Maya, a single mother of two, spent hours preparing for her court date in a rural county of North Carolina.
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.
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.
Yet a little recognized fact is that the judge’s lack of credentials in Maya’s case is not unusual.
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.
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.
Indeed, numerous articles consider whether judges consistently (and fairly) apply the law.
But the underlying assumption is that judges know the law—the question is usually how they interpret and apply it and why.
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.
In seventeen states, judges with no law degree are permitted to adjudicate eviction cases.
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.
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.
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.
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.
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.
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.
They have found that the phenomenon of pro se courts leads to an “ethically ambiguous” role for judges.
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.”
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.”
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,”
or “maintain legal and procedural complexity in their courtrooms”
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.
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.
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.
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.