Improving the legal system requires state supreme courts to fully accept their role as regulators.

For the sake of this post, let’s assume the following statement is true:  Once every 100 years or so, the jurists who preside over the highest courts in the land are obligated to evaluate the functioning of the legal system and, if necessary, make structural changes that will improve access, efficiency, and justice for the citizens they serve.

Two interrelated challenges follow.  First, how do the jurists decide if structural changes are necessary?  Second, how do the jurists find the time and acquire the expertise to carry out such a large and complex project?

Because the second challenge is so daunting, it’s possible that every generation of jurists is reluctant to undertake a rigorous analysis of the legal system they preside over, as the findings might force them to take on the unfamiliar, uncomfortable, and time-consuming role of regulator. As a result, successive generations of busy, diligent jurists focus on the tasks at hand. This pattern continues until signs of breakdown become obvious to all.  Cf “About SLRN — 2020 Report” (reporting a declining norm of lawyer representation in state courts, as 60 -100% of family, housing, and consumer litigation matters now involve at least one pro se (self-represented) party).

The point of this thought experiment is not to characterize state supreme court justices as negligent regulators.  Rather, I am suggesting that our legal system has a difficult problem of self-conception—specifically, that our top judges understandably view themselves as skilled jurists who are tasked with the additional administrative duty of running a court system and that this self-conception is readily passed from one generation to the next with substantial reinforcement from the bar.

This self-conception is problematic because significant improvements to our legal system require state supreme judges to understand and accept the fact that they are indisputably the legal sector’s regulator.  When this happens — and only after it happens — can they move on to the daunting challenge of how to use that power to create desirable and beneficial change.

Reluctant regulators

A couple of years ago, I sketched out a version of the above graphic, which is a simplified summary of how the U.S. legal sector is regulated.  Basically, to conceptualize a future state, including the steps necessary to get there, I needed a working model of the current state.

Much to my surprise, when I was done, state supreme courts were at the center of everything important:

  • Market Structure.  Through the adoption of ethics rules, state supreme courts were making decisions on the structure of the legal services market, deciding sources of capital and ownership structure (MR 5.4), who can provide legal advice (MR 5.5), incentives to innovate (MR 5.6‘s ban on non-compete agreements), and how legal service providers and can market their services and acquire clients (MR 7.27.3).
  • Dispute Resolution.  Through the accretion of elaborate rules of procedures, all of us have become anchored to the traditional courtroom as the sole way the judiciary could resolve disputes. Yet, state supreme courts have the power to create lower cost and more accessible forums that could substantially close the access to justice gap. Cf Post 099 (reviewing the success of the Civil Resolution Tribunal and asking whether access to justice is primarily a design problem as opposed to a lack of funding to hire lawyers).
  • Licensure.  Through educational requirements and bar exams, state supreme courts decide the types of professionals who can enter the legal field.  But what if, like the medical field, challenges of cost and quality are best addressed by a tiered credentialing system that enables lower cost but highly specialized professionals to handle what is common, routine, and familiar?  Cf Post 275 (presenting data on the complex credentialing system that has evolved in the medical field).  Where would the regulatory competency come from? Cf Post 059 (discussing how ethics rules undermined the workforce necessary for law’s failed storefront revolution); Post 140 (citing work of Rebecca Sandefur, which shows that lawyer-centric regulations compound problems of cost and access).

In our modern society, economic regulation follows a familiar path.  The legislature identifies a set of problems, which it attempts to solve through the passage of legislation.  In particularly complex areas, the legislation includes the creation of executive agencies, which are given the resources to develop specialized expertise that enables the implementation of prudent and effective policy.

Yet, for historical reasons rooted in the separation of powers doctrine and the risk of “government domination” of lawyers, “ultimate authority over the legal profession is vested largely in the courts.”  Preamble to the Model Rules of Professional Conduct, ¶¶ 10-11.

It’s likely that the tradition-bound norms and inherent conservativism of the legal profession are partially attributable to jurists who expect to preside over a system they painstakingly mastered while in practice.  Nothing about the typical career paths of judges sensitizes them to the fact that (a) they are regulators of a profoundly complex economic sector, and (b) if the system of regulation they preside over fails to evolve, ordinary citizens might gradually lose access to fair and impartial justice.

Thus, what might cause them to look up and ask difficult, foundational questions about the functioning of the current system and the necessity of designing a better system that better fits the times?

Improving the law, regulating the system, or both?

Chief Justice McCormack, Michigan Supreme Court

This post is partially inspired by a recent essay in the Yale Law Journal by Chief Justice Bridget McCormack of the Michigan Supreme Court. Justice McCormack acknowledges that many judges believe their role is to “interpret and apply the law” rather than envision ways to improve the system but goes on to argue that “this line of thinking is wrong on every count.” Bridget Mary McCormack, “Staying Off the Sidelines: Judges as Agents of Justice System Reform,” 131 Yale L J 175, 177-78 (2021).

In her Yale essay, Justice McCormack makes a slightly more targeted argument than I am making here, suggesting that judges are uniquely positioned to help improve substantive law, albeit defects in the law and problems with the administration of justice often overlap.  Specifically, Justice McCormick notes the ballooning number of pro se litigants in state courts, which “on a daily basis” puts many judges into direct contact with “the public trying to navigate the legal system.” Id at 279

Justice McCormack continues:

This experience provides judges with an informed perspective on what policies are working well and what policies are working less well. As direct witnesses to the daily experiences of people navigating legal problems, judges have critical information about what reforms are needed, as well as ideas on how such reforms can be implemented. Indeed, some failed criminal-justice reform efforts arguably failed because they lacked sufficient input from judges; when legislatures and executives act without the perspective of the judiciary, judges often find themselves administering laws with unintended consequences.

Id (footnotes omitted).

Justice McCormack is arguing that although many judges are uncomfortable in the realm of evaluating and advocating change in substantive policies, “they are ethically obligated to improve the judicial system over which they preside.”  Id at 275.

I strongly concur with Justice McCormack’s conclusion.  Yet, she may, in fact, be understating the burdens that rest on the shoulders of the judiciary:  in addition to running a court system, deciding difficult questions of law, and working to improve substantive policies enacted by the other two branches of governments, state supreme justices are regulators of a complex and critically important economic sector, which they perform part-time and without the technical expertise of the executive branch or the budgetary authority of the legislature.

Justices fill some of this void by seeking input and guidance for bar associations, which all-too-often offer an insular and self-interested perspective.  Clearly, we need something more and something better.  With sufficient time, study, and resources, I believe our state supreme courts justices could and would devise a better model of self-regulation.  Further, going down this road is critical to the public’s attitudes toward government and the rule of law.

Are we there yet?

Properly defining a problem is the first and most crucial step in formulating a solution. Thus, with one exception, I am going to stop here and invite readers to reflect upon my analysis and send me your comments and corrections.

The one exception pertains to the first part of the above thought experiment, where I ask the question, “how do the jurists decide if structural changes [to the legal system] are necessary?”  In effect, this is the trigger that requires state supreme courts to acknowledge their role as legal sector regulators.  I want to suggest that the most important measures should focus on cost, accessibility, and fairness of the legal system for ordinary citizens.

Below is a graphic that documents roughly a half-century of decline in the relative size of the PeopleLaw sector.

Although a shrinking percentage of receipts for lawyers serving people is not necessarily a cause of alarm, as it could reflect a subsector that has become more mature and efficient, this trendline is accompanied by a large uptick in the proportion of self-represented litigants.  According to the National Conference for State Court, 76% of all cases in state courts have at least one self-represented litigant. See NCSC, The Landscape of Civil Litigation in State Courts at iv (2015). More recently, the Self-Represented Litigation Network estimated that 60 -100% of family, housing, and consumer matters involve at least one pro se party.  See “About SLRN — 2020 Report.”

What is likely happening is a growing mismatch between what individuals can afford and the cost of using a lawyer to solve legal problems through the court system.  Thus, individuals are left with two options: navigating the legal system on their own, or forgoing their rights because the combined cost and complexity are just too daunting.  This latter option would likely show up in a gradual decline in the number of civil filings. See, e.g., Civil Filings in Illinois State Courts, 1997-2020 (showing more than 50% since 2010 despite state adding nearly a million residents).

My thought experiment suggests the likelihood of a “boiling frog” dynamic that makes it difficult to grasp the magnitude of changes that occur gradually over time.  To my mind, we have reached the point where we need significant structural changes in how the legal sector is regulated.  And that can only happen if state supreme court justices are willing to utilize the power and authority that only they possess.

Update:  Professor Michael Madison of Pitt Law, who is very attuned to the evolution of the legal services market, remarked that this essay “understates the complexity of how legal systems are regulated. By a lot.” See Madison Tweet, Feb 8, 2022.  My lead graphic usually carries the title “A Simplified Model … ” of the Regulation of the US Legal Sector. After reading Prof. Madison’s comment, I updated the graphic. The simplified model conveys my core point that state supreme courts are the center of gravity/repository of power.