JUDGING WITHOUT A J.D.

Introduction

Maya, a single mother of two, spent hours preparing for her court date in a rural county of North Carolina. 1 1 In order to protect the identity of respondents, Maya’s experience is based on a combination of experiences. Greene conducted both a qualitative research project in the summer of 2019 that studied the Eviction Diversion Program in Durham, North Carolina and a case study of North Carolina magistrate courts in 2020 and 2021 for this project. The first study included one-to-two-hour interviews with fifty respondents who had been evicted or were at risk of eviction and had either inquired about or received help from the Eviction Diversion Program. The second study, a case study of North Carolina magistrate-run courts, involved interviews with a diverse panel of key informants on the North Carolina magistrate court system. For further explanation and details about these key informant interviews, see infra Part III. ... Close Even before court, Maya knew the stakes were high—she would find out whether she would be evicted from the apartment she had lived in for six years, the apartment her children called home. She did not have an attorney, but, after conducting online research, she felt relatively confident that her landlord had violated the “implied warranty of habitability” he owed her family, and thus, she believed she would prevail and avoid eviction.

Maya lost her case. About two weeks later, her possessions were removed from the apartment, and she was evicted. Maya was confused after court and wondered if she had not quite understood the law. What Maya assumed, of course, was that she was the one who was confused about the law. What Maya did not know was that the magistrate judge she had just appeared before might also have been confused about the law. In fact, the judge was in his first six months on the job and had received exactly zero hours of legal training of any kind: no webinar, no training session, nothing.

Low-level state court judges like the one Maya appeared before wield substantial power over the lives of millions of people, people who are disproportionately poor and disproportionately Black and Latinx. 2 2 See Tonya L. Brito, Producing Justice in Poor People’s Courts: Four Models of State Legal Actors, 24 Lewis & Clark L. Rev. 145, 147 (2020) (noting that state civil court cases include a disproportionate number of socioeconomically disadvantaged litigants); Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg & Alyx Mark, Judges in Lawyerless Courts, 110 Geo. L.J. 509, 512 (2022) [hereinafter Carpenter et al., Judges in Lawyerless Courts] (noting that issues in state civil trial courts are typically “deeply connected to fun­damental human needs such as safety, intimate relationships, housing, and financial secu­rity” and that “[m]any people . . . pulled into civil court . . . are already suffering the consequences of America’s frayed”—or nonexistent—“social and economic safety nets”); Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan & Alyx Mark, Studying the “New” Civil Judges, 2018 Wis. L. Rev. 249, 257–59 [hereinafter Carpenter et al., Studying the “New” Civil Judges] (detailing how legally sophisticated individuals and corporations generally bypass the civil justice system, rendering the docket of these courtrooms to be primarily concerned with “low-value” contract disputes and family law disputes); Elizabeth L. MacDowell, Reimagining Access to Justice in the Poor People’s Courts, 22 Geo. J. on Poverty L. & Pol’y 473, 493­­–94 (2015) (discussing how Black men and women are disproportionately represented in “poor people’s courts” and how they are disadvantaged in these courts); Lauren Sudeall & Darcy Meals, Every Year, Millions Try to Navigate US Courts Without a Lawyer, The Conversation (Sept. 21, 2017), https://theconversation.com/every-year-millions-try-to-navigate-us-courts-without-a-lawyer-84159 [https://perma.cc/6DMM-KF8G] (detailing how millions of litigants, often unrepresented, interact with the civil justice system each year). ... Close Indeed, these judges, often called magistrate judges or justices of the peace (depending on the state), decide critical issues such as whether families are evicted, whether someone owes a debt collector thousands of dollars, and whether someone’s car is repossessed. These judges make profoundly important decisions that alter the life courses of millions of Americans each year. 3 3 In 2018, there were 16.4 million nontraffic related civil cases filed in state civil courts. Ct. Stats. Project, State Ct. Adm’rs & Nat’l Ctr. for State Cts., State Court Caseload Digest: 2018 Data, at 7 (2020), ‌‌https://www.courtstatistics.org/__data/assets/pdf_file/0014/40820/2018-Digest.pdf‌ [https://perma.cc/5RXH-VVTJ]. Many studies have noted the importance of low-level state court issues in the lives of people who have low incomes. See Rebecca L. Sandefur, Am. Bar Found., Accessing Justice in the Contemporary USA: Findings
From the Community Needs ‌and Services Study 9–10 (2014), ‌https://www.americanbarfoundation.org/uploads/cms/documents/sandefur_accessing_justice_in_the_contemporary_usa._aug._2014‌.p‌d‌f‌ ‌[https://perma.cc/QMY6-A85D] (discussing findings regarding civil justice’s impact on social inequality); Carpenter et al., Judges in Lawyerless Courts, supra note 2, at 512–13 (noting the importance of the issues at stake in state civil courts for lower-income Americans); Sara Sternberg Greene, Race, Class, and Access to Civil Justice, 101 Iowa L. Rev. 1263, 1271 (2016) (“Investigations into access-to-justice issues for different groups can provide a lens into how our civil legal institutions may aid in the perpetuation of inequality and how different groups are integrated into—and excluded from—public institutions.”). ... Close Yet a little recognized fact is that the judge’s lack of credentials in Maya’s case is not unusual. 4 4 A few recent articles have noted the phenomenon of judges without J.D.s in passing, but the analysis of the issue of nonlawyer judges in much of this scholarship is very limited since the articles focus on other important topics. See Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 979 (2021) (offering the first comprehensive analysis of the municipal court phenomenon and noting that the majority of states with municipal courts do not require municipal judges to hold law degrees and that the training requirements for such judges vary significantly); Lauren Sudeall & Daniel Pasciuti, Praxis and Paradox: Inside the Black Box of Eviction Court, 74 Vand. L. Rev. 1365, 1385 n.93 (2021) (studying rural and urban eviction courts in Georgia—showing that law is highly localized—and noting that Georgia law does not require magistrate judges to have law degrees and some of the judges in the study did not have law degrees); Justin Weinstein-Tull, The Structures of Local Courts, 106 Va. L. Rev. 1031, 1053–55 (2020) (examining the relationship between local court systems and administrative bodies within state judicial branches, reevaluating theories of judicial federalism in light of local courts, and noting that “a surprising number of states and jurisdictions permit people with no legal training to serve as local-court judges”). Professor Weinstein-Tull’s article uses data collected by the National Center on State Courts to find that twenty-six states allow nonlawyer judges in low-level state courts. Id. at 1053 n.95. However, our more recently collected data after an exhaustive search of state statutes and websites finds that thirty-two states allow nonlawyer judges at some level of court, including some differences (both inclusions and exclusions) with Weinstein-Tull’s data. See infra Appendix. A 2018 student note by Jason Neal focuses on nonlawyer magistrate judges. It is the only recent article or note we know of to focus on this topic, but it does not take a national perspective and instead focuses only on West Virginia. See Jason Neal, Note, Who Decides Justice: The Case for Legally Trained Magistrate Judges in West Virginia, 121 W. Va. L. Rev. 727, 729–30 (2018). Further, he focuses on the constitutional issues surrounding nonlawyer judges in West Virginia, analyzing both West Virginia’s constitution and federal cases on the issue. Id. In contrast to Neal’s note, our Essay takes empirical, national, and access-to-judge lenses when analyzing the issue. Additionally, Professor Cathy Lesser Mansfield has written a comprehensive article that focuses on lay judges. Cathy Lesser Mansfield, Disorder in the People’s Court: Rethinking the Role of Non-Lawyer Judges in Limited Jurisdiction Court Civil Cases, 29 N.M. L. Rev. 119, 133–34 (1999). However, Mansfield’s piece is over twenty years old and focuses only on civil jurisdiction for lay judges. Finally, thirty-five years ago, in 1986, Professor Doris Marie Provine took up the issue of nonlawyer judges in the book Judging Credentials, arguing against requiring judges to have law degrees. Doris Marie Provine, Judging Credentials: Nonlawyer Judges and the Politics of Professionalism 168–70, 177–81 (1986). Our study of course considers more contemporary access to justice and inequality issues and provides recent data on the issue of nonlawyer judges. ... Close In well over half of the states, judges are making at least some of these decisions without a law degree and sometimes with no legal training at all. 5 5 See infra section II.B. ... Close

This fact is counter to one of the most basic assumptions of our legal system—when two parties go to court, the case will be adjudicated before a judge who is trained in the law. Legal scholars have long been interested in whether specific characteristics of judges—such as political views, implicit biases, gender, or religion, among others—might affect outcomes. 6 6 See Stuart Minor Benjamin & Kristen M. Renberg, The Paradoxical Impact of Scalia’s Campaign Against Legislative History, 105 Cornell L. Rev. 1023, 1027 (2020) (analyzing the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history); Pat K. Chew & Robert E. Kelley, Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases, 86 Wash. U. L. Rev. 1117, 1141 (2009) (finding that, even after controlling for political affiliations, federal judges of different races rule on racial harassment cases differently—and these differences are statistically meaningful); Justin D. Levinson, Mark W. Bennett & Koichi Hioki, Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes, 69 Fla. L. Rev. 63, 68 (2017) (detailing a series of empirical tests that demonstrate how negative implicit biases manifest in both state and federal judges); Jennifer L. Peresie, Note, Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts, 114 Yale L.J. 1759, 1776–79 (2005) (detailing empirical findings on the direct and indirect impact a judge’s gender has on their decisionmaking and collegial behavior on appellate panels). ... Close Indeed, numerous articles consider whether judges consistently (and fairly) apply the law. 7 7 Chew & Kelley, supra note 6; Levinson et al., supra note 6; Peresie, supra note 6. ... Close But the underlying assumption is that judges know the law—the question is usually how they interpret and apply it and why. 8 8 See supra note 7. One interesting consideration for further study is the comparative perspective. Lay judging is common in several countries around the world, with different countries employing very different systems and configurations of judges. Sanja Kutnjak Ivković, Shari Seidman Diamond, Valerie P. Hans & Nancy S. Marder, Introduction in Juries, Lay Judges, and Mixed Courts: A Global Perspective 2–11 (Sanja Kutnjak Ivković, Shari Seidman Diamond, Valerie P. Hans & Nancy S. Marder eds., 2021). In future work, we hope to compare and contrast these different systems to that in the United States in order to better understand how culture and history contribute to different judicial structures concerning lay judges. ... Close

This Essay begins by showing that empirically, the assumption that most judges have legal training does not hold true for low-level state courts in many states. Using data compiled from all fifty states and the District of Columbia, this survey finds that thirty-two states allow at least some low-level state court judges to adjudicate without a law degree, and indeed, there are hundreds of magistrates and justices of the peace in these states wielding substantial legal authority who have never been trained in the law. 9 9 See infra Appendix, tbls.1 & 2. ... Close In seventeen states, judges with no law degree are permitted to adjudicate eviction cases. 10 10 Connecticut, Idaho, Indiana, Iowa, New Hampshire, and Washington are not included in this count, even though they technically allow lay judges in certain circumstances. See infra note 147 and accompanying text and Appendix. ... Close

At first glance, it may appear that this system of noncredentialed judges is efficient, or even necessary, given the limited resources of the judiciary. But allowing a system of nonlawyer judges perpetuates long-standing inequalities in how litigants experience courts. This Essay rejects efficiency justifications and argues that the phenomenon of judges without J.D.s is a symptom of a much larger problem in our justice system: the devaluation of the legal problems of the poor, who are disproportionately Black and Latinx. 11 11 John Creamer, Inequalities Persist Despite Decline in Poverty for All Major Race and Hispanic Origin Groups, U.S. Census Bureau (Sept. 15, 2020), https://www.census.gov/library/stories/2020/09/poverty-rates-for-blacks-and-hispanics-reached-historic-lows-in-2019.html [https://perma.cc/V43J-5AP2] (last updated Dec. 9, 2021) (“Blacks and Hispanics continue to be over-represented in the population in poverty relative to their representation in the overall population.”). ... Close We argue that this devaluation stems in part from an enduring cultural history of blaming the poor for their poverty  and  the  associated  problems  of  poverty. 12 12 See, e.g., Maia Szalavitz, Why Do We Think Poor People Are Poor Because of Their Own Bad Choices?, Guardian (July 5, 2017), https://www.theguardian.com/us-news/2017/jul/05/us-inequality-poor-people-bad-choices-wealthy-bias (on file with the Columbia Law Review) (discussing how perceptions and cultural phenomena intersect and lead to the belief that the poor deserve what they get). ... Close Many of the legal problems of the poor that end up in low-level courts are problems of poverty (such as eviction and debt collection), and inadequate resources are devoted to courts that address them. The implication is that these problems of poverty do not deserve access to well-run and well-resourced institutions. In other words, an overriding response to the problems of the poor throughout American history—whether legal problems or otherwise—has been that the State should not, and cannot, devote substantial resources to these problems and the institutions meant to address them, in part due to a cultural narrative around the “undeserving poor” that implicates those who are poor in the problems of poverty. 13 13 See Joel F. Handler & Yeheskel Hasenfeld, Blame Welfare, Ignore Poverty and Inequality 151–52 (2007) (detailing the long history in America of blaming the poor for their condition and conceiving of poverty as a “moral fault”). ... Close

Consider the message that is sent to both poor litigants and those who bring them to low-level state courts, such as landlords and debt collectors. The types of cases state courts hear have obvious gravity on the lives of millions of poor Americans each year; indeed, a litigant can lose their home in an eviction case or be subject to wage garnishment in a debt collection case. Despite the weight of these cases on the lives of poor litigants, however, the State has deemed such cases unworthy of the necessity of a legally trained adjudicator. This reality is experienced by thousands of poor Americans each day, as well as by thousands of powerful landlords and debt collectors. The symbolic nature of such a determination by the State should not be lost. Allowing judges to adjudicate without J.D.s illustrates the degree to which low-level state courts do not even pretend to engage with the legal rights of the poor, let alone enforce such rights. Instead, these institutions are in fact designed so that those with power and resources can, and do, prevail. 14 14 See Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal 4–5 (2018) (noting that the misdemeanor system in the United States “often violates basic legal principles of justice and fairness,” leaving those without resources particularly vulnerable); Marc Galanter, Why the Haves Come Out Ahead: Speculation on the Limits of Legal Change, 9 Law & Soc’y Rev. 95, 97–101 (1974) (detailing how “repeat players” (those who have resources and anticipate engaging in repeat litigation of the same type in the legal system) are able to shape the development of law in their favor, as opposed to “one-shotters” (those who have infrequent dealings with the legal system and less resources)); Nicole Summers, The Limits of Good Law: A Study of Housing Court Outcomes, 87 U. Chi. L. Rev. 145, 190–91 (2019) (finding that the majority of tenants with a meritorious warranty of habitability claim do not prevail in court). ... Close

This situation is even more concerning when considered in light of a related critical issue that Professors Anna Carpenter, Alyx Mark, Colleen Shanahan, Jessica Steinberg, and others have identified: Low-level state courts are essentially pro se courts, where the vast majority of litigants appear before the court with no attorney to represent them because there is no right to counsel in civil cases. 15 15 See Turner v. Rogers, 564 U.S. 431, 448 (2011) (finding that the Due Process Clause does not automatically guarantee a right to counsel in a civil contempt hearing, even if the individual is ultimately imprisoned); Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24–25 (1981) (finding that a “presumption” of the right to appointed counsel exists only in cases where litigants may lose their physical liberty as a result of losing the litigation). Be­cause of a lack of resources, legal aid and other such organizations do not have the capacity to provide a lawyer to all (or even close to all) litigants who want or need one. Legal Servs. Corp. (LSC), The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans 13 (2017), https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf [https://perma.cc/B55X-4YWZ] (“In 2017, low-income Americans will approach LSC-funded legal aid organizations for help with an estimated 1.7 million civil legal problems . . . but are expected to receive enough help to fully address their legal needs for only 28% to 38% of them.”). Of the problems low-income Americans bring to LSC grantees, “[m]ore than half (53% to 70%) . . . will receive limited legal help or no legal help at all.” Id. ... Close These scholars and others have explored, sometimes empirically, the dynamic between judges and unrepresented litigants in state courts, studying judges’ behavior in pro se courts, noting important problems, and suggesting blueprints for reform. 16 16 See Carpenter et al., Judges in Lawyerless Courts, supra note 2, at 512–13. Several other scholars have also examined different dimensions of the importance of lawyers in low-level state court proceedings, though few have specifically focused on the role of judges. See Lauren Sudeall Lucas, Am. Const. Soc’y, Deconstructing the Right to Counsel 2 (2014), https://www.acslaw.org/wp-content/uploads/2014/08/Lucas_-‌_Deconstructing_the_Right_to_Counsel.pdf [https://perma.cc/43SF-QP8L] (introducing “an organizational framework for evaluating the proposals emerging from the access to civil justice debate” in order to examine the right to counsel and explore why it is needed in both criminal and civil contexts); D. James Greiner & Cassandra Wolos Pattanayak, Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?, 121 Yale L.J. 2118, 2121–22 (2012) (studying the difference that an offer, and actual use, of legal representation made to low-income clients in civil cases); Peter A. Holland, Junk Justice: A Statistical Analysis of 4,400 Lawsuits Filed by Debt Buyers, 26 Loy. Consumer L. Rev. 179, 182, 185–87 (2014) (examining litigation outcomes for junk debt plaintiffs and finding that defendants represented by a lawyer achieved far better outcomes than those without representation); Cassandra Wolos Pattanayak, D. James Greiner & Jonathan Hennessy, The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future, 126 Harv. L. Rev. 901, 906–07 (2013) (examining “whether limited legal assistance is sufficient to approximate a traditional attorney-client relationship in summary eviction proceedings”); Kathryn A. Sabbeth, Simplicity as Justice, 2018 Wis. L. Rev. 287, 288–89 (arguing that seeking to simplify proceedings to obviate the need for legal representation can carry potential downsides and unintended consequences); Sudeall & Pasciuti, supra note 4, at 1368 (studying suburban and rural eviction courts in Georgia and finding that applying and enforcing laws is a highly localized process). ... Close They have found that the phenomenon of pro se courts leads to an “ethically ambiguous” role for judges. 17 17 See Carpenter et al., Studying the “New” Civil Judges, supra note 2, at 279–82. ... Close Judges are faced with two different paths: They can either maintain their traditionally passive and neutral role while leaving unrepresented litigants to figure things out for themselves, which is often very difficult for them to do; or, they can take a much more active role in cases, such as “simplifying courtroom procedures, filling information gaps for unrepresented people, actively developing the factual record in trials, [and] identifying legal issues.” 18 18 See Carpenter et al., Judges in Lawyerless Courts, supra note 2, at 513. Several scholars have focused reform suggestions on the role of judges in pro se courts, most arguing that judges should take a more active role in proceedings to ensure fairness. See Anna E. Carpenter, Active Judging and Access to Justice, 93 Notre Dame L. Rev. 647, 653, 686–87 (2017) (discussing findings regarding variation in active judging and exploring why and when judges use active judging); Russell Engler, And Justice for All—Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 Fordham L. Rev. 1987, 2029–31 (1999) (arguing judges should take an active role in helping unrepresented litigants develop a factual record and with matters of procedural and substantive law); Russell G. Pearce, Redressing Inequality in the Market for Justice: Why Access to Lawyers Will Never Solve the Problem and Why Rethinking the Role of Judges Will Help, 73 Fordham L. Rev. 969, 970, 977–78 (2004) (arguing that judges should be required to play an active role in ensuring justice in cases with unrepresented litigants). ... Close In their recent work studying domestic violence courts, where the judges were all legally trained, Carpenter, Mark, Shanahan, and Steinberg found that judges almost universally lean toward the first path—“judges exercised process control and wielded legal jargon in ways that maintained legal and procedural complexity in their courtrooms.” 19 19 Carpenter et al., Judges in Lawyerless Courts, supra note 2, at 513. ... Close

We build on this existing work but consider a different set of related problems: those that arise in courts where judges themselves are not legally trained, yet preside over cases with mostly unrepresented litigants. In such cases, the judge is often unable to “fill[] information gaps for unrepresented people, actively develop[] the factual record in trials, [and] identify[] legal issues,” 20 20 Id. at 513. ... Close or “maintain[] legal and procedural complexity in their courtrooms” 21 21 Id. at 516, 539. ... Close because the judge does not know the law or legal procedures.

The situation is Kafkaesque: In such courtrooms, sometimes no one has in-depth knowledge of the law or, often even more problematic, sometimes only one attorney for one party, the more powerful and resourced party, has such knowledge. 22 22 See Heidi Schultheis & Caitlin Rooney, Ctr. for Am. Progress, A Right to Counsel Is a Right to a Fighting Chance: The Importance of Legal Representation in Eviction Pro­ceedings 1 (2019), https://americanprogress.org/wp-content/uploads/2019/10/Right-To-Counsel.pdf [https://perma.cc/SEZ6-WE9G] (“When it comes to evictions, tenants are set up to fail. In eviction lawsuits nationwide, an estimated 90 percent of landlords have legal representation, while only 10 percent of tenants do.”); Editorial Board, Opinion: In Our System, Landlords Have Lawyers. Tenants Often Don’t. So Tenants Lose., Wash. Post (Apr. 22, 2021), https://www.washingtonpost.com/opinions/2021/04/22/tenants-eviction-cases-lawyers-cleveland-euclid/ (on file with the Columbia Law Review). ... Close This attorney, of course, is ready to school the (untrained) judge on why his client should prevail. The inequality of the situation is glaring. There is no real illusion of a fair legal process, as those who experience courts with these dynamics know all too well. 23 23 See Barbara Bezdeck, Silence in the Court: Participation and Subordination of Poor Tenants’ Voices in Legal Process, 20 Hofstra L. Rev. 533, 534–35 (1992) (illustrating that Baltimore’s rent court systematically excludes litigants who are members of socially subordinated groups from legal protections); Summers, supra note 14, at 205 (demonstrating through empirical research that tenants with meritorious warranty of habitability claims and representation were at least nine times more likely to prevail than unrepresented tenants with meritorious warranty of habitability claims). ... Close

This Essay proceeds as follows: Part I traces the history of lay judging in the United States back to the colonial era, when it was common for nonlawyer justices of the peace to preside over legal cases. 24 24 Alexis de Tocqueville observed the trend of nonlawyer judges in colonial America and defended the practice, remarking: “A justice of the peace is a well-informed citizen, though he is not necessarily versed in the knowledge of the laws. His office simply obliges him to execute the police regulations of a society, a task in which good sense and integrity are of more avail than legal science.” Alexis de Tocqueville, Democracy in America 93 (1898). ... Close Following state law and practice changes over time, including challenges to the constitutionality of nonlawyer judges, we note key moments of potential reform and why they failed. We also trace the long history of this country’s neglect of the poor and the institutions that serve them, providing a roadmap to understanding how a similar trajectory has played out in the court system. In Part II, we define the scope of judging without a J.D. based on our data, describing our data-gathering process and sharing details of our survey findings. In Part III, we consider the prognosis of nonlegally trained judges, in part by exploring a case study of North Carolina and key informant interviews that we gathered. This part discusses some of the arguments for lay judging but also explores the pitfalls of the practice and how these problems play out for litigants involved in the courts. We also show how the practice is consistent with U.S. historical patterns of devaluing the problems of the poor and underresourcing institutions that serve them, ultimately perpetuating inequalities in our justice system. Finally, this Essay concludes by offering thoughts about a potential roadmap to begin the process of reform while being mindful of economic pressures on state court systems.