Power and Persuasion in the Courtroom: The Force of Law and the Settlement Dynamics of Judges

Authors

Hadas Cohen, University of Oklahoma
Michal Alberstein, Bar Ilan University

Abstract

This Article seeks to describe the shift in the legitimation of judicial authority in the age of the "vanishing trial," in circumstances where adjudication on the merits of the case in question has been replaced by the promotion ofjudicial settlement. Based on data collected during a five-year study funded by the European Research Council ("ERC") and drawing from studies in social psychology and conflict resolution, we analyze the judicial conflict resolution practices used in Israel's Magistrate Court in Tel Aviv to promote settlement, and from this depict a new taxonomy of power relations in the courtroom. This move, from adjudication on the merits of the case to settlement promotion, we argue, has ushered with it new modes of legitimation for judicial activity, as judges now rarely adjudicate overtly, and thus no longer enjoy position-based jurisprudential legitimacy. Rule of lawbased legitimacy is being replaced by informally generated persuasion practices, which draw on the new modes of legitimacy developed by judges in response to a lack of judicial time to write verdicts and a lack of legal guidance on how to encourage settlements. Based on the notion of power, as developed by social psychologists French and Raven (1954), we outline modes of influence in the courtroom and classify existing judicial practices according to the distinct bases of power they utilize. We also describe three genuine judicial styles that can be described as best practices in settlement promotion-dispute designer, charismatic, and mediator-developed by judges promoting the practice of courtroom settlement. We describe and discuss the power dynamics they deploy in court and demonstrate how the "force of law" today has been replaced by a relational persuasion-based dynamic. The actual effect of the legal rules as sources of legitimation has become blurred and less effective in contemporary courts of settlements given that they are now only a suggested solution at the preliminary hearing stage. Finally, we consider the challenges that this development poses for the role of the judiciary and the legal profession as we move from adjudication to negotiation.

Disciplines

Comparative and Foreign Law | Dispute Resolution and Arbitration | International Law | Judges | Jurisprudence | Law | Law and Society

Recommended Citation

Hadas Cohen & Michal Alberstein, Power and Persuasion in the Courtroom: The Force of Law and the Settlement Dynamics of Judges, 6 Cardozo Int’l & Compar. L. Rev. 767 (2023).
Available at: https://larc.cardozo.yu.edu/ciclr/vol6/iss3/4