IICJ | Civil Justice Colloquium: David Marcus - Managerial Courts

Hosted by the UC Irvine Initiative for Inclusive Civil Justice, the Civil Justice Colloquium welcomes Professor David Marcus (UCLA Law) to discuss "Managerial Courts."

Abstract

A quiet revolution in state court systems around the country has gone almost entirely unnoticed.  For decades, court bureaucracies have expanded and evolved.  In many places, presiding judges, court administrators, and other officials have assumed responsibility for and exercised authority over matters very different from what their predecessors handled.  Judging, long thought to be the quintessentially nonbureaucratic activity, now takes place within institutions governed by the norms and practices that epitomize bureaucracy.

Decades ago, Judith Resnik famously argued that American lawyers need to grapple with the phenomenon of “managerial judges.”  To handle ever-expanding dockets, judges had begun to manage their cases actively.  The retreat of the passive, neutral judge ideal had considerable implications for judicial ethics and due process, she insisted.  Today, lawyers need to understand and respond to the phenomenon of “managerial courts.”  Courts deploy non-judicial personnel to help manage large volumes of cases.  Court systems develop standardized, centrally developed aids for judges to use, tools that facilitate and improve the quality of decision-making.  Cases follow different “pathways” that court systems design, where cases are sorted and managed differently based on recurring characteristics that court leadership identifies as salient.  Court staff and leadership, in short, wield considerable authority over how and under what conditions courts decide cases – authority that is almost entirely exercised outside of public view.

Court managerialism, like judicial managerialism before it, has significant implications for our understandings of what judges do and should do.  But we presently lack a basic sense of the phenomenon, a set of criteria for assessing managerial interventions, or the implications that court managerialism has for litigants and their due process rights.  The need for analysis and understanding is particularly urgent given the massive civil justice problems that state courts grapple with, particularly those involving self-represented litigants.  In recent years the millions of eviction, debt collection, and other such matters where one side lacks counsel has fueled a great deal of bureaucratic experimentation.  Metrics for evaluating these developments are crucial, to ensure that court systems serve the interests and needs of vulnerable litigants.

This Article provides a history of managerial courts.  It then describes how courts use bureaucratic processes and interventions to handle their dockets.  This description includes a taxonomy of court managerialism, explaining how various innovations share certain common characteristics.  The Article then grapples with court managerialism’s normative stakes.  It contrasts how managerial courts handle their dockets with traditional understandings of the judicial role, suggesting a set of criteria for the proper assessment of managerial interventions.  The Article concludes with comments about the implications of managerial courts for due process.

About the Civil Justice Colloquium

In these colloquia, leading scholars on civil justice are invited to present their works-in-progress to a seminar class at UCI Law. Students are provided with additional readings that contextualize the work and are expected to engage deeply with presenters. This format allows students a unique opportunity to engage with cutting-edge scholarship across a range of topics related to civil justice. From empirical scholarship on the strategies people take in responding to civil legal problems to civil procedural scholarship investigating access to the courts, the series provides a multifaceted view of current challenges and opportunities in expanding access to civil justice.

Faculty from within and outside the law school, and anyone with a keen interest in civil justice is welcome to attend

To request reasonable accommodations for a disability, please email centers@law.uci.edu. 

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