In Between Power and Procedure: Where the Court Meets the Public Sphere

Dr Richard Mohr
Faculty of Law
University of Wollongong

The Court as a Bounded Place
Dating back to Ancient Greece, courts have been held in special places. Homer described the 'polished stones in a sacred circle' which defined the place where the elders decided disputes.¹In the twentieth century, it is still possible to consider courts as a sacred circle, though different signs now distinguish them from the profane world outside.² Robert Jacob has described the evolution of the modern European court, from the place of justice signified by a tree and an enclosure of hazel branches, to the timber panelling characteristic of more recent courtrooms.³

Legal doctrine itself demands the court be fixed in place, from the Magna Carta's dictum that 'Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place,' to the modern requirement that courts sit at a 'proclaimed place'.⁴

This paper explores the implications of the courts' fixed place and its borders with the world outside its walls. Major tensions arise, in courthouse architecture and in law, between the place of the court and the other places of which the court must take account: the sites of crimes or injuries, places where witnesses are, and places accessible to the public. Courts are still at pains to patrol their own boundaries, in order to regulate media coverage, to exclude inadmissable evidence, or to control the exercise of judicial power. And yet each of these boundaries must be permeable under the right circumstances: the public must have access to the courts and to their proceedings; admissable evidence must enter the court; and judicial power must not only be manifest in court, but it must be felt far beyond the walls of the court, in compliance with and enforcement of judgement.

Testing the Limits: Legal Architecture in Four Trials
We may begin the investigation by sketching a few contemporary courtroom scenarios. These are four different examples of courtroom architecture, but not because of the place of the walls or the height of the bench. I have selected them because they each mediated the relationship of the court to the public and the outside world of forensic facts in a distinctive way. We have had an opportunity to see and to discuss a number of examples of built courts throughout this conference. Those courts are examples of court architecture designed by architects, whatever the involvement of judges and court managers in the process. In the following examples, the focus is on the individual trial. In these cases, the judge is the designer of the legal architecture, making use of technology and space to process evidence and communicate within and beyond the immediate courtroom. Before introducing more challenging and nuanced examples, I will contrast the fixity and closure of the conventional courtroom with the world-as-courtroom that we saw in the O J Simpson criminal trial.

The Court as Closed Space: a Conventional Civil Torts Court
In researching the spatial and material aspects of the NSW District Court (Civil) I was struck by the efforts to which lawyers must go to adduce evidence from other times and places. In scouring the courts for material signs of their role, I one day found a photograph in a corridor. This photograph had presumably fallen from the file of a lawyer in a motor accident damages case. On the marble tiled floor of Sydney's original Supreme Court building (then used by the District Court) was a picture of a country road. There were no cars, no people, just the curving centre lines, paddocks, fences and a few trees on either side. It had found its way to the heart of Sydney's legal precinct, into the Francis Greenway building which first defined that precinct from the 1820s.

The scene when such a photograph enters the court proceedings is familiar: it is tendered as evidence, passed to a court officer, viewed by the other party, handed to the judge, and recorded as an exhibit. Photographs, maps or other representations of places are then subject to examination and debate. They are shown to witnesses. A barrister asks permission to approach the witness; a map is spread out across the witness stand, and its microphone, while the court monitor wrenches off the headphones in pain. The judge cranes over to see the points in space that are being indicated on the map, while the other barrister tries to gain a vantage point.

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Without a map or plan it is even more tortuous. Where was the can of petrol when you last saw it? Which part of the verandah? How far from the steps? How high off the ground was the verandah at that point? Again, the scene is familiar. It is the way in which other places, at other times, are reproduced in words through legal questioning so that they may enter the court as evidence.

There is usually no jury, and few members of the public, in court for cases like these. Yet there is a public gallery and an unlocked door: the guarantee of public scrutiny of the judicial process. If the case is of any broader interest to the public there may be a journalist or two, with pens and pads. If there is a television crew, they will be at the bottom of the courthouse steps. The public at home may see one of the parties and a huddle of lawyers, one of whom may even say a few words. The public presence in the court itself is usually more obvious as an absence.

Court without Limits: The O J Simpson Trial
At the other extreme is the televised media trial, of which O J Simpson's murder trial is the most notorious example. A US audience could follow every word of the trial, with commentary, on the cable channel Court TV. Images from the trial, interspersed with various interviews, commentary and other images, of course found their way into news, current affairs and info-tainment programs across North America and the world. This spatial coverage differs from the conventional space of the courtroom in numerous ways. For the public, the trial is no longer 'placed' in a courtroom, with its careful situation of each of the players: judge, defence, prosecution, defendant, witness. It is rather 'delocalized'⁵ so that the action takes place in cyberspace, as a collage of courtroom, crime scene, television studio and freeway. Not only does the place of the courtroom blend into an undifferentiated and incoherent space, but the time sequence of the trial is cut in and out of real time, flashbacks, and predictions about the verdict. The trial has no more internal structure, once it is predigested and redigested, than the repeated image from the helicopter of Simpson's car driving interminably around the Los Angeles freeways before his arrest.

Clearly, these two views are at extremes of the manifestations of the place of the courtroom and its legal and architectural boundaries. Although they illustrate a crossroads at which court architecture finds itself, the architectural elements of the court and its procedures are hard to discern in the great gulf between the two. In order to discover what makes up the finer grain of a legal architecture of the courtroom, we may turn to two other trials, as case studies in which courts carefully addressed many of the issues raised in the first two cases. Both these next two trials made extensive and intelligent use of state-of-the-art technology to achieve their results, but the technology is not the focus of this analysis. Instead, they illustrate the ways in which the place of the court can be recreated and the trial's evidence reprocessed in ways which enhance the flow of information without breaching the legal boundaries of the court.

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In one instance, a court was able to 'sit' in two different United States cities simultaneously. In the other, a court which sat sequentially in Sydney and Newcastle was able to reproduce, as if in virtual reality inside the court, the site of the accident that it was investigating. In both instances, the needs of a concerned public were given a high priority.

One Court in Two Places Simultaneously: The Oklahoma Bombing Trial
Judge Richard Matsch, presiding in the Oklahoma City bombing trial of Timothy McVeigh, was determined to avoid the media circus to which the Simpson trial degenerated. Yet he had a problem. The trial was to be held in Denver, to avoid the difficulty of finding an unbiassed jury in Oklahoma, but the victims and their families in Oklahoma were exerting great political pressure to gain access to the proceedings. Declining an offer by Court TV to convey the trial to the concerned victims in Oklahoma, the Federal Court took control of all technical and legal aspects of the transmission. An aircraft hanger in Oklahoma was converted into an auditorium, in which a retired judge presided. The security of the closed circuit signal between Denver and Oklahoma was checked by the National Security Agency, the top-secret electronic-eavesdropping agency in the USA. This signal went both ways. Not only did the audience in Oklahoma see the trial, but Judge Matsch had a camera set up in Oklahoma monitoring the audience from the bench in Denver, on which was also displayed the image which was being tranmitted to Oklahoma.⁶ By effectively making the Oklahoma auditorium an annex to the public gallery of his court in Denver, in which all the same conditions applied, the court was effectively sitting in two places at once. Yet it achieved this with scrupulous attention to the legal boundaries of the court, so that the jury was impartial and protected, just as witnesses would not see inappropriate evidence.

Place Reproduced in a Mobile Court: The Gretley Mine Inquiry
In mid to late 1997, the Court of Coal Mines Regulation held an inquiry into an accident which led to four deaths at Gretley mine, in the Hunter Valley, in December 1996. Documents including plans, maps, daily transcripts, legislation and photographs were either keyed or scanned to electronic storage. There was also a video tape of the mine site. All documents were available on a server (accessible to the parties by modem with their own password); transcripts were provided to parties daily by e-mail and hard copy. CD-ROMs were available to the parties monthly, which included all documents and images (eg maps), which would be unwieldy to down-load via modem. In addition to the usual documents (transcripts, acts, subpoenaed documents), the court was dealing with complex three dimensional spatial relationships. The miners apparently drowned when they tunnelled into disused workings full of water and gas. The error occured as a result of mistaking the level at which the new workings relative to the old, so the spatial aspects of the mine, and its representatation in various maps, were crucial evidence.

All up-to-date information was also stored on a hard disk in the court. The computer linked to this hard disk was operated by the judge's associate and networked to a number of screens as well as to computers used by counsel in court. The screens (of various appropriate sizes) showed whatever appeared on the associate's computer and were clearly visible from the bench, the witness box, the bar table and the public gallery. The associate could select the relevant portion of maps or documents to be seen, and scale them up or down as necessary. Counsel could down-load data directly from the court's hard disk to their computers.

All representations of the mine in question, or of other relevant sites or documents, could be called up on the in-court screens as required by counsel. All of those present in the courtroom were able to view clearly, by means of the on-screen plans, video or photographs of the site, whatever aspect of the mine or its representations were the subject of discussion or evidence. As in the Oklahoma case, there were many families and workers affected by the accident, and providing them with access to all aspects of the proceedings was among the court's top priorities.

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Courts of this nature customarily take a view of the site of the accident. By improving the representation of the site in the courtroom, this hearing did not require a view, while sitting in specially prepared and equipped courtrooms in Newcastle and Sydney. The court became more mobile, to the extent that the data on which court and counsel relied was available in cyberspace, whether in Newcastle or in Sydney. On the other hand the court, only sitting in a courtroom, became even more rooted in its traditional, proclaimed, place.

Jurisprudential and Political Requirements
This legal architecture, which articulates the courtroom into zones and links it to remote sites and to a mass audience, is formed of a curious interplay among a number of cross cutting rationales or requirements. The diverse and competing sources of these requirements lead to indeterminacy of any particular problem, whether it be media access to the courtroom, or the admissability of electronic and remote evidence. I would like to canvass a number of sources, without endorsing or evaluating them, in the manner more of a history of ideas than a legal or political analysis. Having sketched these in overview, I hope to indicate two broad areas of tension which judges, architects and court managers face in designing courts or, for that matter, in 'designing' the spatial arrangements of particular trials.

We could attempt to locate the demands for the spatial integrity of the courtroom in purely legal terms, such as the law of evidence, and laws applying to prejudice of jurors or potential jurors. Yet this would tell a very small part of the story. Within a wider frame, the demands of law are meshed in with the political demands of today and of earlier times, and with changing views in jurisprudence.

Boundaries: Evidence and privilege
In the broadest terms of jurisprudence, the court protects its borders in order to ensure that only that which is legal enters the courtroom. The 'frame' of architecture, Haldar has noted, serves to maintain those 'rigid oppositional categories of truth and falsity, reason and madness, logic and emotion, evidence and hearsay, self and other.'⁷ This is most clearly seen in evidence law, where the borders of the law are patrolled by the requirements that evidence be admissible, introduced by (or at least with the right to challenge by) the parties, marked and stored by the court. Once admitted, evidence crosses from its transient life in the temporal world to a new existence in the law. Gamble and I have previously identified the barriers to and significance of the introduction of important aspects of social reality into the realm of law, where they may take on a new life as precedent or as data for the further elaboration of legislation and policy.⁸

In this way the boundaries of the courtroom protect proceedings from the entry of inadmissable evidence. They form another protective barrier, protecting witnesses from any prejudical action as a result of their evidence. The proceedings are thus protected from the intrusion of other legal action. Neither the actor inside the court nor a reporter fairly reporting those proceedings may be sued. The proceedings and the actors in court are inviolable within the boundaries of ‘sacred circle’

Judicial Power
Courts are also seen by the law as the seat of judicial power, with the boundaries of the court serving to mark out the limits within which that power may be exercised. The decisions of Australian and United States courts in constitutional cases touching on the role of the judiciary are rich in architectural metaphors:

Most critically, public confidence in the judiciary is indispensable to the operation of the rule of law; yet this quality is placed in risk whenever judges step outside the courtroom into the vortex of political activity. ⁹

For a Judge to descend from his judgment seat to the floor of the Court as a suitor against the man with whom he dealt or could have dealt judicially, seems to be a denial of the majesty of the law, a forgetfulness of his high representative character, an abasement of the dignity of his Court and his prestige as a Judge. ¹⁰

I have considered elsewhere the role played by the physical limits of the courthouse in determining whether a judge is acting as a judge or as a persona designata¹¹ Recent decisions of the High Court suggest that many factors other than the the physical location of the judge (inside or outside a courthouse when making a decison) defines the role as judicial or personal.¹² However, concern with the location of the judge's work indicates the central importance of the physical setting in delimiting the exercise of judicial power.¹³ The role of the courthouse in containing and regulating the use of judicial power is summed up by Haldar:

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Architecture marks off and signifies that authority-to-judge which can only be found inside a court of law and nowhere else, it assigns legal discourse to a proper place.¹⁴

Publicity and Equality
I have already referred to the special importance given to the fixed place of the courts, from Homer's 'sacred circle' to the 'fixed place' of the Magna Carta. The religious, political and legal rationales for those spatial doctrines would present fascinating objects of study in themselves. I would like to start this brief overview with the early colony of New South Wales, and the jurisprudence of the early nineteenth century.¹⁵ The ad hoc and moveable courts of the early colony were formally fixed in space by the Summary Offences Act (1832), which required sittings to be held 'in public at designated places'. The conjunction of these two concepts; publicity and place; roots the fixity of the colonial courts in the political demands of the era. The political significance of the public sphere, which developed throughout the bourgeois period from the eighteenth to the nineteenth century, was given explicit jurisprudential content in the era which followed the

French Revolution. Both Hegel and Bentham founded their theories of law on the principle of publicity as the guarantee of justice in the 1820s, a decade or so after Mirabeau's statement to the Consitutent Assembly:

Donnez-moi le juge que vous voudrez, partial, corrupt, mon ennemi même, si vous voulez: peu m'importe pourvu qu'il ne puisse rien faire qu'à la face du public. ¹⁶

By 1832 the young colony of New South Wales was to rely on this principle as the shield against the arbitrary law imposed by the colonial lay magistrate who carried with him 'the inherent privilege of making a court when and wherever he liked, so that if only he had his ink-horne and goosequill S his constable and flogger, he could open his law shop anywhere...according as his whim or duty dictated.'

By the mid twentieth century, theorists based the importance of the place of the court upon its power to abolish distinctions of privilege or power between the parties, or the jurors, 'equalized by the task and the place'.¹⁷

Every place from which justice is pronounced is a veritable temenos, a sacred spot cut off and hedged in from the "ordinary" world... [W]hether square or round it is still a magic circle, a play-ground where the customary differences of rank are abolished. Whoever steps inside it is sacrosanct for the time being.¹⁸

Situated Discourse
More recently, philosophers and jurists have remarked upon the connection between the ideal form of fair deliberation upon a disputed issue, which should characterise a trial, and the physical zones and layout of the courtroom.¹⁹ The specific place (in space and time) which is allocated to each participant (prosecution, defence, witness, judge) promotes the coherence of that 'complex and very sophisticated unity' which is the trial. For Garapon this 'situated discourse' is integral to the deliberation of the court.²⁰ An appreciation of the position from which the trial participant is speaking is crucial to an understanding of the trial, inside or outside the courtroom.

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The importance of publicity urges the judge to respond to the demands of the new media to ensure that the public has access to the proceedings, outcomes and deliberations of the trial. Whether this is to involve the fragmented and displaced discourse of an O J Simpson trial, or the extended public gallery of the Oklahoma bombing trial, must be determined by the court having regard to the technology available to build the appropriate legal architecture. Even the conditions on the televising of verdicts, such as those of the Supreme Court of Victoria and the Federal Court in Melbourne, constitute elements of the legal architecture by which courts become accessible, and by which the trial becomes comprehensible to the public.

Essential Tensions
In 'designing' the legal architecture of the courthouse or of the individual trial, the judge, architect or court manager must work within a framework which recognises the jurisprudential demands which I outlined above primarily in terms of the law of evidence and the location of judicial power. This is a complex task which must also be carried out within the social context of requirements for a public perception of justice that takes account of the need for equality among the parties (including the rights of victims and of defendants) and public scrutiny of the trial. Both the procedure and the architecture of the trial may enhance or detract from the processes of deliberation and active comprehension of the judge, jury, participants and the public (who are more likely to be seated in front of the television than in the public gallery).

These legal and social demands, requirements or opportunities may be understood in terms of two essential tensions or paradoxes which are inherent in the very nature of the court as a defined place of justice.

Places: the Trial, the Place-as-Evidence and the Public Space
If a trial must take place in a courtroom, the places outside the court present problems to the designer in the broad sense, whether architect or judge. While the trial is contained architecturally and delimited in space and time, it must comprehend those places which are to be introduced as evidence. This comprehension must be filtered through the requirements of evidence, taking account of the various legal and technological devices which are available. This is not unlike a map-making exercise, whereby a space must be represented in another space. The space in which the evidence must be represented is the space of law, its place the courtroom. A cartographic map is not a legal map. The map may enter the law as evidence, but the legal map whereby an outside place enters the law through a trial may consist of many such maps, as well as photographs, descriptions and re-examinations of descriptions.

Having entered the court, the place-as-evidence must still work as part of a process of deliberation and understanding. To the extent that a public outside the court and outside the law may need to participate in this process then the representations of place must be capable of emerging again from the court in the form of public information. If we accept Garapon's strictures against trial by media,²¹ then this public information should re-emerge, or be amenable to re-constitution as part of a situated discourse. How is the spatial structure of the trial to be retained within the place-as-evidence once it leaves the courtroom? Whether or not the evidence involves representations of places, can it be reconstructed in the public space outside the court? The possibilities of architecture, technology and the media reach their limits in these questions.

Power: Containment and Diffusion
The court is protected as a locus of judicial power by its containment of that power. This is signified in the court's exclusive authority as the place of judgement, as well as by its elevation, celebration and shielding of the judge. With a few ceremonial exceptions, the judge does not appear as a judge (that is, in a gown) nor does she or he act as a judge (that is, judging) outside the court. As we saw by reference to the language of court decisions, the private capacity of the judge is insulated from the official role by the courthouse walls, and in this way the authority of the official capacity is conserved and enhanced.

The tension in this case arises from the expectation that judicial power will act beyond the courthouse walls. While judicial power is spatially concentrated by courthouses, its impact is to be felt throughout society. This may be seen simply in the need to enforce or to have the community comply with judgements. It should not be seen so simply, of course, that we would expect the judge to emerge from the courthouse to enforce judgement. On the contrary, the very aloofness of the judge, the concentration of authority behind the courthouse walls seems intended to enhance that authority, and hence compliance. In certain cases, and notably in criminal matters, judicial authority is backed by the power of the state. Yet this power is itself only legitimate to the extent that it is accepted as such by the citizens, and deemed to be lawful by the courts. Without that authority a brute, illegitimate strength of the state would not only be unacceptable but it ultimately could not survive.

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Here again we must return to the spatial limits of the court. It is not judicial power which emanates from the courthouse, but judicial authority. The court, like the state, rules by consent, which it earns by its legitimacy and public acceptance. That acceptance still derives in part from the institutional reinforcement of ideas of law and respect for tradition and status. The symbolic power and the representations of the authority of the court and the judge continue to play a role in the calculus of consent. But in a democratic age public legitimacy ultimately derives from the knowledge and understanding that people have of the courts and their processes. The courts, while containing judicial power, must also diffuse information. Whether we see this in nineteenth century terms as the presence of the public, or in late twentieth century terms as an appreciation of the situated discourse of the trial, the courts' position rests upon their capacity to communicate.

Between Outside and Inside: The Architecture of the Trial and of the Court
Architecture is the medium of this communication. That is to say, the courts communicate through the architecture of both the courthouse and the trial. Courthouse architecture includes the foyers and corridors, video links, remote witness rooms and media facilities. The architecture of each trial includes the legal architecture of the situated discourse of the trial, the location of witnesses, the processing of evidence and the accommodation of the public and the media.

Architecture gives us walls and doors, closed and open communication channels. This is the architecture which mediates between inside and outside, between the place of the trial and the place-as-evidence, between containment and projection of judicial power, between law and not-law. These boundaries of the law are defined by judges, architects and court managers. In this paper I have tried to suggest some of the ways in which the boundaries and openings may include as well as exclude the public. In particular, by proposing a court architecture which takes seriously both the political and jurisprudential requirements, I hope to open a debate about the courts and their relationships with the non-legal world which goes beyond simple assumptions about the role of the media vis à vis the courts.

As the case studies of a number of trials illustrated, the relationships between the courts - the places in which trials are held - and the public sphere are potentially redesigned in each case. The architecture of each of those trials was distinctive, whatever courthouse they were held in. The Denver court's Oklahoma annex to its public gallery, the virtual reconstruction of a coal mine in the Gretley inquiry, the undifferentiated flood of public information and commentary in the O J Simpson trial, and the impenetrable boundaries of the conventional civil claims court each express a different version of justice, and a view of the courts' relation to the public. Judges design the architecture of a trial just as architects design the courthouse. There are variations between the media used by each, but the conceptual building blocks are shared.

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REFERENCES

¹Homer cited in Goodrich, P. 1986, Reading the Law. A Critical Introduction to Legal Method and Techniques, Oxford: Basil Blackwell. p. 168.
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²Huizinga, J. 1952, Homo Ludens. A Study of the Play Element in Culture, Foreword 1932 (Leyden), Paperback 1955 English ed. Boston: Beacon Press. p. 77.
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³ Jacob, R. 1995-96, 'The Historical Development of Courthouse Architecture / La formazione storica dell'architettura giudiziaria', Zodiac, 14:30-43.
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⁴ As in the District Court Act 1973 (NSW).
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⁵Garapon, A. 1996, 'Justice out of Court: The Dangers of Trial by Media', in Nelken, D. (ed) Law as Communication, Aldershot: Dartmouth; Garapon, A. 1995, 'Il Rituale Giudiziario', in Giasanti, A. & Maggioni, G. (eds) I Diritti Nascosti: Approccio Antropologico e Prospettiva Sociologica, Milano: Raffaello Cortina Editore.
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⁶Toobin, J. 1997, 'Victim Power', The New Yorker, 24 March, 1997.
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⁷Haldar, P. 1994, 'In and Out of Court: On Topographies of Law and the Architecture of Court Buildings (A Study of the Supreme Court of the State of Israel)', International Journal for the Semiotics of Law, 7 (20):185-200, p.191.
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⁸Gamble, H. & Mohr, R. 1996, 'Court and community: tensions and accommodation', in Mohr, R. & Lloyd, S. (eds) Delivering with Diversity, Wollongong: Centre for Court Policy and Administration, University of Wollongong.
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⁹Hobson v Hansen (1967) 265 F Supp 902 at 923 citing JS Wright J, quoted with approval by Gummow J in Kable [1996] 138 ALR 577 at 635 (emphasis added).
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¹⁰Troughton v McIntosh (1896) 17 NSWR(L) 334 at 340, quoted by McHugh J (dissenting) in Mann v O'Neill (1997) accessed electronically 10 September 1997, Copy on file with author.
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¹¹Mohr, R. 1997, 'Separation of Powers: the Mind and Body of the Judge', Paper presented at Shifting Structures, Shifting Sociology - The Australian Sociological Association Conference, 9 - 12 December 1997, at University of Wollongong, NSW.
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¹²Compare Grollo v Commissioner of Australian Federal Police (1995) 184 CLR 348 with Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] 138 ALR 220.
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¹³Mason, commenting from retirement, accepted that a judge could act in a personal capacity outside the court without infringing the doctrine of the separation of powers, but regarded as 'more dubious [the] proposition that a judge may be entrusted in virtue of his qualification as a judge with a non-judicial function, such as the issue of a warrant authorising interception of a telephonic communication, as a designated individual on the footing that he is not acting as a member of the court, notwithstanding that he is appointed because he is a judge and that he deals with the application in a court or his chambers, availing himself of his judicial staff and court facilities.' Mason, A. 1996, 'A New Perspective on Separation of Powers', Canberra Bulletin of Public Administration (82):1-9, p.1-2 (emphasis added).
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¹⁴Haldar 1994,p.169.
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¹⁵ Habermas, J. 1991, The Structural Transformation of the Public Sphere: an inquiry into a category of bourgeois society, Translated by Thomas Burger, Paperback (1st German edition 1962) ed. Cambridge, MA: MIT Press.
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¹⁶Mirabeau, quoted Millar, Robert W. 1923-24, 'The Formative Principles of Civil Procedure', Illinois Law Review, 18:1-36; 94-117; 150-168, p.156.
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¹⁷Arendt, H. 1977, 'Public rights and private interests', in Mooney, M. & Stuber, D. (eds) Small Comforts for Hard Times, NY: Columbia University Press, p.105.
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¹⁸Huizinga, J. 1952, Homo Ludens. A Study of the Play Element in Culture, Foreword 1932 (Leyden), Paperback 1955 ed. Boston: Beacon Press, p. 77.
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¹⁹See for example Hampshire, Stuart. 1989. Innocence and Experience, Cambridge, MA: Harvard University Press. who builds a model of decision-making processes upon the institutional arrangements of councils, courts, and negotiating tables. 'Often the very physical setting itself, with an equal number of delegates on each side of the table, expresses the norm of fairness which is to govern the negotiation.' (p 54).
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²⁰ Garapon 1995, p.298.
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²¹Garapon 1996
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