Document Type

Article

Publication Date

2023

Abstract

State civil courts are the object of growing scholarly attention converging from two directions: rapidly expanding research regarding lawyerless state civil trial courts, and an increasing volume of voices calling for state supreme courts to serve as a balm for American democracy’s wounds. The challenges of lawyerless trial courts and the potential of state supreme courts converge when considering how law develops in state civil courts. We and others have asserted that law development is not happening in lawyerless courts, at least not in the way that American legal scholars conventionally understand law development. This Essay explores the core theoretical assertion that the absence of law development is a characteristic of lawyerless courts. We define key areas of analysis, including questions for empirical inquiry, to advance our understanding of lawyerless law development.

An essential premise of American law is that the law develops through adversarial, lawyered cases that produce written opinions. The assumptions underlying this premise include that both parties are represented; that the parties — through their lawyers — engage in procedures such as motions, briefs, and oral arguments; that judges issue written opinions responding to this adversarial engagement; that parties engage in appeals in a subset of these cases; and that the case law that emerges governs subsequent cases. The assumptions of representation and adversarialism do not hold in state civil courts, where litigants are largely unrepresented and the breadth of social problems people bring to court belie the adversarial construct. Further, written opinions are not the norm in lawyerless trial courts. The combination of limited adversarial process and the absence of written opinions means that appellate activity is minimal, and thus law development in lawyerless courts does not happen in the way we traditionally assume.

We begin by analyzing what we know about the volume and nature of appeals in lawyerless courts. We then use our original data to conceptualize how lawyerless trial courts operate in the absence of law development. Finally, we place questions of lawyerless law development in the context of broader questions of democratic governance.

Disciplines

Courts | Law | State and Local Government Law

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