Decentering the Judge: On Clerks and Case Files

One of the most fascinating dimensions of researching legal practices – to me – is the way a close look at backstage proceedings reorients one’s attention to the social and material distribution of ‘judging’.

The field of socio-legal studies, because of its close association with legal scholarship, tends to think of judging as an activity that is located squarely, and only, in the judge. Literatures on discretion and the ‘social’ or ‘psychological’ influences on judicial decision-making tend to reiterate this conception of the judge as the sole (but not ‘un-influenced’) decision-maker. Of course, in a purely legal sense, this is true – or rather, must be taken as if it were true. The judge is indeed responsible and accountable for the verdict!

Yet a closer look at judicial practices suggests that this conception of judging, while legally necessary, is in fact a poor approximation of actual work practices. In my ethnography, I highlight the distributed and mediated character of judicial decision-making.

A stack of case files, ready to be ‘prepared’ by an assisting clerk

I emphasize the ‘agentic’ role of case files, which shape and delineate the case in questions, and highlight the important work done by assisting clerks in summarizing and shaping the case as it appears on judges desks. Taking this social and material mediation of judicial case-construction seriously, I suggest, is also a way to attend to legal ways of finding out ‘what really happened’. In The Law Multiple (2020), I suggest that

[W]here legal practices promise some kind of access to “what really happened” these instances are helpfully addressed using a distributed, mediated, and practical conception of observation. Particularly the case file, allowing the transportation of evidentiary materials and the translation of an event into a punishable offense, is a salient ingredient of these epistemic practices: without it, there is no “case” to be made. (p. 59-60)

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