District Judges and Possession Proceedings

Abstract

In this article, we draw on data obtained in interviews with District Judges about the factors which they say influence the exercise of their discretion in possession proceedings. Analysing the data set enabled us to create three ideal types of judicial decision—making which we have labelled ‘liberal’, ‘patrician’, and formalist'. We discuss the differences between each ideal type across five different variables: the District Judge role; approach; view of occupiers; the problem; behaviour of occupiers. Our data demonstrate a set of reasons to explain different approaches and outcomes between different District Judges (as well as the perhaps unlikely identification of a ‘maverick’ or ‘idiosyncratic’ style of judging). We conclude by suggesting on the basis of our data that, despite calls to structure or remove the discretion from District Judges, any such changes are unlikely to have much effect.

Reflections on the sociology of law: A rejection of law as ‘socially marginal’

“…The recent work of Hunter et al (2005) and Cowan et al (2006) again demonstrate the multi-faceted nature of judicial discretion and decision-making. However, both of these studies do indeed attempt a typology of decision-making as a way of organising data, and making findings more intelligible.…”

“…In a similar vein, Lawrence (1995) (in her early work on sentencing process and judicial decision-making) developed a detailed methodological framework as a base line for understanding the multi-faceted, complex nature of judicial decision-making. This framework also appears to have been successfully (expressly and/or impliedly) inculcated into later socio-legal work(s) on judicial decision-making in the lower courts (compare with the studies of, for example, Hunter et al, 2005;Cowan et al, 2006). Lawrence's observation e that decision-making is influenced by the inter-play of both microand macrofactors e produced a research methodology which recognised the contribution and the influence of the individual circumstances of a case (microfactors), together with social and cultural values, and bureaucratic, administrative and legal factors (macrofactors).…”

“…Indeed, Cowan et al (2006: p. 548) have observed that empirical studies of lower court decision-making has, historically, been neglected by socio-legal scholarship because obtaining access to the lower judiciary can be very difficult and time-consuming, and moreover, because of general, pervasive beliefs that the work of the lower courts was, for the most part, 'commonplace' and 'dull'. Nevertheless, there do exist several older studies of the courts which are of particular significance (Hood, 1972;Lawrence, 1995;Parker et al, 1989;Rumgay, 1995) not to mention that, in recent years, there have been a number of socio-legal studies that have been concerned specifically with researching procedure and decision-making in the lower courts (see, for example, Mack, 2005, 2007;Baldwin, 1997;Cowan et al, 2006;Hunter et al, 2005;Marchetti and Daly, 2004;Millie et al, 2007;Pawson et al, 2005).…”

Performing Authority: Communicating Judicial Decisions in Lower Criminal Courts

“…It is an encounter where the magistrate can indicate that she/he has listened to the defendant's story and considered her/him as an individual. Such direct communication can cause the defendant to become central rather than marginal to the proceedings (Carlen 1976;Cowan et al 2006;McBarnet 1981;Rock 1991). This can be essential for achieving legitimacy beyond that based on established legal rules of decision-making.…”

Mediatory Versus Legalistic Discourse in Chinese Courts

“…In order to achieve effective dispute resolution, Chinese judges, like US district judges, usually adopt a mixture of legal and extralegal discourses (Cowan and Hitchings 2007;Cowan et al 2006;He and Ng 2013b). However, they do have preferences.…”