Monday, May 31, 2010

Bybee and Pincock on How the State "Sells" its Judiciary

Professor Keith J. Bybee (Syracuse University College of Law) and Heather Pincock have posted "Efficient, Fair, and Incomprehensible: How the State 'Sells' Its Judiciary" on SSRN.

The abstract states:

Sociolegal scholars often approach dispute resolution from the perspective of the disputants, emphasizing how the resources on each side shape the course of conflict. We suggest a different, “supply-side” perspective. Focusing on the state’s efforts to establish centralized courts in place of local justice systems, we consider the strategies that a supplier of dispute resolving services uses to attract disputes for resolution. We argue that state actors often attempt to “sell” centralized courts to potential litigants by insisting that the state’s services are more efficient and fair than local courts operating outside direct state control. Moreover, we argue that state actors also invest significant energy in claiming that the local courts are incomprehensible. Thus, in its efforts to introduce and advance centralized courts, the state argues not only that it offers the best version of what the citizenry wants, but also that it is impossible to conceive that people would want something other than what the state offers. We illustrate our argument and explain its significance by examining judicial reform in New York, where there has been a decades-long effort to displace local justice systems.


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It is worth recalling that local justice systems in New York State outside major cities include a justice of the peace system that has produced more non-attorney judges and have produced more scandals involving abuse of judicial power and embezzlement by judges than almost any other jurisdiction in the United States.

New York is also exceptional in having entirely different local justice systems in different regions of the state. Long Island, New York City and upstate New York each have court systems that are different in important particulars (e.g. the appellate process and the jurisdiction of local courts). I know of no jurisdiction in the United States, with the possible exception of the District of Columbia, with a more complex organization charge for its courts. New York is also exceptional for having a strongly statutory as opposed to court written set of court rules, and for refusing to blindly follow the example of the federal rules of civil procedure for most purposes.

Judicial system reform in New York State certainly deserves examination. But, it is not an example whose lessons can be extrapolated easily to other states. If there is a lesson to be learned from New York State that can be applied elsewhere, it is that legislative inertia that prevents major overhaul as opposed to incremental adjustments, is much stronger in an old, populous state than it is in a young, smaller state.

Posted by: ohwilleke | Jun 7, 2010 11:36:50 AM

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