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Reimagining Courts

Reimagining Courts: A Design for the Twenty-First Century

Victor E. Flango
Thomas M. Clarke
Copyright Date: 2015
Published by: Temple University Press
Pages: 214
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  • Book Info
    Reimagining Courts
    Book Description:

    In their timely and topical book,Reimagining Courts,Victor Flango and Thomas Clarke argue that courts are a victim of their own success. Disputes that once were resolved either informally in the family or within the community are now handled mainly by courts, which strains government agency resources. The authors offer provocative suggestions for a thorough overhaul of American state and local courts, one that better fits the needs of a twenty-first century legal system.Reimagining Courtsrecommends a triage process based upon case characteristics, litigant goals, and resolution processes. Courts must fundamentally reorganize their business processes around the concept of the litigant as a customer. Each adjudication process that the authors propose requires a different case management process and different amounts of judicial, staff, and facility resources.Reimagining Courtsshould spark much-needed debate. This book will be of significant interest to lawyers, judges, and professionals in the court system as well as to scholars in public administration and political science.

    eISBN: 978-1-4399-1169-3
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. List of Figures and Tables
    (pp. xi-xii)
  4. Acknowledgments
    (pp. xiii-xiv)
  5. Overview
    (pp. 1-16)

    Let’s begin this overview with a vision of a court process in the twenty-first century.

    Imagine that you are a potential litigant with a legal problem. You think you want and need a legal decision from a court, but you are not sure. To begin the process, you navigate online to the litigant portal for your jurisdiction. That portal is maintained by a group of legal services organizations, including the courts. Much like TurboTax, the portal asks you a series of simple questions to determine the type of legal dispute. On the basis of your answers, it advises you to...

  6. Part I. Aligning Image with Reality

    • 1 Why Courts Need to Be Redesigned
      (pp. 19-26)

      State courts did not come into their own until relatively recently, after 1950.² Courts were once defined as institutions for resolving disputes and contested issues by trial, and persist in being associated with trials in the popular mind. Other adjudicatory processes have evolved over time, including those for which expedited processing is the goal or for which diagnosis and treatment are the goals, but they are all described in the adversary language of courts. In practice, this means we treat all the different adjudicatory processes used by courts today as if they were adversary proceedings, where every case is a...

    • 2 What Courts Actually Do
      (pp. 27-32)

      Ourconceptionof what courts do and how they do it has not kept pace with a changing world. Courts have changed and must continue to change as circumstances do.

      Effective courts are responsive to emergent societal issues, including everything from drug abuse to gender bias to consumer rights and all the other challenges mentioned in Chapter 1. Indeed, Standard 4.5 of theTrial Court Performance Standards, cited above, requires courts to recognize and respond to emergent issues in order to provide a stabilizing force in society—consistent with its role in maintaining the rule of law.

      In his book...

  7. Part II. Triage and the Four Case-Processing Tracks

    • 3 Triage: Separating Cases by Processing Required
      (pp. 35-53)

      Modern courts currently use many different processes to resolve cases. These existing processes must be disentangled, examined, and perhaps redefined to determine whether they are being used appropriately and most effectively. The issue from our perspective is that the peculiar mechanism for resolving disputes in court was designed to operate in a specific manner for disputes framed in a way to fit the adversary model of resolution. Because many subsequent types of issues did not fit the adversary model, courts developed alternative methods of dispute resolution within the courts umbrella to accommodate them and in the process were themselves changed....

    • 4 The Adversary Process
      (pp. 54-69)

      Literally hundreds of books have been written about the adversary process by authors more qualified to comment on it than we are. In Chapter 3, we equated the adversary system to the very definition of courts themselves in the United States. Indeed, we argue that the two concepts have become so intertwined that it sometimes blinds us to the other adjudication processes being used successfully. The adversary process, with its emphasis on trials, is critical to our conception of justice in the United States. More cases go to trial in the United States than in most other countries, and more...

    • 5 The Dispositional Process
      (pp. 70-84)

      Because the parties themselves control the gathering of information in the adversary process, delays and high costs are common. Issues most appropriate for resolution by the dispositional process are the more standard “cases” that occur frequently enough so that the law is established and the key determination is whether the facts in question meet the standard of the law. These more-routine cases require facts to be established so that the law can be quickly applied, and sentences and financial penalties are limited so that dispositions can be expeditious.¹ Clearing the docket then becomes very important, and the primary task becomes...

    • 6 The Administrative Process
      (pp. 85-95)

      Some observers have noted that over time trial courts’ workloads have shifted from dispute resolution to routine administration.¹ Should courts address problems that are not appropriate for adjudication? In the words of a former federal judge, “[T]he courts are being asked to solve problems for which they are not institutionally equipped or not as well equipped as other available agencies.”² Many of these are policy oversight issues that should be addressed by the administrative processes.

      At least since 1976, the ABA Task Force, chaired by the Honorable Griffin B. Bell, advocated the increased use of the administrative processas an...

    • 7 The Problem-Solving Process
      (pp. 96-126)

      Robert Tobin later echoes the sentiment of Chief Justice Warren Burger quoted above by saying, “The relatively inflexible and formal nature of the adversarial system does not suit most disputes.”² What are the types of disputes that the adversary process, whether full or expedited, is not designed to handle? What are the problems that go beyond neutral arbitration of legal disputes to “intervention in the individual and social problems that underlie them” through the vehicle of “specialized courts dedicated to discrete problems such as addiction, domestic violence and mental illness”?³

      In Chapter 3, we note how one of the first...

    • 8 Implications of the Problem-Solving Approach for Court Reform
      (pp. 127-140)

      The problem-solving process is not just another variation on the adversary theme, as are the dispositional and administrative processes, but a different model of justice. If this premise is correct, what are the implications of the problem-solving process? In this chapter, we argue that the problem-solving process and the adversary process are based on fundamentally opposing philosophical foundations—a medical model of individual treatment and a legal model of treating like cases alike. Consequently, it is unwise to try to graft problem-solving principles onto adversary-based court proceedings, at least until after the judgment is made. If that is so, what...

  8. Part III. Making the Reimagined Court a Reality

    • 9 Case-Triage Strategies in Action
      (pp. 143-152)

      The triage strategies discussed in previous chapters require significant investment in protocols and procedures to develop decision trees appropriate for clerks, paralegals, and staff lawyers, but they have yielded impressive results in the few places they have been attempted. Perhaps a few illustrations of these triage strategies from courts around the country will illustrate the potential of what can be done using enhanced case triage and, at the very least, encourage more experimentation.

      Rather than adding more types of cases to the courts, some courts have gone the opposite way and curtailed jurisdictions.

      One experiment in New York eliminated family-court...

    • 10 Implementing the Vision of a Modern Court
      (pp. 153-166)

      We have presented a daunting array of proposals for realigning and reconciling the functions of courts with the methods of case processing. The suggestions for redesigning internal court case processes are equally challenging. Perhaps the best way to start is with some fundamental concepts.

      A small set of concepts encapsulate our new way of looking at the court, constituting a sort of worldview, if you will. It is hard to understand the motivation for many of our proposed innovations without first accepting the worldview that lies behind them.

      Courts no longer have a monopoly on legal decision making. For too...

  9. Notes
    (pp. 167-192)
  10. Bibliography
    (pp. 193-208)
  11. Index
    (pp. 209-215)
  12. Back Matter
    (pp. 216-216)