What challenges confront U.S. courts as democratic institutions in the twenty-first century? And what does the changing role of courts teach us about our conceptions of justice? The Summer 2014 issue of æ岹ܲ explores the complex shifts occurring in U.S. courts and the implications for the citizens that rely on them. “The Invention of Courts” is guest-edited by Ƶ Fellows Linda Greenhouse, the Joseph Goldstein Lecturer in Law at Yale Law School and former Supreme Court reporter for The New York Times, and Judith Resnik, the Arthur Liman Professor of Law at Yale Law School.
Summer 2014 æ岹ܲ
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Linda Greenhouse introduces the volume’s diverse essays by noting that “[t]o write about courts is to write about political theory, about lawyering, about fiscal priorities, and about social welfare, as well as about courts’ dependence on and independence from the body politic.” Many of the essays remind us that the courts do not stand on their own as static institutions; rather, they were and continue to be invented – a process informed by changing legislative, economic, political, and cultural landscapes.
In her essay, Judith Resnik traces the shifts in democratic theory and the role of social movements that pressed courts to embrace the view that all persons are equal rights holders, thereby transforming courts into democratic venues. Given the mandate to provide “open courts,” trial-level exchanges became opportunities for debates about what the shape of legal rules should be. Resnik notes, however, that in more recent decades, disputants are increasingly pressured or required to resolve disputes in private settings that do not provide the opportunity for public oversight of either processes or outcomes.
Democracy has not only changed courts; it challenges them profoundly. Resnik’s essay is one of several expressing the concern that the current system faces a host of issues, including deficits in court funding, the disappearance of trials, and the failure to translate into practice Gideon vs. Wainwright’s mandate of a constitutional right to adequate counsel for all indigent criminal litigants.
Among the issue’s fifteen essays, Jonathan Lippman, Chief Judge of the State of New York and Chief Judge of the Court of Appeals, examines the enormity of the unmet needs of New Yorkers who are unable to afford a lawyer, and introduces his and his task force’s efforts to address the crisis. Robert Katzmann, Chief Judge of the United States Court of Appeals for the Second Circuit, writes about the approaches he and his colleagues have explored to expand access to justice for undocumented immigrants, who often face deportation while detained and without the assistance of counsel. Deborah R. Hensler (Stanford Law School) discusses class actions and other ways of litigating mass harms and their implications for both individual plaintiffs and defendants. Finally, the idea of the “invention of courts” is poignantly given life in an essay by Kate O’Regan, who served as a Judge of the Constitutional Court of South Africa from its inception in 1994 through 2009.
Print and Kindle copies of the new issue can be ordered at: /publications/daedalus.