Document Type

Article

Publication Date

2022

Abstract

Millions of debt cases are filed in the civil courts every year. In debt actions, asymmetrical representation is the norm, with the plaintiff almost always represented by counsel and the defendant very rarely so. A number of jurisdictions report that up to ninety-nine percent of defendants in debt cases appear pro se — a figure that calls into question the basic legitimacy of these proceedings.

Professor Daniel Wilf-Townsend’s central contribution to the literature on debt collection, and state civil justice more broadly, is to demonstrate through sophisticated empirics what has long been anecdotally reported: that a cluster of corporate plaintiffs he dubs “top filers” are responsible for a large share of debt collection litigation. Wilf-Townsend surveyed top filer activity across twenty court systems in a single year to provide a snapshot-in-time of their influence, finding that an average of about twenty-three percent of debt suits in each state are brought by just ten corporate plaintiffs — each of which brings tens or hundreds of thousands of claims a year and has instituted routinized, assembly-line methods for railroading pro se defendants. This empirical finding is significant in providing rich detail on the identity of the corporate entities running the debt collection mill in state civil courts. As Wilf-Townsend asserts, it also provides insight into the types of reforms that may be most effective. His prescriptions focus on ways to rein in corporate filings, and to do this he puts forward a number of options for reforming the courts: congestion pricing for top filers to increase the cost of litigation, class actions brought by defendants against top filers in violation of consumer laws, and a reconfiguration of the judicial role in which judges actively inspect the validity of top filer claims.

Wilf-Townsend’s research adds an unexamined dimension to our understanding of debt collection proceedings, which, for various reasons related to the way state courts operate, are largely obscured from public view. His novel empirical work provides a window into corporate monopolization of the courts, which further illuminates the power differential between plaintiffs and defendants in debt court. This research is critical and difficult to conduct — and far too little of it is undertaken.

We take Wilf-Townsend’s articulation of civil justice failure one step further. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. In this Response, we take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions.

Disciplines

Civil Law | Civil Procedure | Law

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