`Getting Through the List': Judgecraft and Legitimacy in the Lower Courts

Abstract

This article examines the judgecraft required when judicial officers actively manage the time pressures created by long and unpredictable case lists. It considers the implications of this time management for the legitimate exercise of judicial authority. In particular, we focus on the strategy of altering the temporal sequence of the list by standing matters down and recalling them later in the list. This strategy, especially when initiated by the judicial officer, is analysed in light of the temporal goals of getting through the list on the day and moving cases along towards final resolution, and the ideological and practical requirements of legitimate judicial authority within the adversary system. The article is based on a court observation study of the general criminal list, concentrating on the role of the presiding judicial officer — the magistrate — in the lower courts of Australia. The research demonstrates that magistrates exercise considerable judgecraft which achieves temporal goals and can create space for a more engaged and therefore more legitimate decision-making process; however, their capacity to do so is limited by the judicial role and the roles allocated to others by conventional adversarial norms and practices.