* Professor of Law, University of Utah S.J. Quinney College of Law.
** Assistant Professor of Government, Wesleyan University.
*** Clinical Professor of Law, Columbia Law School.
**** Professor of Law, George Washington University Law School.
This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social needs and structural inequality and what all of this means for the present and future of American democracy.
Two key motivations drive scholarly interest in state civil courts. One motivation is generating knowledge. Historically, legal scholarship has largely ignored the most common and ordinary aspects of American civil justice in favor of studying the uncommon and the extraordinary. Thus, many of our core premises and assumptions—in civil procedure, administrative law, contracts, torts, and even constitutional law—are based on an understanding of only a sliver of formal civil justice activity. By case count, that slice is roughly two percent, the percentage of civil cases handled by federal courts each year, creating a glaring existential problem for legal scholarship. We need to know about the institutions that handle the other ninety-eight percent of civil matters to answer the most basic questions about civil law and the civil justice system, to say nothing of exploring broader social, economic, and political questions that intersect with civil courts’ work.
Reform is another motivation. We live in a moment of collective concern and outrage about institutions, systems, and practices that perpetuate structural inequality and injustice. State civil courts are one of those institutions; civil justice is one of those systems. Many of those who choose to study state civil courts are committed to generating insights that help make our civil justice system more accessible, fair, and supportive of shared prosperity and human flourishing.
We acknowledge a tension between knowledge generation and reform goals. We have much to learn and the need for reform is pressing—human lives and our democracy are on the line. In navigating this tension, empirical research on state civil courts ought to be theoretically driven, but it need not always include prescriptions or reform proposals to be valuable and vital. Given all we need to learn about state civil courts and the gravity and scope of their work, it may be too early for quality, data-driven prescriptions to flow from some research projects. Likewise, we need fresh frameworks and perspectives from critical and theoretical scholarship. The field of state civil courts should celebrate and elevate scholarship that describes what state civil courts do (through empirical methods) and why (through theory and critique). This does not mean state civil courts scholarship should be devoid of normative commitments. Indeed, like much of legal scholarship, scholars’ work will be driven by explicit and implicit views of what should be. 1 For legal scholarship about legal scholarship, including the relationship between and role of normative, empirical, critical, and theoretical work, see generally Danielle K. Citron & Robin West, On Legal Scholarship (2014), https://www.aals.org/wp-content/uploads/2014/08/OnLegalScholarship-West-Citron.pdf [https://perma.cc/S8QZ-CZ2L] (assessing the value and role of legal scholarship and categorizing it); Joshua B. Fischman, Reuniting ‘Is’ and ‘Ought’ in Empirical Legal Scholarship, 162 U. Pa. L. Rev. 117 (2013) (discussing how legal empiricists can bridge the gap between “is” and “ought”); Martha Minow, Archetypal Legal Scholarship: A Field Guide, 63 J. Legal Educ. 65 (2013) (categorizing approaches to legal scholarship); see also Katerina Linos & Melissa Carlson, Qualitative Methods for Law Review Writing, 84 U. Chi. L. Rev 213, 214–17 (2017) (calling for a systematic, rigorous approach to qualitative analyses in doctrinal scholarship).
While this Issue focuses on academic legal scholarship about state civil courts, we owe a tremendous debt to the foundational work of law and society scholars,
Sociolegal scholars have produced much of what we know about state-level civil trial courts and the public’s experiences with civil justice more broadly. For an authoritative summary, see generally Catherine R. Albiston & Rebecca L. Sandefur, Expanding the Empirical Study of Access to Justice, 2013 Wis. L. Rev. 101 (“[W]e outline a framework for a research agenda that interrogates the premises of the policy model . . . . [I]t is our hope that scholars and policy makers will come to understand access to justice in a different and more comprehensive way and . . . forge major new solutions to address poverty and inequality.” (emphasis added)). For examples of key topics, such as how grievances become disputes, see generally Catherine R. Albiston, Lauren B. Edelman & Joy Milligan, The Dispute Tree and the Legal Forest, 10 Ann. Rev. L. & Soc. Sci. 105 (2014) (proposing the “dispute tree” framework); Ellen Berrey & Laura Beth Nielsen, Rights of Inclusion: Integrating Identity at the Bottom of the Dispute Pyramid, 32 Law & Soc. Inquiry 233 (2007) (reviewing David M. Engel & Frank W. Munger, Rights of Inclusion: Law and Identity in the Life Stories of Americans With Disabilities (2003)); William L.F. Felstiner, Richard L. Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . ., 15 Law & Soc’y Rev. 631 (1980) (offering a framework for understanding how experiences become disputes and follow particular paths to resolution); Carrie Menkel-Meadow, The Transformation of Disputes by Lawyers: What the Dispute Paradigm Does and Does Not Tell Us, 1985 Mo. J. Disp. Resol. 25 (examining the dispute paradigm from the perspective of lawyers). For further discussion of legal consciousness, see Patricia Ewick & Susan S. Silbey, The Common Place of Law 15–23 (1998) (“Our analysis of commonplace legality builds on a tradition of research on the social construction of law . . . . [T]hese accounts describe how legal actors respond to particular situations.”); Lynette J. Chua & David M. Engel, Legal Consciousness Reconsidered, 15 Ann. Rev. L. & Soc. Sci. 335, 336 (2019) (tracing the development of legal consciousness research); Kathleen E. Hull, Legal Consciousness in Marginalized Groups: The Case of LGBT People, 41 Law & Soc. Inquiry 551 (2016) (focusing on sexual and gender identity minorities in legal consciousness research). For a discussion of procedural justice, see generally John Thibaut & Laurens Walker, Procedural Justice: A Psychological Analysis (1975); Robert J. MacCoun, Voice, Control, and Belonging: The Double-Edged Sword of Procedural Fairness, 1 Ann. Rev. L. & Soc. Sci. 171 (2005) (surveying major empirical findings on procedural justice).
to the National Center for State Courts for years of dogged data collection,
The National Center for State Courts offers the best available national estimates of key civil court data points like case volume, type, outcome, and representation status. The Court Statistics Project, Nat’l Ctr. for State Cts., https://www.courtstatistics.org/
[https://perma.cc/6EGZ-XFZD] (last visited Feb. 7, 2022); see also Nat’l Ctr. for State Cts., Civil Justice Initiative: The Landscape of Civil Litigation in State Courts, at iii–vi (2015), https://www.ncsc.org/__data/assets/pdf_file/0020/13376/civiljusticereport-2015.pdf [https://perma.cc/7AJB-SHUD] (reviewing data on state civil courts). Despite the National Center’s longstanding efforts, state civil court data remain difficult to access and analyze. For a summary of the challenges, see Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan & Alyx Mark, Studying the “New” Civil Judges, 2018 Wis. L. Rev. 249, 265–71. For a summary of the data, see id. at 257–65. For a new perspective on state civil court data, see Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark & Anna E. Carpenter, The Institutional Mismatch of State Civil Courts, 122 Colum. L. Rev. 1471 (2022). and to the scholars, research organizations, and court leaders who have been steadily raising the volume on calls to improve state civil courts’ data collection and analysis. 4 See Deno G. Himonas & Tyler J. Hubbard, Democratizing the Rule of Law, 16 Stan. J. C.R. & C.L. 261, 267–68 (2020) (describing the Utah Supreme Court’s efforts to address access to justice challenges); Bridget Mary McCormack, Staying Off the Sidelines: Judges as Agents for Justice System Reform, 131 Yale L.J. Forum 175, 178 (2021) (arguing that judges have an ethical obligation to advocate for justice system improvements); Erika Rickard, The Agile Court: Improving State Courts in the Service of Access to Justice and the Court User Experience, 39 W. New Eng. L. Rev. 227, 246 (2017) (describing the relationship between judicial administration and access to justice and offering recommendations for change); Rebecca L. Sandefur, Paying Down the Civil Justice Data Deficit: Leveraging Existing National Data Collection, 68 S.C. L. Rev. 295, 295 (2016) (describing civil justice data gaps and identifying possible solutions); Tanina Rostain & Erika Rickard, Understanding State Courts: A Preliminary List of Data Needs 1 (Mar. 28, 2019) (unpublished manuscript) (on file with the Columbia Law Review) (identifying essential data to be collected about civil justice activity and entities best placed to collect that data); Civil Justice Data Commons, Geo. L., Inst. for Tech. L. & Pol’y, https://www.law.georgetown.edu/tech-institute/programs/civil-justice-data-commons [https://perma.cc/5C5X-XR2R] (last visited Feb. 7, 2022) (describing the Civil Justice Data Commons, a repository for civil legal data); How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations, Pew (Dec. 1, 2021), https://www.pewtrusts.org/en/research-and-analysis/reports/2021/12/how-courts-embraced-technology-met-the-pandemic-challenge-and-revolutionized-their-operations [https://perma.cc/G9FU-T4YE] (recommending that courts use data to guide technology decisions); How Debt Collectors Are Transforming the
Business of State Courts, Pew (May 6, 2020), https://www.pewtrusts.org/en/research-and-analysis/reports/2020/05/how-debt-collectors-are-transforming-the-business-of-state-courts [https://perma.cc/RU7Z-AVKG] (calling on states to improve the handling of debt collection cases with data); Law Technology Now, Model for Change: Utah’s Data-Driven Approach to Closing the Justice Gap, Legal Talk Network (Sep. 16, 2020), https://legaltalknetwork.com/podcasts/law-technology-now/2020/09/model-for-change-utahs-data-driven-approach-to-closing-the-justice-gap/ [https://perma.cc/HNA6-DWN8] (discussing Utah’s approach to access to justice reform); Bridget McCormack, Opinion, Justice McCormack: Michigan Needs Better Court Data System, Detroit News (Jan. 6, 2021), https://www.detroitnews.com/story/opinion/2021/01/07/opinion-justice-mccormack-michigan-needs-better-court-data-system/4139395001/ [https://perma.cc/KKN9-USDB] (calling for improved civil justice data collection). To celebrate the blossoming field of state civil courts in legal scholarship and encourage future scholars, we review the field using three intentionally broad and overlapping analytical lenses that drive research questions and methodological approaches: law, institutions, and people.
First, scholars using law as a lens focus on courts’ adjudicatory and law development functions and ask questions about the nature and consequences of the substantive and procedural law that courts create, develop, and enforce. Second, scholars using an institutional lens examine courts from two perspectives. One is internal and studies courts as organizations with their own structures, norms, cultures, and roles. Another is external and examines courts in the context of their role in our broader government system, including how courts relate to other branches of state and federal governments and how courts’ institutional design connects to systemic economic and social outcomes. Third, scholars using people as a lens explore how individuals and social groups experience courts and the resulting consequences.
The law, institutions, and people categories are not mutually exclusive; they overlap and contain cross-cutting issues. One example is a key theme running through many works in this Issue: inequality. Legal scholars writing about state civil courts interrogate racial, gender, and economic inequality and injustice through different frames within and across the categories of law, institutions, and people. Another example is the judicial role, which connects to law via civil procedure and judicial ethics rules, informs institutional questions via design choices that shape the judicial function, and affects people whose experiences of justice can be shaped by judicial behavior. For each category below, we highlight representative work and preview the contributions of papers in this Issue. We begin with a focus on law.