An analy­ sis of educational practice undertaken by Hudzik reveals some contradiction between what theorists and policy-makers say should be provided and how it should be provided, and what judicial educators actually provide. Hudzik undertook extensive analysis of programs conducted by state judi­ cial educators throughout the United States in 1990, and subsequently between 1990 and 1993.30 He found that the majority of programming related to the fundamental business of courts – the law, sentencing, procedure and so forth. He also found that continuing judicial education has a “very substantively het­ erogeneous meaning”, including offerings related to organizational and per­ sonnel management, juvenile justice, topics related to the social sciences, humanities, ethics and discipline.31 Hudzik’s analysis disclosed that the pre­ dominant content of programs was topically substantive.32 With the notable

29 30

31 32

conference papers, 1992. Catlin’s three-phased model consists of new judge transition, continuing judicial education and career development. nasje, Principle iii, Standard 3.3. 15. Hudzik JK, Issues & Trends in Judicial Education, Michigan State University: Judicial Education Reference, Information and Technical Transfer Project (jeritt), 1991 and 1993, respectively. Hudzik, 1991, 161. Hudzik, 1993, 188. Educational activities in the jeritt database reveal a content rather than process orientation. While only 6.5% of subjects were formally described as “sub­ stantive law”, many others were described as civil law and procedure (5.5%), crimes and offences (6.8%), juvenile (10.5%), social and humanities (7.7%), evidence (6.2%) and so on. Skills or attitude related subjects accounted for a minority of the program: communi­ cation skills (3.4%), organizational management (19.4%), personnel management (3.4%), settlements (2.6%).

176

chapter 7

exception of programs of judicial orientation, this mixture of offerings is in practice to some extent eclectic as well as heterogeneous in nature, and inevi­ tably ad hoc when focusing on legislative updating.33 Hudzik’s analysis also disclosed that the preferred instructional method was predominantly didactic and socratic.34 The Position Elsewhere The prominence of the content-based approach to education, which focuses on transferring information rather than the process of developing skills or atti­ tudes, is evident not only in the United States but also elsewhere. In Canada, courses conducted by the National Judicial Institute are primarily substancebased, although there is evidence of skills development and attitude formation courses contributing to a lesser segment of the overall program.35 In Britain, the Judicial Studies Board provides refresher courses which are predominantly substance-based; induction courses which focus on process rather than sub­ stance with sentencing and practical exercises; and conferences which include sentencing exercises and a considerable number of statutory update ses­ sions.36 In Australia, the aija conducts seminars and workshops which tend to be process-orientated in nature rather than substance-based, and include case-flow management, sentencing, case disposition, complex criminal trials, and race/gender equality.37 In New South Wales, the Judicial Commission 33 34

35

36

37

This assessment is based on observations of curricula and courses, and discussions with judicial educators throughout the United States in 1992. Hudzik 1991, 173. Hudzik found that some eighty per cent of programs used lectures, and almost two-thirds used discussion and question/answer; in over forty per cent, problemsolving and small group work is used. National Judicial Institute, Annual Report 1991–1992, Ottawa, 6–7. Substance-based courses included: government liability, limitations periods, pure economic loss, fiduciary duties, mental disorders, and evidence. Skills development programs included difficult assess­ ments of damages, caseflow management, sentencing and judgment writing. Attitude development programs included cross cultural issues and judicial ethics. Judicial Studies Board, 1987–1991, 73–85. The Board provides refresher courses which appear to be substance-based on family law, sale of goods, racial discrimination, child protection, developments in the criminal law, bail applications, current legislative devel­ opments and the Parole Board; induction courses focus on process rather than substance with sentencing and practical exercises and sessions on the role of the judge, together with substance-based sessions on family law, residential security, insolvency and enforce­ ment; Circuit sentencing conferences include sentencing exercises and a considerable number of statutory update sessions. Sallmann PA, “Judicial Education in Australia,” Journal of Judicial Administration, 1992, 2, 28–38, 37.

Frameworks Of Policy And Practice

177

provides a more extensive broader program on a state basis which focuses primarily on developing judicial skills and attitudes, with some substantive updating.38 Four observations can be made from this analysis of the practice of judicial education: 1.

2.

3.

4.

38

In practice, the actual domain of judicial education is predominantly substantive, particularly in the United States, which is in marked con­ tradiction with the formulations of theorists and policy-makers. The practice of judicial education is essentially devoted to the transmission of ever increasingly technical information, rather than the development of skills or attitudes. Although no equivalent statistical analysis of edu­ cation activity is available elsewhere, observations tend to support this analysis generally, although in Australia there is a marked emphasis on developing judicial skills and attitudes reflected in recent education pro­ grams. Similarly, the prevailing practice of instruction of judicial education is lecture with question and answer segments, in marked contradiction with prevailing educational theory which promotes active participation in the education process and an increasing trend towards experiential learning. With the notable exception of certain orientation programs, the practice of continuing judicial education reflects an absence of any overriding curricular perspective, tends to focus on technical updating, and is con­ sequently eclectic in content and inevitably ad hoc. The scope of judicial education is more extensive in the United States than in Australia or Britain. This may reflect a perceived need in the United States to instil more elemental legal competencies in judi­ cial appointees elected without the equivalent forensic experience of those appointed under a merit selection process. It may also reflect a will­ ingness on the part of judges in the United States to extend the domain of judicial education, flowing from their experience of its practical benefits Judicial Commission of New South Wales, Annual Reports, 1992–1995, Sydney. During these periods, programs were developed on dispute resolution techniques, decisionmaking and decision-writing, court management techniques, and equality before the law with particular reference to Aborigines, women and ethnic diversity; in addition to update segments on substantive technical developments in law such as evidence. See Armytage L, “Continuing Judicial Education: The Education Program of the Judicial Commission of New South Wales,” Journal of Judicial Administration 1993, 3, 28–46.

178

chapter 7

over an extended period. The Judicial Council of California, for exam­ ple, goes far beyond the domain presently set in Britain or Australia by providing that judicial education is “essential” for all trial and appellate judges, who “should consider participation in judicial education activi­ ties to be an official duty.”39 Appraisal The prevalence of substantive content and didactic instruction in judicial edu­ cation is vexing and problematical for educators. Notwithstanding, these findings are consistent with Houle’s general observation that the role and application of continuing professional education tends to be more limited in practice than it is in theory.40 It is perhaps a paradox that judicial education should not be concerned pri­ marily with teaching judges the law. Judges selected on merit should already know the law; they should also know how to research the law that they might not know, and to keep abreast of current developments. Clearly, it is legitimate and useful for any formalized education process to assist hard working judges by informing them on the latest developments in law and by improving their access to the law. Equally, education can provide unique benefits in facilitating the exploration of problems and exchange of experience arising from substan­ tive law. It is, however, hazardous to confuse these valid functions with the responsi­ bility to teach judges the law. For judicial education to assume the responsibil­ ity to inform judges of the law is to deviate from the mission to promote judicial artistry and authenticity. If judges’ mastery of substantive law is so deficient that they depend on formalized education to maintain basic levels of current knowledge of the law, then it must be acknowledged that there is insufficient capacity in continuing education to remediate such fundamental defects in the processes of selection and tenure. Judges should not need to be taught the law, nor should judicial education be diverted to compensate for threshold deficiencies of competence.

39 40

Judicial Council of California, Standards of Judicial Administration, Standard 25(a), 1990. Houle observed that continuing professional education is, at a minimum, a complex of instructional systems, many of them heavily didactic, in which people who know some­ thing teach it to those who do not know it. The central aim of such teaching, as offered by many providers, is to keep professionals up to date with their practice: Houle CO, “Possible Futures,” in Stern MR (Ed) Power and Conflict in Continuing Professional Education, Belmont, California: Wadsworth, 1983, 254.

Frameworks Of Policy And Practice

179

It is apparent that the formulated domain of continuing judicial education can vary considerably. The formulated notion of domain is wider in the United States, for example, than in many other jurisdictions. Further analysis however also reveals an incongruence between the theory and practice of judicial edu­ cation. Observation of practice in the United States discloses something of a retreat from the more exploratory domains of judicial education to focus predominantly on transmitting substantive information about law. By com­ parison, the practice in New South Wales on the other hand discloses that a formally conservative formulation of domain is overshadowed by a more ambitious regime of activities relating for example to judicial disposition which may exceed this mandate. iv Standards There are as yet no measurable standards of either judicial education or judi­ cial competence within the common law system of judging. This is due to two factors: the complex and sometimes contentious philosophical issues under­ pinning any debate of judicial competence, and the technical difficulties of objectively measuring the effectiveness of education and training. The notion of judicial competence and the qualities which make a good judge has been the subject of detailed earlier discussion: suffice to recapitulate that competence is the aggregate of skills, knowledge and attitudes required for proficient judicial practice. It is been seen that judicial competence is the ability to apply knowledge and skills to the resolution of problems, and the ability to perform a range of tasks and solve a range of judicial problems according to measurable standards within the framework of the rules of con­ duct and ethics of the judicial profession. This classic behaviourist concept of competence imports a notion of standards: but, how are these standards to be measured? and, what should be measured: the standard of educational delivery or the judicial performance resulting from it? Tobin sees the answer to these questions as being the challenge of educa­ tors. He argues that there is a need for educators, in conjunction with appropri­ ate representatives of the profession, to develop measurable standards of practice, building on principles of adult learning and concrete and measurable definitions of competencies. He argues that educational strategies should translate Knowles’ five adult learning characteristics into educational goals and objectives, with features of instructional design that promote a self-directed approach to learning which is experience-based, developmentally-orientated, problem-centred, and has an immediacy of application. He proposes a

180

chapter 7

three-step design process which defines competencies, formulates explicit learning objectives (and how they will be measured: by performance, condi­ tions and criteria), and arranges a learning hierarchy.41 This approach is supported by Gold who argues that in order to train for competence in performance, there is a need for the training designer to: describe the performance, criteria and conditions of competent perfor­ mance. Once competence is described in terms of a concrete, specific and visible action or product, then one can begin to test for it.42 In the United States, the nasje Standards propose to define a model curriculum framework for judicial education. These standards tend to be measurable quanti­ tatively rather qualitatively in terms of the duration of courses. Thus, a new judge orientation program of five days should be undertaken between three and ten weeks of appointment, with a further ten days more within the first two years; together with at least eight court days each year on account of continuing educa­ tion.43 Neither in Britain nor Australia has any formulation of standards been developed, nor any criteria by which any such standards could be measured. Thus, despite the exposition by theorists and policy-makers alike, no exam­ ples of professional standard-setting can be found within the practice of judi­ cial education. In the United States, the nasje Principles and Standards of Continuing Judicial Education are a misnomer. These Standards provide mini­ mum levels of participation in judicial education measured by the duration of attendance only, rather than any behaviour benchmarks of competence toward which participants are assessed or even directed. In effect, these Standards are quantitative rather than qualitative. While the reason for this may be the dif­ ficulty of describing qualitative indicia of skills, knowledge and attitudes in measurable form, it must be observed that this difficulty is overcome in other occupational arenas. It remains to speculate whether the doctrine of judicial independence militates against the formulation of such standards and, if so, whether this is appropriate within a learning context. 41 42 43

Tobin AG, “Criteria for the Design of Legal Training Programs,” Journal of Professional Legal Education, 1987, 5, 55–63, 60–61. Gold N, Towards Training for Competence: The British Columbia Professional Legal Training Program, Journal of Professional Legal Education, 1983, 1, 2, 1–11, 1. “The efficacy of judicial studies cannot be measured directly.” The difficulty of qualita­ tive measurement, which also besets any attempt to objectively evaluate the effects of judicial education, is acknowledged by the Judicial Studies Board, Report for 1983–1987, Paragraph 1.16, 4.

Frameworks Of Policy And Practice

181

Judicial education in the United States espouses the need for standards of competency, but fails to deliver any meaningful process within which they can be measured. This absence of standards is dysfunctional and has broad impli­ cations: it renders the process of judicial selection less precise, and under­ mines the foundations of proficiency which define the threshold for any program of continuing judicial education; it also obscures the criteria for reviewing and maintaining professional competence and for assessing the effectiveness of the continuing education endeavour. These consequences should not be overlooked. Either the practice of judicial education should be brought into line with its espoused theory and policy through the formulation of meaningful qualitative or quantitative standards of professional compe­ tence, or alternative mechanisms of professional quality assurance should be developed. v Prescription One of the most vexing policy-based debates confronting judicial educators is that of mandatory education. Supporters of mandatory judicial education argue that it provides a minimum threshold for the continuing professional development of judges, and that it sets the stage on which effective education can build over time. Opponents argue that prescription is anathema to both judicial independence and continuing professional education, and that pre­ scription is all the more anomalous for any program of judicial education whose mission extends beyond the domain of basic competence to promote professional artistry. Notwithstanding the existence of what may ultimately be seen as over­ whelming doctrinal and educational arguments against prescription, this debate is usually resolved in judicial education – particularly in the United States – being provided on a mandatory basis, either in name or effect. This state of affairs may appear surprising to both proponents of judicial indepen­ dence and educators, until it is recognized that the provision of a visible means of accountability is central to the process of judicial professionalization: in effect, it is argued that mandatory judicial education has much more to do with demonstrating a concern for the pursuit of competence rather than implementing an effective means of attaining it. American Approach In the United States, mandatory continuing education is now widely accepted and commonly used as a basis for “relicensure” and “recertification”

182

chapter 7

of professionals.44 Some fifty states in the United States operate mandatory education schemes in many professions, including law, requiring participation of between 20–50 hours every year.45 Mandatory continuing professional education is widely accepted in terms of credentialing by many professions. Half or more of the members of several professions recently studied polled in favour of mandatory continuing education as a basis for relicensure or recertification.46 Pressure for mandatory continuing professional education occurred during the 1960’s, when “licensure” was no longer granted for a life term; with this change came a questioning of the need to review credentials. Calls were made for mandatory continuing education as a criterion for relicensure from a vari­ ety of quarters: professional associations (in the hope of demonstrating com­ pliance with professional codes to increase public confidence and diminish malpractice suits), from legislators (to reduce malpractice and appease public agitation), and from the public (to restrain the cost of services, improve com­ petence, and raise accountability). Evans postulates that mandatory education is an integral – however unsavoury – element of the concept of professionalism as expounded by Houle: A basic tenet of professionalism is the belief that each profession pro­ vides a service which is based on a unique body of knowledge. Implicit in this concept is the commitment of professionals to keep abreast of changes in the profession throughout their practising careers. Yet… [m]any professionals are perceived as incompetent or only minimally competent. In an effort to prevent professional obsolescence many pro­ fessions have mandated continuing education in the belief that such requirements will assure the continuing competence of its members.47 In the arena of judicial education, 31 states (70%) have some form of mandated education expressed through statute, rule, or long-standing practice. 44 45

46 47

Houle, 1980, 283. Phillips LE, “Trends in State Relicensure,” in Stern M R (Ed) Power and Conflict in Continuing Professional Education, Belmont, California: Wadsworth, 1987; by 1982 every state had legislated continuing education requirements for at least one profession. Houle 1980, 284. Evans AD, “Can Mandatory Continuing Education be Justified?” Journal of Professional Legal Education, 1985, 3, 35–46; see also Houle, who argues that continuing education plays a role in the process of professionalization, which he describes as the transition between any occupation and a profession: Houle, 1980, 19–33, and 283.

Frameworks Of Policy And Practice

183

Unfor­tunately, the term “mandatory” does not have a clear or uniform mean­ ing from state to state; the mandatory label includes a range of requirements, from statutory provisions and court rules which enforce attendance to, “the expectation (as a part of the local legal culture) that judges will or should attend”.48 The amount of training leave provided also varies significantly from 15 days per year to no set amount, and averages about five days annually.49 “Judge-led” Approach In Britain and Australia, it is a tenet of continuing judicial education that it should be voluntary – and should visibly exhibit a voluntary character – and there is no formal mandate.50 Indeed, in Britain, it is described “as a right, not a duty.”51 Orientation training, for example, is increasingly seen as a useful inci­ dent of induction in those courts where it is available rather than an imposed condition of office. For judges in New South Wales, the voluntary character of continuing edu­ cation is of considerable importance. The need for judicial education to be judge-led has become something of a mantra.52 This catch cry of judicial edu­ cation can mean a variety of things: it can highlight the importance of judges owning their own education program and controlling the policy-setting proc­ ess; it can mean judges should make up the faculty as being the only credible source of expertise and experience to train other judges; or it can also be used to express the view that judges should be the masters of their own learning – that education should not be formalized or even organized for them, as they are experienced and indeed successful in meeting whatever needs may exist in a self-directed fashion. Whatever judge-led may ultimately mean, it is symp­ tomatic of a deeply-held view that professionals generally and judges, in par­ ticular, see themselves as the best arbiter of their learning needs and how to meet them and, within this self-image see any notion of external prescription as anathema. It is interesting to observe that this imperative for a judge-led process of professional development serves as a barrier against the external imposition 48 49 50

51 52

Hudzik, 1993, 127. Hudzik, 1991, 121. In New South Wales, the voluntary nature of judicial education has been the subject of favourable commented by the Attorney General. See Hannaford P, “Voluntary Continuing Judicial Education,” Judicial Officers Bulletin, 1993, 5, 43–47. Lord Justice Henry, Chairman of the Judicial Studies Board, quoted in “Judges Go Back to School,” The Times, 12 December 1995. This position is shared by the British judiciary, to the point where it is described as a “car­ dinal principle.” See, Judicial Studies Board, Report for 1983–1887, 30.

184

chapter 7

of mandatory education; however, this need not necessarily proscribe a formal or informal mandate organized within the ranks of the judiciary itself by a head of jurisdiction. Lack of Educational Rationale Despite the overwhelming trend towards mandatory continuing education during the past twenty years by professions in both the United States and else­ where, this trend can not be explained and justified on educational grounds. Educationally, the concept and practice of mandatory continuing professional education is fraught with problems. Indeed, few issues within the literature of professional education attract such universal criticism by commentators. Brookfield, for example, describes mandatory education as: a repulsive idea [that is] antithetical to the ideals that the early adult edu­ cation movement cherished.53 Stern attacks mandated continuing education as “the most vexatious issue confronting adult educators and society.”54 These are very strong objections; Houle is more measured. He observes that: all is not well as far as mandatory continuing education as a basis for recredentializing is concerned. Opposition is not restricted to the old, the relatively ignorant, and the professionally isolated.55 There is little evidence that mandatory schemes increase professionals’ par­ ticipation in continuing education. Cervero argues that the greatest changes occur in the minority of practitioners least disposed to on-going learning (Houle’s laggards)56 who increased their negligible participation to the reli­ censure levels required. However this marginal improvement is insignificant in the light of total levels of participation which is generally far in excess of that needed for relicensure. Most professional participants (70–75%) reported little 53 54

55 56

Brookfield SD, Understanding and Facilitating Adult Learning, San Francisco: Jossey-Bass, 1986, 174. Stern MR, “Compulsory Continuing Education for Professionals – or the Gold Rush of ‘76,” in Long JS and Boshier R (Eds) Certification, Credentialing, Licensing and the Renewal Process, Seattle: Northwest Adult Education Association, 1976, quoted in Cross KP, Adults as Learners, San Francisco: Jossey-Bass, 1981, 40. Houle, 1980, 284–285. Houle’s learners’ typology classifies practitioners’ competence from 5% pacesetters to 5% laggards at either extreme: Houle, 1980, 155 and 159; see discussion in Chapter 5.

Frameworks Of Policy And Practice

185

or no change in participation patterns after implementation of mandatory continuing education. Cervero argues that although mandatory professional education is touted as an effective way to foster participation, the evidence shows a relatively weak effect. In fact, in the only study that examined the overall hours of participation for all members of a profes­ sion…found no difference in [physicians’] participation before and after the implementation of a relicensure law.…57 Additionally, there is no compelling evidence from any source that mandatory education promotes effective learning. Nor indeed can any evidence be found of any positive relationship between mandatory professional education and professional competence. At best, some evidence can be found on the equivo­ cal effects of prescription on the participation patterns of a minority of lag­ gards in Houle’s typology or classification of learners, which is estimated by Houle at some 5% of any profession. The educationally problematic nature of mandatory continuing education is hardly surprising when the ostensible objective of mandatory education – to redress professional incompetence – is so tenuous. Mandatory education is classically justified as a solution to the problem of professional incompe­ tence.58 But, what is this professional incompetence, and how is it identified and measured? In short, the answer is with great difficulty: just as it has been seen from earlier discussion in this chapter that standards of competence elude simplistic classification, as too does recognition of the criteria and indicia of incompetence elude any consensus.59 Further fundamental difficulties exist, even in the event of consensus on the nature, cause and measurement of the problem of professional incompetence. 57 58

59

Cervero, 1988, 73/4. Alternatively, it might be argued that the rationale for mandatory education is not so much to cure any deficit of incompetence as to address the continuing development of competence. In such event, the problem may exist not so much in the existence of the mandate itself as in the delivery mechanisms which in practice accompany it. Many problematical questions surround mandatory continuing education for profession­ als: what role, if any, should complaints, professional indemnity suits or appeals play in identifying and measuring incompetence? An analysis of professional indemnity suits against practising lawyers, for example, tends to suggest that carelessness, poor commu­ nication, stress and over-work – rather than ignorance of information or technique – are the major causes of professional incompetence. Yet an observation of practice reveals that mandatory legal education is predominantly concerned with transmitting substan­ tive information, as though ignorance was the cause of the problem.

186

chapter 7

Incompetence imports a deficiency in the quality or standard of professional service. As such, the problem of incompetence is primarily a qualitative prob­ lem. Why, then, do professions seek to impose a quantitative solution? The answer to this conundrum may lie in the difficulty of redressing qualitative problems in any systemic fashion. Educational practice demonstrates that qualitative outcomes are more difficult to attain, measure and predict than quantitative ones. This difficulty may have lead professions to adopt quantita­ tive rather than qualitative solutions, in this case by requiring participation in quantities of education programs. Story argues that the heart of the problem of mandatory education lies in professional authorities having accepted unevaluated participation as the chief form of education. As a result, the educational strategy has gone astray by adopting a system that is ultimately unrelated to performance and therefore can carry no assurance of its improvement.60 The imposition of an arbitrary quantitative mechanism to lift the quality of professional standards through prescribing compulsory attendance lacks any compelling credibility and fails to sustain serious scrutiny. Houle observes that the processes of recredentializing should be thoroughly rethought and redeveloped to determine the appropriate role of continuing education.61 Until educational objectives can be more clearly demonstrated, continuing manda­ tory education will remain suspect and an unjustified cost for any profession to bear. Although mandatory continuing education is incapable of solving the prob­ lems it was ostensibly supposed to resolve, prescription has been introduced and is now a fact of professional life. Unfortunately, prescription actually creates new problems in addition to those which it fails to solve. Hudzik remarks that, although there are many assumed advantages to mandatory training requirements, there are suspicions voiced by some judicial educators that mandatory training actually may lower the training sights of some individuals and organizations by placing the focus of training on the mandatory minimum.62 60

61 62

Story PB, “Mandatory Continuing Medical Education: One Step Forward – Two Steps Back,” New England Journal of Medicine, 1978, 298, 1416–1418 at 1416; quoted in Houle, 1980, 284. Houle, 1980, 314; endorsed by Cross 1981, 46. Hudzik JK, The Continuing Education of Judges and Court Personnel, Michigan: The Judicial Education Network, 1989, 30.

Frameworks Of Policy And Practice

187

The Conundrum Mandatory education confronts the judiciary as a profession, judges individu­ ally, the courts and educators with a conundrum: knowing what we do about how adults learn and the need for motivation, is compulsory education better than nothing? An analysis of practice suggests that on this question the specific interests of the judiciary, as a profession, prevail against the arguments and antipathies of judges and educators alike: Profession. For any embattled profession, including the judiciary, mandatory education has become immensely important. It provides a formalized display of concern for public complaints of falling standards of professional compe­ tence, and stands as a visible testament to restore and maintain those stan­ dards. This display of self-help is of crucial significance in erecting a visible barrier against the alternative prospect of external intervention in the form of governmental regulation of those professional standards which lie at the very heart of the professional domain and rationalize its economic territory. On any critical analysis, mandatory education is best explained from the perspective of the profession as an elaborate and costly, but apparently compelling, public relations exercise. Judge. For the judge, the issues surrounding mandatory education are more complex. Judges argue against prescriptive continuing education as much as they object to the imposition of any formalized education. The thrust of their argument is that it is not needed. This argument rests on the hierarchical model of the legal profession. Put in its simplest form, this objection postulates that the legal profession is hierarchical in structure and aspires to the image of its pinnacle whether it be the Supreme Court of the United States, the English House of Lords or the High Court of Australia; any system of legal education is classically modelled on the knowledge, skills and attitudes required by a mem­ ber of those courts; appointees to the bench are appointed on merit and there­ fore represent the most competent of the profession; it follows, by axiom, that appointees to judicial office have already attained the goals of education, and need no further development. This argument raises many grounds for debate: but, if nothing else, it flounders in two important respects: first, it fails to dis­ tinguish between attainment of the education needs of practitioners as dis­ tinct from judges and, secondly, it fails to distinguish between attainment of training goals and exploration of the domain of on-going development. A second argument against mandatory education for judges is doctrinal and is posed on the basis that it violates judicial independence. The spectre of the executive teaching the judiciary anything is fundamentally problematic within any Westminster system. In this sense, the objection has substance. However this argument fails to address the fundamental issue of how to provide a

188

chapter 7

balance between the need to preserve independence with providing any accountability to preserve credibility and competence. At its strongest, there­ fore, this objection is an argument against the external imposition of judicial education rather than its prescription. As we will see, this does not preclude its implementation by a head of jurisdiction. Courts. For courts, mandatory education raises the issue of institutional leadership and style: how much does the court wish or need to direct its own members, and how should that direction be provided? The court, as notional employer, has a direct interest in the outcome of any professional development program. The court can sanction the process in a variety of ways by allowing and promoting the organization of activities within its dominion, providing incentives such as dispensation from sitting duties, dismantling financial dis­ incentives by providing reimbursement allowances, and ultimately by formal prescription. In practice, decision-making within each court – while holding out the appearance of collegiality – tends on close observation to be often autocratic. Thus, when a head of jurisdiction organizes an educational activity – and provides appropriate “release time”, that is, relief from sitting duties – members of that court are in fact expected to attend, and concomi­ tantly high levels of “voluntary” involvement can be observed. It tends to fol­ low that the provision of leave from sitting is likely to be as conducive to participation as formal prescription, and is likely to be considerably more con­ ducive to the attainment of educational goals. Thus in the institutional con­ text, the debate surrounding mandatory education is effectively a diversion; judicial participation in court-sponsored continuing education may be effec­ tively mandatory in practice, albeit not in name. Educators. For educators, it has already been argued that mandatory con­ tinuing professional development is problematical as an educational con­ cept. Prescription abuses the precepts of professional learning by disregarding the imperatives for motivation and self-direction in any meaningful process of effective learning; it imposes a laggard model from Houle’s learners’ typol­ ogy indiscriminately across the entire professional group, irrespective of individual learning practices, styles and preferences; and it fails to deliver results in terms of either learning or competence. Empirical research reveals only “insignificant” evidence of negligible improvements in participation in continuing education resulting from mandatory schemes. More seriously, no evidence whatever is available to demonstrate any positive relation­ ships  between mandatory education, effective learning and professional competence. Indeed, forceful arguments exist against prescription because coercion robs the learning process of what Houle describes as the “zest for learning” – the

Frameworks Of Policy And Practice

189

joys of self-discovery.63 Such joys are not just the reward for learning; they are its cause. Mandatory education schemes also impose significant infrastruc­ tural costs to be borne by the profession as a whole, which cannot be justified on the basis of any discernible direct benefits. In effect, mandatory continuing education lacks any educational justification. Explanation of Professionalization Given these anomalies, it is argued that mandatory education cannot be justi­ fied on educational grounds. It can only be understood, and perhaps justified, within the context of professionalization: its existence is more readily explained as a mechanism to protect professional territory. Mandatory educa­ tion is an increasingly popular response to public demands for improved levels of professional service. However superficial or cynical this response may be in addressing such complaints, mandatory professional education is best explained as a visible gesture by the professions to reinforce their reputations for competence, and to create a self-regulatory barrier behind which those pro­ fessions can resist overtures by government to intrude into the sensitive domain of professional standards. Once the true nature of mandatory education is explained in professional­ izing rather than educational terms, it is then argued that it is ultimately an educational side issue. For the judicial educator, operating within either a vol­ untary or a mandatory process, the facilitation of meaningful learning remains the essential challenge. Prescription provides no solution to this problem. Only through designing educational services which can be recognized as assisting judicial officers to discharge their duties may the educator demon­ strate benefits which can promote and facilitate this learning process. Ultimately, delivering value is the test. As observed by Hudzik: “Good training creates its own additional demand… the better the training, the more people want it.”64 If it is agreed that the mis­ sion of judicial education embodies facilitating effective learning of judges, then this mission is sabotaged by prescriptive policies which subvert that learning process. The challenge which confronts judicial educators operating within mandatory systems is to overcome the educationally perverse effects of these professionalizing policies by delivering services which render the man­ date redundant; ironically, this is the identical challenge which inspires educa­ tors operating in a voluntary system to design services that are irresistible.

63 64

Houle, 1980, 124–165. Hudzik, 1989, 50.

190 vi

chapter 7

Educational Planning

Facilitating a program of effective learning for judges depends, at least in part, on the quality of its planning. This planning can be measured in the extent to which the education program provides coherent services which are organized to meet designated goals. It has already been argued from observation and analysis of practice, how­ ever, that judicial education is characterized by services which are designed to some extent inevitably on an ad hoc basis, tend to be eclectic in character, and are consequently limited in effect. These deficiencies can, however, be cured by providing a framework which matches the delivery of services against a proc­ ess of designating priorities of educational need. Matrix of Services This planning process can operate effectively through the formulation of a matrix of educational services. We have previously seen that the services offered by any program of con­ tinuing judicial education are determined by need. An additional factor which influences this process is the availability of resources (in terms of the educa­ tional expertise to guide the process, finances to underwrite delivery costs, and judicial leadership both in the planning and delivery phases). Integrating resources to provide the services to meet educational needs involves an assess­ ment of the capacity to provide, and priorities for delivery. What resources are available for continuing education in terms of money, staff (labour, time, expe­ rience, expertise) and facilities (equipment, venues); and what constraints these impose on the services which should or can be delivered? In practice, however, there are rarely sufficient resources available to meet educational needs, which places a burden on the shoulders of educators to determine pri­ orities in the delivery of services. This, in turn, raises the question What are the criteria to determine how to match services to needs? While it is beyond the scope of this study to outline these criteria exhaustively, it may be more useful to propose a planning process through which to approach the question. This planning process operates through a matrix of education services. This matrix is defined by content (subject matter) and pitch (level of application).65 This approach defines content as consisting of five categories: law, proce­ dure,  management and administration, judicial skills, conduct, disposition and ethics. Pitch is categorised as induction, update, experience-exchange, 65

Judicial Commission, Policy of Continuing Judicial Education embodies this approach: see Appendix; see also Matrix Planner, in Appendix.

Frameworks Of Policy And Practice

191

specialization and refresher. By combining both axes, a matrix of twenty-five service options is created which facilitates the identification and charac­ terization of services being provided by the institution within an overall framework. An analysis of services in these terms can be undertaken and will readily display where the efforts of any particular education program are being directed. It may be determined, for example, that there is a priority to address the needs of new appointees, who have relatively little trial experience, mak­ ing the transition to the bench: these needs may perhaps be characterized pri­ marily in the areas of procedure and case management, and could be addressed with what might be described as a program of court-craft or judicial skills development. Alternatively, the limited resources of an education program may be directed to promoting annual conferences as a means of providing maximum appeal to the largest number of judges through a single program with a smorgasbord of offerings. These offerings could be characterized as experience-exchange across the spectrum of content. With the exception of Catlin’s model of judicial education which has been previously discussed, no methodical approach to planning services other than this relatively elementary matrix is visible within the repertoire of judicial edu­ cation practice. Catlin’s model, however, while sophisticated in terms of iden­ tifying seven distinctive objectives of judicial education, lacks practical application as a planning device to integrate the content and pitch of educa­ tion services. This matrix configuration commends itself by identifying the range of potential services which can theoretically be provided, and by highlighting those which actually are provided. This promotes planning, monitoring and ultimately evaluation. For example, an absence of any programming specifi­ cally designed for experienced judicial officers, or an absence of skills develop­ ment generally, becomes readily apparent and can then be ratified or rectified at a planning level. Curriculum Development While considerable time and effort may be devoted to devising appropriate planning and consultative structures with which to develop programs of judi­ cial education,66 it can be observed that, with the possible exception of new judge orientation programming, there is a need for more coherence in the 66

These mechanisms include program planning and evaluation techniques, ad hoc advi­ sory committees, advisory committees, formal survey or needs assessment, participant evaluations and external influences requiring environmental scanning.

192

chapter 7

design and structure of continuing judicial education programs. In effect, there is a need to improve curriculum design and develop training strategies which increase the effectiveness of the learning experience. Curriculum design provides a framework to help judicial educators to plan what is to be taught, to whom and why, and implies that decisions have been made about the subject matter, the relationship between segments of knowl­ edge, skills and abilities, and their organization and sequence.67 The value of curriculum development in continuing judicial education is that it offers a plan of the proposed learning outcomes and the means of reaching them. This enables educators to identify whether segments of the program are missing or operating ineffectively. Hudzik observes that there is little evidence of curriculum development in the existing practice of judicial education, with the possible exception of ori­ entation programming. The practice of judicial education is both eclectic and ad hoc. He argues that there is a pressing need for the development of a cur­ riculum paradigm along a career-development model as a means of conceptu­ alizing and bringing coherence to a body of knowledge delivered through a systematic progression of programs rather than a list of independently con­ ceived and discrete offerings.68 This general proposition is developed by Claxton, who proposes that, [C]urriculum planning for judicial education should be developmental in nature; that is, it should be planned and carried out not only to help judges master content, but to help them become outstanding performers in their roles.69 Considerably more emphasis should be given to seeing judicial education as a process of providing a broad range of distinctive services which can be inte­ grated within a longer term career developmental framework in order to more effectively meet educational need than is apparent from prevailing practice. 67

68 69

Curriculum design is the means by which course aims are specified, subjects are listed, syllabuses prescribed and attention given to the teaching and learning process (generally tending to relate to course content); instructional design relates to the systematic applica­ tion of well-tested instructional principles (rather than reliance on intuition) in the trans­ lation of the curriculum into the working instructional package. Hudzik, 1991, 179. Claxton CS, “A Model for Curriculum Development,” Adult Education Perspectives for Judicial Education, 1992, Georgia: University of Georgia – Judicial Education/Adult Education Project, 10.1–10.23, 10.19.

Frameworks Of Policy And Practice

193

Cycle of Judicial Education Practice This study has explored a number of critical issues in developing and conduct­ ing a practice of continuing judicial education. For the most part, these issues have a policy-aspect which should be explicitly determined. While many of the issues – and their potential significance – are masked, they have a significant impact of the nature and outcomes of the education process. In practice, many of these decisions can be observed to be determined by default risking unin­ tended outcomes. To assist in the development of effective practice, a cycle of model practice for judicial education is proposed below. This model is adapted from the clas­ sic works of Tyler on adult learning, Houle on professional development, and Catlin on judicial education to integrate managing the education process. It is perpetual, and consists of four spokes: policy development, curriculum, deliv­ ery and evaluation. Each spoke is characterized by the particular policy-related issues which need to be determined.70 Reference to this cycle of practice management should assist judicial policymakers and educators alike in addressing the planning issues associated with judicial education in a methodical and systematic fashion. This chapter has explored the question of how to develop and manage a program of continuing judicial education to ensure the enhancement of judi­ cial competence. The study has argued that the practice of judicial education is critically affected by the quality of decision-making made at certain predict­ able points in the process. These decisions flow from the point of defining the distinctive mission and purpose of judicial education, to formulating explicit policies, defining goals and setting operational priorities. As a part of this proc­ ess, there is a need to plan and develop services which can be integrated within an educational curriculum designed to provide systemic and personal devel­ opment. An analysis of the practice of judicial education however reveals that there is a lack of any overriding curricular perspective evident in the planning or delivery of services, and that consequently, it offers limited developmental outcomes. To remedy this deficiency, the study offers a Cycle of Judicial Education Practice to assist educators address these formative policy issues in a manner which is both appropriate to the judiciary as a profession, and sound educationally. The effectiveness of this endeavour is assessed through educa­ tional evaluation, which is discussed in the following chapter. 70 See Cycle of Judicial Education Practice, in Appendix.

chapter 8

Educational Evaluation The evidence is impressive that continuing education programs can have a major impact on performance. However, such benefits are not automatic and they are not easily assessed.1 Evaluation is a vital component of almost any program that wishes to remain competitive. Evaluation becomes the watch-dog of efficiency in the planning and implementation phases, and the guarantor of effectiveness in the end results.2 Attesting to the need for evaluation is somewhat akin to deciding to take exercise more regularly. Both are resolutions that are deemed important and necessary, but both are, for whatever reasons, rarely implemented.3 In previous chapters, the significance, need and nature of continuing judicial education have been examined. In this penultimate chapter, it is argued that it is necessary to both ascertain and be able to demonstrate the value of this educational endeavour.4 Evaluation is essential to judicial education. Most directly, evaluation measures the quality of the learning process for the individual judge. Of greater significance in the process of professionalization, however, evaluation measures the impact of continuing education on judicial performance, and provides the means to demonstrate the judiciary’s concern for the development of competence. Thus, educational evaluation integrates the twin underpinning themes of this study, being the pursuit of competence and, in the evidence of success in that endeavour, a means of social accountability. 1 Knox AB, “Assessing the Impact of Continuing Education,” New Directions for Continuing Education (No 7), San Francisco: Jossey-Bass, 1979, 117. 2 Chinapah V & Miron G, Evaluating Educational Programs and Projects, unesco (Socio Economic Studies No 15): Belgium, 1990, 25. 3 Brookfield SD, Understanding and Facilitating Adult Learning, San Francisco: Jossey-Bass, 1986, 261. 4 An earlier draft of this chapter has been published in the Journal of Judicial Administration, 1994, 4, 35–63. This material is based on a presentation prepared by the author for the annual conference of the National Association of States Judicial Educators (San Francisco, October 1993), as part of a workshop co-presentation with Professor JK Hudzik of Michigan State University.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279261_009

Educational Evaluation

195

This chapter critiques the prevailing practice of evaluating judicial education, which it finds to be deficient, inappropriate and of limited utility. The deficiencies of prevailing practice are characterized by the selection of predominantly formative, reaction-based assessment methodologies; a concentration on educational process rather than outcomes; an almost universal tendency to rely solely on subjective, qualitative data rather than to integrate objective quantitative data; and a general avoidance of any meaningful measurement of results in terms of enhanced judicial performance. The causes for these deficiencies include practical difficulties of selecting assessment criteria and data collection, shortages of resources, and substantial methodological difficulties of measurement. Most significantly, however, it is argued that there has to date been a failure to develop an appropriate evaluation model which can provide meaningful measurements of value within the constraints imposed by the doctrine of judicial independence. To rectify these deficiencies, the study proposes a Judicial Systemic Performance model to assess the effectiveness of judicial education. This model uses systemic rather than personal indicators of judicial performance, including trial disposal, reversal rates and complaints. This model supplements existing practice to provide the means to assess and demonstrate the impact of judicial education without infringing judicial independence. i Techniques Evaluation is the process of assessing the value or worth of an endeavour in terms of its effectiveness in accomplishing its goals or results.5 In educational terms, this assessment involves obtaining information for use in judging the worth of an instructional program, product, procedure or objective.6 More specifically, “educational evaluation” can be described as making informed judgments on the overall value of the learning program and whether or not the program accomplished what it set out to do. This usually involves making judgments concerning the quality of the impact of training, by reference to an assessment of goals and objectives with their outcomes.7 5 The New Collins Dictionary, London: Collins, 1986, 340. 6 Worthern B & Sanders J, Educational Evaluation: Theory and Practice, Belmont, Calif: Wadsworth, 1973, 20–23. 7 Pearson TG, “Evaluation,” Adult Education Perspectives for Judicial Education, Judicial Education Adult Education Project (jeaep), Georgia: University of Georgia, 1992, 8.1–8.13, 8.7.

196

chapter 8

On the basis of these judgments, decisions can then be taken about the feasibility, effectiveness and educational value of the program.8 At a more technical level, Cook and Reichardt define evaluation as the systematic endeavour to describe, understand and judge the worth of activities and experience which actually occur within the instructional events of a program (process), and of its outcomes (impact) on participants. These outcomes are measured in cognitive, affective or psychomotor terms, usually within social, environmental and organizational contexts.9 Chinapah defines educational evaluation in the generic terms of social research, as the systematic application of procedures to assess the structure, design, implementation and utility of a learning project or program: As a process, evaluation can be seen as an attempt to assess the relevance, effectiveness (significance) and impact of an intervention, usually in the light of its objectives.10 Others see the definition of evaluation depending on the broader, underlying philosophy of education, which affects how one intends to use the acquired evaluation information. Groteleuschen documents a range of different applications which include evaluation as the process of correlating the congruence of learner outcomes and program objectives; comparing performance data with commonly accepted standards; comparing actual effects of a program with a variety of demonstrated needs; and judging a program critically using expert knowledge.11 Gardner provides five alternative definitions depending on application, which classify evaluation as educational measurement, using a quantitative index of performance; a process of professional judgment, with experts giving considered assessments of quality; a comparison of performance data with clearly specified objectives, which identifies discrepancies by comparing actual performance to standards or benchmarks of performance;

8 9 10 11

House ER, New Directions in Educational Evaluation, London: Falmer Press, 1986, 87. Cook T and Reichardt C, Qualitative and Quantitative Methods in Evaluation Research, Beverley Hills, Calif: Sage, 1979, 27. Chinapah and Miron, 25. Grotelueschen AD, “Program Evaluation,” in Knox AB (Ed), Developing, Administering and Evaluating Adult Education, San Francisco: Jossey-Bass, 1989, 75–123, 76: in this passage, the author reviews the diverging approaches of Tyler (1950), Rivlin (1971), Scriven (1972), and Eisner (1976), respectively.

Educational Evaluation

197

a process of identifying and collecting information to assist decision makers; and as a goal-free process, noting actual program effects.12 Ultimately, the most useful definition of educational evaluation is provided by Scriven who describes evaluation as the systematic collection and use of information to make informed decisions about an education program.13 This definition possesses the dual qualities of being both generally descriptive and permitting the context of the ensuing argument to define more precisely the meaning which is most appropriate. For this reason, the term will be used in this sense for on-going discussion throughout this chapter. Applied Research Method Evaluation and research both share the process towards systematic collection and analysis of information, however evaluation embodies a distinctive research methodology. Research, on the one hand, is defined (at least in social science terms) as an activity aimed at obtaining generalized knowledge by contriving and testing claims about relationships among variables or phenomena. This knowledge results in theoretical models, functional relationships or descriptions which may be obtained by empirical or other systematic methods, and may or may not have immediate application. Evaluation, on the other hand, is an applied form of research and is directed towards practical applications of knowledge, with immediate utility. The goals of this inquiry include answering questions pertaining to the worth of educational materials and activities. Evaluation is concerned not just with knowledge but with knowledge for action, with description, judgment and the facilitation of understanding and decision-making.14 Thus, educational evaluation is an applied means of research with recognisable method, which is defined by its purposes and goals, and is orientated towards utility by fulfilling an inquiry for its client, being specifically an assessment of value. It follows that the question which must ultimately be addressed is, “What evaluation method is both useful and appropriate in any assessment of the value of judicial education?” Finding an answer to this question is the objective of this study. 12 13

14

Gardner DE, “Five Evaluation Frameworks: Implications for Decision Making in Higher Education,” Journal of Higher Education, 1977, 48, 571–593. Scriven M, “Curriculum Evaluation – Definitions and Boundaries,” in Tawney D (Ed), Curriculum Evaluation Today: Trends and Implications, London: MacMillan, 1991, 40; see also Scriven M, Evaluation Thesaurus, Newbury Park, Calif.: Sage, 1991. Worthern and Sanders, 19, 20 and 24–25.

198

chapter 8

Normative Process The notion of evaluation is inescapably normative, depending as it must on the declared or latent framework of values within which it is conducted. In effect, it is not possible to conduct an evaluation without having first defined the purpose of that evaluation. Just as the notion of assessment hinges on the concept of value, so any notion of evaluation is dependent on normative criteria applied in making judgments about educational programs, and determining their value or merit. Any approach to evaluation requires criteria and procedural features with which to operate. Brookfield argues that evaluation becomes pragmatic in a normative vacuum. Preferably, these should emerge from the nature of the adult learning process itself. Thus evaluation is “inescapably” a valuejudgmental concept,15 and requires a normative structure which consists of measurement against value scales, making value statements and the justifying of those measurements.16 In this sense, evaluation is clearly more than just gathering data.17 To operate, the evaluation process fits within the context of a model that derives criteria relating to quality, value, worth, effectiveness and procedural features which arise from an organizational context and are channeled by the adult learning process. Within this context, there is a debate among educational researchers relating to Fact and Value. Purists argue that evaluators ascertain facts and clients/ sponsors place values on these facts – that is, that it is a value-neutral process; pragmatists assert this dichotomy is a theoretician’s fiction, and claim that all social science research is value-based. This debate, therefore, is at what point does the process become normative and judgmental – finally in the hands of the decision maker, or from the outset in the hands of the evaluator? Brookfield argues that scientifically “pure” data is of little validity unless it can be applied in settings where individuals are able to relate it to value components. He declares that the adult educator cannot escape valuing by burrowing into data.18 House goes further to argue that evaluation can variously be seen, as a process of illumination, advocacy or judgment. For example, evaluation of teaching will differ depending upon whether one sees teaching as labour, craft, profession or 15 16 17 18

Brookfield, 264. Worthern and Sanders, 25. Grotelueschen 1989, 77. Steele SM, Cost Benefit Analysis and the Adult Educator: A Literature Review, Syracuse: ny.: eric Clearinghouse on Adult Education, 1971, cited in Brookfield, 264.

Educational Evaluation

199

art. If one sees teaching as labour, as a set of standard operating procedures planned and programmed by administrators then, House argues, evaluation becomes direct monitoring of teacher performance according to set standards. If however it is seen as art, then an altogether more subjective and qualitative proc­ ess must be engaged upon.19 Using this illustration, House concludes that the traditional social science position of the separation of fact and value is fallacious. The implications of this discussion are hardly polemic. Indeed, few issues are as fundamental in the evolution of a model of educational evaluation. Resolution of this debate could, for example, ultimately lead evaluators to dispense with the role of critic and the burden of ostensible objectivity to become advocates of information who operate in collaboration with program developers. If we recognize that evaluation invokes a methodological process of assessing value, and if we also recognize the inescapable non-neutrality of that proc­ ess, then it becomes of critical importance that we can explicitly define the norms upon which any assessment of judicial education rests: what are the criteria of value which are to be applied? We must state precisely what we want to measure, before it is possible to make any rational assessment. These criteria of value define the framework of educational objectives, standards or benchmarks of competence, and indicators of performance essential to provide any process of measurement or assessment. At present, the practice in judicial education is generally deficient in failing to provide any clear statements of criteria, the nature of which is largely determined by the purpose of the evaluation. Purpose of Evaluation The overriding purpose of evaluation is generally seen as being to assess the quality of training intervention in terms of resultant behavioural change, through enhanced professional competence, and its systemic effects on organizational performance.20 However, evaluation in fact serves two fundamentally different purposes. Historically the first is to provide institutional accountability, or justification, usually to external sponsoring bodies. More recently, evaluation has also become important in providing a learner-based method of assessing the personal worth of the individualized learning proc­ ess.21 The selection of any evaluation methodology ultimately depends on which purpose is being served by the evaluation. 19 20 21

House, 7. Houle CO, Continuing Learning in the Professions, San Francisco: Jossey-Bass, 1980, 237. This proposition is advanced by a number of commentators; see, for example, Chinapah and Miron, 26–27; see also Grotelueschen, 78–79.

200

chapter 8

In the domain of judicial education, it is argued that providing judicial learners with the means to assess the value their own learning is the more appropriate endeavour of any educator who is sensitive to the implications of judicial independence. In judicial education, no less than elsewhere, however, it will be argued that evaluation must also provide the means to assess the value of continuing education on the systemic performance of the justice system. Thus, the nature of the evaluation process varies depending on which purpose is being met: external accountability generally requires greater reliance on objective outcomes, while internal accountability is more concerned with the qualitative learning process. It will be argued that the evaluation of judicial education should combine both, but in current practice supplies neither satisfactorily. Institutional Accountability or Individual Learning? The historic origins of modern educational evaluation have had a significant influence on its character and development in the public sector. Evaluation became popular as a systematized procedure in education programming in the United States during the mid 1960’s, and since that time has become closely linked with grant funding. This genesis has important implications in terms of accountability. Accountability has played an influential role in the continuing rationale of evaluation, which has been intimately tied to funding bodies who are usually governmental.22 As a corollary, the development of educational evaluation has traditionally been determined by these funding entities which are invariably external to the organizational environment within which the education is undertaken. It follows that significant changes in evaluation practices have, on occasion, resulted from shifts in government policies and requirements. This alignment of educational accountability to external interests is a cause for concern to some educationalists. Some studies have demonstrated that these government accountabilities may be inflexible and inappropriate, and may have diverted attention towards artificial directions in the educational process.23 These differences of purpose underpin distinctive rationales for educational evaluation, and have profound implications on the selection of appropriate methodology. As a result, there is a need to clarify the purpose for the evaluation of judicial education from the outset. Is this evaluation for purposes of 22 23

House, 6. See, Abramson T, Tittle C & Cohen L (Eds), Handbook of Vocational Education Evaluation, Beverley Hills: Sage, 1979, 573–574.

Educational Evaluation

201

providing external accountability, or is it for the discrete purpose of equipping individual judicial learners with tools with which to monitor and critique their own progress? Notwithstanding that most educational evaluation is undertaken for the former purpose, it is argued that the latter is the only means by which judicial learning will ultimately provide value. Formative and Summative Evaluation There are in fact numerous purposes for the evaluation of judicial or any other form of education. These can be categorized in a variety of different ways. Groteleuschen, for example, identifies three categories of purposes for evaluation which he describes in terms of time: past, present and future. For Grotelueschen, the central question is “what is the purpose of the evaluation – is it intended for justification, improvement or planning?”24 Evaluation of past activities, or summative evaluation, is for justification; evaluation of current program activities, or formative evaluation, is for improvement. The question whether an evaluation is formative or summative determines the time at which the evaluation is undertaken which, in turn, is relevant to the purpose of the exercise. Formative evaluations are undertaken during the course of the education process, usually for the purpose of modifying current proceedings, as required. Summative evaluations are undertaken at the end of the process to draw conclusions on the program at large, usually for the purpose of refining or developing future programs. In practical terms, the relevance of this distinction is often masked within the more important and adjacent issue of what is to be evaluated: the education process or its outcome? Houle analyses the purposes of evaluation from an environmental perspective and argues that the appraisal of the quality of continuing education can be conducted at three levels. These levels consist of evaluation of the activity itself (activity), the extent and quality of individual’s developed ability (learning), and the profession’s general performance (outcome).25 It is argued that this “environmental” approach is of considerable practical utility as it assists in providing a focus to any evaluation. It requires the process to select a specific perspective and to consistently address each of the three levels of application in turn, inevitably culminating, as it should, in the outcome. Hudzik and Wakeley provide another important means of categorizing evaluation, and its purposes. They argue that evaluation can be classified into two approaches which determine the object and focus of any study. The first is the 24 25

Grotelueschen, 79 and 88. Houle, 237.

202

chapter 8

program monitoring approach, also known as process evaluation. This approach assesses effort, efficiency, effect, changes in behaviour, and process.26 The second is the training or learning approach, also known as impact or outcome evaluation. This approach assesses reactions, learning, job behaviour change, and impact or results.27 This dichotomy leads to one of the central debates in the literature of educational evaluation, which is polarized around exercising the choice between assessing the process and assessing the outcome of an educational endeavour. The resolution of this debate is of considerable importance as it affects the fundamental character of any evaluation exercise and is highly influential in determining what is actually done and why. This debate is posed within two separate but related choices confronting the evaluator: Should the evaluation be formative or summative? and, Should the evaluation be of process or outcome? The significance of these choices to the judicial educator are that they succinctly identify the key issues which determine the selection of appropriate evaluation methodology. The Process or Outcome Debate This debate addresses whether the educator should demonstrate the provision of value directly through an assessment of the results of education in terms of enhanced performance, or inferentially through an assessment of the quality of the educational process. Outcome or impact evaluation, on the one hand, is concerned with measuring the results of a program and the extent to which it produces desired change. Ideally, an impact evaluation should be able to attribute change to the implementation of the program, while ruling out other possible factors which might have affected the change. This involves considering the many factors external 26

Hudzik & Wakeley, 1981, 369–375. Evaluation can be utilized to improve or adapt an ongoing program, or it can be used for accountability, certification or selection. The former is often referred to as a formative function, and the latter as the summative function. Examples of summative accountability categories include the cost effectiveness of a program referring to its efficiency, or its beneficial impact in relation to its costs; Grotelueschen, 79–80. See also Chinaphah 26–27. 27 Hudzik JK, Judicial Education Needs Assessment and Program Evaluation, Judicial Education Reference, Information and Technical Transfer Project (jeritt), 1991, (hereafter, Hudzik Needs and Evaluation 1991) 44. A number of commentators argue this is the ultimate value goal of evaluation. However, difficulties exist in establishing causal linkage, data access/collection, and need for pre/post measurement. This is also known as the “Kirkpatrick” approach; see Kirkpatrick DL (Ed), Evaluating Training Programs, Madison, Wis: American Society of Training and Development, 1975.

Educational Evaluation

203

to the actual program that can account for some or all of any noted unforeseen outcomes. In practice, however, many impact evaluations fail to consider how to distinguish these external influences from the actual program. Process evaluation, on the other hand, is concerned with the manner in which a project or program is implemented, especially as this regards any stated guidelines and design; it is primarily intended to pin-point problems or hindrances which can interfere with implementation of the program. The judicial educator must distinguish between these two different purposes for evaluation, and provide the means of measuring and demonstrating value for both learner and stakeholder; ultimately, this is done most directly by assessing impact or outcome on performance. Review of Evaluation Practice A review of the broad literature on educational evaluation reveals that practice usually dwells on formative, process-based evaluation in an effort to encourage use of findings for program improvement. For example, Knox argues that formative, process evaluation is the most common form of educational evaluation because convincing evidence about program impact (such as change in performance) is difficult to obtain, and it is usually assumed to be associated with evidence of satisfactoriness (such as participant satisfaction or knowledge acquisition). Thus, formative evaluation assumes that satisfactory process will lead inferentially to impact, while summative evaluation emphasizes documentation of the extent and type of impact that results.28 Other commentators see the assessment of outcome as the raison d’etre of evaluation. Cervero sees impact evaluation – assessing the application of learning through the quality of a participant’s resulting performance – as potentially the most important means of evaluation because it often deals with the long term goals of a continuing education program. This form of evaluation however can also be the most difficult.29 For Chinapah, the goal of the evaluation endeavour – the essential challenge for the evaluator – is to overcome the difficulties of impact evaluation.30 Green and Walsh endorse this view. They castigate the practice of continuing professional education at large for a “glaring weakness” in its failure to document the nature of its effects on 28 29 30

Knox, 2. Cervero RM, Effective Continuing Education for Professionals, San Francisco: Jossey-Bass, 1988, 144. Chinapah discusses the importance and difficulties of impact assessment at 29, and its attainment through the prior definition of tangible educational objectives at 33.

204

chapter 8

professional services.31 Indeed, they see impact evaluation as the imperative for continuing professional educators, and describe evidence of the impact of continuing education activities on proficiency, professional performance and service outcome as the “missing link” in continuing [medical] education.32 Certainly, there is at least a measure of consensus on the difficulties of impact evaluation.33 As Knox propounds: The scarcity of excellent impact evaluation reports for continuing education testifies to how difficult they are to conduct.34 There are a number of reasons for these difficulties, not least being the causal difficulty of isolating extraneous influences and persuasively linking cause and effect.35 There is also the difficulty of obtaining consensus on a few major desirable outcomes that can be readily assessed and whose results can be attributed to educational activities.36 Judicial Education In the domain of judicial education, these difficulties are no less acute. Hudzik agrees that while this form of evaluation is “often difficult if not impossible” to undertake: Ultimately, evaluation ought to concern itself with the question of outcome and impact: have conditions changed, and does the change represent an improvement or a deterioration of performance when set against our objectives?37

31

Green J and Walsh P, “Impact Evaluation in Continuing Medical Education – The Missing Link,” in Knox AB, “Assessing the Impact of Continuing Education,” New Directions in Continuing Education (No 7), San Francisco: Jossey-Bass, 1979, 81–87, 82. 32 Green & Walsh, 86. 33 Knox 118. 34 Knox, 6. 35 Chinapah and Miron, 29. Knox reports on growing evidence that continuing education can have an impact on practice. Guire and others (1964) established the importance of periodic instruction, assessment and reinforcement to produce a lasting change in performance. Parnes (1976) demonstrated abundant evidence that adults who participated in vocational continuing education experienced greater career success than adults with similar levels of education and age who did not; cited in Knox, 13–16. 36 Knox 4. 37 Hudzik, Needs and Evaluation, 1991, 37.

Educational Evaluation

205

These difficulties cause the judicial educator to fall back to process-based evaluation techniques or some combination of process and formative techniques in order to attain any measurement of the value of the educational endeavour. Pearson confirms these difficulties: It is extremely difficult to show a direct cause-and-effect relationship between the stimulus of a single judicial education activity and the response of a specific change in behavior [sic] attributable solely to that activity.38 Hudzik notes that goal divergence is a particular problem for public sector entities: In the public sector evaluations typically produce mixed evidence [sic] of impact against which the professional judgment and experienced decision makers will be set in determining ultimately whether the programming effort had value, and if that value sufficiently offsets its costs. The answer depends on which conflicting values or goals are given by the decision maker.39 There may be markedly different goals in the arena of judicial education between the perspectives of the state legislature and, for example, the chief justice. This divergence is perhaps best typified by competing priorities for speedy trial versus fair trial or, in effect, quantitative compared to qualitative goals. For the trial judge, sitting in the middle, the goal is more likely to be seen in terms of participation to the extent that any educational activity can provide immediate benefit in solving actual problems.40 Moreover, other more disparate goals will be held by litigants, the consumers of the justice service, or other stakeholders. To compound the challenge of educational evaluation, attainment of educational objectives relating to enhancing judicial competence may be very difficult to discern. These difficulties relate to the selection of performance 38

Pearson T, Adult Education Perspectives for Judicial Educators, jeaep (sji), 1992, 8.1–8.13, at 8.8: − Evaluation can measure cumulative effect, and claim a contributory role. This is described as a “good faith” effort to improve the judicial education program. 39 Hudzik, Needs and Evaluation, 1991, 38. 40 For empirical validation of this observation, see Catlin DW, “An Empiric Study of Judges’ Reasons for Participation in Continuing Professional Education,” The Justice System Journal, 1982, 7, 2, 236–256 discussed in Chapter 4.

206

chapter 8

indicators for the non-behavioural aspects of the judicial role, and to the reluctance of judges to be assessed through any means other than the formal appellate process.41 In relation to the difficulty which may exist to identify and link cause (program implementation) and effect (performance outcomes), Cervero argues that: While this may be true in a strictly scientific sense, the alternative of not collecting any data will not improve program development efforts at all. While this type of evaluation is not commonly done, it should be used when the situation permits it. This assertion is based on the assumption that some information is better than none, as long as the limitations of the data is recognized.42 Knox sees this difficulty of assessing the relationship between education and  action as providing “unique opportunities” for educational evaluators. He  argues that continuing education programs typically have multiple effects which can usually be assessed in an impact study: included are a personal sense of understanding or mastery and the adoption of changed practices, and broader organizational or economic benefits such as increased productivity.43 It is concluded that the ultimate purpose of any evaluation in the domain of judicial education, no less than elsewhere, is to assess the value of continuing education on the professional performance of judges and the systemic performance of the justice system. Practical as well as doctrinal difficulties,  however, frequently lead to a reliance on inferential measurements of the quality of the education process rather than its outcomes, with the result that qualitative assessments are frequently used to provide quantitative measurements. The challenge for judicial educators remains the development of a model of impact evaluation which selects appropriate performance indicators and viable means to measure their enhancement. How, then, should this be done? 41

42 43

Undertaking an evaluation based along the lines of a competency analysis discussed by Gold in Chapter 4, is fraught with practical as well as ideological difficulties. As Hudzik points out below, a behavioural consensus on what makes “a good judge” is likely to be difficult to obtain. Cervero, 145–146. Knox, 119.

Educational Evaluation

207

ii Methodology Criteria for Assessment It has been previously argued that the classic goal of professional education is to ensure the development of competencies or proficiencies that can be translated into professional performance.44 It is now argued that evaluation can be seen in Tylerian terms as the process of measuring the congruence between learning objectives and outcomes.45 The manner in which this measurement is carried out depends on what is being measured, the prior selection and definition of criteria for key performance goals and standards, and appropriate performance indicators. It follows that if the educational objectives can be measured directly against outcomes, rather than indirectly or inferentially, then there is a much greater likelihood that the evaluation will be deemed competent.46 Various Formulations There is a general consensus in the literature on the criteria for evaluation, although these criteria are formulated differently by various commentators. The classic formulation of evaluation criteria was made by Kirkpatrick, who organized four foci for evaluation – reaction, learning, behaviour and results.47 These criteria have been refined by Houle who identified the extent of participation, extent of learner satisfaction, accomplishment of a learning plan, and measurement of performance as the four major criteria for evaluation.48 44 45

46 47

48

See discussion in Chapters 6 and 7. Tyler RW, Basic Principles of Curriculum and Instruction, Chicago: University of Chicago Press, 1949, 106. The predetermined objectives approach was conceived by Tyler in 1932, and has been successively re-endorsed in the literature; see discussion of adult learning theory in Chapter 5. The Tylerian approach sees evaluation as “the process of determining to what extent the educational objectives are actually realized…since educational objectives are essentially changes in human beings, …then evaluation is the process for determining the degree to which these changes in behaviour are actually taking place.” (106). Brookfield, however, argues that this view of evaluation is “flawed” in its application to adult learning; Brookfield, 267–268. Chinapah and Miron, 33. Kirkpatrick DL, Evaluating Training Programs, Madison, Wis.: American Society of Training and Development, 1975. Kirkpartick’s hierarchy, which is widely adopted as a balanced and practical approach, emphasizes 4 levels of evaluation: reaction, learning, performance (transference of behaviour), and organisational /community impact (results). This model is useful in devaluing participant and organisational perceptions to focus on outcome and results. See Houle, 237–265, for a description of these criteria which include the extent of participation, extent of learner satisfaction, accomplishment of a learning plan and

208

chapter 8

Cervero endorses this general approach and recasts Houle’s assessment criteria into three frames of reference, being the results of formal education activities (program); the impact of learning on quality of practice (learning); and the level of performance of the entire profession (standards). Within this framework, Cervero developed a number of categories of evaluation organized around program design and implementation, learner participation, learner satisfaction, learner knowledge, skills and attitudes, application of learning from the program, and the impact of application of learning, which he described as “the holy grail” of evaluators.49 This formulation is similar to Hudzik’s program evaluation approach which comprises an amalgam of six criteria: effort, efficiency, reactions, learning, job-behaviour change and results.50 Although there is a consensus in the literature that the evaluation exercise is ultimately directed towards the attainment of Cervero’s “holy grail” – that is, the assessment of results or impact of learning on behaviour and performance – observation of practice reveals that subordinate criteria dominate the assessment process owing to the practical and doctrinal difficulties of assessing impact on judicial performance through direct means. Performance Indicators – The Need for Benchmarks of Proficiency It has already been argued that evaluation embodies the assessment of outcomes against objectives. To be meaningful, this assessment requires measurements to be made within a framework of standards defined in terms of behavioural proficiencies. In order to study the nature and extent of any educational impact, educators need to specify benchmarks against which this impact can be assessed: most frequently, educators appear to rely on expressions of participant satisfaction as a benchmark of impact. This practice is problematic, however, as there is mixed evidence of the association between satisfaction with the

49 50

measurement of performance. Recent studies disclaim the value of satisfaction measures, identifying a negative correlation between satisfaction and cognitive gain: experiments describing the “Dr Fox Effect” found that students positively correlated the cognitive scores with the level of content presented, also found that high-seduction presentations produced higher scores than low-seduction; and the cognitive scores were higher for students watching the high seduction low content film than for the low seduction high content film; Williams RG, & Ware JE, “Validity of Student Ratings under different Incentive Conditions: a further study of the Dr Fox Effect,” Journal of Educational Psychology, 1976, 14, 449–457, endorsed by Houle, 245–246. Cervero, 131–146. Hudzik, 1991, 49.

Educational Evaluation

209

program and change in performance.51 Because of the equivocal nature of the relationship between satisfaction and enhanced performance, Knox argues that the selection of performance indicators should, [D]eal directly with specific and achievable changes in performance that are important to the adult learner, are amenable to educational influence, and that can be readily documented.52 Some performance indicators are readily used for educational or proficiency evaluations, such as records of productivity. However clear-cut measures of effective performance are less available for some professional, managerial and highly technical positions, and are unsuitable to measure a range of learning gains or objectives where visible, quantitative outputs may not be readily apparent or available. Indeed, it becomes successively more difficult to link education and performance where the measurements relate to changes in knowledge, skills and attitudes respectively. Knox observes that the complexity of professional performance and the lack of quantifiable standards and measures of excellent performance make impact evaluation more difficult than in other occupational training.53 These difficulties are no less acute in the judicial arena. Indeed, they are compounded by impediments associated with the doctrine of independence which render many conventional measuring techniques inappropriate with judges. Brookfield notes that these difficulties of assessment are exacerbated and become “somewhat tortuous” when dealing with a host of highly interpretive, essentially intellectual, frequently discretionary political, social, moral and ethical questions which may arise.54 He argues that such difficulties – which are endemic in judicial practice – may be overcome by relying on indirect and inferential performance indicators, and by triangulating different methods in the assessment exercise. Notwithstanding these significant doctrinal and practical difficulties, the position remains that it is normatively not possible to evaluate in the absence of a framework of values. It therefore remains essential to design an evaluation framework for judicial education which incorporates an appropriate framework of behavioural benchmarks by which to assess the proficiency of performance.

51 52 53 54

Knox, 121; note particularly findings of the “Dr Fox effect” experiments, at note 48, above. Knox, 118. Knox, 12. Brookfield, 275.

210

chapter 8

Methodological Issues The design of any evaluation of judicial education is determined by the nature of the information required, its feasibility, and the resources available. Commentators agree that there can be, [Q]uite obviously, no single technique or method that can serve all of the varying roles and types of evaluation…[and evaluation design] must not always be confined to a single applied method.55 A range of methodologies or techniques are available for possible application in judicial education. These include experiment, correlation, surveys, client assessment, systematic expert judgment, clinical case-studies, and observation.56 Data can be gathered from a variety of sources including interviews, logs, observations, ratings, records, clinical exams, tests, expert opinion and hearsay. Houle argues that the selection of supplementary methodologies can be utilized to validate findings (at possibly considerable expense). These methodologies can include peer appraisal, complex self-assessment programs (such as professional specialization programs assessed by examination), or formal staff appraisal.57 In practice, it is observed that reliance on any single methodology may provide unreliable findings and is generally inappropriate.58 Qualitative versus Quantitative Similarly, the design of any evaluation is affected by the methodological debate surrounding whether quantitative or qualitative techniques and instruments should be used to collect data. While it may be acknowledged that this is an issue which, at least in the opinion of Grotelueschen, usually “generates more heat than light”,59 the outcome of this debate is influential in determining the design of the evaluation. 55 56 57 58

59

Chinapah and Miron, 41. See for example, Anderson SB and Ball S, The Profession and Practice of Program Evaluation, San Francisco: Jossey-Bass, 1978. Houle, 252–265. The validity and reliability of findings is often best assured through the use or “triangulation” of various methodologies: for example, the combination of interviews, client surveys, observation and expert judgment is likely to effectively test hypotheses and tentative conclusions. Grotelueschen, 122; Gotelueschen explains the difference in indicators on the basis that qualitative indicators emphasize holistic and tacit understanding, demonstrated by illustrations and case-studies; while quantitative indicators emphasize the rigourous analysis of objectively-measurable indicators of worth.

Educational Evaluation

211

Selection of quantitative or qualitative methodology is determined by the purpose of the evaluation.60 Process analysis, for example, normally involves qualitative assessments while impact analysis ideally requires quantitative measurements. Although trite, it can be observed that qualitative data is best for in-depth evaluation requirements, while quantitative data provides breadth to the issues under review.61 On the one hand, quantitative methodology is more appropriate for evaluations which provide accountability (to stakeholders and funding agents), where a need to demonstrate value to external parties may rely more heavily on objective measurements; on the other hand, qualitative methodology is more appropriate to measure the value of the learning experience relying on the learner’s own perceptual assessment. It follows that where educators are presented with the need to evaluate for a variety of purposes, and audiences, it will frequently become necessary to combine methodologies in the evaluation design. Chinapah observes that the real concerns of educational evaluation can become obliterated in this debate: Much of the methodological debate about educational evaluation centres on the importance given to “technical rationality” in the selection of evaluation approaches, methods and techniques… There has been a tendency to polarize evaluation approaches, methods and techniques into quantitative and qualitative ones. This polarization has greatly contributed to a narrow perception of the success or failure of given educational programs in that evaluation became either “output-orientated” or “process-orientated”.62 Most recently, educators have increasingly recognized the complementary value of qualitative methodologies in evaluation research. It is argued that this 60 The quantitative approach to educational evaluation is still the dominant paradigm in the theory of educational evaluation. It is concerned with reliability, objectivity of data, impact and outcomes, large samples and generalizations. It is the classic “scientific” methodology. Methods include surveys with closed questionnaires, and cognitive and affective tests. Qualitative evaluation is concerned with validity, utilizes subjective data, focuses on process, is interested in uniqueness, tends toward the anecdotal, and operates on case studies. Methods usually rely on detailed descriptions of people, events, and situations, attitudes, beliefs and observable behaviours using a range of interview and observation techniques. 61 Cook T & Reichardt C (Eds), Qualitative and Quantitative Methods in Evaluation Research, Beverley Hills, Calif: Sage, 1979, 10–11. 62 Chinapah and Miron, 23.

212

chapter 8

has led to a shift away from total reliance on the traditional “scientific” quantitative approach, towards an integration of both approaches as an improved means of validating findings. For this reason, it is this writer’s practice to design evaluation programs and survey instruments, in particular, to combine both quantitative and qualitative methodology. This serves a dual research purpose: first, to cover the field of data to be collected, providing alternative means for respondents to supply that data in the most meaningful way; and, second, to provide a means to cross-validate and to interpret data supplied. A simple example of this is where respondents have been asked to rate responses on a quantitative scale, and they are then asked to describe and comment in their own words on their reasons for these preferences. This qualitative data can be useful in explaining, amplifying and qualifying the quantitative data, and vice versa. Ultimately, it is the task of the educational designer to devise an evaluation methodology which is appropriate to each situation, in terms of providing the most valid and reliable data upon which well-informed assessments can be made. For these reasons, the requirements of validity and reliability generally militate in favour of an integration of both qualitative and quantitative techniques into any evaluation strategy. In practice, however, the viability and range of available methodologies will be affected by a variety of constraints within the educational environment, some of which are unique to particular professionals, as is the case in judicial education. Constraints There are a number of constraints that affect the nature of the evaluation process. These constraints may be both obvious and concealed. Among the most obvious are limitations on resources such as cost, time and expertise. Constraints will also frequently include qualified institutional support, goal ambiguity and multiplicity of purpose, and fear of results. Technical constraints such as complexity, research design problems, lack of data and limited experience and expertise also play influential roles in confining the scope of the evaluation and the methodologies employed.63 These constraints require educational designers to ensure the viability of any evaluation methodology in terms of both available resources and shared objectives. It has already been seen that any evaluation methodology which is devised from a conventional competency analysis to measure the impact of training from an assessment of the congruence between what is required of “a good judge” and actual performance indicators will confront a number of practical 63 Hudzik, Needs and Evaluation, 1991, 44–47.

Educational Evaluation

213

difficulties. Even if all of the cognitive and affective aspects of good judging could somehow be meaningfully identified in behavioural performance indicators, there is no indication of any consensus within any judiciary operating within the common law system on what these would be and how they would be measured. The most significant constraint facing evaluators of judicial education is however ideological. This arises from the doctrine of judicial independence. The existence of this constraint is the least often recognized or appreciated. Put at its most simple, it is frequently argued within the judiciary that the doctrine of independence renders it improper and inappropriate to measure judicial performance in any way other than through the formalized appellate process. Without attempting to debate the merit of these constraints at this point, it is clear that they combine in their effect to obstruct the application of conventional evaluation methodology to any judge-led education process. It is equally clear that as a consequence, judicial educators have tended to abdicate impact assessment altogether, and rely instead on qualitative assessments of the education process in the hope that some improvement must flow through to the level of performance.64 This response is however far from satisfactory. Rather than abdicating the endeavour, educators should be both advocating the benefits of demonstrating value in terms of social accountability which have been selected by the judiciary itself, and confronting the challenge of developing an appropriate evaluation model for judicial education which can operate within these doctrinal constraints. iii Models There is a marked discrepancy between theoretical models of educational evaluation and practice. This proposition is supported by numerous commentators. Brookfield, for example, observes that across the expanse of educational evaluation,

64

See Hudzik’s analysis of the practice of evaluation in judicial education, below; and Hudzik, JK, Issues and Trends in Judicial Education, Michigan State University: Judicial Education Reference, Information and Technical Transfer Project (jeritt), 1991, (hereafter: Hudzik, Issues and Trends, 1991), 135.

214

chapter 8

The need for evaluation…[is] deemed important and necessary but [is] for whatever reasons, rarely implemented.65 Chinapah agrees with Brookfield, and argues that although there are increasingly concerted efforts among both policy-makers and program administrators to institutionalize educational evaluation, “the support is minimal at present.”66 Chinapah remarks that there is a need for theorists, methodologists and empiricists to establish closer linkage between the theory and practices of educational evaluation: [T]here is a challenge ahead, namely that of facing the practitioners in their day-to-day “real world” before advocating any recipe for educational evaluation.67 There are several reasons for this inconsistency. Partly, this is due to the need for trade-offs in real life between data collection research requirements and practical constraints: between quality and utility on the one hand, and cost and feasibility on the other. Partly, however, the reality is that some forms of evaluation are undertaken without methodological rigour, and rely entirely on the subjective, unverifiable opinions of one or a very few individuals. All evaluations are inescapably subjective in part because values, preconceived notions and existing preferences cannot be screened out entirely.68 In addition, evaluators are likely to err on the side of fulsomeness rather than understatement, to avoid offending paying clients and get further work. As Brookfield points out, Evaluators therefore are under many pressures to suspend rigourous, clinical scrutiny when they examine program accomplishments.69 To test the appropriateness of this critique of educational practice, it is necessary to survey the range of evaluation models available in order to assess the adequacy of prevailing evaluation practice, within which context the evaluation practice of judicial education can then in turn be assessed.

65 Brookfield, note 3 above. 66 Chinapah and Miron, 17; and Brookfield, 261. 67 Chinapah and Miron, 18. 68 Hudzik, Needs and Evaluation, 1991, 37. 69 Brookfield, 265.

Educational Evaluation

215

Classic Models Commentators have classified a number of educational evaluation models.70 Each model reveals features which render it more or less suitable for selection for particular purposes. The distinctive features and characteristics of each of these models should be specifically considered when planning an evaluation strategy; they exemplify Deshler’s observation that: It is now widely recognized that appropriate selection of models to match requirements of particular situations produces the evaluation results that are most likely to be useful for specific purposes. It is no longer acceptable for practitioners or evaluators to apply to everything the one model with which they are familiar.71 There can be no single evaluation model which may be ideal for continuing judicial education; however, the appropriate model should be selected deliberately and with informed method in any situation. It is also observed that the reality of practice is frequently at odds with the rhetoric of academe: practical difficulties such as pressures of time, money and expediency militate against conducting systematic evaluations. Adult Education Models Despite the diverse nature of educational evaluation, particular practices and conventions have emerged within the domain of adult education which are discernible. Traditionally, adult education programs have been evaluated according to criteria chosen by those funding the evaluations, rather than by those participating. An analysis of the literature of adult education has lead Brookfield, for example, to endorse the proposition that if one had to assign adult educators 70

71

Ulschak identifies a number of evaluation methods and techniques which include nominal group, delphi, critical incident, competency models and exit interviews among others, the distinctive features of which are tabulated at pages 96–98; Ulschak F, Human Resource Development: The Theory and Practice of Need Assessment, Reston: Virginia, 1983. House classifies eight models by reference to their major audiences, assumptions, methodologies and outcomes. These are classified as the systems analysis approach, behavioural objectivity, decision-making, goal-free, art criticism, professional review and legal, and the case-study approachs. House ER, Evaluating with Validity, Beverley Hills, Calif: Sage, 1980; and House ER, “Assumptions Underlying Evaluation Models,” Educational Researcher, 1978, 7, 3, 4–12. Deshler D, “Evaluation in Program Development,” New Directions in Continuing Education, 1984, 12.

216

chapter 8

to some school of evaluation thought, then it would have to be one identified with goal attainment.72 Brookfield argues that adult educators have adopted the Tylerian school-based model of evaluation that operates on the assessment of previously specified performance behaviours as criteria and indicators, using tests, grades, measurements and judgments of achievement. This model has been inherited from a view of education based on schooling and relies on the pedagogic methodology of teaching. Brookfield argues that this is inappropriate, and postulates two possible alternatives: 1.

2.

Participatory Evaluation Model – This participatory model is suited to the needs and dynamics of the adult education process, and provides an evaluative framework that is grounded in and derived from some central features of adult learning. Brookfield describes this approach as compelling and attractive.73 He argues that participation should be recognized as the key to accuracy of data, prompt learning, improved communication, and increased commitment and support for programs. Such a model would allow adults learners to assume control of evaluation of their learning. It would be based on premises of freedom and democracy (with accountability vesting in participants), individualized and varied criteria, and subjective data collection. Andragogy and Collaborative Model – An alternative to the participatory  approach to evaluation has been devised by the Nottingham Andragogy Group. This model assesses effective facilitation – as the rationale of adult education – as the extent to which it enables participants to evolve from passive recipients of transmitted knowledge to take responsibility for controlling their own learning and extending their boundaries of knowledge and experience.74

The approaches of both Brookfield and the Nottingham Andragogy Group are forceful in recasting the purpose of adult educational evaluation, and are radical in their implications. Most simply, these “radical” approaches to educational evaluation assert that participants must prescribe their own criteria for 72 73

Brookfield, 262. Brookfield, 276–277. An alternative model for educational evaluation can be seen in terms of examining how those involved perceive and understand the process and themselves in relation to it. 74 Nottingham Andragogy Group, Towards a Developmental Theory of Andragogy, Nottingham: University of Nottingham, Department of Adult Education, 1983; endorsed in Brookfield, 280.

Educational Evaluation

217

evaluation if learning is to be meaningful. Adoption of either radical model, which refocuses criteria on the participant’s notions of relevance, will require a corresponding shift of methodology from the traditional quantitative emphasis to a more qualitative approach. While untested, these radical models appear logical and humanistic, and consistently embrace the distinctive imperative for self direction which characterizes the andragogical approach to continuing education. The participatory approach to educational evaluation is radical because it restores control of – and responsibility for – the formalized learning process to the adult learner. It is also compelling because it realigns the rationale of educational evaluation from a judgmental metaphor, concerned predominantly with providing external justification, to a private self-critique where the participants become the actors rather than the targets in taking responsibility to any learning outcome. The approach transfers responsibility for assessing learning to the shoulders of participants, who should also determine or at least participate in discerning and subscribing to defining objectives and standards, selecting indicators and exercising judgments about quality and value. For this transfer of responsibility to be effective, however, it is essential that any such self critique is facilitated by experts to ensure that it is a rigourous process embodying meaningful criteria. It is concluded that these radical models are better aligned with the attainment of the ultimate objective of continuing education, that is, the qualitative learning of professionals. Despite being denuded of the classic, scientific respectability of the quantitative approach, it is appropriate to develop an evaluation process for judicial education which embodies these participatory qualitative elements when evaluating for the purpose of the learner. As other purposes, however, usually co-exist to provide accountability to external stakeholders, an extended quantitative methodology is also usually required in the evaluation process. Accordingly, an endorsement of this radical learner-based approach to evaluation alone is not sufficient. iv

Practice of Judicial Education

It has already been argued that the reality of educational evaluation practice is often far from the theoretical. This discrepancy is also characteristic of practice in judicial education. Hudzik, for example, observes from an analysis of judicial education that “the usual level of evaluation systematically undertaken is minimal.”75 This assessment is validated from a study of prevailing 75 Hudzik, Issues and Trends, 1991, 132 and 135.

218

chapter 8

practice which also postulates that doctrinal constraints relating to the nonmeasurement of judicial performance frequently combine with the other general constraints to render the evaluation of judicial education to be inadequate, lacking in methodological rigour, inappropriate and of limited utility. United States “Empirical” Participant Reaction Model In the arena of continuing judicial education there is one prevailing approach to evaluation, which has been described by Hudzik as the “empirical” model. This model of practice consistently relies on participant reaction combined with some notional cost/efficiency assessment. No attempt is made to measure either learning or impact on performance. In the decade between 1981 and 1991, Hudzik undertook and documented the only research available on the practices of evaluation undertaken by continuing judicial educators throughout the United States. He found that all respondents measured the reactions of participants in education programs. Some educators asked participants whether they thought various presentations added to their knowledge, and others asked “what is the likelihood of you implementing changes in your court as a result of this program?” A few used a technique of action planning, which requested participants to describe any program-suggested actions that they planned on return to court, with followup on how they had done. However, he found that none took any steps to measure the results of those programs or, more directly, learning or job behaviour change. Most courts do not usually even attempt to measure learning or knowledge gain, to determine if participants change their behaviour on the job, and if the changes improve their performance: [It is] to no great surprise the vast majority of both state and national respondents report either never or only occasionally employing the other evaluation methods (ie [sic] impact on participants and impact on courts). We suspect that respondents who indicate that they occasionally use these methods are, for the most part, collecting anecdotal feedback data as opposed to rigourous and systematic evaluative data.76

76 Hudzik, Issues and Trends, 1991, 135; see also Hudzik JK & Wakeley JH, “Evaluating Court Training Programs,” Judicature, 1981, 64, 8, 369–375, 371.

Educational Evaluation

219

His conclusions were disparaging: In sum, the usual level of evaluation undertaken systematically by the various organizations is minimal.77 The nature and characteristics of this empiric model accord with the writer’s observations of evaluation practice in the United States and, to some extent, also in Australia. British Process-based Approach British practice appears at first glance to adopt a similar reaction-based approach to the United States. However on closer appraisal, it is observed that the principal educative agency, the Judicial Studies Board, adopts a markedly less formalized approach to the evaluation process. The Board reports that “the efficacy of judicial studies cannot be measured directly.”78 It relies primarily on monitoring the process of education through participant feedback, and offers no apology for avoiding any assessment of outcome: The Board cannot take hold of a judge and make him better. It would be unrealistic and impertinent to try. This is a task for the judge himself, with such help as we can give…the quality of the hearing depends in the last resort upon the personal qualities and attainments of the judge himself. But we believe that judicial training can help in this respect as well, elusive and delicate as the problem undoubtedly is.79 The British approach abdicating any suggestion of impact evaluation warrants comment. Clearly, the Board places considerable importance on avoiding any formalized assessment of judicial competence or performance. This approach is best understood in the light of the doctrinal imperative to preserve judicial independence, which the Board preserves in both appearance as well as reality. In particular, the approach taken by the Board draws a clear boundary between assessing education and assessing the results of that education on judicial performance. Instead, the Board measures the value of its educational endeavour through indirect and inferential means:

77 78 79

Hudzik JK, The Continuing Education of Judges and Court Personnel, Lansing, Michigan: Judicial Education Network, 1989, 12–13. Report of the Judicial Studies Board 1983–1987, London: hmso, 1988, 4. Report of the Judicial Studies Board 1983–1987, 21.

220

chapter 8

Putting the task of the Board at its lowest, and stating the equation crudely in terms of money alone, the Board would not have to show more than the prevention of a modest handful of mistakes amongst the many thousands of hearings in the Crown Court every year, to demonstrate that the Board has more than paid for itself.80 Perhaps as a consequence of the circumlocution of its approach, the Board does not provide any means to measure the prevention of mistakes, however inferential, nor does it seek to offer any evidence to indicate that such prevention has or is even likely to occurred. Evidently, the issue of educational evaluation is as problematic for the British judiciary as it is for its American counterparts. New South Wales’ Participant/Client Appraisal The approach adopted in New South Wales is an adaption of the classic Tylerian and Kirkpatrick models. All educational activities conducted by the Judicial Commission are subject to formalized needs assessment and evaluation processes. Needs are identified using compound methodologies including interviews (both within and beyond the judiciary), observation, surveys and analysis of courts’ management data. Educational objectives are then defined to meet these needs. Programs are subjected to both formative and summative assessment focusing primarily on participant reaction, together with appraisal by instructors, education staff and education committee. Participant reactions are scored on a numerical index which creates relativities on an aggregated scale of participant satisfaction. This scoring provides a consistent – albeit non-objective – measure of satisfaction rather than learning. Because it is recognized that satisfaction need not result in effective learning, this measure is correlated with the appraisal of the courts’ education committees for purposes of future planning. This evaluation effort does not extend to making any direct assessment of the impact of education on judicial performance, at the present time. Efforts are, however, made to triangulate indications of positive impact through regular consulting with professional and client representatives in a continual proc­ ess of assessing educational needs and endeavours as they relate to judicial performance and the justice service. 80

Report of the Judicial Studies Board 1983–1987, 20–24. This inferential method of cost/benefit analysis to justify judicial education is also adopted by Riches AL, “Judicial Education – A Look at the Overseas Experience,” Australian Law Journal, 1990, 64, 189–202, 192; and Wood J, “The Prospects For A National Judicial Orientation Programme In Australia,” Journal of Judicial Administration, 1993, 3, 75–95.

Educational Evaluation

221

Michigan’s Action-Planning Approach A more elaborate approach to assessing the effects of judicial education has been developed by the Michigan Judicial Institute specifically to improve the measurement of learning and behaviour change. This approach creates an index of intended behaviour change to measure actual change, using a selfreporting procedure. The model operates at three levels by measuring reactions (immediately and 3 months later), learning (by examination before and 3 months later) and behaviour change (participants state behaviour change goals immediately on completion which, three months later, they are asked to reconcile with actual behaviour).81 Proponents argue that this approach provides useful additional data on the effectiveness of program activities, and provides on-going reinforcement to the learning experience.82 jeritt Model of Intended Behavioural Change83 Hudzik argues that the prevailing practice of evaluating judicial education outlined above is inadequate. He argues that a number of specific difficulties and constraints impede the application of conventional evaluation methodology to judicial education. These relate to fundamental philosophical barriers arising from the doctrine of judicial independence, resource constraints and the practical difficulties of defining goals in meaningful concrete terms and of selecting performance indicators on which there is a consensus. The ultimate value of training in criminal justice is measurable only against a very elusive and not concretely defined set of objectives – “securing law and order” [sic], “providing justice that is swift and sure”, and “ensuring that justice is indeed just”.84 It is implicit in this observation that the application of conventional evaluation methodology involving an assessment of competence based on personal performance indicators may provide little if any illumination on the issue of the effectiveness of judicial education.

81 Hudzik and Wakeley, 374. 82 Hudzik, Needs and Evaluation, 1991, 56–57. 83 jeritt is the acronym for “Judicial Education Research and Information Technology Transfer” project which sponsored Hudzik’s research, and acts as a publishing network within the judicial education community in the United States. 84 Hudzik and Wakeley, 371.

222

chapter 8

To overcome these difficulties, Hudzik postulates the jeritt model which is designed to take account of the peculiar difficulties and constraints which beset the judicial evaluator in practice. This model combines approaches to obtain as much objective data as possible within the constraints that operate within the judicial context. He argues that of the two broad approaches to evaluation – program monitoring and program-training – the latter is better suited to substantive evaluation of judicial education. The jeritt model modifies the Kirkpatrick approach for the judicial setting into three tiers of assessment: participant feedback, impact on participants and impact on courts.85 While evaluation ought to concern itself ultimately with the question of outcome and impact – and the assessment of the impact of educational programs on overall court performance is “laudable” – Hudzik observes that impact evaluation can be both very difficult and expensive: [It is] wholly unrealistic to expect that judicial education organizations will be able to conduct such evaluation systematically and directly… about the closest most judicial educators will come to measuring impact on court performance is through self assessment of intended and actual job behaviour change, which can be supplemented with anecdotal opinion data.86 It is also difficult to establish consensus about the specific goals of judicial education, and almost impossible to measure behavioural achievement of those goals: About the only way to do a results evaluation is to obtain the opinions of a powerful person or group of powerful people who have management or control responsibility for the organization.87 Because of the technical difficulties associated with objectively and systematically evaluating learning, behavioural change and results, Hudzik proposes 85 Hudzik, Needs and Evaluation, 1991, 48; see also Hudzik, Issues and Trends, 1991, 133. The jeritt approach encompasses assessment of reactions, learning, behaviour change and results. Reactions are essentially subjective and comparatively easily measured. Learning and behaviour change are more difficult and costly to measure. Results are very difficult to measure because assessment must be undertaken not just within the participant’s work environment but also of the court as an organization, whether training is responsible for any changes. 86 Hudzik, Needs and Evaluation, 1991, 59. 87 Hudzik and Wakeley, 1981, 373.

Educational Evaluation

223

“surrogate” measures for these which, although weakening validity, do give some means for measuring program-related effects. He argues that at a minimum all programs should be assessed for effort, efficiency and intentions to change job behaviour. The approach provides a means of measuring intentions to change job behaviours: About the closest most, if not all, judicial educators will come to measuring impact on court performance is through some of the information provided by participants in a questionnaire [self reports of individual behavioral changes (if any)]…[which] could be supplemented with anecdotal opinion data solicited from key judicial system personnel as to whether they think [sic] court-system performance has improved, and whether they believe [sic] the educational program had anything to do with the improvement.88 v Critique It has been seen that the actual practice of evaluation in judicial education discloses marked discrepancies with theoretical models. Prevailing practice is characterised by reliance on subjective, usually formative, participant-reaction technique, and an almost total abandonment of any meaningful attempt to assess outcomes in terms of changes in judicial performance. This practice concentrates on participant-reaction process evaluation at the expense of providing any direct assessment of outcomes for the purposes of external accountability and, as such, is deficient. Any critique of practice must acknowledge that the jeritt model is unique in recognizing the practical constraints which limit the application of theoretical models to continuing judicial education and is the most appropriate and useful model available. The jeritt model recognizes, for example, that external assessment is anathema to the judiciary and is, for fundamental doctrinal reasons, inappropriate in judicial education. Similarly, it recognizes the unsuitability of otherwise conventional evaluation mechanisms such as pre/post testing and the use of control groups. The importance of these features has not previously been recognized. In addition, it incorporates a participatory methodology which relies on self-reporting by participants and is compatible with the principles of adult education and professional development, and it restores responsibility and control of the measurement of the learning process to the 88 Hudzik, Needs and Evaluation, 1991, 59.

224

chapter 8

participants, thereby encouraging self-direction and providing reinforcement and a means of action planning. On this basis, it is a realistic and progressive approach to evaluating judicial education. The model does, however, have certain limitations: • The model does not offer any means of objectively assessing impact and, to this extent, is deficient of the ideal. It advocates the theoretical importance of impact assessment – in this instance, judges’ learning and its outcomes – but does not formulate any means of doing so in view of the practical difficulties. Instead, it adopts a subjective mechanism of measuring intentions which hinges on participant perception – on this occasion exchanging perception of benefit for perception of application. • The model does not set target standards for evaluation: it constructs an index of intention, but does not provide any criteria with which to monitor that index or to rate the nature or quality of the intentions being measured. • Validation of assessment procedure is difficult. The assessment procedure selected in the model reverts from visible external behaviour or performance to internal intention. This renders any rigourous external validation of assessment impossible, and thereby leaves the process dependent on participants’ judgment rather than any professional or community appraisal. Ultimately, it may be naive to expect such a procedure to sustain credibility in the face of consistent scepticism. • The model relies on the mechanism of self-reporting which, in practice, is vulnerable to the continuing commitment of participants to remain involved and motivated for protracted periods following the program. • It demands significantly greater resources to service the monitoring procedures of any assessment. On balance, the jeritt model incorporates important new features which warrant trial and evaluation in turn. However, the model does not go far enough in providing meaningful assessments of outcome for those who ultimately fund the program – be they within the community, the justice system itself, or the executive branch of government. The need to demonstrate value, and thereby to provide accountability, is an imperative of evaluation.89 Ultimately, the education program which can 89

See, for example, Jones P (Ed), Evaluating Training, Minneapolis, mn: Lakewood Publications, 1989. This monograph extracts selected articles from Training Magazine, many of which emphasize the need to demonstrate worth for survival, and outline a

Educational Evaluation

225

demonstrate value survives; the more discernible that value, the less external intervention is likely. Thus objective outcomes from the education process are the most persuasive in providing accountability. To this extent, the jeritt model remains incomplete. This study supports Hudzik in his assessment that current practices in evaluating judicial education are minimal. Indeed, these practices are inadequate and inappropriate. There is a need to develop a range of evaluation models to accommodate the various types of evaluation which may be required, within a framework which incorporates the principles of adult education and professional development, generally, and the organisational and situational constraints of the judiciary, specifically. The jeritt approach is the most responsive and sophisticated attempt yet to develop an evaluation model for continuing judicial education. However, this model remains incomplete to the extent that it requires the addition of stronger mechanisms to visibly demonstrate impact and value to external funding bodies. The challenge which remains for judicial educators is, therefore, to develop a distinctive evaluation model which can provide both value to judicial learners and accountability to external stakeholders without infringing judicial independence. Judicial Systemic Performance Model There is a need to develop a consummate, distinctive model of evaluation for judicial education which can overcome the deficiencies of existing practice. This model should assess both process and outcome in order to meet the two respective purposes of evaluation, that is for the learner and for those other parties with a stake in the process. In addition, this model must overcome the difficulty of evaluating judicial education, being the problem of identifying appropriate criteria and indicators to measure judicial performance in a meaningful way without infringing judicial independence. The doctrinal significance of judicial independence has a fundamental impact on the selection and modification of any model of education evaluation for judges. The constraints which this doctrine imposes should not be under-estimated, as is evidenced by the lengths to which the British approach circumlocutes the problem. However, it is argued that the British approach of abrogating any direct assessment of results is equally problematic for educators concerned with ensuring educational effectiveness. variety of management and accounting techniques for doing so. This approach to the training function is typical of the private sector as distinct from the public sector or academe.

226

chapter 8

While judicial evaluation should ideally measure results, it has been seen that specific difficulties militate against measuring results in terms of judicial performance directly. Several models attempt to overcome these difficulties by measuring results through utilization of surrogate criteria or indicators of performance. These indicators reflect the intention to improve performance, and the clients’ perceptions of improved performance. Although inferential, these indicators are capable of contributing some potentially useful measurements for purposes of triangulation. These measurements are however limited in their validity and utility. It is now postulated that a distinctive evaluation model for judicial education should integrate methodologies which can assess appropriate criteria of impact. Such criteria should be objectively recognizable and quantitative (since qualitative indicators are difficult to measure precisely or with any replicability); they should measure outcome in terms of judicial service; they should be recognizable and credible both to the judiciary and its stakeholders; and they should operate within the constraints of the doctrine of judicial independence by measuring systemic rather than individual performance. Criteria conforming with these characteristics is already available within the judicial management and administration system. These criteria include, among other possible indicators, the following: – trial disposal rates and through-put times (which measure the passage of time for particular proceedings and, thereby, the efficiency of judicial service); – reversal rates and appeal outcomes (which measure an incident of judicial mistake at the level of the trial bench); and – complaint rates (which measure an incident of perceived satisfaction by users of the justice system). Using these criteria, it is possible to construct a valid and meaningful evaluation mechanism to measure the value of judicial education in terms of its costs and its benefits. This mechanism would integrate objective, quantifiable measurements of outcome in terms of enhanced judicial performance (for purposes of accountability), with the prevailing practice of qualitatively assessing the education process (for purposes of learning). It is the goal of evaluation to demonstrate value through identifying causal relationships between educational intervention and enhanced performance outcomes. It should be acknowledged that the assessment of judicial competence and performance is an immensely complex task. In addition, real methodological difficulties exist in practice in isolating the causality of education

Educational Evaluation

227

and training on any identifiable improvement in performance. It is often difficult if not impossible to eliminate extraneous influences on this relationship: outcomes may have a number of causes. However, this does not impair the validity of evaluative indicators; a lack of exhaustive causality does not vitiate effectiveness, it will only qualify its exclusivity. In order to provide the accountability required, evaluation need only demonstrate that judicial education has contributed to desired performance outcomes. The visibility of this endeavour itself provides positive evidence of the judiciary’s concern to continually improve performance and the quality of the justice service. It is essential to assess the value of judicial education. Evaluation measures the quality of the learning process for the individual judge. Evaluation also provides the means to demonstrate the worth of the educational endeavour for the judiciary as a profession. Deficiencies exist in the prevailing practice of evaluating judicial education which give rise to the need for educators to formalize techniques of evaluating the impact of judicial education, both for the purpose of promoting effective learning and as a means of demonstrating the development of competence flowing from the education endeavour. To rectify these deficiencies, this study postulates a Judicial Systemic Performance model which provides educators with the means to assess and demonstrate the attainment of professional competence without infringing judicial independence. It is still too early to assess the value of continuing judicial education in common law systems. If preliminary indications from the United States in particular can serve as any guide, the very existence of a formalized process of continuing education provides a visible and appropriate means of accountability to the community and raises the standing of the judiciary. The ultimate challenge of evaluation however remains to ensure that continuing education does actually contribute to enhancing the quality of justice.

chapter 9

Conclusions The study of judicial education provides insights on new means of enhancing the quality of justice within the common law system of judging. Continuing education is integral to the ongoing professionalization of the judiciary, and provides both a formalized means to enhance the performance and professional competence of judges, and a visible means of accountability which consolidates independence. i

Summing Up

It has been seen that judicial learning embodies features which, taken in conjunction with the imperative to preserve independence, give rise to the need for a distinctive approach to any formalized process of continuing education. Three principle aspects of this process have been explored: need, educational considerations in meeting need, and effective program delivery. Part A of this study has examined the need for judicial education philosophically and in terms of its recognition within the judiciary itself. Recognition of need has provoked a vigorous debate among judges throughout the common law world during the past thirty years. Most recently, a consensus has emerged which recognizes both the need for and the benefits of continuing education. These benefits include enhancing the quality of justice through expediting orientation to the bench, assisting judges stay up to date, preventing avoidable judicial error, refreshing the judicial mind and providing an appropriate means for critical self-reflection. The need for judicial education is determined in significant part by the proc­ ess of judicial selection. The criteria and procedure of judicial selection set the threshold of entry to the judiciary and illuminate what is required of a good judge in terms of the qualities of professional competence. The importance of the selection process on judicial competence is illustrated in the approaches adopted in different jurisdictions. In the United States, on the one hand, a highly codified, humanistic approach to selection criteria operates within an elective process to permit the appointment of nonpractising and academic lawyers. In Britain and Australia, on the other hand, selection is an informal process based on forensic criteria which traditionally favours trial advocates. These differing approaches give rise to different roles being assigned to judicial education which are already apparent. In the United © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279261_010

Conclusions

229

States, for example, judicial education focuses predominantly on substantive aspects of law, and acquires some of the characteristics of a clinical program of a university law school; whereas in Canada and Australia, education is less concerned with imparting substantive law and more concerned with developing the skills and disposition of judging. Empirical analysis of the nature of the need for judicial education has revealed that there are distinctive reasons for judges’ participation in continuing education which render the development of competence a reward unto itself. This pursuit of competence not only epitomizes the process of professionalization of the judiciary, but also has particular implications for educators of judges as distinct from other professional educators. More recent findings extend this work by identifying additional characteristics which affect the perception of need and thereby participation in continuing judicial education. These characteristics are prior education, position and situation. Application of these findings provides a conceptual means to define the nature of the need for judicial education in terms of content, level of application and manner of delivery; and are useful in meeting the needs for judicial education from a curricular perspective. The study then explored the educational means available to meet these needs. Part B examined the application of educational theory and practice to what is known of judges as learners. It has been seen that adult and professional education provide a range of insights on the process of judicial learning, and should be used as the foundations for endeavour. Generally speaking, humanist theory, behaviourism and developmental theory each provide useful explanations of the process of adult learning. Adult learning is characterized by its autonomy, selfdirection, preference to build on personal experience, the need to perceive relevance through immediacy of application, and its problem-orientation. Within this understanding of the process of adult learning, any paradigm of formalized adult education should be seen, primarily, as a process of facilitation based on self-directed learning rather than on an authoritarian model of teaching. Judicial learning is, however, a particular process in educational terms. The learning needs and practices of judges are distinctive in a variety of respects. Judges possess unusually high levels of pre-existing professional competence, they are rigorously autonomous, they have an intensely short-term problemorientation, and they are motivated to pursue competence for its own sake rather than for promotion or material gain. Judges also exhibit characteristics, styles and practices as learners which arise from the process and criteria of judicial selection, the formative nature of the judicial role, and the environment surrounding judicial office; in addition, there is emerging evidence to suggest that judges as a profession utilize preferred learning styles and practices developed over the course of their careers.

230

chapter 9

By integrating what is known of the distinctive features of judicial learning, with the application of adult and professional educational theory, it has been argued that the mission of continuing judicial education should extend beyond conventional notions of technical competence to embrace professional excellence or artistry. This gives rise to the formulation of a Model of Continuing Judicial Learning to focus on the development of the particular skills and disposition of judging, and to promote the capacity for rigourous self-critique. In this sense, the study poses two answers to the classic nature/nurture debate as it applies to judges: first, good judges are made rather than ordained by fate with judicial talent; second, however, they make themselves through learning rather than being taught. An assessment of how to develop and conduct an effective program of continuing judicial education was undertaken in Part C. Two fundamental propositions were advanced: first, it was observed that the prevailing practice of judicial education is rarely managed as a policy-based process and consequently provides only limited developmental outcomes. This practice tends to be ad hoc, eclectic, narrow, and lacking curricular organization. A Cycle of Judicial Education Practice was proposed to assist educators to remedy these deficiencies by addressing formative policy issues with a view to attaining the goals of judicial education more effectively. Second, there is a need to extend the existing practice of evaluation to assess the impact of judicial education. Evaluation is essential to judicial education because it measures the quality of the learning process for the individual judge, and assesses the effectiveness of educational endeavour in terms of its impact on judicial performance. Moreover, evaluation provides a means of accountability by demonstrating the judiciary’s concern for the development of competence. Finally, it was observed that the prevailing practice of evaluation is generally inadequate and of limited utility. These deficiencies are caused largely by a failure to develop an appropriate evaluation model which can provide meaningful measurements of value within the constraints imposed by the doctrine of judicial independence. To rectify these deficiencies, the study proposes a Judicial Systemic Performance Model, which uses systemic rather than personal indicators of judicial performance to supplement existing practice. ii

The Challenge Ahead

The introduction of continuing education to judges throughout the common law world has been both recent and rapid, and has brought with it changes and challenges to judicial policy-makers and educators alike.

Conclusions

231

The recent recognition of the need for continuing education by the judiciary itself marks the end of the beginning in terms of the introduction of continuing judicial education, and opens the way to address the new challenge of continuing professional development for the judiciary. In essence, this challenge is to consolidate an approach to judicial education which builds on doctrinal imperative and educational principle to focus on the particular learning needs and practices of judges. In addition to facilitating self-directed learning and rigourous self-critique, this approach should promote the art of judging and explore the still largely uncharted domain beyond the boundaries of technical competence. The success of this endeavour will be found in continuing enhancements to the quality of justice. How the judiciary and educators collaborate to embrace this challenge, and what useful lessons may be found within the experience of the civil law tradition of judging, remain to be seen.

Appendices

Appendix 1.1 “Judges go back to school” cartoon. Source: Sydney Telegraph, 11 February 1993.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279261_011

234

Appendix 1.2 “Sexist Judges Must go: Evatt”. Source: Newsstand poster headline, The Australian. 10 June 1993.

Appendices

235

Appendices

Appendix 7.1 Judicial Commission of New South Wales. CONTINUING JUDICIAL EDUCATION POLICY Pursuant to s 9 (1) of the Judicial Officers Act 1986 the Judicial Commission may organise and supervise an appropriate scheme for the continuing education and training of judicial officers. The purpose of this scheme of continuing judicial education is to assist judicial officers in the performance of their duties by enhancing professional expertise, facilitating development of judicial knowledge and skill, and promoting the pursuit of juristic excellence.

Services The Commission is sensitive to the need to assist courts by providing a range of education services to meet the differing needs of each court and individual judicial officers. The scheme of continuing judicial education should be structured to be of benefit to all judicial officers in each jurisdiction and to address the differing needs of judicial officers throughout the duration of their careers. Specifically, the education programme should apply the Commission’s resources in the most effective delivery of services defined by content (law. ­procedure, management and administration, and judicial skills), and by level of  application (induction, update, experience-exchange, specialisation and refresher). These services may where appropriate include: a. Inducting new appointees with comprehensive training; b. Updating all judicial officers on important recent changes in law, procedure and practice; c. Producing bench books for each court, with a process for regular updating; d. Publishing the Judicial Officers Bulletin on a regular basis to inform judicial officers on current law and to promote consideration of important judicial issues; e. Where requested, assisting in the administration of conferences for each court; f. Promoting the development of an improved scheme for indexing and accessing important judgments; g. Facilitating continuing judicial education through the exchange of experience and discussion of topical issues, assisting meetings and discussion groups, and publishing articles and other papers;

236

Appendices

h. Providing refresher services to meet the needs of judicial officers; i. Providing special education services to meet the needs of isolated judicial officers both in the suburbs and country, and on circuit/rotation: specifically relating to the improved access to legal information. j. Promoting the supply of computer-support facilities, and supplying appropriate training; k. Providing an extended range of education services for the assistance of ­judicial officers, including interdisciplinary and extra-legal courses, where appropriate. The delivery of this scheme should integrate conference, publication, computer-support services in order to facilitate the access to and the use of education services in an effective and convenient manner for judicial officers. l. Promoting and conducting the research and development of educational practices to enhance the effectiveness of continuing judicial education.

Roles & Responsibilities The Judicial Commission has ultimate responsibility to define its policy and strategies in relation to the provision of the above-mentioned services and to determine direction and the priority of all activity undertaken in the name of the Commission. The Standing Advisory Committee on Judicial Education (which comprises the chairpersons of the education committees of each of the state’s courts) has responsibility to advise the Commission on matters of continuing judicial education and, where appropriate and as requested, to co-ordinate the activities of the respective education committees of each court. The Education Committees of each court, subject to the head of jurisdiction, shall have responsibility to develop and manage the programmes of educational activities conducted by or on behalf of each court. The staff of the Commission have the responsibility to advise and assist each of the above bodies, and to act on their instruction to administer and implement the continuing judicial education programme.

Evaluation The Commission will evaluate the effectiveness of its programme of continuing judicial education activities in order to ensure that it provides useful assistance and benefits to judicial officers in the performance of judicial duties. *** (February 1992)

Appendices

Appendix 7.2 Matrix of services: program planner.

Appendix 7.3 Cycle of Judicial Educational Practice.

237

Bibliography ABA, Legal Education and Professional Development – An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Chicago, 1992 (MacCrate Report). ABA, Code of Judicial Conduct, Canon 3, reprinted in Judicature, 1985, 69, 77–81. ABA, Standing Committee on Federal Judiciary – What It is and How It Works, American Bar Association, 1991. Abramson T, Tittle C & Cohen L (Eds), Handbook of Vocational Education Evaluation, Beverley Hills: Sage, 1979. Anderson S & Ball S, The Profession and Practice of Program Evaluation, San Francisco: Jossey-Bass, 1978. Apps JW, “Problems in Continuing Education,” Purpose of Continuing Education, New York: McGraw-Hill, 1979. Armytage L, Some Insights into the Needs of Magistrates, unpublished paper presented to the annual conference of the Local Courts of New South Wales, Sydney: Judicial Commission of NSW, September 1991a. Armytage L, “Towards a Charter of Continuing Judicial Education: The New South Wales Experience,” Commonwealth Judicial Journal, 1991b, 9, 2, 3–8. Armytage L, “New South Wales, Australia Mentoring Profile,” in Catlin DW (Ed), Mentoring in the Judiciary, Lansing, Michigan: Judicial Education Reference, Information and Technology Transfer Project (JERITT) Monograph 2, 1992, 52–59. Armytage L, “Continuing Judicial Education: The Education Program of the Judicial Commission of New South Wales,” Journal of Judicial Administration, 1993, 3, 1, 28–46. Armytage L, Judicial Orientation: 6 Factors Influencing Program Development, International Bar Association (IBA), unpublished conference paper, 1994. Armytage L, “Judicial Education on Equality – With Particular Reference to Gender and Ethnicity,” The Modern Law Review, 1995, 58, 160–186. Aslanian CB & Brickell HM Americans in Transition: Life Changes as Reasons for Adult Learning, New York: Future Directions for a Learning Society, College Board, 1980. Babbie ER, Survey Research Methods, Belmont: Wadsworth Publishing, 1973. Barwick G, The Right Honourable Sir Garfield Barwick GCMG, “The State of the Australian Judicature,” Australian Law Journal, 1977, 51, 480–494. Basten J, “Judicial Accountability: A Proposal for a Judicial Commission,” The Australian Quarterly, 1980, 468–485. Basten J, Should Judges Have Performance Standards? 1995, NSW Legal Convention (as yet unpublished paper).

Bibliography

239

Blasi G, “What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory,” Journal of Legal Education, 1995, 45, 313–386. Bloom BS, Taxonomy of Educational Objectives, London: Longmans, Green and Co, 1956. Boshier R, “Motivational Orientations of Adult Education Participants,” Adult Education, 1971, 21, 2, 3–26. Brackhaus B, “Needs Assessment in Adult Education: Its Problems and Prospects,” Adult Education Quarterly, 1984, 34, 233–239. Bridge Report: The Working Party on Judicial Studies and Information, chaired by Lord Justice Bridge, 1978, cited in Judicial Studies Board, Report for 1983–1987, London: HMSO, 1988. Brookfield SD, Understanding and Facilitating Adult Learning, San Francisco: JosseyBass, 1986. Burger WE, School for Judges, Federal Rules Decisions, 1964, 33, 139–150. Burgess P, “Reasons for Adult Participation in Group Educational Activities,” Adult Education, 1971, 22, 3–29. Canadian Judicial Centre, Standards Survey Results, unpublished memorandum, March 1992. Cartwright S (Dame Silvia), “Judicial Studies in New Zealand’s District Courts,” Journal of Judicial Administration, 1993, 2, 162–170. Catell RB, “Theory of Fluid and Crystallized Intelligence: A Critical Experiment,” Journal of Educational Psychology, 1963, 54, 1, 1–22. Catlin DW, The Relationship between Selected Characteristics of Judges and Their Reasons for Participation in Continuing Professional Education, unpublished doctoral dissertation, Michigan State University, 1981. Catlin DW, “An Empirical Study of Judges’ Reasons for Participation in Continuing Professional Education,” The Justice System Journal, 1982, 7, 2, 236–256. Catlin DW, “Michigan’s Magic Touch in Educating Judges,” The Judges’ Journal, 1986, 38, 32–44. Catlin DW, The Who and What of Judicial Education, Michigan: Michigan Judicial Institute, 1988. Catlin DW, A Composite Picture of State Judicial Education Programming in the United States, Vancouver: The Commonwealth of Learning Conference, unpublished conference paper, 1992. Cervero RM, “A Factor Analytic Study of Physicians’ Reasons for Participation in Continuing Education,” Journal of Medical Education, 56, 1981, 29–35. Cervero RM, “A Model of Professionals as Learners,” in Cervero RM, Azzaretto JF & Tallman D (Eds), Visions for the Future of Continuing Professional Education, Georgia: University of Georgia, 1990, 161–182. Cervero RM & Conner ME, Educating Judicial Educators: Two Perspectives, Georgia: University of Georgia, Judicial Education Adult Education Project (JEAEP), 1991.

240

Bibliography

Cervero RM, Azzaretto JF & Tallman D, Visions for the Future of Continuing Professional Education, Georgia: University of Georgia, 1990. Cervero RM, Effective Continuing Education for Professionals, San Francisco: JosseyBass, 1988. Chinapah V & Miron G, Evaluating Educational Programs and Projects, UNESCO (­Socio-economic Studies, No. 15): Belgium, 1990. Claxton CS, “A Model for Curriculum Development,” Adult Education Perspectives for Judicial Education, 1992, Georgia: University of Georgia – Judicial Education/Adult Education Project, 10.1–10.23. Claxton CS & Murrell PH, Education for Development: Principles and Practices in Judicial Education, JERITT Monograph 3, Michigan State University, 1992. Commonwealth Law Bulletin, “Continuing Judicial Education,” July 1992, 1037. Cook T & Reichardt C, Qualitative and Quantitative Methods in Evaluation Research, Beverley Hills, Calif.: Sage, 1979. Cross KP, Adults as Learners, San Francisco: Jossey-Bass, 1981. Dao MN, The Orientations towards Non-participation in Adult Education, unpublished doctoral dissertation, University of Chicago, 1975. Darkenwald G & Merriam S, Adult Education: Foundations of Practice, New York: Harper & Row, 1982. Day C & Baskett HK, “Discrepancies between Intentions and Practice: Re-examining Some Basic Assumptions about Adult and Continuing Professional Education,” International Journal of Lifelong Education, 1982, 1, 143–155. Deshler D, “Evaluation in Program Development,” New Directions in Continuing Education, 1984, 12. District Court Act (NSW) 1973, s 13 (2), s 14. Dowsett JA, Judicial Education: Where are the Emperor’s New Clothes? Brisbane: unpublished conference paper, 1991. Evans G, The Most Dangerous Branch? The High Court and the Constitution in a Changing Society, unpublished conference paper, Australia, 1974. Evans AD, “Can Mandatory Continuing Education be Justified?” Journal of Professional Legal Education, 1985, 3, 35–46. Exodus 18.21 and 22. Federal Court of Australia Act (Aust) 1976, s 6. Friere P, Pedagogy of the Oppressed, New York: Herder and Herder, 1970. Friere P, The Politics of Education, South Hadley, Mass.: Bergin and Garvey, 1985. Galligan B, Politics of the High Court, Brisbane: University of Queensland Press, 1987. Gamble H, Judicial Independence and the Determination of Court Performance Standards, University of Wollongong, 1995 (as yet, unpublished paper). Gardner DE, “Five Evaluation Frameworks: Implications for Decision Making in Higher Education,” Journal of Higher Education, 1977, 48, 571–593.

Bibliography

241

Gaudron M, “Equality before the Law, with Particular Regard to Aborigines,” The Judicial Review, Sydney: Judicial Commission of NSW, 1992. Gibbs H, “The State of the Australian Judicature,” Australian Law Journal, September 1985, 59, 522–528. Gibbs H, “The Appointment & Removal of Judges,” Federal Law Review, September 1987a, 17, 141–150. Gibbs H, “The Appointment of Judges,” Australian Law Journal, January 1987b, 61, 7–11. Gibbs H, “The High Court and Judicial Appointment,” Judicial Officers Bulletin, Sydney: Judicial Commission of NSW, 1993, 5, 81–82. Gleeson M, “Judging the Judges,” Australian Law Journal, 1979, 53, 338–347. Gleeson M, Judicial Accountability, Canberra, 1994 (Conference on Courts in a Representative Democracy; as yet unpublished paper). Gold N, “Taking Skills Seriously: A Research Perspective,” Journal of Professional Legal Education, 1987, 5, 64–71. Gold N, “Towards a Curriculum for Continuing Judicial Education – Establishing Judicial Competences: Professionalisation, Quality and the Public Interest,” 1994 (as yet unpublished article). Gold N, “Towards Training for Competence,” Journal of Professional Legal Education, 1983, 1, 1–11. Grabowski SM, “How Educators and Trainers Can Ensure On-the-Job Performance,” in  Grabowski SM (Ed), New Directions for Continuing Education: Strengthening Connection between Education and Performance, San Francisco: Jossey-Bass, 1983. Graycar R & Morgan J, The Hidden Gender of Law, Sydney: Federation, 1990. Green G (Sir Guy), “The Rationale and Some Aspects of Judicial Independence,” Australian Law Journal, 1985, 59, 135–162. Green J & Walsh P, “Impact Evaluation in Continuing Medical Education – The Missing Link,” in Knox AB (Ed), “Assessing the Impact of Continuing Education,” New Directions in Continuing Education (No. 7), San Francisco: Jossey-Bass, 1979, 81–87. Grotelueschen AD, “Assessing Professionals’ Reasons for Participating in Continuing Professional Education,” in Cervero RM & Scanlon CL (Eds), Problems and Prospects in Continuing Professional Education, San Francisco: Jossey-Bass, 1985. Grotelueschen AD, “Program Evaluation,” in Knox AB (Ed), Developing, Administering and Evaluating Adult Education, San Francisco: Jossey-Bass, 1989, 75–123. Grotelueschen AD, Harnish DL & Kenny WR, Research on Reasons for Participation in Continuing Professional Education: A Statement of Position and Rationale, Occasional Paper Number 7: Office for the Study of Continuing Professional Education, University of Illinois at Urbana-Champaign, 1979. Hannaford P, “Voluntary Continuing Judicial Education,” Judicial Officers Bulletin, Sydney: Judicial Commission of NSW, 1993, 5, 43–47.

242

Bibliography

Harnisch DL, The Continuing Education Reasons of Veterinarians, unpublished doctoral dissertation, University of Illinois-Urbana, 1980. Havighurst RJ, Developmental Tasks and Education (3rd Ed.), New York: McKay, 1972. Hecht-Schafran L, “Issues and Models for Judicial Education about Gender Bias in the Courts,” Court Review, 1989, 26, 3. Hecht-Schafran L, “Overwhelming Evidence: Reports on Gender Bias in the Courts,” Trial, 1990, 26, 28. Hecht-Schafran L, “Credibility in the Courts: Why is There a Gender Gap?” The Judges Journal, Winter 1995, 5–42. Herrmann N, The Creative Brain, Lake Lure, N. Carolina: Ned Herrmann Brain Books, 1989. Heuston RFV, Lives of the Lord Chancellors 1885–1940, Oxford: Clarendon Press, 1964. High Court of Australia Act (Aust) 1979, s 7. Holland A, “Training Judges,” New Law Journal, 1993, 143, 895. Houle CO, Continuing Learning in the Professions, San Francisco: Jossey-Bass, 1980. Houle CO, “Possible Futures,” in Stern MR (Ed), Power and Conflict in Continuing Professional Education, Belmont, California: Wadsworth, 1983. House ER, “Assumptions Underlying Evaluation Models,” Educational Researcher, 1978, 7, 3, 4–12. House ER, Evaluating with Validity, Beverley Hills, Calif.: Sage, 1980. House ER, New Directions in Educational Evaluation, London: Falmer Press, 1986. Hudzik JK, The Continuing Education of Judges and Court Personnel, Michigan: The Judicial Education Network, 1989. Hudzik JK, Issues & Trends in Judicial Education, Lansing, Michigan: Michigan State University; Judicial Education Reference, Information and Technical Transfer Project (JERITT), 1991a. Hudzik JK, Judicial Education Needs Assessment and Project Evaluation, Lansing, Michigan: Michigan State University; Judicial Education Reference, Information and Technical Transfer Project (JERITT), 1991b. Hudzik JK, Issues & Trends in Judicial Education, Lansing, Michigan: Michigan State University; Judicial Education Reference, Information and Technical Transfer Project (JERITT), 1993. Hudzik JK & Wakeley JH, “Evaluating Court Training Programs,” Judicature, 1981, 64, 8, 369–375. International Bar Association, Code of Minimum Standards of Judicial Independence, 1982. Johnstone JW & Rivera RJ, Volunteers for Learning, Chicago: Aldine, 1965. Jones P (Ed), Evaluating Training, Minneapolis, MN: Lakewood Publications, 1989. Judicial Appointments – The Lord Chancellor’s Policies and Procedures, London: Lord Chancellor’s Department, 1986.

Bibliography

243

Judicial Commission of New South Wales, Annual Reports, 1991–1992, 1992–1993, 1993– 1994, & 1994–1995, Sydney. Judicial Council of California, Standards of Judicial Administration, 1990. Judicial Officers Act (NSW) 1986, Sections 6, and 9 (1). Judicial Studies Board Act (Vic) 1990. Judicial Studies Board, Reports for 1979–1983, 1983–1987, 1987–1991, and 1991–1995, London: Her Majesty’s Stationery Office. Kennan J, “Law Report,” Law Institute Journal, 1984, 58, 748–749. Kennedy GA, “Training for Judges?” University of New South Wales Law Journal, 1987, 10, 47–59. Kirby MD, The Judges, The Boyer Lectures, Sydney: ABC, 1983. Kirby MD, “Law Report,” Law Institute Journal, 1984, 58, 748–749. Kirkpatrick DL, Evaluating Training Programs, Madison, Wis.: American Society of Training and Development, 1975. Knowles MS, The Adult Learner: A Neglected Species (2nd Ed.), Houston: Gulf, 1978. Knowles MS, “Andragogy Revisited Part 11,” Adult Education, Fall 1979, 30, 1. Knowles MS, The Modern Practice of Adult Education: From Pedagogy to Andragogy, Chicago: Follett, 1980 (1970 edition: bi-lined Andragogy versus Pedagogy). Knowles MS, The Adult Learner: A Neglected Species (3rd Ed.), Houston: Gulf, 1984. Knox AB, “Assessing the Impact of Continuing Education,” New Directions for Continuing Education (No. 7), San Francisco: Jossey-Bass, 1979. Knox AB, “Interests and Adult Education,” Journal of Learning Disability, 1968, 1, 2. Knox AB, Adult Development & Learning: A Handbook on Individual Growth and Competence in the Adult Years for Education and the Helping Professions, San Francisco: Jossey-Bass, 1977. Kolb D, Experiential Learning: Experience as the Source of Learning and Development, New York: Prentice Hall, 1984. Kolb D & Fry M, “Towards an Applied Theory of Experiential Learning,” in Cooper CL (Ed), Theories of Group Processes, New York: Wiley, 1975. Laski H, Studies in Law and Politics, London: George Allen & Unwin, 1932. Lavarch M, Judicial Appointments: Procedure and Criteria, Discussion Paper of Federal Attorney-General, September 1993, Canberra: Parliament of Australia. Lawson V, “The Invisible Bar: How Women Lawyers are Kept Out in the Cold,” Sydney Morning Herald, 28 November 1992, 43. Li P, “Keeping Judges Awake to Contemporary Needs,” The Judges’ Journal, 1976, 15, 78–103. Li P, “How Our Judicial Schools Compare to the Rest of the World,” The Judges Journal, Winter 1995, 17–51. Lord Devlin, The Judge, Oxford University Press, 1979a. Lord Hailsham, “Democracy and Judicial Independence,” University of New Brunswick Law Journal, 1979b, 28, 7.

244

Bibliography

Lord Hailsham, Hamlyn Revisited: The British Legal System Today, London: Stevens & Sons, 1983. Lord Hailsham, Law Society Gazette, 28 August 1985, 2335. Mahoney K, “Gender Bias in Judicial Decisions,” The Judicial Review, 1993, 1, 197–217. Mahoney K & Martin S, Equality and Judicial Neutrality, Toronto: Carswell, 1987. Marquet LB, “The Separation of Powers Doctrine and the Constitution of Western Australia,” University of Western Australia Law Review, 1990, 20, 445. Maslow AH, Motivation and Personality, New York: Harper & Row, 1954. Mason A, “The State of the Australian Judicature,” Australian Law Journal, 1987, 61, 681–688. Mason A (Sir Anthony), “The Independence of the Bench; the Independence of the Bar, and the Bar’s Role in the Judicial System,” Australian Bar Review, 1993a, 10, 1–10. Mason A, “The Role of the Courts at the Turn of the Century,” Journal of Judicial Administration, 1993b, 156–167. Mason A, “The State of the Judicature,” Monash University Law Review, 1994a, 20, 1, 1–11. Mason A, The Role of the Judge, Inaugural Judicial Orientation Program, 1994b, Sydney (as yet unpublished paper). McCabe HH, “California’s Approach to Judicial Education,” Judicature, 1967, 51, 2, 58–63. McGarvie RE, “The Foundations of Judicial Independence in a Modern Democracy,” Journal of Judicial Administration, 1991, 1, 1–45. McGarvie RE, “The Ways Available to the Judicial Arm of Government to Preserve Judicial Independence,” Journal of Judicial Administration, 1992, 1, 236–280. McGuinness P, “No Case for Judgment by the Instant Lynch Mob,” The Australian 20 January 1993, 11; reprinted in Australian Law Journal, 1993, 67, 324–325. McKinney CA, Adult and Professional Education: An Overview, Adult Education Perspectives for Judicial Education, Judicial Education Adult Education Project (JEAEP), Georgia: University of Georgia, 1992, 2.1–2.13. McMillan J, Evans G & Storey H, Australia’s Constitution – Time for Change? Sydney: Law Foundation of NSW, 1983. Meador DJ, “The Graduate Degree Program for Judges at the University of Virginia,” Judges Journal, 1983, 22, 3, 19–56. Megarry R, “Seventy-Five Years on – Is the Judiciary What It was?” The Edward Bramley Lecture, 1984, 13; cited with approval by Gibbs H, “The Appointment of Judges,” Australian Law Journal, January 1987, 61, 7–11. Merritt C, “Judges ‘Can Lack Gender Awareness’,” Australian Financial Review, 1 October 1993, 12. Morabito V, “The Judicial Officers Act 1986 (NSW): A Dangerous Precedent or a Model to be Followed?” University of New South Wales Law Journal, 1993, 16, 481–512. Murray FK, Judicial Education: A Guide to State and National Programs, Washington DC: Foundation for Women Judges, 1986.

Bibliography

245

Myers IB, Gifts Differing, Palo Alto: CPP Books, 1993. National Association of States Judicial Educators, NASJE Principles & Standards of Continuing Judicial Education, NASJE, 1991. National Judicial Centre, Annual Report, Ottawa, 1991–1992, 4. National Judicial College, Annual Report, Reno, 1988. National Judicial Institute (formerly, Canadian Judicial Centre), Annual Report 1991– 1992, Ottawa. Nelson JW, “The Legal Profession,” in Brennan B (Ed), Continuing Professional Education: Promise and Performance, Hawthorn, Victoria: Australian Council of Educational Research, 1990, 52–66. Nelson JW, A Study of the Continuing Legal Education Needs of Beginning Solicitors, Sydney: Centre for Legal Education, 1995. Neugarten BL, “Personality and Aging” in Birren JE & Shaie KW (Eds), Handbook of the Psychology of Aging, New York: Van Nostrand Reinhold, 1977. Neumann E, The High Court of Australia: A Collective Portrait 1903 to 1972 (2nd Ed.), Sydney: University of Sydney (Department of Government), 1973. Nicholson A, reported in “Hysterical Over-Reaction on Bias,” Australian Lawyer, September 1993a, 18. Nicholson RD, “Judicial Independence and Accountability: Can They Co-exist?” Australian Law Journal, 1993b, 67, 404–426. Nicholson RD, “Judicial Independence and Judicial Organisation: A Judicial Conference for Australia?” Journal of Judicial Administration, 1993c, 2, 143–161. Nottingham Andragogy Group, Towards a Developmental Theory of Andragogy, Nottingham: University of Nottingham, Department of Adult Education, 1983. Ormrod Report: Report of the Committee on Legal Education, London: Her Majesty’s Stationary Office, 1971. Oxner S, Judicial Education in the Commonwealth, 1994 (as yet unpublished paper). Partington M, “Training the Judiciary in England and Wales: The Work of the Judicial Studies Board,” Civil Justice Quarterly, 1994, 319–336. Pearce Report: Pearce E, Campbell E & Harding D, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission, 1987, Canberra: Australian Government Printer. Pearson TG, “Evaluation,” Adult Education Perspectives for Judicial Education, Judicial Education Adult Education Project (JEAEP), Georgia: University of Georgia, 1992, 8.1–8.13. Penland P, “Self-initiated Learning,” Adult Education, 1979, 29 (3), 170–179. Pennington FC, “Needs Assessment: Concepts, Models and Characteristics,” in Pennington FC (Ed), Assessing Educational Needs of Adults: New Directions for Continuing Education (No. 7), San Francisco: Jossey-Bass, 1980, 1–13. Pennington FC, “Needs Assessment in Adult Education,” in Husen T & Postlethwaite TN (Eds), International Encyclopaedia of Education, Oxford: Pergamon, 1985.

246

Bibliography

Phillips L, “Trends in State Relicensure,” in Stern MR (Ed), Power and Conflict in Continuing Professional Education, Belmont, California: Wadsworth, 1987. Phillips L, Orchestrating Learning for Judges’ Preferred Learning Styles, unpublished conference paper, 1992 National Association of States Judicial Educators (NASJE) Annual Conference, Charleston, South Carolina. Phillips J, unpublished address, Monash Law School Foundation, 2 December 1993 reported in “Judges, Too, Have the Right to a Hearing,” The Australian, 3 December 1993. Queeney D, Needs Assessment, Adult Education Perspectives for Judicial Education, Judicial Education Adult Education Project (JEAEP), Georgia: University of Georgia, 1992, 3.1–3.19. R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (High Court), and (1957) 95 CLR 529 (Privy Council). Report of the Senate Standing Committee on Legal and Constitutional Affairs, The Cost of Justice (Report 2): Checks and Imbalances, August 1993. Richard L, “The Lawyer Types – How Your Personality Affects Your Practice,” American Bar Association Journal, July 1993, 74–78. Richardson I, “Changing Needs for Judicial Decision-Making,” Journal of Judicial Administration, 1991, 1, 61–68. Riches AL, “Continuing Judicial Education in New South Wales,” Journal of Professional Legal Education, 1989, 6, 2, 149–162. Riches AL, “Judicial Education – A Look at the Overseas Experience,” Australian Law Journal, 1990, 64, 189–202. Rogers J, Freeman S & LeSage P, “The Occupational Stress of Judges,” The Canadian Journal of Psychiatry, 1991, 36, 5, 317–322. Roper C, Senior Solicitors and Their Reasons for Participation in Continuing Legal Education, Sydney: Centre for Legal Education, 1994. Royal Commission into Aboriginal Deaths in Custody, Canberra: Parliament of Australia, 1991. Sallmann PA, “Judicial Education: Some Information and Observations,” Australian Law Journal, 1988, 62, 981–1005. Sallmann PA, “A Note on Judicial Education in Australia: An Australian Institute of Judi­ cial Administration Perspective,” Journal of Judicial Administration, 1992, 2, 28–38. Sallmann PA, “Comparative Judicial Education in a Nutshell: A Cursory Exposition,” Journal of Judicial Administration, 1993, 2, 245–255. Samuels G, “Judicial Competency: How Can It be Maintained,” Australian Law Journal, 1980, 54, 581–587. Scanlan CL & Darkenwald GG, “Identifying Deterrents to Participation in Continuing Education,” Adult Education Quarterly, 1984, 34, 155–166. Schon DA, The Reflective Practitioner, New York: Basic Books, 1983. Schon DA, Educating the Reflective Practitioner, San Francisco: Jossey-Bass, 1987.

Bibliography

247

Scriven M, “Curriculum Evaluation – Definitions and Boundaries,” in Tawney D (Ed), Curriculum Evaluation Today: Trends and Implications, London: MacMillan, 1991. Senate Standing Committee on Legal and Constitutional Affairs, The Cost of Justice (Report 2): Checks and Imbalances, Canberra: Parliament of Australia, 1993. Shaman JM, Lubet S & Alfini JJ, The 1990 Code of Judicial Conduct: An Overview, Judicature, 1990, 74, 21–27. Sheahan T (Attorney General), New South Wales Parliamentary Debates, Legislative Assembly, 24 September 1986, 3874. Sheffield SB, “The Orientation of Adult Continuing Learners,” in Solomon D (Ed), The Continuing Learner, Chicago: Center for the Study of Liberal Education of Adults, 1964. Shetreet S, Judges on Trial – A Study of the Appointment and Accountability of the English Judiciary, Oxford: North-Holland Publishing, 1976. Shetreet S, “The Limits of Judicial Accountability: A Hard Look at the Judicial Officers Act 1986,” University of New South Wales Law Journal, 1987a, 10, 4. Shetreet S, “Who Will Judge: Reflections on the Process and Standards of Judicial Selection,” Australian Law Journal, 1987b, 61, 766–778. Shuell TJ, “Cognitive Conceptions of Learning,” Review of Educational Research, 1986, 56, 411–436. Slee J, “Hard Issues Left to Us: Chief Justice,” Sydney Morning Herald, 3 July 1993. Smutz WD & Queeney DS, “Professionals as Learners: A Strategy for Maximizing Professional Growth,” in Cervero RM, Azzaretto JF & Tallman D (Eds), 1990, 183–205. Sork TJ, “Needs Assessment as Part of Program Planning,” in Gessner Q (Ed), Handbook on Continuing Higher Education, New York: MacMillan, 1987, 125–141. Stephens A, “Roddy Meagher: A Law unto Himself,” Sydney Morning Herald, 5 December 1992, 39. Stern MR, “Compulsory Continuing Education for Professionals – Or the Gold Rush of ‘76,” in Long JS & Boshier R (Eds), Certification, Credentialing, Licensing and the Renewal Process, Seattle: Northwest Adult Education Association, 1976. Stevenson J, Towards the Creation of a National Judicial Education Service for Canada, 1986. Story PB, “Mandatory Continuing Medical Education: One Step Forward – Two Steps Back,” New England Journal of Medicine, 1978, 298, 1416–1418. Suarez TM, “Needs Assessment Studies,” in Hugen S & Postlethwaite TN (Eds), International Encyclopaedia of Education, Oxford: Pergamon, 1985, 3496–3498. Supreme Court Act (NSW) 1970 s 26, s 27. Sydney Morning Herald, 8/9/86, 13/9/86, 17/9/86, 18/9/86, 1/10/86, 14/10/86. Syracuse Draft Principles on the Independence of the Judiciary, Article 3. The New Collins Dictionary, London: Collins, 1986. Thomson R, The Judges, Sydney: Allen & Unwin, 1986.

248

Bibliography

Tobin AG, “Criteria for the Design of Legal Training Programs,” Journal of Professional Legal Education, 1987, 5, 55–63. Tough A, Why Adults Learn: A Study of the Major Reasons for Beginning and Continuing a Learning Project, Monographs in Adult Education (No. 3), Toronto: Ontario Institute for Studies in Education, 1968. Tough A, The Adult’s Learning Projects: A Fresh Approach to Theory and Practice in Adult Learning, Toronto: Ontario Institute for Studies in Education, 1971. Tyler RW, Basic Principles of Curriculum and Instruction, Chicago: University of Chicago Press, 1949. Ulschak F, Human Resource Development: The Theory and Practice of Need Assessment, Reston, Virginia: Reston, 1983. Universal Declaration on the Independence of Justice, Article 2.11. Virtue B, “Choosing Federal Judges – Is There Need for a New Approach?” Australian Law News, 1986, 21, 11, 7–9. Weisbrot D, Australian Lawyers, Melbourne: Longman Cheshire, 1990. Wikler N, “Water on Stone: A Perspective on the Movement to Eliminate Gender Bias in the Courts,” Court Review, 1989, 26, 3. Williams RG, & Ware JE, “Validity of Student Ratings under Different Incentive Conditions: A Further Study of the Dr Fox Effect,” Journal of Educational Psychology, 1976, 14, 449–457. Witkin BR, Assessing Needs in Educational and Social Programs, San Francisco: JosseyBass, 1984. Wood J, “The Prospects for a National Judicial Orientation Programme in Australia,” Journal of Judicial Administration, 1993, 3, 75–96. Worthern B & Sanders J, Educational Evaluation: Theory and Practice, Belmont, Calif: Wadsworth, 1973. Young P, “What Makes a Good Judge?” The Australian Law Journal, 1994, 68, 485–486. Zimmerman G, Adult Learning – Andragogy vs Pedagogy, Reno: National Judicial College, unpublished workshop materials, 1988.

Index Accountability judicial community, to 10 independence, and 10–11 need for 11, 27 provision of 14 quest for 10–13 Adulthood, developmental tasks 124 Adult learners. See also Adult learning activity-orientated 116 adult, definition 115–116 characteristics of 115–117 disposition to learn 107–108 goal-orientated 116 learning-orientated 116 Adult learning. See also Adult learners andragogy versus pedagogy 112–115 autonomy, importance of 133 barriers to 120–121 behaviourism 131–132 characteristics of 116 cognitive psychology 128–129 developmentalist approach 119 developmental theory 124–127 discipline of 112 educational evaluation models 213–217 experiential 129–131 facilitated 133–135 generalizations, validity of 114 humanism 127–128 judicial educators, observations for 135–136 learning style inventory 129–131 means of 111–136 motivation 120 participation, reasons for 118 physiological aging, learning ability as function of 122–124 principles of 111, 114, 135 problem-centred orientation 113, 114 theory, application of 112–121 Andragogy definition 115 educational evaluation model 216 pedagogy, versus 112–115

Australia educational needs analyses Administrative Appeals tribunal, of 94–101 conduct of 87 education usage, reasons for and barriers against 90, 97 findings 83, 95–101 judicial officers in New South Wales, of 87–93 new magistrates in New South Wales, of 93–94 participation, underlying factors influencing 95–97 preferred form of education 92, 99–100 Registrars in New South Wales, of 101 stress and burn-out 92 superior court and appeal decisions, supply of 92 usefulness of education services 90–91 judicial education in generally 18–19 New South Wales 19–21 policy 165–166 voluntary character of 181 judicial selection appointment 62 approach to 50 consultation 65–68 merit, on 44–46 political considerations 55 qualification for appointment 49 need for judicial education, recognition of 30, 37–38 Bar, judicial selection from 52–53, 74 Behaviourism learning process, and 131–133 professional development, in 139–141 Britain continuing judicial education in 15–17 judicial education policy 160

250 Britain (cont.) judicial selection in appointment 60–61 interim step 63 merit, on 43 qualification for appointment 49 need for judicial education, recognition of 33 Canada continuing judicial education in 17 judicial education policy 169 judicial selection in, political considerations 54 need for judicial education, recognition of 38 Cognitive psychology, learning, of 128–129 Competence concept of 7–10 definition 7 judicial absence of 9 assessment of 8–9 meaning, duality of 8 notion of 7 review of 9 standards of 169 training for 167 judicial selection, relationship with 65 meaning 138 professional 8 concept of 46 professional artistry 137–138 threshold of 54 Curriculum design 158 development 191–192 Development adult learning, theory of 118 judicial development, goal of 151 professional. See Professional development Education meaning 114 Tylerian model 131 Educational evaluation action, relationship with 197

Index applied research method 197 attainment of objectives, discernment of 205–206 categorization of 201 constraints on 212–213 critique of 223–225 definitions of 196–197 environmental perspective, purposes from 201 fact and value, debate on 198 formative and summative 201–202 goal divergence 205 ideological constraints 213 impact 203–204 importance of 202 institutional accountability of individual learning, as 200–201 judicial education 204–206 assessment of value 220 domain of, in 204–206 level of 217 methodology assessment criteria 207 constraints on 212–213 formulations 207–208 ideological constraints 213 issues 210 judicial education, for 210 performance indicators 208–209 qualitative versus quantitative 210–212 models of action-planning approach 221 adult education 215–217 andragogy and collaborative 216 appropriate selection of 215 classic 215 distinctive, development of 215 empirical participant reactive  218–219 intended behavioural change  221–223 jeritt 221–223 judicial education, for 217–218 judicial systemic performance  225–227 participant/client appraisal 220 participatory 216 process-based approach 219–220 theoretical and practice 217–218

Index nature of process 193 normative process of 198–199 outcome 201 performance indicators 207–209 prevailing practice 195 process or outcome debate 202–203 purpose of 199–200 quality of learning process, measurement of 194 review of practice 203–204 summary 215 technical rationality 197 techniques 195–206 value, demonstration of 194 value-judgmental concept, as 198 Educational planning curriculum development 191–192 cycle of practice 193 matrix of services 190–191 quality of 190 Humanism learning, approach to 127–128 Incompetence, qualitative problem, as 185–186 Independence doctrinal constraints 160 judicial 10 judicial education, relationship with 38 visibility of 28 Intelligence adult, measurement of 115 crystallized 123 fluid 123 physiological aspects of 124 tests 115–116 Judges Competence. See Competence distinctive learners, as 159 education. See Judicial education educational theory, application of 141 error, held to be in 36 learners, as 229 learning. See Judicial learning learning needs of 111, 137 new skills, development of 153 participation in continuing education, reasons for 79–83

251 pre-existing professional competence 159 reflective learners, as 157 security of tenure 9 selection of. See Judicial selection Judicial education ability to change, promotion of 156 adult learning theory. See Adult learners; Adult learning application 111 appraisal of 178–179 Australia, in 18–19 benefits of 24 Britain, in 15–17 calls beyond judiciary for 27 Canada, in 17 Catlin’s model of 155 challenge for 22, 225 common law countries, in 17–18 competence as goal of 7 content 106 curriculum development 157–158 delivery, manner of 107 development, goal of 156 distinctive approach, need for 3 distinctive model, need for 21 domain appraisal of 178–179 content-based approach 176 formal versus practice 174–176 scope and content of programs, defined by 175 United States, in 169–170 evaluation. See Educational evaluation formalization 39 grounds for 30 history of 13–21 independence, relationship with 38 induction training 40 informal 29 introduction of 3 judicial disposition 152–154 justification of 36 mandatory. See Mandatory judicial education mission, goals and objectives 166–169 nature/nurture debate 162 need for. See Need for judicial education new skills, development of 153

252 Judicial education (cont.) New South Wales, in 19–21 New Zealand, in 17 objections to 31–34 objectives 155 participation, reasons for 70 planning. See Educational planning polarization of profession 38 policy. See Judicial education policy practice of 153–158 analysis of 177–178 observation of 166 precepts of 160–162 procedural knowledge 160 program, credibility of 70 purpose of 7 reasons for 104 reasons for participation in 153–154 role and direction of 3 selection models, implications of 64–65 self-directed learning 40 standards 179–181 United States, in 13–15 value of 37–38 voluntary, independent, judge-led process, as 160 Judicial education policy Australia, in 171–173, 183 Britain, in 170–17 Canada, in 171 comparative assessment 173–174 formulation of 169–174 framework of 165 United States, in 169–170 Judicial learning ability to change, promotion of 156 characteristics 138 complexity of 137 distinctive elements of 154 educational theory, application of 138 features of 230 individualized 161–162 judicial artistry 157 judicial disposition 152–154 Judicial Leadership Institute 156–157 model, foundations of 158–162 practice of 152–158 predictable models of 153 preferred styles and practices 159–160

Index prevailing practice of 230 self-directed 161 summary 228–231 Judicial performance, assessment of 8 Judicial selection American approach to 48–49 Australian approach to 50 Bar, from 52–53 competence, relationship with 65 criteria 44–54 differences of opinion as to criteria 57 eligibility criteria 44 extraneous considerations 44, 54–60 fair reflection doctrine 56–57 importance of process 45 institutional bias 58 integrity 48, 59 judicial characteristics 33 judicial temperament 48 merit assessment of 64 Australia, in 43 basis of 45 Britain, in 43 consensus as to 53 divergent concepts of 52–53 forensic concepts of 50 formal approach to 48–49 fundamental qualities 42 humanistic concept of 51–52 informal approach to 47 meaning 46 personal qualities 51 professional competence 46, 48 qualities of 43 universal recognition as basis for 67 models of appointive 60 Australia, in 63 Britain, in 63 civil law approach 61–62 common law tradition, in 61 elective 61 international 61 judicial education, implications for 64–65 regional 61 United States, in 62–63

Index need for judicial education obviating 32–33 role in defining 23 patronage 55 peer review 66–68 personal knowledge, on basis of 56 political and social factors 43 political considerations 55–58 professional competence 46, 48 review of practice 43 social representation 58–59 summary 228 United States, in 42 Judiciary formative role of 6 public scrutiny of 4 society, evolving relationship with 7 Lawyers information, possessing 143 Learning adult. See Adult learning facilitated 133–135 intelligence tests 122, 123 judicial. See Judicial learning physiological aging, ability as function of 122–124 process of 121–122 professionals, by 133 Legal profession Legal profession, parochialism and insularity 59 Magistrates, educational needs analyses 89 Mandatory judicial education arguments against 181 conundrum of 187–189 courts, issues for 188 debate on 181 educational rationale, lack of 184–186 educators, issues for 18 effect of 185 judge, issues for 187 judge-led approach 183–184 ostensible objective of 185 problems of 185–186 professionalization, explanation of 177–178 profession, importance for 187 United States, in 181–182

253 Need for judicial education argument over 23–24 assessment. See Needs assessment authentic and felt 24 concept of 24 consensus on 34 deficiency between actual and preferred situation, as 25 deficit, in terms of 25 definitions 25 determining question of 23 discrepancy in terms of 26 doctrinal constraints 27–28 elements of 41 internal recognition of 105 judicial recognition of 24 judicial selection, role of 41 merit selection obviating 32, 40 nature of 105–107 newly appointed judges, for 35 objections to 31–34 organized process of 34 perception, characteristics affecting 70 recognition of 30 Australia, in 31, 34–38 Britain, in 34 Canada, in 38 New Zealand, in 35 United States, in 29, 33 services provided, determining 186 summary 228–229 threshold of 26 want or preference, in terms of 25 Needs assessment Australia, in Administrative Appeals tribunal, of 94–101 analyses 87 education usage, reasons for and barriers against 86, 92 findings 87–101 judicial officers in New South Wales, of 87–89 new magistrates in New South Wales, of 93–94 participation, underlying factors influencing 90, 95–96 preferred form of education 92, 99 Registrars in New South Wales, of 101

254 Needs assessment (cont.) stress and burn-out 92, 101, 105 superior court and appeal decisions, supply of 92, 100 usefulness of education services 86, 98 classic methods 76 data, collecting 74 democratic approach 75 education, for 69 empirical research 78–87 formalized, rationale for 73 guide-lines, lack of 72 importance of 67 infrequency of 72 methodology and technique 73–78 models 74 nature of need 105–107 occupational practices, as to 104 orthodox approach to 26 outcome of 73 participation in continuing education, reasons for adults, of 79–80 analysis of 78 findings 96 judges, of 83–87 professionals, of 80–83 preferred approach 75–76 problem diagnosis, in terms of 71 purpose of 72 rationale for 70–73 results of 71–72 self-assessment 28–29 situations not requiring 70 substantive law, education on 104 summary 228 systemization of 71 training needs analysis, as 71 types of data 76 underlying characteristics 103 workshop methods 76 New Zealand continuing judicial education in 17 need for judicial education, recognition of 34 Pedagogy andragogy, versus 112–115 Professional development

Index  behaviourism 135–136 career development model 139, 141–142 continuing education, as application of 139 declarative knowledge 149, 150 knowing-in-action 147 master skills hierarchy 142–145 procedural knowledge 149–150 professional artistry 145–147 professional knowledge, Schon’s model of 145 programs of 149 reflection-in-action 147–148 self-managed 150–152 Professionalization characteristics of 167 judiciary and society, evolving relationship between 7 mandatory education, explanation of 189 process of 4–7, 38 trend towards 6 Professionals information, possessing 143 learners, as 142, 148–150 professional knowledge, Schon’s model of 145 quality of performance 143 Professions development, growth in 6 identity, consolidation of 5 public criticism of 5 Registrars educational needs analyses 101 Sentencing judicial preparation, investigation of 30 Standards competence, of 179 judicial education, of 179–181 Technical rationality, educational evaluation, of 211 United States Code of Judicial Conduct 49 judicial education in 12–13 formal domain versus practice 174–176 policy 169–170

255

Index judicial selection in 42, 48–49, 62–63, 69 mandatory education schemes 181–183 need for judicial education, recognition of 29, 33

Workshop needs assessment, methods of 76