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

• NCJ Number: 70233
• Journal: Law and Society Review Volume: 14 Issue: 2 Dated: (Winter 1980) Pages: 371-420
• Author(s): R Cavanagh; A Sarat
• Date Published: 1980
• Length: 50 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

Arguments about limitations on judicial competence or capacity are discarded in favor of arguments for reforms that focus beyond the courts toward a wide range of social goals, such as strengthening family and community institutions.

Abstract

Changes in courts, designed within the framework of traditional judicial procedures and intended to increase the ability of courts to manage particular kinds of litigation, may have dysfunctional side effects that are inadequately understood. Yet, when problems of competence or capacity are treated as simply, or even primarily, court problems, reform strategies may alleviate those problems only to generate broader social and political dislocations. The concern for judicial competence and capacity is both overstated and misstated, as a look at three types of litigation shows: the courts' handling of unrepresented defendants (i.e., debtor-tenant defaults), related-party disputes, and extended impact cases; all cases which have emerged from private sector handling to be handled by the courts. The concern is overstated because it has tended to ignore the ability of the courts to adapt to changes in the kinds of litigation with which they must deal; it is misstated because it tends to isolate court problems from the more fundamental social and political problems of which they are at best symptoms. The difficulties faced by courts are the result of changes in both private and public institutions and in social practices. As authority in families, churches, and schools has eroded through urbanization and industrialization and as new burdens have been placed on government bodies other than courts, the courts have been asked to cope with problems that have sapped the strength of alternative institutions. Until America can come to terms with the causes of those fundamental changes in society and politics, the problems of the courts will not be fully alleviated. Courts will continue to have to respond to regulating activities or have to resolve the disputes of people joined through relationships of trust, affiliation, or functional interdependence. Case law is cited and about 125 references and numerous footnotes are included.