Vol. 25 No. 3 (March 2015) pp. 36-39
REIMAGINING COURTS: A DESIGN FOR THE TWENTY-FIRST CENTURY by Victor E. Flango and Thomas M. Clarke. Philadelphia PA: Temple University Press. 2015. 214 pp. Cloth $64.50. ISBN: 9780104399-1167-9.
Reviewed by Stephen L. Wasby, Eastham, Mass. E-mail: firstname.lastname@example.org.
The operation and functioning of state trial courts is a topic important because, of all the levels of courts, we know least about the trial courts, both state and federal, and the deficiency is quite serious. In our attention to appellate courts’ doctrinal outputs and their judges’ votes, we forget that courts will not move of themselves. They need management, yet social scientists pay little attention to court administration, which some still think is not within political science. Nor does public administration pick up much of the slack. The deficit is reinforced by the relative paucity of work on state courts although the real action is in the state trial courts.
REIMAGINING COURTS may help rectify the deficiency somewhat, but it is not of sufficient heft to put much of a dent in it, because of its choppy and underdeveloped treatment of most of its subjects. Victor E. (Gene) Flango and Thomas Clarke, both experts on court administration affiliated with the National Center for State Courts (NCSC), do their best work examining what have come to be called “problem-solving courts,” the newest type of court and thus the one with which the public is least familiar.
Flango and Clarke try to provide a vision for the future of trial courts or courts at that “level” in the present judicial system. In this vision, those with complaints would have a variety of options, starting at the authors’ imaginative interactive “portal” which they liken to Turbotax. Triage would be applied to cases, for which there would be different case-processing tracks, and shifts among tracks would be allowed during an evolving process. They base their vision on the premise that courts presently lack “a monopoly on legal decision making” (p. 153) but also that every problem does “not require a court solution” (p. 6), as well as on the further, if unstartling, notion of treating users of courts as customers (p. 11). Underlying the authors’ “suggested redesign of state and local courts” are “1. A strong customer focus. 2. Increased access to justice. 3. More efficient delivery of services” (pp. 163-64).
For Flango and Clarke, the modern court era started in the 1960s when courts started acting like organizations; the court administration profession began to develop; and courts as organizations achieved independence beyond the “judicial independence” entailed in deciding cases. To this mix were added increased demand from drug cases and the addition of non-case functions such as alternative dispute resolution (ADR) and pretrial and post-trial services, and, somewhat later, the presence of problem-solving courts. Financial difficulties from recessions, including the recent Great Recession, provided constant budget challenges, which exacerbated these problems.
These difficulties raised the question of what properly belonged within courts’ remit. The financial problems, the authors assert, mean that “courts simply must address the twin issues of mission scope, or essential functions, and improved case management” [*36] (p. 12). Recognizing that complainants had begun to turn to non-court decision-making venues, particularly for civil cases, they believe the essential functions of courts should be identified and resources provided only for those functions. As they observe, “Courts should resolve those types of disputes that they are uniquely qualified to resolve” (p. 87). Case-management should be based on “best practices,” with case triage utilized, which in turn requires good internal information available promptly.
REIMAGINING COURTS begins with a brisk-paced 15-page Overview, expanded in two chapters which could have been consolidated with it as neither provides much elaboration nor is sufficiently long to be separate (Ch. 2 is only 5 ½ pp.). Chapter 1 focuses on the model of courts as dealing with adversary matters, while Chapter 2 attends more to what courts do and provides brief treatments of traffic, criminal, and civil matters. This introductory material is followed by six chapters, also short, about triage and case-processing tracks and two chapters of examples of the problem-solving process. The book concludes with a return to the authors’ vision of the modern court, with some attention to implementation.
In Ch. 3, the authors argue that case-processing tracks should be disentangled to help the consumer; assert that triage should occur early in the process; and delineate four adjudicatory processes. These are adversary (traditional), dispositional (high-volume, “ordinary” cases), administrative, and problem-solving (non-adversary, solution-seeking), with dispositional and administrative processes variations on the adversary theme (p. 127). The authors would allow the prospective litigant to self-select the venue in which the dispute is to be resolved but they pose key questions to be asked to determine to which process a dispute should be assigned (see decision tree at p. 45, Fig. 3.1), although they would allow prospective litigants to self-select the venue in which their disputes are to be resolved. Issues that are clear, well defined, and contested are trial-worthy. Analysis of issues, not case types, should be the basis for assigning cases to tracks, as “the type of case involved is only a rough approximation of the issues involved” (p. 48, italics in original). A brief treatment of court organization, legal restrictions, and differentiated court management is provided in an Appendix.
Chapters 4 through 7 explicate each of these adjudicatory processes. The adversary process (Ch. 4) is to be reserved for trials. The authors note that trials have decreased along with a shift from jury trials to bench trials but don’t elaborate when they speak of cases as being “trialworthy,” nor is their call for “shorter, more expedited, less costly trials” particularly new. Also not new is their point in Ch. 5 (the dispositional process) that the prosecutor, not the judge, is the principal decision-maker for criminal trials. This is part of their larger point that courts have not used the adversary process to resolve routine cases and that civil cases have moved to private sector dispute resolution, including mediation and arbitration; that these are mentioned but not given adequate focus is an unfortunate lacuna because members of the public lack understanding of ADR. They do speak of the need “to identify the essential basic elements of due process that must be present to have a fair hearing or trial” (p. 82, italics in original).
The administrative process (Ch. 6) should be used, we are told, for uncontested matters, a “mechanical application of rules for routine [*37] cases” (p. 87). For this process, there are two alternatives to using courts: administrative units under court supervision and separate administrative processing, of which New York City’s administrative tribunals are examples.
Flango and Clarke turn in Chapters 7 and 8, the volume’s most developed and thus most useful part, to examine problem-solving processes, which constitute “a different model of justice.” They contrast “a medical model of individual treatment and a legal model of treating like cases alike” (p. 127), with courts unable to do both (p. 138). Cases –or, better, situations– brought to problem-solving courts are characterized by interrelated, non-adversarial, and on-going issues which occur with sufficient frequency to justify coordinated treatment of those who have been channeled to the court (p. 107). Flango and Clarke are quite clear that problem-solving processes are most appropriate at the treatment, not the disposition (judgment) stage of a case.
Principles underlying problem-solving courts and their basic characteristics are identified and a paragraph or two is provided on each type of such court (drug, community, DWI, mental health, veterans, and reentry), with more (8 pp.) on unified family courts. The cases before these courts may not yet be large in number, but they are resource-intensive (p. 110), and most important is that the judge acts as problem-solver, a more flexible role different from that performed in a traditional trial. Moreover, the courts themselves require a physical layout different from that of the traditional court in which the judge is separated from (and above) those appearing there.
Flango and Clarke also point to a problem of reconciling the “court reform” of recent decades, which led to consolidation of courts, with the specialization characterizing these new problem-solving courts. They assert that while “triage into a problem-solving track is necessary to coordinate treatment services, . . . coordination does not require establishment of separate courts.” (p. 124), but they also appropriately argue against grafting problem-solving onto the adversary system “at least until after the judgment is made” (p. 127).
Chapter 9 begins by dealing with case triage strategies in action. Here they present case studies of reducing court jurisdiction; “increasing litigant choice” (p. 144), for example, by making use of interdisciplinary teams of lawyers and social workers to work with parents before a (juvenile) petition is filed; streamlining processes; and optimizing scarce resources. It is, however, unclear how individuals’ “choice” is to operate. The “case studies,” which constitute only a brief paragraph about various programs grouped under the headings, unfortunately are, like all else in this volume, brief and lack depth. The chapter ends by pointing out that to take the book’s ideas serious has implications for both judicial selection –as the type of judge who does best in a problem-solving court would not necessarily be one we have selected to conduct full adversary trials (p. 148), operating above the fray in the adversary model– and court staff, who would need a higher educational level and skill sets different from the public management skills now emphasized (p. 151).
Chapter 10 is said to deal with implementation of the authors’ “vision of a modern court,” but it is really their recap and conclusion. It lacks focused attention to implementation and would have been far more useful had it drawn on the burgeoning [*38] literature on that subject. Points made by Flango and Clarke are that in the legal market, there is a lack of transparency which needs to be remedied, and that legal services need to “become more unbundled” as courts’ monopoly is limited to certain types of cases (p. 156). Among their suggestions for reform, including a continuous innovation process, are that courts help litigants know when court services are appropriate and partner with other providers for a “seamless set of legal services” (p. 158); upon shedding cases, courts should tailor themselves better for litigation. Barriers to implementation that are noted include finances, as the authors admit that not all their suggestions will save money, particularly important in a time of tight state budgets. Other barriers are resistance to coordination of multiple agencies; the need for information about legal markets; and courts’ continuing to organize work by case-type.
While in some sense a showcase of NCSC thinking, REIMAGINING COURTS will be of relatively little utility to scholars of the courts, even those not familiar with the trial courts.
Those who have followed the literature will add little to their knowledge, even as to more thoroughly discussed problem-solving courts. Without doubt the authors’ thinking has benefited from recent writing, but this volume does not effectively draw on it and build upon it. Existing knowledge of traditional courts is given summary treatment. Articles from LAW & SOCIETY REVIEW are cited, but, although Flango is a political scientist, relatively little use is made of political science scholarship, where recent writing would have helped illuminate such matters as the authors’ noting that Congress’s new laws have left enforcement to the courts. In addition, many sources used are general-purpose rather than scholarly, and overall many citations seem more than a bit dated.
Whether other audiences would benefit is unclear. There appears not to be much for those in court administration, as those professionally involved, for example, in the National Association of Court Managers (NACM) will have already heard similar calls for action. And what I call “the educated lay public,” perhaps the intended audience, will benefit far less than was possible, because of the relatively superficial treatment already noted: two or three paragraphs per subject-matter heading does not provide much for any reader. Nonetheless, the book may be of some use to those who wish some very basic exposure to case-processing and to the problem-solving courts, about which most folks lack sufficient knowledge.
Declaration: The reviewer served as a consultant to the National Center for State Courts in the late 1970s for a project on appellate delay and for many years served on the editorial board of JUSTICE SYSTEM JOURNAL, a NCSC-sponsored journal; as editor-in-chief (2005-2007), he technically reported to Tom Clarke.
© Copyright 2015 by the author, Stephen L. Wasby.