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69 U. Kan. L. Rev. 13 (2020-2021)
Getting It Right Isn't Enough: The Appellate Court's Role in Procedural Justice

handle is hein.journals/ukalr69 and id is 29 raw text is: Getting It Right Isn't Enough: The Appellate
Court's Role in Procedural Justice
Steve Leben*
We all know-or surely can sense-that distrust of institutions,
including the government, is riding high. While that distrust isn't focused
on judges and the legal system, it hasn't excluded them, either. Tribalism
is the order of the day; judges are increasingly either on our team or
their team. And respect for their team is hard to find.
Yet respect for the legal system is a key to its ability to work. For the
most part, we don't send out sheriff's deputies or federal marshals to
enforce court orders. We instead rely on voluntary compliance. And
voluntary compliance relies on litigants having sufficient respect for the
judicial system's legitimacy that they will comply with its orders.
At the trial-court level, as judges handle cases and litigants are often
present, decades of social-science research has shown that adherence to
procedural-justice principles leads to litigant and public acceptance of the
legitimacy of judges and courts. Yet only two articles have focused
specifically on ways appellate courts might apply these principles.'
This Article explains how and why appellate courts should focus on
procedural-justice principles. The why is presented in two parts: (1) the
public's opinion of courts and judges today, which reflects distrust and a
sense of partisanship that undermine court legitimacy; and (2) the
application of procedural-justice principles, which has been shown to
* Visiting Professor of Law, University of Missouri-Kansas City School of Law; former Judge (2007-
2020), Kansas Court of Appeals. My thanks to Elizabeth Kronk Warner for her very prompt and
helpful comments on an early draft; to Kevin Burke, Tom Tyler, and David Rottman for their
collaborations on procedural-justice issues for more than a decade; to my faculty colleagues at UMKC
Law fortheir positive response and comments when I presented this material to them; and to the editors
of the Kansas Law Review for making the process of getting this into final form an enjoyable and
productive editing experience.
1. See Merritt E. McAlister, Downright Indifference : Examining Unpublished Decisions in
the Federal Courts ofAppeals, 118 MICH. L. REV. 533 (2020) (examining how unpublished decisions
affect the procedural-justice experience of litigants); William C. Vickrey, Douglas G. Denton &
Wallace B. Jefferson, Opinions as the Voice of the Court: How State Supreme Courts Can
Communicate Effectively and Promote Procedural Fairness, 48 CT. REV. 74 (2012) (discussing trends
in the formation of state supreme court opinions in light of procedural-justice principles).


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