The Institutional Mismatch of State Civil Courts

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts that are in tension. First, state civil courts can function as violent actors. Second, they have become unseen, collective policymakers in our democracy. This mismatch and the roles that result should spur us to reimagine state civil courts as institutions. Such institutional change requires broad mobilization toward meeting people’s social needs across the branches of government and thus rightsizing state civil courts’ democratic role

The Democratic (Il)legitimacy of Assembly-Line Litigation

In response to Daniel Wilf-Townsend’s Assembly-Line Plaintiffs we take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. Part I contributes two critical components to Wilf-Townsend’s rich description of consumer debt cases: pervasive intersectional inequality among pro se defendants and a record of fraud among top filers. We add a sharper focus on the racial, gender, and class dynamics of civil courts, which play an outsized role in state civil justice dysfunction and have normative implications for institutional design solutions. In addition, we enhance Wilf-Townsend’s depiction of assembly-line plaintiffs by documenting pervasive fraud on the part of assembly-line plaintiffs as germane to the operation of civil courts. The clustering of corporate entities in state civil courts tells part of the story; the fraudulent conduct of plaintiffs in debt cases also plays a significant role in exacerbating poverty and inequity for marginalized groups in civil courts. Part II positions Wilf-Townsend’s proposal to restructure debt proceedings into agency-style adjudication as a form of problem-solving courts, which have an established history in the U.S. justice system. We place his proposal within the larger literature on active and suggest that Wilf-Townsend sets forth a first step toward reimagining state civil courts. Part III draws on an invest/divest framework to set forth a broader and more aspirational vision of reform. We propose that bold reform would focus on reestablishing the democratic legitimacy of state civil courts by increasing social provision to defendants economically ravished by assembly-line litigation and also by keeping courts squarely in the business of resolving two-party adversarial disputes

The Field of State Civil Courts

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social needs and structural inequality and what all of this means for the present and future of American democracy.Two key motivations drive scholarly interest in state civil courts. One motivation is generating knowledge. Historically, legal scholarship has largely ignored the most common and ordinary aspects of American civil justice in favor of studying the uncommon and the extraordinary. Thus, many of our core premises and assumptions—in civil procedure, administrative law, contracts, torts, and even constitutional law—are based on an understanding of only a sliver of formal civil justice activity. By case count, that slice is roughly two percent, the percentage of civil cases handled by federal courts each year, creating a glaring existential problem for legal scholarship. We need to know about the institutions that handle the other ninety-eight percent of civil matters to answer the most basic questions about civil law and the civil justice system, to say nothing of exploring broader social, economic, and political questions that intersect with civil courts’ work

The Institutional Mismatch of State Civil Courts

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts that are in tension. First, state civil courts can function as violent actors. Second, they have become unseen, collective policymakers in our democracy. This mismatch and the roles that result should spur us to reimagine state civil courts as institutions. Such institutional change requires broad mobilization toward meeting people’s social needs across the branches of government and thus rightsizing state civil courts’ democratic role

COVID, Crisis and Courts

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against Black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade, and we will return to more of the same. Whatever lies on the other side of this crisis, one thing is certain: one part of our government grapples with the individual consequences of inequality and oppression every day and will continue to do so with even more urgency in the future: state civil courts. Even before the pandemic, as other branches of government failed to address inequality, state civil courts became the government actor of last resort for the tens of millions of Americans each year who suffer the consequences of these failures. Now, these same courts—for the first time in history—have quickly and nimbly changed the way they provide justice. Courts’ improvisation in the face of a global public health crisis present an opportunity for social change. In contrast to burgeoning attention to state criminal courts, this role for state civil courts was hidden from those not directly involved and largely ignored by scholars. Now it is unavoidable. This essay lays out a framework for change that state civil courts should embrace as they reopen to the tidal wave of litigants

The Democratic (Il)legitimacy of Assembly-Line Litigation

In response to Daniel Wilf-Townsend’s Assembly-Line Plaintiffs we take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. Part I contributes two critical components to Wilf-Townsend’s rich description of consumer debt cases: pervasive intersectional inequality among pro se defendants and a record of fraud among top filers. We add a sharper focus on the racial, gender, and class dynamics of civil courts, which play an outsized role in state civil justice dysfunction and have normative implications for institutional design solutions. In addition, we enhance Wilf-Townsend’s depiction of assembly-line plaintiffs by documenting pervasive fraud on the part of assembly-line plaintiffs as germane to the operation of civil courts. The clustering of corporate entities in state civil courts tells part of the story; the fraudulent conduct of plaintiffs in debt cases also plays a significant role in exacerbating poverty and inequity for marginalized groups in civil courts. Part II positions Wilf-Townsend’s proposal to restructure debt proceedings into agency-style adjudication as a form of problem-solving courts, which have an established history in the U.S. justice system. We place his proposal within the larger literature on active and suggest that Wilf-Townsend sets forth a first step toward reimagining state civil courts. Part III draws on an invest/divest framework to set forth a broader and more aspirational vision of reform. We propose that bold reform would focus on reestablishing the democratic legitimacy of state civil courts by increasing social provision to defendants economically ravished by assembly-line litigation and also by keeping courts squarely in the business of resolving two-party adversarial disputes

Judges and the Deregulation of the Lawyer\u27s Monopoly

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as well as how technology and artificial intelligence may be leveraged in adjudicating disputes.While overt regulatory changes remain enormously controversial, scholars and policymakers have missed a critical part of the landscape: the role state court judges are playing in the de facto deregulation of the legal profession at the civil trial level. Across the nation, the rise of pro se parties has forced judges to rethink their roles. In the new reality of pro se courts, judges in debt collection, eviction, and family matters—which, together, occupy roughly ninety percent of all civil court dockets—must make critical decisions about how to balance the duty of impartiality with the need to achieve a measure of justice and ensure fair adjudication of disputes.Drawing on original data, including interviews and hundreds of hours of court observations, from a multi-site investigation of the civil justice landscape, this Article shows how some judges—mired in the pro se crisis—are relying on a shadow network of nonlawyer professionals to substitute for the role counsel has traditionally played. Focusing on domestic violence courts as the primary illustration, we find that even in jurisdictions not currently contemplating regulatory reform, judges are relying on organized nonlawyer actors to prepare pleadings, offer substantive and procedural information to litigants, and provide counseling services. These nonlawyer advocates play a significant role in shaping the facts and arguments presented to the judge which we believe, in turn, influences processes and outcomes.In addition to demonstrating this novel phenomenon, the Article raises three important implications of trial judges’ role in diluting the lawyer’s monopoly. First, the collaboration between judges and nonlawyer advocates is hidden behind the scenes. The quiet partnership assists judges in maintaining the perception of impartiality in the courtroom, which is critical to public trust in the courts, while enabling pro se parties to properly raise claims and seek remedies from the justice system. Second, an opportunity to develop norms around the role of nonlawyers is being squandered. Trial court judges, who are typically excluded from formal regulatory processes, could be leaders in deregulating the lawyer’s monopoly in ways that ensure the integrity of the legal profession, fill a justice gap for pro se litigants, and help to open up pathways for public and formal recognition of a new class of legal professionals. And finally, due process demands that the role of nonlawyers be made public. Our research reveals that only one party to the dispute—the petitioner for a protective order—receives nonlawyer assistance, while the respondent typically receives little to no assistance at all. Domestic violence advocates have been effective in organizing wrap-around services for survivors, including help with preparing court papers, but those accused of domestic violence and subject to protective order proceedings benefit from no such organizing effort. Bringing nonlawyer assistance out of the shadows would make plain that more needs to be done to level the playing field for both parties

Studying the “New” Civil Judges

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices for courts, litigants, and the public. From top to bottom, we can describe and theorize about our existing civil justice system in only piecemeal ways. Given legal scholarship\u27s near-complete focus on federal civil courts, the stories we tell about the civil justice system may be based on assumptions and models that only apply in the rarefied world of federal court. Meanwhile, state judges and courts--which handle ninety-nine percent of all civil cases--are ripe for theoretical and empirical exploration.In response, we call for more research aimed at increasing our understanding of state civil courts and judges and offer a theoretical framework to support this work, one that reflects how state courts differ from federal courts. This framework is grounded in a core fact of American civil justice, one both easily observed and largely overlooked: the majority of parties in state civil courts are unrepresented. Given this new pro se reality, our theoretical framework identifies four novel assumptions to guide future research: (1) the adversary process is disappearing; (2) most state court business is still conducted through in-person interactions between judges and parties; (3) the judicial role is ethically ambiguous in pro se cases; and (4) a largely static body of written law has not kept pace with the evolving and dynamic issues facing state courts. Building on the growth of empiricism and empirically grounded theory in traditional legal scholarship and access to justice research, we call on scholars to develop theory and gather data to map the new reality of civil justice and judging in America, and suggest questions to guide future research

Judges in Lawyerless Courts

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power they wield – in dispensing justice for millions of unrepresented people each year. While today’s civil procedure scholarship focuses on documenting and analyzing growing judicial discretion in complex litigation, a much larger sphere of unexamined and largely unchecked judicial discretion has been hiding in plain sight in state civil trial courts.This Article’s theoretically-driven multijurisdictional study of judicial behavior in lawyerless courts contributes to literatures in civil procedure, judicial behavior, and access to justice. It examines three state civil courts in jurisdictions that rank at the top, middle, and bottom of the Justice Index (a ranking of state and national access to justice efforts). Despite major jurisdictional differences and contrary to conventional wisdom, judges’ behavior is surprisingly homogenous in the data. Rather than offering simplification and accommodation to pro se litigants as reforms suggest, judges maintained courts’ complexity and exercised strict control over evidence presentation. The Article theorizes that this unexpected finding reflects a core structural reality – civil courts were not designed for unrepresented people. And judicial behavior is shaped by three factors that result from civil justice system design: ethical ambiguity and traditional assumptions about a judge’s role, docket pressure, and pre-hearing case development provided to only one party.In theory, judicial assistance to pro se litigants is a low-cost, practical solution to the problem of lawyerless courts. In practice, the vision for judicial role reform may overpromise what individual judges can do and underestimate implementation challenges. This study suggests that the legal and structural scaffolding to support judicial assistance to pro se litigants is woefully insufficient. The Article concludes the vision for judicial role reform will not be realized without formal legal requirements, consistent feedback about implementation, and a reduction in existing docket pressures

Judges in Lawyerless Courts

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation. Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – in dispensing justice for millions of unrepresented people each year. While today’s civil procedure scholarship focuses on documenting and analyzing growing judicial discretion in complex litigation, a much larger sphere of unexamined and largely unchecked judicial discretion has been hiding in plain sight in state civil trial courts. At the intersection of civil procedure, judicial behavior, and access to justice, this Article presents a theoretically driven multijurisdictional study of judicial behavior. It examines three state civil courts in jurisdictions at the top, above the median, and near the median in the Justice Index (a ranking of state-level access to justice efforts). Despite significant jurisdictional differences, judges’ behavior is surprisingly homogenous in the data. Rather than offering accommodation, assistance, and simplification as reforms suggest, judges maintained courts’ legal complexity and exercised strict control over evidence presentation. The Article theorizes that a fundamental structural problem drives this unexpected finding – civil courts were not designed for unrepresented people. And judicial behavior is shaped by three factors that result: ethical ambiguity and traditional assumptions about a judge’s role in adversarial litigation, docket pressure, and systematic legal assistance provided to petitioners only. The Article concludes judicial role failure is but one symptom of lawyerless courts’ fundamental ailment: the mismatch between courts’ adversarial, lawyer-driven dispute resolution design and the complex social, economic, and interpersonal problems they are tasked with solving for users without legal training