Active Judging and Access to Justice

By Carpenter, Anna E. | Notre Dame Law Review, December 2017 | Go to article overview

Active Judging and Access to Justice


Carpenter, Anna E., Notre Dame Law Review


INTRODUCTION                                                         649   I. CONTEXT OF THE STUDY                                            657      A. Unrepresented Parties and the Traditional Civil Justice      657         System      B. Why Not Increase Services?                                   660      C. Move Toward Judicial Reform                                  661      D. Three Dimensions of Active Judging                           667         1. Judges Adjusting Procedures                               667         2. Judges Explaining Law and Process                         669         3. Judges Eliciting Information From Litigants               671  II. DATA AND METHODOLOGY                                            672      A. Data                                                         673         1. The Court                                                 673            a. The Judges                                             675            b. The Parties                                            675         2. Unemployment Law and Procedure                            677            a. Procedural and Evidentiary Rules                       677            b. Burdens of Proof                                       678         3. Active Judging in Unemployment Appeals                    679      B. Methodology                                                  683 III. DISCUSSION AND FINDINGS                                         684      A. Whether to Engage in Active Judging                          685      B. Variations in Active Judging Practices                       686         1. Judges Adjusting Procedures                               687         2. Judges Explaining Law and Process                         690            a. Explaining Hearing Processes                           691            b. When and How Much to Explain                           691            c. Explaining Substantive Law                             692         3. Eliciting Information                                     695            a. Active vs. Passive Approach to Eliciting Information   695            b. Role of Substantive Law and Burdens of Proof           697      C. Sources of Guidance on Active Judging                        699         1. Appellate Court                                           701         2. Department of Labor                                       702            a. Peer Review                                            702            b. Opening Explanations                                   703 IV.  IMPLICATIONS                                                    704      A. The Role of Substantive Law and Burdens of Proof             705      B. Rules of the Game                                            706      C. Consistency and Accountability                               707 CONCLUSION                                                           708 

INTRODUCTION

The adversary process, that core feature of American justice, has all but disappeared from our state civil courts. More accurately, the rules and norms of the adversary system remain in place, but the advocates are largely missing. Our nation's civil courtrooms are no longer the province of lawyers, but of unrepresented people, many of whom are low-income and deeply vulnerable.

Some scholars now refer to our state civil courts as the "poor people's courts." (1) In these courts, cases most often involve family, housing, small claims, foreclosure, and consumer matters. (2) Two scenarios dominate the landscape: cases where only one party has counsel and cases where neither party has counsel. (3) Both represent a serious crisis for our justice system and the people whose rights and lives are at stake as they navigate the complexity of civil litigation on their own. (4)

A critical mass of scholars and experts now argue that court reform, including reform of the judge's role, could help solve the pro se crisis in civil justice. …

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