Scholars focusing on civil procedure and access to justice have recently shined a badly needed spotlight on the operation of state courts. Much of this scholarship focuses on the pro se nature of litigants in these courts. Important work has analyzed the dynamic between low-level state court judges and pro se litigants, considered problematic gender dynamics associated with majority pro se litigant courts, and presented solutions to the pro se litigant crisis (such as a civil Gideon or rethinking prohibitions on lay legal advice). There is no doubt that the abundance of pro se litigants in state courts creates fundamental questions about access to justice that must be addressed, and recent scholarship has significantly advanced our understanding of lay lawyering.
But a vital aspect of many of these courts has been overlooked—lay judging. Much of the existing scholarship examines whether and how judges help pro se litigants, but this work assumes that judges have the legal knowledge to aid litigants. In some courts they do. But legal scholars have not, for the most part, considered that many legal cases that have a profound effect on poor families, such as whether they will lose their home to eviction or whether a parent will go to jail, are argued in courtrooms where no one, not even the judge, knows the law. Or, perhaps more troubling, only one party—the lawyer for the more powerful party—knows the law. The scene is Kafkaesque.
In state courts, where more than ninety percent of all legal cases are heard (both criminal and civil), the assumption that your judge will be a trained lawyer is anything but sure. My recent work (with Kristen Renberg) found that thirty-two states allow at least some low-level state court judges to adjudicate without a law degree. The structure of the legal system in each state varies, but in most of these states non-lawyer judges handle criminal matters such as issuing search warrants, issuing arrest warrants, hearing “simple” misdemeanor cases, hearing traffic-related violations, and setting bail. In some states, lay judges even handle preliminary hearings in felony criminal cases. Many states also allow non-lawyer judges to hear civil cases (primarily in small claims court). In seventeen states, for instance, non-lawyer judges adjudicate eviction cases.
Adding to the problem, and in contrast to federal judgeships—where we arguably obsess over judicial credentials—the majority of states that allow lay judging require almost no credentials for magistrate and justice of the peace positions. In many states, simply having a high school diploma (or the equivalent) and living in the state for a year or two suffices. In North Carolina, lay magistrate judgeships are a common career path for former police and probation officers, raising key questions about impartiality, particularly in the criminal context.
Training requirements for lay judges are similarly minimal in most states. It is common for states to require training only six months to a year from the start of a judgeship, meaning that there are judges deciding whether someone spends the night in jail, or loses their home, who have absolutely no training in law or legal procedural whatsoever.
We lack both descriptive or theoretical accounts of lay judging in the United States, even though it raises vital questions of poverty and inequality. The in-depth, mixed methods study of lay judging I have initiated with Guy-Uriel Charles will help shed light on empirical questions related to lay judging. But even without this data, it is clear that lay judging in low-level state courts raises questions of great import for legal scholars, questions that have been overlooked for many years.
Our lower level state courts display in plain view a system where inequality is explicitly embedded into the rules guiding these courts by allowing lay judging, yet we seem to have accepted this system as simply “the way things are” in a world of limited resources. But how have we come to value some legal cases over others? At what point did we decide that what is at stake in an eviction case is not worthy of a legally trained adjudicator, but what is at stake in an antitrust case is?
To be clear—I believe lay judging raises a somewhat different set of issues than lay lawyering (i.e. the influx of pro se litigants). Structures primarily outside of our legal system that led to poverty in turn catalyzed the abundance of pro se litigants because they cannot afford an attorney. But the structure of the legal system itself, and the rules and laws embedded in it, have led to lay judging. Another way to think about this difference is as follows: while our country has implicitly signed off on a system of pro se litigant courts by neglecting to mandate a civil Gideon, in the case of lay judging there is an explicit and unavoidable inequality embedded within the rules and laws that direct the structure of our state courts. An entirely different adjudicatory system, a system that does not call for a legally trained adjudicator, is in place for some cases—cases that disproportionately involve poor and racially marginalized communities.
There is no doubt that staffing and (paying) low-level state court judges, particularly in rural areas, is difficult. But the investment we put in these courts is minimal, so of course recruitment is hard. In North Carolina, for example, the starting salary for magistrate judges, even those legally trained, is $54,322. The starting salary for state superior court judges, who are required to be legally trained, is $132,584.
The lack of investment in low-level state courts is consistent with our country’s lack of investment in a range of institutions that serve the poor – schools and neighborhoods are other examples. The historical story is often the same: the government does not invest in the versions of these institutions that serve poor and racially marginalized communities, and then when the institutions perform poorly, deem it almost a foregone conclusion that not much can be done to improve (let alone equalize) them.
Indeed, our initial qualitative data collection suggests that lay judge courts administer a different and likely inferior form of justice from other courts. But even putting aside such an empirical question, the system is problematic because of the message it sends: millions of poor litigants as well as more powerful entities such as debt collectors and landlords operate within a system that symbolically diminishes the gravity of the cases before it by allowing judges to adjudicate without a JD. As discussed in more depth in Judging Without a JD, such a system illustrates how the low-level court system barely even pretends to consider the legal rights of the poor—the system is set up in such a way that those with power and resources prevail.
As Guy Charles and I gather more data on courts dominated by lay judges, we hope to provide a detailed descriptive and theoretical account of how these institutions operate and how the justice they administer might be inconsistent with basic assumptions of how the United States court system can and should work—this, in turn, we hope will help set an agenda for possible reform.
This post is based upon Sara Sternberg and Kristen Renberg, “Judging Without a JD,” forthcoming in the Columbia Law Review.