Unification and "Bragency" a Century of Court Organization and Reorganization

By Raftery, William | Judicature, May/June 2013 | Go to article overview
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Unification and "Bragency" a Century of Court Organization and Reorganization


Raftery, William, Judicature


For a century, the key focus of court unification efforts has been the performance of courts. The desire in the late 1800s and early 1900s for "unified" state judiciaries stemmed from simplicity in proceeding. Unification sought to avoid wasting of resources in pursuit of high performing courts. Today technology may usurp the need for unification, leading us to reassess if unification is the only way to achieve fair and impartial resolutions of legal disputes.

Introduction

For decades, organizational and managerial theorists have examined the role of structure and its impact on organizations. At its best, this effort has translated into intelligent restructuring, streamlined efficiency, and development of an entity that can achieve its purpose. For over a century these same challenges have been posed to the judicial branches of the individual states. Through that time, one solution has been offered up consistently: unification. But that term and the concept it represented as developed by groups like the American Judicature Society (AJS) has evolved, changed, even spawned differing definitions in states.

Take for example a state with only shared (not exclusive) rule-making authority for its supreme court, a multitude of trial courts, and extensive use of local funding for those same courts. Can this state nevertheless be described as being "unified"? Its constitution says it is.1 Contrast this with a state with a single-tier trial court, expansive rule-making power vested in its highest court, and complete control over its clerical staff, but that lacks the specific constitutional language that it is a "unified judicial system."2 If the term, concept, and activity associated with "unified" judiciaries as envisioned by the Society early in its life have changed, it is worth asking what place it has going into the next century.

Unification Before 1900

The desire in the late 1800s and early 1900s for "unified" state judiciaries stemmed from simplicity in proceeding. The practice throughout states operated in much the same manner as had occurred in England since the reign of Edward I in the late 1200s. Each different type or sort of case was to be given its own court, with its own judges, and with nebulous and often overlapping jurisdiction. In writing on the condition in England in 1817, Sir Edward Coke identified no fewer than 74 different courts in England with judges serving on multiple courts individually or collectively (for example, an appellate court made up of all the trial court judges in a particular area). Parliament and the Crown through the Great Council retained and exercised separate judicial authorities as well.3

The individual states that made up the United States adopted much of the English practice at the time of the Revolution; there were courts of law, equity, admiralty, and probate. There were courts for criminal proceedings, petty causes, and general civil matters. Towns, villages, and cities, both large and small, created their own courts or had them created for them by the legislature. Judges of the appellate courts often sat as trial judges or vice versa. Atop this myriad of courts sat, effectively, a jumble. State courts of last resort were just as convoluted as the trial courts and often were made up of judges from the lower courts sitting collectively or with some combination of the legislature and/or executive branch. Legislatures and governors were also invested with judicial authority, able to issue writs, grant divorces, and sit as appellate courts. There was no administrative function exercised in any way over this hodgepodge.

England of the mid 1800s began to abandon the practice of a court-forevery-case-type. The County Court Acts of 1867 and 1890 revamped the lower trial courts, while the Supreme Court of Judicature Acts of 1873 and 1875 merged many of the higher level trial courts (the Court of Chancery, the Court of King's/Queen's Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, and the Court of Divorce and Matrimonial Causes) into a single court with a single set of rules for pleading and procedure.

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