Southern California Law Review
July, 1993
2020 Vision: A Plan for the Future of California's Courts
*2121
ALTERNATIVE COURT STRUCTURES IN THE FUTURE OF THE CALIFORNIA
JUDICIARY: 2020 VISION
Lawrence B. Solum [FNa1]
Copyright © 1993 by the
University of Southern California; Lawrence B. Solum
TABLE OF CONTENTS
I. INTRODUCTION, TRENDS, ASSUMPTIONS, AND
METHODOLOGY ................. 2122
A. INTRODUCTION
.................................................... 2122
B. THE 'LITIGATION
EXPLOSION' IN PERSPECTIVE: 1960, 1990, AND 2020 . 2123
C. THE ASSUMPTIONS
BEHIND THE SCENARIOS ............................ 2130
D. THE ROLE OF THE
SCENARIOS ....................................... 2131
II. FIVE SCENARIOS
..................................................... 2132
A. THE TRADITIONAL
JUSTICE SCENARIO ................................ 2132
B. THE PRIVATIZATION
OF JUSTICE SCENARIO ........................... 2139
C. THE MULTI-DOOR
COURTHOUSE SCENARIO .............................. 2146
D. THE ADMINISTRATIVE
JUSTICE SCENARIO ............................. 2153
E. THE
COMMUNITY-BASED JUSTICE SCENARIO ............................ 2160
III. PREFERRED FUTURES
.................................................. 2165
A. LIMITS ON THE
PROCESS OF PREFERRING A FUTURE .................... 2165
B. DISPUTE RESOLUTION
RESOURCES SHOULD BE RATIONED FAIRLY AND
EFFICIENTLY
...................................................... 2166
C. AN ECONOMIC
APPROACH TO RATIONING: DISPUTE RESOLUTION AS A
PUBLIC GOOD
...................................................... 2172
D. RATIONING AND THE
ROLE OF THE JURY .............................. 2176
E. RATIONING AND THE
SCENARIOS ..................................... 2178
IV. CONCLUSION
......................................................... 2181
*2122 I.
INTRODUCTION, TRENDS, ASSUMPTIONS, AND METHODOLOGY
A. INTRODUCTION
This Article examines the role of alternative court structures in the
future of California's judicial system. For the purposes of the Article, the
term "alternative court structures" includes:
(1) the use of alternative dispute resolution
mechanisms, such as mediation and arbitration, in the place of, or as an
adjunct to, the traditional litigation process;
(2) the use of private judging as an
alternative to public court systems;
(3) the use of administrative adjudication
as an alternative to the traditional court system; and
(4) the use of informal, decentralized, and
community-based dispute resolution as an alternative to formal, centralized
dispute resolution within the judicial system.
In addition, this Article explores the
impact of structural reforms, such as changes in fee-shifting rules, and the
adoption of aggregation techniques, such as class actions, on traditional court
structures.
The wide variety of proposals for
"alternative court structures" can be illuminated by examining five
scenarios in which alternative court structures play a substantial role in
California's judicial system by the year 2020. Each scenario takes one idea for
judicial reform to its logical limit.
(1) In the traditional justice scenario, a
meaningful jury-trial option is preserved by making the system more efficient.
(2) In the privatization of justice scenario, the court system is
privatized: High quality dispute resolution is delivered at a lower price as a
result of market competition.
(3) In the multi-door courthouse scenario,
the public courts make greater use of alternative dispute resolution
("ADR"): Each case is referred to the resolution service that is most
appropriate for the dispute.
*2123 (4) In the administrative
justice scenario, the legislature transfers the bulk of judicial business from
the traditional courts to administrative agencies. No-fault insurance is one
example.
(5) In the community-based justice scenario,
disputes are transferred from the traditional courts to neighborhood justice
centers.
The most important consideration in making
policy concerning alternative court structure is rationing of access to dispute
resolution services. Although the present system is not experiencing a
litigation explosion, it does and must ration access to dispute resolution, a
valuable service that consumes social resources. Such rationing should be done
fairly and efficiently. An economic interpretation of "fair" and
"efficient" rationing would focus on the idea of a "public good"--the
kind of benefit that cannot be provided by markets. Priority should be given to
provision of dispute resolution services to cases in which the public good
predominates over the benefit to private litigators. Examples of such cases
include serious criminal matters and public-law litigation.
B. THE "LITIGATION EXPLOSION" IN PERSPECTIVE: 1960,
1990, AND 2020
This Article's analysis of the role of
alternative court structures in the future of the state's judicial system is
premised on the proposition that understanding the future requires knowledge of
the past. The notion that California is undergoing a "court crisis"
has often been repeated throughout twentieth-century debate about court reform,
from the progressive era to the present day. [FN1] Current perceptions that the courts face a
"litigation explosion" [FN2] should be placed
in historical perspective before projections are made about the catastrophic
implications for the year 2020.
This section puts the notion of crisis in
perspective by providing three
"snapshots" of the judicial system. The first snapshot is of
the system as it existed approximately thirty years ago in 1960. The second
snapshot is of the system as it exists today, represented by data for the year
1990. The third snapshot is of the system as it might exist in the year 2020,
based on an extrapolation from existing trends and reasonable assumptions.
Table One, Table Two, and Table Three present data, derived from the Reports of
the Judicial Council, comparing 1990 with *2124 1960. [FN3] Table One presents
data on total filings. Table Two looks at filings per capita. Table Three
examines the percentage of filings that are
criminal in nature. Table Four presents the comparative data for civil filings.
TABLE ONE: TOTAL FILINGS
Total Filings Court(s)/Year
1960 1990 Percentage Change
----------------------------------------------------------------------
Appellate and Supreme Courts
3,069 25,392 +727.37%
Superior Court
329,539 979,810 +197.33%
Municipal and Justice Courts
7,894,148 16,408,576 +107.86%
----------------------------------------------------------------------
TABLE TWO:
FILINGS PER TEN-THOUSAND RESIDENTS
Per Person Courts/Year
1960 1990 Percentage Change
-----------------------------------------------------------------
Appellate and Supreme Courts
19.50 85.30 +336.96%
Superior Court
209.67 329.23 +57.02%
Municipal and Justice Courts
502.268 551.363 +9.77%
-----------------------------------------------------------------
As Table One indicates, the total number of
filings in the appellate courts of California was 3069 in 1960, translating
into approximately 20 cases per 10,000 residents, as detailed in Table Two. The
total number of filings in the superior courts was 329,539; this figure
approximates 210 superior court cases per 10,000 residents. The total number of
municipal and justice court filings was 7,894,148; this translates into about
500 cases per 10,000 residents.
As Table Four indicates, in 1960 the number
of civil filings in small claims court was 263,968 (168 per 10,000 residents),
in municipal and
TABLE THREE:
CRIMINAL CASES AS A PERCENTAGE OF TOTAL CASES FILED
Criminal cases as a percentage of total 1960
1990 Percentage
Change
-------------------------------------------------------------------------------
Appellate and Supreme Courts 53%
50% -5.66
Superior Court 9% 15%
+66.67
Municipal & Justice Courts (excluding traffic and 7%
7% +0.00
parking)
Municipal & Justice Courts (excluding parking) 46%
55% +19.57
Municipal & Justice Courts (including traffic and 94%
93% -1.06
-------------------------------------------------------------------------------
TABLE
FOUR: CIVIL FILINGS IN 1960 AND 1990
Court 1960 1990
Percentage 1960 1990
Percentage
Filings Filings
Increase # Filings Filings
Increase
of Filings Per Per
Per 10,000
10,000 10,000
-------------------------------------------------------------------------------
Municipal &
Justice
Courts:
Small Claims
263,968 503,993 +91% 168 169 +1%
Municipal &
Justice
Courts:
Other Civil
233,867 631,873 +170% 149 212 +43%
Superior
Courts:
General Civil 96,154 202,721 +111% 61 68 +11%
-------------------------------------------------------------------------------
*2125 justice courts, 233,867 (149 per 10,000
residents), and in superior court, 96,154 (61 per 10,000 residents). These
figures include civil lawsuits and exclude matters such as mental health
proceedings, probate matters, and so forth. [FN4]
*2126 2. The System in 1990
There were 25,392 appellate filings in 1990,
about 85 per 10,000 residents. [FN5] Thus, the number of appellate filings increased about 727%
in the thirty-year period; on a per capita basis, the number of appellate
filings increased by 337%. There were 979,810 superior court filings,
translating into about 330 cases per 10,000 residents. This represents a 197%
increase over 1960, but expressed per capita, the increase was 57%. The total
number of municipal and justice court filings was 16,408,576, about 550 per
10,000 residents. The increase from 1960 was 107%, but on a per capita basis,
the number of filings was up about 10%. When compared to other states, the
civil and criminal filing rates for 1990 in California are well below the
median. [FN6] The appellate
filing rate for California was at the national median. [FN7]
Table Four presents the figures for civil
filings in the core civil litigation area.
In 1990, there were 503,993 civil filings in small claims court (169 per 10,000
residents), 631,873 civil filings in municipal and justice courts combined (212
per 10,000 residents), and 202,721 civil filings in superior court (68 per
10,000 residents). Again, the figures include civil lawsuits and exclude matters
such as mental health proceedings, probate matters, and so forth.
3. Change
in the Last Thirty Years
Over the past thirty years, the absolute
number of cases filed in both the appellate and trial courts of California has
increased substantially. However, on a per capita basis, filings have remained
relatively constant at the trial level, while increasing significantly at the
appellate level. If civil cases are considered separately, the per capita
increases at the small claims and superior court levels are modest; the per
capita increase in civil filings in municipal court is more substantial.
The increase in the caseload of the
appellate courts in California has been dramatic. Although the number of
appellate court judges has increased during that time, the size of the
California Supreme Court has remained constant, raising concerns about the
court's ability to process *2127 its caseload. [FN8] One reason for the
increase in appellate cases seems to be the growth in the number of original
criminal proceedings at the appellate level. [FN9]
The caseload of the superior courts has also increased substantially. In
comparison, the absolute increase in the caseload of the municipal and justice
courts was much smaller, and on a per capita basis the increase from 1960 to
1990 was quite modest. These changes in caseload are expressed as the
percentage increase from the 1960 caseload to the 1990 caseload divided by the
1960 caseload in Table Five, below. If core civil filings are considered, the
increase in the number of civil filings on a per
TABLE FIVE: 1960 TO 1990 PERCENTAGE INCREASE
Court Percentage Change 1960 to
1990 Cases
Filed
----------------------------------------
Per Capita Number of Cases
-------------------------------------------------------------------------------
Appellate and Trial
Appellate and
+337% +723%
Courts:
All Filings
Supreme Courts
Superior Court +57% +187%
Municipal and
+10% +108%
Justice Courts
Trial Courts: Municipal: +1% +91%
Civil Filings Only Small Claims
Municipal:
+43% +170%
Other Civil
Superior:
+11% +111%
General Civil
-------------------------------------------------------------------------------
capita
basis has been quite modest both in small claims court and the superior
court--1% and 11% respectively. The increase in "Other *2128
Civil" filings in the municipal court was 43%. This is the only civil
category in which the data could be read to indicate the existence of a
"litigation explosion"--although the applicability of that
description to a 43% increase over a thirty-year period might be disputed. [FN10]
Filing statistics do not offer a complete
picture of the workload of the courts, because the amount of time a judge
spends on each filing varies enormously with the type of case. The 1986
Municipal Courts' Judicial Weighted Caseload Study, [FN11] conducted by the
Judicial Council of California, provides illustrative data. The study
calculated a "case weight" factor for each category of cases. [FN12] For example, criminal cases in the superior court have a
weight of 236 points; whereas small claims actions have a weight of 6.8 points.
[FN13]
Thus, although criminal cases accounted for only 15% of the filings in
1990, given their case weight of 236, the percentage of court time devoted to
criminal cases is far higher than 15%. For example, the Judicial Council's 1991
Annual Report estimates that criminal cases constitute 44.6% of the superior
courts' weighted caseload for fiscal year 1989-90. [FN14] Criminal
matters, excluding traffic and parking cases, accounted for 47.2% of the
municipal and justice courts' weighted caseload for the same period. [FN15]
*2129 4. The System in 2020
There are many factors that will influence
the judicial system in the next thirty years. Simply projecting the changes
from 1960 to 1990 onto the year 2020 is not a reliable guide to the future. The
thirty-year period from 1960 to 1990 involved a variety of social and legal
changes that may have influenced the changes in the judicial system. The
underlying forces are not likely to move in exactly the same way in the next
thirty years as they did in the last thirty years. For example, in the 1960s
and 1970s, courts and legislatures created a wide variety of new legal rights. [FN16] These new legal
rights, ranging from new tort actions to new civil rights, may have been one
factor driving the increase in judicial business over the past thirty years.
The 1990s may well be a period of legal retrenchment and legal contraction
rather than expansion. The ascendancy of conservative majorities on both the
California Supreme Court and the United
States Supreme Court in the 1980s may have already begun such a trend.
Many other factors will influence changes in
judicial caseloads in the next thirty years. If the period between 1990 and
2020 resembles the period between 1960 and 1990, then we might expect the
macro-level changes to be modest. The per capita filing rate would increase at
the trial level, but not at alarming rates. If the per capita appellate filing
rate were to increase fourfold in the next twenty years, as it did over the
last twenty years, the appellate courts would be faced with a very substantial
case-management problem.
One trend that should be a cause for concern
is that criminal cases are consuming a growing proportion of the superior court
docket. The following projection is intended to serve a heuristic function,
illustrating a possibility rather than making a prediction. Assuming that the
change in the percentage of criminal filings from 1990 to the year 2020 will
equal the change from 1960 to 1990, and assuming that the relative weights of
criminal and noncriminal cases remain the same, the future would resemble the
results shown in Table Six.
TABLE SIX:
PROJECTED CRIMINAL CASELOAD IN SUPERIOR COURT [FN17]
Year Criminal Filings as
% of Total Criminal Filings as %
of Total
Filings
Workload
-------------------------------------------------------------------------------
1960 9% 27%
1990 15% 45%
2020 25% 75%
-------------------------------------------------------------------------------
*2130 If this projection were accurate, the
system in 2020 would look very different than the system looked in 1960.
Criminal cases' projected 75% share of the superior court docket represents
almost a complete reversal of the 1960 statistic, in which noncriminal cases
represented an estimated 73% of the caseload.
C. THE ASSUMPTIONS BEHIND THE SCENARIOS
1. Core
Assumptions
The following are the core assumptions on
which the baseline predictions for 2020 are based:
. The demand for formal dispute resolution
will continue to grow. This assumption is based on further assumptions
concerning population growth, the shape of the substantive law, attitudes
toward dispute resolution, and so forth. [FN18]
. The demand for resolution of criminal
cases will grow at a faster pace than the demand for resolution of civil
disputes. [FN19]
. Because of constraints on public
resources, the supply of judges, courtrooms, and other court resources will not
increase in proportion to the increased demand. The number of real dollars
allocated to traditional courts per dispute will decline. [FN20]
*2131 . The judicial system will
assign priority to criminal cases when allocating scarce resources. As a
result, the resources available for traditional resolution of civil cases will
decline.
2.
Alternative Assumptions
The assumptions stated above are only
assumptions. A number of factors could result in a very different sort of
future for the California judiciary. Some possibilities include:
. The aging of the state's current
population and increased drug education efforts result in a much lower level of
drug use and in dramatically reduced demand for criminal justice. The resources
available for judicial resolution of civil cases grow both in absolute terms
and on a per- dispute basis.
. Adequate resources are provided for the
judicial system to handle expanding criminal and civil caseloads. The
legislature and county governments find
financial resources to fund traditional courts at higher per capita levels.
With adequate resources, the system is able to process all cases expeditiously.
[FN21]
. The number of civil disputes requiring
formal resolution declines. This might result from changes in the substantive
law that offer fewer opportunities for cost-effective litigation or from new
penalty structures that more effectively deter violation of civil-law norms.
Even if one or more of these factors
increases the relative supply of traditional courts, the use of alternative
court structures and alternative dispute resolution mechanisms might still
increase. For example, alternative (or appropriate) dispute resolution
("ADR") may be less costly both to litigants and to the judicial
system than traditional resolution. ADR might also be preferred on the ground
that it produces better out-comes than the traditional process. The basic
assumptions for the scenarios describe one path to a future in which
alternative court structures play an important role; but this is not the only
possible path.
D. THE ROLE OF THE SCENARIOS
The core of this Article is contained in
five scenarios for the future of the California judiciary. These scenarios do
not represent predictions *2132 about
the future. These are not the five most likely outcomes of current trends, nor
are they necessarily the five most desirable future states of the court system.
Rather, each of the five scenarios represents an "ideal type," [FN22] the logical
extension of a set of both normative and factual premises about how courts do,
and ought to, function. For example, one scenario explores the privatization of
justice. This scenario is based on the normative and factual assumptions
commonly associated with Chicago-school style neoclassical economics: The
invisible hand of the market is superior to bureaucratic government action. The
point of the scenarios is to frame the choice between competing sets of values
and factual assumptions in a clear and perspicuous way.
II. FIVE SCENARIOS
This Part explores five scenarios for the
future of the California judiciary. The first scenario involves the
revitalization of the traditional litigation process through a variety of
reforms. The second scenario explores the expansion of private judging into the
full-scale privatization of justice. The third scenario envisions the
incorporation of alternative dispute resolution into a multi-door courthouse.
The fourth scenario investigates the use of administrative tribunals to replace
traditional courts for the resolution of most
disputes. The fifth and final scenario imagines the evolution of Neighborhood
Justice Centers into a community-based system of justice.
A. THE TRADITIONAL JUSTICE SCENARIO
1. The
Core Idea
Individualized justice with traditional
procedures can function efficiently. The core of the first scenario is that the
traditional model for litigation, including a trial before a jury pursuant to
the rules of evidence, can be preserved by instituting a series of reforms. The
traditional litigation model includes four essential components:
*2133 . Liberal discovery rules for
civil litigation require parties to cooperate in extensive pretrial
investigation of the facts.
. Trials are conducted according to the
rules of evidence, with cross- examination of witnesses.
. Any party has the option of trial by
jury.
. Each party has the right to
representation by the counsel of his or her choice. [FN23]
The four
components reflect the central premise of the traditional justice scenario:
Each litigant should be given a full and fair opportunity to develop and
present his or her case and have it evaluated by a jury of peers. In constitutional terms, this value premise is
reflected in the right to procedural due process. [FN24]
The traditional justice scenario also rests
on a factual premise: Access to traditional justice can be provided without
unreasonable delay and at reasonable expense to individuals at all income
levels for large and small disputes. Because strong evidence indicates that the
present system does not provide such access, the traditional justice scenario
further assumes that a variety of reforms can improve the system's efficiency
without sacrificing the procedural rights that characterize traditional
justice.
The traditional justice scenario is partly
based on the postulate that the courts once enjoyed a "golden age,"
in which the values of individualized justice and procedural rights were
realized without unreasonable delay or expense. The traditional justice scenario
envisions a return to this age of efficient, albeit traditional, justice.
However, the existence of such a golden age is questionable, and to the extent
that the traditional justice scenario rests upon a mistaken belief about past
conditions, the realism and practicality of the scenario are undermined.
*2134 One important feature of the
traditional justice scenario is that it preserves the right of each litigant to
choose entry into the traditional system with the full panoply of discovery
rights and procedural protections, including trial by jury. But choices about
the nature of the process are made by the
courts themselves. Changes in the mode of dispute resolution are likely to be
incremental, instituted via common-law evolution and constitutional
interpretation. Occasionally, the judicial system will itself initiate a major
structural change, for example, the promulgation of the Federal Rules of Civil
Procedure in the late 1930s. Neither the litigants themselves nor the
legislature play a significant role in shaping the dispute resolution process.
There is, however, a significant exception
to this last generalization. The traditional model allows the parties to a
dispute to settle it outside of court, and the method and terms of such a
settlement are not subject to judicial regulation, with few exceptions. Thus,
if the parties choose to settle their dispute by voluntarily referring it to an
ADR mechanism, the courts will not interfere with that choice.
2. From
Perpetual Crisis to a New Golden Age
The theme of the courts in crisis has been
sounded regularly during this century. [FN25] "The law's delay" [FN26] is, of course, a much older complaint than that: The
notion that delay and expense effectively deny access to justice have figured
prominently in English literature for centuries, notably in Charles Dickens'
classic, Bleak House. [FN27] Perhaps because
of the *2135 perception that inefficiency and delay have been persistent
characteristics of the Anglo-American legal tradition, it is difficult to imagine a certain (or even reasonably likely)
path to a system that provides universal access at a reasonable cost without
unreasonable delay.
Consider two strategies for structural
reform that aim to increase efficiency substantially while preserving
traditional procedures. The first strategy is to change the incentive structure
for litigants in order to encourage more efficient and expedient behavior--the
incentive strategy. One example of the incentive strategy is to adopt the
English rule for the award of attorneys fees which requires the loser to pay
both party's legal fees. Another example of the incentive strategy is to set
early, firm trial dates to encourage settlement.
The second strategy is to introduce
structural changes in the litigation process that allow the traditional
procedures to resolve a greater number of disputes per proceeding (and thus, in
theory, per dollar expended)--the aggregation strategy. Class actions are one
example of the second strategy; the proposal for collective trials in mass tort
cases is a second example.
Implementing either strategy in California
would require cooperation between the legislative and judicial branches. For
example, a change in the American rule, under which each side to a civil
dispute bears its own fees, would require legislation and judicial
implementation. Similar action would be required for expansion of the class
action or adoption of collective trial mechanisms for mass tort cases.
Thus, the traditional justice scenario is
likely to begin with significant efforts at
judicial reform. Fast-track experiments with the civil calendar evolve into a
universal system for setting firm and early trial dates in all civil
litigation. The legislature adopts structural reforms that create incentives
for more efficient litigation behavior. Increased use of aggregation procedures
allows the traditional trial process to dispose of a greater number of cases
per hour of judicial time. The result is improved access for civil litigants
with meritorious claims. The system is able to accommodate increases in the
criminal caseload without impinging on its ability to process civil cases.
3. Reform
of Civil Justice
There are many proposals for increasing the
efficiency of the traditional court system in civil cases. Rather than
attempting an exhaustive *2136 catalog of the various proposals, two
specific proposals will be examined as illustrative of the kind of reform that
would be integral to the traditional justice scenario. The first proposal is
for adoption of the English rule for attorneys fees; the second is for
aggregation and sampling in mass tort cases.
a. An incentive strategy: fee shifting: The
incentive strategy for making traditional justice operate more efficiently
gives litigants incentives to utilize the system more efficiently. One method
for providing such incentives is a change in
the system by which attorneys fees are paid. The American rule is that each
party pays its own attorneys' fees. [FN28] The English rule is that the losing party pays the
reasonable attorneys' fees of the prevailing party. Would adoption of the
English rule create incentives for more efficient litigation behavior? Would
such a rule lead to a consequent reduction in both the number of cases filed
and the amount of judge time required to process cases?
At the level of economic theory, a change in
the fee system might have a number of effects. Under the current system, there
is little disincentive for filing a lawsuit that has a very low probability of
success at trial, so long as the expected return is greater than the
plaintiff's cost of litigation. Contingent fee cases, in particular, impose
very low costs on plaintiffs. The costs of such actions for plaintiffs' lawyers
may be low as well. Given advances in word processing and photo-duplication
technology, some actions can be filed at a very low initial cost. [FN29] Such lawsuits
do, however, impose costs on defendants and on the judicial system. Under the
English rule, the defendants' costs would be imposed on a plaintiff who did not
prevail. Since defendants' costs can be quite substantial, this should lead to
the filing of fewer claims with low probabilities of success.
Another effect of the American rule may be to encourage litigants to engage in litigation tactics that are designed to increase the cost to opponents. This behavior could be motivated by several different considerations. Some opponents may not be able to bear the increased litigation cost and are forced to settle on less favorable terms or even to withdraw