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Cover_Summer 2014 6/9/2014 10:09 AM Page 1 Dædalus coming up in Dædalus:

From Atoms Jerrold Meinwald, Jeremiah P. Ostriker, Christopher Cummins, to the Stars K. N. Houk & Peng Liu, John Meuring Thomas, Chaitan Khosla, Dædalus Fred Wudl, Gáspár Bakos, Scott Tremaine, Pieter van Dokkum, David Spergel, Michael Strauss, Anna Frebel, and others Journal of the American Academy of Arts & Sciences Summer 2014 What is the Brain Rusty Gage, Tom Albright, Emilio Bizzi, Gyorgy Buzsaki & Good For? Brendon O. Watson, James Hudspeth, Joseph LeDoux, Earl K. Miller, Terry Sejnowski, Larry Squire & John Wixted, Robert Wurtz, Summer 2014: The Invention of Courts and others The Linda Greenhouse Introduction: The Invention of Courts 5 Invention Judith Resnik Reinventing Courts Food, Health, and G. David Tilman, Walter C. Willett, Meir Stampfer & Jackie Jahn, of Courts as Democratic Institutions 9 the Environment Nathan Mueller & Seth Binder, Steve Gaines & Chris Costello, Andrew Jonathan Lippman State Courts: Enabling Access 28 Balmford & Rhys Green, G. Philip Robertson, Brian G. Henning, Robert A. Katzmann When Legal Representation is De½cient: Steve Polasky, and others The Challenge of Immigration Cases for the Courts 37 plus What’s New About the Old?; Water; On an Aging Society; Carol S. Steiker Gideon’s Problematic Promises 51 The Internet &c Jonathan Simon Uncommon Law: America’s Excessive Criminal Law & Our Common-Law Origins 62 Deborah R. Hensler Justice for the Masses? Aggregate Litigation & Its Alternatives 73 Gillian K. Had½eld Innovating to Improve Access: Changing the Way Courts Regulate Legal Markets 83 Michael J. Graetz Trusting the Courts: Redressing the State Court Funding Crisis 96 Frederick Schauer Our Informationally Disabled Courts 105 Marc Galanter The Continuing Decline & Displacement & Angela M. Frozena of Trials in American Courts 115 Stephen C. Yeazell Courting Ignorance: Why We Know So Little About Our Most Important Courts 129 Susan S. Silbey The Courts in American Public Culture 140 Jamal Greene (Anti)Canonizing Courts 157 Kate O’Regan Justice & Memory: South Africa’s Constitutional Court 168

U.S. $13; www.amacad.org Cherishing Knowledge · Shaping the Future Cover_Summer 2014 6/9/2014 10:09 AM Page 2 William Clift’s late twentieth-century pho to - end slavery and enfranchise women and men, graph, Reflection, Old St. Louis County Court- produced the Civil War, amendments to the house, St. Louis, Missouri, forecasts many of the U.S. Constitution, and eventually the concept themes of this volume. Shown at the center is that all persons are equal rights holders before the domed Old St. Louis County Courthouse, the law–thereby undoing the rulings in the where Dred and Harriet Scott sought to secure Scott and Minor cases. their freedom. Although a Missouri jury had In the 1930s, as caseloads grew and federal ordered the Scotts free in 1850, the Missouri dollars helped to fund new buildings to buffer Supreme Court reversed the decision. The the effects of the Depression, the Old St. Louis Scotts sought relief from the U.S. Supreme County Courthouse was abandoned in favor Court, but in 1857, the Court held that, as slaves, of a new Civil Courts Building. Rescued from the Scotts had no juridical personhood and potential demolition in 1940, the Old Court- there fore could not be heard in court to chal- house was renovated and gained its status as a lenge that ruling. national monument. No longer a functioning The Old St. Louis County Courthouse was courthouse, the building now welcomes tour- also the site of Virginia Minor’s efforts to be ists and instructs them on the court’s most recognized as an eligible voter. In 1872, Minor famous cases. argued that the Privileges and Immunities Two other buildings are central to the pho- Clause of the recently enacted Fourteenth tograph. The large commercial structure re- Amendment required the state of Missouri to flecting the Old Courthouse was known in the permit women to vote in its elections. But in 1970s as the Equitable Building. The of½ce its 1875 ruling, Minor v. Happersett, the U.S. tower, once owned by the Equitable Life In- Supreme Court concluded that, although surance Company, houses businesses–law Minor was a citizen, as a woman she had no ½rms and banks–that reflect the courts’ nexus federal right to suffrage. to the economy. The other building, located The Old St. Louis County Courthouse thus behind the Courthouse and seen through the stands as a testament to injustices promulgated reflection, was once the regional headquarters in the name of the law. The choice of this of the American Arbitration Association, an image makes plain that this volume entails no organization that has become a central com- romance of courts as intrinsically just. Rather, petitor of courts. The flat glass of the Interna- the essays explore the challenges that courts tional Style skyscraper lends the appearance face, as well as what they can offer by way of of a courthouse subsumed by the corporate opportunities to generate debates about the structures that it faces. meaning of justice. Such conflicts, in tandem with decades of efforts by social movements to © 2014 by Judith Resnik

Inside front cover: Reflection, Old St. Louis County Court house, St. Louis, Missouri, 1976. © William Clift. Judith Resnik and Linda Greenhouse, Guest Editors Phyllis S. Bendell, Managing Editor and Director of Publications D Peter Walton, Senior Editorial Assistant Emma Goldhammer, Senior Editorial Assistant J

Committee on Studies and Publications Jerrold Meinwald and John Mark Hansen, Cochairs; Jesse H. Choper, Denis Donoghue, Gerald Early, Carol Gluck, Sibyl Golden, Linda Greenhouse, John Hildebrand, Jerome Kagan, Philip Khoury, Steven Marcus, Eric Sundquist

Dædalus is designed by Alvin Eisenman.

Board of Directors Don M. Randel, Chair of the Board Jonathan F. Fanton, President Diane P. Wood, Chair of the Council; Vice Chair of the Board Alan M. Dachs, Chair of the Trust; Vice Chair of the Board Jerrold Meinwald, Secretary Carl H. Pforzheimer III, Treasurer Nancy C. Andrews David B. Frohnmayer Helene L. Kaplan Nannerl O. Keohane Roger B. Myerson Venkatesh Narayanamurti Pauline Yu Louis W. Cabot, Chair Emeritus Dædalus Journal of the American Academy of Arts & Sciences

Nineteenth-century depiction of a Roman mosaic labyrinth, now lost, found in Villa di Diomede, Pompeii

Dædalus was founded in 1955 and established as a quarterly in 1958. The journal’s namesake was renowned in ancient Greece as an inventor, scientist, and unriddler of riddles. Its emblem, a maze seen from above, symbol- izes the aspiration of its founders to “lift each of us above his cell in the labyrinth of learning in order that he may see the entire structure as if from above, where each separate part loses its comfortable separateness.” The American Academy of Arts & Sciences, like its journal, brings together distinguished individuals from every ½eld of human endeavor. It was char- tered in 1780 as a forum “to cultivate every art and science which may tend to advance the interest, honour, dignity, and happiness of a free, independent, and virtuous people.” Now in its third century, the Academy, with its nearly ½ve thousand elected members, continues to provide intellectual leadership to meet the critical challenges facing our world. 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State Court Funding Crisis © 2014 by Michael J. Graetz Institutional subscriptions are on a volume- A Grin without a Cat: The Continuing Decline & year basis. All other subscriptions begin with Displacement of Trials in American Courts the next available issue. © 2014 by Marc Galanter & Angela M. Frozena Justice & Memory: South Africa’s Constitutional Court Single issues: $13 for individuals; $35 for insti- © 2014 by Kate O’Regan tutions. Outside the United States and Canada Commentary, “Reflection, Old St. Louis County add $6 per issue for postage and handling. Court house, St. Louis, Missouri”; Commentary, Prices subject to change without notice. “Crack, Jury Chairs, Warren County Courthouse, Claims for missing issues will be honored free Warrenton, Missouri” of charge if made within three months of the © 2014 by Judith Resnik publication date of the issue. Claims may be Editorial of½ces: Dædalus, American Academy of submitted to [email protected]. 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Subscription and address changes should be ad - Corporations and academic institutions with mit valid photocopying and/or digital licenses with dressed to Press Journals Customer Service, ccc One Rogers Street, Cambridge ma 02142-1209. the Copyright Clearance Center ( ) may Phone: 617 253 2889; u.s./Canada 800 207 8354. reproduce content from Dædalus under the Fax: 617 577 1545. Email: [email protected]. terms of their license. Please go to www .copyright.com; ccc, 222 Rosewood Drive, Printed in the United States of America by Danvers, ma 01923. Cadmus Professional Communications, Science The typeface is Cycles, designed by Sumner Press Division, 300 West Chestnut Street, ca Ephrata pa 17522. Stone at the Stone Type Foundry of Guinda . Each size of Cycles has been sep arately designed in the tradition of metal types. Introduction: The Invention of Courts

Linda Greenhouse

This volume is both prequel and sequel. In 2008, Dædalus published an issue entitled “On Judicial Independence,” exploring from a variety of perspectives the de½nition of that term, as well as age- old and newly emergent threats to the ability of judges to do their work without undue constraint. Six years later, we both carry that story forward and shift the analytical frame to consider courts themselves: their past and ongoing evolution, and the work that a democracy can reasonably expect them to do. To write about courts is to write about political theory, about lawyering, about ½scal priorities, and about social welfare, as well as about courts’ dependence on and independence from the body LINDA GREENHOUSE, a Fellow of politic. The subject evokes a great variety of conver - the American Academy since 1994 sations, from the highly theoretical to the nitty gritty and a member of the Academy’s of service delivery for human needs in all their man - Council, is the Joseph Goldstein ifestations. Discussions of courts, at least in the Lecturer in Law at Yale Law School. United States, bring lawyers rapidly into view, along She covered the Supreme Court for with criminal defendants, civil litigants, administra- The New York Times from 1978–2008 and continues to write a biweekly tive agencies, budgets, public ½nancing, and popular column on law as a contributing opinion. columnist for The New York Times Courts exist in our imagination and in bricks and website. Her publications include mortar, in the stories we tell ourselves about the soci- The U.S. Supreme Court: A Very Short ety we hope to be and in our acknowledgment that Introduction (2012), Before Roe v. in our aspiration for “justice for all,” we too often fall Wade: Voices That Shaped the Abortion short. Our egalitarian ambitions for courts have Debate Before the Supreme Court’s Rul- ing (with Reva B. Siegel, 2010), and grown over the years, perhaps outstripping our will Becoming Justice Blackmun: Harry to provide the means to ful½ll our promises. Across Blackmun’s Supreme Court Journey a shifting landscape, we assign courts an astonishing (2005). range of tasks while lacking consensus on whether

© 2014 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00283 5 The alternative mechanisms could do some jobs (1963) established that an indigent person Invention more ef½ciently, less expensively, and bet- charged with a serious crime was entitled of Courts ter than adjudication. What “better” means to a court-appointed lawyer. Carol Steiker, in this context is the subject of de bate anda noting Gideon’s long-ago triumph, analyzes current source of tension, as co–guest ed - the reasons for Gideon’s contemporary fail- itor Judith Resnik’s essay demonstrates. ure: speci½cally, the extent to which, in an era of large numbers of criminal prosecu- To explore these themes, Judith Resnik tions and mass incarceration, reality has and I invited a cross-disciplinary group of fallen far short of the guarantee of legal scholars and judges to contribute the es - representation. Steiker identi½es the key says in this volume. The issue’s title, “The factors–the lack of independence of and Invention of Courts,” is perhaps mystify- resources for public defender of½ces, the ing. Haven’t courts always existed? Mod- unwillingness of the Supreme Court to in- ern society surely did not invent courts; validate convictions of defendants who had they appear in the ancient world, in classi- patently inadequate counsel, and the plea- cal texts including the Bible. Yet as Resnik bargaining mill–that must be addressed if explains in her essay, courts as we know a way forward can be found. them today are very much a social and po - Jonathan Simon looks at the challenges litical construct of the modern age. Em- posed to the criminal justice system by the bodying a progressive vision of the rela- interrelationship of procedure, court pro- tionship between citizen and state, courts cesses, and substantive rules of law. His fo- themselves became a site of democracy: a cus is the distinctive turn that American reinvention. The volume opens with her criminal procedure has taken from its exploration of the roots of that transforma- English roots, and how legislatively made tion and the current pressures that threat- crim inal law has enhanced the power of en to transform courts yet again, now from prosecutors. Simon joins Steiker in de- public forums to private agents. scribing how the failure of adequate fund- Threaded throughout the essays that fol- ing for defense lawyers undermines the ad- low are concerns that the current system versary system. is not responsive to the needs of those it We turn next to the civil side of the justice aims to serve. These issues are at the center system–to the question of how to equip of the commentary by two distinguished multiple litigants with legal services judges, Chief Judge Jonathan Lippman of through group-based litigation. Deborah New York State and Chief Judge Robert R. Hensler addresses this topic, examining Katzmann of the United States Court of the challenges that widespread injuries– Appeals for the Second Circuit. From the mass torts–pose to the civil justice system. perspectives of the state and federal judi- What are the tradeoffs to be made between ciaries, Lippman and Katzmann describe an individual’s “day in court” and group- the steps they have taken to address dis- based lawsuits? Can new rules and prac- turbing gaps in access to the legal system tices be shaped to achieve both ef½cien cy for criminal and civil litigants, as well as and fairness, and how are either of these for immigrants facing deportation. Both concepts de½ned? judges aim to expand the resources for the Resources–of litigants and of courts– provision of lawyers, essential to enabling are also the subject of the two essays that claimants to receive a fair hearing. follow. Lawyers are too expensive for most A half century ago, the Supreme Court’s Americans, meaning that more than 95 landmark decision in Gideon v. Wainwright percent of the people in domestic disputes,

6 Dædalus, the Journal ofthe American Academy of Arts & Sciences in landlord-tenant conflicts, and in con- the disappearance of the trial from federal Linda sumer-credit cases go unrepresented. Can courts, though trials remain anachronisti- Greenhouse costs be lowered? What alternatives can cally vivid in the public’s imagination and be found? Gillian K. Had½eld offers a trans- the media’s portrayals of judging. national look at English innovations in the Data are less plentiful about the state structure of legal services, new arrange- systems that account for more than 90 per- ments that challenge the basic Amer ican cent of the country’s judicial business and assumption that lawyers provide the only that, in practice, have a broader impact means of representation in court. Had½eld than do federal courts on the lives of most argues that by requiring lawyer-only rep- Americans. In his essay, Stephen C. Yeazell resentation, courts themselves have be- provides a history of the development of come the sources of barriers to legal coun- funding, at state and federal levels, for re- sel; and her aim is to lower those barriers search on courts, while also explaining the so that professionally trained non-lawyers, sources of data gaps. Given that methods along with new tech nologies, can help ad - of collection vary state by state (what he dress the access needs that now go un½lled. calls “data federalism”), comparisons Of course, courts themselves need re- across jurisdictions and knowledge of sources. Given recent budget reductions trends over time are extremely limited. in many arenas, state and federal judicia ries Yeazell details the dimensions and conse- have had to cut back on services. Mi chael quences of our collective ignorance about J. Graetz details the impact of the fund ing the state courts and shows why refocus- crisis that besets state courts and that ing attention on those venues is critical to threatens not only their functions but also our understanding of the whole of the U.S. their independence. To ensure adequate justice system. and stable ½nancing, he offers an innova - Despite the information gaps, courts tive strategy: establishing trust funds for loom large in American public culture. courts. Susan Silbey provides a detailed analysis of But courts not only need funding, they public opinion about courts. Noting that also need judges in a position to grasp the Americans see courts as at once “godlike” full dimension of the claims they are being and “game-like,” Silbey argues (using re - asked to resolve. As Frederick Schauer ex- cent social science research) that this abili- plains in his essay “Our Informationally ty to hold both images simultaneously– Disabled Courts,” courts generally rely on one aspirational and the other pragmatic information (or “inputs”) from the parties –is what sustains public support for the in cases. Schauer examines the structural judicial enterprise. de½cits in the adversarial system, in the In his provocative essay, Jamal Greene U.S. rules of evidence, and in the limits of offers a different angle on courts in the appellate records that prevent judges from public imagination. He analyzes what he acquiring the knowledge they need to do terms the “anti-canon”–certain cases that their work well. are consistently dismissed in public discourse as aberrational–including the no- How much do we know about what torious Supreme Court decisions of Dred courts themselves do? Trials (“a day in Scott (1857) and Plessy v. Ferguson (1896). court”) are the focus of the essay by Marc Greene argues that this categorization of Galanter and Angela Frozena. Galanter and an anti-canon of bad cases has blinded us Frozena pull together detailed data that to the inconvenient fact that these deci- will surprise many readers, documenting sions were the product of the dominant

143 (3) Summer 2014 7 The political culture of their time. Their im- Invention plications need to be faced, rather than of Courts written off as rogue actions divorced from their context. Finally, we asked Kate O’Regan, who served a ½fteen-year term (1994–2009) as one of the ½rst judges on South Africa’s post-apartheid Constitutional Court, to of - fer her reflections. Here was a court that was indeed invented, in the full view of an astonished world. O’Regan writes pow- erfully of an institution born not only as a court but as a symbol of the hopes we hold for all courts.

8 Dædalus, the Journal ofthe American Academy of Arts & Sciences Reinventing Courts as Democratic Institutions

Judith Resnik

Abstract: Eighteenth-century constitutional commitments guaranteeing rights-to-remedies were shaped when members of the propertied classes were the prototypical litigants and governments’ criminal justice systems were nascent. Twentieth-century egalitarian norms expanded the imagination of what justice could produce, and courts turned into sites of democracy. The particular and peculiar practices of adjudication produce, redistribute, and curb power among disputants who disagree in public about the import of legal rights. But new procedures–alternative dispute resolution (ADR)–encourage, and sometimes require, disputants to mediate or to arbitrate disputes privately as a predicate to or in lieu of using the public forum of courts. Some initiatives delegate adjudication to administrative tribunals, and others out - source binding decision-making to private providers. The resulting fragmentation and privatization of adjudication have profound implications for the newly minted democratic character of courts. The durability of courts as active and disciplined sites of public exchange ought not to be taken for granted. Like other venerable institutions of the eighteenth century–such as the postal service and the press, which served in parallel fashion to disseminate information and support democratic competency–courts are vulnerable.

The idea that courts are a modern invention may seem counterintuitive. References to judges and to adjudication abound in classical and biblical sources, and the contemporary landscape is replete with courthouses, often marked by statues of the Renais- sance Virtue Justice to differentiate their function from that of other government buildings. Courts seem so obviously central that the novelty of their JUDITH RESNIK, a Fellow of the American Academy since 2001, is contemporary incarnation, their social welfare im - the Arthur Liman Professor of Law plications, and the fragility of the aspirations that at Yale Law School. Her publica- they have come to represent can easily be lost. tions include Representing Justice: In - Adjudication in democratic polities is remarkably vention, Controversy, and Rights in City- different than the traditions from which it emerged. States and Democratic Courtrooms In ancient times, judges were loyal servants of the (with Dennis Curtis, 2011), Federal state; audience members were passive spectators Courts Stories (edited with Vicki C. Jackson, 2010), and Migra tions and watching rituals of power; and only certain persons Mobilities: Citizenship, Borders, and were eligible to participate as disputants, witnesses, Gender (edited with Seyla Benhabib, and decision-makers. In contrast, today’s judges are 2009). independent actors in complex and critical relation-

© 2014 by Judith Resnik doi:10.1162/DAED_a_00284 9 Reinventing ships with the government and the public, ½rmation of same-sex marriages. But court Courts as and women and men of all colors are eligi- decisions are also used to argue for cut- Democratic Institutions ble to ½ll all the seats in the courtroom, backs. Damages verdicts by juries, per- including on the bench. Social and politi- ceived to be unduly high, have prompted cal movements of the last three centuries some legislatures to enact monetary caps brought about these changes, transform- on civil remedies, and vivid trials for ter- ing adjudication into a demo crat ic practice rible crimes have helped to produce more to which all persons have access. retributive sentencing laws, imposing long The choice of the adjective democratic prison terms on convicted defendants. requires explanation. In discussions of In addition to serving the political func - courts, the term democracy is often used tions of redistributing power and contrib- to reference the jury, which enables citi- uting to debates about norm development, zens to serve as judges, or to argue that courts ought to be categorized as the con - judicial review of legislation is undemo - stitu tionally mandated services that they cratic because it can override majoritarian are. Discussions of the federal constitution political processes.1 My focus is neither on typically focus on its instructions protect- juries nor on voting. Rather, my argument ing the citizenry from government (such as is that courts have themselves become sites prohibitions on “abridging the freedom of of democracy because the particular and speech” and on “unreasonable searches peculiar practices of adjudication produce, and seizures”4) rather than on textual com - redistribute, and curb power among dis- mitments obliging the government to en - putants who disagree in public about the sure security and safety. The general view import of legal rights.2 is that “negative” rather than “positive” The quotidian activities of ordinary lit- liberties abound. igation oblige disputants to treat each other Yet the structures of government–courts as equals and to provide one another with included–are themselves a species of posi - information. After listening to public ex - tive rights, imposing af½rmative obliga- changes (structured to enable parity be - tions that governments provide services. 5 tween disputants) and upon evaluating the Dozens of state and federal provisions interactions of fact and norm, juries ren- (both constitutional and statutory) require der verdicts or judges provide justi½ca tions governments to create courts and specify for their decisions. The mandate of courts methods for selecting judges, the number to operate in public endows their audi- required for decisions, their tenure in of½ce ence with the capacity to and the author- (and other mechanisms for protecting ju - ity of critique. The redundancy produced dicial independence), and the parameters when different litigants raise or de fend of jurisdiction. In addition, consti tu tions similar claims can prompt debate about provide details about the procedural rights the underlying legal rules. Thus, the proof criminal defendants and civ il litigants, cesses of adjudication develop and re vise and build in roles for jurors, witnesses, governing norms through popular par - the public, and, more recently, victims. ticipation in egalitarian practices that Courts are thus a constitu tionally obliged, constrain public and private power.3 substantive enti tle ment–a regulated gov - As with other democratic exchanges, the ernment service that is, at a formal level, outcomes in courts are highly variable. Lit - universal in its availability. igation has contributed to the recognition of new rights, such as prohibitions on Below, I sketch the rise of adjudication in household (“domestic”) violence and af - the United States and the implications of

10 Dædalus, the Journal ofthe American Academy of Arts & Sciences egalitarian access for the law and practices disseminate information and support Judith of courts. I then turn to the contemporary democratic competency–courts are vul- Resnik challenges facing courts. As legislatures nerable.7 expanded the ranks of rights hold ers and Thus, this discussion of courts reflects the reach of criminal law, the num bers of the context in which they operate. Courts’ persons in courts swelled. Governments current obligations to provide services and responded by creating more judgeships, subsidies are examples of the success of a more courthouses, and more prisons. Fur - range of egalitarian regulatory policies, ther, the egalitarian social movements of just as the cutbacks are part of a broader the twentieth century not only produced deregulation agenda that prefers private universal rights to courts but also generated ordering to public oversight. If courts are new rights in courts. In response to the large to endure as democratic sites of norm con - numbers of indigent litigants, drawn in ei- testation, the public and private sectors ther as criminal defendants or seeking to will have to renew political commitments ½le civil cases, judges interpreted constitu- to the facets of adjudication that render it tions as requiring additional, targeted ser - an egalitarian opportunity for redistrib- vices, such as waiving ½ling fees or provid- uting and constraining power. ing free lawyers for certain subsets of disputants. In addition to expanding the capacities That every Freeman for every Injury done of courts and their users, other reforms aim him in his Goods, Lands or Person, by any to alter how courts do their work. Judges other Person, ought to have Remedy by the have, in recent years, adopted a managerial Course of the Law of the Land, and ought stance, pressing lawyers and litigants to to have Justice and Right for the Injury done focus on settlement in both civil and crim- to him freely without Sale, fully without any 6 inal cases. Courts and legislatures have al- Denial, and speedily without Delay, accord- so crafted new procedures–alternative dis- ing to the Law of the Land. pute resolution (adr)–to encourage, and –The 1776 Delaware Declaration of Rights8 sometimes require, that disputants mediate or arbitrate disputes as a predicate to or All courts shall be open, and every person, in lieu of using the public forum of courts. for an injury done him in his lands, goods, Some of these initiatives entail delegation person, or reputation, shall have remedy by of adjudication to administrative tribu nals, due course of law, and right and justice ad- and others outsource binding decision- ministered, without sale, denial, or delay. making to private providers. –Alabama Constitution of 1819, art. I, sec. 149 The resulting fragmentation and privat - ization of adjudication have profound implications for the newly minted democratic English practices–including the echoes character of courts, which is now at risk. of the Magna Carta heard in the excerpts Courts are monumental in ambition and above from state constitutions–provide often in physical girth. But their durabili- the backdrop for the American develop- ty as active and disciplined sites of public ment of rights-to-remedies and open exchange, accessible to ordinary lit igants, courts. ought not be taken for granted. Like other The 1676 Charter of the English Colony venerable institutions of the eighteenth of West New Jersey required that “in all century–such as the postal service and the publick courts of justice for trials of causes, press, which served in parallel fashion to civil or criminal, any person or persons . . .

143 (3) Summer 2014 11 Reinventing may freely come and attend.”10 Jury trials courts were institutions centered on the Courts as were the procedural structure that under- protection of property and status-conven - Democratic Institutions girded openness, as local citizens sat in tional relationships, as was made painfully judgment of their neighbors. clear by the U.S. Supreme Court’s 1857 Dred One of the major political theorists of Scott decision, which held that Harriet and obligatory public processes was Jeremy Dred Scott could not seek redress in courts Bentham; he argued that a host of insti- because they lacked legal personhood and tutions ought to operate under the princi- juridical capacity.17 ple of “publicity,” so that the “Tribunal of The idea that courts are both sources of Public Opinion” could assess the re - the recognition that all persons are equal sults.11 Through publicity (“the very soul rights holders and resources for the array of of justice”12), judges, while presiding at humanity is an artifact of the ½rst and sec- trial, would themselves be “on trial.”13 ond Reconstructions. Not until well into The idea of public oversight of judges– the twentieth century did U.S. law and coupled with legal protections for judicial practice fully embrace the propositions independence–was a departure from Re- that race, gender, and class ought not pre- naissance conceptions of judges, who were clude access to courts. Only in recent de - beholden to the monarchs who appointed cades have women and men of all colors them. The public’s new authority to judge been able to serve as jurors and judges, judges (and, inferentially, the government) and all participants come to be understood helped to turn “rites” into “rights.” The as entitled to equal dignity and respect.18 more that spectators were ac tive partici- While my focus is on the United States, pants (“auditors,” to borrow again from these premises have a transnational sweep, Bentham 14), the more courts could serve as illustrated by the 1966 United Nations as a venue for the dissemination of infor- Covenant on Civil and Political Rights, mation. declaring that “everyone shall be entitled Twentieth-century theorists of the to a fair and public hearing by a competent, “public sphere” focus on civic institutions independent and impartial tribunal estab - that facilitate the exchange of views about lished by law.”19 governance.15 Their de½nitions ought to Not only did all persons gain entitle- expand to embrace courts, which, while ments to courts, but the import of phrases gov ernment-supplied, are venues in which such as rights-to-remedies for “every in - private and public disputants set forth ar - ju ry to person, property, or character” guments in spaces open to the public, chang ed. Forms of harm gained new re - there by providing opportunities for the cognition as legally cognizable injuries: for mation of popular opinions about law’s examples include rights to be free from impact. discrimination; rights for consumers, em- As the constitutional excerpts quoted ployees, and members of households; above illustrate, new states in North Amer- pro tection for the environment, for crim- i ca constitutionalized “publicity” with inal defendants, and (if “every person” is mandates such as “all courts shall be to retain its robust meaning) for detain- open,”16 often linked to guarantees of ees at Guantánamo Bay. rights-to-remedies for harms to property It was the interaction between the con- and person. Yet a reminder is in order, fore- stitutional obligations of earlier eras and cast by the excerpt from Alabama’s 1819 developing commitments to equality that Constitution: courts were not then venues turned courts into universal entitlements in which all persons were equal. Indeed, and, on occasion, pressed them to be de-

12 Dædalus, the Journal ofthe American Academy of Arts & Sciences liberately redistributive as well. Once the Legal Services Corporation, which offered Judith government obliged itself to show “equal free lawyers to low-income civil litigants, Resnik concern for the fate of every person over and the enactment in 1976 of the Civil which it claims dominion” (to borrow Rights Attorney’s Fees Awards Act, which Ronald Dworkin’s description of equali- required losing defendants in certain cases ty’s entailments),20 courts had new tasks. to pay winning plaintiffs’ lawyers’ fees.25 The promises of access and remedies be- In addition to these statutory responses, come illusory when courts charge entry courts identi½ed constitutional obligations fees that systematically exclude sets of for subsidies. Indigent litigants invoked claimants, and when the resources of dis- the Sixth Amendment right to counsel, the putants are profoundly asymmetrical. First Amendment’s protection of the right But what forms of access ought to be to petition government for redress, and sub sidized, which asymmetries should be the Due Process and Equal Protection addressed, and what costs imposed on Clauses, as they argued that the U.S. Con- users? These questions about a lack of re- stitution mandated that the government sources–both individual and institutional equip them to function in court. In a series –to pursue and to entertain claims are not of decisions, the U.S. Supreme Court renew. In 1793, Jeremy Bentham inveighed sponded by requiring fee waivers, subsi- against court fees, which he described as a dized lawyers, or forensic experts for spec- “tax upon distress.”21 Bentham’s proposed i½ed populations–identi½ed by a mix of solutions included an “Equal Justice Fund” means-testing, the subject matter in dis- supported by “the ½nes imposed on wrong - pute, the stakes, and resource asymmetries doers,” by government, and by charities. 22 between parties. Bentham suggested subsidies not only for For example, states must provide free the “costs of legal assistance but also the lawyers to poor criminal defendants facing costs of transporting witnesses” and the incarceration.26 Courts have also re quired production of evidence.23 Moreover, to that states waive fees for ½ling or transcripts lower expenses, Bentham suggested that a on appeal if indigent litigants are at risk of judge be available “every hour on every losing their status as parents.27 In addition, day of the year,” and that courts be put on a courts shaped procedures such as class ac - “budget” to produce one-day trials and tions to ease litigants’ expenses by author- immediate decisions.24 izing aggregation of claims, thereby cre- In the United States, the challenges of ating econo mies of scale for lawyers to impoverished litigants came to the fore as pursue remedies on behalf of large num- the ranks of rights-holders swelled during bers of people in one case. the twentieth century. Legislatures, creat - The interest in easing access does not ing new civil causes of action and criminal stem from concerns about equal treatment sanctions, were major sources of the up - alone. Polities–ancient and modern, auto- surge. Both state and federal legislatures cratic and democratic–rely on courts to enacted various measures to deal with the maintain peace and security and to sustain volume, such as channeling certain claim- commercial stability. Because enforcement ants to small-claims courts, to workers’ of court orders rests largely on voluntary com pensation regimes, and to administra - compliance, courts need the public to active agencies, so as to provide simpli½ed cept the rulings as legitimate. The coher- processes and charge low or no ½ling fees. ence of adjudication comes under strain Other legislative initiatives included the when litigants are patently unable to par- crea tion in 1974 of the federally funded ticipate.

143 (3) Summer 2014 13 Reinventing The law recognizes this dependency in cluding almost all tenants in eviction cases Courts as various ways. For example, criminal pro - and debtors in consumer credit cases, and Democratic Institutions secutions cannot proceed unless defen- 95 percent of parents in child support mat- dants are able to understand the charges ters. The high volume of criminal dock ets levied against them and assist in their own is reflected in other numbers. More than defense.28 Similarly, governments want two million people are currently incarcer- civil litigants to be able to use their courts. ated in the United States, and another ½ve As Justice John Marshall Harlan explained million are under other forms of govern- in 1971 when ruling that the Constitution ment supervision.32 The upsurge in crim - required that a state waive ½ling fees for inal prosecutions in the last decades has poor persons seeking divorce: imposed substantial burdens on states, many of which are unable to fund adequate Perhaps no characteristic of an organized legal services for defendants.33 In light of and cohesive society is more fundamental their own ½nancial challenges, states have than its erection and enforcement of a sys- imposed new fees, ½nes, and special as- tem of rules de½ning the various rights and sessments, which raise the specter of a re - duties of its members, enabling them to gov - surgence of “debtors’ prisons” populated ern their affairs and de½nitely settle their dif- by individuals held in contempt for failure ferences in an orderly, predictable manner.29 to comply with payment orders.34 Yet a chronicle of these many needs The constitutional law mandating free ought not to eclipse how much money has lawyers and fee waivers has been hailed by been invested in courts–reflecting the some commentators as central to the func- depth of commitments to the ideal of a tioning of courts in egalitarian constitu- “day in court.” Even if underfunded, judi- tional democracies and criticized by others ciaries have been remarkably successful in as an illicit judicial extrapolation of sub - attracting impressive amounts of public 30 stantive due process rights. Yet the pa- funds and private investments. Quanti½ - F rameters of such rights are narrow, as ex- cation is dif½cult because courts have var - N empli½ed by the 2011 decision, Turner v. ious streams of income and a diversity of Rogers. The Supreme Court concluded that, services falls under their purview. Some while fair procedures were required, the states have central budgeting, others rely Due Process Clause did not oblige a state on county-level funds, and not all provide to provide a lawyer to an indigent father detailed reports on sums received in ½nes facing twelve months of detention for civil and fees. Further, the budgets of some judi- contempt for the failure to pay child sup- ciaries also include allocations for public port to his child’s mother. (The Court did defenders, probation of½cers, security of- not decide whether, had the civil contem- ½cers, and other services. nor’s opponent been the state rather than Private sector investments are yet harder a private party, government-funded coun- to tally. Litigants spend money to investi- sel would have been required.31) gate facts, to do research, and to argue the As Turner illustrates, constitutional and law. Institutional litigants also invest in statutory interventions fall far short of courts by bringing a series of cases or ½ling the needs of the many poor people who amicus briefs to shape speci½c doctrines and are in court. California has tallied 4.3 mil- by supporting or trying to block individuals lion people in civil cases without the assis - for judgeships (whether obtained through tance of lawyers. New York has counted 2.3 appointments or elections). The amounts million civil litigants without lawyers, in - spent on and by auxiliary industries–in -

14 Dædalus, the Journal ofthe American Academy of Arts & Sciences cluding lawyers, administrators, notaries, been built to provide chambers for 650 life- Judith forensic experts, probation, and informa- tenured trial judgeships and some 160 ap - Resnik tion services–are also dif½cult to estimate. pellate judgeships, as well as for 700 stat- With such caveats, the federal court sys - utorily created magistrate and bankruptcy tem offers one way to see the scope and judges and thousands of staff. Those judges range of government support for the judi- had jurisdiction over a wide array of mat- ciary over the course of the last centuries. ters; between 1960 and 1990, Congress cre- In the middle of the nineteenth century, ated more than 450 new causes of action. few er than forty federal trial judges sat in The funds reflect success in attracting a courtrooms around the entire United wide range of users eager for services. In States. Then, no buildings owned by the 1901, some 30,000 cases were brought be - federal government bore the name “court- fore the federal courts; in 2001, ten times house” on the front door. Rather, federal as many cases were ½led.35 At the twenti- courtrooms were tucked inside federal eth century’s beginning, the majority of build ings called “custom houses,” or in cases were criminal ½lings by the federal spac es borrowed from states or private government; by the end of the twentieth entities. century, civil cases dominated the docket. Beginning after the Civil War, the fed- The federal courts now handle 350,000 to eral government authorized an ambitious 400,000 civil and criminal ½lings annually, building program to use new construction and a million-plus bankruptcy petitions. as a means of establishing a federal pres- Fig ure 1 maps that expansion by charting ence around the country. Congress funded the number of federal court ½lings over new facilities that often combined post of - the past hundred years. ½ces and courthouses. By 2010, more than To support that expansion, the United 550 federal courthouses (so named) had States judiciary budget grew from $145

Figure 1 Numbers of All Civil and Criminal Cases Commenced in U.S. District Courts: 1905–201336

400,000

350,000

300,000

250,000

200,000

150,000

100,000

50,000

143 (3) Summer 2014 15 Reinventing million (under one-tenth of 1 percent of cases) are ½led annually in state courts.39 Courts as the federal budget) in 1971 to $5.7 billion Figure 2–a chart offering a comparison of Democratic Institutions (two-tenths of 1 percent) in 2005. During ½lings in state and federal courts in that interval, court staff doubled from 2010–provides a snapshot. about 15,000 to more than 30,000.37 In Democracy has not only changed adju- light of recent cuts to government budgets, dication, it has challenged it profoundly. the federal judiciary has scaled back slight- The responses by some, as exempli½ed in ly, but it continues to garner funds close to this volume by Judges Jonathan Lippman earlier allocations–about $6.6 billion in and Robert Katzmann, sitting re pectively 2013, with requests for $7.04 billion in 2014. in the state and federal courts, are to ½nd State courts provide vastly more services new ways to expand legal services so as to and do so with fewer resources (measured make good on promises of open and by judges’ salaries, caseloads, and sup port accessible courts.40 Other ini tia tives aim staff ) than the federal bench does. State not to supply law yers but help self-repre- legislatures allocate between 0.5 and 3 per- sented litigants manage themselves, in cent of their budgets to courts,38 and most part through new technologies41 and sim- state judiciaries report serious shortfalls. pli½ed procedures.42 Further, courts are The economic challenges stem from the expanding their repertoire through “prob- volume; more than forty million civil and lem solving courts”–such as “drug courts,” criminal cases (and another ½fty million “re-entry courts,” “ju ven ile courts,” and if one counts traf½c, juvenile, and family “mental health courts”–as well as through

Figure 2 Comparing the Volume of Filings: State and Federal Courts, 201043

45,000,000

39,418,380 40,000,000

35,000,000

30,000,000

25,000,000

20,000,000

15,000,000

10,000,000

5,000,000 1,531,997 359,594 0 Federal Civil and Bankruptcy Filings State Filings Criminal Filings

16 Dædalus, the Journal ofthe American Academy of Arts & Sciences targeted programs, such as “business sions in disputes, such as claims brought by Judith courts,” with specialized and experienced recipients of government bene½ts, vet - Resnik judges, aiming to appeal to commercial erans, employees, and immigrants.49 Be - disputants.44 cause agencies have modeled their decision-making processes after those of Courts were, in short, a growth industry courts, this evolution has, in some re spects, during the twentieth century, welcoming served to increase the domain of adjudi- private and public enforcement of govern- cation. Yet, unlike judges sitting in courts, ment regulations. But concern about vol- administrative judges have less in de pen - ume, coupled with criticism of such regu- dence, because Congress and the executive latory efforts, has produced other initia- branch may seek to affect their decision- tives, focused not on enhancing access to making. Further, and again unlike court- courts but on routing disputants away from based judges, administrative judges work courts and toward alternatives. at sites that are often inaccessible to out- Three techniques–all of which are pri- siders; hence the public can neither pro- vatizing process and becoming legally en - vide a buffer against interference nor eval - trenched through legislation, court rules, uate the processes and outcomes. and judicial doctrines–mark this new A third adr method is outsourcing– landscape. The ½rst technique is the recon - sending disputants to the private sector. ½g ur ation of procedures in courts to Illustrative of these obligations is Figure 3, change the role of the judge from public my own cell phone “contract.” The ½ne ad judi cat or to private manager. Revised print obliges me to waive rights to court fed eral rules en courage judges to try to and to class actions, whether in court or in convince law yers and litigants to settle, arbitration. Claims may only be brought rath er than to litigate, cases that have been against the service provider individually, ½led. The devel op ments in the United and exclusively through a private arbitra- States have par allels elsewhere, as “multi- tion process designated by the provider tasking judges” have become the byword (run, in this instance, by the American Ar- in many jurisdictions. 45 England was bitration Association). once the model for capacious legal aid and Be cause it is a bad graphic, readers may for a variety of admin istrative or tribunal well be frustrated by the poor visual qual- adjudications enabling multiple “paths ity of this document. Yet graphically, it to justice.”46 But in the 1990s, England and makes the point perfectly. Reading it, Wales promul gated revamped litigation thinking about its terms, and trying to ne- “protocols” aiming to promote settle- gotiate it are a waste of time. The illegibility ments.47 In 2010, the English government is economical because the provisions are mounted a campaign against what it “take it or leave it” boilerplate, avoided only termed “unnecessary” litiga tion and push- by not buying that phone service. Calling ed to close court houses, cut back legal aid, this document a “contract” is thus a mis- and reduce tribunals’ work.48 nomer, for it is neither bargained for nor A second mode of adr is the devolution subject to bargaining.50 In some polities, of adjudication from courts to administra - such a one-sided im position of terms pro- tive agencies. In 2008, four times more hibiting claimants from using courts be - judges (often called hearing of½cers or ad- fore any dispute arose would be unenforce- ministrative judges) sat in federal agencies able, as it once was in the United States.51 than in federal courts. These administrative Indeed, in 2005, the California Supreme judges rendered tens of thousands of deci - Court, like many other state judiciaries,

143 (3) Summer 2014 17 Reinventing Figure 3 Courts as Example of Cellular Phone “Contract” Democratic Institutions

concluded that class action waivers were (“bilateral”) arbitrations.53 In the same “unconscionable” because in “a consumer year, in Wal-Mart v. Dukes, the Court im - contract of adhesion [when] disputes in - posed stringent re quirements on class volve small amounts of damages . . . the actions; for those individuals not other- waiver becomes in practice the exemption wise precluded by arbitration mandates, of the party ‘from responsibility for its own the Court limited their ability to pool re - fraud.’”52 But in 2011, in AT&T v. Concep- sources by litigating in the aggregate.54 cion, a bare majority of the United States With the devolution of adjudication to Supreme Court displaced state law and agencies, the outsourcing to private pro - held that a 1925 federal statute, authoriz- viders, and the recon½guration of courting enforcement of contract clauses re - based processes toward settlement in both quiring arbitration, was to be interpreted civil and criminal cases, the occasions for to apply to these materials. Therefore, fed- public observation of and involvement in eral law preempted state laws by re quir ing adjudication are diminishing. In the fed- consumers to use the arbitration program eral courts of the United States, trial rates selected by the cell-phone service and to have dropped over the last few decades and proceed exclusively by way of single-½le continue to do so. In 2001, trials began in

18 Dædalus, the Journal ofthe American Academy of Arts & Sciences only two out of every hundred civil cases The growth of adr can be understood Judith ½led, and by 2012, that rate had declined to through different lenses.57 One account Resnik about 1.2 trials out of every hundred. is that it offers a second-best response to The parallel on the criminal side is the systemic overload; although courts are the dominance of plea bargaining: in 2012, 97 preferable service, the level of demand re - percent of the indictments against crimi- quires alternatives, augmenting resources nal defendants in federal court ended with through providing more methods to re - pleas.55 This phenomenon is now encoded solve disputes. Another view is that party- in the moniker of the “vanishing trial.”56 based settlements have become more dom - Modes of conclusion are not the only inant because the trial-based court sys tem changes in recent decades. Filings in fed- has run its course as a mode of resolution; eral courts have also leveled off, as can be procedural innovations that require pre- seen in Figure 4, which maps the rate of trial information exchanges among par- growth of federal ½lings from 1975 to 2013. ties, such as “discovery,” en able disputes Recall that Figure 1 charted the expansion to conclude without the need to bring wit- of the federal judicial system in the twen- nesses before either judge or jury.58 tieth century, as the rising numbers of civil Yet another understanding of the rise of ½lings supported requests for more funds adr is that it represents a profound cri- and new judgeships. In contrast, demand tique of the contemporary litigation sys- for the services of the federal district court tem. Court procedures, the costs of law - during more recent decades appears to be yers, and the volume of claims have result - flattening. That shift makes it more dif½- ed in a justice system seen by some to be cult to argue that current funding levels overburdened, overreaching, and overly for courts and their staff ought to be main- adversarial. Some critics seek a gentler, tained or augmented. more user-friendly process, reliant on me -

Figure 4 Growth Rate of Federal Court Filings: 1975–201359

10% Effective Annual Growth Rate Based on 5-year Overall Growth 8% Summary of Annual Growth Rate During 1975-2013 6%

-2%

-4%

143 (3) Summer 2014 19 Reinventing diation in search of compromises. Others closure obliterates the chance for the pub- Courts as complain that the risk of being sued chills lic to learn about either the rights argued or Democratic Institutions productive economic exchanges and useful what transpired. social interactions. Too-easy access, they Gone are Jeremy Bentham’s “auditors” charge, sparks unnecessary social conflict. and the potential for his imagined Tribu- Alternative forms of resolution, they assert, nal of Public Opinion to function, for no are more accurate, less expensive, and more one can evaluate the exchanges between generative. Energetic enthusiasts coming the decision-makers and the disputants. from different vantage points (and some- Lost are opportunities to assess whether times funded by repeat-player defendants) pro cedures and decision-makers are fair; have successfully lobbied legislatures and how resources affect outcomes; whether argued to judges to mandate moving dis- similarly situated litigants are treated pute resolution outside of courts.60 comparably; and why one would want to One could read these developments as get into (or avoid) court. Instead, a private aspirations to manage conflicts through transaction has been substituted and, un - new ways of protecting rights and fashion- like in public adjudication, control over the ing remedies. Alternatively, one can de- meaning of the claims made and the judg - scribe these reforms as political backlash. ments rendered rests with the corporate To borrow Marc Galanter’s terms, “repeat provider of the service. players” found the glare of open courts and plaintiffs’ successes to be disruptive to Those put at risk by these doctrinal and business practices and to governance statutory developments are not only the policies; they successfully “played for the claimants, who had hoped to use courts to rules” by limiting the reach of courts and argue about their rights, but also judges by constricting access to public adjudica- and courts themselves. The leadership of tion.61 The success of such efforts can be both federal and state courts are outspoken measured in various ways, such as by anal y - in their concerns that funding for court ses of Supreme Court decisions from 1970 budgets and judicial salaries is inade- to 2010 that demonstrate how many of the quate.64 As the Chief Justice of the United Court’s rulings cut off opportunities for States reported at the end of 2013, federal individuals to enforce rights.62 court staf½ng was down to its lowest level The cell phone document reproduced in since 1997, defense lawyers’ funding had Figure 3 encodes what is fundamentally been reduced, and expansion of court- wrong with the form of the alternative that house facilities had halted. Yet the ability to it imposes. By precluding class actions and argue for more support is undercut when making unavailable aggregation as a means adr is promoted to be better than what of reducing access barriers for small-value courts can provide. claims, private providers have abort ed ex Indeed, because courts now have com- ante (before any dispute arises) the possi- petitors, litigants with resources may bility of using judicial and group-based choose private providers whom they pay mech anisms for redistributing re sources. directly for their services. Concern about Further, the provider obliges consumers to losing business can be seen in a statute use con½dential dispute resolution services enacted by the Delaware legislature, which, that limit the ex post effects of any claims in 2009, aimed to maintain its “pre em - that are pursued.63 Other consumers may inence” in corporate dispute resolution by not know that they too have similarly been offering private access to Delaware’s harmed. In addition to suppressing claims, Chancery Court.65 The legislature crafted a

20 Dædalus, the Journal ofthe American Academy of Arts & Sciences new procedural option, available only if at or, as Delaware exempli½es, accessible Judith least one disputant was registered as a cor- only by a rar e½ed few. Resnik poration in the state, if none were con- Michel Foucault famously described how sumers, and if the amount at stake was a nineteenth-century governing powers, million dollars or more. Disputants could eager to maintain control, moved pun ish - then pay a $12,000 ½ling fee and $6,000 ment practices from public streets into per day thereafter to purchase decision- closed prisons.67 Today, much of adjudica- making by the state’s Chancery Court tion is being removed from public view, judg es, sitting in their courthouses. These rendering the exercise and consequences sums are larger than what ordinary liti- of public and private power harder to as- gants pay in the United States but, given certain. This movement away from public that some private arbitrators charge higher adjudication is a problem for democracies daily fees, the Delaware system was, from because adjudication has important con tri - some perspectives, a bargain. butions to make to democracy. Now- What those sums also purchased was classic explanations for adjudication’s util- con ½dentiality, because the courthouse ities come from Jeremy Bentham, who de - doors were closed to the public. Filings scribed courts as “schools” whose educa- were not on the public docketing system tive function was rooted in the disciplinary and hearings were private. Yet the deci- power imposed through the principle of sions rendered were enforceable as judg- publicity.68 ments and subject to review by the Del - More recent theorists have identi½ed aware Supreme Court, which had not, as of other attributes of adjudication–that ac - 2013, provided rules about whether ap- cess to litigation gives individuals opportu- peals would be con½dential. nities for participation and for ef½cacy,69 A group called the Delaware Coalition and that procedural due process aims to for Open Government, including civic and ensure that government decision-making media entities, argued that Delaware’s leg - treats similarly situated claimants equally islation violated the public’s First Amend - and recognizes their dignity.70 Exploring ment right to observe court procedures. what process is “due,” the Supreme Court After a federal district judge agreed, Del- has focused on accuracy as well as on “fair - aware’s Chancery Court judges appealed ness” to ensure that each side has an op- and lost again; in 2013, a federal appellate portunity to be heard.71 Further, as Dennis court ruled, over a dissent, that “Delaware’s Curtis and I have detailed, public exchanges government-sponsored arbitration” could among disputants, governments, and third not be held in a courthouse and yet be parties make plain that norms de velop closed to the public.66 through iterative applications–that rights are not ½xed ex ante, but are shaped Amid the high volume of ½lings, the through such exchanges.72 Public courts demand for more services, and a spate of demonstrate government commitments to new architecturally important courthous- forms of self-restraint and ex planation, to es, the diminution of the aegis of adjudica- the equality of all persons, and to transpar- tion and the incursions on courts’ author- ent exercises of authority in the face of ity could be missed. But the turn toward al- conflicting claims of right. ternatives puts new courthouses–built in cutting-edge contemporary designs and Eighteenth-century constitutional com - often garbed in glass to denote trans- mitments guaranteeing rights-to-remedies parency–at risk of being anachronistic were shaped when members of the prop-

143 (3) Summer 2014 21 Reinventing ertied classes were the prototypical liti- ing that can reallocate power and enable Courts as gants and governments’ criminal justice economically marginal individuals to gain Democratic Institutions systems were nascent. Twentieth-century rights. Courts have profound redistribu- egalitarian norms expanded the imagina- tive effects as arenas in which the state tion of what justice could produce. In many has tried to mitigate inequalities under the respects, courts and legislatures are only banner of due process, embroidered with be ginning to grapple with the challenges equality commitments that “everyone” is a posed by the surge in criminal ½lings and rights-holder. by courts’ own successes in attracting us - Even if one is supportive of less govern- ers. One way to read the many judicial and ment in other arenas, distinctive argu- legislative decisions on court access and ments remain for robust public funding sub stantive rights is as a sprawling, many- for and regulation of courts. Govern- decade debate, across and within juris- ments need the infrastructure that courts dictions, about what forms of subsidies to provide; markets rely on the ability to en- provide and how to allocate and ration force substantive entitlements; and de- services. mocracies need the opportunities for pub - The last few decades have been domi- lic, multi-party interactions that adjudi- nated by voices–including many within cation entails. Courts are one way to link the judiciary–declaring that public trials individuals, entities, groups, and govern- have outlived their usefulness and that the ment in a common quest for the much- better course is to settle disputes. These contested content of justice. The diminu- claims are part of an intense conflict in the tion of opportunities to use open courts United States (and elsewhere) about reg- impoverishes the status of individuals and ulation and privatization. As I have shown, the effectiveness of government. courts are a form of government provision-

endnotes Author’s Note: Thanks are due to Yale Law student research assistants Jason Bertoldi, An- drew Sternlight, Devon Porter, and Benjamin Woodring for their thoughtful and energetic help; and to Dennis Curtis, who joins me in continuing explorations of the role of courts. 1 See, for example, John Hart Ely, Democracy and Distrust (Cambridge, Mass.: Harvard Univer- sity Press, 1980). 2 This analysis is developed in Judith Resnik and Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (New Haven, Conn.: Yale Uni- versity Press, 2011). Examination of other venues providing political opportunities can be found in John R. Parkinson, Democracy and Public Space: The Physical Sites of Democratic Performance (Oxford; New York: Oxford University Press, 2012). 3 See Nancy Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy,” in Habermas and the Public Sphere, ed. Craig Calhoun (Cambridge, Mass.: mit Press, 1992), 109. 4 U.S. Constitution, First Amendment; and U.S. Constitution, Fourth Amendment. 5 A few scholars have noted that entitling individuals to a “taxpayer-salaried judge” and sub- sidizing access to courts constitutes “a highly visible gesture of inclusion.” See, for example, Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (New

22 Dædalus, the Journal ofthe American Academy of Arts & Sciences York: W. W. Norton, 1999), 45, 219; and David Sklansky, “Quasi-Af½rmative Rights in Consti- Judith tutional Criminal Procedure,” Virginia Law Review 88 (6) (2002): 1229. Resnik 6 See, for example Judith Resnik, “Procedure as Contract,” Notre Dame Law Review 80 (2) (2004): 593; Judith Resnik, “Managerial Judges,” Harvard Law Review 96 (1982): 374; William J. Stuntz, The Collapse of American Criminal Justice (Cambridge, Mass.: Belknap/Harvard Uni- versity Press, 2011); and George Fisher, Plea Bargaining’s Triumph: A History of Plea Bargaining in America (Stanford, Calif.: Stanford University Press, 2004). 7 See generally Robert C. Post, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (New Haven, Conn.: Yale University Press, 2012). 8 Delaware Declaration of Rights, sec. 12 (1776). A parallel clause remains. 9 The current Alabama constitution, rati½ed in 1901, has an almost identical clause. See Alabama Constitution, sec. 13. 10 “Charter or Fundamental Laws of West New Jersey, Agreed Upon,” chap. XXIII (1676), in Sources of Our Liberties, ed. Richard L. Perry (Chicago: American Bar Foundation, 1959), 188. 11 See Jeremy Bentham, “Constitutional Code (1843),” in The Works of Jeremy Bentham, vol. 9, ed. John Bowring (Edinburgh, Scot.: William Tait, 1843), 41; Frederick Rosen, Jeremy Ben- tham and Representative Democracy: A Study of the Constitutional Code (Oxford: Clarendon Press, 1983), 26–27; and Anthony J. Draper, “‘Corruptions in the Administration of Justice’: Bentham’s Critique of Civil Procedure, 1806–1811,” Journal of Bentham Studies 7 (2004): 1. 12 Jeremy Bentham, “Bentham’s Draught For The Organization of Judicial Establishments, Compared with That of the National Assembly, with a Commentary on the Same,” in The Works of Jeremy Bentham, vol. 4, ed. John Bowring (Edinburgh, Scot.: William Tait, 1843), 316. 13 See Jeremy Bentham, “Rationale of Judicial Evidence (1827),” in The Works of Jeremy Bentham, vol. 6, ed. John Bowring (Edinburgh, Scot.: William Tait, 1843), 355. And see generally Judith Resnik, “Bring Back Bentham: ‘Open Courts,’ ‘Terror Trials,’ and Public Sphere(s),” Law & Ethics of Human Rights 5 (2011): 2; and Frederick Schauer, “Transparency in Three Dimensions,” University of Illinois Law Review 2011 (4) (2011): 1339. 14 The Works of Jeremy Bentham, vol. 6, 356. 15 See Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Cat- egory of Bourgeois Society, trans. Thomas Burger (Cambridge, Mass.: mit Press, 1991); and Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: Polity Press, 1996), 97–98. 16 See, for example, Connecticut Constitution, art. I, sec. 12 (1818). 17 Scott v. Sandford, 60 U.S. 393, 407 (1857); see also Lea VanderVelde, Mrs. Dred Scott (Oxford; New York: Oxford University Press, 2009), 232–319. 18 See generally Judith Resnik, “Asking About Gender in Courts,” Signs 21 (4) (1996): 952. 19 International Covenant on Civil and Political Rights, art. 14, Dec. 19, 1966, G.A. Res. 2200A (XXI), U.N. Doc. 1/6316. See generally The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, ed. Simon Shetreet and Christopher Forsyth (Leiden, Netherlands; Boston: Martinus Nijhoff, 2011). 20Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass.: Belknap Press, 2011), 2. 21 Jeremy Bentham, “A Protest Against Law-Taxes: Showing the Peculiar Mischievousness of All Such Impositions as Add to the Expense of Appeal to Justice,” in The Works of Jeremy Ben- tham, vol. 2, ed. John Bowring (Edinburgh, Scot.: William Tait, 1843), 573, 582. 22 See Philip Scho½eld, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford; New York: Oxford University Press, 2006), 310. 23 Rosen, Jeremy Bentham and Representative Democracy, 153–154.

143 (3) Summer 2014 23 Reinventing 24 Thomas P. Peardon, “Bentham’s Ideal Republic,” Canadian Journal of Economics and Political Courts as Science 17 (1951): 184, 196. Democratic 25 Institutions Judith Resnik, “Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation,” University of Pennsylvania Law Review 148 (2000): 2119. 26 See Gideon v. Wainwright, 372 U.S. 335 (1963); and Carol Steiker’s discussion of Gideon in this volume. 27 See M.L.B. v. S.L.J., 519 U.S. 102 (1996); and Gideon v. Wainwright, 372 U.S. 335. The Supreme Court of Washington has held that court-imposed assessments, aiming to augment budgets, must be waived for indigent litigants seeking to revise child custody agreements. See Jafar v. Webb, 303 P.3d 1042 (Wash. 2013). 28 See Jackson v. Indiana, 406 U.S. 715 (1972). 29 Boddie v. Connecticut, 401 U.S. 371, 374 (1971). 30 Compare Frank Michelman, “The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights, Part I,” Duke Law Journal 1973 (1973): 1153, 1172–1177; with Frank H. Easterbrook, “Substance and Due Process,” The Supreme Court Review 1982 (1982): 85. 31 Turner v. Rogers, 131 S. Ct. 2507 (2011). 32 The pew Center on the States, One in 31: The Long Reach of American Corrections (Washing- ton, D.C.: The Pew Charitable Trusts, 2009), http://www.pewstates.org/uploadedFiles/PCS_ Assets/2009/PSPP_1in31_report_FINAL_WEB_3-26-09.pdf. 33 American Bar Association Standing Committee on Legal Aid and Indigent Defendants, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (Chicago: American Bar Association, 2004), 8, http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_ defendants/ls_sclaid_def_bp_right_to_counsel_in_criminal_proceedings.authcheckdam.pdf. 34 See again Turner v. Rogers; and American Civil Liberties Union, In for a Penny: The Rise of Amer- ica’s New Debtors’ Prisons (New York: American Civil Liberties Union, October 2010), http:// www.aclu.org/½les/assets/InForAPenny_web.pdf. 35 These data are drawn from the Administrative Of½ce of the U.S. Courts, Federal Judicial Caseload Statistics, http://www.uscourts.gov/statistics/federaljudicialcaseloadstatistics.aspx; and from the American Law Institute’s A Study of the Business of the Federal Courts (Philadel- phia: ali, 1934). For additional details, see Judith Resnik, “Building the Federal Judiciary (Literally and Legally): The Monuments of Chief Justices Taft, Warren, and Rehnquist,” Indiana Law Journal 87 (2012): 823. 36 The information presented in Figure 1 comes from a variety of sources. Data for 1905–1998 are in William F. Shughart and Gökhan R. Karahan, Determinants of Case Growth in Federal District Courts in the United States, 1904–2002 (icpsr 3987), http://www.icpsr.umich.edu/icpsrweb/ ICPSR/studies/3987. Data for 1999–2012 are in Annual Reports of the Director of the Admin - istrative Of½ce of the U.S. Courts, published by the Federal Judicial Center, Historical Caseloads in the Federal Courts, http://www.fjc.gov/history/caseload.nsf/page/caseloads_private_civil. Data for 2013 are taken from the Administrative Of½ce of the U.S. Courts, Judicial Caseload Indicators (2013), http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics/case load-statistics-2013.aspx. The numbers do not include bankruptcy ½lings. 37 Russell Wheeler, “Chief Justice Rehnquist as Third Branch Leader,” Judicature 89 (3) (2005): 116, 120. 38 See generally National Center for State Courts, “2012 Budget Survey,” 2012, http://www.ncsc .org/Information-and-Resources/Budget-Resource-Center/~/media/Files/PDF/Information %20and%20Resources/Budget%20Resource%20Center/COSCA_Budget_Survey_all_states _2012.ashx.

24 Dædalus, the Journal ofthe American Academy of Arts & Sciences l 39 Court Statistics Project, “Examining the Work of State Courts: An Analysis of 2008 State Court Judith Caseloads” (National Center for State Courts, 2010), 20, http://www.courtstatistics.org/other Resnik g -pages/~/media/microsites/½les/csp/ewsc-2008-online.ashx. These challenges are the subject w of the essay by Michael Graetz in this volume. 40See the essays by Robert A. Katzmann and Jonathan Lippman in this volume. s 41 See Randall T. Shepard, “The Self-Represented Litigant: Implications for the Bench and Bar,” Family Court Review 48 (4) (2010): 607. e 42 See Gillian K. Had½eld’s essay in this volume. 43 Information in Figure 2 on federal criminal, civil, and bankruptcy ½lings comes from the the Administrative Of½ce of the U.S. Courts, Caseload Statistics, 2010, tables C-1, D-1 and F, http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics/FederalJudicial CaseloadStatistics2010.aspx. The data on state ½lings come from the National Center for State Courts, Court Statistics Project, National Civil and Criminal Caseloads (2010), http:// www.courtstatistics.org/Other-Pages/StateCourtCaseloadStatistics.aspx. The number of state o ½lings is an estimate, as states do not uniformly report data on all categories; further, the number of state cases graphed does not include juvenile, domestic, or traf½c cases. Data for federal ½lings are reported for the twelve-month period ending in March of 2010; data for state ½lings are reported by different states for different twelve-month periods. The data challenges are discussed further in Stephen Yeazell’s essay in this volume. 44 _ See, for example, Center for Court Innovation, California’s Collaborative Justice Courts: Building a Problem-Solving Judiciary (Judicial Council of California, 2005), http://www.courts.ca.gov/ documents/California_Story.pdf. s 45 Tania Sourdin and Archie Zariski, eds., The Multi-Tasking Judge: Comparative Judicial Dispute _ Resolution (New York: Thomson Reuters, 2013). 46See Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (Oxford; Port- land, Ore.: Hart Publishing, 1999). / 47 See Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: Her Majesty’s Stationery Of½ce, 1996); and Simon Roberts, “List- l ing Concentrates the Mind: The English Civil Court as an Arena for Structured Negotiation,” Oxford Journal of Legal Studies 29 (3) (2009): 457. 48 These developments are tracked in Hazel Genn, “What is Civil Justice For? Reform, adr, y and Access to Justice,” Yale Journal of Law & the Humanities 24 (1) (2012): 397. 49See Judith Resnik, “Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzle of Declining Trial Rates in Courts,” Journal of Empirical Legal Studies 1 (3) (2004): 783. e 50 t Arthur Allen Leff, “Contract as Thing,” The American University Law Review 19 (1970): 131–132; / and Judith Resnik, “Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers,” Harvard Law Review 125 (2011): 78. s 51 See, for example, Directive of the European Parliament and of the Council on Alternative Dispute Resolution for Consumer Disputes and Amending Regulation (ec) No 2006/2004 d and Directive 2009/22/ec (Directive on Consumer adr), 2013 O.J. L 165/63, para. 43. e 52 Discover Bank v. Superior Court, 113 P.3d 1100, 1110 (2005) (quoting California Civil Code sec. 1668 [West 2005]). 53 See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). In a unilateral provision that could be withdrawn, the cell phone provider promised to pay a $7,500 minimum recovery and c twice the amount of the claimant’s attorney’s fees to consumers if they won more than was n offered at settlement (see p. 1744). The dispute resolution service capped ½ling fees at $125 for arbitrations of $10,000 or less. But given that many claims are less than that amount– the Concepcions alleged a $30 overcharge–the ability to pursue a remedy (with or without lawyers) generally depends on the ability to aggregate claims.

143 (3) Summer 2014 25 Reinventing 54 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Courts as 55 Democratic Of 86,095 criminal defendants, 83,614 pled guilty. See United States Courts, “U.S. District Institutions Courts–Criminal Defendants Disposed of, by Type of Disposition and Offense, During the 12- Month Period Ending March 31, 2013,” in Federal Judicial Caseload Statistics, http://www .uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/ 2013/tables/D04Mar13.pdf. 56 Marc Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in Fed- eral and State Courts,” Journal of Empirical Legal Studies 1 (3) (2004): 459. 57 See, for example, Deborah R. Hensler, “Our Courts, Ourselves: How the Alternative Dispute Resolution Movement Is Re-shaping Our Legal System,” Pennsylvania State Law Review 108 (1) (2003): 165; Carrie Menkel-Meadow, “Whose Dispute Is It Anyway? A Philosophical and Democratic Defense of Settlement (in Some Cases),” Georgia Law Journal 83 (1995): 2663; and Judith Resnik, “Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudi- cation,” Ohio State Journal on Dispute Resolution 10 (1995): 211. 58 See John Langbein, “The Disappearance of Civil Trial in the United States,” Yale Law Journal 122 (3) (2012): 522. 59 The information presented in Figure 4, like that of Figure 1, comes from a variety of sources. Data for 1975–1998 are in William F. Shughart and Gökhan R. Karahan, Determinants of Case Growth in Federal District Courts in the United States, 1904–2002 (icpsr 3987), http://www .icpsr.umich.edu/icprsweb/ICPSR/studies/3987. Data for 1999–2012 are in Annual Reports of the Director of the Administrative Of½ce of the U.S. Courts, published by the Federal Judicial Center, Historical Caseloads in the Federal Courts, http://www.fjc.gov/history/ caseload.nsf/page/caseloads_private_civil. Data for 2013 are taken from the Administrative Of½ce of the U.S. Courts, Judicial Caseload Indicators (2013), http://www.uscourts.gov/ Statistics/FederalJudicialCaseloadStatistics/caseload-statistics-2013.aspx. The numbers do not include bankruptcy ½lings. Further, the effective annual growth rate described in Figure 4 reflects the annual rate of growth that would have occurred if ½lings had increased at a constant rate during the prior ½ve years. This growth rate, based on actual growth in each of the ½ve years, has been smoothed out to avoid the distractions of year-to-year volatility. 60See, for example, Peter W. Huber, Liability: The Legal Revolution and Its Consequences (New York: Basic Books, 1988). For a critique of anti-litigation analyses, see Marc Galanter, “An Oil Strike in Hell: Contemporary Legends About the Civil Justice System,” Arizona Law Review 40 (3) (1998): 717. 61 Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law and Society Review 9 (1) (1974): 95. 62 Stephen Burbank and Sean Farhang, “Litigation Reform: An Institutional Approach,” Uni- versity of Pennsylvania Law Review 162 (forthcoming 2014). 63 In addition to mandates that hearings be private and con½dential, arbitrators have the power to exclude persons not “essential” to the proceedings. See American Arbitration Associa- tion, “Commercial Arbitration Rules and Mediation Procedures,” 2013, https://www.adr.org/ aaa/ShowProperty?nodeId=/UCM/ADRSTG_004103&revision=latestreleased; and Better Business Bureau, “Rules of Conditionally Binding Arbitration,” in particular Rule 31, http:// www.bbb.org/council/programs-services/dispute-handling-and-resolution/dispute -resolution-rules-and-brochures/rules-of-conditionally-binding-arbitration/. 64 John G. Roberts, “2013 Year-End Report on the Federal Judiciary,” December 31, 2013, http:// sblog.s3.amazonaws.com/wp-content/uploads/2013/12/2013_Year-End_Report.pdf. In ½scal year 2012, the federal judiciary obtained a 1 percent increase above the ½scal year 2011 level. See “FY 2012 Funding Approved,” Third Branch 43 (12) (December 2011): 1, http://www .uscourts.gov/news/TheThirdBranch/11-12-01/FY_2012_Funding_Approved.aspx. 65 See Delaware Code Annotated, Title X, sec. 349 (2009); Del. Ch. R. 96–98.

26 Dædalus, the Journal ofthe American Academy of Arts & Sciences 66Ibid.; and Delaware Coalition for Open Government, Inc. v. Strine, 733 F.3d 510 (3d Cir. 2013), peti- Judith tion for certiorari was denied under the name Strine v. Delaware Coalition for Open Govern- Resnik ment, Inc., 134 S. Ct. 1551 (2014). 67 Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Pantheon, 1977), 8–11. 68See Draper, “‘Corruptions in the Administration of Justice.’” 69See Michelman, “The Supreme Court and Litigation Access Fees.” 70 Jerry L. Mashaw, “The Supreme Court’s Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value,” University of Chicago Law Review 44 (1) (1976): 44. 71 See, for example, Mathews v. Eldridge, 424 U.S. 319 (1976); Goldberg v. Kelly, 397 U.S. 254 (1970); and Brady v. Maryland, 373 U.S. 83 (1963). 72 Resnik and Curtis, Representing Justice.

143 (3) Summer 2014 27 State Courts: Enabling Access

Jonathan Lippman

Abstract: In New York, millions of civil litigants each year ½ght for the necessities of life without the aid of a lawyer because they are unable to afford one. While the state courts strive to provide access to justice for all constituents, this ideal becomes a promise unful½lled due to the lack of available civil legal services for low-income populations. In this essay, I discuss access to justice in the state courts from the perspective of my role as Chief Judge of the State of New York. I examine the enormity of the unmet need in New York and around the country and discuss the measures I have taken as head of the New York State court system to address the crisis. These efforts have resulted in a substantial increase in state funding for civil legal services, the establishment of the Task Force to Expand Access to Civil Legal Services in New York, annual hearings in each of New York’s four Judicial Departments, and the development of programs designed to spur the legal community (including law students) to greater involvement in pro bono work.

Our courthouses lie at the very heart of our communities, in every sense. In the words of U.S. Su - preme Court Justice Lewis Powell, “For much of our history, the courthouse has served not just as a local center of the law and government but as a meeting ground, cultural hub, and social gathering place.”1 The courthouse, above all other public spaces, em- bodies our most deeply held common values: our commitment to fairness, due process, and equal justice for all. In this way, the courts are the institutions JONATHAN LIPPMAN is the Chief that protect our individual rights and liberties and Judge of the State of New York and preserve the rule of law. Chief Judge of the Court of Appeals. Access to justice is fundamental to all democratic His previous positions include Pre- siding Justice of the New York State societies, and it is a bedrock principle of our nation. Supreme Court, Appellate Division, The World Justice Project describes it as First Department; prior to that, he the ability of all people to seek and obtain effective was the longest-tenured Chief Ad- ministrative Judge in New York remedies through accessible, affordable, impartial, ef ½ - State’s history. He has championed cient, effective, and culturally competent institutions of statewide initiatives on access to justice. Well-functioning dispute resolution systems en - justice, funding for civil legal ser- able people to protect their rights against infringement vices for the poor, human traf½cking by others, including powerful parties and the state.2 courts, wrongful convictions, foreclosures, pro bono service, and ju- That principle is ingrained in the Constitution of venile justice. the United States, and delivering equal justice to all

© 2014 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00285 28 who come before the courts (from the very violence, access to health care and educa- Jonathan rich to the very poor) is at the very heart of tion, and subsistence income and bene - Lippman our federal and state judicial systems. But ½ts–can be every bit as critical to an indi- what is really happening behind our court- vidual’s existence and well-being as the house doors? Are we living up to the guar- very loss of liberty itself.5 antee of access to justice embedded in our One of the most dif½cult contemporary nation’s laws and founding principles? challenges to ful½lling the nation’s promise of equal access to justice in the state Most individuals would be surprised– courts today is the lack of resources to pro- if not shocked and appalled–to learn how vide free legal counsel to civil litigants who poorly the United States compares to other cannot afford to hire an attorney. The dif- countries in providing access to civil jus- ference between the level of free legal as - tice. When the American Bar Association sistance available and the level necessary to established the World Justice Project to as- meet the needs of low-income Americans sess and advance the “rule of law” through- is often referred to as the “justice gap.” Our out the world, the Project created an index efforts to try to close that justice gap in to measure each country’s performance New York–and enable access to justice for across several dimensions. The United all–are the focus of my essay. States, as expected, performed well in most For those who are poor or low-income, dimensions, with the notable ex ception of ½nding the funds to hire an attorney can the civil justice category, where (as of 2012 be nearly impossible, although some free –2013) it was ranked as 22nd out of 97 sur- help does exist. Nonpro½t organizations, veyed countries; 12th out of the 16 countries such as the Legal Aid Society, provide free in Western Europe and North America; legal assistance to those who may be de- and 19th out of 29 high-income countries fending a civil lawsuit brought against (among the high-income countries that them or who need to begin a civil case to scored higher are Singapore, Japan, the Re- enforce their rights. They are referred to public of Korea, Estonia, and Hong Kong). as “civil legal services providers.” The cli - When ranked by the civil justice sub-factor ent must meet the organization’s income of whether people can ac cess and afford eligibility requirement, which is usually civil justice, the United States was 28th out stated as a percentage of the federal pover- of 29 high-income countries, ahead only of ty level, generally ranging from 125 to 200 the United Arab Emirates.3 percent of that level. For example, an eli- When people on such a grand scale are gibility limit of 200 percent of the 2013 unable to obtain the legal advice and rep- poverty level of $23,550 per year for a fam - resentation necessary to solve their civil ily of four would be $47,100.6 Families of legal problems, our system of justice has four with higher incomes would be ineli- bro ken down. In criminal cases in the gible for free services. Furthermore, be - United States, the Supreme Court has long cause these legal service organizations recognized a constitutional right to coun- themselves have limited resources, eligi- sel.4 However, although the government bility does not guarantee a free lawyer. must supply an attorney to criminal defen - They are able to serve only a portion of oth- dants who cannot afford one, no such right erwise eligible clients: one out of two in exists in civil matters. Yet the issues at stake many parts of New York State and one out in civil cases involving the necessities of of eight or nine in New York City. The jus - life–such as adequate housing, family sta- tice gap, therefore, far exceeds these orga- bility, personal safety free from domestic nizations’ capacity to ½ll it.

143 (3) Summer 2014 29 State The problem of the justice gap is most nation’s largest funder of civil legal ser - Courts: acute in the state courts, where 98 percent vices providers. lsc is headed by a bipar- Enabling Access of the litigation commenced in the United tisan board of directors whose eleven States is brought. They are, in many ways, mem bers are appointed by the President the emergency rooms for society’s worst and con½rmed by the Senate. When the ailments. All types of personal crises be- lsc was proposed to Congress, the need come matters on a court docket, especial- for neighborhood law of½ces was poi - ly in an economic climate like that of the gnantly described: United States since the global ½nancial cri- Here each day the old, the unemployed, the sis. Following the downturn in 2007, a underprivileged, and the largely forgotten noticeably larger share of the New York people of our Nation may seek help. Perhaps State courts’ four million new case ½lings it is an eviction, a marital conflict, repos- per year reflected crises resulting from eco- session of a car, or misunderstanding over nomic issues, and many involved the peo - a welfare check–each problem may have a ple who endure the worst consequences legal solution. These are small claims in the of a weak economy: poor and low-income Nation’s eye, but they loom large in the individuals. Filings skyrocketed in mat- hearts and lives of poor Americans.9 ters involving home foreclosures, consumer debts, family violence and custody Currently, lsc awards civil legal assis- disputes, and matrimonial conflict. tance grants to more than 130 nonpro½t Meanwhile, the numbers of people ap - legal aid programs with more than 800 pearing in court without an attorney con- of½ces nationwide. Those numbers rep- tinued to grow. At last count, that number resent only a portion of the legal programs exceeded 2.3 million per year, including in the United States, and only a small num- 98 percent of tenants in eviction cases, 99 ber of those programs are in New York percent of borrowers in consumer credit State. In 2012, lsc grants helped nearly cases within New York City, 95 percent of two million people. However, as a federal parents in child support matters,7 and 46 agency, its funding is determined by Con- percent of homeowners in foreclosure gress and is therefore dependent on the cases.8 Sadly, many of these matters in- federal budget and the political winds of volve the most vulnerable members of so- the day. Funding for lsc has recently been ciety–the elderly, single parents, children, cut deeply and it is vulnerable to further the disabled and mentally ill, abuse vic- cuts by a de½cit-occupied Congress. tims–in cases that are potentially devas- Another major source of funding for tating to them and their families. civil legal services comes from Interest on Regrettably, the same economic down- Lawyer Trust Accounts programs, usually turn that has caused more people to end up referred to as iolta programs (iola in in court also shrank the resources of pro - New York). These programs pool the inter- viders of free civil legal services. The non- est earned on accounts for client funds held pro½t organizations I previously de scribed in trust by lawyers. That interest income depend heavily on an unstable com bin a - is used primarily to provide civil legal aid tion of federal, state, local, and private to the poor and support improvements to grants: uncertain and unpredictable reve- the justice system. Revenue for these pro- nue streams subject to the vagaries of poli- grams, therefore, is entirely dependent on tics, the condition of the economy, or both. interest rates. With interest rates at an all- The federal Legal Services Corporation time low, iolta revenues have dropped (lsc), created by Congress in 1974, is the dramatically. In New York, revenues are

30 Dædalus, the Journal ofthe American Academy of Arts & Sciences less than a quarter of what they were just a of evidence made by another party’s lawyer, Jonathan few short years ago, dropping from $36 the judge cannot intervene to help no mat- Lippman mil lion to $8 million. This has had a drastic ter how important it may be to the litigant’s impact on the civil legal service providers case. Judges, of course, must maintain neu- who depend on these programs for their trality and cannot legally or ethically pro- very survival. vide legal advice or legal assistance to a party who happens to be unrepresented. Why should we as a society be con- New York’s early responses to the crisis cerned about dwindling resources for free in civil legal services included opening legal services in civil cases involving the more help centers in high-volume court- essentials of life? From a practical stand - houses, expanding volunteer lawyer-for-a- point, when vast numbers of individuals day programs that provide lawyers for poor come to court without an attorney, it af - litigants when they enter New York City fects the entire court system, including courthouses, and expanding pro bono pro- other litigants who do have legal repre- grams throughout the state. Although sentation. Indeed, represented parties and these innovations have been and continue their lawyers repeatedly communicate to be essential, they are not nearly enough that they much prefer it when the other to provide adequate protection of the fun - parties in a case have lawyers. Cases with damental rights of so many litigants who unrepresented parties take longer to set- cannot afford counsel. tle and litigate, which results in delays for litigants in other cases, a clogged court As the steward of the state court system, dock et, and, ultimately, an increase in the I question whether our judiciary can ful½ll court system’s overall costs. its constitutional mission when millions More important, judges have reported of low-income people are being denied the numerous ways in which the lack of access to justice because they cannot af- counsel leads to a lack of justice: judges are ford to pay a lawyer to protect their inter- sometimes unable to ascertain the facts of ests and that of their families. The judiciary the case because the unrepresented party cannot stand by idly and ignore the possi- cannot properly present evidence, unrep- bility that justice is not truly being done in resented litigants sometimes fail to present our courtrooms. I believe that the judiciary evidence on issues indispensable to prov- and the legal profession have an obligation ing their cases, their examination of wit- to stand up for civil legal services for poor nesses and their legal arguments are often and low-income individuals. The key is to ineffective at best, and many such liti- exercise strong and visible judicial leader- gants are confused about the issues and ship and work toward a systemic approach have little or no knowledge of the law. A to providing a substantial and stable source concept as familiar to practicing lawyers of funding for civil legal services. as “service of process” (delivering papers In 2010, the New York judiciary devel- to a party in legal action, particularly those oped a plan to address the state’s justice that give notice of the party’s involvement gap, recognizing that the unequivocal in the case) can be confusing and complex com mitment of state government to fund to an unrepresented litigant. civil legal services is vital to the goals of If a case is in the middle of trial and an ensuring equal justice. We committed our- unrepresented party tells the judge she or selves to holding annual hearings to as- he has no idea how to question a witness or sess both the extent of the need for civil re spond to an objection to the admission legal services for low-income New Yorkers

143 (3) Summer 2014 31 State and the amount of resources necessary to reverse the foreclosure and remain in his Courts: ½ll that need. The hearings are now held home.11 Enabling Access annually in each of the four Appellate Divi - Also with the help of a legal services sion Judicial Departments in our state. I provider, a man whose home was flooded personally preside over each hearing along while he was in the hospital undergoing with the leaders of the Judiciary and the can cer treatment was able to obtain relief New York State Bar Association. We also from his landlord and ½nd alternate hous- established the Task Force to Expand Ac - ing. Other witnesses described how having cess to Civil Legal Services, which supports a lawyer enabled them to recover from the annual hearings and studies potential major debt or escape indentured servitude. new initiatives to increase access to civil A twenty-½ve-year-old college student with legal services. Helaine Barnett, a former muscular dystrophy was able to maintain Chair of the lsc, chairs the Task Force, and the transportation bene½ts he needed to its members include judges, lawyers, busi - stay in school and sustain an independent ness executives, academics, labor leaders, existence.12 Again and again over the three and others from across New York State. years of hearings, the personal stories of li - During the ½rst four years of hearings tigants illuminated the essential role that (2010–2013), testifying witnesses included lawyers play in resolving serious problems indigent litigants, legal service provid ers, and avoiding future harm. business and religious leaders, prominent Based on the hearings and the Task legislators, executive branch of½cials, eco- Force’s own extensive research, including nomists, law professors, and judges. The input both from experts and from those stories of the litigants who testi½ed at the “in the trenches,” the Task Force issued hearings in particular illustrate the dire four reports with recommendations for ac- need for legal services experienced by tion, which have prompted a number of re- many people in crisis. One litigant from forms.13 The most signi½cant recommen- Uz bekistan, for example, described the dation was that the judiciary budget in- horri½c abuse she suffered from her hus- clude funding to support civil legal ser vice band, which included isolation, repeated providers. By including funding in our bud- beatings, and rape. He made threats against get, we make clear that preserving civil le - her parents in their home country and gal services for the poor is not a tangential called them on speaker phone while he issue for the courts, but rather is at the very beat her. She attempted to escape many heart of our constitutional mandate to fos- times, but her husband always tracked her ter equal justice. In an endorsement of this down. It was only when she found help initiative, the New York State Legislature from a free legal service provider that she issued a joint resolution of support re- was able to divorce, get an order of protec- questing that the Chief Judge report each tion, and ob tain sole custody of her daugh - year on unmet needs and the resources ter. Her husband now faces felony crimi- needed to meet those needs. nal charges.10 Another witness, a small Although it is not feasible for every per- business owner, lost his source of income son with a legal problem to be provided a when he developed a chronic medical con- lawyer at public expense, we are prioritiz- dition and was unable to work. He fell be - ing our resources, focusing on providing hind on his mortgage and nearly lost his counsel for those people seeking the “es- co-op apartment in a wrongful foreclosure sen tials of life,” which the Task Force de - sale. Once he found a legal ser vices pro vider ½ned as including four major categories: to assist him free of charge, he was able to 1) housing, including evictions, foreclo-

32 Dædalus, the Journal ofthe American Academy of Arts & Sciences sures, and homelessness; 2) family mat- two years of the program, the new state Jonathan ters, including domestic violence, children, fund ing pro vided a signi½cant lifeline to Lippman and family stability; 3) access to health nearly four million New Yorkers in need. care and education; and 4) subsistence in- Through the hearings and the Task come, including wages, disability and oth- Force, a systemic annual process to fund er bene½ts, and consumer debts.14 civil legal services with state funds has In spite of very dif½cult economic times, been implemented. This funding not only the judiciary budget now provides sub- provides help for people in need, but also stantial funding for civil legal services, produces signi½cant economic bene½ts for with the support of the legislative and exe - the state. At the hearings, business lead ers, cutive branches: $12.5 million in fy2011– bankers, property owners, health care pro - 2012, $25 million in fy 2012–2013, and $40 viders, and government and community million in fy 2013–2014. Additionally, the leaders testi½ed that increasing ac cess to judiciary budget included $15 million in legal assistance bene½ts their institutional rescue funding for iola in each of those performance and ½nancial bottom lines. years. As recommended by the Task Force, Providing pro bono assistance to the Task I appointed an oversight board to oversee Force, consulting ½rms estimated that in- the process of obtaining grant requests and vesting in civil legal services to prevent making grant awards. The board made domestic violence in New York State can awards to ½fty-six civil legal services pro - achieve annual savings of $85 million in the viders for fy 2011–2012 and to sixty provi - costs associated with assistance for sur- ders for fy 2012–2013. vivors of domestic violence. Additionally, Preliminary data for the $12.5 million anti-eviction legal services programs save provided in 2011–2012 shows that the approximately $116 million annually in funding enabled providers to give direct averted shelter costs. Further, an expert representation to more than 125,000 cli- anal ysis of the impact of federal funds ents and that more than 733,000 additional brought into New York through the pro- individuals either bene½tted from that vision of free legal services concluded that work (for example, as class action mem- the investment of a single dollar in le gal bers or household members other than the services funding generates approximately client) or received indirect legal assistance six dollars in combined cost-savings, ben- from projects such as clinics, workshops, e½ts obtained, and economic activity for help desks, hotlines, brief legal advice, and New York State. referrals. For the second year ending This does not mean that money alone March 31, 2013, $25 million in funding en - can ½ll the justice gap; the amount of fund- abled providers to give direct representa- ing needed would simply be too great. tion to more than 267,000 clients and Therefore, the Task Force has also been otherwise assist another 3.5 million indi- pursuing noneconomic measures to help viduals (approximately 1.65 million ben- make the most effective use of existing e½tting from the client representation and resources to help close the gap. One ini- another 1.85 million receiving indirect le - tiative was to increase the involvement of gal assistance). Additionally, this funding law schools and law students in enhancing has enabled other access-to-justice en - access to justice. The Task Force convened hancements, such as expanding pro bono a day-long conference in 2012 and 2013 at- programs and encouraging new collabo- tended by representatives from all ½fteen rations among legal service providers to of New York’s law schools, as well as by achieve ef½ciencies. In short, in the ½rst judges, bar leaders, legal services provid-

143 (3) Summer 2014 33 State ers, practicing attorneys, and court admin- ing together, as well as more volunteer pro Courts: istrators. A major outcome was the forma- bono programs from law schools, bar as- Enabling Access tion of a statewide council composed of sociations, law ½rms, and the courts. administrative deans from each law school and a representative selection of legal The pursuit of equal justice for all has ser vices providers and bar leaders from been the hallmark of the legal profession around the state, who are now work ing to since its inception. Every attorney has an foster coordination and collaboration in obligation to foster the values of justice, programs that increase access to jus tice for equality, and the rule of law. Although at- low-income or vulnerable New Yorkers. tor ney ethics rules may vary in their spe - A third law school conference took place in ci½cs from state to state, most acknowl- May of 2014. Another Task Force proposal edge that every lawyer has a professional was to examine the potential for expand- responsibility to provide legal services to ing the use of non-lawyers to help bridge those unable to pay. In other words, it is the justice gap. In re sponse,I formed an not just the judiciary that is obligated to advisory committee to explore that sub- ensure access to justice; it is the entire le- ject and design a pilot project to test the gal profession. While acknowledging that idea, and the group is currently at work. many New York lawyers already do a sub- The Task Force has also urged that court stantial amount of volunteer legal services, forms and procedures in the sprawling several recent court initiatives have been court system be simpli½ed and made uni- focused on increasing pro bono services by form–which would bene½t unrepresented all New York lawyers. parties–and such efforts are ongoing. Fur- The necessity of pro bono legal services ther, the court system will continue with is starkly evident in the event of a natural established programs to assist the unrep- disaster, as was the case in the aftermath of resented, such as CourtHelp, an online re - Hurricane Sandy in October 2012. The source containing legal and procedural in - storm devastated the homes and property formation and a growing list of do-it- of tens of thousands of New Yorkers. In yourself interactive forms; help centers addition to physical damage, however, it staffed by attorneys and court clerks, who also left behind a host of legal problems provide procedural and legal information for individuals and businesses, including: as well as referrals to attorneys, legal clin- insurance-related issues; accessing bene - ics, and other services; and on-site volun- ½ts; healthcare; bankruptcy; and deter- teer lawyer programs that provide assis- mining the responsibilities of landlords, tance at the courthouse. The Task Force tenants, and homeowners. The bar dis - also directed recommendations to the com- played its typical generosity and respon- munity of legal services providers, en- siveness: legal service providers and bar couraging more preventive and early- associations sprung into action to help the intervention legal assistance so that, where victims of the storm recover, ½ling for possible, disputes could be resolved with- fema and Disaster Unemployment Insur - out involving the courts. We also took steps ance bene½ts, answering immigration stat- to encourage increasing collaboration us questions, documenting and ½ling in - among providers in order to avoid dupli- surance claims, and addressing many other cation of effort and to minimize costs. Fi- civil legal needs of individuals and small nally, we also decided that a comprehensive businesses. approach to closing the justice gap has to One recent initiative intended to increase involve the entire legal community work- the level of pro bono work by attorneys is

34 Dædalus, the Journal ofthe American Academy of Arts & Sciences the Attorney Emeritus Program. Its goal is pose of this requirement is to obtain accu - Jonathan to engage seasoned lawyers in pro bono rate information about pro bono work Lippman projects under the auspices of civil legal done by the bar, and to increase attorney services providers, thereby enhancing the awareness of the need for pro bono ser- capacity of those providers to serve cli - vices. ents. Attorneys who might otherwise retire are now linked with programs that provide The rule of law–arguably the very bed - them not only with any necessary training rock of our society–loses meaning when and supervision, but also with resources a the protection of our laws is available only retired attorney would not likely have, to those who can afford it. Our court- such as access to of½ces and staff and mal- houses, which are some of the most im - practice coverage. portant structures in American life, must Furthermore, in 2013, I announced that be accessible to litigants from every seg- as a condition of admission to the New ment of society. We might as well close the York State bar, applicants would be re quir - courthouse doors if we are not able to pro- ed to demonstrate having performed at vide equal justice for all–our very reason least 50 hours of law-related pro bono ser - for being in the Judiciary and the legal pro- vice to the poor, or equivalent public ser - fession. vice work. In addition to easing the justice The pursuit of justice is the ultimate goal gap by providing assistance to legal services of the courts. It is this pursuit that makes providers and pro bono programs (all of our mission so absolutely critical to the which must be done under the supervision well-being of our nation and its people, of an admitted attorney), the requirement who in a dif½cult economy need the courts provides law students with a deeper un- more than ever before. My fervent hope derstanding of the problems confronted by is that our comprehensive efforts toward segments of society that have little access enabling access to justice in the New York to legal resources and in stitutions. New state courts will signi½cantly reduce the York is the ½rst state in the country to re - justice gap. Every society is judged by how quire pro bono services prior to bar admis- it treats its most vulnerable citizens. We sion. Through this program, New York law can and should be judged by whether we students will come to embrace the core val- are “enabling access” to the courts for each ues of the legal profession, ½rst and fore- and every person–rich and poor, high and most of which is ser vice to others. This ad - low alike. mission requirement will help make pro bono legal services to the poor a part of a new attorney’s dna–a commitment that, we hope, will endure throughout his or her legal career. Most recently, in direct response to a Task Force recommendation in its 2012 report, New York’s biennial registration process now requires all attorneys to re port both the number of volunteer pro bono hours they have provided to the poor and the ½nancial contributions they have made to legal services providers. The dual pur-

143 (3) Summer 2014 35 State endnotes Courts: 1 Enabling Lewis F. Powell Jr., “Foreword” to John O. Peters and Margaret T. Peters, Virginia’s Historic Access Courthouses (Charlottesville, Va.: University of Virginia Press, 1995), ix. 2 Mark David Agrast, Juan Carlos Botero, Joel Martinez, Alejandro Ponce, and Christine Pratt, World Justice Project Rule of Law Index 2012–2013 (Washington, D.C.: The World Justice Project, 2013), 27, http://worldjusticeproject.org/sites/default/½les/WJP_Index_Report_2012.pdf. 3 Ibid., 175. 4 Gideon v. Wainwright, 372 U.S. 335 (1963). 5 Many have argued that there should be a right to counsel at least in some civil cases, but a full discussion of the issues is beyond the scope of this essay. For example, see American Bar Association Recommendation 112A (2006), http://www.americanbar.org/content/dam/aba/ administrative/legal_aid_indigent_defendants/ls_sclaid_06A112A.authcheckdam.pdf. 6 The poverty guidelines are updated periodically in the Federal Register by the U.S. Department of Health and Human Services under the authority of 42 U.S.C. 9902(2). 7 The Task Force to Expand Access to Civil Legal Services in New York, Report to the Chief Judge of the State of New York, November 2010, 1, http://www.nycourts.gov/ip/access-civil-legal -services/PDF/CLS-TaskForceREPORT.pdf. 8 A. Gail Prudenti, 2013 Report of the Chief Administrator of the Courts Pursuant to Chapter 507 of the Laws of 2009, http://www.nycourts.gov/publications/pdfs/2013ForeclosureReport.pdf. 9 Richard M. Nixon, “Special Message to the Congress Proposing Establishment of a Legal Services Corporation,” May 5, 1971, http://www.presidency.ucsb.edu/ws/?pid=2998. 10 Testimony at the Chief Judge’s Hearings on Civil Legal Services. See http://www.nycourts.gov/ ip/access-civil-legal-services/public-hearings.shtml. 11 Ibid. 12 Ibid. 13 The Task Force’s reports are available at http://www.nycourts.gov/ip/access-civil-legal -services. 14 The Task Force to Expand Access to Civil Legal Services in New York, Report to the Chief Judge of the State of New York, November 2010, 5.

36 Dædalus, the Journal ofthe American Academy of Arts & Sciences When Legal Representation is De½cient: The Challenge of Immigration Cases for the Courts

Robert A. Katzmann

Abstract: When the quality of lawyering is inadequate, courts are frustrated in their adjudicative role. Nowhere is this more apparent than in cases involving immigrants hoping to fend off deportation. As an appellate judge on a court whose immigration docket reached 40 percent of our caseload, I have too often seen de½cient legal representation of immigrants. Although courts are reactive, resolving cases before them, judges can systematically promote the fair and effective administration of justice. With the aid of some outstanding legal talent, I created the Study Group on Immigrant Representation to help address the immigrant representation crisis. Our work has encompassed a variety of activities, including: publishing symposia; conducting studies documenting the enormity of the problem and proposing solutions; creating initiatives to expand pro bono representation; facilitating the ½rst local government funding of direct immigrant legal services; creating legal orientation programs for immigrants; and developing the Immigrant Justice Corps, an innovative fellowship program. These initiatives represent some steps towards easing the crisis in immigrant legal representation.

A courtroom has multiple players with different roles, but all would agree that adequate legal representation of the parties is essential to the fair and effective administration of justice. De½cient representation frustrates the work of courts and ill serves litigants. All too often, and throughout the country, courts that address immigration matters must con- ROBERT A. KATZMANN, a Fellow tend with such a breakdown in legal representation of the American Academy since –a breakdown of crisis proportions. 2003, is Chief Judge of the United In brief, the nation’s immigrant representation States Court of Appeals for the Sec - problem is twofold: 1) there is a profound lack of rep- ond Circuit. His publications in- resentation, indicated by the fact that more than 40 clude Judging Statutes (forth coming percent of non-citizens in deportation proceedings 2014), Courts and Congress (1997), lack representation nationwide; and 2) in far too In stitutional Disability: The Saga of Transportation Policy for the Disabled many deportation cases, the quality of counsel is sub- (1986), and Regulatory Bu reaucracy: standard. Immigrants are easy prey for unscrupu- The Federal Trade Commission and An- lous law yers, who gouge their clients out of scarce titrust Policy (1980). re sources and provide shoddy legal services. Apart

© 2014 by Robert A. Katzmann doi:10.1162/DAED_a_00286 37 The from the representation problem, there are prove the administration of justice for non- Challenge also issues relating to the functioning of citizens, thereby addressing a grave prob- of Immi- gration the immigration adjudication system it - lem of profound human consequence that Cases self (a subject worthy of its own examina- has tested the federal courts’ ability to ren- for the 1 Courts tion). der justice. I ½rst offer some background My views are shaped by experience as a on the representation issue, and then give judge on the United States Court of Ap - a sense of the activities of the Study Group peals for the Second Circuit, where our on Immigrant Representation, based in workload nearly doubled as a consequence New York City, which I had the privilege of of an avalanche of immigration cases (rang- creating. ing from thirty-two to forty-eight cases per week at the peak). My perspective is also In the past decade, the number of immi- informed by new research, described be- gration cases–that is, proceedings in low, on immigrants and the impact of rep - which the federal government seeks to de - resentation on case outcomes. I write, I port an individual residing in the United should emphasize, in an individual capac - States–has increased dramatically. These ity, not as an of½cial representative of my cases begin when the Department of Court. In my work on immigrant represen - Homeland Security (dhs) charges a non- tation, I have been guided by Canon 4 of citizen as deportable. The case is then the Code of Conduct for United States heard by an immigration judge in immi- Judges, which encourages judges, to the ex- gration court, based in the Department of tent that their time permits and impartiali- Justice (doj). In adjudicating the matter, ty is not compromised, to contribute to the the immigration judge may conduct a trial- law, the legal system, and the administra- like hearing. The immigrant is entitled to tion of justice. defend him or herself, but because depor- Immigrants are largely a vulnerable pop- tation charges are not criminal, the gov- ulation of human beings who come to this ernment does not provide the immigrant country in the hopes of a better life, often with a lawyer. Because many immigrants entering without knowledge of the En - cannot afford to pay thousands or tens of glish language or American culture, in eco- thousands of dollars to an attorney, a signif - nomic deprivation and in fear. Too often, icant portion of them must go it alone, try- the lack of adequate counsel for immi- ing to navigate our complex immigration grants all but eliminates their hopes to ex - system without the aid of legal counsel. perience the American dream, to live with If either the immigrant or dhs want to their families openly and with security, to challenge the immigration judge’s decision, contribute to their new country.2 This fail- the next step is to appeal to the Board of ure should be a concern for all of us: I think Immigration Appeals (bia), which is an we can all imagine our own ancestors or administrative adjudicatory body within the ancestors of friends and relate to the the doj that oversees the immigration anxieties of today’s newcomers. We are a courts. The party making that appeal must na tion of immigrants, whose contributions explain why the immigration judge’s de - have been vital to who we are and hope cision was legally or factually wrong; for to be. immigrants who may lack education, lan- What follows is a description of my ef- guage skills, and legal training, appealing forts, working with the legal community without the help of counsel is a tall order. both in and outside of government and These cases reach federal courts of ap - philanthropic organizations, to help im - peals like mine if, after the bia decides the

38 Dædalus, the Journal ofthe American Academy of Arts & Sciences case, the immigrant seeks review again. As cases rather than the usual three-member Robert A. before, the party seeking review makes the panels, and permitting single board mem - Katzmann appeal must explain why the bia’s decision bers to decide appeals through summary was legally or factually wrong. There are dismissals and af½rmances without issu- procedural hurdles associated with nav- ing an opinion explaining their reasoning. igating this process, facts to marshal into As bia decisions greatly increased, the evidence, and complexities of law that can number of petitions for review in federal make this process dif½cult for those with- court grew exponentially and began to out legal training. overwhelm our dockets. As my colleague Judge Jon O. Newman put it: “It’s as if a Until the 2000s, immigration cases were dam had built up a massive amount of a small percentage of the workload of my water over the years, and then suddenly court, the Court of Appeals for the Sec- the sluice gates were opened up and the ond Circuit (which encompasses New water poured out.”6 Indeed, by 2005, ap - York, Connecticut, and Vermont). In 1999, pellate courts were receiving about ½ve when I began working as an appellate times as many petitions for review as they judge, the immigration docket was a min - were before 2002. As Judge Walker re - uscule percentage of our workload. But marked: “What we thought was a one- within a few years, that changed dramat- time bubble has turned into a steady flow ically. In 2000, 255,420 cases were initiated of cases,” in excess of 2,500 a year,7 which in immigration courts and 28,104 cases was about a 50 percent increase in our total were appealed to the bia nationwide.3 By annual ½lings.8 Most of these cases were 2012, those numbers had grown signi½ - asylum matters, which involve claims that cantly: 410,753 cases were initiated in im - the individual will be persecuted if he or migration courts and 31,489 cases were ap- she returns to the home country, and there- bia 4 pealed to the . This means that each fore require careful review of often lengthy immigration judge must review nearly rec ords. 1,500 cases each year, which amounts to The vast majority of these appeals are more than ½ve cases each business day. con centrated in two circuits. Half are lo - Consequently, the burdens on all actors in cated in the Ninth Circuit, which covers the im migration system are now extraor- Alaska, Arizona, California, Hawaii, Idaho, dinary and the challenges for any judge, Montana, Nevada, Oregon, Washington, however conscientious, to dispose of all and the territories of Guam and the North- these cases with due care are overwhelm- ern Mariana Islands. Twenty percent are ing. As Chief Judge John M. Walker, Jr., ob- located in the comparatively smaller Sec- served in 2006 in his testimony before the ond Circuit. The massive in crease in the Senate Judiciary Committee: “I fail to see immigration docket of the Second Circuit, how Immigration Judges can be expected which approached 40 per cent of the case- to make thorough and competent ½ndings load of an already busy court, meant that of fact and conclusions of law under these 5 our Court had to develop procedures to circumstances.” manage such cases. This system was de- In order to reduce a backlog of some vised largely by Jon Newman under the 56,000 cases that had accumulated nation- 9 bia chief judgeship of John Walker, contin- ally by 2002, the began disposing of a ued under the chief judgeship of Dennis signi½cant number of the appeals through Jacobs, and continues today. The new sys- stripped-down procedures, such as allow- tem, instituted by the Second Circuit in ing single board members to adjudicate October 2005, added a non-argument

143 (3) Summer 2014 39 The calendar (nac) for immigration cases and presenting legal evidence to the im - Challenge whereby cases are decided on the papers migration judge or bia in a hearing con- of Immi- gration unless any judge on the panel seeks oral ar- text and the skill in advocacy regarding Cases gument. The nac runs parallel to the reg- legal issues and their preservation for ap- for the rac Courts ular argument calendar ( ). In the ½rst peal can make all the difference between year under that procedure, three-judge deportation and the right to remain in panels of our court adjudicated be tween the country. It also means that getting ef- thirty-two and forty-eight nac cases per fective counseling before, not after, applying week, in addition to one or two immigra- for relief or getting immersed in proceed- tion cases per sitting day on the rac. This ings provides the best chance for fleshing review was especially important with re- out the merits of the case, avoiding false or spect to decisions af½rmed by the bia prejudicial ½lings, and securing lawful sta- with out opinion (a practice that has since tus or appropriate relief for the immigrant. largely been curtailed). The Court of Ap- In all too many immigration cases, I peals became effectively the ½rst line of re- could not help but notice a substantial view (however limited) in a system where obstacle to the fair and effective adminis- the immigration judges and the bia are un- tration of justice: the frequently de½cient der extraordinary pressure to resolve cases. counsel of represented non-citizens. For Pursuant to the nac/rac process, the Sec - instance, the briefs of the lawyers too often ond Circuit resolved more than 17,400 im - were boilerplate submissions, with little migration cases between January 1, 2006, attention to the facts of the individual and July 30, 2013, and the immigration case cases: sometimes the briefs were virtually backlog has been essentially eliminated. identical, with only the name changed. At The sheer volume of immigration cases times, the name in the body of the brief gives a sense of the substantial impact on did not even match the name of the im - the work of an appellate court, but more migrant because the lawyer had not both- needs to be said about the task of the judge ered to change the name of the party. Far in those cases and the effects of inadequate too frequently, the lawyers had failed to counsel on the decisional process. As I am keep their client apprised of developments an appellate judge, immigration cases tend in the case, documents the client was re- to come before me in a legally circum- quired to ½le, and even hearing dates that scribed context. An appellate judge’s role their client was obligated to attend (but is to review the administrative record and missed because of the lawyer’s lapse). decision; absent legal error or lack of sub - stantial evidence supporting the decision, For immigrants, the stakes could not be the Court is largely constrained to defer to higher: these cases determine whether the agency’s ruling. Therefore, the record they can remain in the country or whether made by the immigrant and the legal they will be separated from their loved points preserved therein for review are crit - ones–often including their children–and ical to the outcome, especially where the barred from returning for many years. I immigrant has the burden of coming for- often had the feeling that if only the im - ward with evidence and the burden of migrant had competent counsel at the very proof of entitlement to status or relief. beginning of immigration proceedings Even if an appellate judge would have ruled (where the record is made with lasting differently in the ½rst instance, he or she im pact) long before the case reached the has no authority to do so on appeal. Thus, court of appeals (where review is limited) quality legal representation in gathering the result might have been different, and

40 Dædalus, the Journal ofthe American Academy of Arts & Sciences the non-citizen might have secured relief the large–and largely unmet–legal needs Robert A. that would have allowed her or him to re - in non-citizen communities. I stated there Katzmann main in the United States. what I reiterate here: justice should not The importance of quality representa- depend upon the income level of immi- tion is especially acute for immigrants, not grants.15 A lawyer’s duty to serve those only because they stand to lose what Jus- unable to pay is not an act of charity or tice Brandeis described as “all that makes benevolence, but rather one of professional life worth living,”10 but also because there responsibility, reinforced by the terms un - is a wide disparity in the success rate of der which the state has granted to the le - those who have lawyers and those who gal profession effective control of the legal proceed without counsel. For example, system. sev eral studies have shown that asylum When I gave the Marden Lecture, I was seekers are much more likely to be granted not sure what the response would be, but asylum when they are represented in im- the reaction was, and has continued to migration proceedings.11 These ½ndings be, incredibly supportive. In 2008, I started are particularly noteworthy because they a working group, the Study Group on Im- do not even take into account the varying migrant Representation, with the counsel quality of representation that asylum seek- of several outstanding lawyers. The Study ers receive. While differences in success Group is made up of some seventy-½ve law- rates do not by themselves tell us about yers from a range of ½rms; nonpro½ts; bar causation, these data make the uncomfort- organizations; immigrant legal service able suggestion that outcomes can be af - providers; immigrant organizations; law fected by whether the immigrant can af - schools; federal, state, and local govern- ford a lawyer or has the ability to access ments; and judicial colleagues. It has been free legal services. Immigrants can secure an honor to work with lawyers so devoted their own legal representation in immi- to helping those in need and it has been gration proceedings, but generally “at no wonderful to see their eagerness in a city expense to the Government.”12 For immi- where over one-third of our community grants with limited means, the dif½culty is foreign-born.16 Study Group work has of securing legal representation may be focused on three areas: 1) increasing pro compounded by regulations forbidding bono activity of ½rms, especially at the out- them from working during the initial pen- set of immigration proceedings; 2) improv - dency of their claims, thus depriving them ing mechanisms of legal service delivery; of the capacity to earn money to hire a law - and 3) rooting out inadequate counsel and yer.13 improving the quality of representation Hoping to raise awareness and to effect available to non-citizens. Our diverse change, I took the occasion of the 2007 group gathers together in the early morn- Marden Lecture of the New York City Bar14 ings at the courthouse in downtown New to challenge the New York legal establish- York City to share ideas, collaborate on ini - ment and others interacting with that es - tiatives, and help think through solutions tablishment (law ½rms, bar associations, to challenges to immigration represen - nonpro½ts, corporate counsel, founda- tation. The industriousness, intelligence, tions, law schools, state and local govern- follow-through, and accomplishment of ment, the media, the immigration bar, se - group participants have been remarkable nior lawyers and retirees, providers of con- and exciting. I have been inspired by the tinuing education and training, and think range of the Study Group’s activities and tanks) to increase efforts to help address how its members (even those who might

143 (3) Summer 2014 41 The be adversaries in court) come together young lawyers and senior lawyers of re- Challenge around the core value we all share: safe- tirement age, as well as trained college of Immi- gration guarding the integrity, fairness, and ef½ - graduates, to provide pro bono legal Cases ciency of our system of justice–which de- ser vices to immigrants for two to three for the Courts pends on adequate and effective counsel. years. Our method is to bring together key • We have partnered with bar organiza- participants from the federal, state, and tions to recruit more pro bono lawyers. city governments, the private bar, bar as- For example, the Second Circuit recently sociations, nonpro½ts, legal service pro - sought to facilitate representation for in - viders, immigrant organizations, philan- dividuals possibly eligible for relief pur - thropies, and law schools to foster the fair suant to recommendations by the De- and effective administration of justice. partment of Justice. The Federal Bar This interdisciplinary approach has been Coun cil’s Public Service Committee, fruitful and energizing; we have produced chaired by Study Group member Lewis reports, pilot projects, colloquia, and train- Liman, gathered and trained a cadre of ing sessions. Justice Ginsburg and Justice lawyers who offered pro bono represen- Stevens have publicly praised our project, tation to ½fteen to twenty immigrants and Justice Breyer and Justice Sotomayor who could not afford counsel. have also offered encouragement.17 Our Study Group concept is serving as a model • Working with other organizations, we for other jurisdictions, such as New Jersey, devised training sessions for deferred seeking to ½nd ways to provide adequate law ½rm associates so that they could counsel for immigrants. spend their deferral years representing Over the past ½ve years, Study Group immigrants. Young lawyers would thus work has included numerous initiatives: enter law ½rm practice with an understanding of immigration law and a com - Data-Driven Study: mitment to immigration pro bono cases.

• The New York Immigrant Representa- • We created a pilot project to foster greater tion Study, a foundational Study Group law ½rm pro bono activity.18 The hope initiative, began in 2010. We hoped to is that this two-year fellowship program document the areas of the most urgent will challenge the private bar to take on representational needs of indigent non- more pro bono asylum cases, as well as citizens facing removal in New York, increase ½rms’ ability to do so by creat- with the eventual goal of advancing rec- ing a greater capacity to screen potential ommendations about necessary re- clients, conduct intake interviews, place sources and strategies. Our ½ndings new pro bono cases with law ½rms, and about the scope of the need were pub- mentor the attorneys in those cases. This lished in 2011, and were followed by a pilot project could serve as a model for report in 2012 that set forth a solution an expanded program and encourage ac- to address this need: the creation of a tion by other foundations and ½rms. sys tem of institutionally provided coun - Facilitating Collaboration: sel for those facing deportation. • We have promoted the creation of law Increasing Pro Bono Representation: school clinics, the leading example being • One of our most recent initiatives, the the Kathryn O. Greenberg Immigration Immigrant Justice Corps, is a fellowship Justice Clinic at the Benjamin N. Car- program I proposed, which enables dozo School of Law. The Cardozo Law

42 Dædalus, the Journal ofthe American Academy of Arts & Sciences clinic has been so successful that it has Although much more could be said about Robert A. recently received signi½cant multi-year each of these initiatives,22 I will now fo - Katzmann funding from our philanthropic part- cus on two in particular that have signi½ - ners for its work. cant potential to influence the system of immigration adjudication in the United • We worked with Attorney General Eric Holder, Senator Charles Schumer, and States. others in addressing the immigrant representation problem; and in 2010, the At - The ½rst of these is the New York Immi- nyirs 23 torney General announced the creation grant Representation Study ( ). In of a Legal Orientation Program in New the immigration law ½eld, it was a com- York, which gives not-for-pro½t pro - mon refrain that having an attorney makes viders greater opportunities to advise a signi½cant difference for people who risk immigrants in groups and individually. being deported. But, as my great mentor Senator Daniel Patrick Moynihan said, • Study Group members have joined with “You’re entitled to your own opinion, but state, local, and federal government to not to your own facts.” In that spirit, I be - examine how consumer law could be lieved that the Study Group needed to as - used to attack the problem of fraudu- semble comprehensive data so that the lent legal services. problem could be better de½ned and ad- • In 2011, in response to federal efforts to dressed. To that end, Study Group mem- address immigration fraud, the Study bers undertook the nyirs, which was Group, together with the American Im - chaired by Professor Peter Markowitz of migration Lawyers Association and oth - Cardozo Law, Professor Stacy Caplow of er organizations, sponsored two days of Brooklyn Law School, and attorney Claudia intensive training in immigration law Slovinsky. The study, conducted with the for non-immigration lawyers. support of the Leon Levy Foundation and

• Recognizing the substantial unmet needs the Governance Institute, was a two-year in upstate New York,19 Study Group project in collaboration with the Vera In - members have supported the work of stitute of Justice. The two reports that were Albany Law School and Prisoners’ Le - issued as a prod uct of that study provide, gal Services of New York in their joint for the ½rst time ever, comprehensive data project to provide pro bono representa- about the scope of the immigrant represen- tion at the Ulster, New York Immigration tation challenge in New York (published in Court. the 2011 report) and a plan for addressing it (published in the 2012 report).24 Below Publications and Events: are a few ½ndings from the 2011 report that

• We have organized two major confer- most strikingly show the depth of the ences, one at Fordham Law School and prob lem: one at Cardozo Law (the latter with re - • A signi½cant percentage of immigrants tired Justice John Paul Stevens), which appearing before the New York immigra- led to a series of studies and reports tion courts do not have representation. published in the Fordham Law Review and  60 percent of immigrants who were Cardozo Law Review.20 Reporting in The detained during the pendency of New York Times, the New York Law Journal, their deportation proceedings did not and El Diario has brought our activities have counsel by the time their cases to the attention of a larger audience.21 were completed.

143 (3) Summer 2014 43 The  27 percent of immigrants who were not  Unrepresented but released or never Challenge detained during the pendency of their detained: 13 percent have successful of Immi- gration deportation proceedings did not have outcomes. Cases counsel by the time their cases were  Represented but detained: 18 perfor the Courts completed. cent have successful outcomes.

 According to the providers surveyed,  Unrepresented and detained: 3 per- cases in which non-citizens are held in cent have successful outcomes. detention during the deportation pro- It is clear from the data that having a law - ceedings were least served by exist- yer makes a substantial difference. But the ing immigration attorneys, particularly report also found that de½cient perfor- non-pro½t or pro bono resources. mance by lawyers providing deportation- • The dhs’s detention and transfer poli- defense services create more problems for cies have created signi½cant obstacles for non-citizens facing deportation. In its sur - immigrants facing removal to obtain vey, New York immigration judges rated counsel. nearly half of all legal representatives as inadequate in terms of overall perfor-  dhs transferred almost two-thirds (64 percent) of those detained in New mance, meaning that the attorneys did not York to far-off detention centers (most investigate the case, could not respond to frequently in Louisiana, Pennsylvania, questions about the facts or the law, did and Texas) where they faced the great - not meet deadlines to ½le documents, and est obstacles to obtaining counsel, a sometimes even failed to appear in court. practice which subsided when dhs The study also showed that the two changed its detainee transfer policy greatest impediments to increasing the in 2012.25 availability and quality of legal services for immigrants are a lack of funding and a  Individuals who were transferred else- lack of resources to build a quali½ed core where and who remain detained out- of experienced attorneys who can provide side of New York were unrepresented deportation defense. These dramatic ½nd- 79 percent of the time. ings underscore the immensity of the task • The two most important variables af- before us and help us understand where fecting the ability to secure a successful to focus resources most immediately. outcome in a case (de½ned as relief or The second part of the New York Immi- termination) are having representation grant Representation Study, released in and being free from detention. November 2012, was devoted to developing concrete proposals to address the immi-  The absence of either factor in a case– 26 being detained but represented or grant representation crisis in New York. being unrepresented but not detained The study’s steering committee (a group of experts from diverse legal institutions) was –decreases the success rate dramati- nyirs cally. When immigrants are detained tasked with using the data from ’s and unrepresented, the rate of success- ½rst report and other available information ful outcomes decreases even more sub- to make realistic short- to medium-term stantially. The success rates are as fol- proposals. The committee set forth a blue - lows: print for a system whereby a small group of competitively selected pro viders would  Represented and released or never deliver public defender–type universal detained: 74 percent have success- rep resentation to indigent de tain ees fac- ful outcomes. ing deportation.

44 Dædalus, the Journal ofthe American Academy of Arts & Sciences The project they proposed would en - for immigrants.28 Since then, our group Robert A. sure universal representation, with screen- has been contacted by organizations across Katzmann ing for income eligibility only; as well as the coun try interested in implementing providing basic support services such as our model in other cities and states. translation and interpretation services, social work, and mental health services. It Another major initiative of the Study would also be implemented through ex - Group is a project I proposed called the Im- isting institutional providers to minimize migrant Justice Corps (ijc), launched in administrative complexities and would January 2014 with substantial planning, work in cooperation with other key insti- support, and initial funding from the Rob in tutional actors such as dhs and the im - Hood Foundation and subsequent addi- migration court system. Finally, it would tional funding from the jpb Foundation.29 be overseen by an organization that could The ijc is the nation’s ½rst fellowship pro - provide centralized oversight and project gram dedicated to meeting the need for management, and would derive its fund- legal assistance for immigrants seeking citing primarily or signi½cantly from a reli- izenship and ½ghting deportation.30 The able public revenue stream. ijc concept is based on the supposition that This model, created by the nyirs steer- the need for effective counsel for immi- ing committee, became the basis for a pi - grants will only increase in the years ahead. lot project of deportation defense in New If there is comprehensive immigration leg- York City, called the New York Immigrant islation, the imperative of having an ex- Family Unity Project. When fully funded, panded pool of quality counsel will be this effort will provide representation to greater because virtually every person eli- approximately 2,750 New Yorkers each gible for relief will need legal assistance. year who face exile from their homes and Moreover, to the ex tent that the executive families. It would increase the likelihood of branch exercises greater discretion about keeping these New York families togeth- whether or not to pursue a case at the out- er by as much as 500 percent, and provide set of its immigration deliberations, there a general roadmap for how communities will be a greater need for lawyers to provide like New York can address critical problems advice to non-citizens. Fiscal circum- in our immigration system. With this in stances are tight, and adequate public sup- mind, Study Group members brought to - port for counsel will be dif½cult to realize gether a community of relevant actors to on a national lev el; in that climate, the fair make this system a reality and achieved a and effective administration of justice will major milestone in June of 2013. In a his- depend on broad thinking about how to toric action that af½rmed governmental supplement whatever resources may be com mitment to fund legal ser vices for available to provide counsel to non-citi- immigration, the City Council of New York zens possibly eligible for relief. To that end, City announced funding of $500,000 for I urged the creation of the ijc,31 which the New York Family Unity Project, “the unites re cently minted and senior lawyers nation’s ½rst assigned counsel system for in a com mon cause across the generations. immigrants.”27 Christine Quinn, then- It al lows young lawyers at the outset of speaker of the New York City Council, ac- their careers to do something signi½cant knowledged the work of the Study Group for themselves and for those in need, and in devising the New York Family Unity se nior lawyers, eager to share their expe- Project and called for other such collabo- rience, to give back to the system that has rative efforts to ensure access to counsel supported them. The ijc also includes

143 (3) Summer 2014 45 The young college graduates, who will be By populating the ½eld of immigration Challenge trained in immigration law and work es - law with a cadre of dedicated lawyers, the of Immi- gration sentially as paralegals in support of com- ijc will change the immigrant represen- Cases munity based organizations. tation arena in much-needed ways. It will for the ijc Courts The proposal borrows from other create leadership for the next generation fellowship program models that call to help meet the legal and policy challenges young people to public service, such as in the years ahead. It will also summon Teach for America, the Peace Corps, and lawyers to serve the noblest purposes of Americorps, as well as such private law fel- the law: to assist those in dire straits and lowship programs as Equal Justice Works, in this way address a national problem. the Liman Program, and the Skadden For young lawyers, the experience will have Foundation. Through a selection process, a lasting impact on their careers since they lawyers are chosen to participate in a two- will experience how human beings bene½t to three-year program and trained–with from their counsel and how families in the aid of nonpro½ts and law school clinics danger of being torn apart can stay to - –in a boot camp of intensive courses on gether. Some ijc lawyers will stay in the immigration law. ijc lawyers are then nonpro½t world, while others who decide placed with local immigrant service pro- to enter private practice or work in gov- viders and provide legal counsel to non- ernment may become advocates for their citizens in immigration proceedings. ½rms’ in creasing pro bono involvement. The project is funded through philan- They will also be leaders of individual phil- thropy, and over time, we expect a mix of anthropic giving as their careers progress. philanthropy and government support. They will contribute to public policy dis- One great virtue of the project is its ad - cussions with sophistication in the years ministrative simplicity. As the ijc expands ahead; and their own experience will add from New York to a national effort, the to a body of knowledge that will enrich fu- ijc will be administered through an inde- ture research and analysis. pendent 501(c)(3). For senior lawyers, who often have few This program has many bene½ts. Pri- outlets to direct their energies and skills, marily, of course, it makes a fundamental the ijc will provide opportunities to serve difference in the lives of immigrants and the public good in the face of un wanted their families. The ijc’s very existence retirement. As a consequence of their ijc raises awareness of the crisis of represen- experiences, both recently minted and se- tation and encourages efforts to meet that nior lawyers could provide insight about crisis. It facilitates the resolution of cases approaches to ensure greater access to jus- and promotes the fair and effective admin - tice, not only through individual represen- istration of justice, thereby aiding already tation but also through systemic innova- busy courts. As a model of ef½cient legal- tion. Most important, as I have said, the services delivery, the ijc could stimulate ijc could make all the dif ference to those public funding streams for other projects, without resources, those who seek to re- such as the New York Immigrant Family alize the American dream and contribute Unity Project. For law schools, the ijc pro- to this nation’s vitality. vides new ways of thinking about how to To date, the concept has received sup- provide legal services while at the same port from a variety of sectors, including time enhancing job prospects for gradu- some top New York City of½cials. Then- ates at a time when the law market is tight- mayor Michael Bloomberg, for instance, ening. convened a session of foundations urging

46 Dædalus, the Journal ofthe American Academy of Arts & Sciences their involvement.32 Foundations, such as forcement priorities, refrain from initiat- Robert A. Robin Hood and the jpb Foundation, have ing deportation actions against certain Katzmann been generous with support. Law schools non-citizens who have contributed to the have been very encouraging as well.33 Law community; who have ties, including fa- ½rms have expressed interest in sponsor- milial relationships, to the community; ing ijc fellows, and American Bar Associ- and who are not threats to public safety. ation President James Silkenat convened a Internal reforms within the dhs and doj meeting in New York of leading lawyers to can also bear upon the adjudication of im- draw attention to the program. migration matters. But whatever the fu - ture number of cases, the stakes for those The volume of immigration cases before facing deportation are high and the dire a court is largely beyond the judiciary’s need for quality representation will not control.34 The litigation docket will be change. All of us involved in the adminis- affected by congressional action and by the tration of justice have a responsibility to way the executive branch sets enforcement seek to ensure its fairness and effective- priorities. This may determine, for exam- ness. In that effort, I welcome the opportu- ple, whether dhs will exercise greater dis - nity to collaborate further with colleagues cretion and, consistent with its stated en - both within and outside of government.

endnotes 1 See, for example, Lenni B. Benson and Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration and Removal Adjudication, http://www.acus.gov/sites/default/½les/documents/ Enhancing-Quality-and-Timeliness-in-Immigration-Removal-Adjudication-½nal-June -72012.pdf (accessed May 12, 2014); Russell R. Wheeler, “Practical Impediments to Structural Reform and the Promise of Third Branch and Analytical Methods: A Reply to Professors Baum and Legomsky,” Duke Law Journal 59 (2010): 1847–1882; and American Bar Association Commission on Immigration and Arnold & Porter, llp, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Ef½ciency, and Professionalism in the Adjudication of Removal Cases (Washington, D.C.: American Bar Association, 2010), http://www.americanbar .org/content/dam/aba/migrated/Immigration/PublicDocuments/aba_complete_full_report .authcheckdam.pdf. 2 On the impact of immigrants’ legal and socioeconomic status on their children, see Hirokazu Yoshikawa, Immigrants Raising Citizens: Undocumented Parents and Their Young Children (New York: Russell Sage Founda tion, 2012). 3 Of½ce of Analysis and Planning for the Executive Of½ce for Immigration Review, Statistical Yearbook 2001 (Falls Church, Va..: Department of Justice, 2002), A-1, E-1. 4 Of½ce of Analysis and Planning for the Executive Of½ce for Immigration Review, Statistical Yearbook 2012 (Falls Church, Va.: Department of Justice, 2013), A-1, S-1. 5 See statement of the Honorable John M. Walker, Jr., United States Court of Appeals for the Sec - ond Circuit, Immigration Litigation Reduction?: Hearings Before the Senate Committee on the Judici- ary, 109th Cong. 6 (2006). Although very substantial challenges remain within the immigration adjudication system, there have been improvements in recent years. There has been some increase in resources, though the need is still vast. There are far more precedential opinions by the bia, which aid the federal courts in their deliberations. Largely gone are single-member bia decisions, and, as I indicated above, the bia no longer issues summary af½rmances. 6 Libby Lewis, “Appeals Courts Flooded with Immigration Cases,” All Things Considered, National Public Radio, November 19, 2004, http://www.npr.org/templates/story/story.php ?storyId=4179087.

143 (3) Summer 2014 47 The 7 See statement of the Honorable John M. Walker, Jr., United States Court of Appeals for the Challenge Second Circuit, Immigration Litigation Reduction?: Hearings Before the Senate Committee on the of Immi- Ju diciary, 109th Cong. 5 (2006). gration Cases 8 Administrative Of½ce of the United States Courts, Federal Judicial Caseload Statistics March for the 31, 2005, Table B1. Courts 9 Judge Jon O. Newman, “The Second Circuit’s Expedited Adjudication of Asylum Cases: A Case Study of a Judicial Response to an Unprecedented Problem of Caseload Management,” Brooklyn Law Review 74 (2008): 429. 10 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). 11 Donald M. Kerwin, “Revisiting the Need for Appointed Counsel,” Insight (4) (April 2005): 1–6, http://www.migrationpolicy.org/insight/Insight_Kerwin.pdf. In political asylum cases, 39 percent of nondetained, represented asylum seekers received political asylum, compared with 14 percent of nondetained, unrepresented asylum seekers. Of all detained, represented asylum seekers, 18 percent received asylum; compared with 3 percent of detained, unrepresented asylum seekers. See ibid; United States Commission on International Religious Freedom, Asy- lum Seekers in Expedited Removal, http://www.uscirf.gov/images/stories/pdf/asylum_ seekers/execsum.pdf (accessed May 12, 2014); and Andrew I. Schoenholtz and Jonathan Jacobs, “The State of Asylum Representation: Ideas for Change,” Georgetown Immigration Law Journal 16 (2002): 739–740. 12 Immigration and Nationality Act, 8 U.S.C. sec. 1362 (2012). 13 Code of Federal Regulations, Title 8, sec. 208.7(a) (2004). “[A]sylum seekers–who by de½nition have fled from their homes and, as a result, their means of income–generally cannot pay for legal representation.” See also Eleanor Acer, “Making a Difference: A Legacy of Pro Bono Rep- resentation,” Journal of Refugee Studies 17 (2004): 349; and Schoenholtz and Jacobs, “Asylum Representation,” 747. 14 Robert A. Katzmann, “Orison S. Marden Lecture: The Legal Profession and the Unmet Needs of the Immigrant Poor,” The Record of the Association of the Bar of the City of New York 62 (2) (2007): 287–311. A slightly revised version with footnotes can be found in Robert A. Katzmann, “The Marden Lecture: The Legal Profession and the Unmet Needs of the Immigrant Poor,” Georgetown Journal of Legal Ethics 21 (2008): 3–20. 15 Katzmann, “The Marden Lecture,” 20. 16 We have been guided by an outstanding steering committee, including: Jojo Annobil of Legal Aid, Immigration Judge Noel Brennan, Judge Denny Chin, Peter Cobb, Peter Eikenberry, Philip Graham, Robert Juceam, William Kuntz (then in private practice and now District Judge for the Eastern District of New York), Lewis Liman, Peter Markowitz, Liman Fellow Lindsay Nash, Michael Patrick, Careen Shannon, and Claudia Slovinsky. 17 Pro Bono Institute, “Words of Wisdom,” The Pro Bono Wire, http://pbi.informz.net/admin31/ content/template.asp?sid=15374&brandid=4063&uid=1012842200&mi=1465561&ptid=1053 (accessed May 12, 2014); and Tony Mauro, “Sotomayor: Lack of Diversity on Bench is ‘Huge Danger,’” Legal Intelligencer, November 21, 2013, http://www.thelegalintelligencer.com/id= 1202629016315/Sotomayor:-Lack-of-Diversity-on-Bench-Is-’Huge-Danger’?slreturn= 20140311124034 (accessed April 11, 2014). 18 A grant from the Leon Levy Foundation provides funding for the nonpro½t Human Rights First to work with pro bono lawyers from ½rms on asylum cases. Lori Adams and Alida Y. Lasker, “The Asylum Representation Project & Leon Levy Fellowship at Human Rights First: An Innovative Partnership to Increase Pro Bono Representation to Indigent Asylum Seekers,” Car- dozo Law Review 33 (2011): 417–436, http://www.cardozolawreview.com/content/33-2/Adams _Lasker.33-2.pdf. In this pilot effort, the Federal Bar Council Public Service Committee (with appreciation to Jamie Levitt, Alida Lasker, and Lewis Liman) has secured the commitment of Cleary Gottlieb, Sullivan & Cromwell, Fried Frank, Morrison & Foerster, and Wilmer Hale

48 Dædalus, the Journal ofthe American Academy of Arts & Sciences to assist with the screening of potential asylum clients at the New York Immigration Court, Robert A. and to have those law ½rms take asylum cases pro bono. Katzmann 19 Denny Chin, “Representation of the Immigrant Poor: Upstate New York,” Cardozo Law Review 33 (2011): 351–356. 20 The Robert L. Levine Distinguished Lecture with articles, reports, and commentaries of the Study Group, Fordham Law Review 78 (2) (2009): 453–640, http://law.fordham.edu/fordham -law-review/15905.htm; Mark Hamblett, “Lawyers Target ‘Assembly Line’ Practice, Abuse of Poor Immigrants,” New York Law Journal, January 4, 2010, 1, http://www.law.com/jsp/nylj/ PubArticleNY.jsp?id=1202437343741&hbxlogin=1; and “Symposium, Innovative Approaches to Immigrant Representation: Exploring New Partnerships,” Cardozo Law Review 33 (2011): 331–490, http://www.cardozolawreview.com/index.php?option=com_content&view=article &id=188&Itemid=7. 21 See Nina Bernstein, “In a City of Lawyers, Many Immigrants Fighting Deportation Go It Alone,” The New York Times, March 13, 2009, http://www.nytimes.com/2009/03/13/nyregion/ 13immigration.html; Sam Dolnick, “As Barriers to Lawyers Persist, Immigrant Advocates Ponder Solutions,” The New York Times, May 4, 2011, http://www.nytimes.com/2011/05/04/ nyregion/barriers-to-lawyers-persist-for-immigrants.html; Kirk Semple, “In A Study, Judges Express a Bleak View of Lawyers Representing Indigents,” The New York Times, December 19, 2011; “For Want of a Good Lawyer: Deportation Without Representation,” The New York Times, December 24, 2011, http://www.nytimes.com/2011/12/25/opinion/sunday/deportation -without-representation.html; Kirk Semple, “Plan Would Add Lawyers to Fight Deportation Cases,” The New York Times, November 27, 2012, http://www.nytimes.com/2012/11/28/ nyregion/plan-would-add-lawyers-to-contest-deportation-cases.html?_r=0; Hamblett, “Abuse of Poor Immigrants,” 1; Mark Hamblett, “Study, Forum Stress Plight of New York’s Unrep- resented Immigrants,” New York Law Journal, May 6, 2011, http://www.law.com/jsp/law/ international/LawArticleFriendlyIntl.jsp?id=1202493130604; and Mark Hamblett, “Summit Participants Discuss Effort to Find Competent Lawyers for Poor N.Y. Immigrants,” New York Law Journal, January 30, 2012, http://www.newyorklawjournal.com/PubArticleFriendlyNY .jsp?id=1202540386731&slreturn=1. 22 To learn more about our Study Group activities, you may download our Fordham and Cardozo symposia and reports, contact the Study Group ([email protected]) or the Federal Bar Council Public Service Committee, or contact the organizations featured in our materials, who are all doing excellent work. 23 nyirs Steering Committee, “Accessing Justice I: The Availability and Adequacy of Counsel in Removal Proceedings (New York Immigrant Representation Study Report: Part 1),” Cardozo Law Review 33 (2011): 357–416, http://www.cardozolawreview.com/content/denovo/NYIRS_ Report.pdf. 24 nyirs Steering Committee, “Accessing Justice I”; and nyirs Steering Committee, “Ac- cessing Justice II: A Model for Providing Counsel to New York Immigrants in Removal Pro- ceedings (2012),” http://www.cardozolawreview.com/content/denovo/NYIRS_ReportII.pdf. 25 U.S. Immigration and Customs Enforcement, Policy 11022.1: Detainee Transfers, January 4, 2012, http://www.ice.gov/doclib/detention-reform/pdf/hd-detainee-transfers.pdf. 26 nyirs Steering Committee, “Accessing Justice II.” 27 As Peter Markowitz put it: “The nyc Council and Speaker [Christine] Quinn should be ap - plauded for creating the nation’s ½rst assigned counsel system for immigrants.” Speaker Christine Quinn, “Council Members & Immigrant Rights Groups Announce Pilot Program Pro- viding Legal Counsel For Immigrants Facing Deportation,” 2013, http://council.nyc.gov/html/ pr/071913nyifup.shtml (accessed May 12, 2014). 28 Then-speaker Quinn remarked: “I want to thank Judge Robert Katzmann and the New York Immigrant Family Unity Project for all their work on the issue.” See Christine Quinn, “Pilot Program Announcement.”

143 (3) Summer 2014 49 The 29Kirk Semple, “Seeking Better Legal Help for Immigrants,” The New York Times, January 28, 2014, Challenge http://www.nytimes.com/2014/01/29/nyregion/service-program-will-recruit-law-school of Immi- -graduates-to-help-represent-immigrants.html?_r=0. gration Cases 30 The Immigrant Justice Corps website is at www.justicecorps.org. for the 31 Courts Kirk Semple, “Judge Proposes a National Lawyer Corps to Help Immigrants,” City Room, The New York Times, March 19, 2013, http://cityroom.blogs.nytimes.com/2013/03/19/judge -proposes-a-national-lawyers-corps-to-help-immigrants/. 32 In an October 2009 report, the Bloomberg Administration committed to support the training of lawyers who would represent immigrants, stating that “[t]he City will commit $2 million to the effort to cover a team of supervising attorneys and on-going training of associates and technical assistance in the area of immigration law.” See Michael Bloomberg, “Immigrants: The Lifeblood of New York City,” aila InfoNet (2009), 3, http://www.aila.org/content/default .aspx?docid=30284. In an October, 2009 speech, then-mayor Michael Bloomberg committed to “creat[ing] a $2 million fund to deploy these lawyers to community organizations with high concentrations of im migrants–and we’ll give them the support they need to help more families get a fair shake of the justice system . . . and stay here in our City.” He also emphasized the need to keep fam ilies uni½ed and said that “the stakes are too high” not to provide adequate representation to immigrants. Finally, he personally thanked me and Chung-Wha Hong, director of the New York Immigration Coalition, for the idea, calling it “an example of how we can turn the national economic downturn to our advantage–if we think innovatively and act boldly.” See Michael Bloomberg, “Speech at City University of New York Graduate Center,” New York, New York, October 8, 2009. In November 2011, Mayor Bloomberg, Deputy Mayor for Legal Affairs Carol Robles-Roman, Chief Policy Adviser John Feinblatt, Commissioner of the Mayor’s Of½ce to Combat Domestic Violence Yolanda Jimenez, and Commissioner of the Mayor’s Of½ce of Immigrant Affairs Fatima Shama announced a new program that would add thirteen additional full-time attorneys to the city’s ten indigent criminal defense providers, as well as provide counseling to immigrant domestic violence victims. See News from the Blue Room, “Mayor Bloomberg, Deputy Mayor Robles-Roman and Chief Policy Advisor John Feinblatt Announce Expansion of Legal Services for Immigrants,” Press Release, November 21, 2011, http://www.nyc.gov/ html/om/html/2011b/pr419-11.html. 33 I especially acknowledge the counsel and active involvement and encouragement of then–nyu School of Law Dean Ricky Revesz. 34 The Second Circuit, in the interest of judicial economy and in order to prioritize its docket, decided to toll all immigration cases for ninety days to allow petitioners and dhs to determine whether there would be an exercise of prosecutorial discretion, noting that the court currently had a thousand immigration cases pending. The Court established a procedure for how the appellate process for pending immigration cases could either proceed or allow the case to be remanded to the bia for a grant of prosecutorial discretion. See In the Matter of Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit, 702 F.3d 160 (2d Cir. 2012). As a consequence, the government exercised discretion in 928 cases in the period from January 1, 2013, to August 15, 2013.

50 Dædalus, the Journal ofthe American Academy of Arts & Sciences Gideon’s Problematic Promises

Carol S. Steiker

Abstract: The landmark case of “Gideon v. Wainwright” (1963) ensured the right of criminal defendants across the country to the effective assistance of counsel, but the overwhelming consensus is that the promise of “Gideon” has not been kept. Although there are signi½cant differences in the delivery of indigent defense services across the country, there are four general reasons for the failure of “Gideon” that obtain across every jurisdiction and collectively cover much of the explanatory terrain: 1) its mandate is inadequately and precariously funded; 2) institutional impediments have impinged on the independence, training and oversight, and advocacy culture of indigent defense counsel; 3) legal remedies for ineffective assistance of counsel are often inadequate, inaccessible, or both; and 4) the ubiquitous practice of plea bargaining shields inadequate representation from view or remedy. Vindicating the right of poor people to effective representation in criminal cases remains a daunting but enormously important task.

What is at stake in a criminal trial? The special procedural protections that the Constitution provides in criminal cases protect a defendant’s reputation, liberty, and sometimes even life. In addition, a criminal conviction can carry serious collateral (that is, putatively non-punitive) consequences, such as de - portation, disenfranchisement, and required reg is - tra tion and community noti½cation (as in the case of convicted sex offenders). Beyond these individual interests, considerable though they are, lie less tangi- CAROL S. STEIKER is the Henry J. ble but no less important collective in terests. In the Friendly Professor of Law and United States, constitutional adjudication estab- Spe cial Advisor for Public Service lishes minimum national standards regulating at Harvard Law School. She is the author of numerous works in the police investigative practices, the vast majority of broad ½eld of criminal justice. Her which takes place in the litigation of individual recent publications include “Gid- criminal cases. Thus, criminal trials play a crucial role eon at Fifty: A Problem of Political in establishing constitutional limits on the entire Will,” in the Yale Law Journal (2013); range of law enforcement investigative techniques, “Capital Punishment and Contin- including police intrusions into private homes, street gency,” in the Harvard Law Review encounters, border searches, interrogations, identi½- (2012); and the edited volume The cation procedures such as lineups, and the use of tech - Political Heart of Criminal Procedure: gps dna 1 Essays on Themes of William J. Stuntz nology such as tracking and sampling. (with Michael Klarman and David Because the U.S. incarceration rate has undergone Skeel, 2012). a massive and unprecedented increase over the past

© 2014 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00287 51 Gideon’s several decades (as documented in the same name starring Henry Fonda; it is also Problematic Promises Summer 2010 issue of Dædalus) even more the only decision recognized by the Su- is now at stake in the criminal process.2 preme Court itself as establishing a “water - The United States has become the leading shed” right of criminal procedure for the incarcerator in the world, with some 2.3 purposes of retroactive application.6 million people behind bars and an incar- Anthony Lewis passed away in 2013, the ceration rate of around 750 per 100,000 of year of Gideon’s ½ftieth birthday, but the the population, which is far above our own triumphal version of the Gideon story died past (and Europe’s current) rate of around much longer ago, as Lewis himself recog- 100 per 100,000.3 This exponential rise of nized. On each signi½cant anniversary of our prison and jail populations since the the decision, commentators have wrung 1970s has had enormous consequences their hands over the failure of the reality not only for individuals, but also for their of indigent defense representation to live families and communities–consequences up to the promises implicit in the recogni- with a highly disproportionate impact on tion of the right. Horror stories abound of racial minorities and the poor. The study of the failure of indigent defense systems in the society-wide effects of what has come infamously low-performing jurisdictions. to be called “mass incarceration” has de- For example, in the wake of Hurricane Ka - monstrated that the oper ation of the crim - trina, the New Orleans public defender of - inal justice process is directly linked to the ½ce was unable to produce a list of the substantial racial and socioeconomic di - 6,500 to 8,000 prisoners whom they were vides in contemporary American society.4 supposed to be representing.8 And in some With so much at stake in our criminal Mississippi counties, defendants may wait justice system, it is obvious that serious at- up to a year to speak to a court-appointed tention must be paid to its proper function- lawyer about their case, and many law - ing. Anyone familiar with the operation of yers do not meet their clients until the day the criminal justice process–any judge, lit- of trial.9 igator, or informed policy-maker–will at- Less obvious culprits, too, have left test that one of the best ways to promote Gideon ’s promises unmet. For example, the the proper functioning of the criminal jus- state of New York–a relatively wealthy tice system is to ensure that it is staffed state in the relatively progressive North- with quali½ed lawyers working under con - east–has failed to establish a well-func- ditions that permit them to practice ef - tioning statewide system of indigent de - fectively. Indeed, this rather obvious con- fense services; rather, services are supplied clusion was reached by the Supreme Court through a patchwork of inadequately fund - ½fty years ago in its landmark decision in ed county-based systems, without any Gideon v. Wainwright (1963),5 which held state wide attorney training, supervision, that the Sixth Amendment’s guarantee of or monitoring.10 And even the federal de- court-appointed coun sel for indigent de - fender system, often promoted as a model fendants in serious criminal cases applied for the states, was thrown into crisis as a as matter of “due process of law” to the consequence of the ½scal sequester in 2013, states in addition to the federal govern- which forced substantial and unprecedent- ment. The Gideon decision is often hailed ed cuts in staffing and resources.11 Even as a triumphant story of progress: it was the nation’s chief prosecutor recognizes the subject of the bestselling book by the the grave de½ ciencies that indigent defense journalist Anthony Lewis, Gideon’s Trum- providers face across the country. As At - pet, which was adapted into a ½lm of the torney General Eric Holder has forcefully

52 Dædalus, the Journal ofthe American Academy of Arts & Sciences acknowledged, “Too often, when legal rep- 80 percent of all criminal de fen dants. Since Carol S. resentation is available to the poor, it’s ren- the 1980s, when the number of prosecu- Steiker dered less effective by insuf½cient re - tions soared, funding challenges have been sources, overwhelming caseloads, and in- enormous. Close to half of the states have ade quate oversight. . . . [T]he basic rights established statewide public defender of½ - guaranteed under Gideon have yet to be ces of salaried law yers who handle most of fully realized.” 12 the state’s indigent de fense caseload. The Why has it proven so dif½cult to meet other states generally fully or partially dele- Gideon’s promise of minimally adequate gate the responsibility for providing indi- indigent defense representation for the gent defense services to counties or judicial poor in serious criminal cases? Unlike the districts, which provide for court-appoint- fairly simple story of Gideon’s triumph, the ed counsel through a var iety of means, in - story of Gideon’s failure is complicated and cluding hourly compensation (often with murky, especially in light of the many dif- mandated “caps”) and contracts (often of ferences among the various jurisdictions the “low-bid” variety). Although there are (local, state, and federal) that are charged some decently funded and well function- with the task of providing indigent de - ing indigent defense sys tems, they are fense services. However, there are four gen- clear ly the exception rather than the rule: eral reasons for Gideon’s failure that obtain most systems–whether public-defender, across every jurisdiction and collectively court-appointed, or contract-based–are cover much of the explanatory terrain. characterized by chronic lack of adequate funding.13 Gideon’s most obvious de½cit is that its The chronic underfunding of indigent command took the form of an unfunded de fense is the source of many of the most mandate. Unlike most other constitutional obvious problems that plague such sys- guarantees in the Bill of Rights, the right tems. First, there are the astronomically to assistance of counsel in criminal cases is high caseloads that salaried public de fen - an af½rmative rather than a negative right. ders (and some court-appointed and con - The government cannot ensure the right tract attorneys as well) carry in under - merely by abstaining from impermissible funded locales. For example, by one recent intrusions (such as unwarranted searches count, Florida public defenders in Miami- and seizures or violation of First Amend- Dade County were carrying average case- ment free speech rights), but only by direct- loads of close to 500 felonies or 2,225 mis- ly channeling resources for that particular demeanors at a time.14 Crushing caseloads purpose. However, no court–not even the require attorneys to perform a kind of ER United States Supreme Court–has control “triage” with their cases, moving from over the power of the purse. Courts may emergency to emergency rather than per- elucidate the contours of constitutional forming the kind of methodical investiga- rights, but they cannot compel the appro- tion, legal research, client consultation, in- priation of state or federal monies. What formed negotiation, and courtroom advo- this separation between af½rmative rights cacy that the adversary system presumes. and ½scal appropriations has meant for Second, chronically underresourced work- Gideon is that each jurisdiction (federal, ing conditions make it impossible to re- state, or local) has been left to its own de- cruit enough well-quali½ed lawyers to take vices in deciding how to structure and fund on the job of indigent defense, or to retain its obligatory services for indigent criminal experienced lawyers. As a result, too many defendants, who comprise approxi mate ly ill-quali½ed or inexperienced lawyers are

143 (3) Summer 2014 53 Gideon’s providing indigent defense services, and indigent defense, they may “tolerate or Problematic Promises they are the least able to deal with the con- welcome inadequate representation be - straints of inadequate resources. Third, cause it allows them to process cases quick- lack of resources precludes the investment ly.”17 The fact that most state judges must in training and supervision that might stand for some sort of election may also ameliorate problems caused by under- increase their wariness of the possibility quali½ed and inexperienced counsel. of acquittals in high-pro½le cases. Fourth, even if the law yers could perform Moreover, improvements in funding for adequately, underfunding deprives them indigent criminal defense programs are of - of the kind of investigative and expert ser- ten short-lived. Even in jurisdictions where vices that many cases require. episodic increases in funding or resources One might wonder why, given all of for indigent defense services have been these serious problems, underfunding per - approved by the political branches, the sists in so many jurisdictions around the battle for adequate funding is ongoing, due country. The answer is relatively simple: to the yearly nature of budget appropria- caseloads grow ever larger, and budgets tions and other competing demands for are failing to keep pace and sometimes funds. For example, in Massachusetts (a even shrinking. Gideon’s mandate is essen - pro gressive state whose indigent defense tially a welfare program, because indigent system is considered a high-functioning defense services by de½nition directly ben- one), the current Democratic governor has e½t only the poor.15 Welfare programs are promoted a major reorganization of the always politically unpopular and fare poor- structure of the statewide indigent defense ly in comparison to government pro grams program in an attempt to reduce costs by that support things that more ap parently raising public defender caseloads.18 A re- bene½t all citizens, such as infrastructure cent proposal from the state’s House Com- and education. But criminal defen dants are mittee on Ways and Means suggested that even less politically powerful than the poor. Massachusetts experiment with a “low- First, many current and past defendants bid” contracting system for indigent de - are politically disenfranchised as a collat- fense (the proposal was rejected in the eral consequence of prior convictions. Sec- House budget after a ½restorm of criti- ond, state of½cials are not merely insuf½ - cism).19 The fragility of indigent defense ciently motivated to remedy the plight of funding, even in a relatively progressive criminal defendants (as is often the case and wealthy state like Massachusetts, de - with the poor); rather, they often have mon strates how precarious indigent de - some af½rmative interest in keeping crim - fense funding is around the country and inal defendants at a comparative disadvan - how dif½cult it is to achieve lasting reform. tage in the criminal justice process, in order to produce more certain convictions at a Current indigent defense systems are lower cost. In explain ing the persistent plagued by institutional impediments that “de½ ance and resistance” of state govern - go beyond a lack of resources. While ade- ments to Gideon’s mandate, some com - quate funding is clearly necessary, it is also men tators have noted that adequate fund - insuf½cient by itself for the proper func- ing for criminal defense lawyers “could tioning of an indigent defense system. In frustrate [governmental] efforts to convict, addition to adequate funds, indigent de- ½ne, imprison and execute poor defen fense systems require institutional struc- dants.”16 Moreover, when individual judg- tures that 1) ensure their independence es control some or all of the funding of from improper political interference; 2)

54 Dædalus, the Journal ofthe American Academy of Arts & Sciences pro vide adequate training, supervision, electorate, the judiciary, and the legislative Carol S. and oversight; and 3) more generally pro- branch. Steiker mote a culture of zealous advocacy. In too Moreover, adequate training, supervi- many jurisdictions around the country, sion, and quality oversight of indigent de- these basic structural components are lack- fense counsel are also necessary to ensure ing, which severely undermines the ability the adequacy of indigent defense repre- of indigent defense counsel to provide min - sentation. In the substantial number of imally adequate representation. states that provide for indigent defense The defense function’s independence services on a local rather than a state basis, from improper political interference is of the availability of training and supervision such importance that it commands the ½rst is often spotty, and top-down enforcement principle of the American Bar Association’s of consistent norms of practice through at - Ten Principles of a Public Defense Delivery Sys - torney oversight may be nonexistent. The tem (“The public defense function, includ- complexity of indigent defense practice ing the selection, funding, and payment of and the ever-changing nature of both defense counsel, is independent”).20 Yet constitutional rules and technological ad- many states do not insulate their indigent vances (such as dna testing) make on - defense counsel from direct or indirect going training and supervision of criminal political influence. In a small number of ju- defense counsel a necessity rather than a risdictions, chief public defenders must luxury. Yet adequate initial training and stand for election–a requirement that pits continuing education remain unavailable the public’s interest in quick, cheap, and or geographically inaccessible in many ju- certain criminal convictions against public risdictions. It is similarly essential to re - defenders’ obligation to zealously defend quire that attorneys have certain kinds of their indigent clients. In many more juris- training and/or experience before they dictions, defense counsel (either chief pub- become eligible to take on the most serious lic defenders or court-appointed counsel) cases. Yet in many jurisdictions, there are are ap pointed by the judiciary, which has no such clear or generally enforced rules. an interest in processing cases quickly and For example, observers have reported that avoiding politically antagonizing prosecu- in Alabama, attorneys fresh out of law tors and police, whose support judges may school are as likely as experienced attor- need when they themselves stand for elec- neys to be assigned to serious cases, even tion, as is common throughout the United to homicide prosecutions.21 States. Similarly, in contract-based sys- The remaining part of the institutional tems, state and local of½cials who enter in - structure necessary for a well-functioning to contracts with indigent defense service criminal defense system is less concrete, providers have ob vious incentives to seek but no less important: the maintenance of the lowest price and may demand certain a culture of zealous representation. In hir ing, cost-cutting, or case-processing many jurisdictions, indigent defense law - prac tices in order for contracts to be re - yers are so overwhelmed that they do not newed–demands that may be antithetical even attempt to advocate for their clients in to the norms of zealous representation. the way that the adversary system of jus- Hence, even adequately funded in digent tice presupposes. They do not even try to de fense lawyers would be se verely limited investigate the facts underlying the alle- in the quality of representation they could gations, do legal research, negotiate in an realistically offer in the absence of an inde- informed way, or ½le motions and litigate pendent governing body distinct from the legal issues, much less actually try crimi-

143 (3) Summer 2014 55 Gideon’s nal cases. Rather, in many jurisdictions, ments.”25 Because lawyers, of course, do Problematic Promises the adversary process has devolved into a not wish to be found constitutionally in - “meet ’em and plead ’em” form of perfunc- effective, they have strong in centives to tory mass processing for large swaths of cover up their mistakes by claiming “legal cases.22 Even if the funding issues that pri - strategy.” Moreover, in a companion case marily drove the emergence of “meet ’em to Strickland, the Court further held that de- and plead ’em” practices were satisfacto- fendants seeking to challenge the quality rily resolved, it would take a massive cul- of the representation afforded them must tural reorientation to change the perspec- identify particular acts or omissions of tive of many currently operating indigent their counsel, rather than general circum- defense lawyers about the nature and re - stances that might negatively affect coun- quirements of their role. The promotion of sel’s performance (such as insuf½cient such abstract institutional reform (the re- time or resources, or lack of experience).26 form of “lawyer culture”) may be the hard- Thus, systemic problems are essentially est to accomplish or to measure. immunized from constitutional review in individual cases. One might wonder why, if the problems Furthermore, Strickland also established plaguing indigent defense systems are as that even if defendants can prove that their dire as described, the lawyers practicing lawyers’ performance was constitutionally under such circumstances don’t sue to ½x de½cient, they still cannot undermine the them–after all, they are lawyers. The an - validity of their convictions unless they swer is that the available legal remedies are can also demonstrate that they suffered often inadequate, inaccessible, or both. “prejudice” from their lawyers’ mistakes: On the one hand, the Supreme Court has they must establish a reasonable proba- maintained that the Sixth Amendment bility that the outcome of the proceeding right to “assistance of counsel” for indigent would have been different had their coun - defendants extended in Gideon entails the sel performed adequately. Courts are often right to effective assistance of counsel, thus reluctant to ½nd criminal defense lawyers theoretically enabling defendants to assert who appear regularly before them to be their constitutional right to adequate re - constitutionally ineffective even when presentation in either state or federal court. their performance is highly questionable. On the other hand, the Court has de½ned As a result, courts often dispose of cases the contours of “ineffective assistance of on the grounds that they lack outcome- counsel” in such a way as to make it very determinative “prejudice” so as not to be dif½cult to establish. In the landmark case forced to decide the de½ciency issue, thus of Strickland v. Washington,23 the Court man - giving even flagrantly de½cient lawyers a dated that judges evaluating claims of inef- free pass while failing to set (or uphold) fective assistance of counsel must start basic norms of practice for future cases. with a thumb on the scale against such a Even putting aside the substantive stan- ½nding: “[A] court must in dulge a strong dard for ineffectiveness, the procedural pre sumption that counsel’s conduct falls set ting in which claims of ineffective as - within the wide range of reasonable pro- sistance of counsel are generally litigated fessional assistance.”24 More over, the makes them extremely unlikely to succeed. Strickland Court essentially created a safe Claims of ineffective assistance usually harbor for “strategic” decisions of counsel, require the development of some new facts warning that courts must “ap plya heavy (about evidence, arguments, or theories) measure of deference to counsel’s judg- that should have been developed at trial

56 Dædalus, the Journal ofthe American Academy of Arts & Sciences but were not, and thus such claims cannot Moreover, even when criminal defendants Carol S. be litigated on direct review of criminal actually make it through the procedural Steiker convictions, which is always conducted on maze into federal court with their claims, the cold trial record. Rather, ineffective- Congress sig ni ½cantly curtailed the ability ness claims are generally litigated in the of federal courts to order relief in its 1996 post-conviction civil process afforded by overhaul of habeas corpus procedures, state habeas corpus review, at which new ev- which now require federal courts to use a idence may be presented. However, crim- highly deferential standard in review ing inal defendants are generally not repre- the decisions of state courts. Because the sented by counsel on state habeas review Strickland standard of constitutional inef- (their constitutional right to representa- fectiveness is already deferential to coun- tion in criminal cases runs out after their sel, the overlay of federal deference to state ½rst appeal); thus, most indigent criminal courts yields what the Supreme Court has defendants are on their own in seeking to deemed a “dou bly” deferential form of establish the ineffectiveness of their trial oversight.27 As a result, the federal judicia- (or appellate) counsel. Without the advice ry has not been able to serve as a robust and assistance of a lawyer, it is very dif½- champion of Sixth Amendment Gideon cult for most criminal defendants to iden - rights through its power of federal habeas tify, investigate, and present claims of in - corpus review of state court convictions. effective assistance of counsel, even when The dif½culties of enforcing Gideon meritorious grounds for such claims exist. through state and federal review of the Moreover, even in the rare instances when con stitutionality of individual criminal criminal defendants are represented by convictions have led some public defense counsel on state habeas corpus review, the and civil rights advocates to bring civil state courts reviewing their claims are gen- class action lawsuits in an attempt to di - erally the same courts that oversaw their rectly address the systemic problems (in- initial trials and appeals and thus are often cluding underfunding, crushing caseloads, resistant to overturning their earlier work. and inexperienced counsel) that plague the Federal courts also offer federal habeas de livery of indigent defense services. cor pus review of federal constitutional Structural litigation of this type has yielded claims after the conclusion of all state pro - some judicial rulings and legislative re- cesses. It is often thought that federal sponses promoting indigent defense re- courts may be more sympathetic than state form in several jurisdictions. For example, courts to claims of ineffective assistance of a recent federal court decision found that counsel because 1) the claim is based on the two cities in Washington State had con- federal Constitution rather than on state stitutionally inadequate public defense law; 2) federal judges are appointed rath- systems and ordered extensive injunctive er than elected (as many state judges are); relief requiring new resources and moni- and 3) the consequences of granting habeas toring for defense attorneys.28 Nonethe- relief and ordering a new prosecution will less, structural litigation to remedy sys - have a greater effect on state rather than tem ic inadequacies has run into some of federal resources. However, accessing the same obstacles as individual constitu- federal ha beas corpus review of constitutional review, as well as some new ones. tional claims is a daunting task, because Some courts have insisted that structural many complicated procedural hurdles litigation, like individual defendant liti- must be cleared, both in the direct review gation, must meet the Strickland “preju- process and on state habeas corpus review. dice” standard and prove that systemic un -

143 (3) Summer 2014 57 Gideon’s derfunding and excessive caseloads caused equate in some signi½cant respect, their Problematic Promises speci½c outcome errors–an often dif½cult incentive to accept a plea bargain becomes task that requires throwing individual law - stronger, not weaker–by pleading, they at yers under the bus in order to make the sys- least get a sentencing concession, where- temic case. In addition, some state courts as by going to trial, the chance of acquit- have dismissed structural claims by insist- tal with a subpar lawyer becomes even ing that such claims must be addressed to more remote. Moreover, because misde- the legislature rather than the courts. And meanor courts often fail to in form defen- federal courts–generally the more sought- dants of their right to counsel and some after venue for constitutional litiga tion– misdemeanor prosecutors offer plea deals have dismissed structural claims under the only to those who will waive that right, Younger abstention doctrine, named after Gideon is often more honored in the the Supreme Court case that held that fed- breach than in the observance in petty eral courts may not issue rulings that would cases without the threat of substantial pen- interfere with ongoing state criminal pros- alties after trial.30 ecutions.29 In short, there is a chasm be - By pleading guilty, defendants are held tween the proclaimed existence of the con- to have waived any objections to their constitutional right to effective indigent de - viction other than in½rmities in the plea fense representation and accessible legal process itself. Until recently, defendants remedies in state or federal courts for vio- could not claim ineffective assistance of lations of that right. coun sel to undermine a conviction based on a guilty plea unless they could demon- Last but not least, Gideon’s promise has strate that they likely would have gone to proven so hard to vindicate because the trial in the absence of their lawyers’ in- vast majority of cases of ineffective assis- competence–a dif½cult burden in light of tance of indigent defense counsel are es - the steep concessions offered in the plea sentially invisible: they are not detectable bargaining process and the overwhelming in the public records kept by the crim inal percentage of defendants who plead guilty. justice system, and they are never raised However, the Supreme Court has very re- in any court. The reason for this cloak of cently issued a series of decisions imposing invisibility is the extraordinary dominance some new duties on lawyers in the plea of the practice of plea bargaining across the pro cess that indicate possible new reme- coun try, which accounts for all but a tiny dies. The Court has held that criminal de - percentage of criminal convictions (more fense lawyers have a duty to advise their cli- than 95 percent). The possible pen al ties are ents about the deportation consequences often so high as to make plea offers irre- of a criminal conviction prior to either a sistible; the government of fers such sub- trial or a plea.31 Moreover, the Court has stantial concessions in the plea process re cognized that an attorney’s failure to that defendants are unwilling to risk the communicate a more lenient plea offer much higher penalties that might result if than the one accepted by a defendant,32 they were convicted after trial. Because the or to offer competent advice that might government’s case is never put to the test, have prevented a defendant from risking a the adequacy of a defense lawyer’s prepar - trial,33 violates the Sixth Amendment right ation, knowledge, and skills is never reveal - to effective assistance of counsel and might ed (to defendants or to anyone else). More- require reversal of the defen dant’s convic- over, when defendants do have strong rea- tions. These cases have been hailed as revo - sons to believe that their lawyers are inad- lutionary in the Court’s more expansive re-

58 Dædalus, the Journal ofthe American Academy of Arts & Sciences cognition of counsel’s Sixth Amendment view and shield from remedy the vast ma- Carol S. duties, especially in the context of plea bar- jority of Sixth Amendment failures. Steiker gaining. These recent cases do indeed represent Major disasters are often produced by a substantial departure from prior law in the confluence of many separate, smaller their recognition of the “simple reality” mistakes. A corollary of this is no less true: that “plea bargains have become so cen- ½xing major problems usually requires the tral to the administration of the criminal simultaneous repair of many smaller prob- justice system that defense counsel have lems. So it is with realizing Gideon’s prom - responsibilities in the plea bargain pro - ise: ensuring the right to adequate repre- cess.”34 Moreover, these cases will un- sentation for indigent criminal defen - doubtedly open up new avenues of litiga- dants will require changes from root to tion on behalf of indigent criminal defen- branch, from funding and organization to dants. However, it is unlikely that these legal institutions and remedies, with care- new pronouncements–even if extended ful attention to the current institutional by the Court to cover more cases–can sub- pathologies that drive the problem of in - stantially undo the potent “invisibility” adequate representation. Effecting these effect that the practice of plea bargaining changes cannot be done with the stroke of has on Sixth Amendment violations. The a pen, the way Gideon’s trumpet was ½rst enormously powerful incentives to plead sounded. Rather, the problem is largely one guilty–the generally huge differential be - of “political will.”35 The challenges are so tween the concessions offered in the plea widespread and complex that there is no process and the likely sentence after trial, silver bullet to overcome them; rather, the along with the overwhelming caseloads of kinds of changes necessary will require the most indigent defense attorneys–will con- long, slow, and concerted effort of all pos- tinue to drive the vast majority of criminal sible institutional actors: not just govern- defendants to accept plea bargains. Once mental of½cials, but also the private bar, such bargains are accepted (by both a de - the nonpro½t sector, the academy, and the fendant and the court), it is the very rare media. The task is daunting, but so much is defendant who will seek to “undo” the bar- at stake: not just the rights and liberty of gain, because successful challenges gen - millions of criminal defendants, but the erally simply place defendants back where proper limits of the state power that shapes they started. Cases in which defendants our society, for better or for worse. discover the kind of in formation about at - torney misfeasance that might make it worthwhile to challenge a plea bargain– such as a better plea offer that was never communicated by defense counsel–are ex tremely rare, because defendants rarely have the capacity to uncover such information after their plea bargains are enter- ed (especially with out the help of a lawyer). Hence, even with greater recognition by the Supreme Court of attorneys’ Sixth Amend ment responsibilities during the plea bargaining process, the prevalence of plea bargaining will continue to cloak from

143 (3) Summer 2014 59 Gideon’s endnotes Problematic 1 Promises The last two terms of the Supreme Court have yielded constitutional decisions regarding the investigative use of gps tracking and dna sampling–see United States v. Jones, 132 S. Ct. 945 (2012), and Maryland v. King, 133 S. Ct. 1958 (2013)–but the provisional nature of the opinions in these cases demonstrates that the Court is clearly cognizant that these two tools represent the tip of the iceberg of technological innovation yet to come. 2 See Dædalus 139 (3) (Summer 2010), “On Mass Incarceration,” http://www.mitpressjournals .org/toc/daed/139/3. 3 See Carol S. Steiker, “Criminalization and the Criminal Process: Prudential Mercy as a Limit on Penal Sanctions in an Era of Mass Incarceration,” in The Boundaries of the Criminal Law, ed. R. A. Duff et al. (New York: Oxford University Press, 2010), 31–32; and Roy Walmsley, World Prison Population List, 9th ed. (London: International Centre for Prison Studies, 2011). 4 See, for example, Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disad - vantaged Neighborhoods Worse (New York: Oxford University Press, 2007). 5 Gideon v. Wainwright, 372 U.S. 335 (1963). 6 See Teague v. Lane, 489 U.S. 288, 311–312 (1989). 7 See Anthony Lewis, “Foreword” to American Bar Association Standing Committee on Legal Aid and Indigent Defendants, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (Chicago: American Bar Association, 2004), i, http://www.americanbar.org/content/ dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_bp_right_to_counsel_ in_criminal_proceedings.authcheckdam.pdf. 8 See Karen Houppert, Chasing Gideon: The Elusive Quest for Poor People’s Justice (New York: The New Press, 2013). 9 See naacp Legal Defense and Educational Fund, Inc., Assembly Line Justice: Mississippi’s Indigent Defense Crisis (New York: National Association for the Advancement of Colored People, 2003), 6, http://www.americanbar.org/content/dam/aba/migrated/legalservices/downloads/sclaid/ indigentdefense/ms_assemblylinejustice.authcheckdam.pdf. 10 See Commission on the Future of Indigent Defense Services, Final Report to the Chief Judge of the State of New York (New York: New York State Uni½ed Court System, 2006), 15–19, http:// www.nycourts.gov/ip/indigentdefense-commission/IndigentDefenseCommission_report 06.pdf. 11 Michael S. Nachmanoff, “Sequestration Threatens to Eviscerate Federal Public Defenders,” The Hill Congress Blog, July 23, 2013, http://thehill.com/blogs/congress-blog/judicial/312659 -sequestration-threatens-to-eviscerate-federal-public-defenders. 12 Attorney General Eric Holder, “Address to the American Bar Association National Summit on Indigent Defense,” February 2, 2012, http://www.justice.gov/iso/opa/ag/speeches/2012/ ag-speech-120204.html. 13 See generally National Right to Counsel Committee, Constitution Project, Justice Denied: Amer- ica’s Continuing Neglect of Our Constitutional Right to Counsel (2009), 52–64, http://www .constitutionproject.org/pdf/139.pdf. 14 Ibid., 68 (citing Erik Eckholm, “Citing Workload, Public Lawyers Reject New Cases,” The New York Times, November 9, 2008). 15 “[P]roviding for criminal defendants is regarded as akin to providing welfare.” See Erwin Chemerinsky, “Lessons from Gideon,” Yale Law Journal 122 (8) (2013): 2676, 2692. 16 Stephen B. Bright and Sia M. Sanneh, “Fifty Years of De½ance and Resistance After Gideon v. Wainwright,” Yale Law Journal 122 (8) (2013): 2150, 2153. 17 Ibid., 2154.

60 Dædalus, the Journal ofthe American Academy of Arts & Sciences 18 See Matt Murphy, “Patrick’s Call for More Public Defenders Draws Lawyers’ Pushback,” The Carol S. Herald News, February 8, 2012, http://www.heraldnews.com/news/x962219952/Patricks-call Steiker -for-more-public-defenders-draws-lawyers-push-back. 19 See Kurt Wise, “Law and Public Safety in the House Budget for fy 2014,” MassBudget, May 7, 2013, http://massbudget.org/report_window.php?loc=law_safety_house_fy14.html. 20American Bar Association, Ten Principles of a Public Defense Delivery System, 2002, http://www .abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbooklet.pdf. 21 See American Bar Association Standing Committee on Legal Aid and Indigent Defendants, Gideon’s Broken Promise, 17. 22 See Bright and Sanneh, “Fifty Years of De½ance and Resistance After Gideon v. Wainwright,” 2152. 23 Strickland v. Washington 466 U.S. 668 (1984). 24 Ibid., 689. 25 Ibid., 691. 26See United States v. Cronic, 466 U.S. 648 (1984). 27 Harrington v. Richter, 131 S. Ct. 770, 788 (2011). 28 See Wilbur v. City of Mount Vernon, No. C11-1100RSL (W.D. Wash. Dec. 4, 2013). See also State ex rel. Missouri Public Defender Commission v. Pratte, 298 S.W.3d 870 (Mo. 2009) (opinion of Missouri Supreme Court setting limits on caseloads of indigent defense attorneys); and Hurrell- Harring v. New York, 15 N.Y.3rd 8 (N.Y. 2010) (opinion of highest court in New York reinstating challenge on behalf of indigent defendants to the constitutional adequacy of defense counsel services, allowing the case to proceed to trial). See generally Stephen F. Hanlon, “State Con- stitutional Challenges to Indigent Defense Systems,” Missouri Law Review 75 (2010): 1 (surveying recent successful systemic challenges); and Cara H. Drinan, “The Third Generation of Indi - gent Defense Litigation,” N.Y.U. Review of Law & Social Change 33 (2009): 427. 29Younger v. Harris, 401 U.S. 37 (1971). 30 See National Right to Counsel Committee, Justice Denied, 88–89. 31 See Padilla v. Kentucky, 130 S. Ct. 1473 (2010). 32 See Missouri v. Frye, 132 S. Ct. 1399 (2012). 33 See Lafler v. Cooper, 132 S. Ct. 1376 (2012). 34 Missouri v. Frye, 132 S. Ct. at 1407 (quoting Lafler v. Cooper, 132 S. Ct. 1t 1388, for the proposition that ours “is for the most part a system of pleas, not a system of trials”). 35 See Carol S. Steiker, “Gideon at Fifty: A Problem of Political Will,” Yale Law Journal 122 (3) (2013): 2694.

143 (3) Summer 2014 61 Uncommon Law: America’s Excessive Criminal Law & Our Common-Law Origins

Jonathan Simon

Abstract: This essay explores the role that U.S. criminal courts play in shaping the uniquely punitive social order of the United States. U.S. courts have long been de½ned against the common law of England, from which they emerged. In this essay, I consider the English legacy and suggest that while the United States does draw heavily from common-law traditions, it has also innovated to alter them, a process that has established a criminal justice system even more punitive than that of England.

Comparative analysis of incarceration rates, an imperfect albeit ready measure of national punitiveness, shows common-law countries at the top of the distribution of wealthy liberal democracies. Within this group, the United States stands apart, incarcer- ating nearly three times the percentage of its population than does England, the next most punitive common-law nation.1 How the United States arrived at this state is the subject of its own considerable literature.2 Among the leading sociological factors are the unresolved legacies of slavery and racial dis- JONATHAN SIMON is the Adrian crimination, the weakening of the welfare state as a A. Kragen Professor of Law and framework for politics and governance, compara- the Director of the Center for the tively high rates of violent crime (homicide in partic- Study of Law and Society at the Uni - versity of California, Berkeley. He ular), and the politicized nature of criminal justice is the author of Governing through in the highly decentralized U.S. criminal justice sys- Crime: How the War on Crime Trans- tem–especially the political influence of home-own- formed American Democracy and Cre - ing middle-class voters and the power of prosecutors ated a Culture of Fear (2007), and he to use their enormous discretion for political ad- has contributed chapters to such vancement. Here I want to focus on how the criminal volumes as The Oxford Handbook of trial courts, both in their common-law inheritance Sentencing and Corrections (ed. Joan Petersilia and Kevin R. Reitz, 2012) and in their long-term evolution, have contributed and The SAGE Handbook of Punish- to the rapid emergence of severe U.S. punitiveness. ment and Society (ed. Jonathan Simon U.S. criminal courts–the most visible in the world and Richard Sparks, 2012). in no small part because of popular crime television

© 2014 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00288 62 shows like Law & Order–are often thought of resistance. And why not? The prosecu- Jonathan to provide a comparatively protective en - tion, called “the People” in court, repre- Simon vironment for the defendant, who is presents the public interest as much as the sumed innocent, given a lawyer, and sub- legislature itself does, and perhaps more so. ject to punishment only if a jury of his or her peers ½nds the government’s case over- Televised portrayals of the U.S. criminal whelmingly persuasive. Of course, empiri- trial may bear little resemblance to rou- cal research on courts has long shown this tine practice in criminal courts, but they to be a highly idealized picture at best, do bear a close resemblance to the form since the delivery of these promises is ob - described in the U.S. Constitution and Bill structed by overwhelmed public defend- of Rights, both of which are predicated on ers, plea-bargaining, and inadequate op - a highly idealized, indeed contentious, con- por tunity for pretrial release. While all of ception of trial practice in the late eigh- these certainly contribute to the scale of teenth century. By the time of the Ameri- mass incarceration in the United States, it can Revolution, English practice of law is the very structure of the U.S. criminal tri- was partway through a remarkable trans- al court that has transformed the United formation away from what legal historian States into the punitive juggernaut we ½nd John Langbein has memorably called the today at the start of the twenty-½rst cen- “accused speaks” trial, in which defen- tury. dants were compelled to confront the pros- Rooted both in their English origins and ecutor’s witnesses and evidence in a sum- in their many innovations since indepen- mary hearing before a judge and jury, and dence, U.S. criminal trial courts have toward a “lawyer conducted trial,” a duel evolved to grant local politicians and pros- over evidence and elements, complete ecutors extraordinary power of exclusion with cross-examinations of key prosecu- against citizens or residents whose pres- tion and defense witnesses by professional ence in the community may alarm elec- lawyers.3 The accused-speaks trial, which torally signi½cant or majority populations. remained the dominant practice in both While many readers are familiar with the England and colonial America until well “war on crime,” “mandatory sentencing,” into the nineteenth century, hardly exem- plea-bargaining, and other harshly puni- pli½ed the model of the fair contest that tive or discriminatory features of contem- we pay homage to today. Defendants, typ- porary criminal justice, this essay suggests ically ripe from a period in jail, were left to that the roots of America’s mass-incar- their own devices to explain away the ac- ceration state extend back further than the cusations against them, with a judge and founding of the nation itself. Prosecutorial jury looking on and at times joining in the power has steadily grown since indepen - questioning. dence through new legislation that has im- The new English trial model adapted to proved the prospects of state prosecutors the rise of defense lawyers, who had gradu- in proving guilt or, as is more common, ally sought and won the rights to earn fees avoiding trial altogether through plea- through cross-examination and objection bargaining. As we will see, the criteria of to the prosecution’s evidence. These chang- certain crimes have been rede½ned and re- es ½rst took hold in political cases with focused in order to make them more eas- high-status defendants, but because de - ily proven in court, and prosecutorial and fense counsels hoped to build their pro- judicial procedures have been smoothed fessional reputations through flashy style or simpli½ed to eliminate possible sources and victories in long-shot cases (much as

143 (3) Summer 2014 63 America’s they still do today), these changes also many districts with elected judgeships, it Excessive spread to the cases of more common crim- was in the judges’ best interest to appease Criminal Law & Our inals. and appeal to their juries, who also com- Common- America’s revolutionary elite embraced posed their base of voters. Trial before Law Origins the new paradigm. The 1791 Bill of Rights one’s peers in England did not mean a jury instituted a panoply of criminal trial rights made of common residents of your com- associated with the lawyer conducted trial, munity; rather, the jury was typically made such as the right to remain silent, to con- up of local gentlemen eager to see poten- front witnesses testifying against you, and tially dangerous members of the lower most centrally, to be represented by a de - classes removed from society through ei - fense lawyer who could replace the de- ther hanging or exile to the colonies fendant as challenger to the prosecution. (known as transportation), ½rst to North Historians agree that few ordinary crimi- America and later to Australia. In the nal defendants in the new republic, or in Unit ed States, race and gender remained England for that matter, enjoyed anything grounds for exclusion from the jury, though like this constitutionally guaranteed model property ownership was not a decisive fac- before the modern era. Until the 1960s, in tor. The criminal-trial jury eventually be - criminal trial courts across the United came just as potent a symbol of U.S. de- States, something closer to the accused- mocracy as the voting booth. Not surpris- speaks trial method prevailed, but the im - ingly, disenfranchisement and exclusion age of the lawyerly duel, in which the pros- from jury service together became central ecution is forced to prove the evidence to fronts in U.S. civil rights legal battles since a jury over the ½erce opposition of a de - the nineteenth century. fense lawyer, enshrined in the Constitution The constitutional requirement of due and in popular culture, has long served as process–which mandates that the prose- an emblem of legitimacy. cution carry the burden of persuading the jury of each fact necessary to prove the Trial by jury–speci½cally by a jury of crime beyond a reasonable doubt–places peers–was the core feature of English the authority of the American jury at the criminal trials. In colonial America, even core of trials. This simple and widely before independence, this practice trans- known right actually comes with a set of lated to a jury of local citizens whose unan - expectations. When a judge refuses to ad- imous verdict was necessary for a ½nding mit evidence submitted by the defense, re - of guilt. In contrast, most Continental legal jects the defense’s instruction to the jury, systems placed a judge (or committee of or instructs the jury in a manner that the judges) as the ½nder of both fact and law. defense objects to–leading to the convic- The English system gave the jury the tion of the defendant–the defendant authority to decide the facts, though under may appeal the conviction on the grounds the strict governance of a judge who in - that the judge’s actions relieved the state structed them in the law and at times dic- of some part of the burden of proof. And tated the verdict. Further, if the judge be - the court must order a new trial if it ½nds lieved that the jury had misapplied the law that a reasonable juror could have reached to the facts of the case, he could order sum - a different verdict had the evidence or in- mary penalties against them. From the very structions been different.4 beginning, the American jury was far more Whether or not the jury right operates populist than its English cousin, and less as a bulwark to protect individuals is, in subject to judicial reprisal; indeed, in the fact, dependent on the conceptions of

64 Dædalus, the Journal ofthe American Academy of Arts & Sciences crime to which legal judgments can at- The highly adversarial style of the lawyer- Jonathan tach. Common-law crimes consisted most- conducted trial model that was enshrined Simon ly of manifestly criminal acts: dif½cult to in our Constitution (if imperfectly real- rationalize without criminal intent, but ized) has also fueled punitiveness. The also within the realm of jurors’ under- Anglo-American criminal trial is built on standing. Modern criminal law is legisla- the model of the private battle or litigation-based, although that legislation is tion between two rival and equal parties. sometimes but a copy of common-law In contrast, the inquisitorial procedure rules. The prin ciple of proof beyond a rea- em braced by Continental Europeans fea- sonable doubt is the foundation for what tures a scientist-like judge or magistrate is popularly known in the United States as who investigates the crime and then pre- the presumption of innocence. That same sents legal proof to a still higher-ranking value extends into the penal phase, limit- judge. While the English procedure hides ing punishments to only when authorized the public role in investigating and pros- by a jury’s ½nding of fact. However, during ecuting the crime, with the crown repre- the twentieth century, many statutes were sented primarily through the judge as an amended to lighten that burden on the only sporadically active umpire, the Con- prosecution. tinental procedure invites state restraint But if proof beyond a reasonable doubt and paternalism. On the Continent, pun- is deservedly celebrated as a shield for de - ishment is the result of a procedure thor- fendants, it also validates the highly pu - oughly shaped and marked by the presence nitive attitude toward those who are con- of state power, while the English adver- victed. Indeed, as a legal principle, proof sary system makes state punishment ap - beyond a reasonable doubt is the flipside pear as the prosecution’s prize. of the extraordinary discretion legislatures The U.S. innovation on the English ad - have to criminalize–through statutes de - versary system was to preserve the emo- ½ning the elements–conduct they view as tional affectation of the victim and the socially harmful. The elements of a crime accused as contestants locked in struggle, and the burden they pose for the prosecu- while altogether dispensing with the ½c - tion render the jury the guarantor of the tion that the prosecution represents strict- appropriateness of the punishment. In this ly private interests. Until the reforms of way, the American jury, even more than the twentieth century, English criminal its English predecessor, legitimizes the cases were formally private prosecutions whole of the penal system. The freedom of brought by victims. The crown’s prosecu- juries to reject the elements of the prose- tion service operated only in the trials of cution’s proof (should defendants exercise state crimes. While prosecution associa- their rights and demand a test of that tions allowed many victims to be repre- proof ), removes for most Americans any sented by professional counsel, the struc- serious consideration of the equity of our ture of trials, speci½cally the role of judges comparatively severe penal sanctions, in - and the royal prerogative of mercy, kept cluding the death penalty. The extreme the role of the state at arm’s length until length of U.S. prison sentences, coupled the legal process was complete. with the prosecution’s unprecedented The American colonies, by contrast, power to influence that length by reward- were quick to adopt the practice of electing ing cooperation, has reduced the histori- a local public prosecutor.5 The creation of cally small portion of criminal cases re- a unique political of½ce with the mandate solved by trial to the single digits. and exclusive authority to bring criminal

143 (3) Summer 2014 65 America’s charges for a jurisdiction has had a num- ing premeditation and deliberation in Excessive ber of profound consequences. By profes- mur der prosecutions, this new classi½ca - Criminal Law & Our sionalizing state prosecution, the United tion of murder gave prosecutors a potent Common- States accelerated the shift already taking tool for inducing plea bargaining.7 Law Origins place in eighteenth-century England, where professional lawyers had begun to America’s second innovation on the ad- appear in signi½cant numbers for both versary trial model was the standardization parties in criminal trials, though especially of defense counsel. The English had legally on the prosecution’s side. excluded defense representation in felonies Professionalizing and empowering state until the nineteenth century. The U.S. Con- prosecutors in the United States not only stitution, in contrast, guarantees the right increased the government’s advantage to counsel in “all criminal prosecutions,” over frequently unrepresented defendants, though in practice, until the mid-twentieth but it also created a distinctive class of century, representation was available only lawyer-prosecutors with a shared interest to those who could either hire a lawyer or in rede½ning the elements of crimes, secure a volunteer. Only in capital cases making guilt easier to prove in court, and were defendants routinely appointed coun- revising laws to increase the severity of sel if they could not afford one. But the punishments. This new interest found a 1963 Supreme Court decision in Gideon v. receptive audience in state legislators, Wainright required all states to provide as - many of whom had themselves been pros - sistance of counsel to defendants who are ecutors earlier in their political careers. By too poor to pay for one, and the overwhelm - the twentieth century, these increasingly ing majority of criminal defendants in the organized prosecutors were instrumental U.S. system are now, in fact, represented.8 in passing waves of reform legislation de- The quality of that guaranteed repre- signed to address crime generally as well as sentation, however, is far less assured. In speci½c criminal threats with populist res- 2013, on the ½ftieth anniversary of the onance, like recidivists or sex offenders.6 Gideon decision, a spate of reports suggest- The creation of strong felony murder ed that in many parts of the country, un - rules in the majority of U.S. states is a pow- derfunded public defender agencies strug - erful example of the influence of profes- gle to provide legally adequate represen- sional prosecutors on criminal law devel- tation. Defendants facing felony charges opment. These rules relieve the prosecu- typically are represented at trial, but the tion of the burden of proving the mental tens of thousands of defendants facing element of intent to kill in cases where the misdemeanor charges that dominate large defendant caused the death in the course urban courts are not; and even in felony of certain felony crimes. While felony mur - cases, defendants may not have access to der in the United States has long been counsel in the early stages of the process, thought an archaic vestige of common-law when lack of access to bail may have sig - murder, legal scholar Guyora Binder has ni½cant consequences for the case. Yet shown that English law actually had no the myth of an egalitarian lawyerly battle clear doctrine under which a clearly acci- grants America’s hyper-punitive sys tem an dental killing became murder simply be - ethos of sporting fairness, wrongly cele- cause it was caused during another felony. brated and reinforced in television trials Rather, felony murder charges were a cre- that imply that criminal defendants face ation of U.S. legislatures in the nineteenth a sentence carefully calibrated to the crim- century. By removing the necessity of prov- inal acts they have been convicted of, and

66 Dædalus, the Journal ofthe American Academy of Arts & Sciences only after the evidence has been carefully as a source of the distinctive Anglo-Ameri- Jonathan validated in a fair ½ght. can criminal-law values of both autonomy Simon and the vigorous response to criminal of - In recent decades, the U.S. criminal jus- fenses–was already heavily supplemented tice system has operated as a system of de by crimes legislated in Parliament. These facto racial segregation, with overwhelm- parliamentary crimes were sometimes var- ingly African-American and Latino male iations of common-law crimes and some- defendants, and prisons that often oper- times new crimes entirely. The penalties ate explicitly on color lines to avoid gang for parliamentary crimes could be as harsh conflict.9 The racial concentration in crim- as common-law crimes, and the differ- inal court has its origins in the great migra- ences were almost certainly favorable to tions that, from World War I through the the prosecution. Beginning in the seven- Vietnam era, brought African Americans teenth century, the production of such laws from the South and Latinos from Mexico reflected the increasing influence of mon- to large U.S. industrial cities, where they ey over the legal process, especially when were more exposed to professionalized modern competitive elections became policing and prosecution systems than in more common in the nineteenth century. the rural districts from whence they In the United States, eighteenth- and came.10 This racialization of crime has nineteenth-century state legislatures, been exacerbated by the “war on crime” many of them ½lled with men who began that has, since the 1970s, introduced a their political careers as elected county heavy investment by state and federal gov - prosecutors, adopted common-law crimes ernment to reduce urban crime through whole cloth from Blackstone, but then lib - arrest-oriented policing and aggressive erally supplemented them to increase con- felony prosecution. Inside these courts, viction rates of suspected criminals. The defendants face a powerful blend of En - example of felony murder (enormously glish common-law crimes, such as robbery important in securing guilty pleas by mak- or burglary, focused on the most overt vi - ing more homicide cases eligible for the olations of personal rights, and modern death penalty) has already been given. statutory measures designed to criminalize More recently, burglary has gone through preparatory conduct, such as possession a major evolution from its Blackstonian of controlled substances. origins as a crime of near-violence–sug- Despite the strong influence of English gested by the memorable phrase “breaking penal reformers like Jeremy Bentham on and entering”–to a mere trespass com- revolutionary-era Americans, early U.S. bined with intent to commit a crime. criminal law most prominently carried All of these changes have tended to bend the stamp of English criminal law conser- the law in U.S. criminal courts even more vatives like William Blackstone. With the in favor of the prosecution, producing over famous exception of murder, reforms were time a qualitative adjustment in favor of procedural; the basic common-law de½ni - con viction.11 If the common-law trial once tions of crimes were left intact, and were op erated like a colonial flintlock rifle, dead - frequently codi½ed into statute law whole - ly if ½red close enough but inaccurate and sale, where they remain the textual foun- generally limited to one shot, modern U.S. dations for our de½nitions of many signif - criminal procedure works more like a fully icant crimes today. automatic machine gun, with which the The English common law of crimes–so prosecution is able to spread a stream of ½re venerated by American lawyers and jurists suf½cient to suppress almost any resistance.

143 (3) Summer 2014 67 America’s The classi½cation of degrees of murder, years in prison, while those convicted of Excessive ½rst adopted in Pennsylvania at the turn ½rst-degree murder faced a possibility of Criminal Law & Our of the nineteenth century and shortly death at the discretion of the jury, not the Common- thereafter widely copied across the United mandatory death penalty as was practiced Law Origins States, is perhaps the most famous and in England. consequential of all U.S. innovations on Although consistent with an American the substantive law of criminal courts, and desire to tame capital punishment,13 the through it, on the course of the common- degrees of murder have helped constitute law trial. It is especially effective in con- a structure of punishment that is, in over- trasting the differences in Anglo and U.S. all terms, severe rather than lenient, espe- criminal procedure, given the consistently cially when we look from capital punish- much higher rate of intentional killing in ment toward imprisonment. First, second- the United States than in England, as well degree murder opened an alternative not as the fact that proposals to adopt the de - only to the possibility of hanging, but also grees of murder have been repeatedly re - to conviction of the lesser homicide crime jected in England, including as recently as of manslaughter. In the late eighteenth 2009.12 and early nineteenth century, manslaugh- Pennsylvania’s pioneer statute essen- ter was often punished with the mostly tially split the common-law crime of mur- symbolic sentencing of branding on the der into two crimes. Second-degree mur- thumb combined with several months in der was a killing done intentionally, or jail before and after the trial. English jurors with an extreme contempt and disregard reluctant to sentence a defendant to the for the lives of others, but without pre- mandatory death penalty had to choose meditation and deliberation. First-degree manslaughter, if not outright acquittal. murder was originally an intentional American jurors, in contrast, could choose killing committed with stealth, such as by second-degree murder, assuring that the using poison or lying in wait for a victim, person convicted would not die, but also as well as any other intentional killing done assuring that he or she would not return with premeditation and deliberation. to the community for many years. Some states would later add new “theo- In the nineteenth and twentieth century, ries” of both ½rst-degree and second- the jury’s freer conscience about convic- degree murder, most signi½cantly the the - tion and punishment meant that U.S. crim- ory of felony murder. inal courts were producing lengthy prison This innovation has almost universally sentences in cases that, had they been tried been treated as an American advance in in England, would have demanded that the leniency, but signi½cantly, it has also con- jury either sentence the convicted to death tributed to penal severity. The connection or spare him or her from any signi½cant between extreme punitiveness and degrees punishment at all. Meanwhile, U.S. parole of murder stems from the evolution of laws that developed in the twentieth cen- attitudes toward capital punishment. In tury ensured that this dual-murder struc- England, until its abolition in the 1960s, ture did not create too many unreasonably death by hanging was the mandatory pen- long prison sentences. However, as states alty for murder; after abolition, life im- moved away from parole and toward lon- prisonment became the mandatory pen - ger determinate sentences in the 1980s and alty. In U.S. states, those convicted of sec- 1990s, the tiered structure of murder con- ond-degree murder were spared any convictions became the anchor for the mod- sideration of death and faced a term of ern U.S. sentencing system, producing ex-

68 Dædalus, the Journal ofthe American Academy of Arts & Sciences cessive prison sentences on a scale never sentences, but the European Court of Hu- Jonathan before seen in a liberal society. man Rights has intervened to sharply limit Simon In much the same way, the constitution- these legislative efforts. al regulation of the practice of the death penalty in U.S. criminal courts since the Incarceration is the end result of criminal 1970s (America’s latest innovation on the court processing for an astounding portion laws of murder) has actually contributed of Americans, especially men of color; but to the severe punitiveness of prison terms it also plays an enduring role at the begin- while purporting to reduce recourse to cap- ning of the process. America inherited from ital punishment. With the death penalty England the system of imprisoning pretrial for capital murder replaced by, or com- detainees, as well as prisoners awaiting the peting with, life-without-parole sentences, execution of their sentences, in local jails, thousands of American prisoners now face often managed for a fee by local entrepre- permanent imprisonment; such sentences neurs. At the time of the Amer ican Revolu- are virtually non-existent in politically tion, the English jail system was excoriated comparable countries and have recently by the pioneer penal reformer John How - been declared a violation of the European ard, whose book State of the Jails portrayed Convention on Human Rights. Even for jails as places of disease in which people non-capital-second- and ½rst-degree mur- in various statuses and conditions were der cases, sentences can be extraordinar- locked and largely uncared for amidst all ily long by international standards. Most manner of moral and organic contamina- states now have mandatory minimums of tion.15 Howard’s critique helped launch ½fteen, twenty, or twenty-½ve years, sen- the penitentiary sys tem in both England tences that are typically extended by ½ve and the United States, though they did not or ten years if a gun was involved in the replace the vili½ed local jails so much as crime. In some states, pa role is uncommon they built on them an even broader struc- following mandatory minimum sentenc- ture of incarceration. ing.14 In both pre–American Revolution En - Thus, while from the late eighteenth cen - gland and colonial North America, jails tury on England executed more of its con - played a largely invisible but crucial ad - victed murderers than did the United junct to the common-law trial, coloring de- States, its overall structure of punishment fendants–through the miseries of con½ne- –especially considering the increasing ment–with characteristics of criminality dominance of punishment by imprison- that allowed the jury to con½dently form ment–was certainly no more punitive, its judgment. Remarkably, despite many and was likely somewhat less punitive, changes in the scale and bureaucratic form than its former colony’s. In the mid-nine- of criminal justice across the ensuing cen- teenth century until capital punishment turies, jail still plays this struc tural role. In was abolished by Parliament in 1964, En - the accused-speaks trials in Revolution-era glish prisoners sentenced to death who England and North Amer ica, a tenure in jail ultimately received a royal pardon were assured that most defendants would show either transported to Australia (a practice up for their ordeal weakened and possibly that ended in 1868) or released from En- ill, looking and acting a disreputable per- glish prison after approximately ten years. son.16 For the modern form of common- Since the 1990s, as a result of the politi- law criminal trial, in which the accused is cization of crime policy, there has been represented by counsel and rarely speaks, con siderable pressure to raise murder jail plays a different series of roles, primar-

143 (3) Summer 2014 69 America’s ily pressuring de fendants to bargain with growing conflict with the European Court Excessive prosecution by offering their testimony of Human Rights, the Committee for the Criminal Law & Our in other cases. In this way, modern jails Prevention of Torture, and the Committee Common- help produce the evidence that prosecu- of Ministers on the European Prison Rules Law Origins tors need to build a case on the “elements” may suggest a more promising course for that can deliver the verdict of guilt. the United States.19 In recent years, En- gland has suffered numerous rebukes by In a 2012 decision that extended the con- the European Court of Human Rights, institutional guarantee of effective assis- cluding rejections of its blanket ban on tance of counsel to the lawyer’s perfor- prisoners voting and its use of whole-life- mance of negotiating a guilty plea, Justice term sentences.20 The latter decisions in - Anthony Kennedy wrote that “criminal cluded striking down the previous Labour justice today is for the most part a system government’s signature “imprisonment of pleas, not a system of trials,” citing the for public protection” law that allowed for fact that 97 percent of federal convictions life sentences for dangerous felons, and and 94 percent of state convictions go also declared that the English equivalent of through a negotiated plea of guilt.17 But life-without-parole sentences is a violation this system of pleas remains anchored in of the convention. These rulings have the common-law trial, with its adversary drawn considerable condemnation from contest over whether the elements of the English politicians–who debate the U.K.’s crime have been proven and its system of relationship to Europe in part through con - moralistic common-law crimes, layered flicts about such cases–calling into ques- with large portions of statutory laws that tion whether com pliance is forthcoming. support the prosecution. While the United States is not a signatory Of course, this inheritance has endured to the European Convention, it is a signa- for a long time, through periods of high tory to several United Nations treaties that and low incarceration. It does not drive us cover much of the same ground.21 toward extreme punishment, like some In the United States, after a period of kind of dead hand, so much as it facilitates constitutional retrenchment, the Supreme our periodic swings between optimistic Court has shown a broad interest in re- and pessimistic perceptions of crime and considering the constitutional signi½ - criminal defendants. Nor is it easy to re - cance of core features of the common-law place. The 1962 Moral Penal Code, the last trial and its penal consequences. Because major effort at revising U.S. criminal law, it cuts across the Court’s typical ideological ultimately carried over most of the fea- divide, this recent line of Supreme Court tures of the common law.18 Systematic, cases presents one particularly interesting substantive criminal law reform has been area of inquiry. The Court has held that on the political agenda since the 1970s, the Sixth Amendment right to a jury trial but it was overtaken, ½rst by procedural requires that the prosecution prove every reforms that did little to restrain criminal- fact necessary to increase punishment.22 ization and then by the unrestrained war Also under the Sixth Amendment, the on crime. Court has invigorated the meaning of com- If almost every move toward indepen - petent counsel in a series of mostly capi - dence from England has, in fact, made U.S. tal cases,23 and has asserted the Eighth criminal courts more punitive, we may Amendment as a more robust limit on ex - need to look beyond the Anglo-American treme punishments24 and prison condi- dialectic for legal solutions. England’s own tions, citing human dignity as a core value

70 Dædalus, the Journal ofthe American Academy of Arts & Sciences of that amendment.25 These decisions of- its on penal excesses, but that became badly Jonathan fer promising avenues to engage the dem- misaligned through the intense crime pol- Simon ocratic forces that have historically set lim- itics of the late twentieth century.

endnotes 1 Michael Cavadino and James Dignan, “Penal Policy and Political Economy,” Criminology and Public Policy 6 (2006): 435–456. 2 For a summary, see Mona Lynch, Sunbelt Justice: Arizona and the Transformation of American Punishment (Stanford, Calif.: Stanford University Press, 2010). 3 John Langbein, “The Historical Origins of the Privilege Against Self-Incrimination at Com- mon Law,” Michigan Law Review 92 (1994): 1047–1085. 4 In re Winship, 397 U.S. 358 (1970). 5 Angela Davis, Arbitrary Justice: The Power of the American Prosecutor (New York: Oxford Uni- versity Press, 2009), 10–11. 6 William Stuntz, “The Pathological Politics of Criminal Law,” Michigan Law Review 100 (2001): 505–600; and Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York: Oxford University Press, 2007). 7 See Guyora Binder, Felony Murder (Stanford, Calif.: Stanford University Press, 2012). 8 Gideon v. Wainwright, 372 U.S. 335 (1963). 9 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2010). 10 Kahil Gibran Muhammed, The Condemnation of Blackness: Race, Crime, and the Making of Mod- ern Urban America (Cambridge, Mass.: Harvard University Press, 2011). 11 In the 1980s, some states introduced mental illness as an element defense (something the prosecution must disprove once evoked), and more recently–as an outgrowth of the successful gun-rights political movement–some states have adopted “stand your ground” laws that purport to expand self-defense by permitting people in public space to use lethal violence with - out the need to retreat, even if retreat were possible with minimal risk. These are among what I would estimate to be a small category of exceptions to the rule that legislation favors the prosecution. See William Stuntz, “The Pathological Politics of Criminal Law,” Michigan Law Review 100 (2001): 505–600. 12 The Coroners and Justice Act of 2009 adopted some recommendations on partial defenses, but rejected the recommendation of the Royal Commission on Law Reform that England and Wales adopt degrees of murder. 13 The survival of the modern death penalty regime in the United States–in contrast to England, where it has been abolished–is, in many respects, a monument to the taming enterprise of U.S. law, with complex rules of aggravating and mitigating factors, weighing, and appeals. See David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition (Cambridge, Mass.: Belknap Press, 2010). 14 Findings from behavioral economics, as well as Supreme Court precedents, suggest that high sentences for murder have an inflationary effect on penal sentences down the scale of offenses. If death or life without parole is the most severe sentence for murder, it becomes plausible to sentence robbers and burglars to ten, twenty, or thirty years. Whereas if current death-penalty cases were sentenced with a maximum of thirty years, lengthy sentences for lesser crimes would almost certainly seem excessive to more of the public, and perhaps even to the Supreme Court. See Graham v. Florida, 560 U.S. 48 (2010).

143 (3) Summer 2014 71 America’s 15 Jonathan Simon, “The Return of the Medical Model: Disease and the Meaning of Imprisonment Excessive from John Howard to Brown v. Plata,” The Harvard Civil Rights-Civil Liberties Law Review 48 (2013): Criminal 217–256. Law & Our Common- 16 Contemporary criminal procedure rules would protect trial defendants from the harmful in- Law fluences of jails (which violate both the Eighth Amendment and the Sixth Amendment), Origins although they would not protect defendants from all disadvantages (such as the enormous pressure to plea bargain while in jails, whose conditions are often worse than prisons’). 17 Missouri v. Frye, 132 S.Ct 1399 (2012). 18 A new draft is underway but has yet to take up substantive criminal law. 19 For a comprehensive account of the human rights framework for penal law in Europe, see Dirk van zyl Smit and Sonja Snacken, Principles of European Penal Law and Policy (Oxford: Oxford University Press, 2009). 20 See Hirst v. United Kingdom, Application nos. 74025/01, 2005 echr 681 (2006) 42 ehrr 41 [voting ban case]; and Vinter and others v. United Kingdom, Application nos. 66069/09, 130/10 and 3896/10 echr (9 July 2013) [whole term life sentence case]. 21 See UN General Assembly, The Universal Declaration of Human Rights, December 10, 1948, resolution 217 A (III); and UN General Assembly, The International Covenant of Civil and Political Rights, December 16, 1966, Treaty Series, vol. 999, 171. 22 Apprendi v. New Jersey, 530 U.S. 466 (2000). 23 Lafler v. Cooper, 566 U.S. (2012); and Missouri v. Frye, 1399. 24 Graham v. Florida, 130 S.Ct. 2011 (2010). 25 Brown v. Plata, 131 S.Ct. 1910 (2011).

72 Dædalus, the Journal ofthe American Academy of Arts & Sciences Justice for the Masses? Aggregate Litigation & Its Alternatives

Deborah R. Hensler

Abstract: Traditionally, disputes over injury compensation that were brought to court involved one or a few plaintiffs and defendants and were processed individually. The risk and expense of such litigation meant that most victims of legally cognizable injuries never came through the courthouse doors. The modern global economy, however, has vastly increased the potential for mass harms and losses, and modern mass media have created felicitous circumstances for mass claiming. Aggregated mass litigation blasts open the courthouse doors for individuals who might otherwise ½nd them closed. Aggregation bene½ts some but disadvantages others. Class action rules attempt to mitigate these conflicts, but such procedures do not apply to aggregate non-class litigation. It is time for courts to adopt rules and practices that recognize the realities of such litigation.

In the popular image of civil litigation, two parties face off against each other in a courtroom, a judge sits on high overseeing the process, and a jury decides who wins and who loses. Virtually nothing about this image is accurate today. Few lawyers or parties ever see the inside of a courtroom; the judge’s role is to manage rather than adjudicate; and the lawyers DEBORAH R. HENSLER, a Fellow are more likely to be arguing about schedules, proof the American Academy since cedure, and evidence than about the substantive 2009, is the Judge John W. Ford Pro- merits of the dispute. Most of the activity takes place fessor of Dispute Resolution at in the judge’s and lawyers’ of½ces–or, increasingly, Stanford Law School. She is the by videoconference–in the parties’ absence. The dis- author of Asbestos Litigation (with Stephen J. Carroll et al., 2005), and pute most often ends either with a judge’s decision editor of Class Actions in Context: on a legal requirement or a compromise between the How Culture, Economics and Politics parties, rather than a judge or jury decision based Shape Collective Litigation (with on the merits of the issues presented in full. And Christopher Hodges and Ianika increasingly, especially in complex and high-stakes Tzankova, forthcoming). She has cases, rather than one party suing another, hundreds recently contributed to such vol- or more plaintiffs seek a remedy from multiple umes as Research Handbook on the Economics of Torts(ed. Jennifer Arlan, defendants. 2013) and New Trends in Financing The growth of what has come to be known as Civil Litigation in Europe (ed. Mark “mass litigation”–which encom passes both class ac- Tuil and Louis Visscher, 2010). tions and aggregate non-class litigation–began sev-

© 2014 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00289 73 Aggregate eral decades ago in the United States. How- States indicate that less than 5 percent of Litigation ever, courts continue to struggle to contain people injured by products ½le suit against & Its 1 Alternatives these mass disputes within the structure product manufacturers. There are multi- of a legal system designed for the canonical ple reasons for this. Many victims blame battle of single plaintiff versus single de - their own carelessness–or plain bad luck fendant. Nor is this struggle limited to the –for their injuries. They may not realize United States; across the world, in jurisdic- that they have a claim under law. They may tions that differ from each other in many not know how to hire a lawyer, or they may other important ways, courts are con- believe they cannot afford to hire one.2 A fronting the problem of mass litigation. lawyer may tell them their claim is too Mass litigation is the child of modern expensive or too uncertain of success to capitalist economies and legal doctrines. be worth pursuing. As a result, until fairly To succeed in a global marketplace, man- recently, even when many peo ple were ufacturers and service providers must sell injured as a result of a single event or pat- their products to huge numbers of people tern of activity, not many lawsuits ensued. or other businesses. When something goes Modern mass media, now including wrong–when a product proves defective, social media, have changed these dynam- a service is not what it was advertised to ics. The news of high-salience events–the be, or a ½nancial scheme violates legal announcement of a catastrophic ½re, rules–hundreds, thousands, and some- bridge failure, or airplane crash; an article times tens of thousands of consumers, pur- in a prestigious medical journal announc- chasers, or investors are injured in many ing a link between a widely used pharma- different parts of the world. Some harms ceutical product and a serious disease; a are minor and exclusively ½nancial; others whistle-blower’s disclosure of ½nancial involve personal injury or death. Once vic- shenanigans; or an investigative reporter’s tims had no recourse against businesses story of widespread sexual abuse–is responsible for their losses or injuries; immediately flashed around the world. depending on the time and place, they Harmful behavior is labeled as such, blame would turn to personal insurance or a so- is quickly apportioned (fairly or not), and cial welfare scheme, or simply “lump it.” the notion that those harmed could–and In most countries today, the law holds perhaps should–pursue legal claims al- businesses responsible for compensating most immediately becomes part of con- losses attributable to their behavior in versations at macro- and micro-levels. many–although not all–circumstances. Information about how to pursue legal As a result, when mass losses or injuries redress is available at the click of a mouse. occur, large numbers of victims have po- In these situations, the potentially large tential lawsuits. In some areas of law, such number of people with viable legal claims as securities and anti trust, the harm itself for even modest amounts of money quick- is de½ned in terms of the market, from ly attracts lawyers. Historically, this oc - which mass litigation logically flows. curred more often in the United States, It is common in the United States, and where lawyers’ ability to charge contingent increasingly common in other countries, fees (fees contingent on the client receiving to decry citizens’ “litigiousness.” Contrary an award in the case, usually in the form to popular perception, however, the over- of a percentage of that award) makes legal whelming majority of people with poten- rep resentation feasible for people at all in - tial claims for compensation fail to pur- come levels, than in other countries, where sue them. The best data for the United contingent fees are prohibited. The situa-

74 Dædalus, the Journal ofthe American Academy of Arts & Sciences tion outside the United States is changing, courts’ decisions about how to treat mass Deborah R. however, as some countries have eliminat- claims concern far more than expenses Hensler ed or diminished barriers against contin- –they have profound implications for pro- gent fees and lawyers in other countries cedural fairness and distributive justice. have found other means of obtaining spec- ulative ½nancing. The history of asbestos worker injury lit- Over the past several decades, plaintiff igation in the United States vividly demon - lawyers have developed sophisticated strat- strates the complicated consequences of egies for coordinating representation of procedural choice in mass litigation. Expo - plaintiffs in mass litigation. By sharing in - sure to asbestos causes a variety of diseases, formation and costs among law ½rms and including mesothelioma (a deadly cancer) spreading their own ½nancial risk ac ross and asbestosis (a moderate to severe respi- large portfolios of lawsuits, U.S. plain tiff ratory impairment).4 Yet while some of the law ½rms have been able to substantially health risks of asbestos have been known level the playing ½eld between plaintiffs since the late nineteenth century, it was and well-heeled corporate defendants. To- not until the early 1970s that plaintiff attor - day, lawyers are sharing these stra tegies neys managed to convince a court that worldwide.3 This is reflected by parallel sufferers of asbestos-related diseases could liti gation in multiple jurisdictions over per - be compensated under product liability sonal injury claims associated with every- law. By that time, tens of thousands of wor- thing from pharmaceutical products and kers had been exposed to asbestos, most medical devices such as Vioxx and hip im- of them in a handful of regions where on- plants to ½nancial injury claims following the-job exposure was especially prevalent. on the Lehman Brothers bankruptcy and When a legal avenue for obtain ing com- the collapse of Bernard Madoff’s Ponzi pensation for medical costs and work loss scheme. opened up, workers turned to the lawyers For legal and logistical reasons, when in these regions. Fearful of the risk that mass litigation erupts, lawyers tend to ½le pursuing novel litigation against major claims in a relatively small number of corporations entailed–and perhaps mind- courts. Without much warning, a local ful of the experience of other plaintiff at - court with a dozen or so judges may ½nd torneys who had tried unsuccessfully to itself inundated with hundreds or even win personal injury lawsuits against to- thousands of similar claims. As a practical bacco manufacturers–few law ½rms were matter, the court has three options for deal- willing to take on these cases. Those who ing with this mass of claims: treat each did ½led cases in a handful of federal and claim individually in the ordinary fashion; state courts.5 collect the claims and deal with them as a At ½rst, these courts treated asbestos group; or–if the law permits–allow one or lawsuits conventionally, one case at a time. a few claimants to represent all of those Although the lawsuits raised novel doctrin- with similar claims in a single lawsuit such al issues and required complicated scien- as a class action. Often the key considera- ti½c evidence to support the workers’ tion for judges and lawmakers who adopt claims, it was not obvious that they would special rules for mass litigation is proce- pose special burdens on judges and other dural ef½ciency: that is, which approach court personnel and, in any event, most will resolve claims the quickest and at the courts had no procedures in place for han- least expense for parties and for the taxpay- dling civil lawsuits any differently. But ers who subsidize the court system. Yet the treat ing these cases individually was not

143 (3) Summer 2014 75 Aggregate with out consequences; the sheer prolifer- waiting time to trial for asbestos lawsuits Litigation ation of cases meant long delays to dispo- in years, not days or months. Some judges & Its Alternatives sition. Large corporations with substantial attempted to remedy congestion on the legal resources could pro½tably wait out trial calendar by grouping cases for trial, plaintiff attorneys, and protracted litiga- asking a single jury to hear and deliver tion also bene½ted defense counsel, who verdicts for several cases at a time. In one billed by the hour. The reverse was true for famous instance, a state judge in Baltimore plaintiff attorneys who self-½nanced the instructed a six-person jury to hear and litigation, looking to bene½t when cases decide some eight hundred asbestos law- were settled and they could take their suits in a single trial. In another, a federal share of plaintiffs’ compensation. As litiga- judge in East Texas applied a sophisticated tion lingered on court dockets, some plain- statistical sampling technique to select tiffs died while others’ diseases intensi½ed. cases representing different factual cir- Eventually, judges began to question the cumstances, with the goal of applying the wisdom of individual treatment. Drafting jury’s average verdict for each case type separate orders for almost identical indi- to all such cases on his trial calendar.6 On vidual lawsuits did not seem to make much their face, these innovations posed signi- sense, so judges invented the notion of a ½cant due process issues. The dif½culty of “master case,” the decisions in which constructing an ef½cient and fair trial pro- would apply to all asbestos cases in their cedure for masses of cases led judges and courtrooms. Holding separate conferences lawyers to rely increasingly on aggregate to set schedules for proceedings in hun- settlements. dreds of cases ½led around the same time As time passed, plaintiff attorneys and by the same law ½rm against the same defendants negotiated standing agree- defendants seemed like a waste of time, so ments to settle asbestos lawsuits. The few the judges called the lawyers and sched- plaintiff law ½rms that had been willing to uled all their cases for the year. Once that invest in the litigation early on by now had idea had taken hold, it seemed logical to thousands of asbestos-worker clients. De - hold mass settlement conferences with fendants whose products had an attenuated those lawyers. These conferences some- relationship to workers’ asbestos-related what ameliorated the uneven playing ½eld diseases paid small amounts to extinguish between plaintiffs and de fendants, al low - claims that had a small chance of success; ing plaintiff attorneys to offer defen dants more culpable defendants paid larger the bargaining chip of a single mass settle- am ounts. Claims in different disease cat- ment, which could put a substantial dent egories were valued according to the in defendants’ liability exposure. severity of plaintiffs’ injuries. To help de - Not all cases were susceptible to settle- fendants manage their cash flow (and ment, however. Judges needed to try some plaintiff attorneys manage their tax bur- cases in order to test plaintiff attorney’s dens), these agreements called for defen- legal theories and produce evidence of dants to settle a ½xed number of claims causation and liability. Product liability annually. trials are more time-consuming than tri- Although usually described as ef½ciency als of ordinary personal injury lawsuits. moves necessitated by the large numbers Few if any courts had a suf½cient number of lawsuits, group settlement conferences, of judges to rapidly try the scores of as- group trials, and wholesale settlement con- bestos lawsuits that were deemed “trial- tracts reflected a radical re-conceptualiza- ready”; some courts calculated the likely tion of asbestos litigation that would come

76 Dædalus, the Journal ofthe American Academy of Arts & Sciences to apply to all mass litigation. Mass litiga- settlement negotiations, plaintiff lawyers Deborah R. tion was increasingly viewed as a mass itself, might discount the value of more serious- Hensler an aggregate liability (to defendants) or as- ly injured plaintiffs’ claims in order to en- set (to plaintiff attorneys) capable of eval- courage defendants to settle lesser-value uation and disposition at the macro- claims. Weaker claims clogged the courts level. Trial court judges who designed and ultimately contributed to decisions by management strategies for resolving cases scores of asbestos defendants to ½le for in the aggregate could substantially reduce bankruptcy. In some instances, the per- their caseload and win acclaim within the ceived availability of “easy money” led to judiciary. Defendants who developed strat- fraudulent claims. Providing access to egies for resolving the claims against them court to all those with legitimate claims in the aggregate could reduce their litiga- –including many who would not have tion cost-to-compensation ratios to a more had access if courts insisted on individual acceptable level and reap bene½ts in the litigation–arguably drew appropriate at- cap ital markets. Plaintiff law ½rms that ac - tention to the harm associated with defen - cumulated large inventories of cases and dants’ behavior, contributing to socially resolved them in aggregate settlements valu able deterrence from repeating the or in accordance with standing agree- same actions in the future. However, in- ments could bank on a business model that centivizing questionable or fraudulent would support their ½rms for many years. claims raised the specter of “overdeter- The calculus for individual plaintiffs and rence” and undermined the legitimacy of for society was more complicated. For the courts’ role in compensating mass many injured asbestos workers, aggregate harms. procedures offered the only avenue into From a procedural perspective, aggre- the legal system, and–given the minimal - gation offered plaintiffs virtually no oppor- ist U.S. safety net–the only path to com- tunity for individualized hearings of their pensation for medical costs and work loss. claims, except for the few plaintiffs whose Among the plaintiffs who gained access to cases went to trial. Although on the sur- the courts were asbestos-exposed wor kers face this may seem to have been a loss for who were not currently im paired but plaintiffs in mass litigation, their experi- were at risk of suffering impairment in ence in this regard was not much different the future. Under the conventional “one from that of plaintiffs in ordinary litiga- case at a time” procedural model, these tion, who also have few opportunities to plaintiffs would have been unlikely to ½nd make their voices heard in the courtroom.7 representation and, be cause of time limits on litigation, they ran a risk of not being By the mid-1980s, judges and lawyers able to pur sue a claim if and when they were applying the aggregation template to developed more serious injuries. Other scores of mass litigations. U.S. federal law workers had moderate-to-severe injuries provides a procedural tool for aggregating and some had terminal illnesses. Because cases: the multi-district litigation (mdl) pro- product liability litigation is expensive, cedure, of which judges and lawyers made many of these workers also would have full use for claims arising out of the use of been unlikely to obtain legal representa- heart valves, stents, and pacemakers; intra - tion if plaintiff at tor neys had to litigate uterine devices and other contracep tives; their cases individually. diet drugs; silicone gel breast im plants; But providing access to all these plain- and exposure to Agent Orange, ddt, and tiffs had costs as well as bene½ts. In mass radiation. Once it became clear that there

143 (3) Summer 2014 77 Aggregate was a potential for mass claims, few judges d ia tion and arbitration were used to assess Litigation were prepared to deal with these lawsuits the value of individual claims, offer ing an & Its 8 Alternatives conventionally, one case at a time. Their opportunity for an individualized hearing. ½rst move was to appoint a small commit- Mass litigation continued, albeit in a more tee of plaintiff lawyers–usually those that circumspect fashion.9 had taken on the largest number of clients Though claims are aggregated, mass liti- with the relevant claims–to lead the litigation is still an agglomeration of individ- gation. Securing these appointments in - ual claims, each represented by an indi- creased these ½rms’ power (and fees) and vidual lawyer who has agreed to represent helped construct the mass tort plaintiff his or her client for an individual fee.10 To bar. Although it does not provide for mass ½nalize an aggregate settlement, therefore, trials, the mdl statute created a framework each of the individual claimants must ag ree for mass settlement. Once de fen dants were to its terms. Often defendants will require persuaded that plaintiff attorneys had that most plaintiffs accept an aggre gate set - enough viable claims to pose signi ½cant tlement as a condition of the defendants’ legal, ½nancial, and public relations prob- agreement to settle. For example, the de- lems, they often proved willing to agree to fendants in the litigation concerning re- settlement of all the claims that had been covery worker toxicity exposure at Ground ½led regarding a speci½c product. Zero following the September 11 terrorist As the number and size of mass litiga- attacks required that 95 percent of the tions mounted in the 1990s, a new realiza- approximately ten thousand individual tion set in. By aggregating claims and pro- plain tiffs accept the proposed aggregate cessing them ef½ciently, courts were incen- settlement.11 Even when a settlement oc- tivizing plaintiff lawyers’ ½rms to expand curs in part because of judicial pressure, their efforts to identify potential mass liti- there is no formal hearing on the terms of gations. And by agreeing to mass set tle - the settlement and the judge does not have ments, defendants incentivized plaintiff speci½c authority to approve it; nor is the ½rms to represent increasing numbers of judge speci½cally authorized to regulate claims in a single litigation, including not the plaintiff attorneys’ fees. Fairness is con- only meritorious smaller-value claims that sidered a matter for discussion be tween would have been too expensive to prose- plain tiffs and their lawyers outside of cute individually, but also claims that court. How often such discussions occur might well have failed if subjected to indi- when a single ½rm represents tens of thou- vidual investigation and hearing. Over sands of claimants in a single litigation is time, judges and defendants began to a matter for conjecture. adjust their strategies to narrow access for mass claimants. Judges became more The lack of formal judicial regulation of wary of promoting settlement before they aggregated mass litigation may surprise had decided key legal or factual issues. readers familiar with the third procedural Defendants insisted on trying bellwether option for resolving mass litigation, a class cases in order to test their strength–and action in which one or a few plaintiffs rep- their appeal to juries–before agreeing to resent a large number of other similarlysit- settle, and only agreed to aggregate settle- uated people. U.S. courts have long pro- ments that excluded weaker claims that vided a representative litigation procedure plaintiff attorneys were unlikely to pursue for situations where a court ruling on the individually. In some instances, alternative legality of a policy or practice will inevi - dispute resolution procedures such as me- tably affect an entire group of people (such

78 Dædalus, the Journal ofthe American Academy of Arts & Sciences as taxpayers, African-American school- amounts are huge, most judges award Deborah R. children, or older em ployees) or where it fees that constitute a much smaller per- Hensler is more ef½cient to decide some or all centage of the total paid by defendants.13 aspects of similar individual claims in a As a result, total class counsel fees may be single proceeding. Litigation can only pro- substantially less than the total earned by ceed in class action form with the approval plaintiff attorneys representing clients in of a judge, who is required to “certify” that aggregate litigation. Mindful of this dis- the case meets the conditions set forth in crepancy, a few judges who have presided the rule. Today, at least two dozen other over aggregate mass litigation have limit- jurisdictions in North and South America, ed plaintiff attorneys’ fees either by per- Europe, the Middle East, and Asia have suasion or ½at, asserting the litigation is a adopted class action procedures for simi- “quasi-class action” subject to judicial reg - lar purposes. ulation.14 Plaintiff attorneys (and some The rules for class action proceedings, academics) have contested judges’ author- as well as the extensive legal requirements ity to set attorney fees in non-class aggre- for class certi½cation, are intended to gate litigation but, to date, few challenges protect the interests of individuals who have reached appellate courts. are not present in the courtroom and Although the current U.S. Supreme whose claim outcomes are determined Court has steadily restricted class action collectively rather than individually. The suits,15 U.S. courts have historically judge must approve the class representa- viewed the procedure as appropriate for tives, as well as the lawyer(s) who will securities, anti-trust, and consumer pro- represent the class. If a class is claiming tection litigation, as well as suits for monetary compensation, class members injunctive relief, such as employment dis- must receive an adequate noti½cation of crimination claims. Deciding such suits the proceeding and the terms of any pro- on a class-wide basis (and in some in- posed settlement (including proposed stances determining monetary remedies attorney fees) and must have an opportu- by formula) obviously increases ef½ciency. nity to “opt out” so that they can pursue Requiring judges to regulate class litiga- individual litigation. The judge must ap- tion was intended to ensure that these prove a proposed settlement for “fairness, ef½ciency gains did not come at the cost reasonableness, and adequacy,” after a pub - of denying procedural rights to class lichearing at which any class member can members. speak in opposition to the settlement’s In contrast, on the grounds that the terms. Although in most instances few many individual differences among tort class members appear at such hearings, claimants and their potential conflicts of some judges have scheduled multiple ses- interest require individual consideration, sions in large spaces, including auditori- U.S. courts have generally refused to cer- ums and sports arenas, and encouraged tify mass tort litigation for class treat- class members to come forward to share ment. (Interestingly, outside the United their opinions.12 States, some jurisdictions have adopted If class members prevail (by settlement class actions speci½cally for mass tort or trial), the judge decides how much they claims.) The judicial authors of the lead- must pay their counsel. Some judges ing decisions on class certi½cation of model lawyers’ fee awards on the prevail- mass torts have seemed to assume that ing one-third contingency fee in ordinary the alternative to representative litiga- tort litigation; however, when settlement tion is individualized litigation, affording

143 (3) Summer 2014 79 Aggregate plain tiffs the full panoply of due process ety of circumstances in which it was once Litigation protections and putting plaintiffs ½rmly deemed appropriate. & Its Alternatives in control of the process–notwithstanding the extensive evidence that this is Three decades of mass litigation in ag- rarely true. gregate and class form have brought home Like aggregate procedures, representa- to corporate America the power that col- tive class actions create winners and los- lective legal action confers on individuals ers. Deputizing a single lawyer to repre- and smaller businesses that do not have sent large numbers of claimants (many of the wherewithal to litigate individually and whose claims are worth such small am- cannot ½nd legal representation on con- ounts that they are not worth pursuing tingency. Just as “divide and conquer” can individually) with the promise that the law - be an effective strategy in political con- yer will receive a large share of any aggre- flicts, it is also effective in preventing ac - gate award or settlement incentivizes cess to courts to victims of mass ½nancial lawyers to look for opportunities to bring harm. Today, employment, consumer, and such cases to trial. If the claims are meri- other such contracts routinely include ar- torious, the consequence is so cially bene - bitration clauses waiving parties’ rights to ½cial: defendants are deterred from future pursue legal claims in court; instead, they wrongdoing by the aggregate mone tary are directed to private arbitration tribu- sanction, and individual class members nals. A key provision of these clauses is a receive recompense (small though it may prohibition on any kind of collective arbi - be) for their losses. As class action ½lings tra tion proceeding. The U.S. Supreme mounted in the 1990s, however, defen- Court has upheld these prohibitions. dants began to push back against class Nonetheless, plaintiff attorneys contin- certi½cation, arguing that a large majori- ue to litigate mass tort claims, which are ty of class actions were non-meritorious. dif½cult for corporations to constrain by Both because of the direct expense of con- contract in aggregate form. And, notwith - testing class actions and because of the standing the general disfavor shown to - potential for media coverage to tarnish ward class certi½cation for mass torts, their products’ reputation, corporations judges continue to certify class actions in claim that they are “blackmailed” into set- some instances. (For example, in August tling damage class actions as soon as they 2013 a class of former football players are ½led. who are suing the nfl in federal court for Available data contradict these claims; concussion-related injuries announced only a small percentage of claims that seek they had reached a settlement with the class status are certi½ed, although those nfl; in January 2014, the judge overseeing cases are almost always settled. Most cases the case refused to approve the settlement ½led in the form of class ac tions are either but implied that she would be willing to dismissed, disposed of by summary judg- certify a class for settlement purposes if ment in favor of the defendant, or drop- the terms were more generous.17) ped; in some cases, the defendants settle It is tempting to assess mass litigation with an individual plaintiff.16 However, the procedures against the benchmark of perception that plaintiff law ½rms abuse individualized due process. Judged this class actions has gained widespread trac- way, aggregate litigation fails: it provides tion and arguably contributed to re cent neither individualized process nor indi- U.S. Supreme Court decisions making class vidualized outcomes to plaintiffs or defen- certi½cation more dif½cult in a wide vari- dants. But insisting on individual dispute

80 Dædalus, the Journal ofthe American Academy of Arts & Sciences processing almost guarantees that in jury their own lawyers, the defendants, and the Deborah R. victims will be denied justice: no court has courts. Hensler the resources to manage a flood of claims If judges were willing to abandon the individually in a timely enough fashion ½ction that aggregate litigation is no dif- to serve plaintiffs’ needs. In complex cases, ferent from individual litigation, courts individual litigation is too expensive for could, as a few judges have demonstrat- ordinary plaintiffs to pay for on an hourly ed, incorporate protection for individual- basis and too expensive and risky to attract ized rights into aggregate litigation pro- lawyers working on contingency. Aggre- cedures. When appointing attorneys to gate litigation therefore opens the court- lead the litigation, they could consider how house doors to mass claimants who would well the candidate law ½rms have com- otherwise ½nd them closed. municated the progress of the litigation Because aggregate litigation relies almost to their clients in the past. They could en - exclusively on settlement–turning to ad- courage, if not require, the establishment judication only in rare and possibly aber- of websites and Facebook pages giving up- rant cases–the soundness of plaintiffs’ to-date information about the litigation claims is not fully legally tested. As a result, and its prospects. The judiciary, through it is dif½cult to determine whether the net rule reform, could seek speci½c authority effect of the litigation is overdeterrence to review and approve settlements and (as defendants claim), underdeterrence, or attorney fees in mass litigations that look optimal deterrence. Nor is it possible to for all the world like class actions. Neither assess whether the litigation delivers on individual parties nor society as a whole tort law’s promise of corrective justice. can afford to litigate claims arising out of Aggregate litigation empowers mass tort mass harms individually, and the bene½ts plaintiff lawyers and defendants; it does so, of resolving such claims collectively are however, by treating the plaintiffs them- too great for defendants to insist on never selves more as objects than as subjects. Be - doing so. By confronting the realities of cause there have been few surveys of mass mass litigation and thinking creatively plaintiffs, we know virtually nothing about about how to balance ef½ciency and fair- how they assess their experiences or out- ness in aggregate litigation, the judiciary comes, although grumbling on websites can help maintain the relevance and legit - devoted to speci½c mass litigations suggest imacy of courts in the twenty-½rst century. they are often unhappy and distrustful of endnotes 1 Deborah Hensler et al., Compensation for Accidental Injuries in the United States (Santa Monica, Calif.: rand Corporation, 1991). 2 Ibid. 3 Deborah Hensler, “How Economic Globalization is Helping to Construct a Private Transna- tional Legal Order,” in The Law of The Future and The Future of Law, ed. Sam Muller et al. (Brus- sels: Torkel Opsahl, 2011). 4 Geoffrey Tweedale, Magic Mineral to Killer Dust: Turner & Newall and the Asbestos Hazard (New York: Oxford University Press, 2001), 23. 5 Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial (New York: Pantheon Books, 1985).

143 (3) Summer 2014 81 Aggregate 6 Stephen J. Carroll et al., Asbestos Litigation (Santa Monica, Calif.: rand Corporation, 2005). Litigation 7 & Its Deborah Hensler, “The Real World of Tort Litigation,” in Everyday Practices and Trouble Cases, Alternatives ed. Austin Sarat et al. (Evanston, Ill.: Northwestern University Press, 1998). 8 Deborah Hensler, “Has the Fat Lady Sung? The Future of Mass Toxic Torts,” The Review of Litigation 26 (4) (2007): 883–926. 9 Charles Silver and Geoffrey Miller, “The Quasi–Class Action Method of Managing Multi- District Litigations: Problems and a Proposal,” Vanderbilt Law Review 63 (1) (2010): 107–177. 10 Judith Resnik, Dennis Curtis, and Deborah Hensler, “Individuals Within the Aggregate: Rela - tionships, Representation, and Fees,” New York University Law Review 71 (1 and 2) (1996): 296–401. 11 Mirea Navarro, “Sept. 11th Workers Agree to Settle Health Lawsuits,” The New York Times, No - vember 20, 2010. 12 For example, Judge Jack Weinstein held multiple hearings in different locations on the Agent Orange class action settlement. See Peter Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts, rev. ed. (Cambridge, Mass.: Harvard University Press, 1987). 13 Theodore Eisenberg and Geoffrey Miller, “Attorney Fees and Expenses in Class Action Set- tlements, 1993–2008,” Journal of Empirical Legal Studies 7 (2010): 248–281. 14 Alvin Hellerstein, James Henderson, and Aaron Twerski, “Managerial Judging: The 9/11 Re - sponders Tort Litigation,” Cornell Law Review 98 (1) (2012): 127–180. 15 Robert Klonoff, “The Decline of Class Actions,” Washington University Law Review 90 (2013): 729. 16 Deborah Hensler, “Third-Party Financing of Class Action Litigation in the United States: Will the Sky Fall?” De Paul Law Review (forthcoming). 17 Ken Belson, “Judge Rejects N.F.L. Settlement, For Now,” The New York Times, January 14, 2014, http://www.nytimes.com/2014/01/15/sports/football/judge-questions-whether-sum-of-nfl -settlement-is-enough.html?_r=0.

82 Dædalus, the Journal ofthe American Academy of Arts & Sciences Innovating to Improve Access: Changing the Way Courts Regulate Legal Markets

Gillian K. Had½eld

Abstract: Struggling to navigate a world that is increasingly shaped by legal rules and obligations, most ordinary Americans lack real access to courts. Often this means simply forgoing legal rights and entitlements or giving up in the face of claims of wrongdoing. Among those who cannot avoid courts–such as those facing eviction, collection, or foreclosure and those seeking child support, custodial access, or protection from violence or harassment–the vast majority (as many as 99 percent in some cases) ½nd themselves in court without any legal assistance at all. There are many reasons for this lack of meaningful access, including the underfunding of courts and legal aid, but perhaps the most fundamental is the excessively restrictive American approach to regulating legal markets. This regulation, controlled by the American legal profession and judiciary, closes off the potential for signi½cant reductions in the cost of, and hence increases in access to, courts. Unlike the problem of funding, that is a problem that state courts have the power, if they can ½nd the judicial will, to change.

The vast majority of ordinary Americans lack any real access to the legal system for resolving their claims and the claims made against them. Few outside the highest income categories can afford to take their disputes about family, inheritance, neighborhoods, schools, employment, and so on to court; they are left to resolve them as they can through other means. For signi½cant numbers of Americans, not be - GILLIAN K HADFIELD ing able to afford legal help means simply “lumping” . is the Rich- it, more so than in comparable countries.1 Millions ard L. and Antoinette Schamoi Kirt- land Professor of Law and Professor of those who cannot avoid court– those who need of Economics at the University of a divorce or discharge in bankruptcy, for example, or Southern California. Her publica- who are facing eviction, foreclosure, garnishment, tions include recent articles in such deportation, ½nes, or imprisonment– are left to nav- journals as Law & Ethics of Human igate a complex and forbidding process without legal Rights, Journal of Legal Analysis, Jour- help. As Jonathan Lippman, Chief Judge of the State nal of Law and Courts, and Interna- of New York, notes in his contribution to this issue, tional Review of Law and Economics. Her latest book project is Law for a in 2010 in New York, for example, 98 percent of ten- Flat World: Reinventing Legal Infra- ants facing eviction in housing court, 99 percent of structure for the New Economy (forth- borrowers in consumer credit matters within New coming, Oxford University Press). York City, and 95 percent of parents in child support

© 2014 by Gillian K. Had½eld doi:10.1162/DAED_a_00290 83 Changing matters were unrepresented; and in 2013 in many cases–civil and criminal–as the the Way New York, 46 percent of those facing fore- United Kingdom and Germany, and three Courts Regulate closure (and thus facing a well-represented times as many as France. As a result, public Legal corporate entity) were unrepresented.2 In expenditure on courts in the United States, Markets Los Angeles, 90 percent of those in domes- per case, is signi½cantly lower: Germany, tic violence matters are unrepresented, as France, and the United Kingdom spend are up to 80 percent of people in landlord/ about 30 percent more on an average per tenant and family cases. The numbers are case basis (approximately $1,475) than the about the same throughout the country. United States does ($1,115). And although Dif½culties of access haven’t always been the United States has roughly the same with us. In colonial America, local courts number of judges per capita as France and were, “on the whole, cheap, informal and the United Kingdom (approximately 10 for accessible.”3 Today they are, on the whole, every 100,000 people; Germany has more expensive, highly formalized, and effec- than twice as many, at 24), these judges are tively unavailable to all but wealthy indi- expected to handle much higher numbers viduals and businesses. Why is it so ex - of cases. So whereas the United Kingdom pensive to obtain access to the courtroom has 126 judges per 100,000 cases; France, in America today? Why haven’t we inven- 205; and Germany, 283, the U.S. system ted better, cheaper, more effective ways to struggles through with just 65.5 deliver on one of the central promises of the The ½scal problem, as bad as it is, is only rule of law: the promise of a neutral place one piece of the picture. Realistically, the to take one’s disagreements with others? likelihood of robust increases in taxpayer support for court budgets in the future is The reasons for the high cost and inef - low. For these reasons, it is imperative that ½ciency of modern litigation are multiple. we look at the fundamentals: the reasons A major problem is that American courts for the high cost of legal processes and the are woefully underfunded and under- lawyers needed to navigate them. Here the staffed. On a per capita basis, U.S. public core problems are twofold: the extraordi- expenditure on courts in 2010 (including nary complexity of modern law and pro - the cost of prosecutors, public defenders, cess, and the very high cost of obtaining and legal aid) was high ($175) relative to legal assistance in navigating that com- comparable systems in major advanced plexity. Some view both of these features economies such as the United Kingdom of modern law as inevitable: we live in a ($103), Germany ($127), and France ($77). complex society, one that requires com- But the per capita numbers are misleading. plex procedures and expensively trained The U.S. system handles a much higher lawyers. But I don’t believe either is a given. number of cases than these other systems Indeed, there is tremendous potential for –largely because the U.S. style of govern- reducing both the complexity and the cost ment is much more oriented to the use of of managing the legal disputes of ordinary rights that must be exercised in court than people. Achieving that potential, however, is the case with European regulatory re- requires recognizing that both the problem gimes, which rely more heavily on direct of complexity and the problem of expen- regulation.4 Per capita, the U.S. system sive lawyers are rooted in our excessively (comprised primarily of state courts; fed- restrictive approach to regulating legal eral courts receive a lot of scholarly atten- markets–regulation that is controlled by tion, but they account for about 4 percent the American legal profession to a degree of all litigation) handles about twice as that is largely unmatched elsewhere in the

84 Dædalus, the Journal ofthe American Academy of Arts & Sciences developed world, but that is within the in terests and not the public interest. But Gillian K. power of state courts to change. even if well-meaning lawyers and judges Had½eld involved in these processes try to keep the The ½rst thing to know about the regu- public interest front and center, practically lation of legal markets in the United this has not happened and is not likely to States is that both the right to provide legal happen because the existing providers and goods and services and the rules of oper- their business models are insulated from ating a legal business are fundamentally competition from other potential provid - controlled by lawyers themselves. Here’s ers of legal help. More to the point, the how it works in theory in most states: the regulatory providers themselves are insu- supreme court of the state decides what lated from competition from other regu- constitutes “the practice of law” and then lators who might devise alternative ap - establishes rules, expressed as ethical rules, proaches to regulating legal markets. for how the practice of law is conducted. Insulation from regulatory competition In practice, the supreme courts of most happens in two steps. First, the profession states delegate or defer to state bar associ- de½nes the practice of law expansively and ations to decide these matters, and many in self-referential fashion to mean “every - state bar associations follow the model thing lawyers do.” This de½nition includes rules and policies suggested by the Amer- not only full-scale representation of liti- ican Bar Association (aba). The aba gants in court but also anything that might adopts its rules and policies on the basis assist those who represent themselves, of majority votes held in its House of Del- such as legal advice or help ½lling out legal egates, composed primarily of more than documents or forms. Then, having de½ned ½ve hundred lawyers who are elected by the scope of their regulatory authority to state and local bar associations. Thus, un - reach anything that might be helpful to less state supreme courts are exceptionally people involved with legal processes, the independent of their professional brethren legal profession declares that all legal help (not a common occurrence, particularly must be provided by a person who has in states with elected judiciaries), the rules been licensed by a state bar association. governing who can provide legal services Together, the expansive de½nition of the and under what terms are determined po- practice of law and the decree that only litically by lawyers’ personal preferences attorneys who comply with bar association and politics. In some cases state legisla- rules may engage in the practice of law tures get involved: enacting laws that establishes lawyers as the exclusive source criminalize the unauthorized practice of of regulatory authority–controlling every- law, for example. But the jurisdictional thing about how any aspect of legal assis- issues are murky: in some cases, such as tance is provided. when legislatures have attempted to ex - One way of thinking about why such a pand the right to practice law beyond bar- system promotes complexity and high licensed lawyers, state supreme courts costs is to focus on the role of monopoly have pushed back, declaring such actions here. Lawyers own the whole market, they a violation of the separation of powers don’t have to share it with anyone, and they and the courts’ inherent and exclusive can therefore extract the full value from authority to regulate the practice of law.6 it. This is the line of thinking that sup poses Of course, there is a built-in danger that state bar associations drive up lawyers’ that a lawyer-controlled process ends up fees by limiting the supply of lawyers, and creating legal markets that serve lawyer that lawyers, with the keys to the court-

143 (3) Summer 2014 85 Changing house, can extract whatever the market will But the regulatory environment created by the Way bear. It is also the line of thinking that sup - the profession stymies its ability to secure Courts Regulate poses that lawyers have an incentive to either. First, the way in which legal markets Legal make things more complex than they have are regulated makes them highly insular Markets to be in order to create more work and echo chambers. Everyone who can partici- therefore more billings for themselves. pate in providing legal services is trained But we don’t need to go so far as to as - in the same way, and spends most of their sume that lawyers and judges are acting time interacting with professionals just like in deliberately greedy ways to reach the themselves. This limits the likelihood that conclusion that what stands in the way of new ideas will emerge. Imagining that it is reducing the cost and complexity of ac - likely that a process that involves lawyers cess to American courts is the way in which talking only to other lawyers will give birth the legal profession controls the regulation to fundamentally new means of accom- of legal markets. Even if judges and lawyers plishing long-held objectives is like imag- are honestly concerned (as many are) about ining that librarians, whose job after all is the high cost of legal access, and even if advising on how to ½nd information, the complexity of legal processes and rules would have eventually invented Google. is just a systemic response to the com- Second, professional regulations pro- plexity of modern life (as many surely be - hibit those lawyers who do have new ideas lieve), the regulatory system that the legal from accessing the capital necessary to profession implements in good faith none- support the long journey from idea to im - theless stands as a central barrier to re- plementable innovation. In my experience, ducing cost and complexity. The reason lawyers routinely underestimate the sig- is that this approach to regulation creates ni½cant up-front investment in time and an environment that is exceedingly hostile trial and error required to get a truly new to innovation and the creation of better, business model off the ground. Most of less expensive ways of connecting people our dramatic innovations in technology to courts. Yes, there may be substantial and the Internet took a long time to iron pressure for law and process to become out the details. Few were initially imagined ever more complex in a complex world; to work the way they do now. Facebook and yes, navigating complexity may re- started out as a way for college students to quire ever greater levels of expensive spe- meet each other on campus, not as the cialization and expertise.7 But the ques- global platform for all manner of social, tion is why legal markets are not changing political, and commercial interactions that to develop smart ways of responding to it is today. Twitter, which has transformed com plexity in less complex and less ex - com mercial media, began as a way for pensive ways. Think about the smartphone friends to share status updates. Despite in your pocket or purse: it navigates an their trans formative impact on our world, environment that is constantly ratcheting both needed huge amounts of investment up in terms of complexity. Yet it does so to support their operations as the two com- in ways that grow ever simpler, more ele- panies ½gured out who and what they gant, and less costly. Why doesn’t that hap- were. We should not expect new models of pen in our court systems? legal ser vices to help people navigate courts at lower cost to be assembled on Innovation feeds on two key ingredients: the cheap. But professional regulation in creative thinking and a willingness to put law prohibits innovators in law from ac- time and money behind risky new ideas. cessing any investment capital beyond

86 Dædalus, the Journal ofthe American Academy of Arts & Sciences what they can extract from other lawyers. the problem of reducing the cost and com- Gillian K. That cuts off legal innovation, such as it is, plexity of helping people navigate court Had½eld from the sources of funds–angel investors, claims? We don’t have to venture too far friends and family, venture capital, private into the fantasy world to know the answer equity, public capital markets–that fuel in- to this question; we just need to look at novation everywhere else in the economy.8 what emerges in an environment–namely, Without access to fresh thinking from the United Kingdom–where innovative outside the echo chamber of legal debates, thinking and risk-taking in the context of and without the capital needed to test new legal problems are not the exclusive pre- and risky ideas, innovation in the legal pro - serve of lawyers. Here we see signi½cant fession has foundered. Confronted with levels of innovation, not all of which sur- the problem of access to courts, almost all vive market tests–emphasizing the need lawyers start thinking in the same way: for the kind of risk capital that underwrites how can we get more lawyers for those in innovation in other sectors. In the legal need? The ideas that emerge end up form- sector in the United Kingdom, the solu- ing a short list: increase legal aid, increase tions that the market has attempted in- pro bono work, and secure a statutory or clude: constitutional right to civil legal repre- • A co-op grocery chain with annual sales sentation–a civil Gideon to parallel the of £13.5 billion providing legal services right to counsel for the criminally accused along with other services, such as bank- facing risk of imprisonment.9 There is no ing, insurance, travel, funeral, and phar- doubt that increased legal aid, pro bono macy, online and in stores.11 work, and expanded rights to publicly funded legal counsel are an important part • An online divorce service that provides of what we need to do to improve the func- graduated flat-fee services beginning tioning and fairness of our legal systems. with simple document completion and But the stark reality is that none of these ascending to increasing levels of draft- conventional solutions can make any seri- ing, phone and email assistance from ous dent in the problem. Providing even licensed solicitors, and legal opinions one hour of attorney time to every U.S. from barristers; litigants can represent household facing a legal problem would themselves using these services or opt cost on the order of $20 billion. Total U.S. for a divorce managed entirely by law- expenditures on legal aid, counting both yers through the Web.12 public and charitable sources, are just 5 • A major bank operating a legal docu- percent of that amount, or $1 billion. Even ment service that provides a means both if lawyers became more willing to work to create online documents such as wills, for free, U.S. lawyers would have to in- powers of attorney, and trusts; and to crease their pro bono work from an annual obtain lawyer-drafted demand letters average of thirty hours each to over nine to resolve issues such as problems with hundred hours each to provide some mea - credit ratings, household repairs, and sure of assistance to all households with consumer goods. Users complete an on- legal needs.10 That’s pushing toward half line questionnaire for a customized doc- a year’s worth of billable hours for the ument, and then can choose to submit average lawyer. That will never happen. the document as is, have it reviewed by an internal team of legal experts, or have What would people outside the legal it reviewed by lawyers in an external law echo chamber think up if presented with

143 (3) Summer 2014 87 Changing ½rm, all for flat fees paid to the online Each, in one way or another, violates U.S. the Way company.13 legal professional regulations.18 Courts Regulate • A national chain of lawyers’ of½ces oper- • Most of these entities operate as for- Legal Markets ating under an umbrella brand name pro½t or nonpro½t businesses that are and shared customer service protocols, owned, managed, or ½nanced in signif- supported by kiosks in retail book- icant part by non-lawyers, which violates stores, a consumer-friendly website pro- U.S. professional rules. The online di - viding free, easy-to-understand legal vorce company was founded by a former information, and a free initial consulta- paralegal with expertise in family law. tion.14 The franchise company was organized as a partnership with a legal software com- • A franchise system offering small ½rm pany; and the company providing an practitioners a “business in a box”–soft- umbrella brand is ½nanced with private ware and procedures for setting up and equity. The subscription services compa- operating a law of½ce–and af½liation ny is a nonpro½t company that also en - with a national brand focused on using gages in consumer advocacy and pub- standardization, technology, common lishes reviews of consumer products. mar keting, and customer-focused business practices to reduce costs and in - • Some of these entities are licensed as crease quality.15 organizations authorized to provide legal services. The co-op grocery stores, • A nonpro½t membership organization for ex ample, were the ½rst “alternative for small businesses that includes un - business structures” licensed to provide limited legal advice, documents, and in- legal services in the United Kingdom. surance that covers legal costs for pur- Only individual lawyers can be licensed suing or defending legal claims, up to in the United States. £50,000 per incident, all as a bene½t of membership for a flat annual fee.16 • All of these new providers supply a uni- form product across a national market. • Online subscriber services that provide Product uniformity is hampered in the unlimited phone and email advice for le - United States because a lawyer licensed gal, ½nancial, and other consumer prob- under state-based rules must supply any lems, tailored to the user’s speci½c cir- services accessed by individuals in a par - cumstances, for a single annual fee.17 ticular state. If you are not an American lawyer, these • Most of these entities depend on the use may not sound like amazing innovations. of legal experts who are not traditionally Indeed, outside of legal markets, these are quali½ed lawyers to supply legal servic- the kinds of services that are available in es at low cost, such as paralegals and li - most markets in the Web-enabled twenty- censed Legal Executives (who have to ½rst century, powered by technology, con- com plete a community college degree sumer research, Internet-based platforms, and spend a period of years under solic- the advantages of a large customer base, itor supervision before practicing inde- and creative ways of cutting the costs of pendently). Documents purchased with standardized consumer products. “legal review” but not “lawyer review” The sad fact is that none of these rela- from the document provider are re - tively simple innovations in legal services viewed by in-house legal experts, but not is currently possible in the United States. necessarily solicitors.

88 Dædalus, the Journal ofthe American Academy of Arts & Sciences • The barristers and solicitors who provide which still far outstrips U.S. public fund- Gillian K. legal services through these companies ing for legal assistance19–in the context Had½eld are either employed by the company or of a professional regulatory scheme that paid out of fees collected by the company facilitates innovation of new solutions for from clients. The franchise and brand- access. Relatively low-cost online assis- ing organizations collect the equivalent tance with divorce matters, for example, of royalties on revenues earned by the is likely to ½ll at least some of the gap left law ½rms that sign up with them. In the by elimination of most of these matters United States, lawyers are not permitted from the legal aid scheme. to be employees of non-lawyer-owned or It is not hard to imagine what kind of -managed entities. The contract pay- impact services like those already available ment or royalty mechanisms used would, in the United Kingdom could have on the under most states’ professional regula- crushing problem of the cost of navigat- tions, constitute either impermissible ing American courts. Easy access to “law - fee-sharing with a non-lawyer or imper- yer letters” to resolve disputes before they missible payment of referral fees to a for- are ½led in court could both provide an pro½t entity. avenue of recourse for those who cannot afford to go to court and reduce the num- • Many of these entities integrate a vari- ber of claims that end up in courtrooms. ety of services in addition to legal ser - Providing assistance with the completion vices, requiring the management guid- of forms, drafting of motions or papers, ance of non-lawyer professionals such and/or unlimited phone and email assis- as ½nance, tax, consumer, and employ- tance to someone who is working his or ment experts. In the United States, any her way through a housing, bankruptcy, entity that attempts to integrate services immigration, or family matter, for exam- must be owned, managed, and ½nanced ple, could substantially reduce the errors exclusively by lawyers; other profession- and misunderstandings that clog dockets, als can participate in the business only frustrate clerks and judges, and trip up as employees of lawyers. laypeople. The U.K. divorce service men- The United Kingdom has its own prob- tioned above offers exactly this kind of lems with access to justice. In recent years low-cost help: for £199, a customer seek- there have been major cuts to a formerly ing a change in a child or spousal support generous legal aid system that in its hey- order can arrange online for a licensed day in the late 1970s was available to al- solicitor to draft the appropriate motion most 80 percent of all households; eligi- and accompanying af½davit and then re - bility had fallen below 30 percent by 2007 ceive unlimited phone and email support and is expected to drop further. Whereas from a solicitor up through the hearing on the original legal aid schemes in the United the matter. Kingdom covered almost all civil and crim- This kind of service is only possible for inal matters, recent reforms have elimi- a low flat fee, however, if the entity sup- nated major categories such as divorce and plying the service 1) can attain suf½cient custody, immigration, and personal injury national scale to smooth out the high-need and restricted the scope of assistance avail- and low-need cases; 2) can employ legal able for employment, education, debt, professionals other than lawyers when housing, and bene½ts matters. Nonethe- providing standardized assistance accord- less, the U.K. system faces these new lim- ing to lawyer-generated protocols; and 3) itations on legal aid–the availability of has suf½cient access to diversi½ed capital

143 (3) Summer 2014 89 Changing markets to secure the funds needed to ticing in this sector of the market would the Way invest in the building of a large customer be willing to work for a stable income Courts Regulate base and development of easy to compre- that averages about $30–40 an hour– Legal hend instructions, reliable protocols, ap - $60,000–70,000 a year–or less. We know Markets propriate pricing, and a user-friendly in - this because that’s the going rate for con- terface. The only reason we do not have a tract attorneys–who supply legal expertise comparable service now in the United and nothing more.21 States is that the current regulatory struc- To reduce the cost of helping people ac - ture stands in the way of achieving all three cess courts we need to change the business of those requirements for innovation. model. And, frankly, that’s not hard to do. There are U.S. companies that already have The way to reduce the cost and complexi- this business model; some of them are alty of accessing courts is to harness the same ready operating independently or in joint mechanisms that reduce costs in other ventures with U.K. companies in the areas: standardization, scale, analysis of United Kingdom’s more open market. data, design, experimentation, and special- They are ready to make signi½cant leaps ization.20 Lawyers do not need to do every - forward in harnessing technology and thing: ½nd the clients, run the business, broad-based customer service organiza- design the website, develop customer relations to support the millions of litigants tions expertise, ½nd the other experts, who, of necessity, have to navigate court collect the fees, experiment with new without conventional legal representation. meth ods, provide the investment capital, LegalZoom,22 RocketLawyer, and Law De- implement standardized protocols, and so pot have built recognized legal brands and on. But our current regulatory system re - large-scale platforms that provide ordinary quires them to do it all, and this plays a sub- consumers with a low-cost means of com- stantial role in keeping hourly rates for le- pleting the documents necessary to make gal help high. a will, ½le a simple divorce, obtain a trade- There are few sectors of the legal market mark, or incorporate a company. Current that are more competitive than the lower regulations restrict them to serving only end of the personal services market; there as a “scrivener,” ½lling in the blanks of le- is no shortage of lawyers anxious to serve gal forms; any substantive legal assistance the people who are struggling through has to be arranged through a legal plan court processes alone. That fact tells us that that connects users to private attorneys the fees these lawyers are charging–on and is limited to thirty minutes of advice the order of $250 an hour–are probably per matter before a regular attorney/client close to rock-bottom for the business model fee arrangement kicks in. But these services in which these lawyers practice. That model could do so much more. They are well requires lawyers operating a solo or small positioned to move quickly into the space ½rm practice to charge enough to run the of providing substantive support to people risk of not ½nding or collecting from cli - ½ling court documents and participating ents: they lack the scale to smooth those in court proceedings. risks and the capacity for investing in mar- Other services such as Pearl23 and Law - keting, quality control, and customer ser- Guru provide a platform for purchasing vice protocols to improve pro½tability. answers to legal questions. Currently these Most of them end up taking home far less systems are restricted in various ways: than the $250 per hour that they charge. pro viding generic legal information that We know that many of the lawyers prac- is not tailored to the circumstances of the

90 Dædalus, the Journal ofthe American Academy of Arts & Sciences questioner or requiring a more cumber- legal help one-on-one in small and solo Gillian K. some process of connecting a questioner practice settings is an unquali½ed non- Had½eld to a local lawyer and a complicated con- lawyer providing legal help one-on-one in sent form from the questioner to authorize a small or solo practice setting. The short limited help. But these systems, designed answer to the challenge often is: some- to provide low-cost rapid responses in real- thing is better than nothing, and currently time with attorneys, could easily scale up nothing is what the vast majority of peo- to provide more tailored advice and sup- ple who need access to our courtrooms get. port for litigants facing immediate ques- That’s not a bad answer, but there is a bet- tions about how to respond to legal docu- ter one. ments, the progress of a hearing, and so The better answer is to recognize that a on. Imagine how much more effective this change in the business model of how legal kind of system could be, installed as kiosks help is provided introduces the potential in courthouses throughout the country, for changes in the regulatory model. The than an overburdened clerk’s window or current regulatory model purports to pro - a poorly funded and overwhelmed self- tect people by requiring everyone who pro- help center. vides any legal help to obtain a J.D. and a These are just some of the possibilities license and to follow rules set by state bar that could be online and available to Amer- associations. But there are other, better icans in short order. Other possibilities ways to protect people. lie on the horizon, particularly ones that A more robust regulatory model would involve recon½guring how cases are re - recognize that quality can be supported in ceived, processed, and handled by courts. many ways. A business model built on the While the creation of online claims ½lings delivery of legal help by organizations and hearings, for example, could be im - that develop broad-based platforms op- plemented by individual court systems erating at large scale secures quality in large now, using public dollars, any signi½cant measure through standardization and rollout of such systems almost certainly organizational protocols. Instead of thou- depends on recruiting private companies sands of individual lawyers in their of- to develop and deliver them, because they ½ces deciding what is a good response to a require investment, risk capital, and the particular one-off problem, or even an an - kinds of business and technology expertise ecdotal sample of legal problems, an or- that lie outside of the domain of lawyerly ganization asks legal experts to collabo- expertise. Partnerships and contracts with rate on developing a protocol for common entities to provide low-cost systems for problems and circumstances; scale, tech- delivering court services are not dif½cult to nology, and data analysis allow the orga - imagine or realize, if only we could break nization to extend protocols to less-com- out of the existing regulatory framework. mon (but suf½ciently frequent) problems. The organization pilots those protocols, I know what the major objection from the collecting data internally and from users profession will be to these ideas: What to assess how reliably the protocol is un - about quality? What about protecting the derstood and implemented (which re - public from unquali½ed scam artists? But quires compliance not only by employees this worry itself is also one that is blinkered but also by the users themselves). It uses by the con½nes of conventional ideas that data to re½ne the protocol. It puts in about legal help. It imagines that the al- place auditing and oversight mechanisms ternative to a quali½ed lawyer providing to ensure the protocol is followed. It iden-

143 (3) Summer 2014 91 Changing ti½es the cases that are not well handled The path to greater innovation in the the Way by standard protocols, and elevates them ways people obtain the legal help they need Courts Regulate to more customized (and expensive) treat- to access and navigate our courts clearly Legal ments or refers them outside to other pro- requires change to the way in which the Markets viders. If the protocol fails, the organiza- business of law is regulated. Unfortunately, tion bears the liability–commercial and the path to that regulatory change has legal–for those failures. And if, as should proven a lot harder to discern. Other pro- be the case, the organization is itself depen- fessions, such as medicine, traditionally dent on a license to provide legal assis- enjoyed self-governance as a matter of del- tance, the organization runs the risk of los- egation from state legislatures. Reform in ing its license if its procedures fail to pro- those professions has come about largely vide adequate legal assistance as promised. through legislative means at both the state Quality in this organizational model is and federal level. a product of the system instead of a single The basis of legal professional regula- individual operating in isolation. And that tion, however, is a murky mess. It results is a far better guarantee of systematic qual- from a complex and poorly understood ity than individual licensing. It is true that mélange of express state constitutional organizations can fail to deliver quality as pro visions, state supreme courts’ claims promised because they are poorly run or to inherent constitutional authority, state overly bureaucratic. They can fail because statutes, court rules, judicial opinions, and they are tempted under competitive and/or bar association ethics codes and disciplin - stakeholder pressure to cut corners or ary committee opinions. A federal solu- mislead their users about what they can tion seems ideal, particularly in light of the actually do for them. But lawyers operating importance of increased scale to reduce in solo and small ½rm settings can also fail costs. But states have historically been re- in many of the same ways: making mis- sponsible for creating and operating the takes, letting personality get in the way, courts that manage almost all of the coun- overbilling, misleading, taking on more try’s litigation, and there are reasonable than they can handle, doing shoddy work. claims to constitutional authority to con- The advantage of the organizational model tinue to regulate the profession locally. is that it is far easier to detect, regulate, The prospect of working state by state to and correct the organization’s failures. It change the regulatory approach is, how- is easier to identify systemic problems ever, daunting to say the least. Bar associ- when you have enough data to look at. It ations wield signi½cant political and prac- is easier for a regulator to oversee a few tical influence over professional rulemak- organizations instead of thousands of in - ing; indeed, in most states it is simply dividuals. It is easier for consumer watch- taken for granted that the bar associations dogs to monitor the quality of an organi- are the rulemakers. State supreme courts zation that serves thousands of users na - often lack the awareness, much less the tionally than to monitor thousands of pro- wherewithal, to assert a serious role in viders who serve a handful of users in a lo - professional regulation; they are working cal market. It is easier for users to obtain overtime simply to stay afloat in a sea of reliable information about quality from unrepresented litigants and struggling other users about an organization that de - with dwindling budgets that force them livers a standardized service on a large scale to close their courtrooms and eliminate than it is for them to discover anecdotes staff.24 Legislatures can act, but if they about a local provider’s performance. up set bar associations, those bar associa-

92 Dædalus, the Journal ofthe American Academy of Arts & Sciences tions can and do challenge legislation as ble roles that limited license professionals Gillian K. unconstitutional on separation of powers might play in helping overcome the crush- Had½eld grounds. ing load of unrepresented litigants in New Some state supreme courts, precisely York courts. These judicial efforts suggest because they stand at the headwaters of a promising trend. the deluge of unrepresented litigants in courts, are beginning to test their capacity As law and legal process have become to roll back the excessive limitations that more complex, as legal rights and duties have accumulated on legal markets. The have become more pervasive, the idea that Washington State Supreme Court was the ordinary citizens can secure due process ½rst in the nation, in 2012, to order the without any legal help is increasingly un- state bar association to create a scheme to tenable. The path to progress may thus license a new category of legal assistants have begun to emerge from the fog: courts to provide a limited set of legal services, have the power to say from whom and how such as review of documents and assis- the millions who appear before them with- tance with understanding and navigating out lawyers can secure the legal help they court procedures.25 The Board of Trustees need. And if, as is overwhelmingly the case, of the California State Bar, which is con- our existing regulatory scheme has result- stitutionally created as a branch of the ju- ed in a system in which lawyers’ help lies diciary,26 is exploring the potential for in - beyond the reach of the ordinary citizen, troducing a limited licensing scheme.27 then it is within the power–and the duty– New York’s Chief Judge Jonathan Lippman, of courts to expand access to justice by as he reports in his contribution to this is - expanding access to other sources and sue, has tasked a working group with cre- types of legal help. The innovators for law ating a pilot program to explore the possi- are just waiting for the call.

endnotes 1 For estimates of the rates at which people in different countries “lump” their potential legal problems by taking no steps to address them, see Gillian K. Had½eld and Jamie Heine, “Life in the Law-Thick World: The Legal Resource Landscape for Ordinary Americans,” forthcoming in Beyond Elite Law: Access to Civil Justice for Americans of Average Means, ed. S. Estreicher and J. Radice (Cambridge University Press). 2 The Task Force to Expand Access to Civil Legal Services in New York, Report to the Chief Judge of the State of New York, November 2010, 1, http://www.nycourts.gov/ip/access-civil-legal -services/PDF/CLS-TaskForceREPORT.pdf; and A. Gail Prudenti, 2013 Report of the Chief Ad - ministrator of the Courts Pursuant to Chapter 507 of the Laws of 2009, http://www.nycourts.gov/ publications/pdfs/2013ForeclosureReport.pdf. 3 Lawrence M. Friedman, A History of American Law (New York: Simon & Schuster, 2005), 11. 4 For an analysis of this phenomenon, see Robert A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge, Mass.: Harvard University Press, 2001). 5 See Had½eld and Heine, “Life in the Law-Thick World.” 6 See, for example, Merco Construction Engineers Inc. v. Municipal Court, 21 Cal.3d 724 (1978) (statute authorizing a corporation to appear in court through a non-attorney corporate employee violates separation of powers). See also In re Attorney Discipline System, 19 Cal.4th 582 (1998) (Cali- fornia State Bar is a constitutionally created entity subject to court’s primary, inherent authority over the admission and discipline of attorneys and retains the power to impose a fee

143 (3) Summer 2014 93 Changing on attorneys to fund the disciplinary system despite the Governor’s veto of legislation im - the Way posing the fee and legislative inaction); and In re New Hampshire Bar Association, 855 A.2d 450, Courts 451, 456 (N.H. 2004) (statute requiring the state bar to be bound by the results on referendum Regulate asking whether the state bar should be uni½ed or not was unconstitutional). The Missouri Legal Markets Supreme Court has been particularly clear on the inherent and primary power of courts to determine what constitutes the practice of law: “We have generally recognized that the legislature may, in the exercise of the police power, aid the court by providing penalties for unauthorized practice of law, but that it may in no way hinder, interfere with or frustrate the court’s inherent power. We have at times recognized and used the statutory de½nition [of the unauthorized practice of law] . . . we may undoubtedly do so reserving the right, however, at all times to ½x our own boundaries and declare our own restrictions in all matters other than a prosecution under the statute.” See Hoffmeister v. Tod, 349 S.W.2d 5, 11 (1961). 7 For a discussion of the inherent tendencies toward complexity and specialization in law and the impact on the cost of lawyers, see Gillian K. Had½eld, “The Price of Law: How the Market for Lawyers Distorts the Justice System,” Stanford Law Review 98 (2000): 953–1006. 8 See Gillian K. Had½eld, “Legal Barriers to Innovation: The Growing Economic Cost of Pro- fessional Control over Corporate Legal Markets,” Stanford Law Review 60 (2008): 1689–1732. 9 The concept of “civil Gideon” gained currency in the late 1980s. See American Bar Association Consortium on Legal Services and the Public, Civil Justice: An Agenda for the 1990s (1991). 10 These calculations are based on the evidence from aba and state bar association surveys between 1995 and 2010 showing that roughly half of U.S. households are experiencing an average of two legal problems at any given time. That’s 115 million legal problems. At an average of $200 an hour, that’s over $20 billion for one hour of help. If the 1.25 million American lawyers are pro - viding help for an average of three problems (average pro bono hours according to the aba are 30, and I conservatively assume 10 hours per problem), that amounts to 3 percent of total need. 11 http://www.co-operative.coop. 12 http://www.divorce-online.co.uk. 13 http://www.halifaxlegalexpress.co.uk. This service was provided through an outsourcer, Epoq Legal. Halifax Bank discontinued the services in October 2013, directing consumers to http://www.mylawyer.co.uk, a comparable service also delivered through Epoq. 14 http://www.qualitysolicitors.com. Quality Solicitors discontinued its placement of kiosks in retail bookstores in late 2013. 15 http://www.face2facesolicitors.net. Face2Face went out of business in early 2014. 16 http://www.fsb.org.uk. 17 http://www.whichlegalservice.co.uk. 18 For a discussion of how proposals to allow such business structures in the United States have died because they were voted down among lawyers, see Gillian K. Had½eld, “The cost of law: Promoting access to justice through the (un)corporate practice of law,” International Review of Law and Economics (forthcoming). 19 In 2012, legal aid per capita in the United Kingdom was ½ve times the level in the United States; measured on a per case basis (that is, taking into account that many more matters are handled through courts in the United States than is the case in most other countries), the level of legal aid in the United Kingdom is more than ten times the levels of U.S. funding. See Had½eld and Heine, “Life in the Law-Thick World.” 20For an extended analysis of the economics of legal businesses, see Had½eld, “The cost of law.” 21 http://www.crainsnewyork.com/article/20120108/SMALLBIZ/301089988. 22 I serve on the Legal Advisory Council of LegalZoom. 23 I serve on the Advisory Board of Pearl.

94 Dædalus, the Journal ofthe American Academy of Arts & Sciences 24 For evidence of the impact of budgetary cuts in California, see the Honorable Barry Goode, Gillian K. Summary of Impacts from Instant Survey (March 11, 2013), http://www.courts.ca.gov/partners/ Had½eld documents/20130312-PJ-Instant-Survey-Impacts.pdf. 25 See Brooks Holland, “The Washington State Limited License Legal Technician Practice Rule: A National First in Access to Justice,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 2196607. 26 In re Attorney Discipline System: Requests of the Governor and The State Bar of California, 19 Cal.4th 582 (1998). 27 http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000010722.pdf.

143 (3) Summer 2014 95 Trusting the Courts: Redressing the State Court Funding Crisis

Michael J. Graetz

Abstract: In recent years, state courts have suffered serious funding reductions that have threatened their ability to resolve criminal and civil cases in a timely fashion. Proposals for addressing this state court funding crisis have emphasized public education and the creation of coalitions to influence state legislatures. These strategies are unlikely to succeed, however, and new institutional arrangements are necessary. Dedicated state trust funds using speci½c state revenue sources to fund courts offer the most promise for adequate and stable state court funding.

Let justice be done though the heavens fall. –Lord Mans½eld (1768)1

We Americans take it for granted that if we buy an automobile or marry someone and the car or spouse turns out to be a lemon, we can go into court to obtain relief. If we get into a dispute with our landlord or a tenant or with our family over a relative’s estate, a judge will be sitting in the local courthouse to resolve it. Surely, if confronted with domestic violence, we can promptly obtain a restraining order from a court nearby. If we are wrongfully arrested and charged with a crime, we take comfort in the fact that our constitution provides us the rights to counsel MICHAEL J. GRAETZ, a Fellow of the American Academy since 2004, and a speedy trial, and we look forward to our day is Columbia Alumni Professor of in court to vindicate ourselves. If we want to vali- Tax Law at Columbia Law School date our rights to speak and worship freely, bear and Justus S. Hotchkiss Professor arms, or contribute vast sums to the political con- Emeritus of Law at Yale Law School. tender of our choice, we expect our claims to be heard His most recent books include The promptly and fairly in a convenient courthouse. End of Energy: The Unmaking of The judiciary is the indispensable third branch of America’s Environment, Security, and Independence (2013) and 100 Million our democratic government, the one that peacefully Unnecessary Returns: A Simple, Fair, resolves our disputes and most vigorously guarantees and Competitive Tax Plan for the Unit- our liberty. Well-functioning courts are integral to ed States (2008). our democracy. Our expectation that we can resolve

© 2014 by Michael J. Graetz doi:10.1162/DAED_a_00291 96 our legal rights in a court of law is so in - mental health services, probation services, Michael J. grained in our culture that we never give a court security services, and background Graetz second thought to the prospect that we checks, as well as periodic closures of the might not be able to do so. courts that delayed their ability to resolve But many years of tight and frequently cases.6 Even so, the federal courts have declining funding have exacted a substan- fared much better than state courts, which tial toll on the capacity of our courts to in recent years have had their budgets function as they should. In 2003, the Con- sharply reduced. ference of State Court Administrators de- In 2010, more than forty states cut their scribed state courts as facing “the worst courts’ funding. In most states, courts re - ½scal crisis in many decades.”2 Of course, ceived 10 to 15 percent less funding in the the crisis intensi½ed when state budgets years 2008 through 2011 than they did in were decimated in the wake of the Great 2007. These cumulative budget cuts have Recession. The heavens may not have fall- taken a harsh toll on state courts’ ability to en, but justice has suffered serious blows function properly: more than forty states from the budget ax. froze salaries; more than thirty laid off or Except in rare and extraordinary circum- furloughed judicial staff and stopped stances, only federal courts–especially the ½lling clerk vacancies; nearly thirty in - U.S. Supreme Court–grab the media’s at - creased their case backlogs; and more than tention. This is hardly surprising: federal twenty reduced court operating hours and court rulings frequently have nationwide increased ½ling fees and ½nes.7 Michigan consequences. But it is the state courts that cut forty-nine judgeships, New York laid off we count on to resolve the vast majority ½ve hundred employees, Alabama closed of our legal disputes, to ensure justice day- its state courts on Fridays, and New Hamp- to-day. State courts hear more than 95 per- shire essentially suspended civil jury trials.8 cent of all court cases ½led in the United Delays are ubiquitous. In much of Min- States. During 2011, about 370,000 civil nesota, for example, it now takes more than cases were ½led in federal courts. By com- a year for a misdemeanor case to be set parison, California, Florida, Maryland, for trial. Criminal cases in Georgia routine- New York, and Virginia each had one mil- ly take more than a year to resolve, while lion or more new civil cases ½led in 2011.3 civil trials there have been suspended Total cases ½led in our nations’ state courts inde½nitely. Personal injury cases in New grew from just under 90 million in 1995 to Hampshire are commonly delayed two to more than 108 million in 2008.4 three years.9 Steve White, presiding judge Until the budget sequestration hit the of the Sacramento County Superior Court, courts in 2013, federal funding for the ju - told The New York Times that, due to re- diciary had generally increased to match duced staff, people commonly wait ½ve to its caseload, as had the number of federal six hours to see a clerk, and residents fre- court personnel. Even during the Great quently wait a full day for help in family Re ces sion, federal court funding held rel- courts, only to leave without having seen atively steady at about $7 billion a year anyone. Simultaneously, unemployment (two-tenths of 1 percent of the total feder- and the threat (or the reality) of foreclo- al budget).5 But in 2013, the federal spen d - sures and bankruptcy have increased fam- ing sequestration legislation cut $350 mil- ily stress, making this economic downturn lion from federal court budgets, producing an especially bad time for courts to be un- furloughs and layoffs of court personnel able to promptly resolve legal issues related and causing reductions in drug testing, to debtor-creditor relations, domestic rela -

143 (3) Summer 2014 97 Trusting tions, and parenting-time disputes. Crim - local legislatures to provide adequate fund- the Courts: inal defendants have a constitutional right ing.”13 In 2011, the task force obtained Redressing the State to a “speedy” trial, and domestic violence unanimous approval for aba House of Del- Court and parental misconduct cases re quire im - egates Resolution 302, which urges state Fund ing Crisis mediate judicial attention, so other civil lit- and local bar associations “to document igation goes to the back of the line. If a state the impact of funding cuts to the justice civil case ½led in 2007 took one and a half systems in their jurisdictions, to publicize years to be resolved, the same case ½led in the effects of those cutbacks, and to create 2013 would require nearly four and a half coalitions to address and respond to the years. In Los Angeles, the average case dispo - rami½cations of funding shortages to their sition time increased from just under two justice systems.”14 years to four and a half years in 2012.10 Ac - No one now denies that the funding counts of dysfunction in the state courts prob lems of state courts are causing seri- could ½ll this volume. If justice delayed is, ous harm. The adverse consequences have in fact, justice denied, injustice abounds. spread far beyond litigants and court per- The National Center for State Courts sonnel. The aba Task Force Report docu- (ncsc), the American Bar Association mented detrimental effects on public safe- (aba), and many state courts and bar asso- ty, ranging from increased travel and delays ciations have well documented the dele- for police of½cers waiting to testify at crim- terious consequences of the declines in inal trials to releases of criminal defen- state court budgets. The ncsc and aba dants when their speedy trial clocks run have both conducted and funded excellent out. Cutbacks in courthouse security per- reports on the effects of inadequate fund- sonnel have increased the risks inside ing of state judiciaries and have advanced courthouses. Delays in domestic violence several proposals to address the problems cases can have tragic consequences. they uncovered.11 The ncsc concluded State court funding reductions are also that due to decreased state bud gets for the costly to the regional economy. Economic judiciary, “the public’s access to justice is losses include not only the direct effects of being jeopardized.”12 Both organizations state employment reductions and lower have published numerous calls for greater revenues for the adjacent legal community, efforts by judicial of ½cials and their allies but also decreased investment, since funds to obtain adequate funding from state are held in reserve for longer pending res- legislatures. olution of legal disputes.15 When uncer- David Boies and Ted Olson–the famous tainty rises regarding the likelihood of ef - adversaries in Bush v. Gore (2000) who ½cacious judicial enforcement of property sub sequently joined forces to contest Cal- and contract rights, investment ½nancing ifornia’s ban on gay marriage–teamed up becomes more dif½cult to obtain, econom- again (far from the national spotlight) to ic risks increase, and economically bene- cochair the aba’s Task Force on Preser- ½cial transactions simply may not occur. vation of the Justice System. At the aba’s Writing in the Journal of Public Economics, annual meeting in August 2011, Boies and economist Matthieu Chemin concluded Olson received the association’s highest that “[f]inding ways to speed up judiciaries honor for their leadership of this task force, is . . . fundamental to economic growth.”16 which, after conducting numerous fact- One microeconomic study estimated that ½nding hearings around the country, con- in 2012, cutbacks in state judiciary fund- cluded that “the courts of our country are ing would eventually “result in estimated in crisis” due to the “failure of state and losses of $53.3 billion from increased un -

98 Dædalus, the Journal ofthe American Academy of Arts & Sciences certainty on the part of litigants,” not in- people come to believe that the law–in the Michael J. cluding “losses from declines in employ- larger sense–cannot ful½ll its primary func - Graetz ment at state judiciaries, law ½rms and the tion to protect them and their families in resulting declines in economic output... their homes, at their work, and on the public resulting from the funding cutbacks.”17 streets.19 The ongoing shrinkage of state court These threats to our system of justice are resources also encourages those who can now being posed a generation later by the afford it to seek alternatives to courts for inadequate funding of state courts. resolving disputes. Increasing use of arbitration, mediation, and “private” judges raises complex and cross-cutting issues The facts of diminished funding of state well beyond the scope of this essay. It suf- courts are indisputable. The harmful con- ½ces here to observe that, advantages to sequences of funding cutbacks have been litigants notwithstanding, the emergence well-documented and are now clear. The and evolution of a two-tier system of jus- question of how to redress this situation, tice poses substantial risks for state judi- however, remains. cial systems. If complex business cases and State courts obviously must improve other controversies among those who can their ef½ciency and enhance their cost- afford private adjudication flee the judi- effectiveness. Approximately 95 percent of cial system, leaving state courts to resolve annual state court costs are for personnel, cases principally involving criminal defen- which means that the diminished funding dants and the poor and powerless, it will has left vacancies un½lled and has produced become increasingly dif½cult to attract and furloughs and ½rings. It also implies that retain high-quality state court judges (and too little is being spent on tech nology. In other personnel). In turn, the temptation some cases, funding reduc tions have pro- for state legislatures to further decrease duced efforts to “re-engineer” state courts, state court funding will grow. As U.S. Dis - reorganizing them in order to curtail du pli - trict Court Judge Jack Weinstein has obser- cative costs (perhaps most notable among ved, “This would create a situation analo- these efforts is the consolidation of trial gous to what has happened to public edu- courts in California). The push for cost sav- cation in some of our central cities because ings has also stimulated more electronic of the middle class exodus to private pay ment, document management, and ½l - schools and the suburbs.”18 ings of court documents; video conferenc- In 1970, Warren Burger, then the Chief ing in rural areas; forms downloadable Justice of the United States, told the Amer- from the web; and online answers to ques- ican Bar Association: tions–in short, a gen eral increase in the online accessibility of court services. Pro- A sense of con½dence in the courts is es sen- cedures and forms for straightforward tial to maintain the fabric of ordered liberty cases, like uncontested divorces and small for a free people and three things could de- claims, have been greatly simpli½ed in stroy that con½dence and do incalculable some states. So, the funding reductions damage to society: that people come to be- have stimulated some improvements in the lieve that inef½ciency and delay will drain courts, prompting them to enhance and even a just judgment of its value; that peo- streamline services in order to better serve ple who have long been exploited in the the public. Such enhancements should con - smaller transactions of daily life come to be - tinue to be implemented and spread to lieve that courts cannot vindicate their legal other states. rights from fraud and over-reaching; that

143 (3) Summer 2014 99 Trusting But on a less positive note, many state of virtually all such analyses, the Task Force the Courts: courts have responded to cuts by endeav- ½rst urges achieving operating ef½ciencies Redressing the State oring to increase their self-funding, prin- in the courts. The task force report also Court cipally by raising ½ling and other fees, but urges state and local bar associations to: Fund ing Crisis also by raising ½nes. In Washington, the im - 1) “document the impact of funding cut- position of new surcharges and increased backs to the justice systems in their juris- fees spurred the state Supreme Court in dictions”; 2) “publicize the effects of those 2013 to reaf½rm indigent litigants’ rights to cutbacks”; and 3) “create coalitions to ad- waiver of all fees.20 To be sure, although in- dress and respond to the rami½cations of creases in fees may deter low- and middle- funding shortages to their justice systems.” income liti gants from seeking relief, they The aba also recommends that state and may be necessary in some cases. But on the local governments “develop principles that other hand, raising ½nes to fund court func- would provide for stable and predictable tions is never apt: it conflicts with the im - levels of funding.” Furthermore, it urges partiality in setting punishments that we both the courts and bar associations to bet- expect and deserve from the judiciary. ter communicate with and educate public Historically, state and local judicial func- of½cials and the public about the “value of tions were largely conducted by judges adequately funding the justice system.”23 elected and funded locally. But the court The ncsc has endorsed a similar strategy, reform movement of the mid-twentieth calling for more engagement with the leg- century changed that, and state courts are islatures by state chief justices, “regular now typically uni½ed, and in most states meetings” between the judiciary and legis- are under the administrative control of the lative bodies, and “strong alliances” be - state Supreme Court and at least partly tween state and local bar associations and fun ded by the state.21 This uni½cation, other constituents.24 State bar associa- along with political pressure to limit prop - tions and other independent analysts have erty taxes (the prime source of local funds), advanced similar recommen dations. and a striving for greater stability and uni - Mustering any con½dence in the poten- formity of funding statewide, has provided tial success of such strategies, however, is an impetus to shift funding of state courts dif½cult, not least because of a lack of pub- to state rather than local budgets. Today, lic concern. As Paul De Muniz, the former although there are variations among the Chief Justice of the Oregon Supreme Court, states, the vast bulk of state court funds observed in a report for the ncsc: “The are supplied through state budgets.22 These court funding crisis is ‘not being talked budgets are determined (usually annually) about around the dinner tables of Ameri- by state legislators. Funds allocated to the ca.’”25 Putting aside the fact that the Amer - judiciary are generally 1 to 2 percent of state ican public rarely gathers around dinner budgets, although in a few states they range tables anymore, such calls for grea t er pub- as high as 3 or 4 percent. lic engagement as a response to inadequate There is a surprising consistency in the state court funding of state judicial sys- recommendations for redressing the state tems face serious obstacles. First, only 13 court funding crisis and avoiding similar percent of the public has a “great deal of de½cits in the future. The recommenda- con½dence” in state courts (although by tions of the aba Task Force in their report this metric, they fare twice as well as state “Crisis in the Courts,” which were en - legislatures and four times better than Con- dorsed unanimously by the aba House of gress).26 Moreover, state court funding is Delegates, are typical. Echoing the ½ndings not a salient issue with the American peo-

100 Dædalus, the Journal ofthe American Academy of Arts & Sciences ple, who are dealing with far more imme- oline and diesel fuel taxes to fund highways Michael J. diate concerns. When Americans are asked are the best known, but the United States Graetz about needs for greater state funding, pub- Code lists ninety-one trust funds, includ- lic schools, roads and bridges, health insur- ing, for example, funds for the Philippines, ance, public transportation, and the police the Library of Congress, Puerto Rico, and all enjoy at least twice as much public sup - certain veterans’ bene½ts.28 The states also port as state courts.27 At most, the public maintain trust funds for a large variety of will give media articles about acute judicial purposes: Wyoming has a trust fund for funding shortages and their consequences wild life and natural resource conservation; a brief glance. Public contact with state Wisconsin and several other states use courts is episodic, and (in family, probate, them for prevention of child abuse and ne- or traf½c courts, for example) can often glect; and California and many other states be disappointing or even distressing. En- employ them to pay for affordable housing, deavoring to engage the public in creating to name just a few examples. Many states an effective ongoing political coalition to have created trust funds for spending the convince state legislatures to provide “ade- proceeds of their settlements with tobacco quate, sta ble, and predictable” judiciary companies, and all the states maintain trust funding is a distracting delusion. funds for unemployment insurance. Only fundamental institutional change As political scientist Eric Patashnik has has the potential to protect the judiciary reported, trust funds–while frequently from the vagaries of annual state legislative nei ther legally binding on the legislature budgeting. But despite all the time, energy, nor necessarily economically signi½cant– and ink devoted to the crisis in funding have been quite successful in producing state judiciaries–including widespread politically stable long-term funding com- complaints about the threats funding mitments.29 A state trust fund with ear- shortages pose to the constitutional inde- marked revenues devoted to funding the pendence of the judiciary and the separa- state’s judicial branch would provide state tion of powers, as well as a few instances judiciaries with much more stable and pre- where funding cutbacks have served as dictable funding over time. Trust fund ½ - “pay back” for judicial decisions key legis- nancing would also help insulate the ju - lators disliked–new institutional arrange - dicial branch from funding cuts from state ments have not been advanced. To be sure, legislators who may disapprove of speci½c achieving successful institutional change court decisions. A state trust fund would is easier said than done. also serve to fortify the judiciary’s independence from the executive and legisla- What new institutional arrangements tive branches’ political pressures, thereby would signi½cantly enhance protections strengthening the separation of powers for stable judiciary funding? First, a multi- mandated in state constitutions. year perspective seems necessary. This sug- Calling for trust fund ½nancing for the gests that a state “trust fund” might be a judiciary raises two additional questions: viable solution. Trust funds, which typical- 1) from what revenue sources will the trust ly earmark a speci½c source of revenue for funds come; and 2) who will determine the a particular spending purpose, are widely level and timing of withdrawals? The sec- used by the federal and state governments. ond question is considerably easier to an - At the federal level, the trust funds direct- swer than the ½rst. Allowing the judicial ing payroll taxes to Social Security and branch itself to manage withdrawals would Medicare and the trust fund allocating gas- have the salutary effect of freeing the ju -

143 (3) Summer 2014 101 Trusting diciary from detailed legislative di rectives court trust fund would satisfy both crite- the Courts: about how its budget must be spent. It ria.30 Court ½ling and other fees should Redressing the State would also discourage “pork-barrel” legis - also go into the trust fund. (Court ½nes, Court lative politics and executive line-item however, should be directed to general rev- Fund ing Crisis vetoes. This kind of judicial budgetary in- enues because of the potential for conflicts dependence would also better position of interest and risk of undermining the legislatures to hold the judicial branch re - public’s con½dence in judicial integrity.) sponsible for serving the public interest. This combination of revenues should pro- Spending flexibility and control should be vide an adequate and relatively stable and granted to the judicial branch on the con - predictable source of funds for courts in dition that it achieve ef½ciency and econo - most states. my in the adjudication process. The judicial The political dif½culties of convincing branch would thus bene½t from its own state legislatures to create such trust funds successes but also bear the costs of its for funding their judiciaries loom large. If fail ures. the endeavor to secure annual funding is Given the wide variations in public ½ - any indication, creating a coalition that can nance among the states, determining the persuade state legislatures is an immense revenue sources for the trust funds is con - challenge. But if successful, such efforts siderably more dif½cult. These variations would not need to be repeated annually. include not only differences in the sources Creating a trust fund for state court ½nan - and levels of state funds and the share of ces would be a far more fruitful avenue each state’s budget dedicated to ½nancing than relying on successful public educa- the judiciary, but also interstate disparities tion and annual coalition-building, which in the proportion and levels of state versus have up to this point been at the forefront local ½nancing of the courts. As a general of efforts to address the crises caused by observation, two criteria emerge: 1) the inadequate state court funding. The dele- funding source should be adequate; and terious effects of recent shortfalls in state 2) the revenue should come from a source court funding may have opened up new op- that will not be dramatically affected by portunities for fundamental institutional changes in the state’s economic well-being. change. The courts and their allies should For most states, dedicating a portion of endeavor to take advantage of such oppor - state sales tax revenues equal to 1 to 2 per- tunities wherever they exist. cent of overall state expenditures to a state

endnotes Author’s Note: I would like to thank Marianne Carroll and Brett Peace for their valuable research assistance. 1 Frequently quoted Latin maxim popularized by (and often attributed to) Lord Mans½eld in Rex v. Wilkes (1768). See Fred Shapiro, The Yale Book of Quotations (New Haven, Conn.: Yale Uni- versity Press 2006), 489. This quotation was used, for example, by Jonathan Lippman, Chief Judge of New York, in his report “The State of the Judiciary 2013,” available at http://www .nycourts.gov/ctapps/soj.htm. 2 Conference of State Court Administrators, “Position Paper on State Judicial Branch Budgets in Times of Fiscal Crisis,” December 2003, http://cosca.ncsc.org/~/media/Microsites/Files/ cosca/Policy%20Papers/BudgetWhitePaper.ashx.

102 Dædalus, the Journal ofthe American Academy of Arts & Sciences 3 John J. Broderick and Lawrence Friedman, “Courts and Public Justice: New Changes, New Michael J. Choices,” Kentucky Law Journal 100 (2011–2012): 848. Graetz 4 Nate Pearsall, Bo Shippen, and Roy Weinstein, “Economic Impact of Reduced Judiciary Fund - ing and Resulting Delays in State Civil Litigation,” Micronomics, March 2012, p. 11, http:// www.micronomics.com/articles/Economic_Impact_of_Reduced_Judiciary_Funding_and_ Resulting_Delays_in_State_Civil_Litigations.pdf. 5 Judith Resnik, “Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: The Childress Lecture,” St. Louis University Law Journal 56 (2012): 918, 975. 6 American Bar Association, Government Affairs Of½ce, Federal Court Funding, http://www .americanbar.org/advocacy/governmental_legislative_work/priorities_policy/independence_ of_the_judiciary/federal-court-funding.html. 7 Pearsall, Shippen, and Weinstein, “Economic Impact of Reduced Judiciary Funding,” 4. 8 Ibid., 3–8. 9 American Bar Association, “Report on Resolution 302,” August 8–9, 2011, http://www .americanbar.org/content/dam/aba/directories/policy/2011_am_302.authcheckdam.pdf; and Greg A. Rowe, “Keeping Courts Funded: Recommendations on How Courts Can Avoid the Budget Ax,” http://www.sji.gov/PDF/Keeping_Courts_Funded.pdf. Numerous reports by or on behalf of state courts and state bar associations, along with several newspaper articles, document the harmful effects of funding reductions for various states. 10 Pearsall, Shippen, and Weinstein, “Economic Impact of Reduced Judiciary Funding,” 15. 11 American Bar Association, “Report on Resolution 302”; and Justice at Stake and National Center for State Courts, Funding Justice: Strategies and Messages for Restoring Court Funding, http://www.ncsc.org/Information-and-Resources/Budget-Resource-Center/Analysis_Strategy/ Funding-Justice.aspx. See also, for example, New York State Bar Association, “Report of the Executive Committee on the Impact of Recent Budget Cuts in New York State Court Funding,” January 2012, http://www.nysba.org/AM/Template.cfm?Section=Home&ContentID=62096 &Template=/CM/ContentDisplay.cfm. 12 American Bar Association, “Report on Resolution 302”; National Center for State Courts, “State Budget Cuts Threaten Public’s Access to Courts,” November 29, 2011, http://www.ncsc.org/ Newsroom/Backgrounder/2011/Court-Budget-Cuts.aspx. 13 American Bar Association, “Report on Resolution 302,” 1; and Justice at Stake and National Center for State Courts, Funding Justice. 14 American Bar Association, “Report on Resolution 302.” 15 See Pearsall, Shippen, and Weinstein, “Economic Impact of Reduced Judiciary Funding,” 15. 16 Matthieu Chemin, “The Impact of the Judiciary on Entrepreneurship: Evaluation of Pakistan’s Access to Justice Programme,” Journal of Public Economics 93 (2009): 114–125. 17 Pearsall, Shippen, and Weinstein, “Economic Impact of Reduced Judiciary Funding,” 15. See also Heather Rogers, “Business-Killing Cuts to State Court Systems,” Publicceo, http:// www.publicceo.com/2012/10/13114. 18 Jack B. Weinstein, “Some Bene½ts and Risks of Privatization of Justice Through adr,” Ohio State Journal on Dispute Resolution 11 (1996): 241, 262. 19 Warren E. Burger, “Remarks of Warren E. Burger to the American Bar Association,” St. Louis, Missouri, August 10, 1970. 20 Jafar v. Webb, 303 P.3d 1042 (Wash. 2013). 21 See Stephen C. Yeazell’s essay in this volume. 22 National Center for State Courts, Fiscal Year 2013 cosca Budget Survey Analysis, January 2013, http://www.ncsc.org/information-and-resources/budget-resource-center/~/media/½les/pdf/

143 (3) Summer 2014 103 Trusting information%20and%20resources/budget%20resource%20center/2013-cosca-budget-survey the Courts: -5-14-13.ashx. Redressing 23 the State American Bar Association, “Report on Resolution 302.” Court 24 Fund ing Justice at Stake and National Center for State Courts, Funding Justice. See also Rowe, “Keeping Crisis Courts Funded”; and Paul De Muniz, “Maintaining Institutional Independence: Funding F Sustainable State Courts During Economic Crisis,” http://www.ncsc.org/Services-and-Experts/ Court-leadership/Harvard-Executive-Session/~/media/Files/PDF/Services%20and%20 Experts/Harvard%20Executive%20Session/Maintaining-Judicial-Indepdence.ashx. 25 Ibid. De Muniz is here quoting former Chief Justice of the New Hampshire Supreme Court John T. Broderick, Jr. 26 Justice at Stake and National Center for State Courts, Funding Justice, 3. “Great deal of con½dence” ratings were 13 percent for state courts, 6 percent for state legislatures, and 3 percent for Congress. 27 Ibid., 4. Seventeen percent supported funding increases for state courts, compared to 66 percent for public schools, 52 percent for roads and bridges, 49 percent for health insurance, 43 percent for public transportation, and 43 percent for police. 28 United States Code, Title 31 (Money and Finance), sec. 1321. 29Eric M. Patashnik, Putting Trust in the U.S. Budget: Federal Trust Funds and the Politics of Commit- ment (Cambridge: Cambridge University Press, 2000). An empirical analysis of state earmarked taxes in the period 1997–2005 by Susannah Camic Tahk con½rms the effectiveness of such arrangements. Susannah Camic Tahk, “Public Choice Theory and Earmarked Taxes,” Univer- sity of Wisconsin Legal Studies Research Paper, March 17, 2014, http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2311372. 30 Corporate and personal income tax revenues fluctuate more with economic conditions than does sales tax revenue.

104 Dædalus, the Journal ofthe American Academy of Arts & Sciences Our Informationally Disabled Courts

Frederick Schauer

Abstract: In order to carry out their functions of deciding particular cases and developing legal rules and principles, courts need information: not just information about the law, but also factual information about the particular matter in controversy and about the world in general. The way in which courts are structured, however, makes it more dif½cult for them to obtain the information they need than it is for most other public decision-making institutions. As the world becomes more complex, and as sophisticated scienti½c, technical, and ½nancial information becomes more central to litigation and to the judicial function, the systemic disabilities of the courts in obtaining the information they need become more apparent and increasingly more problematic.

What makes a court a court? The question is important, but it lacks an obvious answer. We might distinguish courts from other decision-making institutions in terms of being staffed principally by those with legal training. And thus insofar as lawyers and judges occupy a sociologically discrete segment of professional culture,1 courts can be distinguished by virtue of their sociological differentiation. Or we might begin with the fact that courts make decisions with procedures unlike those of FREDERICK SCHAUER, a Fellow of other decision-making environments. The modal the American Academy since 1993, number of parties in a court case is two; the modal is the David and Mary Harrison outcome has a winner and loser; and decisions are Distinguished Professor of Law at typically made by judges or other arbiters with no the University of Virginia. Previ- interest in the outcome. In these and various other ously, he was for eighteen years the Frank Stanton Professor of the ways, courts’ procedures differ from those of legis- First Amendment at the Harvard latures, administrative agencies, executive of½cials, Kennedy School. His publications the military, and private corporations. Additionally, in clude Free Speech: A Philosopical or perhaps alternatively, law schools purport to train Enquiry (1982), Playing By the Rules: their students in the arcane art of thinking like a A Philosophical Examination of Rule- lawyer,2 and so what differentiates courts may be the Based Decision-Making in Law and in fact that they reach their decisions via methods of Life (1991), Pro½les, Probabilities, and Stereotypes (2003), Thinking Like a thinking and reasoning that differ from those we see Lawyer: A New Introduction to Legal in other environments. Reasoning (2009), and The Force of Each of these ways of differentiating courts–socio - Law (forthcoming 2014). logical, procedural, and methodological–constitutes

© 2014 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00292 105 Our part of a complete account of how we have been stipulated or decided long be - Informa - should characterize and understand them, fore a case gets to the highest courts. But we tionally Disabled but my focus here will be on still another ought not to forget, for reasons we will Courts criterion, one we can call informa tional explore, that basic controversies of raw fact dif ferentiation: the array of information must be resolved before appellate deci- courts use in making decisions. This es - sion-making can take place. Long before say will concern a particular di men sion of Miranda v. Arizona reached the Supreme informational differentiation–the meth- Court and provided the platform for the ods by which courts obtain factual, scien- Court’s holding that suspects must be ti½c, and technical infor mation, and the informed of certain constitutional rights potential flaws inherent in those methods. prior to questioning, someone had to de- It is common to think of courts in terms cide that it was Ernesto Miranda who had of their outputs: the decisions they make been arrested, that Mr. Miranda had made and the opinions they write. But these deci - statements that were used against him to sions are based on inputs, which fall into his disadvantage, and that he had not in two broad categories. The ½rst of these is fact been given the warnings that the the law. For some lawyers, judges, and Supreme Court held were constitutionally scholars, the category of law is (and should mandated.5 Beneath virtually all appellate be) narrow, encompassing little more than decisions, therefore, are seemingly mun- statutes, constitutional provisions, report- dane factual questions that comprise most ed court cases, and the conventional meth- of what the courts do: determining just ods of legal reasoning and interpretation who did what; and how, why, and when of standard legal materials.3 Others under- they did it. stand the law as including not only the Often the factual inputs to judicial de - foregoing, but also a broad range of moral, cisions also include those matters of sci- political, and pragmatic factors.4 And al - enti½c and technical knowledge that en- though the divisions between those hold- able judges and jurors to draw inferences ing broad and narrow conceptions of law from the more basic who-did-what kind of are profoundly important, this should not fact. Does exposure to certain substances obscure the equal or greater importance of cause cancer, and if so, in whom and un - the other broad category of court inputs: der what circumstances? If a ½nger print the world of fact. resembling that of the defendant is found The factual inputs to judicial decisions at the scene of a crime, how likely is it fall into two broad types. The one most that the defendant was there when the familiar to the public–largely from tele- crime was committed? Do certain exter- vision and other media, but sometimes nal features of an automobile tire indicate from personal experience–is the simple defective manufacture and an increased question of what happened. Who was it likelihood of tire failure under normal that approached the bank teller with a gun driving conditions?6 and demanded money? Who started the It is profoundly important to ask wheth er ½ght? Did the Ford enter the intersection courts as presently constituted–especially ½rst, or was it the Toyota? And how fast courts in common-law systems such as the was the Ford going at the time? If we United States–are the institutions best spend too much of our time focusing only suited to make factual determinations of on Supreme Court cases, or even on appel- the two types just sketched, especially the late litigation more broadly, we may ig nore determination of general scienti½c, techni- factual issues of this variety, for often they cal, ½nancial, and related fact.7 This ques -

106 Dædalus, the Journal ofthe American Academy of Arts & Sciences tion is crucial in part because it raises issues For all of these reasons, therefore, it is es- Frederick of how to allocate social and public deci- sential to examine whether courts are well Schauer l sion-making among institutions of var ious equipped to make the factual determina- t types; for example, is regulatory policy best tions that have important consequences made administratively or through litiga- for individual litigants and, increasingly, tion?8 However, we cannot even begin to for social policy as well. There are several address such questions un less we can reasons to believe that courts may not be evaluate the respective competences of the suited to the task of adequate factual deter - various can didate institutionsin making mination; I will discuss ½ve of them here. the factual, technical, and scienti½c determinations on which sound policy-making First, courts–especially common-law d must rest. courts operating with rules developed in The question of fact-½nding competence the context of a system in which juries among institutions is also relevant to con- were prevalent12–make their factual de - cerns about the shrinking number of trials terminations in accordance with rules of in the United States and about the decreas- evidence that frequently make inadmissi- y ing access to courts as venues for dispute ble that which in other contexts would be resolution (concerns at the center of sever- relevant information.13 For example, al other contributions to this volume). Tri- while the exclusion of hearsay evidence t als serve many purposes,9 most of which ensures the opportunity to confront and t are predicated on the view that litigation in cross-examine opposing witnesses and general, and trials in particular, have large - guards against the risk of overvaluation ly positive epistemic foundations: they get of potentially unreliable evidence, it nev- the facts right. But if the epistemic advan- ertheless excludes a considerable amount tages of courts are smaller than is often of evidence that investigators in other supposed, the concerns about fewer trials contexts would ½nd to be of at least some and limited access need to be seen in a dif- use. Similarly, the rules of evidence typi- f ferent light. And even though trials (espe- cally preclude evidence of character and cially civil trials10) are becoming few er in evidence of past practices from being used number, they are increasingly used as the to establish what someone may have done t venue for making broad determinations of on a particular occasion. This exclusion d social policy,11 especially regulatory policy. protects against the risk of judges and t Thus, the quality of the informational base juries being too heavily swayed by a defen- on which these determinations are made is dant’s incriminating past, but it also fre- a question that cannot be avoided. More - quently results in the exclusion of evi- over, the fact-½nding function of the trial is dence that most people would ½nd at least d to some extent being shifted to other ven- somewhat helpful in determining the mat - l ues and contexts, and the question wheth- ter at hand. Indeed, Jeremy Bentham, one er this is a cause for concern is dependent of history’s great haters, had a particular r on an assessment of just how good courts hatred of the English law of evidence of y and trials are at serving this function. In- his time and argued with considerable sofar as other institutions are being created vitriol that the “arti½cial” exclusion of rel- t to meet the outsized demand for courts and evant evidence produced a far inferior f trials, therefore, it is vital to know wheth er method of factual inquiry than one that these alternative institutions should be de- would admit almost all evidence, which signed to mimic courts or instead to com- the trier of fact would then assign the pensate for what courts may do poorly. weight it deserved, no more and no less.14

143 (3) Summer 2014 107 Our Such a system–now far more common scienti½c researchers attempt to answer Informa - in the civil-law world (which traditionally them (in a laboratory, for example, or with tionally Disabled has made no use of juries) and often re- a controlled clinical trial). Moreover, the Courts ferred to these days as a system of “free concern about the possible defects of an proof”–more closely resembles the meth- adversary trial as a way of establishing fact ods that ordinary people and many nonle- is not solely about scienti½c and technical gal professionals use in their factual inqui- knowledge. When journalists, detectives, ries. Indeed, Bentham referred to it as the or historians set out to discern just what “natural” method. But although the law of happened at some time in the past, they evidence in most common-law countries is do so by attempting to investigate all an - moving toward fewer rules of exclusion, gles, but not by conducting or presiding and although judg es will often ignore or over anything even remotely resembling treat casually many of the rules of evi- an adversary proceeding. Even more im- dence when they are sitting without a jury, portantly, such non-judicial researchers these movements have been slow and far engage in a continuous process that is from complete. As a result, the typical trial vastly different from what typically takes in the common-law world generally and place in a court. A journalist, detective, or the United States in particular (because of historian has the ability to conduct what its continued greater reliance on juries than the great scholar of administrative law elsewhere) continues to exclude a large James Landis described as “persistent in - amount of information that historians, vestigation”: the ability to reexamine pre- journalists, detectives, and anyone else try- viously neglected matters as the investi- ing to make a factual determination would gation opens up emerging possibilities and likely consider relevant to their inquiries. new avenues of inquiry.15 By contrast, Second, we can ask whether the typical courts tend to hear all the evidence avail- judicial adversary proceeding is actually able at one time and then make a decision. the best way of evaluating contested fac- Only under exceptional circumstances–as tual questions. Consider, for example, the when a court retains jurisdiction to mon- question whether the regular consumption itor compliance with an environmental or of alcohol is a risk factor for heart disease. (far less commonly these days) desegrega - One way of determining this would be by tion order–can a court do what most other conducting a trial-type adversary hearing, institutions of factual inquiry do as a mat- in which the opposing positions were ad - ter of course.16 vanced by the parties most interested and Third, and closely related to the forego- invested in the outcome–the Temperance ing, is the fact that courts routinely trade League arguing for alcohol’s danger and in secondhand knowledge. At some level the wine and spirits trade association tak- of philosophical sophistication, we might ing the opposite position, for example– say that most of our knowledge is sec- after which one or more people with no ondhand, since what we think of as direct prior exposure to the issue and with no sci - observation involves possibly unreliable enti½c or medical background would de- inferences from what philosophers call cide who had made the stronger case. This “sense data.” Realistically speaking, how- scenario may be hypothetical and simpli - ever, we can consider much that we per- ½ed, but it is hardly an inaccurate portray- ceive with our vision, our hearing, our al of the way in which courts resolve con- smell, and our touch to be, in some impor- tested scienti½c or technical issues drama- tant sense, direct. And thus, by contrast, it tically differently from the way in which is valuable to note that courts in their nor-

108 Dædalus, the Journal ofthe American Academy of Arts & Sciences mal operation do not investigate, observe, ti½ed by what legal philosopher H. L. A. Frederick or experiment. Instead they listen to the ac- Hart labeled the “rule of recognition.”19 Schauer counts of others who have actually done Less obviously, much the same applies the investigating, the observing, and the to the sources of fact in any given case. At experimenting. And by relying so heavily a trial, the fact-½nder, whether jury or –in fact, virtually exclusively–on second- judge, cannot go out and look for what hand knowledge, courts are routinely vul - may appear to be relevant information, nerable to the misperception, misrecollec- but must instead rely on the evidence put tion, misdescription, and downright lying forth by the parties. In theory, each party of those conveying that knowledge. would have the incentive to provide in- Traditionally, secondhand knowledge formation omitted by its adversary, but in was not treated as especially problematic. practice, various other factors are likely to The perceptions and recollections of so- intrude. Issues of time and expense (to say called eyewitnesses–those who had ac- nothing of attorney competence) may keep tually observed or perceived the matters one side or the other from offering what about which they were testifying–were seems to be important information; in ad - presumed to be accurate, and cross-exam- di tion, the parties may have various and ination was thought to be a reliable way of conflicting goals that will cause them to identifying dissemblance and deception. withhold information that is in fact rele- But now that science has exposed the per- vant to the matter at hand. Other factors sistent weaknesses of observation, mem - come into play as well, but the basic prob- ory, and description,17 we have realized lem is clear: the fact-½nder is at the mercy that cross-examination is a far less effective of the parties in ways that less constrained method of exposing error in real life than fact-½nders in science, journalism, police it is on television. We can thus recognize investigation, and history are not. Fur- that a court proceeding in which the thermore, legal fact-½nders are expected ½nders of fact are systematically prohibit- to avoid relying on information that is not ed from using their own (admittedly presented in open court and to avoid using imperfect) investigative faculties to cor- any particular personal expertise they roborate or controvert witnesses’ testimo- may happen to possess, however genuine nies may bring with it countless additional or reliable it may be. At the dawning of the opportunities for factual error (even while English jury system in the Middle Ages, it may also bring the potentially distor- the jury was drawn from the community tion-reducing advantages of disinterest on precisely so that it would base its decision the part of the decision-maker). on what the jurors knew about the parties Closely related to the problem of second - to a controversy and about the matter at hand knowledge is the fourth defect in the hand. Now, however, we select juries sub- way courts engage in fact-determination: stantially for the absence of the familiarity the limited and at times arti½cially con- that was, centuries ago, considered one of strained domain of inquiry. With respect the main reasons for having juries in the to matters of law, the issue is relatively ½rst place. The change has not necessarily familiar. Courts are expected to draw from been for the worse, as matters of fairness a limited domain of legal materials (most provide strong arguments for the disinter - obviously statutes, constitutions, and re- ested and fact-ignorant jury, but one price ported cases)18 and are commonly under - of this change has been the unavailability stood to have behaved inappropriately if to the decision-maker of information that they draw from other sources not iden- might otherwise be helpful.

143 (3) Summer 2014 109 Our This problem exists at all trials, but it is Brown v. Board of Education to establish the Informa - exacerbated at the appellate level; for not detrimental educational effects of segrega- tionally Disabled only are appellate judges precluded from ted schools is commonly taken as an ex- Courts relying on most sources of information ample of extrajudicial research on ap peal, they may possess in their personal capac- the studies on which the Court relied had ity, but they are expected, at least tradi- in fact been introduced as evidence at the tionally, to limit their consideration to trial stage of the litigation, and thus had information contained in the record they been accompanied by safeguards of notice receive from the court below. Bringing up and the opportunity for cross-examina - facts about the case at hand that are not tion.23 And, ironically, it was Thurgood part of the given record, however true and Marshall, acting as lead counsel for the relevant those facts may be, is considered naacp on behalf of the various parties one of the cardinal errors of appellate ad - challenging the segregation of schools, vocacy. Although judges are permitted to who had objected to the introduction of depart from the record in their search for new facts on appeal. When John W. Davis, what are called legislative (as opposed to representing the various segregation- adjudicative) facts–facts about the world defending states and their boards of edu- rather than about the particular case at cation, made reference in his briefs and hand–even these inquiries are suspect in oral argument before the Supreme Court when they range too far beyond the uncon - to various prominent individuals who had troverted facts that can be the subject of warned against the dangers of too-rapid judicial notice. So although Judge Richard school desegregation, it was Marshall who Posner proudly acknowledges that he uses objected. In an especially memorable col- Internet resources to inform him about loquy with Justice Frankfurter, Marshall issues of scienti½c and technical fact that insisted that factual information should be he believes will help him understand the presented only at trial, where it could be matter at hand, he admits that this prac- subject to cross-examination.24 tice has subjected him to criticism.20 And Although Justice Breyer has been at the when Justice Stephen Breyer, who does forefront of the practice of going beyond much the same thing with considerable the record, briefs, and oral argument to frequency,21 cited in a dissenting opinion engage in what he sees as relevant and a large number of social science studies necessary factual research, his concerns on the question whether using violent about the limited fact-½nding abilities of video games affected minors’ proclivities courts in general (and appellate courts in toward actual and not simulated violence, particular) are actually broader.25 Worried Justice Scalia in his majority opinion chas- that courts are increasingly being forced tised Justice Breyer for relying on sources to confront issues of scienti½c and tech- that were nowhere to be found in the re - nical knowledge about which the typical cord of the case.22 judge is somewhere between ill-informed Justice Breyer’s frequent willingness to and simply ignorant, Justice Breyer has engage in his own independent factual re - offered a number of suggestions for ways search stands in contrast to the traditional in which judicial procedures might be view that judges should rely only on those modi½ed to ameliorate this information- facts–whether adjudicative or legislative al de½cit. He has, for example, encouraged –that all parties have had the oppor tunity a more extensive use of court-appointed to address. Indeed, although the Su preme expert witnesses than is now the rarely Court’s use of psychological studies in employed (but of½cially authorized) prac-

110 Dædalus, the Journal ofthe American Academy of Arts & Sciences tice, and he has suggested that it should milar to the particular lawnmower acci- Frederick be easier than it now is for appellate pro- dent involved in the case before them. Yet Schauer ceedings to be suspended in order to allow because of the various incentives that lead for additional development of scienti½c, some cases to be brought and others not, technical, and factual matters whose im- and that lead some decisions to be appeal- portance has been revealed only in the ed and others not,27 there is much reason course of the proceedings. to believe that a particular case coming Fifth and ½nally, consider the factual and before a law-making appellate court will informational dimensions of courts and lit - not be representative of the larger ½eld to igation when they serve as institutions of which the court’s judgment will apply in policy-making. Of course, courts do make the future.28 Just as one could not accu- law and policy. Although we expect our ju- rately assess human health by talking only dicial nominees to deny this in their con½r- to forensic pathologists, courts cannot ob - mation hearings, they and most of the rest tain an accurate image of the events to of us know that in a common-law system which their policies will apply if they focus judicial law-making and policy-making too much on the potentially pathological are inevitable, although plainly there are case before them–a focus that it may be debates about their desirability and the de- hard for even self-aware judges to avoid.29 gree of their proliferation. Still, insofar as courts do make policy about such salient Courts thus appear to be informationally issues as products liability, af½r ma tive ac - disabled in at least these ½ve different tion, environ mental harm, and insider ways. The law of evidence excludes not trading, among many others, it is appropri- only irrelevant facts, but many relevant ate to ask about the processes that courts ones that would otherwise be important; use to obtain the information they the adversary system bars the fact-½nder employ in mak ing these decisions. More from engaging in “persistent investiga- particularly, policies are by de½nition ap- tion” or initiating inquiries, leaving fact- plicable to a wide range of activities en- ½nding at the mercy of the variable talents gaged in by an even wider range of actors. and incentives of the competing parties; Courts, however, establish these policies in the reliance on witnesses produces a sys- the context of particular cases with parti- tem in which actual ½rsthand knowledge cular facts. Yet it is far from clear that the on the part of the fact-½nder is rare; the cases that provide the platform for more rules and traditions of the closed record general policy-making are representative make inquiry into matters outside the lim- of the range of events that the policies will ited domain of accepted materials dif½cult; cover. We know that the psychological phe - and the vagaries of case selection may en - nomenon called the “availability heu ristic” courage judicial policy-making to take will lead people, including judges, to as - place in the context of highly unrepresen - sume that the events immediately in front tative facts and events. Alleviating some of of them are more representative of a larger these disabilities, to the extent that it is category than they in fact are.26 Just as peo- pos sible, is of course no panacea for the ple will assess the likelihood of airplane kinds of epistemic and cognitive failings crashes as greater than it actually is just that plague all decision-making, whether after hearing about a plane crash, so too judicial or otherwise. For example, as the will judges, for example, imagine that the literature on motivated cognition and mo - complete array of lawnmower accidents ti vated reasoning has long demonstrated, to which some policy will apply will be si - decision-makers with outcome preferences

143 (3) Summer 2014 111 Our will often distort their factual understand - and legitimacy, the fact that the courts are Informa - ings and reasoning processes to justify systemically informationally disabled is tionally 30 Disabled their preferred outcomes. Additionally, thus not necessarily or always to be la - Courts psychologists have for many years been ment ed. But often the informational dis- exploring the ways in which human per- abilities of the courts, and the informa- ception may be less reliable than conventional de½cits those disabilities produce, tional wisdom assumes. But these are prob - are not outweighed by the procedural lems with all decision-making, wheth er ben e½ts that a largely closed and highly public or private, judicial or otherwise. The structured approach to factual inquiry has central issue here, however, is whether cer- traditionally been thought to bring. Thus, tain episte mic flaws inhere in the particu- Judge Posner, Justice Breyer, and many lar design of courts and their procedures, or others can be seen as standing at the fore- of court-like decision-making institutions front of a movement that is attempting to and their procedures. The meth od o log ical remedy at least some of the traditional issues I dis cuss here, therefore, are not to informational disabilities of the judi cial be un derstood as the sole imped iments to system.31 It is much too soon to pre dict accu racy in judicial factual deter mination. how far this movement will go, and space Rather, they provide reason to think that does not permit considering the full range courts may be plagued with special infor- of its costs and bene½ts. But if we are to mational disabilities beyond those they consider the role of courts in decision- share with other decision-making institu- making and policy-making, we must take tions and processes. into account the way in which courts Each of the restrictions on the access to (when compared to individuals, insti- and evaluation of information that I have tutions, and other decision-making bod - discussed here has its justi½cations, some ies) operate under procedures and tra di - better than others. And thus because these tions that produce a systematically and informational disabilities often bring ad - predictably information-poor decision- vantages in terms of fairness, transparen cy, making environment.

endnotes 1 See Niklas Luhmann, Law as a Social System, ed. Fatima Kastner and Richard Nobles, trans. Klaus Ziegert (New York: Oxford University Press, 2008); and Niklas Luhmann, A Sociological Theory of Law, trans. Martin Albrow and Elizabeth King-Utz (London: Routledge & Kegan Paul, 1985). 2 As far back as 1607, Lord Chief Justice Sir Edward Coke celebrated the “arti½cial reason and judgment” of the law (Prohibitions del Roy, 12 Co. Rep. 64 [1607], ewhc kb j23, 77 er 1342). See also Edward Coke, The First Part of the Institutes of the Laws of England; or, A Commentary Upon Littleton, ed. Charles Butler (1628; London: E. Brooke, 1809). For sympathetic commentary, see Charles Fried, “The Arti½cial Reason of the Law or: What Lawyers Know,” Texas Law Review 60 (1981): 35–58. And more generally, see Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge, Mass.: Harvard University Press, 2009). 3 See Antonin Scalia, “The Rule of Law as the Law of Rules,” University of Chicago Law Review 56 (1989): 1175–1188. 4 Two very different but equally broad conceptions of the range of permissible judicial inputs are Ronald Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986); and Richard Posner, How Judges Think (Cambridge, Mass.: Harvard University Press, 2008). 5 Miranda v. Arizona, 384 U.S. 436 (1966).

112 Dædalus, the Journal ofthe American Academy of Arts & Sciences 6 On the automobile question, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Frederick Schauer 7 See Linda Greenhouse, “How Do Judges Know What They Know?” Proceedings of the American Philosophical Society 154 (2010): 287. 8 See the various contributions in Litigation versus Regulation, ed. Daniel Kessler (Chicago: Uni- versity of Chicago Press for the National Bureau of Economic Research, 2011). 9 See Judith Resnik, “Bring Back Bentham: ‘Open Courts,’ ‘Terror Trials,’ and Public Sphere(s),” Law & Ethics of Human Rights 5 (2011): 2, which explores the role of courts as forums for public democratic deliberation and contestation (a role that may be less epistemically dependent than the role of courts as resolvers of disputes and makers of public policy). 10 See John H. Langbein, “The Disappearance of Civil Trial in the United States,” Yale Law Journal 122 (2012): 522. 11 The importance of trials is not solely a function of how many of them there are; this is especially apparent once we comprehend the extent to which pervasive policy decisions are in effect made in the context of trials, especially civil trials involving the environment, products liability, and ½nancial regulation. For example, there may have been only a small number of trials dealing with the liability of tobacco companies for tobacco-related health consequences, but those trials and the size of the verdicts they produced profoundly and per- manently changed the face of tobacco policy in the United States. 12 Juries are largely a creature of the common law, and thus of the legal systems of Great Britain and its former colonies, including the United States, Australia, New Zealand, India, Canada (with the exception of Quebec), and signi½cant parts of Africa and the Caribbean. The civil- law world, which includes much of Asia and the Middle East and most countries whose legal systems are derived from those of France, Germany, Spain, Portugal, and the Netherlands, has traditionally not employed the jury, although in some civil-law countries the judges sit with lay assessors when making decisions. It is worth noting that most common-law countries (with the exception of the United States) have eliminated the jury in all but criminal cases, and that some countries with civil-law traditions, including Japan and South Korea, have begun experimenting with a jury system in a limited number of criminal cases. 13 See Frederick Schauer, “On the Supposed Jury-Dependence of Evidence Law,” University of Pennsylvania Law Review 155 (2006): 165–202. 14 Jeremy Bentham, Rationale of Judicial Evidence, ed. John Stuart Mill (London: Hunt & Clarke, 1827). 15 James M. Landis, The Administrative Process (New Haven, Conn.: Yale University Press, 1938), 37–38. 16 See Abram Chayes, “The Role of the Judge in Public Law Litigation,” Harvard Law Review 89 (1976): 1281–1316. 17 Much of the research is collected and described in Elizabeth F. Loftus, James M. Doyle, and Jennifer Dysart, Eyewitness Testimony: Civil and Criminal, 4th ed. (New York: LexisNexis, 2007). 18 Frederick Schauer, “The Limited Domain of the Law,” Virginia Law Review 90 (2004): 1909 –1956. 19 H. L. A. Hart, The Concept of Law, ed. Penelope A. Bulloch, Joseph Raz, and Leslie Green, 3rd ed. (1961; Oxford: Clarendon Press, 2012). 20 Richard A. Posner, “Judicial Opinions and Advocacy in Federal Courts,” Duquesne Law Review 51 (2013): 3–39. 21 See Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2767–2779 (2011) (Breyer, J., dissenting); Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 803–819 (2007) (Breyer, J., dissenting); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 142–143 (1999) (Breyer, J., for the Court); and United States v. Lopez, 514 U.S. 549, 619–623, 631–644 (1995)

143 (3) Summer 2014 113 Our (Breyer, J., dissenting). On Justice Breyer’s commitment to the Enlightenment ideal of using Informa - fact, reason, and scienti½c expertise to make decisions, see Linda Greenhouse, “Supreme tionally Court Preview: The Breyer Project: ‘Why Couldn’t You Work This Thing Out?’” Charleston Disabled Courts Law Review 4 (2009): 37. 22 Brown v. Entertainment Merchants Ass’n, 2729, 2739 n.8 (Scalia, J., for the Court). 23 Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954). 24 Leon Friedman, ed., Argument: The Oral Argument Before the Supreme Court in Brown v. Board of Education of Topeka (New York: Chelsea House, 1969), 63. 25 See General Electric Co. v. Joiner, 522 U.S. 136, 147 (1997) (Breyer, J., concurring); Stephen Breyer, “Closing Address,” Conference on dna and the Criminal Justice System, John F. Kennedy School of Government, Harvard University, November 21, 2000; and Stephen Breyer, “The Interdependence of Science and Law,” Judicature 82 (1998): 24–31. 26 Amos Tversky and Daniel Kahneman, “Availability: A Heuristic for Judging Frequency and Probability,” Cognitive Psychology 5 (1973): 207–232. 27 On the selection effect generally, see George Priest and Benjamin Klein, “The Selection of Disputes for Litigation,” Journal of Legal Studies 13 (1984): 1–56. A good overview of much of the research that the Priest-Klein hypothesis has spawned is Leandra Lederman, “Which Cases Go to Trial: An Empirical Study of Predictors of Failure to Settle,” Case Western Reserve Law Review 49 (1999): 315–362. 28 If we assume that policy-makers and the general public glean some of their understanding of scienti½c and technical issues from the way in which those issues are treated in litigation, the consequences of the unusual way in which courts make those decisions are even more broad-ranging. See Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Cambridge, Mass.: Harvard University Press, 1997). 29 See Frederick Schauer, “Do Cases Make Bad Law?” University of Chicago Law Review 73 (2006): 883–918; and Frederick Schauer and Richard Zeckhauser, “The Trouble with Cases,” in Litiga- tion versus Regulation, ed. Daniel Kessler (Chicago: National Bureau of Economic Research/Uni- versity of Chicago Press, 2011), 45–70. 30 See Ziva Kunda, “The Case for Motivated Reasoning,” Psychological Bulletin 108 (1990): 480; and Shelley E. Taylor and Curtis Hardin, “Motivated Cognition: Phenomena in Search of Theory,” Psychological Inquiry 10 (1999): 75. 31 This movement might be understood to challenge much of the traditional understanding of the nature of law itself, and of the processes it has so traditionally and centrally employed. See Frederick Schauer, “The Decline of ‘The Record’: A Comment on Posner,” Duquesne Law Review 51 (2013): 51–66; and Frederick Schauer and Virginia J. Wise, “Nonlegal Infor- mation and the Delegalization of Law,” Journal of Legal Studies 29 (2000): 495–515.

114 Dædalus, the Journal ofthe American Academy of Arts & Sciences g A Grin without a Cat: The Continuing Decline & Displacement of Trials in American Courts d Marc Galanter & Angela M. Frozena y

Abstract: Over the past half-century, the number of cases entering American federal and state courts has d multiplied. But, largely unobserved by the public, the percentage of those cases that are disposed of by trial has steadily decreased. In recent decades, as the increase in ½lings has leveled off but the percentage of f cases reaching trial has continued to fall, the absolute number of trials has decreased as well. Conducting f trials is a shrinking portion of what judges do. The effects of this turn away from trials on judges, on litigants, and on public perceptions of the legal system remain to be explored. g Courts occupy a prominent place in American life. Common expressions such as having one’s “day in court,” “the truth, the whole truth, and nothing but the truth,” and “the jury’s still out on that” reflect this cultural presence. Americans typically link courts and trials: trials are what happen in courts; courts are the places where trials happen. Television news, the ubiquitous Law and Order, and Judge Judy present an f unending stream of images of trials. Together, the federal and state courts take up tens f of millions of civil and criminal matters each year. Trials have always made up only a fraction of court proceedings. In the course of the last half-century, however, trials have become a much-reduced frac- MARC GALANTER, a Fellow of the tion of these proceedings; and, in turn, the courts American Academy since 1993, is themselves are the site of a shrinking portion of all the John and Rylla Bosshard Profes- trial-like events. During that period, the number of sor Emeritus of Law and South cases brought to the courts by a growing population Asian Studies at the University of increased. But in the last decades of the twentieth cen - Wisconsin, Mad ison. tury, even as court caseloads continued to in crease, ANGELA M. FROZENA is a non- a smaller and smaller portion of those cases led to practicing attorney working in the trials, so that the absolute number of trials be gan to private sector. decline. These trends are found in federal courts and (*See endnotes for complete contributor state courts, in criminal cases and civil cases, and biographies.) they continue to this day.

© 2014 by Marc Galanter & Angela M. Frozena doi:10.1162/DAED_a_00293 115 The For the federal courts, we have data from county sample of the seventy-½ve most Continuing 1962 on that show a long, steady decline populous counties in the United States, the Decline & Displace - in the percentage of cases that reach trial. total number of civil trials fell 52 percent ment of During the past half-century, the number –from 22,451 in 1992 to 10,813 in 2005. Trials in American of civil cases in the federal district courts This mirrors the decline of the absolute Courts rose by a factor of ½ve and settled in the number of civil trials in the federal courts.3 range of 250,000 a year. The percentage of In 2012, across the entire United States, civil cases reaching the trial stage, however, 3,211 civil trials began in the trial level (discontinued its long descent. The number of trict) courts. This number is 44 percent less trials still continued to rise, somewhat than the 5,802 trials in 1962, when the dis- more slowly than the caseload, until the trict courts disposed of about one-½fth as mid-1980s, when they began to decline as many cases as they have disposed of in re - the caseload leveled off. cent years. In other words, the ratio of trials The steady decline depicted in Figure 1 to ½lings in 2012 is only about one-twelfth is a continuation of a much longer decline what it was ½fty years earlier.4 of trials as a portion of terminations in the The count of federal trials displayed in federal courts.1 Both jury trials and bench Figure 3 (as well as in all other federal data trials (that is, those conducted by the judge in this essay) is, in two separate ways, a without a jury) have declined, but the de- very generous one. First, it is based on the cline of bench trials has been steeper. In Administrative Of½ce of the U.S. Courts’ 2012, the number of bench trials was 0.3 very broad de½nition of a trial as “a con- percent of total caseload, which is about tested proceeding before a jury or court one-twentieth of the 6.04 percent of dis- [that is, a judge sitting without a jury] at positions by bench trials in 1962. In 2012, which evidence is introduced.”5 Second, jury trials also reached a new low of 0.73 the “during and after” number includes all percent of total dispositions, marking a cases that reach the trial stage, not just steady decline from 5.49 percent in 1962 and those that complete it. Many cases are set- 2.33 percent in 1985. tled in the course of trial. Figures for the Data from the state courts are less abun- years up to 2002 indicated that nearly one- dant and less readily comparable. The Na- ½fth of cases in which a trial began were tional Center for State Courts assembled resolved during trial.6 data on civil trials in the general jurisdiction courts of twenty-two states from 1976– Only a small fraction of litigation takes 2002.2 During that period of rising case- place in the federal courts. The state courts, loads, the number of jury trials decreased the site of the great bulk of litigation, ex- by 32 percent, and bench trials (which were hibit a pattern of declining civil trials that far more numerous) decreased by 7 per- resembles that seen in the federal courts, cent. Subsequently, the Center assembled but is somewhat different. For example, data for ½fteen states for the period 1976– the steady fall in the absolute number of 2009. These ½gures also show a declining trials begins later in the state courts, in portion of trials, both jury and bench, of the early 1990s rather than the mid-1980s comparable magnitude to that in the fed- (when the fall in the federal courts be- eral courts (see Figure 2). gan). This general trend is con½rmed and elab- A series of studies of the nation’s most orated on by state court data collected by populous counties conducted by the fed- the Bureau of Justice Statistics (bjs) of the eral government’s Bureau of Justice Statis- U.S. Department of Justice. In a forty-½ve- tics illuminates the changing composition

116 Dædalus, the Journal ofthe American Academy of Arts & Sciences Figure 1 Marc Percentage of Civil Terminations During or After Trial, 1962–2012 Galanter & Angela M.

14.0%14% Frozena

12.0%12%

10.0%10%

8.0%8%

6.0%6% Percentage of Terminations of Percentage 4.0%4% Percentage of Terminations of Percentage

2.0%2%

0.0%0% 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 1962 1980 1970 1984 2010 1998 1968 1994 2012 2008 1972 2000 1982 1974 1986 1964 2004 2002 1978 2006 1966 1992 1976 1996 1990 1988 Fiscal Year

Source: Administrative Of½ce of the U.S. Courts, Annual Report of the Director, Table C-4 (1962–2012).

Figure 2 Percentage of Civil Terminations by Trial in U.S. District Courts (1962–2012) and State Trial Courts in 15 States (1976–2009)

Federal Jury Jury Federal Bench Bench Federal Total Total State Jury Jury State Bench Bench State Total Total 8.00%8% 20%

18% 7.00%7%

16% 6.00%6% 14%

5.00%5% 12%

4.00%4% 10%

8% 3.00%3% of State% Bench Trials % of State Bench Trials Bench % of State 6% 2.00%2% 4% % of Federalof % Bench Jury & and Trials State Jury Trials

% of Federal Bench & Jury Trials and State Jury Trials Jury and State Trials % of Federal Bench & Jury 1.00%1% 2%

0.00%0% 0% 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 1962 1980 1984 1970 2010 1998 1968 1994 2012 2008 1972 2000 1982 1974 1986 1964 2004 2002 1978 2006 1966 1992 1976 1996 1990 1988 FiscalFiscal Year Year (for (for Federal Federal Data); Data) Calendar Calendar Year Year (for (for State State Data) Data)

Source: Administrative Of½ce of the U.S. Courts, Annual Report of the Director, Table C-4 (1962–2012); National Center for State Courts (unpublished data).

143 (3) Summer 2014 117 The Figure 3 Continuing Number of Civil Trials by Bench and Jury, U.S. District Courts, 1962–2012 Decline & Displace - ment of Trials in Jury Trials Trials Bench Trials Trials American 14,00014000 Courts

12,00012000

10,00010000

8,0008000

6,0006000 Number of Civil Trials Number of Civil Trials Number of Civil

4,0004000

2,0002000

0 1962 1980 1984 1970 2010 1998 1968 1994 2012 2008 1972 2000 1982 1974 1986 1964 2004 2002 1978 2006 1966 1992 1976 1996 1990 1988 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 Fiscal Year

Source: Administrative Of½ce of the U.S. Courts, Annual Report of the Director, Table C-4 (1962–2012).

of the trial docket.7 As shown in Table 1, the trial docket. The big gainers were auto- the absolute number of civil trials in these mobile torts and medical malpractice, counties decreased 51.8 percent from 1992 which together made up 44 percent of all to 2005. Trials on every subject declined civil trials in 2005, up from 28 percent in over this period, but trials in some kinds 1992. But these “gainer” categories were of cases fell more dramatically than others. still shrinking in absolute terms. There was Premises liability and product liability saw not a single category of civil trials that was declines of 59.7 percent and 65.8 percent more frequent in 2005 than in 1992. Both respectively, while medical malpractice the overall shrinkage and the changing only declined 9.5 percent. In contracts, em - com position of this litigation is displayed ployment cases (9.83 percent) saw signi - in Figure 4. ½cantly less decline than fraud cases (47.04 In the federal courts, the composition of percent), or buyer plaintiff cases (51.19 per - the civil trial docket also underwent sub- cent) and seller plaintiff cases (72.90 per- stantial changes in the course of the last cent). Real property cases saw the greatest half-century (see Figure 5). In 1962, nearly decline, at 77.11 percent. 55 percent of all federal civil trials were tort Over this thirteen-year period, trials de - cases; in 2012, that portion fell to just 19 clined in every category of case, but at dif - percent of civil trials. Over that same time ferent rates, thus changing the makeup of period, civil rights became a signi½cantly

118 Dædalus, the Journal ofthe American Academy of Arts & Sciences Table 1 Marc Number of Trials in State Courts of General Jurisdiction in Sample of Galanter & Seventy-Five Most Populous Counties in Select Years, 1992–2005 Angela M. Frozena Change 1992 1996 2001 2005 (1992–2005) All 22,451 15,638 11,908 10,813 -51.84% Tort 11,660 10,278 7,948 7,038 -39.64% Automobile 4,980 4,994 4,235 3,545 -28.82% Premises Liability 2,648 2,232 1,268 1,067 -59.71% Product Liability 657 421 158 225 -65.75% Medical Malpractice 1,347 1,201 1,156 1,219 -9.50% Contract 9,477 4,850 3,698 3,474 -63.34% Fraud 1,116 668 625 591 -47.04% Seller Plaintiff 4,063 1,637 1,208 1,101 -72.90% Buyer Plaintiff 1,557 832 793 760 -51.19% Employment 468 621 453 422 -9.83% Real Property 1,315 510 262 301 -77.11%

The counties included in the sample changed slightly over the course of the four bjs studies. Source: Thomas H. Cohen and Lynn Langton, “Civil Bench and Jury Trials in State Courts” (U.S. Department of Justice Bureau of Justice Statistics, 2005).

Figure 4 Number of Civil Trials in Courts of General Jurisdiction by Case Type in Sample of Seventy-Five Most Populous Counties in Select Years, 1992–2005

25,00025,000 OtherOther Tort Tort & Contract& Contract

RealReal Property Property

20,00020,000 EmploymentEmployment

BuyerBuyer Plaintiff Plaintiff

15,00015,000 SellerSeller Plaintiff Plaintiff

FraudFraud Number of of Trials Number

Number of Trials Number of 10,00010,000

MedicalMedical Malpractice Malpractice

ProductProduct Liability Liability 5,0005,000

PremisesPremises Liability Liability

00 AutomobileAutomobile 19921992 19961996 20012001 20052005 YearYear

143 (3) Summer 2014 119 The Figure 5 Continuing Makeup of Civil Trials by Major Case Type, U.S. District Courts, 1962–2012 Decline & Displace - ment of 100%100% Trials in AllAll Others Others (Excl(Excl. Local Local American Jurisdiction)Jurisdiction) Courts 90%

IntellectualIntellectual 80%80% PropertyProperty

70% LaborLabor

60%

50% Prisoner Petitions

40%

Civil Rights Rights 30%30%

20% Tort

10%10%

Contract 0% 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 1962 1980 1984 1970 2010 1998 1968 1994 2012 2008 1972 2000 1982 1974 1986 1964 2004 2002 1978 2006 1966 1992 1976 1996 1990 1988 Fiscal Year

Source: Administrative Of½ce of the U.S. Courts, Annual Report of the Director, Table C-4 (1962–2012).

larger share of trials, increasing from a also seen increases in their portions since fraction of 1 percent in 1962 to 32 percent 1962. in 2010. Given the enactment of landmark The three categories that make up rough- civil rights legislation in the 1960s, more ly 60 percent of trials in recent years–torts, litigation in this category in the late 1960s civil rights, and prisoner petitions–are and early 1970s is not unexpected. The suits instituted by individuals complain- growth in the category as a percentage of ing of injury and seeking recovery from in- trials was steep from the late 1960s until surers, corporations, or institutions. The the late 1970s when civil rights began to other 40 percent is largely com posed of make up 19–22 percent of trials. The por- claims by these institutions and corpo - tion increased notably again in the mid- rations against individuals or against one 1990s, within a few years of the passage of another. The composition of the docket the Americans with Disabilities Act (ada). means that trials today are very much con- In 2002 (two years post-ada), civil rights tests between parties of contrasting ex - trials were 20.7 percent of all civil trials; periences and resources. ½ve years later, the portion had increased to 30.5 percent and has not dropped below In the federal courts, we see a dramatic 30 percent since that time.8 Prisoner peti- decline in tort trials, both absolutely and tions and intellectual property cases have as a portion of all trials. In the state courts

120 Dædalus, the Journal ofthe American Academy of Arts & Sciences (represented by the seventy-½ve most pop - In the federal courts, the decline is steep- Marc ulous counties), torts decline moderately est in torts and contracts, which have be - Galanter & Angela M. in absolute terms. But since virtually every- come a smaller portion of all trials. As a re- Frozena thing else fell even more, torts actually be - sult, a growing portion of trials are in civil come a larger portion of trials. Medical rights cases and prisoner petitions, even mal practice has followed a distinctive though these categories, too, are declining path, rising from one of every nine tort tri- in absolute numbers. als to more than one out of every six over The more abundant federal data enable the course of the four bjs surveys. Since us to mark the massive change in the mo - tort cases, although diminished in number, dality of adjudication starting in the mid- are a growing percentage of all trials, med- 1980s. Not only do fewer cases reach the ical malpractice trials now make up almost trial stage, but the portion terminating one of every eight civil trials. Again, these with out any court action whatsoever has shifts should be read against the overall de- shrunk dramatically (“no court action” clines. Malpractice trials have not actually means that cases were ½led and then settled increased; they have decreased slightly or withdrawn without any action or hear- (some 9 percent from 1992 to 2005), while ing by the court). The onset of judicial pro- other tort categories have undergone mas- activity is neatly displayed in Figure 9, as sive declines. dispositions “before pre-trial” (that is, be- The decline is more precipitous in some fore the stipulated pre-trial conference) dis - places than in others. There is no part of place dispositions with “no court action.” the country where the number of trials is In addition to the continuing long-term increasing or has remained steady over the decline in the percentage of cases that reach past quarter century. trial (see Figure 1), we see an absolute de - It is important to understand that these cline that has been proceeding without in - patterns do not reflect trade-offs between terruption for about a quarter-century. Al - trial time for civil and criminal cases. As Fig- though the rates of decline vary from one ure 6 shows, the decline in civil trials can- case type to another, there is no major cat- not be accounted for by a corresponding egory of cases that is exempt. From these rise in criminal trials, which have also been data, we conclude that the decline has be - declining in both state and federal courts. come institutionalized in the practices and In the federal courts, the decline in the expectations of judges, administrators, rate of criminal cases that reach trial be - lawyers, and parties. gins somewhat later than the decline in the This decline is accompanied by an ide- rate of civil trials (see again Figure 1). Jury ology that explains and promotes the ab- trials have been predominant and remain sence of trials to judges, administrators, so. Figure 7 shows that the trial rate in lawyers, clients, and policy-makers. Some criminal cases was much higher than the elements of this ideology are that the role trial rate in civil cases from the late 1960s of judges is to manage and resolve dis- on, but has fallen more rapidly, such that putes; that adjudication is only one–and the two are converging at present. not always the optimal–way to do that; In federal as in state courts, the decline that trials are expensive and wasteful; that of civil trials is quite general and not con- ordinarily disputes are preferably resolved ½ned to cases of any particular type. Since by mutual concessions; that settlement the mid-1980s, the number of civil trials bene½ts parties and the courts themselves; has fallen in every major category (see Fig- and that outsourcing disputes to alterna- ure 8). tive dispute resolution (adr) institutions

143 (3) Summer 2014 121 The Figure 6 Continuing Percentage of Criminal Defendants Terminated by Trial in U.S. District Courts, 1962–2012 Decline &

Displace - BenchBench Trials Trials JuryJury Trials Trials TotalTotal Trials Trials ment of 20.0%20% Trials in American Courts 18.0%18%

16.0%16%

14.0%14%

12.0%12%

10.0%10%

8.0%8%

6.0%6%

4.0%4%

2.0%2%

0.0%0% 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 1974 1984 1962 1964 1978 1994 2012 2008 2000 2004 2002 1980 2006 1992 2010 1998 1968 1976 1996 1972 1982 1986 1990 1988 1966 1970 FiscalFiscal Year

Source: Administrative Of½ce of the U.S. Courts, Annual Report of the Director, Table D-4 (1962–1964, 1966–2012).

Figure 7 Civil and Criminal Trial Rates in U.S. District Courts, 1962–2012

Civil Criminal 20.0%20%

18.0%18%

16.0%16%

14.0%14%

12.0%12%

10.0%10%

8.0%8% Percentage of Terminations of Percentage

Percentage of Terminations of Percentage 6.0%6%

4.0%4%

2.0%2%

0.0%0% 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 1974 1984 1962 1964 1978 1994 2012 2008 2000 2004 2002 1980 2006 1992 2010 1998 1968 1976 1996 1972 1982 1986 1990 1988 1966 1970 FiscalFiscal YearYear

Base civil data are the number of “civil cases terminated,” whereas base criminal data are the number of “criminal defendants disposed of.” Source: Administrative Of½ce of the U.S. Courts, Annual Report of the Director, Table C-4 (1962–2012); and Administrative Of½ce of the U.S. Courts, Annual Report of the Director, Table D-4 (1962–1964, 1966–2012).

122 Dædalus, the Journal ofthe American Academy of Arts & Sciences Figure 8 Marc Percentage of Civil Cases that Reach Trial in Each Major Case Category, Galanter & U.S. District Courts, 1962–2012 Angela M. Frozena

Contract 25.00%25% Contract

Tort 20.00%20%

Civil Rights Rights

15.00%15%

Prisoner Petitions

10.00%10% Labor Percentageof Civil Terminations Percentage of Civil Terminations of Civil Percentage

5.00%5% IP

All Others Others 0.00%0% (Excl(Excl. Local Local Jurisdiction)Jurisdiction 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 1962 1980 1984 1970 2010 1998 1968 1994 2012 2008 1972 2000 1982 1974 1986 1964 2004 2002 1978 2006 1966 1992 1976 1996 1990 1988 FiscalFiscal Year Year

Source: Administrative Of½ce of the U.S. Courts, Annual Report of the Director, Table C-4 (1962–2012).

Figure 9 Percentage of Cases Terminated at Each Stage, U.S. District Courts, 1962–2012

100%100%

During/AfterDuring/ After 90%90% TrialTrial

80%80%

70%70% During/AfterDuring/ After Pre-TrialPre-Trial 60%60%

50%50%

40%40% BeforeBefore Pre- Pre- TrialTrial 30%30%

20%20%

No Court 10%10% No Court ActionAction

0%0% 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 1984 1994 1996 1972 1986 1974 1962 1964 2004 2002 1988 1992 1998 1978 2012 1976 2008 2000 1982 1980 1990 1966 2006 1970 1968 2010

Source: Administrative Of½ce of the U.S. Courts, Annual Report of the Director, Table C-4 (1962–2012).

143 (3) Summer 2014 123 The bene½ts courts without detriment to par- age district judge in recent years would be Continuing ties. The trial-avoidance justi½ed by this approximately eight. A similar reduction Decline & Displace - wisdom ½ts the interests of judges in keep- of trial participation is occurring with ment of ing abreast of dockets and the in terests of many state judges. A recent study traces Trials in American lawyers–both corporate lawyers who wish the number of civil jury trials per sitting Courts to minimize the risk of loss that might dis- judge in Massachusetts at ½ve-year inter- credit them with clients, and plain tiffs’ law - vals from 1925 to 2000.12 That study ½nds yers who seek to avoid the pro-defendant that jury trials were 11.19 percent of civil tilt of the appellate process. 9 ½lings in 1925, but 2.65 percent in 2000. This shift in practice and culture means Verdicts per Massachusetts Superior Court that the decline becomes self-perpetuating. justice fell from ninety-four in 1925 to seven There are fewer lawyers with extensive tri - in 2000. The number of sitting Massachu- al experience and new lawyers have fewer setts state court judges rose from thirty- opportunities to gain such experience. As two to eighty-two, while the number of tri- lawyers ascend into decision-making po - als fell from 3,022 to 571. sitions having less trial experience, the dis- comfort and risk of trials looms larger in While the number of trials shrinks, the their decisions. Judges, too, accumulate less American legal system as a whole contin- trial experience and, in many cases, have ues to grow larger in many dimensions. less of an appetite for trials. There are more lawyers, more laws and Figure 10 depicts the rate of trial activity reg ulations, more enforcement activity, by federal judges, which fell from about and more expenditure on law. These di - for ty trials annually in the era before the mensions of legality have more than “kept arrival of “managerial judging”–with its up” with the growth of the U.S. economy heavy investment of judicial effort in the and population, but the trial has not: there early stages of cases10–to about ten cases are fewer trials per capita and per unit of annually for the past decade. Figure 10 gdp. Each of these measures began to de- overstates the number of cases tried by cline in the 1980s, when the absolute num- “active” (non-retired) district court judg - ber of trials began to fall. es, because “retired” senior judges conduct The data present a puzzle. The trial is many of the trials in these courts. Indeed, shrinking institutionally at a time when we know that hundreds of senior district law and legal institutions play a larger role judges do a great deal of the work in the in public consciousness, not least in the federal courts: “senior status” district form of news coverage and ½ctional de- judges conducted an average of 18.1 per- pictions of trials in television, movies, and cent of all trials during the 1990s. During books. Legends about increased litigious- the 2000s, the average portion rose to ness, a “litigation explosion,” irrational ju- 19.9 percent of all trials, with a sharp in- ries, and monster awards gained wide cur - crease in 2008 and 2009, when they con- rency in the years surrounding the decline ducted 25.1 percent and 26.0 percent of all in the number of jury trials.13 trials.11 So in calculating the actual trial The combination of media attention to ac tivity of sitting federal judges in recent trials with folklore about litigation seems years, we must reduce the number of trials to have concealed the shrinking number by roughly one-½fth to one-quarter to ac- of trials from the wider public. The public count for these active “senior status” perception of legal institutions is increas- judges. Thus, the total number of trials, ingly through the media rather than civil and criminal, conducted by the aver- through personal experience. The popula-

124 Dædalus, the Journal ofthe American Academy of Arts & Sciences Figure 10 Marc Number of Trials, Civil and Criminal, per Sitting Judge, U.S. District Courts, 1962–2012 Galanter & Angela M. Frozena

Criminal Trials Trials Civil Trials Trials 50.0050

45.0045

40.0040

35.0035

30.0030

25.0025

20.0020 Trials per SittingTrials per Judge Trials per Sitting Judge Trials

15.0015

10.0010

5.005

0.000 1974 1984 1962 1964 1978 1994 2012 2008 2000 2004 2002 1980 2006 1992 2010 1998 1968 1976 1996 1972 1982 1986 1990 1988 1966 1970 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 Fiscal YearYear

Source: Administrative Of½ce of the U.S. Courts, Annual Report of the Director, Table C-4 (1962–2012); Adminis - trative Of½ce of the U.S. Courts, Annual Report of the Director, Table D-4 (1962–1964, 1966–2012); and Adminis- trative Of½ce of the U.S. Courts, Annual Report of the Director, Article III Judgeship Tables (1962–2012).

tion of trials in the media, reportorial and more terminations than trials). This broad ½ctional, has not tracked the implosion of discretionary power may be further en - real-life courtroom trials. Exposure to me- larged by recent Supreme Court decisions, dia trials–overwhelmingly criminal rather empowering judges to reject cases at an than civil–may have actually increased. early stage if they determine that the Thus, cultural expectations of de½nitive claims pleaded are not “plausible.”14 adjudication are reinforced at the same In a setting in which trust in government time that its presence in real life shrinks. is low, courts have managed to deflect most With juries present less frequently and of the anti-government sentiment. As with the intensi½ed management of cases, judges’ work shifts away from adjudication judges’ range of decision and discretion toward administration and case manage- has broadened. Their role as gatekeepers is ment, it remains to be seen how this will enlarged, especially (in the federal courts, affect public regard for them. To be per- at least) by the elaboration of summary ceived as just another part of the govern- judgment (which now accounts for far ment, instrumentally pursuing policies and

143 (3) Summer 2014 125 The dealing in compromise and tradeoffs, may trials are for the most part more specialized Continuing jeopardize the aura that the courts have than the generalist judges in the courts. Decline & Displace - so far maintained. Public participation–as jurors, spectators, ment of We don’t know to what extent that aura and consumers of media accounts–is Trials in American is generated by the trial as an institution. elim inated. Many of the cases in these non- Courts The trial, unlike dismissals and negotiated court forums involve contests between in- settlements, is a site of deep accountability dividuals and corporate or government en- in which the leeways and reciprocities pres- tities. And in many instances, the forum is ent in most social settings are unavailable. explicitly or implicitly sponsored or man- It is an unanswered empirical question how aged by that entity. The quality of factual much Americans regard judicial proceed- presentation and legal argument in these ings, especially trials, as fundamentally dif- forums remains unstudied and no doubt ferent from politics and administration. varies in quality. Do they see trials in courts as differing in Curiously, there are virtually no depic- quality and authoritativeness from pro- tions of these trial-like occasions in set- ceedings in administrative tribunals or in tings other than courts (with the singular arbitration? exception of court martials). All these pro- The occurrence of trials in courts is in - ceedings before administrators, tribunals, creasingly rare and exceptional, but many and arbitrators are culturally invisible: they trial-like things happen in forums that re - are not the subject of dramas, movies, semble courts (but are not quite). Herbert jokes, stories, or news accounts. They give Kritzer documents the widespread occur - rise to no shared public knowledge. The rence of trial-like events in a variety of gov - media portrayal of courts–mostly but not ernmental settings outside the courts.15 exclusively criminal courts–reflects or Lauren Edelman and Mark Suchman de - generates expectations of solemnity, thor- scribe the rise of trial-like proceedings oughness, impartiality, and fairness. It is within organizations.16 And, with the en- unknown whether administrative courts thusiastic encouragement of the Supreme and arbitrators are associated with com- Court, there has been an increase in arbi- parable expectations. tration, especially claims against corpora- If courts are not conducting trials, what tions, channeled by mandatory arbitration are they doing? With ever more elaborate clauses in consumer and other boilerplate rules and procedures, they preside over a contracts.17 These developments invite us movement toward trial that provides the to reconceptualize the decline of trials in frame for bargaining or summary dispo- the courts not as the disappearance of trial- sition. Even if it doesn’t occur frequently, like proceedings, but as their displacement the trial is a ghostly presence. It is present or migration to a variety of other locations. not as the culmination of the proceedings In many of these settings, the proceed- but as a doomsday machine–a demanding ings are more perfunctory–with lower in - and risky thing, unwelcome to all the play- vestments in evidence-gathering, lawyer- ers (including the judge), that will occur ing, and deliberation. In short, courts and if the matter is not resolved by settlement trials are parting ways. Courts are less fo - or dismissal. On the criminal side, the risk- cused on trials, and trial-like proceedings iness of trial is ampli½ed by the tendency are far more numerous in settings other of many judges to impose heavier penal- than courts, such as administrative agen- ties on defendants who reject offered plea cies, arbitration tribunals, and forums bargains and insist on trial–the so-called within organizations. The judges in these “trial penalty.”18 Judicial aversion to trial

126 Dædalus, the Journal ofthe American Academy of Arts & Sciences may be another product of the intensi½ed inevitably fated to extinction. The chal- Marc concern about dockets and judges’ quan- lenge is to imagine what might bring about Galanter & Angela M. titative output. It may also be the case that a resurgence of trials. Our guess is that it Frozena as judges preside over fewer trials, each ad- would take a major impact from out side ditional trial seems a weightier addition. the system to initiate a turnaround. In the The continuing steady decline of the meantime, we may get no better guidance number of court trials is reminiscent of than from a further exchange between the famous disappearance of the Cheshire Alice and the Cat: Cat in Alice in Wonderland: “Would you tell me, please, which way I [A]nd this time it vanished quite slowly, ought to go from here?” beginning with the end of the tail, and end- “That depends a good deal on where you ing with the grin, which remained some time want to get to,” said the Cat. after the rest of it had gone. “I don’t much care where–” said Alice. ‘Well! I’ve often seen a cat without a grin,’ thought Alice; ‘but a grin without a cat! It’s “Then it doesn’t matter which way you go,” the most curious thing I ever saw in all my said the Cat. life!’19 “–so long as I get somewhere,” Alice ad - Perhaps the abundance of trials in the ded as an explanation. media is the lagging grin of the trial cat. “Oh, you’re sure to do that,” said the Cat, The question is whether trial in court is “if you only walk long enough.”

endnotes * Contributor Biographies: MARC GALANTER, a Fellow of the American Academy since 2003, is the John and Rylla Bosshard Professor Emeritus of Law and South Asian Studies at the Uni- versity of Wisconsin, Madison. His many publications include Competing Equalities: Law and the Backward Classes in India (1991), Tournament of Lawyers: The Growth and Transformation of the Big Law Firm (with Thomas M. Palay, 1994), and Lowering the Bar: Lawyer Jokes and Legal Culture (2005). ANGELA M. FROZENA is a non-practicing attorney working in the private sector. She received her Juris Doctor from the University of Wisconsin Law School, her Master of Business Administration from the University of Wisconsin-Whitewater, and an Honors Bachelor of Science in Applied Mathematical Economics from Marquette University. 1 Marc Galanter, “The Hundred-Year Decline of Trials and the Thirty Years War,” Stanford Law Review 57 (2005): 1257–1259. 2 Brian J. Ostrom, Shauna Strickland, and Paula Hannaford, “Examining Trial Trends in State Courts: 1976–2002,” Journal of Empirical Legal Studies 1 (2004): 755. 3 Adjustments have been made to the 2007 and 2008 data to account for a large number of mis- reported cases related to oil re½nery explosions in the Middle District of Louisiana. 4 Because it is the year for which we are able to obtain the earliest comparable data, 1962 is the baseline. 5 Administrative Of½ce of the U.S. Courts, Form JS-10. 6 Marc Galanter, “The Vanishing Trial,” Journal of Empirical Legal Studies 1 (2004): 459, 462, ½gure 3.

143 (3) Summer 2014 127 The 7 Thomas H. Cohen and Lynn Langton, “Civil Bench and Jury Trials in State Courts” (U.S. Continuing Department of Justice Bureau of Justice Statistics, 2005), http://bjs.ojp.usdoj.gov/index.cfm Decline & ?ty=pbdetail&iid=554. Displace - ment of 8 Unfortunately, the C-4 Table does not provide much detail as to the type of civil rights cases Trials in terminated. In 1982, the civil rights category was divided into two sub-categories: “Civil Rights, American Employment” and “Civil Rights, Other.” Additional breakdown was not provided until 2008, Courts when the “ada, Employment” and “ada, Other” subcategories were added. 9 Kevin M. Clermont and Theodore Eisenberg, “Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments,” University of Illinois Law Review 2002 (2002): 947; and Theodore Eisenberg, “Appeal Rates and Outcomes in Tried and Nontried Cases: Further Exploration of Anti-Plaintiff Appellate Outcomes,” Journal of Empirical Legal Studies 1 (2004): 659. 10 Judith Resnik, “Managerial Judges,” Harvard Law Review 96 (1982): 374–448. 11 Steven B. Burbank, S. Jay Plager, and Gregory Ablavsky, “Leaving the Bench, 1970–2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences,” University of Pennsylvania Law Review 161 (2012): 1. 12 Peter L. Murray, “The Disappearing Massachusetts Civil Jury Trial,” Massachusetts Law Review 89 (2) (2004): 51. 13 Marc Galanter, “An Oil Strike in Hell: Contemporary Legends about the Civil Justice System,” Arizona Law Review 40 (1998): 717–752; and Marc Galanter, “The Turn Against Law: The Recoil Against Expanding Accountability,” Texas Law Review 81 (2002): 285–304. 14 Bell Atlantic Corp. v. Twombley, 125 S. Ct. 1955 (2007); and Ashcroft v. Iqbal, 125 S. Ct. 1939 (2009). 15 Herbert M. Kritzer, “The Trials and Tribulations of Counting ‘Trials,’” DePaul Law Review 62 (2) (2013): 415–441. See also Judith Resnik, “Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts,” Journal of Empirical Legal Studies 1 (3) (2004): 783–841. 16 Lauren B. Edelman and Mark C. Suchman, “When the ‘Haves’ Hold Court: Speculations on the Organizational Internalization of Law,” Law & Society Review 33 (4) (1999): 941–991. 17 Shauhin A. Talesh, “The Privatization of Public Legal Rights: How Manufacturers Construct the Meaning of Consumer Law,” Law & Society Review 44 (3) (2009): 527–561. 18 Ronald F. Wright, “Trial Distortion and the End of Innocence in Federal Criminal Justice,” University of Pennsylvania Law Review 154 (2005): 79–156; and Richard A. Oppel, Jr., “Sentencing Shift Gives New Leverage to Prosecutors,” The New York Times, September 25, 2011. 19 Lewis Carroll, Alice in Wonderland, chap. 6.

128 Dædalus, the Journal ofthe American Academy of Arts & Sciences The Courts in American Public Culture

Susan S. Silbey

Abstract: In American public imagination, courts are powerful but also impotent. They are guardians of citizens’ rights but also agents of corporate wealth; simultaneously the least dangerous branch and the ultimate arbiters of fairness and justice. After recounting the social science literature on the mixed recep- tion of courts in American public culture, this essay explains how the contradictory embrace of courts and law by Americans is not a weakness or flaw, nor a mark of confusion or naïveté. Rather, Americans’ paradoxical interpretations of courts and judges sustain rather than undermine our legal institutions. These opposing accounts are a source of institutional durability and power because they combine the historical and widespread aspirations for the rule of law with a pragmatic recognition of the limits of institutional practice; these sundry accounts balance an appreciation for the discipline of legal reasoning with desires for responsive, humane judgment.

What is the place of courts in American public culture? History provides us with two dominant–and contradictory–claims. First, we have Alexander Hamilton’s famous defense of the Supreme Court’s constitutional authority in Federalist No. 78. Because SUSAN S. SILBEY is the Leon and Anne Goldberg Professor of Hu - courts had power over neither purse (as does Con- manities, Anthropology, and Soci- gress) nor sword (as does the President), he assumed ology and Professor of Behavioral the court would be the weakest of the three branches and Policy Sciences at the Sloan in the new republic. Possessing “neither force nor School of Management at the Mas- will,” the judicial branch, according to Hamilton, sachusetts Institute of Technology. “will always be the least dangerous to the political She is the author of The Common rights of the Constitution because it will be least in a Place of Law: Stories from Everyday capacity to annoy or injure them.” On the other hand, Life (with Patricia Ewick, 1998). Her recent publications include “J. forty years later, Alexis de Tocque ville provided us Locke, op. cit.: Invocations of Law with an opposing, though equally famous claim: that on Snowy Streets,” in Journal of Supreme Court Justices are “all-powerful guardians” Comparative Law (2010); “The Soci- whose authority is both “enormous”and essential ological Citizen: Pragmatic and for holding the union together and maintaining the Relational Regulation in Law and federal government’s supremacy. Rather than pos- Organizations,” in Regulation & sessing the least capacity of the three branches of Governance (2011); and “Organiza- tional Challenges to Regulatory government to threaten the constitutional balance Enforcement and Compliance,” in of power, the Supreme Court is in some ways the Annals of the American Academy of most powerful: “the Constitution would be a dead Political and Social Science (2013). letter. . . without the justices’ cooperation.” The jus-

© 2014 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00295 140 tices’ power is so great, de Tocqueville ar- ile. For example, the abundant empirical Susan S. gued, that if “the Supreme Court is ever evidence that courts are not always fair or Silbey composed of imprudent men or bad citi- impartial–that O. J. Simpson can get a bet- zens, the Union may be plunged into anar- ter defense than Jane Q. Citizen, or that chy or Civil War.”1 If Hamilton expected giant Microsoft can create a more se cure the Court’s power to be limited by its mini- market position than upstart Netscape– mal resources, de Tocqueville expected a would only highlight the courts’ failure to more direct popular check on the Court’s live up to these idealized aspirations, and power. In the ½nal analysis, he wrote, the support for the courts and law could easily Court “is clothed in the authority of public evaporate. opinion.” But what is the public’s opinion But idealized promises are not the only of the courts and law more generally? story of law that circulates in popular cul- The relationship between the authority ture. Americans recognize and acknowl- and legitimacy of courts in an aspirational- edge the practical exigencies of institution- ly democratic republic has occupied phil- alized legal processes. They know that osophers, legal scholars, and social scien- some judges do not read all the documents, tists for a very long while, not only during that some lawyers are not well prepared the founding and early years of the U.S. or fail to show up in court, and that the Constitution. In order to help illuminate “haves” often come out ahead.4 This cyn- this relationship, sociologist Patricia Ewick ic ism can actually inoculate Americans and I conducted extensive research on the against disillusionment from encounters place of law in the everyday life of Ameri- with the real world of the law that might cans for nearly a decade during the 1990s. otherwise delegitimize it in their minds. We gathered stories from over four hun- The Janus-faced understanding of law in dred people, and in so doing found a vari- American culture–as both an ideal and an ety of commonly circulating, yet inconsis- imperfect reality–ensures that delegitim- tent conceptions of law and courts.2 In the izing and potentially negative encounters American public imagination, courts are with the law do not diminish Americans’ pow erful but also impotent. They are belief in courts as guardians of the public guardians of citizens’ rights but also agents good. The articulated cynicism about the of corporate wealth; simultaneously the justness of judges and the fairness of courts least dangerous branch and the ultimate is counterbalanced by a good measure of arbiters of fairness and justice. To Ameri- con½dence in the ability of courts and jud- cans, “all judges are political–except when ges to provide principled and responsive they are not.”3 How can this be? And do decisions in the majority of cases. In short, these contradictory understandings sus- people in the United States are willing to tain or undermine the legitimacy of law place their trust in the long-run rule of law. and courts? Notably, most dispute resolution and Our research provided an answer, show- problem-solving activity are pursued in the ing how aspirational ideals and acceptance shadows of law, outside the purview of of- of imperfect realities combine to form a ½ cial legal agents and often without formal resilient public embrace of the rule of law. invocation of legal doctrine or recourse to If courts were understood only in terms courts. Our research showed that when of idealized conceptions, and if all judges con fronted with a problem–which we de - were expected to be always objective, wise, ½ned for respondents in our study as and fully informed, the legitimacy and au- “something that was not as you thought it thority of law would be all the more frag- should be”–most people (31 percent) do

143 (3) Summer 2014 141 The noth ing or solve the problem by them- continues to rely on courts to manage all Courts in selves, an equal number (31 percent) con- sorts of struggles.8 American Public front the other party, and the remaining 28 The principal burden of this essay, then, Culture percent turn to third parties; only half of is to explain how the contradictory em- those individuals (so 14 percent of all re- brace of courts and law by Americans is not spondents) turn to legal actors or agen- a weakness or flaw in the public culture, cies.5 Furthermore, even when people hire nor a mark of confusion or naïveté. Rather, an attorney and ½le suit, very few legal mat - the public’s contradictory interpretations ters–less than 3 percent–actually go to of courts is the foundation of its allegiance trial; of all criminal and civil cases decided, to and con½dence in the rule of law. Oppo- less than 5 percent reach appeal. This is site accounts are a source of in stitutional true for criminal law, regulatory adminis- durability and power because they com- tration, and civil litigation. The cases at tri- bine universal aspirations for the rule of al and appeal represent the minuscule top law (so actively voiced in armed strug gles of a giant pyramid of legal engagements. around the world today) with pragmatic Nonetheless, the empirical evidence sug- recognition of the limits of institutional gests that Americans do turn to law to han - practice; they balance an app reciation for dle many of the routine as well as extraor - the discipline of legal reasoning with desire dinary affairs of their daily lives, and for responsive, humane judgment. First, I American culture is ½lled with signs of law. ask what evidence political scientists and Every package of food, piece of clothing, public opinion experts have collected about and electrical appliance contains a label the public’s interpretations of courts. Sec- warning us about its dangers, instructing ond, I consider how courts have responded us about its uses, and telling us whether we to the jumble of public perceptions with can complain if something goes wrong. public relations campaigns aimed at Every time we park a car, dry-clean cloth- “teaching” citizens about how the judici- ing, or leave an umbrella in a cloakroom, ary “really” functions. I argue that these we are informed about limited liabilities pr efforts are born from anxiety about the for loss. Newspapers, television, novels, threat posed by conflicting public beliefs. plays, magazines, and movies are saturated As understandable as this anxiety may be, with legal images, and these very same I conclude this essay by ex plaining how cultural objects individually display their the public’s paradoxical image of the law claims to copyright. This pervasiveness of actually works to sustain, rather than un- law–its semiotic profusion in visual and dermine, the authority of our courts. Al- discursive culture–is not a new phenome- though the courts’ muscular efforts at pub- non. As de Tocqueville also observed, in lic outreach are laudable in many ways, America, all issues eventually become legal these efforts are rooted in a misunder- matters. As Stephen Yeazell writes in his standing of how judicial legitimacy is contribution to this volume, Americans developed and maintained. have been bringing their problems to court for nearly two hundred years.6 Although Public opinion polls on the judiciary regu- rates of litigation vary from state to state, larly report strong con½dence in the courts, and the premises of cases as well as argu- alongside slightly weaker expressions of ments grounding the disputes have chang- direct approval. The judiciary is viewed ed over time,7 court dockets have remain - more positively and accorded greater re- ed relatively constant, and the public (with spect than other branches of the U.S. gov- its diverse interpretations of legal culture) ernment. Public opinion surveys regularly

142 Dædalus, the Journal ofthe American Academy of Arts & Sciences describe a deep reservoir of goodwill and distinction social scientists make be tween Susan S. diffuse support for the courts, especially approval and system support, as well as the Silbey the U.S. Supreme Court, which is “an es- limitations of using polling data to fully pecially well regarded institution.”9 Time understand public interpretations and ap - and again, “polls show that Americans preciation of courts. That survey, conduct- have more con½dence in the Court than ed in July 2013, suggests an almost all-time either the president or the Congress. . . . low in approval for the Court, with 43 per- Most Americans think that [the Court] is cent of the respondents saying that they exercising about the right amount of po - “approved of the way the Supreme Court is litical power, and more often than not they handling its job,” down 3 percent from believe that the Court is doing a good Sep tember 2012.16 Slightly more Ameri- job.”10 For example, a 2007 study11 found cans (46 percent) disapprove of the Court that 66 percent of Americans trust the Su- than approve, which has happened only preme Court “a great deal” or “a fair one other time since Gallup ½rst asked this amount” to operate in the best interests of question in 2000. Yet even with this de - the American people.12 In addition, the cline, the Court remains far more highly study reported that 60 percent of the re- es teemed than any other branch of the fed - spondents also trusted their state courts eral government (Congress’s aforemen- to operate in the best interests of the Amer- tioned 11 percent approval rating being the ican people.13 In comparison, 32 percent of most glaring example).17 the survey respondents trusted the presi - Some observers interpreted these poll dent to operate in the best interests of the results as an indication of the fragility of people, and more recently, a scant 11 per- public support for the legal system, but cent of the American population voiced ap - these data are better understood as an illus- proval for the way Congress does its job.14 tration of the need to augment polling with If we take a longer view, data collected more and different data if we are to use it between 1973 and 2011 also repeatedly show as an indicator of public culture. The key to the American public’s reliable and strong the results is an important shift in the word- support for the courts. During these forty ing of the question that some commenta- years, 77–100 percent of those polled by tors failed to notice. The July 2013 Gallup Gallup (with a median of 87 percent) re - poll asked respondents, “Do you approve ported some or a great deal of con½dence or disapprove of the way the Supreme in the courts. Surveys conducted by Harris Court is doing its job?” while the forty years Interactive (from 1966 to 2011) and by the of polling prior to 2013 had asked the pub - National Opinion Research Center (norc) lic to indicate “how much con½dence [they at the University of Chicago (from 1973 to had]” in the Court.18 The distinction be- 2011) produced comparably strong positive tween con½dence in the Court and approv - results: 73–90 percent of those surveyed al of the way it is doing its job is fundamen - (with medians of 86 and 85 percent, respec - tal for social scientists. Without further tively) reported some or great con½ dence conversation with respondents, we cannot in the courts. And from 1973 to 2011, no know whether they understood “con½ - more than 26 per cent of those polled by dence” to be a reflection of deeper, longer- Gallup, nbs/Wall Street Journal, ap/Roper, term commitment and “approval” to be and cbs/New York Times ever claimed to more speci½c, time-dependent, and respon- have little or no con½dence in the Court.15 sive to particular cases and decisions. However, a recent poll offers a different Without locating the poll responses story, and in so doing illustrates the crucial within a theoretical framework specifying

143 (3) Summer 2014 143 The the concepts within hypothesized relation- tions, are part of the complex tapestry we Courts in ships, we cannot know what any particu- call the public culture, with positive and American Public lar indicator signi½es, however reliable and negative interpretations addressing imme - Culture repeatable the results may be. According to diate particular actions of government of½ - political scientist David Easton, political cials as well as various forms of identi½ ca - systems rely on both diffuse and speci½c tion with the nation-state. Public opin ion support for their immediate resilience and polls conducted by academic, journalistic, viability, as well as long-term durability. and commercial organizations tap the Speci½c support refers to the populace’s as- range of the public’s interpretations of the sessment, often instrumental or ideolog- courts with varying probes in the wording ically valenced,19 of the actions and perfor- of the questions. It is up to political scien- mances of a particular government or set tists, however, to make sense of the data, of political elites.20 In this canonical fram - debating the signi½cance of different mea- ing, diffuse support names a deep-seated sures while working to substantiate com- set of orientations toward politics and the peting theories of the role of the judiciary operation of the political system that is and of the constitutional order. relatively impervious to speci½c of½ce- holder changes; diffuse support expresses If one set of data supports a generally the public’s tacit commitments to the po - positive valence and makes the 2013 poll litical system as a whole, rather than a par- seem aberrational, ample competing evi- ticular set of of½ceholders or government dence points toward public skepticism and elites. Political scientist Mitchell Seligson critique of courts. Recent judgments, as locates diffuse support along “a continuum well as public opinion polls, have prompt - which runs from allegiance at the positive ed a growing litany of dire predictions end to alienation at the negative end.”21 that the legitimacy of the courts in Amer- Political scientist Jack Citrin and his col- ican society and government are under leagues have described this continuum of attack and seriously threatened. In a 2008 diffuse support as follows: Dædalus essay, communication scholars Kathleen Hall Jamieson and Bruce W. To be politically alienated is to feel a rela- Hardy worried that among the consistent tively enduring sense of estrangement from indicators of diffuse support for the courts, existing political institutions, values and lead - there are disturbing suggestions of longer- ers. At the far end of the continuum, the term hazards that could undermine “pub- politically alienated feel themselves outsid- lic willingness to protect the prerogatives ers, gripped in an alien political order; they of judges and the courts”; further, they would welcome fundamental changes in the argue that public ignorance combined with ongoing regime. By contrast, the politically partisan elections of judges threatens allegiant [supportive] feel themselves an in - courts’ legitimacy. In the same volume of te gral part of the political system; they be - Dædalus, entitled “On Judicial Indepen - long to it psychologically as well as legally. dence,” Massachusetts Chief Justice Mar- Allegiant [supportive] citizens evaluate the garet Marshall describes in greater detail system positively, see it as morally worthy, and believe it has a legitimate claim to their [A] convergence of potent developments. . . loyalty.22 exerting signi½cant pressure on our form of Clearly, then, expressions of support for government: attacks by politicians and oth- the courts, as for any of our political institu - ers on the constitutional role of our courts to be free from political interference, the mas-

144 Dædalus, the Journal ofthe American Academy of Arts & Sciences sive influx of special interest money into ju- cial Center and the National Center for Susan S. di cial selection and retention procedures, State Courts).30 Silbey and the loosening of ethical constraints on But the purported crisis of the courts re - what judicial candidates may and may not lies on a misunderstanding of how public say about cases likely to come before them.24 acceptance of the judiciary is actually developed and sustained in American cul- The peril is real and especially conse- ture. To the extent that the judiciary and quential, Chief Justice Marshall suggests, af½liated organizations misconceive public if we consider that 95 percent of all U.S. culture, their outreach programs, laudable litigation takes place in state courts. In as they are, may nonetheless be equally 2008, 93 million cases were tried in state flawed. First, we need to acknowledge that courts, and in 2005, 28 percent of the Su- claims of courts in crisis are endemic in preme Court’s cases originated at the state American history, with periods of anti- level.25 court sentiment coming and going in gen - Doubtless, judges are concerned–as erational intervals. Legal scholar Charles they should be–with public perceptions of Geyh has described the process whereby their independence and legitimacy. Judges these public image crises occur: further worry that the public is uninform- ed or misinformed, and that public opin- Typically, cycles begin with courts that de- ion is thus based on misperceptions. The cide one or more cases in ways that anger sources are myriad, built right into the politically powerful segments of the public foundation of the judiciary itself. Judge or their elected representatives. Those fac- John M. Walker, Jr., U.S. Appeals Court, tions incite some combination of legislators, Second Circuit, has suggested that con½r - governors, presidents, the media or votes to mation hearings for Supreme Court Justices excor iate allegedly rogue judges and threaten are themselves sources of misinformation them and their courts with a variety of retali - about the judicial role, overemphasizing atory actions that may include impeachment, the judges’ individual discretion while ig- budget cuts, curtailment of subject matter ju- noring the extensive institutional and doc - risdiction, changes in methods of judicial se- trinal constraints that con½ne judges’ role lection, disestablishment of judicial of½ces, performances.26 Circuit judge Joanne F. judicial discipline, court packing, or defeat at Alper agrees that citizens remain “unin- the ballot box. Court defenders then mobi- formed about the role of the judge as an lize to oppose the anti-court crusade.32 impartial arbiter with the responsibility To the extent that these cycles respond to of enforcing the laws.”27 “Caught in the unfavorable decisions, one might reason- middle of a highly politicized and emo- ably claim that the current threats to the tional atmosphere”28 sustained by sensa- courts’ independence and integrity are tionalist media and self-interested politi- self-inflicted wounds33 born of the Su - cians, courts have stepped into the breach preme Court decisions in Bush v. Gore, Cit- to communicate with the public directly izens United v. Federal Election Commission, with both informal and formal public in- and Republican Party of Minnesota v. White, formation campaigns.29 These education which follow three decades of active mobi- efforts on the part of the bench are con- lization against Roe v. Wade.34 With a 5–4 ducted through lobbying organizations decision in Bush v. Gore, the Court ended (such as Justice at Stake) as well as feder- the recount of Florida’s votes in the 2000 al, state, and private entities supporting the Presidential election, giving the election to work of courts (such as the Federal Judi- George W. Bush.35 In this case, the Justices’

143 (3) Summer 2014 145 The doctrinal arguments were at odds with ling the disrupting of traditions of congres- Courts in dominant precedents, previous opinions sional courtesy and increasing polarization American Public of the Justices in the majority, and the actu - of American politics more generally. These Culture al popular vote. In Citizens United, the Court sources include transformations in the expanded the legal ½ction of the corpora- most common forms of communication; tion, transforming it from a device to en- advances in the sciences and technologies courage economic investment while limit- of political participation, including cam- ing investor liability to the sancti½cation of paign polling, ½nancing, mo bilization of citizenship with constitutionally protected single interest groups, gerrymandering, participation in the political system. 36 Al- and professional lobbying; and marked though corporations are ½ctive legal per- shifts in the demographic and class com- sons existing only by virtue of paper agree- position of the nation’s population. We are ments, the Court ruled that these “per- living in a period of profound ideological sons” have the same First Amendment pro - and communicative mobilization. Claims tection of free speech as do human beings; that these institutional changes are under- as such, Congress cannot restrict corporate mining con½dence in courts should be participation in elections through ½nancial tested. contributions, publications, and advertis- In his work Electing Judges: The Surprising ing. The Justices did not say that corpora- Effectsof Campaigning on Judicial Legitimacy, tions could vote, however. Citizens United political scientist James Gibson has under- may have been pre½gured by the Court’s taken to do just that: test predictions of a earlier ruling in Republican Party of Min- constitutional crisis in the making.38 Ex- nesota v. White, where the Justices, in a 5–4 ploring the influence of campaign activi- vote, struck down a provision of the Min- ties on citizens’ perceptions of fairness and nesota judicial code of ethics that prohib- impartiality of judges, Gibson refutes the ited candidates for election to judicial of- predictions that electoral campaigning is ½ce from announ cing their views on po - undermining public support for the courts. tentially controversial issues or matters However, the results once again present a that might come before the courts as a vio- picture of heterogeneous public expecta- lation of the First Amendment’s protection tions.39 For example, for some respond - of free speech.37 In other words, because ents, judicial candidates taking postions the majority of the Court uses an absolutist on policy issues causes little harm to the conception of speech that disregards the legitimacy of courts; likewise with attack signi½cance of different speakers’ onto- ads, so long as the attack is motivated by logical position, capacities, and modes of a po licy disagreement rather than by per- speech, they have made decisions that fer- sonal qualities or identity. Gibson suggests tilize the ground for increasing politiciza- that in the view of approximately 20 per- tion of the judiciary and ½nancial influence cent of the population, the courts are al - in judicial elections. Anxious observers ready just like other political institutions, claim that these recent decisions threaten and thus campaigning, advertising, and to transform judges into ordinary politi- fundraising have little influence on these cians and thus herald the suppression of in- citizens’ assessments of the courts. A larger dependent courts. portion of the population, however, per- From a macro-sociological perspective, ceives courts as insulated–or believes they the contemporary challenges to judicial should be insulated–from electoral politics status derive from cultural and institution- and moneyed interests, as fundamen tal ly al sources no different than those propel- different from other political institutions;

146 Dædalus, the Journal ofthe American Academy of Arts & Sciences thus, blatant electoral activities by judges interested in the silences–the times when Susan S. diminish the legitimacy of the judiciary in law could have been a possible and appro- Silbey the eyes of this group. More inter esting, priate response but was not mentioned–as perhaps, are the particular preferences of we were in the times when law was men- the vast majority of the population. For ex- tioned, appropriately or not. ample, 72.9 percent of those surveyed ex- The situations we asked about were in - pect a good justice to “protect people with- tentionally varied and comprehensive, out power,” over 70 percent say that “judg- intended to create rather than foreclose op- es should follow the law,” 46.5 percent be- portunities for respondents to report di- lieve a good justice should “represent the verse experiences and interpretations. We majority of citizens,” and 43.7 percent say sought their unvarnished and unscript ed that a good justice should “give my ideol- interpretations and did not want to assume ogy a voice.” Once again, the pub lic culture an understanding of the place of law or displays a rich mix of legal and political courts in their lives, but rather discover it views about courts, which therefore rais- as it emerged in the stories they told us. es the larger question of “how a polit icized The list of probes included the sorts of judiciary continues to be accepted as an events for which it is not unusual for peo- author itative legal arbiter.”40 ple to seek a legal remedy (such as vandal- ism, property disputes, and work-related A mericans’ paradoxical stance on law accidents). It also included situations that and courts is the subject of The Common seem less obviously connected to tradi- Place of Law: Stories from Everyday Life, tional legal categories. Although many of which I coauthored with Patricia Ewick the situations we asked about do not al- when, some years ago, we set out to under - ways (or even often) culminate in a legal stand how the law and its agents were case (for example, medical care or curric- understood and interpreted by ordinary ular issues in school), they all are situations American citizens.41 However, unlike in which people can assert a legal right, many of the polls surveying the public entitlement, or status, and, if they so mood about courts with preset multiple- choose, generate cases that appear on the choice answers for standardized probes, dockets of state or federal local courts. we engaged in lengthy conversations with Many people have experienced such situa- ordinary people about the circumstances tions, although most do not treat them as of their everyday lives. Through these con - legal matters.43 If our interviewees claimed versations, we worked to access the rep- to have experienced a problem, we asked resentations and interpretations of law and how they responded to the situation, what courts that circulate spontaneously among actions they took, and which alternatives citizens. To hear the ways in which citizens they considered but did not pursue. We did talked about law (including courts, judges, not ask explicitly about formal legal ac- lawyers, and police), we asked a random tions or agents until the very end of the in - sample of people in one eastern state to tell terview. We waited to see whether, where, us about problems they experienced in and how the law and its agents (such as their lives and what they did about them.42 courts, lawyers, police, and government of- We listened for the mo ments when they ½cials) would emerge in our respondents’ invoked the law and legal categories to accounts. make sense of events, and the moments The interview was speci½cally designed when they pursued other non-legal means to document the symbols, meanings, and of accommodation or redress. We were as associated social practices of American

143 (3) Summer 2014 147 The legal culture by accessing citizens’ inter- some thing to which social events, behav- Courts in pretations of law and legal actors. Rather iors, institutions, or processes can be cau- American Public than collecting public opinions via prefor- sally attributed; it is a context, something Culture mu lated (albeit normalized) scales, the within which [events, behaviors, institu- study treats culture as inseparable from tions, and processes] can be intelligibly– signs, symbols and performances, exchang- that is, thickly–described.”45 ed and circulating meanings and actions. Our 430 respondents described more In the words of political scientist and his- than 5,900 events. From these thousands torian William H. Sewell, our study iso- of stories, we were able to construct three lates “the meaningful aspect of human ac - accounts that encompass the range of cul- tion out of the flow of concrete interactions tural materials with which Americans . . . [by disentangling], for the purpose of experience and talk about law and courts. analysis, the semiotic influences on action Drawing upon different cultural images– from the other sorts of influences–demo- for example, a bureaucracy, a game, and graphic, geographical, biological, techno- pragmatic coping strategies such as “mak- logical, economic, and so on–that they are ing do”–each account describes a familiar necessarily mixed with in any concrete se- way of acting and thinking, and associates quence of behavior.”44 Culture is not only it with the law. The three stories each rep- a system of communicative signals but a resent different normative bases for legal “repertoire” of “strategies of action,” a col- authority, different constraints on legal ac - lection of tools for the performance of so - tion, different sources of legal agency, and cial action. In our understanding of the different locations of law in time and space. place of courts in the public sphere, culture In the ½rst narrative, the law is remote, is never a coherent, logical, or autonomous impartial and objective, something to be system, but is rather a diverse collec tion of invoked for solemn and collective purposes semiotic resources that are deploy ed daily that transcend the messiness and partial- in the performance of action. Therefore, in ity of individual lives. Although it is en - our research, variation in the meaning of acted by legal functionaries, it is often de- symbols and resources and conflict con- scribed as standing apart from the words cerning their use were expected. or deeds of particular persons. Borrowing Although the cultural system of signs from Kafka’s parable, we call this ½rst story may not be as coherent, logical, or autono - before the law. The law is here described as mous as historically posited, this does not a formally ordered, rational, and hierarchi- mean that it lacks systematicity–that is, cal system of rules and procedures oper- networks of referential associations. It is ating in carefully delimited times and pos sible to observe patterns in the signs spaces. Respondents conceived of legality and practices so that we are able to speak as something relatively impervious to indi- of a “culture” or “cultural system” at spec - vidual action, a separate, discontinuous, i½ed scales and levels of social organiza- distinctive yet authoritative sphere. In this tion. (For example, citizens express ap- account the law appears as sacred, in the proval of judges making public statements Durkheimian sense of the word, meaning about policy opinions in states where there that it is set apart from the routines of daily are judicial elections; they express disap- life. People describe the normative grounds proval for judges voicing political opin- for invoking law in terms of general, public ions in states where judges are appointed.) needs and obligations. Thus, as one woman As a system of semiotic resources deployed explained her refusal to take legal action in transactions, “culture is not a power, when injured in an automobile accident, “I

148 Dædalus, the Journal ofthe American Academy of Arts & Sciences learned when I was young, in my family, call the police in response to a neighbor- Susan S. that you handle these things yourself.” She hood conflict, a middle aged mother of two Silbey contrasted this unwillingness to sue when teenage boys living in suburban New Jer- injured to her energy in pursuing a com- sey readily rejected the idea, claiming, “I plaint against a supermarket chain when don’t use my police that way.” On one she tripped on a smashed banana. In the level, her statement seems contradictory, latter incident, others beside herself were expressing both identi½cation (“my po- threatened with injury: “Older folks, chil- lice”) and distance (her refusal to call the dren, anyone could have been badly in - police). Yet when we unpack her meaning, jured.” Because legality is characterized by putting it in the context of other experi- its universal, objective norms, it is con- ences she told us about, it becomes clear strained by both the rules that seek objec- that the two statements are less opposi- tivity in decision-making and those that tional than interdependent. In point of ena ble action through chains of coordi- fact, this woman takes ownership of the nated responsibility at a distance from the police precisely because they do not attend decisions of any particular individual. In to the messiness of everyday neighbor- the words of another respondent, the hood conflicts. courts can “handle the problems of ordi- Many people expressed this lack of con - nary people fairly well.” “Judges are gener- nection between law and ordinary life. For ally honest in dealing with each case,” he these individuals, encountering the law in added; they are predictable. “Courts are ex - the course of their lives–whether it in - pensive,” he continued, “but not so much volved being stopped by a police of½cer, that one would not sue if truly necessary.” being audited by the irs, or serving on a “You see,” he explained, “I was afraid at jury–represented a disruption. Further- one point when I ½rst started going to more, in deciding whether to mobilize the court. I was nervous about it. . . . It was a law, people often thought of it as rupturing new experience, you know, so I was a little normal relationships, routine practices, nervous. Court is always looked upon as and comfortable identities. When asked this force.” But with experience, this social what action he had taken in response to worker-turned-private detective explained what he described as the deterioration of to us, one discovers that “[i]t’s a place you his neighborhood, one man disavowed the go to get justice. It is for you to get justice.” possibility of doing anything out of the Emphasizing a sense of the justice system’s ordinary: “I’m not a person who goes layered hierarchical organization, he added down and pickets or creates a disturbance that courts are at least “a good place to like that. I’m a normal taxpaying person, I start.” work, come home, pay my bills, pay my Not only do these respondents consider taxes, and you know, try to keep a low pro- the law’s agents to be objective, but they ½le.” For people who understand the law in also consider the objectivity of law’s sub- this way, a decision to mobilize or use legal stance–what the law should or should not forms often is preceded by the crucial in - do–when deciding whether to engage it. terpretive move of framing a situation in Citizens police the boundary separating terms of some public, or at least general, set the public world of law from the private of interests. Similarly, a female minister worlds of self-interest and individual ac - and licensed practical nurse living in Cam- tion by disqualifying their lives from the den, New Jersey, explained to us the con- realm of the legal and refusing to invoke ditions under which she would, as she said, the law. When asked whether she would “bother” the police about a neighborhood

143 (3) Summer 2014 149 The conflict: “I might go to the police, but then go to court” suggests that the tendency to Courts in again I might not. If they were destruc- lie is linked to a particular place and time American Public tive or ½ghting, or you know, then I might. where deceit is expected and permitted. Culture I’d call the police . . . if there are gunshots Virtually all of our respondents agreed or something like that, then, ’cause every- that in this game of skill, resources, manip- body’s threatened then.” No ta bly, in this ulation, and deceit, the most crucial re - statement, it was not only the severity of source one can mobilize is a lawyer. No the action (the gunshots) that she gave as matter how competent these respondents a reason for bothering the police, it was are and no matter how much experience the collective nature of the harm it posed. or knowledge they might have of the law, In a second account we call with the law, they acknowledge their amateur status rel- legality is understood to be a game of skill, ative to lawyers. Lawyers represent the resource, and negotiation wherein persons professional players in the game of law. A can seek their own interests in a competi- contractor told us that because he did not tion with others. In this rendering, law ap - hire a lawyer, he was unable to defend him- pears as an arena for strategic interactions, self in criminal court against charges of sometimes engaged playfully and some- illegal dumping, which he vehemently de - times seriously, but always simultaneously nied. At the time of our interview, he ac - alongside and within everyday life. Descri - knowledged that he “should’ve had a law - bing a world of legitimate competition, re- yer,” but at the time of the incident he did spondents are less likely to reference the not think that it was necessary “because I law’s objectivity or power and more likely didn’t feel I was guilty of a crime.” His ini - to refer to the power of the individual to tial belief that lawyers are necessary only successfully deploy and engage the law. for the guilty was undermined by his ex- When articulating this understanding of perience in court. “They had pictures of the judicial system, people were wise to the my truck with everything in it,” but not fact that “the haves come out ahead”; that at the dump. “When this lawyer [the pro- resources, experience, and skill matter in secutor] asked me, ‘Is that your truck?’ I who wins this law game. As one of our re - said ‘Yeah.’ And they said, ‘Okay.’ And they spondents explained with some de½ance, got me. I should never have admitted that “There is no justice. You either win or you that truck was mine. If I had had a lawyer lose. As long as you can accomplish your they would really have no evidence. You objectives, you win. I’m not concerned know, lawyers are much smarter than the about justice.” average person. So they sucked me into it.” Cynicism is expressed in the view that The account of legality as game-playing the law is an arena for pursuing self-inter- is not entirely independent from the no - est, in which deceit and manipulation pre- tion of the objective, disinterested, and vail. Opponents could lie, bluff, or manu- rule-constrained system of the ½rst nar- facture a story, and smart and wily players rative. Rather, the second story emphasizes should be prepared for that. One respon- the room for personal agency and inter- dent stated simply, “I learned you need vention in the system. A third conception, proper representation because people tend however, acknowledges both the ½rst two to tell lies when they go to court.” Impor- accounts of law and denies their entirety as tantly, this statement and others like it are an account of law and courts. In this third not intended as a general assessment of narrative, law is presented as a product of human nature and the propensity to lie. unequal power. Rather than objective and The pointed reference to lying “when they fair, law is understood to be arbitrary and

150 Dædalus, the Journal ofthe American Academy of Arts & Sciences capricious. Unwilling to stand before the con tact with her abusive parents, she real - Susan S. law and without the resources to “play” its ized that to the hospital’s understanding Silbey game, people often experience themselves of its legal obligations, she was a depen dent as up against the law. Here, citizens describe minor. Since she couldn’t change her fam- the law as an arbitrary power against which ily situation in order to conform to hospi- they feel impotent. The courts pretend to tal rules, she went to a different hospital offer justice but are unavailable; judges and changed her age, matter-of-factly tel - promise principled decisions but respond ling them she was eighteen. An elderly His- primarily to the powerful. panic man living in a run-down and dan- People revealed their sense of being up gerous area of Newark told us that his calls against the law, and unable to play by its to the police for help with neighborhood rules. Bess, an elderly black woman, had vandals were repeatedly ignored. Final ly, had dif½culty obtaining medical treatment he decided to change his voice to sound for what turned out to be breast cancer. like that of a woman when calling. When After months of doctor’s appointments he mimicked a woman, he told us, he got and applications she ½nally obtained Social a “quick response.” Security Insurance. Recounting the expe- Recognizing themselves as the “have- rience, she told us, “I know if I had money nots” facing some more legally, economic - or had been familiar, I probably would have ally, or socially endowed opponent, people gotten on it earlier, like the system is now. use what they can to get what they need. That’s what they have to do. If people want Small deceits, omissions, foot-dragging, to get on [ssi], and they know themselves humor, and making scenes are typical that they are sick, they go to this lawyer, forms of resistance for those up against the Shelly Silverberg.. . . People say ‘Well, why law.46 These feints, tricks, and opportunis- don’t you go to a lawyer, Bess? Why don’t tic ploys are rarely illegal. Most often, resis- you go to Shelly Silverberg?’ Bess can’t go, tance of this sort does not so much trans- because Bess don’t have no money.” Thus, gress the rules as evade them. While the being without resources, Bess understood three stories woven through citizens’ ac - that she had little or no choice but to sub- counts can be analytically distinguished mit to the lengthy round of appointments, from each other, they cannot be separated forms, diagnoses, and hearings. in practice, as each constitutes and ena - Finding themselves in such a position of bles the others. powerlessness, people often described to us their attempts at “making do,” using How do these thicker accounts of law, what the situation momentarily and unpre - developed from thousands of stories, dictably makes available– mate rially and relate to the anxieties that drive the judicial discursively–to fashion solutions they PR blitz? At their core, these are not three would not be able to achieve within con- separate narratives of law or courts. They ventionally recognized schemata and re- are a cultural ensemble, circulating signs sources. For example, one respondent re- and symbols that play off each other. To - ported lying about her age to a hospital in gether, the accounts create a durable struc- order to receive emergency room treat- ture of support and allegiance because they ment. Because she was only seventeen at simultaneously provide the pot ential for the time, the ½rst hospital she visited would variation and change as well as consisten- not treat her without her parents’ permis- cy.47 Given the more than ½ve thousand sion. Although she had been living inde- stories collected from more than four hun- pendently for two years, having had no dred people, The Common Place of Law em -

143 (3) Summer 2014 151 The pirically demonstrates the connection be- sistency or cultural homogeneity, we con- Courts in tween individual expressions and inter - clude by celebrating the diversity of Amer i - American Public pretations of the courts and judges and can public culture. It provides a dura ble and Culture the collective, macro institutions of law by powerful commitment to law and courts. revealing the common templates that ap - Although the dual depictions of law and pear in and across the stories. courts as godlike (remote, transcendent, The American public’s commitment to objective, and magisterial) and game-like the rule of law is actually strengthened (rule-bound, self-interested, and resource- by the oppositions that exist within and dependent) seem to challenge one another, among the multiple representations: ideals they are complementary. However, the ju - and practices, normative aspirations and diciaries’ campaigns to purify the public’s grounded understandings of practical ac - assessment of law and courts fail to rec- tion, god and gimmick, sacred and profane. ognize the leavening that realism provides For instance, challenges to courts’ legiti- for idealism, and they misconceive the macy for being only a political game can be constitution of the public culture, ulti- rebutted by invoking their universal, tran - mately weakening rather than strength- scendent purposes. Similarly, criticisms of ening the public’s embrace of and commit- judges for being remote, isolated, and irrel- ment to the law and courts. Each thread of evant to ordinary people and mundane the complex tapestry of public assessment matters–occupying a rari½ed realm of ab- emphasizes different normative values and stract reasoning–can be countered by ref- provides a different account of the social erences to the accessibility of lawyers and organization of law; together they cover game-like availability of legal processes. the range of conventional experiences of Simply stated, support for courts and the legality. Any particular experience can ½nd rule of law is much weaker and more vul- expression within the heterogeneity of the nerable where it is more homogeneously or whole. The law and its agents are rendered singularly conceived. If the public’s inter- neither irrelevant to everyday life (by vir- pretations were ideologically consistent, tue of being remote) nor subsumed by it trimmed of their complexities and contra- (because of their familiarity). Rather, the dictions, support would be quite fra gile. If courts become a common, inescapable, the public were to see the court as solely and reliable feature of American life. god or entirely gimmick, this conception would eventually self-destruct in the face of the plurality and diversity of actu ally ex perienced phenomena. If the only thing people knew about the law, whether through experience or commonly circulating stories, was its profane face of crafty lawyers and outrageous tort cases, it would be dif½cult to sustain the support necessary for legal authority.48 Conversely, a law un - leavened by familiarity and the cynicism it breeds would in time become irrelevant. Thus, we come full circle to our original alternative accounts of the role of courts in American society. Rather than eschewing one or the other, seeking ideological con-

152 Dædalus, the Journal ofthe American Academy of Arts & Sciences endnotes Susan S. Silbey Author’s Note: This essay has bene½ted from the insightful comments of the editors, Linda Greenhouse and Judith Resnik, as well as from generous readings and critique by Tom Burke, Keith Bybee, and Austin Sarat. Of course, any mistakes are entirely my own. 1 His prediction was con½rmed in 1860, and the Supreme Court’s decision in Dred Scott v. Sandford is often cited as an important provocation. Alexis de Toqueville, Democracy in America, vol. 1, chap. VIII: The Federal Constitution, part IV. 2 Patricia Ewick and Susan S. Silbey, The Common Place of Law: Stories From Everyday Life (Chi- cago: University of Chicago Press, 1998). 3 Keith J. Bybee, All Judges Are Political–Except When They Are Not (Stanford, Calif.: Stanford University Press, 2010). 4 Patricia Ewick and Susan S. Silbey, “Common Knowledge and Ideological Critique: The Im - portance of Knowing Why the ‘Haves’ Come Out Ahead,” Law & Society Review 33 (4) (2003): 1025–1042. See also Herbert M. Kritzer and Susan S. Silbey, eds., In Litigation: Do the ‘Haves’ Still Come Out Ahead? (Stanford, Calif.: Stanford University Press, 2003). 5 Susan S. Silbey, Patricia Ewick, and Elizabeth Schuster, “Differential Use of Courts by Minor- ity and Non-Minority Populations in New Jersey,” New Jersey Supreme Court Task Force on Minority Concerns (Administrative Of½ce of the Courts of New Jersey, 1993). In our survey, 430 residents of New Jersey described to us 5,803 incidents that could have become matters of formal legal complaint. Only 14 percent of the reported problems led to legal action (calling police, contacting a lawyer, or complaining to a government agency). Even fewer led to litigation beyond the inquiry stage. 6 See Stephen C. Yeazell’s essay in this volume. 7 See, for example, Lawrence Friedman, Contract Law in America (Madison: University of Wis- consin Press, 1965). See also Marc Galanter, “Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) About Our Allegedly Contentious and Liti- gious Society,” UCLA Law Review 31 (1) (1983): 4–71. 8 Sally E. Merry and Susan S. Silbey, “What Do Plaintiffs Want? Reexamining the Concept of Dispute,” Justice System Journal 9 (2) (1984): 151–178. 9 Gregory A. Caldeira and Kevin T. McGuire, “What Americans Know about the Courts and Why It Matters,” in The Judicial Branch, ed. Kermit L. Hall and Kevin T. McGuire (New York: Oxford University Press, 2005), 264. 10 Ibid. 11 Kathleen Hall Jamieson and Bruce W. Hardy, “Will Ignorance and Partisan Election of Judges Undermine Public Trust in the Judiciary?” Dædalus 137 (4) (2008): 11. 12 2007 Princeton Survey Research Associates International for the Annenberg Foundation Trust at Sunnylands, Annenberg Public Policy Center Judicial Survey, 2007, http://www.annenberg publicpolicycenter.org/Downloads/20071017_JudicialSurvey/Survey_Questions_10-17- 2007.pdf. 13 Ibid. 14 “Congress and the Public,” Gallup, 2014, http://www.gallup.com/poll/1600/congress-public .aspx 15 Between 1981 and 2012, eighteen surveys by nbc/Wall Street Journal, ap/Roper, and cbs/ New York Times report ranges between 10 and 26 percent for respondents feeling “little or no con½dence,” with a median of 17.5 percent. 16 http://www.gallup.com/poll/163586/americans-approval-supreme-court-near-time-low.aspx.

143 (3) Summer 2014 153 The 17 “Congress and the Public,” Gallup, 2014, http://www.gallup.com/poll/1600/congress-public Courts in .aspx American Public 18 The Harris and norc surveys asked speci½cally: “As far as people in charge of running the Culture U.S. Supreme Court are concerned, would you say you have a great deal of con½dence, only some con½dence, or hardly any con½dence at all in them?” 19 This is usually aligned with party af½liation. 20 Russell Dalton, “Citizens and Democracy: Political Support in Advanced Industrial Democ- racies,” paper presented at the conference Con½dence in Democratic Institutions: America in Comparative Perspective, Washington, D.C., August 1997. 21 Mitchell A. Seligson, “On the Measurement of Diffuse Support: Some Evidence from Mexico,” Social Indicators Research 12 (1) (1983): 1–24. 22 Jack Citrin, et al., “Personal and Political Sources of Political Alienation,” British Journal of Polit - ical Science 5 (1) (1975): 1–31. Cited in ibid. 23 Jamieson and Hardy, “Will Ignorance and Partisan Election of Judges Undermine Public Trust in the Judiciary?” 24 Margaret H. Marshall, “Threats to the Rule of Law: State Courts, Public Expectations and Political Attitudes,” Dædalus 137 (4) (2008): 123. See also Herbert M. Kritzer and John Voelker, “Familiarity Breeds Respect: How Wisconsin Citizens View Their Courts,” Judicature 82 (1998– 1999): 64. 25 Marshall, “Threats to the Rule of Law,” 125. 26 John M. Walker, Jr., “Politics and the Con½rmation Process: Thought on the Roberts and Alito Hearings,” in Bench Press: The Collision of Courts, Politics, and the Media, ed. Keith Bybee (Stanford, Calif.: Stanford University Press, 2007), 123–130. 27 Joanne F. Alper, “Selecting the Judiciary: Who Should Be the Judge,” in Bench Press, ed. Bybee, 132. 28 Ibid. 29 Christopher J. Davey, “The Future of Online Legal Journalism: The Courts Speak Only Through Their Opinions?” Information Society Journal of Law and Policy 8 (2013): 572 30 “Judicial Outreach Resource Network,” Justice at Stake, http://www.justiceatstake.org/ resources/judicial_outreach/; and http://www.ncsc.org/Topics/Court-Community/Public -Trust-and-Con½dence/Resource-Guide.aspx. 31 Charles Gardner Geyh, When Courts and Congress Collide: The Struggles for Control of America’s Judicial System (Ann Arbor: University of Michigan Press, 2008). 32 Charles Gardner Geyh, “Preserving Public Con½dence in the Courts in an Age of Individual Rights and Public Skepticism,” in Bench Press, ed. Bybee, 21–51. For a discussion of the overblown campaign concerning judicial independence and Justice O’Connor using “too broad a brush in identifying what might be called ‘external’ threats to the independence of the judiciary,” see also Arthur D. Hellman, “Justice O’Connor and ‘The Threat to Judicial Independence’: The Cowgirl Who Cried Wolf?” Arizona State Law Journal 39 (2007): 845. 33 James L. Gibson, Gregory A. Caldeira, and Lester Kenyatta Spence, “The Supreme Court and the US Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?” British Journal of Political Science 33 (4) (2003): 535–556; and Edwin Meese III, “Construing the Constitu- tion,” UC Davis Law Review 19 (1985): 22. In Dred Scott v. Sandford (60 U.S. 393 [1857]) the U.S. Supreme Court, under the leadership of Chief Justice Roger B. Taney, read black Americans out of the Constitution, ostensibly in order to invalidate Congress’ attempt to limit the spread of slavery. This is often read as a self-inflicted wound helping to bring on the Civil War. See also Herbert M. Kritzer, “The Public’s Assessment of the Rehnquist Court,” Judicature 89 (3) (2005): 168–176; and recall de Tocqueville’s prediction above.

154 Dædalus, the Journal ofthe American Academy of Arts & Sciences 34 See Bush v. Gore, 531 U.S. 98 (2000); Republican Party of Minnesota v. White, 536 U.S. 765 Susan S. (2002); Citizens United v. Federal Election Commission, 558 U.S. 310 (2010); and Roe v. Wade, 410 Silbey U.S. 113 (1973). For more on Roe v. Wade, see Linda Greenhouse and Reva Siegel, eds., Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (New York: Kaplan Publications, 2010); and Linda Greenhouse and Reva Siegel, “Before (And After) Roe v. Wade: New Questions about Backlash,” Yale Law Journal 120 (2011): 2028. 35 Bush v. Gore, 531 U.S. 98 (2000). 36 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), is a U.S. Supreme Court case in which the Court held that the First Amendment prohibits the government from restrict- ing independent political campaign expenditures by corporations, associations, or labor unions. The conservative lobbying group Citizens United wanted to air a ½lm critical of Hillary Clin- ton and to advertise the ½lm during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or bcra). In a 5–4 decision, the Court held that portions of bcra section 203 violated the First Amendment. 37 Republican Party of Minnesota v. White, 536 U.S. 765 (2002; Ginsburg, J. dissenting). See also Howard Gillman, The Votes That Counted: How the Court Decided the 2000 Presidential Election (Chicago: University of Chicago Press, 2003). 38 James L. Gibson, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy (Chicago: University of Chicago Press, 2012). 39 A recent issue of Judicature (March/April 2013), with essays by leading students of judicial behavior and public opinion, debates how we should address recent experiments that have attempted to assess so-called signi½cant threats to the legitimacy of and public trust in the judiciary. 40Gibson, Electing Judges. 41 Ewick and Silbey, “Common Knowledge and Ideological Critique.” 42Patricia Ewick and I describe our method as follows: “The interview was designed to capture a picture of legality unmoored from of½cial legal settings and actors. . . . We did not want our questions to imply or enforce a conventional de½nition of law and legality. We did not want to ask people about their legal problems or needs, since it was the respondents’ own understandings and de½nitions of these concepts–as they might be expressed in their words, revealed in their actions, or embedded in their stories and accounts– that we wanted to hear about. How then were we to focus the interview to be able to elicit talk about these issues without projecting our own hypotheses regarding legality and its construction? Our solution to this problem was to design an unusually lengthy interview consisting of three parts distinguished from one another in terms of how focused and structured they were. In this way, we hoped to reach a large number of diverse respondents and yet create opportunities for the respondents to shape the discussion. We told respondents the interview was about community, neighborhood, work, and family issues. Given our theoretical perspective this description seemed to describe accurately our approach, while it also served the practical purpose of decoupling legality from formal institutional law. The initial part of the interview consisted of a series of questions concerning the respondent’s community and neighborhood. We asked how long they had lived there; what they liked most and least about their neighborhood; and how they saw themselves in relation to their neighbors. We also inquired about the number and strength of social ties they had in the community: how many friends and family members lived nearby and how often and in what capacity they interacted with others. This turned out to be an effective way of beginning.. . . These ½rst questions about neighborhoods, friends and family seem to have eased the transition from formal interview to open conversation because the questions were obviously non-threatening and because they allowed the respondents to name the topics and issues of interest to them. Although we were asking the questions, respondents were setting the boundaries of privacy and exposure. Interestingly,

143 (3) Summer 2014 155 The people would often use these opening questions to initiate stories that were elaborated and Courts in enriched as the interview continued. . . . We had a script we followed, a sequence of topics American and questions, but we allowed our respondents to set the pace and emphases; we encouraged Public Culture diversions. This portion of the interview was followed by a series of open-ended questions that asked respondents about a wide-range of events and practices that might have ‘troubled or bothered’ them at some point. If a respondent asked what we meant by trouble or bother, we de½ned these as ‘[a]nything that was not as you would have liked it to be, or thought it should be.’ In presenting the topics for discussion to the respondents we avoided any allusion to these events or problems as legal or legally related, hoping instead to discover their de½nitions of the situations. Whenever a respondent mentioned that they had experienced a particular problem, they were asked to describe the situation in greater detail: when and how often it occurred, who was involved, how they experienced it and how they responded to it, and how, if at all, it ended.” See Ewick and Silbey, The Common Place of Law, 24–26. 43 Consistent with most studies, only 14 percent of possible legal matters were referred to a legal actor (government agency, policy, or attorney). 44 William H. Sewell, “The Concept(s) of Culture,” The Logics of History (Chicago: University of Chicago Press, 2005), 152–174, 160. 45 Clifford Geertz, The Interpretation of Cultures (New York: Basic Books, 1973), 14. 46Patricia Ewick and Susan S. Silbey, “Narrating Social Structure: Stories of Resistance to Legal Authority,” American Journal of Sociology 109 (1) (2003): 1328–1372. 47 Scott Barclay and Susan S. Silbey, “Understanding Regime Change: Public Opinion, Legiti- macy, and Legal Consciousness,” Oxford Handbook of Law and Politics, ed. Keith E. Whittington, R. Daniel Keleman, and Gregory A. Caldeira (New York: Oxford University Press, 2008), 663–678. 48 Ewick and Silbey, “Narrating Social Structure.”

156 Dædalus, the Journal ofthe American Academy of Arts & Sciences (Anti)Canonizing Courts

Jamal Greene

Abstract: Within U.S. constitutional culture, courts stand curiously apart from the society in which they sit. Among the many purposes this process of alienation serves is to “neutralize” the cognitive dissonance produced by Americans’ current self-conception and the role our forebears’ social and political culture played in producing historic injustice. The legal culture establishes such dissonance in part by structuring American constitutional argument around anticanonical cases: most especially “Dred Scott v. Sandford,” “Plessy v. Ferguson,” and “Lochner v. New York.” The widely held view that these decisions were “wrong the day they were decided” emphasizes the role of independent courts in producing them and diminishes the roles of culture in creating them and of social movements in overcoming them. This essay argues for approaching these decisions as ordinary products of political culture rather than extraordinary products of judicial malfeasance. Doing so honors those who struggled for progress and may invigorate our political imagination in the present.

Cadiz, Ohio isn’t “the proudest small town in Amer ica” for nothing.1 Cadiz has just 3,500 residents, but it has produced more than its share of American heroes. Edwin Stanton, the former U.S. Attorney General and Abraham Lincoln’s Secretary of War, lived and practiced law in Cadiz. The town was a one-time home to George Custer, who, prior to his infamy at Little Bighorn, helped secure Robert E. Lee’s surrender at Appomattox. And Cadiz was the hometown of John Bingham, the Republican sena- JAMAL GREENE is Professor of tor, prosecutor of Lincoln’s assassins, and principal Law at Columbia Law School. He drafter of section one of the Fourteenth Amendment. has published articles in such journals as the Columbia Law Review, If the Civil War and Reconstruction inaugurated 2 the Yale Law Journal, and the Har- America’s “second founding,” these sons of Cadiz vard Law Review, and has contri- were among its second founders. buted to volumes such as The Health The most popular tourist attraction in Cadiz hon- Care Case: The Supreme Court’s Deci- ors none of these men: it is, rather, a museum of the sion and Its Implications (ed. Gillian reconstructed birthplace of Clark Gable. Gable is Metzger, Trevor Morrison, and most famous, of course, for his portrayal of Rhett Nathaniel Persily, 2013) and Research Handbook in Comparative Constitu- Butler, the charming, iconoclastic antihero of the tional Law (ed. Rosalind Dixon and ½lm adaptation of Margaret Mitchell’s novel Gone Tom Ginsburg, 2011; with Vicki C. with the Wind. It is ironic but not surprising that Cadiz Jackson). is known and celebrated less for its famous Civil War

© 2014 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00296 157 (Anti) - and Reconstruction architects than for its majoritarian dif½culty, long disputed by Canonizing connection to the popular literary master - positive political scientists,8 presupposes Courts piece of the Lost Cause movement. that courts stand courageously (if unac- The hold that Lost Cause ideology re- countably) apart from society, as a “they” tains on America’s Civil War narrative has rather than a “we.” been well described by historians like This tendency to view courts as exter- David Blight and Eric Foner.3 It was not nal to society may be succinctly termed until the heyday of the civil rights era that the canonization of courts. There are many the so-called Dunning School fell out of explanations for this phenomenon9–and favor and was replaced by “revisionists”: they are not mutually exclusive–but one that is, those who refused to defend the Ku in particular organizes the remainder of Klux Klan or to represent Reconstruction this essay: aggrandizement of courts, both as, in Mitchell’s telling, “half a nation at - for good and for ill, helps to enable a pro - tempting, at the point of a bayonet, to force cess of collective neutralization of historic upon the other half the rule of negroes, injustice, and racial injustice most partic- many of them scarcely one generation out ularly. The term neutralization comes from of the African jungle.”4 As Blight writes in the criminological literature and refers to his Race and Reunion, “[t]he memory of sla - strategies that guilty persons employ to very, emancipation, and the Fourteenth overcome or ameliorate cognitive incon- and Fifteenth Amendments never ½t well sistency between the norms they believe into a developing narrative in which the in and those their actions support.10 The Old and New South were romanticized rhetorical structure of constitutional argu- and welcomed back to a new nationalism, ment in controversial cases is often organ- and in which devotion alone made every- ized around what I and others have termed one right, and no one truly wrong, in the an “anticanon” of cases that both constitu- remembered Civil War.”5 tional lawyers and ordinary citizens un - Less appreciated is the role that our per- derstand to be wrongly decided;11 Dred ception of courts has played and continues Scott v. Sandford (1857), Plessy v. Ferguson to play in the narrative of benign continu- (1896), and Lochner v. New York (1905) are ity that Blight so carefully reconstructs. easily the most prominent examples.12 Courts hold a high place in American life. Our collective insistence that these cases The U.S. Supreme Court in particular en - were wrong the day they were decided im- joys what political scientists call “diffuse plies that ad hoc decision-making by support” from the American people: a de - judges, rather than the culture of which gree of reverence that is relatively insen- those judges are part, underlies actions we sitive to how people feel about speci½c de - now believe to be unethical or immoral. cisions. 6 Thanks to this support, the Court This rhetorical practice neutralizes the maintains consistently higher approval contribution that culture, and in particular ratings than Congress and the President, our hydra-headed culture of white supre - even in the low days after the Court’s deci - macy, has made to constitutional law. sion in Bush v. Gore.7 Constitutional schol- Within the universe of constitutional rhet- ars in the United States have long wrestled oric, the main bene½ciary of this process with what legal scholar Alexander Bickel is historical argument proceeding from the termed the “countermajoritarian dif½cul - authority of the original framers or from ty”: the democratic de½cit created by an deep American traditions. The persuasive- unelected court overturning a legislative ness of this form of argument de pends on decision. The very notion of a counter- maintaining an identity between constitu-

158 Dædalus, the Journal ofthe American Academy of Arts & Sciences tional drafters and the present gen er ation, typical structure of judicial argument from Jamal which–in the absence of a succes sful neu- the anticanon is thus: my opponent is Greene tralization strategy–cognitive dis sonance wrong because the proposition he or she does not permit. Canonization of courts states is consistent with, as the case may through anticanonization of cases there- be, Dred Scott, Plessy, or Lochner. fore harbors a conservative and juris path ic Each of these decisions was supported bias: one that supports a sin gle and deter - by general propositions of constitutional ministic rather than a dy namic and fluid law or judicial method, such as textualism, understanding of constitutional meaning. originalism, or stare decisis, that are per- Opening constitutional law to progres- suasive in other contexts. Indeed, it is their sive contestation requires, counterintui- harmony with accepted approaches to tively, that we destabilize the notion that constitutional law that enables anticanon - Dred Scott, Plessy, and Lochner were wrong ical cases to be so consistently in voked the day they were decided. The possibility against one’s opponents.17 But each deci- that these decisions were wrong because sion is also associated with a concept that successive generations worked hard to the country has since rejected as unethical: make them wrong renders the judges that chattel slavery (Dred Scott), Jim Crow (Ples - made and unmade these decisions neither sy), or labor exploitation (Lochner). What heroes nor antiheroes, but simply judges. it means, then, for these cases to have been wrong ab initio is that the judges who ren- Constitutional law is haunted by the past, dered them were rogue or incompetent, but selectively so. The Dred Scott, Plessy, and that the norms they enforced in our and Lochner decisions in particular are as - name were their own corrupt personal sum ed by opinion-writers and legal audi- norms, not those of the American people ences to be irredeemably wrong and are or the Constitution. Anticanonicity as a cited in modern cases precisely for this rhetorical ex er cise casts judges as villain- reason. Le gal scholarship overwhelming- ous outsiders rather than as products of a ly identi ½es these cases as belonging to a constitutional culture that has since be - constitutional law “anticanon”;13 consti- come foreign to us. tutional law casebooks tend to give these Consider, ½rst, Dred Scott. In modern dis - cases substantial treatment even though cussion, the signi½cant errors of Chief Jus- they are dis credited and no longer good tice Taney’s opinion for the Court were law;14 and they continue to appear in mod- twofold. First, its holding that black Amer- ern opinions even though they do not con - icans could not be citizens of the United tain reliable propo sitions of law.15 Nomi- States is said to be both racist and simply nees to federal courts are unusually candid wrong as a matter of original understand- about their views on these cases, indicat- ing.18 But if the Dred Scott decision is wrong ing that their negative status is settled law. for these reasons, then the Fourteenth For example, at his con ½rmation hearing Amendment–which purported to make for Chief Justice, then-Judge John Roberts citizens of native-born blacks and to con- sta ted categorical ly that he would not fer substantive rights of citizenship upon “agree or disagree with particular deci- them–merely restored the Constitution’s sions,” but then went on to testify over the original meaning. The notion that Recon- course of the hearing that he disagreed struction was, in Foner’s terms, a revolution, with four decisions: Dred Scott, Plessy, Loch - rings hollow if its most signi½cant legal ner, and argu ably the other mem ber of the developments did little more than correct anticanon, Korematsu v. United States.16 The the pretensions of Roger Taney. If this is

143 (3) Summer 2014 159 (Anti) - the case, perhaps the Lost Cause move- Hayes in exchange for the withdrawal of Canonizing ment is right that black emancipation in the remaining federal troops from south- Courts the South was simply a matter of time, that ern states and the de facto end to Recon- Southerners would have come to a differ- struction. After 1877, Southern states were ent and better racial reconciliation had typically ruled by so-called Redeemer gov- they only been permitted to do so in their ernments free from northern oversight or own way. concern–which eventually instituted Jim Chief Justice Taney’s second signi½cant Crow laws, such as the 1890 Separate Car error is said to be his holding that the Con- Act at issue in Plessy. Plessy’s overwhelm ing stitution’s Fifth Amendment required slav- 7–1 margin reflected an emerging consen - ery to be permitted in federal territories, sus among large segments of the white which was unnecessary to decide the case population that Reconstruction was a mis- and may have precipitated or accelerated step, or at least should be so regarded under the march to war. But the notion that Dred the terms of reconciliation. “It was quite Scott is wrong because it hastened the Civil common in the ’eighties and ’nine ties,” War implies that the war was unnecessary his torian C. Vann Woodward reports in The or should have been delayed. This is not Strange Case of Jim Crow, “to ½nd in The Na - the place to defend the necessity of the tion, Harper’s Weekly, the North American Re- Civil War, except to say that its lack of ne- view, or the Atlantic Monthly Northern lib - cessity is hardly obvious–no more obvi- erals and former abolitionists mount ing ous, it seems, than the rightness of Neville the shibboleths of white su prem acy re - Chamberlain’s actions in Munich. The gard ing the Negro’s innate infe riority, shift - view that the war’s onset was lamentable lessness, and hope less un½t ness for full is consistent with the Lost Cause view that par ticipation in the white man’s civiliza- “everyone was right, and no one truly tion.”19 Woodward writes that these atti- wrong” in the conflict. That Dred Scott is tudes “doubtless did much to add to the wrong feels self-evident from the perspec- reconciliation of North and South.”20 tive of black freedom, but the more we ar - View ing Plessy instead as a detour by the gue that Taney made a major legal error in Court in the steady march to racial justice departing from the Constitution, the more ab solves the post-Reconstruction genera- we diminish the emancipatory achieve- tion of responsibility for its regressive ments of the Reconstruction generation. racial politics. The anticanonicity of Plessy and Lochner The history of Alabama’s anti-miscege - similarly places the American people and nation laws is illustrative. Under section their collective attitudes and norms at the 3602 of the Alabama Code of 1867, blacks margins rather than at the center of un eth - and whites were prohibited from inter- ical behavior. There is debate as to whether marriage, adultery, or fornication. The pe- Plessy v. Ferguson, which upheld the “sepa- nal code also punished fornication or adul- rate but equal” racial segregation of rail tery between people of the same race,21 cars in Louisiana, is consistent with the but it prescribed a lighter punishment. In original understanding of the Fourteenth Ellis v. State (1868), the Alabama Supreme Amendment. But Plessy is easily accommo- Court upheld section 3602 as consistent dated within the settlement over Re con - with the Civil Rights Act of 1866, a statu- struction symbolized by the Compromise tory precursor to the Fourteenth Amend- of 1877. Under that agreement, House Dem - ment, notwithstanding its differential pun - ocrats handed the disputed 1876 presiden- ishment scheme.22 The author of that tial election to Republican Rutherford B. opinion, Chief Justice Abram Joseph Walk-

160 Dædalus, the Journal ofthe American Academy of Arts & Sciences er, was elected to Alabama’s high court by bakers’ work was so unhealthy or that bak- Jamal a Confederate legislature at the end of the ers were so in need of legislative protection Greene war and was head of the committee that as to reasonably justify state intervention drafted the Code of 1867. Reconstruction into the labor market. Lochner be speaks the produced a new Alabama Constitution in startling speed with which the Fourteenth 1868, resulting in a new slate of justices Amendment was transformed from a pro - popularly elected under universal male suf- vision primarily protective of freed slaves frage. Those justices overruled Ellis in an to one primarily protective of corporations 1872 case called Burns v. State.23 But Ala- seeking to avoid state regulation. The bama Democrats retook the statehouse in Slaughter-House Cases, decided in 1873 (½ve 1874 through a combination of old-fash- years after the Fourteenth Amendment was ioned political violence against blacks and rati½ed), rejected a claim that the Amend - scalawags and a state Republican party ment prevented the state from regulating splintered by divisions over issues of “so - the market for butchers, and in so doing cial equality.”24 The 1874 election led to a stated the indispensable purpose of the Re- new Constitution, a new penal code that construction Amendments to be “the free- reinstated the law invalidated in Burns,and dom of the slave race. . . and the protection three new Democratic justices on the Ala - of the newly made freeman and citizen bama Supreme Court. Those justices over- from the oppressions of those who had ruled Burns in 1877.25 for merly exercised un limited dominion Six years later, the U.S. Supreme Court over him.”26 Plessy sym bolized a collective itself upheld the state’s interracial adultery abandonment of that lofty goal, and Loch - punishment scheme in Pace v. Alabama, ner represented a commitment to a new using the same formalist logic as Plessy: a one entirely. law punishing interracial adultery more Judges and lawyers overuse Lochner, how- harshly did not violate the Equal Protec- ever, and in the process obscure the fact tion Clause so long as it punished whites that the case represents the triumph of a and blacks equally. Pace was a unanimous distinctive political ideology but only a decision joined even by the sainted John pedestrian judicial one. The main criticism Marshall Harlan, who dissented so famous - from the right is that Lochner wrongly pro - ly in Plessy. Pace was less the result of rogue tected unenumerated constitutional rights; judges than of a rogue nation, unable to that it specially protected the right to con - summon the political will necessary to pre- tract is incidental to its broader mis step. serve the gains of Reconstruction in the The main criticism from the left is that Deep South. So, too, Plessy, which would Lochner protected the wrong unenumer- have been a far more remarkable decision ated constitutional rights: the right to con - at the time had it come out the other way. tract rather than, say, the rights to priva- Tellingly, the headline in the New Orleans cy, family autonomy, or sexual freedom. Daily Picayune on May 19, 1896, the day after This set of criticisms leaves the irreducible the Plessy decision, read: “Equality, but not sin of Loch ner, the error that under writes Socialism.” its anti can onicity, as its recognition of the Which brings us to Lochner. The Lochner right to contract. The New Deal Settlement decision overturned a New York law passed that aban doned Lochner places this right unanimously in both chambers of the legis- under the banner of “social and economic” lature that regulated the hours of bakery rights, to be judicially recognized only if workers. It did so on the grounds that the in fringed through completely irrational state had not suf½ciently demonstrated that laws.27

143 (3) Summer 2014 161 (Anti) - This is a deeply conservative outcome. pital [1923] and Moorehead v. New York ex rel. Canonizing The failure of American courts, particularly Tipaldo [1936]) are directed at the econom- Courts at the federal level, to entertain the justi- ic rights of workers to fair pay. Cases like ciability of social and economic rights Coppage v. Kansas (1915) and Adair v. United leaves core questions of economic justice States (1908), which protected the right of entirely to political processes ill-suited to employers to enter into yellow-dog con- protect the interests of the poor. Rights to tracts with workers, overturned govern- education, health, welfare, and housing ment policies that sought to protect col - that are recognized with various degrees of lective bargaining rights.30 From a pro- vigor in other Western democracies are gressive perspective, the problem with the typically relegated to the margins, or worse, Lochner opinion is not that it protected the of U.S. constitutional protection. wrong liberty rights–liberty of contract Anticanonicity is path-dependent, and rather than privacy–but that it protected Lochner’s particular path to infamy shapes the wrong economic rights. its rhetorical meaning. As legal scholar The alternate universe in which Lochn- David Bernstein has shown, Lochner did er’s social meaning is fully consistent with not speak for its era until the 1960s and the justiciability of economic rights is one 1970s, when conservatives used the case to in which judges may address claims of attack Griswold v. Connecticut and its proge- health or housing or education rights on ny.28 Liberals distinguished Lochner as pro- their merits rather than reject them at the tecting economic rights because at that his- threshold. In Dandridge v. Williams (1970), torical moment, the rights they sought to for example, in which the Court rejected a defend concerned private decision-making Fourteenth Amendment challenge to and were decidedly non-economic. The Maryland’s cap on welfare bene½ts, Justice dis tinction, for example, between use and Stewart wrote for the Court: “In the area of sale of contraceptives, later abandoned as economics and social welfare, a State does constitutionally irrelevant, was vitally im - not violate the Equal Protection Clause portant to the rhetorical mission of the merely because the classi½cations made right-to-privacy cases: they were precisely by its laws are imperfect.”31 Astute observ- not about those arm’s-length transactions ers will recognize in this formulation the that are the bread and butter of govern- continuing in terrorem effect of Lochner and ment social policy.29 the generation of cases it represents. But if Other strategies were available, if less we view Lochner as wrong but not anti- obvious. Rather than viewing Lochner as a canonical, our rejection of Lochner may be case about the perils of judicial protection consistent with our dissent from Dandridge . for economic rights, one might instead The New York bakers’ law sought to realize view it as a case about a judicial preference a protestant conception of economic rights for the economic rights of the strong over as proceeding from popular and legislative those of the weak. Recall that both sides in as well as judicial understandings. Lochner Lochner sought to protect economic rights. is not, in this view, a case about arrogant The bakeries wished to protect their rights judges ½nding rights where none exist; it is to enter into coercive labor contracts, and rather a case about politically attuned jud - the government wished to protect the ges using the courts to enforce the rights of rights of bakers to reasonable living stan- some against the rights of others. dards. Likewise, minimum wage laws The outcome of that contest in Lochner (such as those invalidated in Lochner-era reflected the might of a laissez-faire politi- decisions, including Adkins v. Children’s Hos- cal culture that is no less a part of our his-

162 Dædalus, the Journal ofthe American Academy of Arts & Sciences tory for our having renounced it. And view - a ‘billiard ball’ conception of himself in Jamal ing the renunciation of Lochner in West which he sees himself as helplessly pro- Greene Coast Hotel v. Parrish (1937) and subsequent pelled into new situations.” The deviant, cases not as the inevitable regression of law they argued, “learn[s] to view himself as to its proper, sublimated place but rather as more acted upon than acting.”36 Viewing the triumph of a particular political project, the protection and abetting of slavery, Jim contingent on the efforts of social move- Crow, and labor exploitation as the work ments to capture political and legal elites, of rogue or countermajoritarian courts ½ts respects rather than ignores the role of pop- a similar pattern of collective self-aliena- ular agency in constructing legal meaning. tion. As legal scholar Jack Balkin has written, “We say that a case like Plessy was The modern view of Dred Scott, Plessy, and wrong the day it was decided in order to Lochner as both wrong the day they were avoid concluding that we are the type of de cided and uniquely instructive for con- people whose Constitution would say such stitutional judges abides a process of a thing. The case does not reflect our nature neutral ization that is far bigger than the or who we are.”37 Court and its docket. The concept of neu- I do not mean to ascribe delinquency or tralization ½nds its roots in social psycho - social deviance to those who deploy the logist Leon Festinger’s work on cognitive rhetoric of anticanonicity. Indeed, it is the dissonance.32 Festinger’s two-pronged hy - opposite. My suggestion is that the incon - pothesis, which we now take to be nearly sistency between modern legal and ethical axiomatic, was as follows. First, inconsis- assumptions and past collective behavior tency within a person’s normative uni- creates a collective sense of dissonance that verse or between his views and his actions is normal rather than exceptional. Based is “psychologically uncomfortable” and on study of young, liberal Germans in the “mo tivate[s] the person to try to reduce the 1990s coping with the Holocaust, crimi- dissonance and achieve consonance.” 33 nologist Moshe Hazani concluded that Second, individuals do not merely reduce techniques of neutralization, including dissonance but also “actively avoid situa- denial of responsibility, are not just the tions and information which would likely tools of delinquents but “universal modes increase the dissonance.”34 Strategies for of resolving cognitive inconsistency.”38 reducing dissonance in clude, for exam- This kind of group neutralization is not the ple, changing one of the dissonant beliefs same as revisionism; it need not involve a by seek ing out others who can af½rm one’s conscious, reflective reevaluation of the disagreement with it, soliciting additional past. The idea, rather, is that the subcon- information that reduces the dissonance, scious need to reduce cognitive dissonance and avoiding information that enlarges it.35 –reflected in Blight’s work on the Civil Writing contemporaneously with Fes- War’s aftermath–precedes and moti vates tinger, criminologists Gresham Sykes and elements of legal culture, including the David Matza studied the ways in which ju - social meaning of anticanonical cases. We venile delinquents deflect or overcome in - enlarge the role of courts in part to deny ternal and social disapproval. Sykes and our collective moral responsibility. Matza outlined ½ve “techniques of neu- Other distinctive features of American tralization,” but we need only concern our- constitutional law could not exist in their selves here with their ½rst: “denial of recurrent form without the neutralization of sponsibility.” As Sykes and Matza describ - past injustice that court canonization helps ed: “In effect, the delinquent ap proaches enable. The persistence of ethical-histor-

143 (3) Summer 2014 163 (Anti) - ical approaches to constitutional argument This is a contingent phenomenon. Con - Canonizing is one such feature. An ethical-historical sider the case of South Africa. One of the Courts constitutional argument is one that ad- most recognized influences on the govern- vances a proposition of constitutional sig - ment of apartheid-era South Africa is the ni½cance by reference to historical ½gures work of the British theorist A. V. Dicey. or traditions that “vouch” for the proposi- Dicey is famous for his aggressive defense tion. (“Ethical” is thus used here in the of parliamentary sovereignty, a concept clas sical sense of an appeal to the charac- invested with white-supremacist character of the speaker, a de½nition consistent ter in an apartheid state in which only with scholar Philip Bobbitt’s work on con- whites may vote. In particular, as the post- stitutional argument.39) The argument, for apartheid Truth and Reconciliation Com- example, that the Establishment Clause mission Report found, South African law - was originally understood to forbid gov- yers and judges relied on Diceyan princi- ernment funding of religion because Mad- ples to defend practices of legislative def- ison’s “Memorial and Remon strance” was erence during the apartheid era.41 In the directed at this practice is a form of ethical- South African constitutional law and cul- historical argument.40 It recruits a promi- ture of today, citing Dicey to defend acqui - nent Framer in order to defend and legiti- escence to parliamentary authority would mate a proposition re gard ing the history be viewed with considerable suspicion, of the First Amendment. even as Dicey’s skill as a theoretician re- Ethical-historical argument overlaps, mains unquestioned.42 but is not coextensive with, the family of We do we not regard Jefferson, Madison, interpretive theories known to constitu- and Washington in this way. All were Vir- tional scholars as originalism. Originalism gin ian slaveholders instrumental in creat- is the view that a constitutional provision ing a brutal slavocracy and yet all are re - has what its drafters or rati½ers took to be cruit ed to speak for constitutional pro po - its meaning or scope at the time of enact- sitions far more readily than Bingham, ment. Originalism is a theory of interpre- Charles Sumner, Jacob Howard, or other tation, whereas ethical-historical argu- heroes of the second founding. South Afri- ment is a rhetoric of justi½cation. Except cans view their renunciation of apart heid to the degree of its overlap with ethical- as a genuine rupture. The preamble to the historical argument, originalism does not Interim Constitution refers directly to “a signi½cantly drive the work of U.S. federal need to create a new order,” and no one be- courts. (Anyone with any doubt on this lieves that the terms of reconciliation per- score might note that in the blockbuster mit the suggestion that the pre-1994 order 2012 term of the Supreme Court, a faithful was anything other than indefensibly ille- originalist would likely have upheld both gitimate. This fact, more than any other, section four of the Voting Rights Act and precludes a strong role for ethical-his tor - section three of the Defense of Marriage ical argument in the constitutional law Act, an outcome not favored by a single Jus- and culture of South Africa. Multiple, inter- tice.) By contrast, ethical-historical argu- related, and largely successful strategies of ment has substantial purchase both within neutralization help to preserve a role for and outside of judicial practice. Arguments such arguments in the United States. that use the Framers or their traditions to Ethical-historical argument, although it grant authority to modern practices and is partly external to constitutional law, is lim itations hold a central place within the nonetheless potent enough to impose a constitutional culture of the United States. soft limitation on constitutional evolution.

164 Dædalus, the Journal ofthe American Academy of Arts & Sciences As legal scholar Robert Post has de tailed at none agreed to individually. More should Jamal some length, constitutional law proceeds be made of the fact that the Supreme Court, Greene in continuous dialogue with the values and and judges more generally, are a “we” beliefs of non-judicial actors.43 Constitu- rather than a “they.” Judges may not be like tional law both regulates constitutional us, but they are of us. They live–in a thick culture,44 as when judges and law yers help sense–in the world they help to govern, to determine the social meaning of Dred their views about that world evolve and Scott, Plessy, and Lochner; and is bound by regress as all of ours do, and they adopt ide- that culture, as when interpreters under- ologies and accept social meanings that stand certain social and eco nomic rights as they do not themselves generate. As legal matters of political discretion. It is dif½ - scholar Robert Cover reminded us, judges cult not to notice that social and economic can be powerful instruments of social con- rights receive explicit judicial protection in trol, but they do not create law: we do.47 South Africa.45 We have good, if not noble, reasons to Would a constitutional culture that un- forget that. If we the people are a coherent derstands Reconstruction in revolutionary (though pluralistic) constitutional subject terms permit the Supreme Court to inval- –a view we might reject but rarely do– idate a federal voting rights law on account then we are authors of great injustices tol- of its extraordinary success in enfran chis - er ated and facilitated by law. Dred Scott, ing black Americans? Would a constitu- Plessy, and Lochner are said to be antica- tional culture that has internalized the costs nonical in part so that we do not forget of our departure from Jim Crow produce what we once were, but the way they oper - a Court that challenges the University of ate within the constitutional culture ac- Texas–the defendant in Sweatt v. Painter46 complishes quite the opposite. Professional –for discriminating against white appli- discourse identi½es their unforgivable cants? Would a constitutional culture that errors as obvious legal mistakes, the result regards Lochner’s repudiation as a triumph of judges reading their own immor al pol- for economic rights be consonant with a itics into the law. In this conception the Court that scolds Congress for seeking to Court sits at the center of great wrongs, guarantee health insurance to every Amer- awaiting a bold overruling that will place ican? These questions nearly answer them- the law back on its proper course. selves. Deflecting responsibility for Dred Claiming ownership over our history re- Scott, Plessy, and Lochner onto the Courts quires deconstruction all the way down. that decided those cases is integral to a legal We must accept Dred Scott and Plessy and narrative that helps construct a very dif- Lochner as we accept a chromosomal con- ferent constitutional culture than the one dition. Seeing these cases as part of who described above. we are is psychologically dif½cult, but it enables us to recognize our agency in over- It has become a favorite criticism of Su - coming the limitations they place on our preme Court–centered scholarship to note normative priors. We owe it to Mr. Bing- that the nine Justices are a they rather than ham, and to ourselves, to internalize the an it. The numerous inconsistencies in the real lesson of anticanonical cases, which, Court’s jurisprudence, so easily identi½ed after all, is that they may have been right. as to be uninteresting, are often attributable to a single swing Justice, or else to an eclectic coalition whose incomplete overlap of views constitute a “holding” that

143 (3) Summer 2014 165 (Anti) - endnotes Canonizing 1 Courts The “proudest small town” title was conferred upon Cadiz following a newspaper contest in the 1930s. See Tyler Reynard, “Small-Town Cadiz Produced Big-Time Residents,” The Intelli- gencer/Wheeling News-Register, March 26, 2013, http://www.theintelligencer.net/page/content .detail/id/583125/Small-Town-Cadiz-Produced-Big-Time-Residents.html?nav=6312, accessed July 29, 2013. 2 Barry Friedman, “Reconstructing Reconstruction: Some Problems for Originalists (And Every- one Else, Too),” University of Pennsylvania Journal of Constitutional Law 11 (2009): 1205. 3 David W. Blight, Race and Reunion: The Civil War in American Memory (Cambridge, Mass.: Har - vard University Press, 2001); and Eric Foner, Reconstruction: America’s Un½nished Revolution, 1863–1877 (New York: Harper & Row, 1988). 4 Margaret Mitchell, Gone with the Wind (New York: Macmillan, 1936), 914. 5 Blight, Race and Reunion, 4. 6 Gregory A. Caldeira and James L. Gibson, “The Etiology of Public Support for the Supreme Court,” American Journal of Political Science 36 (1992). 7 James L. Gibson, Gregory A. Caldeira, and Lester K. Spence, “The Supreme Court and the U.S. Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?” British Journal of Political Science 33 (2003): 555. 8 Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy- Maker,” Journal of Public Law 6 (1957). 9 For an excellent treatment in the new institutionalist tradition in political science, see Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, N.J.: Princeton University Press, 2007). 10 Gresham M. Sykes and David Matza, “Techniques of Neutralization: A Theory of Delin- quency,” American Sociological Review 22 (1957): 667. 11 Jamal Greene, “The Anticanon,” Harvard Law Review 125 (2011); and J. M. Balkin and San- ford Levinson, “The Canons of Constitutional Law,” Harvard Law Review 111 (1998): 1018–1019. 12 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); Plessy v. Ferguson, 163 U.S. 537 (1896); and Lochner v. New York, 198 U.S. 45 (1905). 13 Greene, “Anticanon,” 391. 14 Ibid., 395–396. 15 Ibid., 397–398. 16 Korematsu v. United States, 323 U.S. 214 (1944); and Greene, “Anticanon,” 392 n. 66. 17 Ibid., 463. 18 Jack M. Balkin and Sanford Levinson, “Thirteen Ways of Looking at Dred Scott,” Chicago- Kent Law Review 82 (2007): 70–71. 19 C. Vann Woodward, The Strange Career of Jim Crow (New York: Oxford University Press, 1955), 70. 20 Ibid. 21 Alabama Code, sec. 3599 (1867). 22 Ellis v. State, 42 Ala. 525 (1868). 23 Burns v. State, 48 Ala. 195 (1872). 24 Foner, Reconstruction, 552–553.

166 Dædalus, the Journal ofthe American Academy of Arts & Sciences 25 Green v. State, 58 Ala. 190 (1877). Jamal Greene 26 Slaughter-House Cases, 83 U.S. 36 (1873): 71. 27 United States v. Carolene Products, 304 U.S. 144 (1938): 152. 28 David E. Bernstein, “Lochner v. New York: A Centennial Retrospective,” Washington University Law Quarterly 83 (2005): 1518–1521. 29 See Carey v. Population Services International, 431 U.S. 678 (1977): 687–688. 30 Adkins v. Children’s Hospital, 261 U.S. 525 (1923); Moorehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936); Coppage v. Kansas, 236 U.S. 1 (1915); and Adair v. United States, 208 U.S. 161 (1908). 31 Dandridge v. Williams, 397 U.S. 471 (1970): 485. 32 Leon Festinger, A Theory of Cognitive Dissonance (Stanford, Calif.: Stanford University Press, 1957). 33 Ibid., 3. 34 Ibid. 35 Ibid., 21–22. 36 Sykes and Matza, “Techniques of Neutralization,” 667. 37 Jack M. Balkin, “Wrong the Day It Was Decided: Lochner and Constitutional Historicism,” Boston University Law Review 85 (2005): 710. 38 Moshe Hazani, “The Universal Applicability of the Theory of Neutralization: German Youth Coming to Terms With the Holocaust: An Empirical Study With Theoretical Implications,” Crime, Law, & Social Change 15 (1991): 144. 39 Philip Bobbitt, Constitutional Interpretation (Oxford; Cambridge, Mass.: B. Blackwell, 1991), 20. 40 Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) (Souter, J., dissenting): 868. 41 Truth and Reconciliation Commission of South Africa, Truth and Reconciliation Commission of South Africa Report, vol. 4 (1998), para. 41–42, http://www.justice.gov.za/trc/report/½nal report/Volume%204.pdf. 42 Katharine G. Young, Constituting Social and Economic Rights (Oxford: Oxford University Press, 2012), 146. 43 Robert C. Post, “The Supreme Court, 2002 Term–Foreword: Fashioning the Legal Consti- tution: Culture, Courts, and Law,” Harvard Law Review 117 (2003): 41. 44 Ibid., 10. 45 Government of the Republic of South Africa v. Grootboom, (1) SA 46 (Constitutional Court of South Africa, 2001); and Minister of Health v. Treatment Action Campaign, (5) SA 721 (Constitutional Court of South Africa, 2002). 46 Sweatt v. Painter, 339 U.S. 629 (1950). 47 Robert M. Cover, “The Supreme Court, 1982 Term–Foreword: Nomos and Narrative,” Harvard Law Review 97 (1983).

143 (3) Summer 2014 167 Justice & Memory: South Africa’s Constitutional Court

Kate O’Regan

Abstract: In a society such as South Africa in which the past has been deeply unjust, and in which the law and judges have been central to that injustice, establishing a shared conception of justice is particularly hard. There are four important strands of history and memory that affect the conception of justice in democratic, post-apartheid South Africa. Two of these, the role of law in the implementation of apartheid, and the grant of amnesty to perpetrators of gross human rights violations, are strands of memory that tend to undermine the establishment of a shared expectation of justice through law. Two others, the deep- rooted cultural practice of justice in traditional southern African communities, and the use of law in the struggle against apartheid, support an expectation of justice in our new order. Lawyers and judges striving to establish a just new order must be mindful of these strands of memory that speak to the relationship between law and justice.

The new Constitutional Court building is built on a hill in Johannesburg.1 It stands on the site of four notorious prisons. The ½rst and oldest is the Fort, originally built, as its name suggests, as a fort by Pres - ident Paul Kruger in the years immediately before the Anglo-Boer War, or what in Afrikaans is called the Second Freedom War, to defend the city of Johan- nesburg. Not long after the war, as is the way with many forts, it became a prison. Mahatma Gandhi and then, some decades later, Nelson Rolihlahla Mandela were both imprisoned there. Around the Fort, three other prisons sprang up: the women’s jail to the west, and to the north, the native jail and the awaiting trial prison. Three of the four prisons still stand on the hill: brick-and-mortar memorials of the role that law has played in South Africa’s history. KATE O REGAN ’ , a Foreign Hon- The fourth, the awaiting trial block, was demol- orary Member of the American ished to make way for the new court building. Its Acad emy since 2009, served as a Judge of the Constitutional Court of bricks, however, were preserved, and have been used South Africa from 1994 through throughout the court building, most notably in the 2009, when her ½fteen-year term courtroom itself, where packed into a dry stone curv- ended. ing wall they serve as a reminder both of the prison

© 2014 by Kate O’Regan doi:10.1162/DAED_a_00297 168 walls they once were and of the early Ma- There are at least four strands to the con - Kate pungubwe civilization of this region. ception of justice in modern South Africa O’Regan Justice is a complex and contested con- that draw directly on our memory, and that cept in most societies. In societies that are affect how justice is conceived today. All in transition from an oppressive or brutal four of them play their part in the estab- past, this is particularly so, as is nowhere lishment of South Africa’s new Constitu- more evident than in South Africa. Justice tional Court, and I outline each here. Then is a normative concept constructed polit- I briefly illustrate how these strands of ically and socially in each society. In that memory were considered and addressed construction, history and memory play a in the building of the Court and in the es - signi½cant role.2 In this essay, I consider tablishment of its practices and proce- the role of history and memory in the con- dures, mindful of the need to develop a struction of a democratic conception of democratic conception of justice that is jus tice, and the establishment or “inven- compassionate and principled and that tion” of the new Constitutional Court in makes the best sense of both the past and post-apartheid South Africa. the constitutional vision for our future. In a society in which the past has been deeply unjust, and in which the law and The ½rst strand of history and memory judges have been central to that injustice, relevant to constructing a shared concep- establishing a shared conception of justice tion of justice in South Africa is the fact is particularly dif½cult. There is a need to that apartheid was maintained through a remember the injustice, to analyze and un- plethora of unjust, discriminatory laws. derstand it where possible. But we need to Every day, ordinary South Africans were be cautious about the purpose to which we arrested and imprisoned in terms of apart - put these memories. heid laws. For example, between 1968 and Memory must assist us in the present, 1971, according to the South African Insti- urgent task with which we are engaged: tute of Race Relations Survey,4 more than the building of a better future. A history six hundred thousand people were arrested of evil presents particular challenges, as annually on pass law offenses–this at a Friedrich Nietzsche reflected: time when the population was approximately twenty million. Those convicted Men and ages which serve life by judging and would generally be sentenced to imprison- destroying a past are always dangerous and ment for ninety days, which often involved en dangered men and ages. For since we are prison labor. In addition to pass laws, apart - the outcome of earlier generations, we are heid was underpinned by a host of other also the outcome of their aberrations, pas- laws: the Immorality Act,5 the Mixed Mar- sions and errors, and indeed of their crimes: riages Act,6 the Separate Amenities Act,7 it is not possible wholly to free oneself from the Group Areas Act,8 the Land Act,9 and this chain. If we condemn these aberrations many others. Nearly all these pieces of leg- and regard ourselves as free of them, this does islation contained criminal provisions that not alter the fact that we originate in them. resulted in people being arrested, prose - The best we can do is to confront our inherit - cuted, and convicted for manifestly unjust ed and hereditary nature with our knowledge purposes. and through a new, stern discipline combat Each of these six hundred thousand an - our inborn heritage and im plant in ourselves nual arrests was a stone dropped in a pond. a new habit, a new instinct, a second nature, The ripples can still be felt. Let us stop and so that our ½rst nature withers away.3 think of each arrest for a moment. A police

143 (3) Summer 2014 169 Justice & van pulls up at the corner of a suburban what are the implications of the arrest and Memory: street. Two (probably young) police of- imprisonment of so many South Africans, South Africa’s ½cers jump out and accost the woman they for deeply unjust reasons over so many Consti- have seen passing in the street. “Dompas,” years, for our modern attempt to establish tutional 10 Court they shout. The woman, who has no a shared conception of justice in a consti- “dompas” on her, may demur or seek to ex- tutional democracy founded on the rule of plain; perhaps she thinks momentarily of law? Those implications must, at least in flight, perhaps not. She is placed in the part, be the absence of a deep, value-based back of the van. That evening, her family commitment to respect for law in our soci- or friends who were expecting her will ½nd ety and deep skepticism about the possi- that she does not arrive. They may assume bility of justice. The enforcement of unjust she has been arrested, and then spend some laws, with the effect of sending hundreds days searching police stations and prisons of thousands of people to jail over many to ½nd her. They will be angry or anxious years, must have weakened any sense that or resigned and will have seen the law and law-breaking or imprisonment are in and its enforcement processes for what it was, of themselves wrongful. Establishing a unjust.11 communal commitment to respect for law The young policemen will probably not and a sense of con½dence in the possibility think much of this arrest at all. They will of justice will take time. Laws, and the pro - drive to the police station, lay the charge, cess of law enforcement, need to earn the and commit the arrested woman to the respect from which con½dence in justice cells. The next morning, probably, she will will grow. be taken to a court staffed by a magistrate, a court orderly, a prosecutor, and an in - The second strand of history and mem- terpreter. There will, in all probability, be ory that I want to discuss relates to the no defense lawyer. The process of convic- mandate of the Truth and Reconciliation tion will be extremely quick and ef½cient, Commission (trc), which was to estab- and the sentence will probably be some- lish “as complete a picture as possible of thing like 90 Rand or ninety days’ impris- the causes, nature and extent of the gross onment. It is unlikely that the convicted violations of human rights . . . including woman will be able to pay a ½ne, and so she the antecedents, circumstances, factors will go to prison. and context of such violations, as well as Each prosecution and conviction involv- the perspectives of the victims and the ed policemen, prosecutors, interpreters, motives and perspectives of the persons and magistrates–many thousands of peo- responsible for the commission of the vi- ple working to enforce unjust laws. When olations by conducting investigations and I look at the bricks from the old awaiting holding hearings.”12 “Gross violations of trial prison in our courtroom today, I think human rights” were in turn de½ned as “the that each one of those bricks must repre- killing, abduction, torture or severe ill- sent dozens of people who were held with- treatment of any person.”13 in that very prison, having been arrested The Truth and Reconciliation process in on the basis of the pass laws. But each brick South Africa has been much examined.14 also represents one or more of the lawyers Today there are three aspects of it that I who prosecuted or convicted or drafted the consider relevant to this strand of our wicked laws that gave effect to apartheid. memory and to the construction of a dem- The manner in which law supported ocratic conception of justice. The ½rst is apartheid raises an important question: that “gross violations of human rights” did

170 Dædalus, the Journal ofthe American Academy of Arts & Sciences not capture the “daily violence” of apart - described them in full detail, the Act fore - Kate heid imposed through the enforcement of swore retribution in favor of truth. More- O’Regan its laws, which I have already discussed.15 over, the extent to which those who were The de½nition of gross human rights vio- not prosecuted were leaders particularly lations in the trc legislation focused on in the apartheid state, the message sent the “extraordinary” violence of the apart - by amnesty or the absence of prosecution heid era. In a real sense, this focus meant was the message of impunity–the reverse that the trc missed engaging fully with of accountability. the full evil of apartheid: its devastating Third, the legislation underpinning the impact on ordinary people in their every- Act operated on a basis of equivalence be - day lives. This impact was, to use Hannah tween those gross human rights violations Arendt’s phrase, the banality of evil. that had been perpetrated in support of Second, the primary focus of the trc apartheid and those violations that had legislation was to establish the truth about been perpetrated to overthrow apartheid. the past. The scheme, simply stated, was This equivalence, of course, was a product to encourage those perpetrators of gross of the political compromise, and did not human rights violations to come forward reflect the moral or ethical differences be- and tell their story. Full and frank disclo- tween those who sought to maintain apart- sure entitled a perpetrator to apply for am- heid and those who sought its end. This nesty within the scheme of the Act. Am- arti½cial equivalence also governed the am - nesty, of course, meant that a perpetrator nesty rules and sits uneasily with our rec - escaped prosecution, conviction, and pun- ognition that apartheid was an unjust, op- ishment. The absence of punishment pressive system, and that seeking to dis- means vengeance is not exacted. Although mantle it was a morally just cause. we might be uncomfortable with the notion of vengeance, it is in one sense “a The third strand of memory that relates deeply moral response to wrongdoing. . . . to justice is the history of indigenous law Through vengeance, we express our basic and justice in many South African com- self respect. . . . Vengeance is also the well - munities. Although there are differences spring of a notion of equivalence that ani- from community to community, the tra- mates justice.”16 ditional pattern of dispute resolution is The principles of criminal law and pun- public and participatory, and it focuses on ishment recognize that retribution, which restoring harmony. The administration of to some extent serves a similar purpose to justice in traditional African communities vengeance, is just. As Martha Minow notes: often takes place in the open under a tree. In a recent study of traditional courts in Retribution can be understood as vengeance Limpopo province, a court operating in the curbed by the intervention of someone other Berlyn settlement is described as follows: than the victim and by principles of pro- portionality and individual rights. Retribu- The messenger announces the court date tion motivates punishment out of fairness to and time by walking through the settlement those who have been wronged and reflects a and blowing a horn, calling out the partic- belief that wrongdoers deserve blame and ulars of the meeting, which is always on a punishment in direct proportion to the harm Sunday morning in Berlyn. The court starts inflicted.17 early to give people a chance to attend In affording amnesty to those who con- church services later in the day. When men fessed to gross human rights violations and and women are seated outside the head-

143 (3) Summer 2014 171 Justice & man’s house in separate groups under and The fourth strand of memory that is rel- Memory: near a tree, the headman and his committee evant to the construction of a conception South Africa’s enter and everybody stands up. . . . The seat- of justice is the extent to which legal strat - Consti- ing arrangements symbolise the status dif- egies were adopted by those seeking to op - tutional Court ferences in the social hierarchy. . . . The com - pose apartheid. In the last decades of apart- plainant talks ½rst, then the defendant, then heid, legal strategies were pursued for a the witnesses that were brought and then variety of purposes: to promote the rights the members of the community. . . . When of workers,19 to defend communities from the matter draws to a close, someone sums forced removals from their land and up the matter and then the headman gives homes,20 to defend those prosecuted of his decision.18 political offenses,21 to limit the operation of the pass laws,22 to undermine the con- This simple account of a traditional court solidation of the grand apartheid program procedure makes it clear that a principle of of Bantustans,23 and to defend those op - open, participative justice is deeply etched posing conscription.24 The strategic use in our memory and practice. Indeed, it is a of law to promote just ends was often the living aspect of justice in modern South topic of ½erce debate. In the context of Africa. worker rights, for example, the fear was On the days when a case of importance that the use of law would undermine work- to a community is heard in the Constitu- ers themselves by affording power to law - tional Court, the tradition of public and yers in a manner that would weaken shop - participative justice is reenacted in part. floor militancy.25 The courtroom is packed. People often In his fascinating account of the era, Pol- travel overnight in buses to attend the hear- itics by Other Means: Law in the Struggle against ing of the Court. The purpose of atten - Apartheid, Richard Abel concludes that law dance is not to view the hearing in a non- did make a difference.26 However, he notes participative way, but to demand ac count - that the use of law does have severe restric- ability of the judges. Through silent par- tions. “Law,” he comments, “is far more ef- ticipation, community members remind fective in defending negative freedom than judges that their constitutional task is to conferring positive liberty; it can restrain do justice. This is not a new phenomenon. the state but rarely compel it.”27 He con- During the 1980s, while I was serving as an cludes: at torney for rural communities and work - ers, my clients insisted on their day in court The recognition that South Africa in the because they wanted the judges to see them 1980s was exceptional and law alone was not and know that the decision they handed decisive should not mislead us to deprecate down was of importance to the people in its importance. Human rights lawyers, like front of them. And through their silent par - other progressives, too often frame the issue ticipation, they reminded the judges that dichotomously. Law either makes all the dif- the decision should be a just one. ference or no difference at all. . . . [M]ost par - This strand of our memory is important. alysing is the anxiety that limited victories A legal system is unlikely to be just in the will co-opt the masses. Some activists argue absence of an expectation that it will be that only progressive immiseration can stif - just. The long tradition of indigenous pub- fen resistance. All the evidence contradicts lic and participative justice, therefore, is an this. Hope is necessary for struggle. Legal vic - important strand of memory in the con- tories, far from legitimating the regime, dem- struction of a democratic conception of onstrate its vulnerability and erode its will justice in post-apartheid South Africa. to dominate.28

172 Dædalus, the Journal ofthe American Academy of Arts & Sciences The use of law to undermine the func- human rights lawyers, thus, echoed the Kate tioning of the apartheid state was not an conclusions that E. P. Thompson had O’Regan unmitigated success, yet it did provide drawn from his historical analysis of the insights and lessons that remain impor- eighteenth-century legislation. Thomp- tant today. Perhaps the most important son’s statement that “[t]he forms and rhet- lesson drawn from the era was the lesson oric of law acquire a distinct identity which that law can, and often does, serve as a may on occasion inhibit power and afford constraint on the abuse of power. some protection to the powerless”31 struck As E. P. Thompson concluded in a mem - a chord with human rights lawyers in South orable passage at the end of his famous Africa and came to be widely discussed and examination of the Waltham Black Act of acknowledged. 1723, an act that created offenses aimed at I do not suggest that these are the only curbing poaching and hunting in Waltham memories of justice and injustice that will Forest29: inform our consitututional project. There will be others. These four, however, are im- There is a difference between arbitrary pow - portant, and each will contribute to our er and the rule of law. We ought to expose modern conception of justice. The ½rst the shams and inequities which may be con- two, by and large, weaken the project of cealed beneath this law. But the rule of law con structing a sense of justice, while the itself, the imposing of effective inhibitions latter two, again by and large, strengthen upon power and the defence of the citizen it. In inventing both the practice and pro- from power’s all-intrusive claims, seems to cedure of the Constitutional Court, as well me to be an unquali½ed human good. To as its physicial building, these four strands deny or belittle this good is, in this danger- of memory and history could not be ig- ous century when the resources and preten- nored. Instead, we had to build on those sions of power continue to enlarge, a desper- aspects of our memory that are conducive ate error of intellectual abstraction. . . . It is to a new shared conception of justice, to throw away a whole inheritance of strug- while leaving behind with “stern disci- gle about law, and within the forms of law, pline” those aspects of our history that im- whose continuity can never be fractured peril the possibility of justice. without bringing men and women into immediate danger.30 The constitutional negotiations that Why did E. P. Thompson’s account of a culminated in the ½rst democratic elec- recondite piece of eighteenth-century En - tions in April 1994 brought one major glish legislation come to be widely read by change to the judicial system: the estab- South African human rights lawyers? lishment of a new Constitutional Court Many opponents of the apartheid state, with the mandate to protect and enforce often schooled in Marxism, expected that the values of the new constitutional order. the use of law to oppose the apartheid state All other courts remained unaffected, and could never succeed. What happened in all existing judges remained in of½ce; but the 1980s, however, did not match this the newly established Constitutional Court prediction. Law did at times produce just was placed at the apex of the system with outcomes; not as often as human rights respect to constitutional matters. lawyers would have liked, but not as rarely The eleven members of the Constitu- as the theoretical assertion that the law is tional Court met for the ½rst time in Johan- the tool of the ruling class could accom- nesburg in October 1994. Of the ½rst modate. The experience of South African bench, six had been judges under the old

143 (3) Summer 2014 173 Justice & order, although all six were recognized for of a tree with people clustered under it, Memory: their commitment to human rights and the rather than the more commonly used sym - South Africa’s rule of law. The other ½ve judges, includ- bols of a set of scales or of the ½gure of Consti- ing myself, were drawn from the ranks of “blind justice.” This image is now widely tutional Court the legal profession and the academy. In used throughout South Africa to represent all, seven judges were white, four were not only the Court but the Constitution. It black; nine were male, and two were fe- is an apt image of shelter and protection male. In a judiciary that at the time had that draws on the memory (and present approximately 150 judges of whom 146 practice) of traditional justice. were white and male, the new Court was Implicit in the metaphor of the tree are noticeably diverse. Today, the Court’s race the principles of openness, civic partici- diversity has increased markedly. Now, in pation, and simplicity, principles that in - early 2014, there are eight black judges and form the best practices of traditional jus- three white, but it is a matter of deep con- tice that so many South Africans would un- cern, given the express constitutional com- derstand. The metaphor of the tree, and mitment to ra cial and gender diversity on the principles of openness, civic participa- the bench,32 that there are still only two tion, and simplicity, came to be the inform- female judges. ing principles of the new court building, As a new court, the agenda for that ½rst which was ½nally completed in 2004.33 week-long meeting was extraordinary. The design of the Court is the antithesis Near ly everything had to be decided and of the grand neoclassical architecture that initiated: modes of dress and address, rules characterizes so many courts. Neoclassical of procedure, jurisprudential register and architecture is whole and strong, asserting style, a building found or built, arrange- a con½dence in the association of power ments for the inauguration of the Court and justice that is, for the reasons I have and the swearing in of the judges, and described above, absent in South Africa. working methods, including the use of Our building is fragmented, a low cluster information technology and the decision of beautiful modern buildings that a citi- whether to introduce a system of law zen can enter without experiencing a sense clerks in judicial chambers. of submission to authority or power. The The recurrent theme in addressing the Court stands adjacent to the old native jail, various items on the agenda was the ques- preserved as a historic site, and the juxta- tion of justice, or the possibility of justice position of the two buildings is a constant in the light of our deeply unjust history and dialectical reminder of the different pos- the fragility of our perceptions of justice. sibilities of law. Again and again in the discussion that en - The courtroom, too, is simple. Its walls sued, questions arose as to how best to fos- are constructed from the unadorned bricks ter the belief in the possibility of justice of the demolished awaiting trial prison, through adopting practices and processes as I have described. Members of the pub- that would resonate with the strands of lic who enter the courtroom sit on raked memory that held out the possibility of benches, so that they are at eye level with justice. the judges or looking down on them. There So in designing the logo or of½cial seal is no sense in the courtroom of the “maj - of the Court, in recognition of the impor- esty” of the law. Instead, it is a tentative tance of the practice of justice in commu- room, almost incomplete. The brick wall is nities throughout South Africa, the Con- hemmed by a narrow glass window that stitutional Court chose the representation permits those in the courtroom to see the

174 Dædalus, the Journal ofthe American Academy of Arts & Sciences passing feet of citizens in the street outside. other hand, is not ripe. The view has been Kate The main decoration in the courtroom is that it is important to address serious con - O’Regan a large South African flag on the wall be - stitutional questions that arise in order to hind the bench, made in traditional bead provide guidance to citizens and the gov- work. ernment on the interpretation and appli- Throughout the building, the metaphor cation of the Constitution. of the tree is reproduced: in the judges’s The Court has also repeatedly af½rmed meeting room, the wooden table is large the principle of open justice,37 asserting and round, made of strips of wood to rep- the importance of public access to observe resent the rings of a giant tree; the foyer court hearings, both in person and by way of the court is held up by pillars at unusual of radio and television broadcast. The prin- angles, representing the idea of a clearing ciple draws on the practice of traditional in a woodland; both the court and the foyer justice in which community members ob - are lit by irregular skylights that produce a served, and at times participated, in the dappled and changing light as the sun pass- pro cess of the administration of justice. es overhead. The law of costs has been revised to en- The principles that inform the metaphor sure that those who genuinely raise con- are also principles that inform the practice stitutional points of substance should not and procedure of the Court. The text of the fear that, if unsuccessful, they will be forced Constitution seeks to establish procedures to pay the costs of the state who opposed that facilitate the use of litigation to ensure them.38 All these aspects of our constitu- that law does indeed serve the ends of jus- tional practice have been designed to tice. Many of these procedures are built enable the use of litigation to promote the on the learning from anti-apartheid liti- possibility of justice in our new constitu- gation in the 1980s, in which civic-minded tional order. institutions and individuals sought to Substantively, of course, the text of our ensure that law was just. Many, too, are Constitution engages directly with justice. drawn from the experience of constitu- First, the Constitution espouses explicit tional and public law litigation in the Unit- values that reject the injustice of the past. ed States. For example, the Constitution Those values, found in section 1 of the Con - contains a broad standing provision that stitution, are human dignity, the achieve- permits a wide range of individuals and ment of equality, and the advancement of institutions to come to court to obtain ef - human rights and freedoms; non-racialism fective relief where they establish a threat- and non-sexism; supremacy of the Consti- ened or actual infringement of a constitu- tution and the rule of law; and a multiparty tional right.34 From the start, the Court system of democratic government, to en- also permitted amici curiae (friends of the sure accountability, responsiveness, and Court), and interveners, to participate in openness. Human rights are given speci½c- constitutional litigation to help the Court ity in chapter 2 of the Constitution, which understand more fully the implications contains the Bill of Rights. The Constitu- of the cases it was deciding.35 This prac- tion makes plain that it seeks a transformed tice had not been widely used in South democratic society, in which the divisions Africa before 1994, but has become an im- of our past are healed. It is emphatically portant part of constituitonal litigation. not a “business as usual” Constitution. The Court has also been slow to accept The Constitution thus responds sharply that a case should not be decided because to the strand of injustice in our memory by the matter has become moot,36 or on the making clear that law must be founded on

143 (3) Summer 2014 175 Justice & democratic values and may not be used for strategy seems to me not only to falsify and Memory: unjust purposes. It is South Africa’s em - disdain human experience but in the case South Africa’s phatic assertion of “never again,” and of Chile or of any country that is coming Consti- courts are empowered through the su- out of a period of enormous conflict and tutional Court premacy clause to be guardians of the val- pain, it turns out to be counterproductive for ues established in the new Constitution. the community, freezing its maturity and growth. . . . How does memory [both] be - South Africa’s Constitution holds the vi - guile and save and guide us? How can we sion or promise of a transformed society keep our innocence once we have tasted based on democratic values, social justice, evil? How to forgive those who have hurt and fundamental human rights. That vi- us irreparably? How do we ½nd a language sion cannot be achieved without acknowl- that is political but not pamphletary?39 edging the complexity of our memories of These are the questions that we must justice and injustice. The task of establish- bear in mind if we are to move forward and ing a just society in the aftermath of injus- ½nd a conception of justice consonant with tice is not easy, as Nietszche warned. Ariel our constitutional vision. To establish that Dorfman, the Chilean author, made a sim- new conception will require hard work and ilar admonition in the afterword to his re- discipline. It is not an easy process, nor is markable play Death and the Maiden: its outcome assured. But if, as lawyers and A multitude of messages of the contempo- judges, we commit ourselves to a habit of rary imagination, speci½cally those that are doing justice, it is just possible that a com- channelled through the mass entertainment passionate and principled conception of media, assure us, over and over, that there justice will be wrought, mindful of our his- is an easy, even facile, comforting answer tory and founded in our constitutional rec- to most of our problems. Such an aesthetic ognition of the equal worth of every person.

endnotes 1 The ½rst section of this essay is adapted from an address given by the author at the Nelson Mandela Foundation in Johannesburg on April 2, 2009. That address was entitled “For Life and Action: Justice, Reconciliation, and the Work of Memory.” The text of that address was published in the South African legal magazine Without Prejudice in the same year. 2 For more on the construction of the conception of justice in periods of political transition, see Ruti Teitel, Transitional Justice (New York: Oxford University Press, 2000), 3–4 and through - out the book. 3 Friedrich Nietzsche, “On the Uses and Disadvantages of History for Life,” in Untimely Medita- tions (Cambridge: Cambridge University Press, 1997), 76. 4 Muriel Horrell, A Survey of the Race Relations in South Africa, vols. 24–26, 28, South African Institute of Race Relations, Johannesburg. 5 Immorality Act 23 of 1957. 6 Prohibition of Mixed Marriages Act 55 of 1949. 7 Reservation of Separate Amenities Act 49 of 1953. 8 Group Areas Act 36 of 1966. 9 Natives Land Act 23 of 1913.

176 Dædalus, the Journal ofthe American Academy of Arts & Sciences 10 In terms of the influx control legislation enforced by the apartheid government, African peo- Kate ple had to carry a “pass book” or “dompas” containing their personal details and a photo- O’Regan graph; the pass book was meant to indicate whether a person was lawfully entitled to be in an urban area. The hated pass laws were repealed only in 1986. 11 In this regard, see the comments by former Chief Justice PN Langa in his submission to the Truth and Reconciliation Commission (the trc), reproduced in the South African Law Journal 115 (1998): 38. For a full discussion of the trc’s investigation of the role of judges under apartheid, see David Dyzenhaus, Judging the Judges: Judging Ourselves (Oxford: Hart Publishing, 1998). 12 Section 3(1)(a) of the Promotion of National Unity and Reconciliation Act 34 of 1995. 13 Ibid., sec. 1(1)(xix). 14 See, for example, Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission (Cape Town: Oxford University Press, 2000); Kader Asmal, Louise Asmal, and Ronald Suresh Roberts, Reconciliation through Truth: A Reckoning of Apartheid’s Criminal Gov- ernance, 2nd ed. (Cape Town: David Philip Publishers, 1996); Daan Bronkhorst, Truth and Reconciliation: Obstacles and Opportunities for Human Rights (Amsterdam: Amnesty Interna- tional, 1995); Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998); and Dyzenhaus, Judging the Judges. 15 David Dyzenhaus’s term; see ibid., 6. 16 Minow, Between Vengeance and Forgiveness, 10. 17 Ibid., 12. 18 C. S. van der Waal, “Formal and Informal Dispute Resolution in Limpopo Province, South Africa,” in The Shade of New Leaves Governance in Traditional Authority: A Southern African Perspec- tive, ed. Manfred Hinz (Berlin: Lit Verlag, 2006), 141–142. 19 See D. du Toit et al., The Labour Relations Act of 1995, 2nd ed. (Durban, South Africa: Butter- worths, 1998), 9–11. 20Christina Murray and Kate O’Regan, No Place to Rest: Forced Removals and the Law in South Africa (Oxford: Oxford University Press, 1990). 21 Richard Abel, Politics by Other Means: Law in the Struggle Against Apartheid, 1980–1994 (New York: Routledge, 1995). 22 Ibid. 23 Government of Lebowa v. Government of the Republic of South Africa 1988 (1) SA 344 (A). 24 End Conscription Campaign and Another v. Minister of Defence and Another 1989 (2) SA 180 (C). 25 See, for example, Bob Fine, Francine de Clercq, and Duncan Innes, “Trade Unions and the State: The Question of Legality,” SA Labour Bulletin 7 (1–2) (1981): 39–68; General Workers Union, “Reply to Fine, de Clercq and Innes,” SA Labour Bulletin 7 (3) (1981): 16–25; Fink Haysom, “In Search of Concessions: Reply to Fine et al.,” SA Labour Bulletin 7 (3) (1981): 26–41; and Hirsch and Nicol, “Trade Unions and the State: A Response,” SA Labour Bulletin 7 (3) (1981): 42–50. 26 Abel, Politics by Other Means, 533. 27 Ibid., 538. 28 Ibid., 549. 29E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (Harmondsworth, U.K.: Penguin, 1977). 30 Ibid., 266. 31 Ibid.

143 (3) Summer 2014 177 Justice & 32 Section 174(2) of the Constitution stipulates that “[t]he need for the judiciary to reflect Memory: broadly the racial and gender composition of South Africa must be considered when judicial South of½cers are appointed.” Africa’s Consti- 33 See Bronwyn Law-Viljoen, ed., Light on a Hill: Building the Constitutional Court of South Africa tutional (Parkwood, South Africa: David Krut Publishing, 2005). Court 34 Section 38 of the Constitution provides: “Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are — (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members.” 35 Rule 10 of the Constitutional Court Rules. See Ferreira v. Levin NO and Others; Vryenhoek and Others v. Powell NO and Others 1996 (1) SA 984 (CC), para. 4; Hoffmann v. South African Airways 2001 (1) SA 1 (CC), para. 63; In re Certain Amicus Curiae Applications: Minister of Health and Others v. Treatment Action Campaign and Others 2002 (5) SA 713 (CC), para. 3–5; and Richter v. Minister for Home Affairs and Others [2009] ZACC 3. 36 See President of the Ordinary Court-Martial NO v. Freedom of Expression Institute 1999 (4) SA 682 (CC). 37 South African Broadcasting Corp Ltd v. National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC); and Independent Newspapers (Pty) Ltd v. Minister for Intelligence Services: In re Masetlha v. President of the Republic of South Africa and Another 2008 (5) SA 31 (CC). 38 Affordable Medicines Trust and Others v. Minister of Health and Others 2006 (3) SA 247 (CC), para. 38. 39 Ariel Dorfman, Death and the Maiden (London: Nick Hern Books, 1991), 49.

178 Dædalus, the Journal ofthe American Academy of Arts & Sciences William Clift’s mid-1970s photograph captures (ada), which required that buildings be made the dilapidated state of a courtroom in Mis- accessible to those with disabilities. (In the souri’s Warren County Courthouse. The his- 2004 de cision Tennessee v. Lane, the U.S. Su - tory of that building tracks the changing polit- preme Court held that states could be required ical contexts and the challenges faced by local to pay damages to individuals unable to gain courts during the course of almost two cen- ac cess to courthouses because of ada com- turies. pliance failures.) In the 1830s, Warren County succeeded in The county estimated that renovations to becoming a seat of justice in Missouri. In 1839, bring the courthouse into compliance with county planners erected a courthouse in War- the ada would cost about $180,000. Instead renton as the town’s centerpiece: only after it of seeking those funds, the county proposed was sited were other town lots sold. and enacted a $6.1 million bond issue to sup- Within decades, that building was at risk. port a new “Justice Center.” Some members During the Civil War, Missouri secessionists of the class of disabled persons in the pending sacked a neighboring courthouse in Danville case protested; they argued that the historic to weaken the civil government in the state’s courthouse should be preserved and made Unionist counties. That vulnerability prompt- compliant with the ada. Despite their efforts ed Warrenton in 1866 to construct a ½reproof and those of preservationists, a federal judge structure, called the Circuit Court Building, for approved the decision to end the lawsuit by the storage of records. demolishing the 1870 structure. In 1870, the town complemented its record Thus, just as the 1839 courthouse had given depository by replacing the ½rst courthouse way to a successor, so did the 1870 building, with a yet-grander building on the same site. which was replaced by a three-story, 54,000- The two-story classic revival building–forty- square-foot Justice Center. That building was ½ve by ½fty-½ve feet–had four cast-iron Co - a testament to the growth of the criminal rinthian columns, rounded-arched windows, docket. It housed county of½ces, the sheriff’s and a slate roof. Upon entering, one found a department, a jail with capacity for one hun- smal ler courtroom on the ½rst floor and the dred prisoners, a ten-bed work-release dormi- main courtroom a flight up, on the second tory, and three courtrooms. floor. The building cost $40,000, plus an addi - By 2008, the Justice Center was pressed for tional fee of $350 paid to the architect, Thomas space, and, in 2012, the county built a 36,000- W. Brady, for his design. square-foot administrative of½ce building, One hundred years later, in 1974, the Warren cost ing some $6.5 million. The additional build - County Courthouse gained a place on the Na- ing shifted many of½ces out of the courthouse. tional Register of Historic Places. Yet, as the In 2013, the county, whose population then photograph documents, the courthouse was by exceeded 32,000, quali½ed for a third judge, then in disrepair. Four bond issues were pro- whose work included helping staff a new posed in the 1960s and 1970s to support badly drug court, designed to provide alternatives to needed renovations, but none won approval. incarceration. Challenges to that building came from an- One piece of the 1870 courthouse remains. other direction in 1992, when a lawyer who Preservationists purchased the court’s eleven- was disabled brought a federal class action law - foot-high cupola–“its crowning glory”– to suit against the county. He alleged that the dis play it at the Warren County Historical So - court house–which had no elevator and bath - ciety, behind the new Justice Center. rooms only in the basement–failed to comply with the 1990 Americans with Disabilities Act © 2014 by Judith Resnik

Inside back cover: Crack, Jury Chairs, Warren Coun- ty Courthouse, Warrenton, Missouri, 1974–1976. © William Clift. Cover_Summer 2014 6/9/2014 10:09 AM Page 2 Cover_Summer 2014 6/9/2014 10:09 AM Page 1 Dædalus coming up in Dædalus:

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