Law Commons^™

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica Steinberg, Alyx Mark, Anna E. Carpenter

GW Law Faculty Publications & Other Works

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 …

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

GW Law Faculty Publications & Other Works

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica Steinberg, Alyx Mark

GW Law Faculty Publications & Other Works

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.

Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power …

Informal, Inquisitorial, And Accurate: An Empirical Look At A Problem-Solving Housing Court, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

Substantive justice is often seen as elusive in courts dominated by low-income individuals. Complex court rules, coupled with pervasive lack of counsel, can make it difficult for the traditional adversary process to identify and redress legitimate grievances. This Article takes on the social problem of substandard housing and examines whether inquisitorial procedure has the potential to produce accurate outcomes in a tribunal dominated by the unrepresented.

Relying on in-court observations of nearly 300 hearings, and a longitudinal review of nearly 75 cases, this Article surfaces the regularized procedures utilized by a purported “problem-solving” housing court, and theorizes that the inquisitorial …

Demand Side Reform In The Poor People’S Court, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

A crisis in civil justice has seized the lowest rungs of state court where the great majority of American justice is meted out. Nineteen million civil cases are filed each year in the so-called “poor people’s court,” and seventy to ninety-eight percent of those matters involve an unrepresented litigant who is typically low-income and often a member of a vulnerable population. This Article challenges the predominant scholarly view in favor of “supply side” remedies for improving access to justice—that is, remedies focused exclusively on supplying counsel to litigants, either through adoption of “civil Gideon,” a universal civil right to counsel, …

Traditional Versus Economic Analysis: Evidence From Cardozo And Posner Torts Opinions, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Article contributes a new approach and evidence to the longstanding debate concerning the relative merits of traditional legal analysis compared to contemporary economic analysis of law. It evaluates prominent opinions of two judicial exemplars of the contending conceptions, the traditionalist Benjamin Cardozo and the economist Richard Posner, in torts, the field where economic analysis has greatest impact. Comparative critique of their opinions appearing in current torts casebooks, where they are the most ubiquitous judges, provides evidence that traditional legal analysis is a more capacious and persuasive basis of justification than contemporary economic analysis of law.

Notice-And-Comment Judicial Decisionmaking, Michael B. Abramowicz, Thomas Colby

GW Law Faculty Publications & Other Works

Executive branch agencies typically use a process of "notice-and-comment" to permit the public to respond to the proposed text of rules. The legal literature has not considered whether a similar process would be helpful for the judicial branch. In this Article, Professors Abramowicz and Colby argue that it would be. Neither the parties to a litigation nor third parties generally have an opportunity to comment on judicial opinions after they are drafted but before they are made final. As a result, judicial opinions often contain errors and frequently have far-ranging and unanticipated negative consequences. A notice-and-comment system could mitigate these …

Citation To Legislative History: Empirical Evidence On Positive Political And Contextual Theories Of Judicial Decision Making, Michael B. Abramowicz, Emerson H. Tiller

GW Law Faculty Publications & Other Works

We present empirical evidence suggesting that political context—judicial hierarchy and judicial panel dynamics—influences an authoring judge’s use of legislative history. Specifically, we find that to the extent that political ideology matters, a district court judge’s choice of legislative history is influenced, albeit mostly, by (1) the political makeup of the overseeing circuit court and (2) the political characteristics of a judge’s panel colleagues, as well as by the circuit court as a whole. These factors matter more than the authoring judge’s own political-ideological connection to the legislators. Put differently, an authoring judge will have a greater tendency to cite legislative …

On The Selection Of Judges In International Figure Skating, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This essay discusses the system that the International Skating Union (ISU) has long used to select skating judges for competitions and suggests that this system creates problems of partisanship, incentivizing national skating federations to pick judges who are most likely to favor the federation’s interests while also incentivizing skating judges to favor their national federations. I offer an alternative approach to the ISU’s present method of selecting judges, a tournament-like system that could be used to pick judges objectively by rating judges based on the correlation of their scores with those of other judges and allowing those with higher correlation …

En Banc Revisited, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Legal commentators have proposed a variety of solutions to the perceived problems of the U.S. courts of appeals, from splitting large circuits to assuring partisan balance in panel decisions. They have always assumed, however, that judges a particular appellate court should have sole responsibility for creating the law of that circuit, except when caseload pressures make it necessary to borrow visiting judges. In this Essay, Professor Abramowicz proposes using visiting judges in a more important role: en banc decision-making. Under this proposal, en banc decisions for one circuit would be made entirely by courts of appeals judges randomly selected from …

En Banc Revisited, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Legal commentators have proposed a variety of solutions to the perceived problems of the U.S. courts of appeals, from splitting large circuits to assuring partisan balance in panel decisions. They have always assumed, however, that judges a particular appellate court should have sole responsibility for creating the law of that circuit, except when caseload pressures make it necessary to borrow visiting judges. In this Essay, Professor Abramowicz proposes using visiting judges in a more important role: en banc decision-making. Under this proposal, en banc decisions for one circuit would be made entirely by courts of appeals judges randomly selected from …