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Thinking About Courts: Toward and Beyond a Jurisprudence of Judicial Competence

Published online by Cambridge University Press:  02 July 2024

Ralph Cavanagh  and
Austin Sarat
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Abstract

This article reviews arguments about limitations on judicial competence or capacity, focusing on the need to go beyond such arguments to understand courts and their problems. Theoretical limitations on the competence and capacity of courts are compared with the record of judicial performance. The study examines performance in three areas in which courts are most likely to be thought ineffective: (1) cases involving unrepresented defendants, such as debtors or tenants; (2) disputes among persons with intimate or ongoing relationships; (3) extended impact cases. It is shown that courts adapt to changing circumstances and perform quite well, even with these difficult types of cases. Reforms are still needed, but rather than focusing narrowly on the courts, they should be directed at a wider range of social goals, such as strengthening family and community institutions which have been diminished by increasing urbanization and industrialization.

Type
Research Article
Information
Law & Society Review , Volume 14 , Issue 2 , Winter 1980 , pp. 371 - 420
Copyright
Copyright © 1980 The Law and Society Association.

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Footnotes

*

This paper was originally prepared for the Council on the Role of Courts. The authors would like to thank the members of the Council and Professors Deborah Rhode, Lawrence Friedman, George Kateb, Richard Foglesong, and Herbert Jacob for their helpful comments.

References

References

ADAMANY, David (1976) “Legitimacy, Realigning Elections, and the Supreme Court,” 1973 Wisconsin Law Review 790.Google Scholar
Advisory Commission on Intergovernmental Relations (1955) The Administrative and Fiscal Impact of Federal Grants-in-Aid. Washington, D.C.: Advisory Commission on Intergovernmental Relations.Google Scholar
AUBERT, Vilhelm (1963) “Competition and Dissensus: Two Types of Conflict and of Conflict Resolution,” 7 Journal of Conflict Resolution 26.Google Scholar
AUBERT, Vilhelm (1967) “Courts and Conflict Resolution,” 11 Journal of Conflict Resolution 40.Google Scholar
BARTON, John (1975) “Behind the Legal Explosion,” 27 Stanford Law Review 567.Google Scholar
BAUDE, Patrick (1977) “The Federal Courts and Prison Reform,” 52 Indiana Law Journal 761.Google Scholar
BAUM, Larry, Sheldon, GOLDMAN, and Austin, SARAT (1978) “Transformations in Appellate Activity,” unpublished manuscript.Google Scholar
BLACK, Charles (1960) The People and the Court. New York: Macmillan.Google Scholar
BLACK, Donald (1973) “The Mobilization of Law,” 2 Journal of Legal Studies 125.Google Scholar
BLACK, Donald-(1976) The Behavior of Law. New York: Academic Press.Google Scholar
BONN, Robert L. (1972) “The Predictability of Nonlegalistic Adjudication,” 6 Law and Society Review 563.Google Scholar
BOYER, Barry (1972) “Alternatives to Administrative Trial-Type Hearings for Resolving Complex Scientific, Economic, and Social Issues,” 71 Michigan Law Review 111.Google Scholar
BUCHANAN, P. (1979) “Runaway Courts Can Be Reined In,” Chicago Tribune, April 18, 1979: 8.Google Scholar
CALABRESI, Guido and BOBBIIT, Philip (1978) Tragic Choices. New York: W.W. Norton.Google Scholar
CAPLOVTTZ, David (1974) Consumers in Trouble: A Study of Debtors in Default. New York: Free Press.Google Scholar
CAPPELLETTI, M. and GARTH, J. (1978) “The Access to Justice Movement,” 27 Buffalo Law Review 181.Google Scholar
CARDOZO, Benjamin (1921) The Nature of the Judicial Process. New Haven: Yale University Press.Google Scholar
CASPER, Gerhard and Richard A., POSNER (1974) “A Study of the Supreme Court's Caseload,” 3 Journal of Legal Studies 339.Google Scholar
CHAYES, Abram (1976) “The Role of the Judge in Public Law Litigation,” 89 Harvard Law Review 1281.Google Scholar
“Community Courts: An Alternative to Conventional Criminal Adjudication,” (1975) 24 American University Law Review 1253.Google Scholar
COX, Archibald (1976) “The New Dimensions of Constitutional Adjudication,” 51 Washington Law Review 791.Google Scholar
CRATSLEY, John C. (1978) “Community Courts: Offering Alternative Dispute Resolution Within the Judicial System,” 3 Vermont Law Review 1.Google Scholar
CROZIER, Michel (1975) The Crisis of Democracy. New York: New York University Press.Google Scholar
CURRIE, David and Frank, GOODMAN (1975) “Judicial Review of Federal Administrative Action: Quest for the Optimum Forum,” 75 Columbia Law Review 1.Google Scholar
DANZIG, Richard (1973) “Toward the Creation of a Complementary, Decentralized System of Criminal Justice,” 26 Stanford Law Review 1.Google Scholar
DANZIG, Richard and Michael J., LOWY (1975) “Everyday Disputes and Mediation in the United States: A Reply to Professor Felstiner,” 9 Law and Society Review 675.Google Scholar
“Decency and Fairness: An Emerging Judicial Role in Prison Reform,” (1971) 57 Virginia Law Review 841.Google Scholar
DERTHICK, Martha (1970) The Influence of Federal Grants: Public Assistance in Massachusetts. Cambridge, Mass.: Harvard University Press.CrossRefGoogle Scholar
DIVER, C. (1979) “The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions,” 65 Virginia Law Review 43.Google Scholar
DOLBEARE, Kenneth M. (1967) Trial Courts in Urban Politics: State Court Policy Impact and Function in a Local Political System. New York: John Wiley.Google Scholar
DWORKIN, Ronald (1977) Taking Rights Seriously. Cambridge, Mass.: Harvard University Press.Google Scholar
ECKHOFF, Torstein (1967) “Impartiality, Independence and the Separation of Powers,” 9 Scandinavian Studies in Law 11.Google Scholar
ECKHOFF, Torstein (1966) “The Mediator, the Judge and the Administrator in Conflict Resolution,” 10 ACTA Sociologica 148.Google Scholar
EHRLICH, Thomas (1976) “Legal Pollution,” New York Times Magazine, F8, VI: 17.Google Scholar
EISENBERG, Melvin A. (1976) “Private Ordering Through Negotiation: Dispute-Settlement and Rulemaking,” 89 Harvard Law Review 637.Google Scholar
EISENBERG, Theodore and Stephen, YEAZELL (1980) “The Ordinary and the Extraordinary in Institutional Reform Litigation,” 93 Harvard Law Review 465.Google Scholar
EOVALDI, Thomas and Peter, MEYERS (1978) “The Pro Se Small Claims Court in Chicago: Justice for the ‘Little Guy‘?” 72 Northwestern Law Review 947.Google Scholar
FELSTINER, William L.F. (1974) “Influences of Social Organization on Dispute Processing,” 9 Law and Society Review 63.Google Scholar
FELSTINER, William L.F. and L., WILLIAMS (1979) Community Mediation in Dorchester, Massachusetts. Working paper, Program for Dispute Systems Research, University of Southern California.Google Scholar
FISS, Owen (1979) “The Supreme Court, 1978 Term—Foreward: The Forms of Justice,” 93 Harvard Law Review 1.Google Scholar
FOSTER, Henry H. and Doris J., FREED (1973) “Divorce Reform: Brakes on Breakdown,” 13 Journal of Family Law 443.Google Scholar
FREED, Doris and Henry, FOSTER (1977) “Divorce in the Fifty States: An Outlook” 11 Family Law Quarterly 297.Google Scholar
FRIEDMAN, Lawrence M. (1971) “The Idea of Right as a Social and Legal Concept,” 27(2) Journal of Social Issues 189.Google Scholar
FRIEDMAN, Lawrence M. (1974) “Notes Toward a History of American Justice,” 24 Buffalo Law Review 111.Google Scholar
FRIEDMAN, Lawrence M. and Robert V., PERCIVAL (1976) “A Tale of Two Courts: Litigation in Alameda and San Benito Counties,” 10 Law and Society Review 267.Google Scholar
FULLER, Lon and John, RANDALL (1958) “Professional Responsibility: Report of the Joint Conference,” 44 American Bar Association Journal 159.Google Scholar
FULLER, Lon (1963) “Collective Bargaining and the Arbitrator,” 1963 Wisconsin Law Review 3.Google Scholar
FULLER, Lon (1971) “Mediation—Its Forms and Functions,” 44 Southern California Law Review 305.Google Scholar
FULLER, Lon-(1978) “The Forms and Limits of Adjudication,” 92 Harvard Law Review 353.Google Scholar
GALANTER, Marc (1977) “Legality of Its Discontents,” presented at the 1978 Annual Meeting of the American Political Science Association, New York.Google Scholar
GALANTER, Marc (1979) “Justice in Many Rooms,” working paper, Dispute Processing Research Program, University of Wisconsin.Google Scholar
GILMORE, Grant (1977) The Ages of American Law. New Haven: Yale University Press.Google Scholar
GLAZER, Nathan (1975) “Towards an Imperial Judiciary?” 41 The Public Interest 104.Google Scholar
GRAGLIA, Lino A. (1976) Disaster by Decree: The Supreme Court Decisions on Race and the Schools. New York: Cornell University Press.Google Scholar
GRIFFITHS, John (1970) “Ideology in Criminal Procedure or a Third ‘Model’ of the Criminal Process,” 79 Yale Law Journal 359.Google Scholar
GROSSMAN, Joel B. and Austin, SARAT (1974) “Litigation in the Federal Courts: A Comparative Perspective,” 9 Law and Society Review 321.Google Scholar
HABERMAS, Jurgen (1975) Legitimation Crisis. Boston: Beacon Press.Google Scholar
HAND, Learned (1958) The Bill of Rights. Cambridge, Mass.: Harvard University Press.CrossRefGoogle Scholar
HARRIS, M. Kay and Dudley P., SPILLER Jr. (1976) After Decision: Implementation of Judicial Decrees in Correctional Settings. Washington, D.C.: National Institute of Law Enforcement and Criminal Justice, LEAA, U.S. Department of Justice.Google Scholar
HART, Henry M. (1953) “The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic,” 66 Harvard Law Review 1362.Google Scholar
HAYEK, HAYEK Friedrich August (1960) The Constitution of Liberty. Chicago: University of Chicago Press.Google Scholar
HEILBRONER, Robert (1965) The Limits of American Capitalism. New York: Harper and Row.Google Scholar
HERLIHY, J.C. (1971) “A Crisis of Authority: Its Effect on Our Courts,” 43 New York State Bar Journal 235.Google Scholar
HEYDEBRAND, Wolf (1977) “The Context of Public Bureaucracies: An Organizational Analysis of Federal District Courts,” 11 Law and Society Review 759.Google Scholar
HOROWITZ, Donald (1977) The Courts and Social Policy. Washington, D.C.: Brookings Institution.Google Scholar
HURST, J. Willard (1950) The Growth of American Law: The Law Makers. Boston: Little, Brown.Google Scholar
JACOB, Herbert (1969) Debtors in Court: The Consumption of Government Services. Chicago: Rand McNally.Google Scholar
JACOB, Herbert (1978) “Related Party Disputes in Criminal Courts: Some Data and Speculations About Alternative Functions,” presented at the 1978 Annual Meeting of the American Political Science Association, New York.Google Scholar
JAMES, Fleming (1965) Civil Procedure. Boston: Little, Brown.Google Scholar
JOHNSON, Earl (1978) “Courts and the Community,” in Fedder, T. (ed.), State Courts: A Blueprint for the Future. Williamsburg: National Center for State Courts.Google Scholar
JOY, — (1979) “State Prisons on Trial,” 5 State Legislatures 6.Google Scholar
KADISH, Sanford H. (1957) “Methodology and Criteria in Due Process Adjudication—A Survey of Criticism,” 66 Yale Law Journal 319.Google Scholar
KAGAN, Robert A., CARTWRIGHT, Bliss, FRIEDMAN, Lawrence M., and Stanton, WHEELER (1977) “The Business of State Supreme Courts, 1870-1970,” 30 Stanford Law Review 121.Google Scholar
KEATING, J. Michael Jr. (1975) “Arbitration of Inmate Grievances,” 30 The Arbitration Journal 177.Google Scholar
KEY, V.O. (1937) The Administration of Federal Grants to the States. Chicago: Social Science Research Council.Google Scholar
KOSMIN, Leslie (1976) “The Small Claims Court Dilemma,” 13 Houston Law Review 934.Google Scholar
KRISLOV, Samuel and K., BOYUM (1978) “Relationships Between Caseloads and Social Progress,” paper presented at the 1978 Annual Meeting of the American Political Science Association, New York.Google Scholar
LASCH, Christopher (1977) Haven in a Heartless World. New York: Basic Books.Google Scholar
LASCH, Christopher-(1979) The Culture of Narcissism. New York: W.W. Norton.Google Scholar
LAURENT, Francis (1959) The Business of a Trial Court. Madison: University of Wisconsin Press.Google Scholar
Legal Services Corporation (1979) Newsletter. Washington, D.C.: Legal Services Corporation.Google Scholar
LEMPERT, Richard (1978) “More Tales of Two Courts: Exploring Changes in the Dispute Settlement Function of Trial Courts,” 13 Law and Society Review 91.Google Scholar
LIPMAN, David (1974) “Mississippi's Prison Experience,” 45 Mississippi Law Journal 685.Google Scholar
LIPPMAN, Marshall E. (1972) “Arbitration as an Alternative to Judicial Settlement: Some Selected Perspectives,” 24 Maine Law Review 215.Google Scholar
MACAULAY, Stewart (1963) “Non-contractual Relations in Business: A Preliminary Study,” 28 American Sociological Review 55.Google Scholar
MACAULAY, Stewart (1979) “Lawyers and Consumer Protection Laws,” 14 Law & Society Review 115.Google Scholar
MAHONEY, Barry, Austin, SARAT, and Steven, WELLER (1978) “The Public and the Courts,” in Fedder, T. (ed.), State Courts: A Blueprint for the Future. Williamsburg: National Center for State Courts.Google Scholar
MANNING, Bayless (1977) “Hyperlexis: Our National Disease,” 71 Northwestern University Law Review 767.Google Scholar
MAYHEW, David (1974) Congress: The Electoral Connections. New Haven: Yale University Press.Google Scholar
McGILLIS, Daniel and John, MULLEN (1977) Neighborhood Justice Centers: An Analysis of Potential Models. Washington, D.C.: Department of Justice, Office of Development, Testing and Dissemination, National Institute of Law Enforcement and Criminal Justice, LEAA.Google Scholar
McINTOSH, Wayne V. (1978) “Litigation in the St. Louis Trial Courts of General Jurisdiction: The Effects of Socioeconomic Change,” presented at the 1978 Annual Meeting of the American Political Science Association, New York.Google Scholar
MENTSCHIKOFF, Soia (1961) “Commercial Arbitration,” 61 Columbia Law Review 846.Google Scholar
MERRY, Sally (1979) “Going to Court: Strategies of Dispute Management in an American Urban Neighborhood,” 13 Law and Society Review 891.Google Scholar
MILLER, Arthur (1979) “Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the ‘Class Action’” 92 Harvard Law Review 664.Google Scholar
MNOOKIN, R. and L., KORNHAUSER (1979) “Bargaining in the Shadow of the Law: The Case of Divorce,” 88 Yale Law Journal 950.Google Scholar
MOSIER, Marilyn M. and Richard A., SOBLE (1973) “Modern Legislation, Metropolitan Court, Miniscule Results: A Study of Detroit's Landlord-Tenant Court,” 7 University of Michigan Journal of Law Reform 8.Google Scholar
MOYNIHAN, D. (1978) “An Imperial Presidency Leads to an Imperial Congress Leads to an Imperial Judiciary: The Iron Law of Emulation,” Lehman College Pub. #13.Google Scholar
MURPHY, Walter (1978) “Constitutional Interpretation,” 87 Yale Law Journal 1752.Google Scholar
NADER, Laura and Linda, SINGER (1976) “Dispute Resolution,” 51 California State Bar Journal 281.Google Scholar
NATHAN, V. (1979) “The Use of Masters in Institutional Reform Litigation,” 10 University of Toledo Law Review 419.Google Scholar
National Center for State Courts (1978) State Court Caseload Statistics: Annual Report 1975.Google Scholar
NISBET, Robert (1975) The Twilight of Authority. New York: Oxford.Google Scholar
NONET, Philippe and Philip, SELZNICK (1978) Law and Society in Transition: Toward Responsive Law. New York: Harper and Row.Google Scholar
NOTE (1969) “The Prosecution and Intimidation of the Low-Income Litigant as Performed by the Small Claims Court in California,” 21 Stanford Law Review 1657.Google Scholar
NOTE (1973) “Legal Services and Landlord-Tenant Litigation: A Critical Analysis,” 82 Yale Law Journal 1495.Google Scholar
NOTE (1974) “Due Process Denied: Consumer Default Judgments in New York City,” 10 Columbia Journal of Law and Social Problems 370.Google Scholar
NOTE (1975) “The Wyatt Case: Implementation of a Judicial Decree Ordering Institutional Change,” 84 Yale Law Journal 1338.Google Scholar
NOTE (1976) “Developments in the Law, Class Actions,” 89 Harvard Law Review 1318.Google Scholar
NOTE (1977) “Implementation Problems in Institutional Reform Litigation,” 91 Harvard Law Review 428.Google Scholar
PENNOCK, J. Roland and John W., CHAPMAN (1977) Due Process. New York: New York University Press.Google Scholar
POUND, Roscoe (1905) “Do We Need a Philosophy of Law?” 5 Columbia Law Review 339.Google Scholar
“Project Judicial Intervention in Corrections: The California Experience—An Empirical Study” (1972) 20 U.C.L.A. Law Review 452.Google Scholar
“Project, The Remedial Process in Institutional Reform Litigation,” (1978) 78 Columbia Law Review 784.Google Scholar
“Project, The Unauthorized Practice of Law and Pro Se Divorce: An Empirical Analysis” (1976) 86 Yale Law Journal 104.Google Scholar
REHNQUIST, William (1978) “The Adversary Society,” mimeo, text of a speech at University of Miami.Google Scholar
RIFKIND, Simon H. (1976) “Are We Asking Too Much of Our Courts?” 70 Federal Rules Decisions 96.Google Scholar
ROSE, Richard and Guy, PETERS (1978) Can Government Go Bankrupt? New York: Basic Books.CrossRefGoogle Scholar
ROSENBERG, Maurice (1972) “Let's Everybody Litigate?” 50 Texas Law Review 1349.Google Scholar
RUBENSTEIN, Leonard S. (1976) “Procedural Due Process and the Limits of the Adversary System,” 11 Harvard Civil Rights, Civil Liberties Law Review 48.Google Scholar
RUHNKA, John and Steven, WELLER (1978) Small Claims Courts: A National Examination. Williamsburg: National Center for State Courts.Google Scholar
SANDER, Frank E. (1976) “Varieties of Dispute Processing,” 70 Federal Rules Decisions 111.Google Scholar
SARAT, Austin and Joel, GROSSMAN (1975) “Courts and Conflict Resolution: Problems in the Mobilization of Adjudication,” 69 American Political Science Review 1200.Google Scholar
SARAT, Austin (1976) “Alternatives in Dispute Processing: Litigation in a Small Claims Court,” 10 Law and Society Review 339.Google Scholar
SARAT, Austin-(1979) “The Role of Courts and the Logic of Court Reform,” unpublished manuscript.Google Scholar
SCHAEFER, Walter V. (1976) “Is the Adversary System Working in Optimal Fashion?” 70 Federal Rules Decisions 159.Google Scholar
SCHEINGOLD, Stuart A. (1974) The Politics of Rights: Lawyers, Public Policy and Political Change. New Haven: Yale University Press.Google Scholar
SEMBOWER, John F. (1969) “Landlord-Tenant Arbitration,” 24 The Arbitration Journal 35.Google Scholar
SHAPIRO, Martin (1975) “Courts,” in Polsby, Nelson and Greenstein, Fred I. (eds.), A Handbook of Political Science. Massachusetts: Addison-Wesley Publishing Co.Google Scholar
SMITH, G. (1974) “The Environment and the Judiciary: A Need for Cooperation or Reform?” Environmental Affairs 627.Google Scholar
SNYDER, Frederick (1978) “Crime and Community Mediation—The Boston Experience: A Preliminary on the Dorchester Urban Court Program” 1978 Wisconsin Law Review 737.Google Scholar
THAYER, J. (1974) John Marshall. New York: DaCapo.Google Scholar
TOCQUEVILLE, Alexis de (1945) Democracy in America. New York: Vintage.Google Scholar
TRIBE, Lawrence (1979) “Too Much Law, Too Little Justice,” 224 Atlantic 25.Google Scholar
UNGER, Roberto (1976) Law and Modern Society: Toward a Criticism of Social Theory. New York: Free Press.Google Scholar
U.S. BUREAU OF THE CENSUS (1976) State Government Finance in 1975. Washington, D.C.: U.S. Government Printing Office.Google Scholar
Vera Institute (1977) Felony Arrests: Their Prosecution and Disposition in New York City's Courts. New York: Vera Institute of Justice.Google Scholar
WALLACE, George (1973) “The Logic of Consumer Credit Reform,” 82 Yale Law Journal 461.Google Scholar
WANNER, Craig (1974) “The Public Ordering of Private Relations: Part I, Initiating Civil Cases in Urban Trial Courts,” 8 Law and Society Review 421.Google Scholar
WEXLER, David B. (1972) “Therapeutic Justice,” 57 Minnesota Law Review 289.Google Scholar
WOLFE, Alan (1978) The Limits of Legitimacy. New York: Free Press.Google Scholar
YANKELOVITCH, SKELLY and WHITE, INC. (1978) “Highlights of a National Survey of the General Public, Judges, Lawyers, and Community Leaders,” in (T. Fedder ed.), State Courts: A Blueprint for the Future. Williamsburg: National Center for State Courts.Google Scholar
YNGVESSON, Barbara and Patricia, HENNESSEY (1975) “Small Claims, Complex Disputes: A Review of the Small Claims Literature,” 9 Law and Society Review 219.Google Scholar

Cases Cited

Cafeteria Workers v. McElroy, 367 U.S. 886, 1961..Google Scholar
Columbus Board of Education v. Penick, 99 S. Ct. 2941, 1979.Google Scholar
Goldberg v. Kelly, 397 U.S. 254, 267, 1970.Google Scholar
Hurtado v. California, 110 U.S. 516, 535, 1884.Google Scholar
In re Murchison, 349 U.S. 133, 136, 1955.Google Scholar
Lindsey v. Normet, 405 U.S. 56, 85, 1972.Google Scholar
Milliken v. Bradley, 418 U.S. 717, 1974.Google Scholar
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 1950.Google Scholar
Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 277, 1855.Google Scholar
Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1, 16, 1971.Google Scholar