This Essay — part of a symposium hosted by the Brennan Center at NYU Law School on the Trump Administration — responds to a new paper by political scientists James Gibson and Michael Nelson about public opinion related to courts in the Trump Era. Their essential finding is that various versions of criticisms of the Court made by President Donald J. Trump are not substantially undermining public support for the Court. This Reply questions how much this and related papers tell us about how people think about the Court when they actually care about the Court. This study and other important ones like it are measuring how people think about the Court when the policy implications of Court decisions are presented to subjects as relatively low. Their findings tell us a lot, but not everything. They do not tell us what happens when passions about the Court are high — precisely the moment when the Court could be at its greatest jeopardy and convincing people to believe in the Court for reasons independent of the policies it delivers is the hardest. We can have confidence about how people think about the Court when they do not care about it, but not how they think about it when they do.'Studying the 'New' Civil Judges' by Jessica Steinberg, Anna E. Carpenter, Colleen F. Shanahan and Alyx Mark in 2018 Wisconsin Law Journal 249 comments
We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices for courts, litigants, and the public. From top to bottom, we can describe and theorize about our existing civil justice system in only piecemeal ways. Given legal scholarship's near-complete focus on federal civil courts, the stories we tell about the civil justice system may be based on assumptions and models that only apply in the rarefied world of federal court. Meanwhile, state judges and courts--which handle ninety-nine percent of all civil cases--are ripe for theoretical and empirical exploration.
In response, we call for more research aimed at increasing our understanding of state civil courts and judges and offer a theoretical framework to support this work, one that reflects how state courts differ from federal courts. This framework is grounded in a core fact of American civil justice, one both easily observed and largely overlooked: the majority of parties in state civil courts are unrepresented. Given this new pro se reality, our theoretical framework identifies four novel assumptions to guide future research: (1) the adversary process is disappearing; (2) most state court business is still conducted through in-person interactions between judges and parties; (3) the judicial role is ethically ambiguous in pro se cases; and (4) a largely static body of written law has not kept pace with the evolving and dynamic issues facing state courts. Building on the growth of empiricism and empirically grounded theory in traditional legal scholarship and access to justice research, we call on scholars to develop theory and gather data to map the new reality of civil justice and judging in America, and suggest questions to guide future research.