THE INSTITUTIONAL MISMATCH OF STATE CIVIL COURTS

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

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* Clinical Professor of Law, Columbia Law School.

** Professor of Law, George Washington University Law School.

*** Assistant Professor of Government, Wesleyan University.

**** Professor of Law, University of Utah S.J. Quinney College of Law.

Thank you to stellar research assistants Meir Blesofsky, Adia Davis, Renyang Gao, Michelle Gomez-Reichman, Aarti Goyal, Tanner Lockhead, Seojin Park, Ashton Ruff, Catherine Twigg, Mason Walther, and Amanda Yang. Thank you to Pamela Bookman, Lincoln Caplan, Russell Engler, Kellen Funk, Emily Taylor Poppe, Kathryn Sabbeth, Rebecca Sandefur, Jane Spinak, Susan Sturm, the participants in the American Academy of Arts & Sciences Access to Justice Authors’ Conference, and the participants in the Columbia Law School and Georgetown University Law Center Faculty Workshops for feedback. Thank you to our institutions, and specifically the William S. Friedman Faculty Research Fund at Columbia Law School, for research support. We are grateful to Alison Hung and the staff of the Columbia Law Review for expert editing.

Introduction

Across the country, the courtroom door marked “Housing Court” reveals a judge listening to hour after hour of people on the verge of losing their homes because they have lost a job, had an unexpected medical expense, cannot afford childcare, have a family member engaged in the criminal legal system, complained about the condition of their home, or because the rent will always be too high. The litigants in housing court are disproportionately Black, though the racial and ethnic background of those facing the loss of their home varies across the country. 1 Peter Hepburn, Renee Louis & Matthew Desmond, Racial and Gender Disparities Among Evicted Americans, 7 Socio. Sci. 649, 653–58 (2020) (showing that “for every 100 eviction filings to white renters, . . . there were nearly 80 eviction filings to black renters” and that the percentage of eviction filings against Black renters in the ten largest counties studied ranged from 16.6% in Middlesex, Massachusetts to 61.3% in Philadelphia, Pennsylvania); see also Deena Greenberg, Carl Gershenson & Matthew Desmond, Discrimination in Evictions: Empirical Evidence and Legal Challenges, 51 Harv. C.R.-C.L. L. Rev. 115, 120 (2016) (“Studies from different cities have found that people of color comprise about eighty percent of those facing evictions.”). Most of the people facing this life-altering consequence are women, 2 See Kathryn Sabbeth & Jessica K. Steinberg, The Gender of Gideon, 69 UCLA L. Rev. (forthcoming 2022) (manuscript at 11), https://ssrn.com/abstract=3807349 [https://perma.cc/6SGG-YN47]. almost none of whom have a lawyer, though many of their landlords do, 3 Jessica K. Steinberg, Demand Side Reform in the Poor People’s Court, 47 Conn. L. Rev. 741, 750 (2015) (“In landlord-tenant matters . . . it is typical for ninety percent of tenants to appear pro se while ninety percent of landlords appear with counsel.”). and losing their home will immediately harm their economic security, family integrity, and mental and physical health. 4 Emily Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequality and Social Injustice, 65 Am. U. L. Rev. 275, 308–12 (2015) (“[C]onsequences of eviction often include prolonged periods of homelessness, job loss, depression, and subsequent deterioration of health.”). The litigants in housing court do not end up behind that door by coincidence. Rather, this is a foreseeable consequence of the absence of affordable and adequate housing, health care, childcare, and education, the absence of fair and equal wages, and the presence of mass incarceration in our society. State civil cases involving debt, family relationships, and children have different names on the courtroom door but similar stories behind those doors. The millions of people who come to state civil courts each year in the United States are in crisis, and so, too, are the courts that hear their cases.

When scholars and reformers talk about this problem, we acknowledge its overwhelming breadth and depth and then fix our gaze on a particular group of institutional actors. We theorize their role, quantify behavior and its impact, consider different roles for actors, or contemplate the role of technology instead. We might look closely at the experience of litigants, 5 See, e.g., Barbara Bezdek, Silence in the Court: Participation and Subordination of Poor Tenants, 20 Hofstra L. Rev. 533, 541 (1992) (“At [the] root [of the standard view of legal institutions] is the acculturated belief that the individual is the proper unit to scrutinize when analyzing disputes about performance under a lease agreement.”); Russell Engler, Approaching Ethical Issues Involving Unrepresented Litigants, Clearinghouse Rev. J. Poverty L. & Pol’y 377, 377 (2009) (approaching ethical issues by focusing first on interactions with unrepresented adverse parties). the dominance of certain plaintiffs, 6 See, e.g., Kathryn Sabbeth, (Under)Enforcement of Poor Tenants’ Rights, 27 Geo. J. on Poverty L. & Pol’y 97, 119–28 (2019) (explaining why the private market fails to represent tenants as plaintiffs); Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704, 1728–33 (2022) (examining the repeat-player plaintiffs behind debt collection cases). a lack of lawyers, 7 See, e.g., Kathryn A. Sabbeth, Housing Defense as the New Gideon, 41 Harv. J.L. & Gender 55, 61 (2018) [hereinafter Sabbeth, Housing Defense as the New Gideon] (arguing that New York City legislation’s focus on defense lawyering limits the impact of appointment of counsel); Rebecca L. Sandefur, Elements of Professional Expertise: Understanding Relational and Substantive Expertise Through Lawyers’ Impact, 80 Am. Soc. Rev. 909, 912–16 (2015) (“Unrepresented litigants are common, with an average of 73 percent of the focal parties in each study appearing without any representation, and no representation characterizing 85 percent of the observed cases.”). judicial behavior, 8 See Anna E. Carpenter, Active Judging and Access to Justice, 93 Notre Dame L. Rev. 647, 651–55 (2017) (examining the impact of active judging on unrepresented litigants); Anna E. Carpenter, Colleen F. Shanahan, Jessica Steinberg & Alyx Mark, Judges in Lawyerless Courts, 110 Geo. L.J. 509, 512–13 (2022) [hereinafter Carpenter et al., Judges in Lawyerless Courts] (examining the “unfettered discretion” judges have in lawyerless courts with unrepresented litigants); Michael C. Pollack, Courts Beyond Judging, 46 BYU L. Rev. 719, 724, 730–58 (2021) (“State court judges engage in decisionmaking in a whole host of non-adversarial settings outside of the traditional context of dispute resolution.”); Jessica K. Steinberg, Adversary Breakdown and Judicial Role Confusion in “Small Case” Civil Justice, 2016 BYU L. Rev. 899, 906, 919–26 [hereinafter Steinberg, Adversary Breakdown] (“[J]udges are responding to an inflexible passive norm by abandoning it entirely. In some matters, judges extensively question parties and witnesses. In others, they relax or eliminate procedural and evidentiary rules. In still others, they raise new legal theories to fit the parties’ facts or order relief not requested.”). the power of court staff, 9 See, Russell Engler, And Justice for All—Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 Fordham L. Rev. 1987, 1988 (2005) (examining the role of the judges, mediators, and clerks in cases involving unrepresented litigants); Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan & Alyx Mark, Judges and the Deregulation of the Lawyer’s Monopoly, 89 Fordham L. Rev. 1315, 1327–36 (2021) [hereinafter Steinberg et al., Judges and Deregulation] (describing judges and their reliance on nonlawyer actors who ultimately shape facts, arguments, and outcomes). or technological intervention. 10 See David Freeman Engstrom & Jonah B. Gelbach, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. 1001, 1004–05 (2021) (describing the transformative effect of “legal tech” on litigation and civil procedure); Margaret Hagan, The User Experience of the Internet as a Legal Help Service: Defining Standards for the Next Generation of User-Friendly Online Legal Services, 20 Va. J.L. & Tech. 394, 399–402 (2016) (examining how the internet is currently insufficient as a legal help resource and discussing best practices for improving it as such; Tanina Rostain, Techno-Optimism & Access to the Legal System, 148 Daedalus 93, 95 (2019) (“Self-help technologies can play a useful role in assisting low- and moderate-income people, but they may not be the most effective means to redress power imbalances produced by income, racial, and other forms of inequality.”). This actor-focused view of state civil courts obscures the depth of the problem. The crisis of state civil courts is an institutional one, grounded in these courts’ role in democratic governance. 11 See Kathryn A. Sabbeth, Market-Based Law Development, The L. & Pol. Econ. Project (July 21, 2021), https://lpeproject.org/blog/market-based-law-development/ [https://perma.cc/5UQ8-BRZT] [hereinafter Sabbeth, Market-Based Law Development] (explaining how the stratification of courts affects the development of law).

We aim to steady our gaze with a theory of state civil courts as they are now, using a new analysis of quantitative data and our own original qualitative data. We begin with two key elements of state courts’ institutional context. First, the judicial branch is designed for dispute resolution. Second, the executive and legislative branches have failed to meet society’s social needs. 12 See infra note 19 and accompanying text regarding our use of “social need.”

Within this context, we use national data about the caseloads of state civil courts to refine our understanding of what these courts do. We would expect to see these courts resolving disputes between parties, but they do not. Instead, we see an institutional mismatch: State civil courts are institutions where people bring their social needs more than their disputes. The work of state civil courts is a daily manifestation of the failure of the executive and legislative branches to disrupt structural inequality or invest in systems of care to mitigate it. 13 See Colleen F. Shanahan & Anna E. Carpenter, Simplified Courts Can’t Solve Inequality, 148 Daedalus 128, 129 (2019) (“The executive and legislative branches have aggressively pared back social safety net programs, and the judicial branch is required to hear the cases that result.”). These courts operate in the breach to address social needs because they cannot decline the cases presented to them. Thus, the social needs people bring to court are framed as disputes in order to access social provision. 14 We use the term social provision to capture “the range of state policies implemented to improve general welfare.” Abbye Atkinson, Rethinking Credit as Social Provision, 71 Stan. L. Rev. 1093, 1096 n.2 (2019). For example, a grandmother—seeking mental health care and stable housing for her daughter and stability for her grandchildren—may end up in domestic violence court because framing her social need as a dispute with her daughter in need of a protective order is a chance to access support. This leaves state civil courts attempting to address—within the constraints of their dispute resolution design—the social needs of litigants. Though invoking incarceration only rarely, state civil courts grapple with life-sustaining and life-altering social needs: housing, employment, family, and economic security.

We then use qualitative data from around the country to see how courts grapple with this mismatch: How do courts designed for dispute resolution face litigants’ social needs in the courtroom? The data reveal that state civil courts are responding in four related ways to this mismatch. First, courts avoid the social needs presented and hold tight to their dispute resolution design. Second, courts try to provide services to meet litigants’ social needs. Third, courts develop new, ad hoc law or procedure to meet litigants’ social needs. Fourth, courts develop new institutions within or adjacent to the court to meet litigants’ social needs.

State civil courts’ responses to people’s social needs are diffuse and varied, yet the data allow us to theorize these courts’ actual institutional role. Our theory captures two institutional roles that are in tension and reflective of the dissonance of the institutional mismatch. First, the mismatch between state civil courts’ institutional design and social needs casts these institutions as violent actors. Decades ago, Professor Robert Cover warned us that “[w]hen [legal] interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.” 15 Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1601 (1986). These observations originate in criminal courts, and we extend them to civil courts and argue that the institutional mismatch exacerbates a violent institutional role of state civil courts. This includes government violence supplanting private violence, such as the history of eviction matters described by Professor Shirin Sinnar. 16 Shirin Sinnar, Civil Procedure in the Shadow of Violence, in A Guide to Civil Procedure: Integrating Critical Legal Perspectives (Portia Pedro, Brooke Coleman, Liz Porter & Suzette Malveaux eds.) (forthcoming 2022) (manuscript at *2–*5). This violence appears when courts hew to their institutional design, avoiding social needs but also compounding them in the context of state control. This role includes the ways in which state civil courts intersect with mass incarceration, specifically when civil cases can lead to incarceration as a penalty, such as in child support or domestic violence matters. At the same time, state civil courts attempting to meet social needs by providing services can lead to government control and violence in the guise of these needs being met, such as in child welfare matters. It also includes the violence of the experience of appearing in state civil court.

Second, this mismatch casts state civil courts as policymaking institutions, in a distinct variation from the policymaking courts that scholars traditionally worry about. Here, the institutional mismatch between courts’ dispute resolution design and the social needs of litigants has led to a diffuse, ad hoc, and unmeasured—but nonetheless large-scale—response by courts. Faced with social needs, courts are attempting social provision, either by stepping into the void left by the executive branch and providing direct social services—such as housing resources tied to obtaining a protective order—or by behaving like legislatures by allocating funding to programs for social provision, often going as far as building new institutions. In addition, courts create unseen law and procedure to facilitate these choices in ways that raise concerns about transparency and process. These small-scale choices are repeating themselves in diffuse ways across jurisdictions. Collectively, state civil courts have become a branch of government that develops policy to grapple with social needs without the institutional design or resources to do so.

From this analysis, we see that institutional—not just operational—change for state civil courts is imperative, and we begin to imagine a way forward for state civil courts as democratic institutions. 17 For a different conception of courts as democratic institutions, see Judith Resnik, Reinventing Courts as Democratic Institutions, 143 Daedalus 9, 10 (2014) (describing courts as “sites of democracy because the particular and peculiar practices of adjudication produce, redistribute, and curb power among disputants who disagree in public about the import of legal rights”). We acknowledge the importance of incremental, actor-focused change to meet the immediate needs of millions of litigants each year. We also see the imperative of imagining broad, institutional change that will relieve the tension between the social needs people bring to court and courts’ dispute resolution design. Where we now see a social need from one litigant in a dispute, we challenge ourselves to imagine a world where social provision is completely realized and the needs of both litigants are met.