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.
Most of the people facing this life-altering consequence are women,
almost none of whom have a lawyer, though many of their landlords do,
and losing their home will immediately harm their economic security, family integrity, and mental and physical 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,
the dominance of certain plaintiffs,
a lack of lawyers,
the power of court staff,
or technological intervention.
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.
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.
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.
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.
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.”
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.
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.
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.