A Genuine Civil Justice Crisis?
XV International Association of Procedural Law World Congress 27 (2015)
34 Pages Posted: 21 Mar 2017
Date Written: March 21, 2017
I propose to provide some general comments, drawing in part on the experience I've had since before the Vienna Congress in reforms of American procedure. I will begin by reflecting on the enduring sense of crisis that serves as a recurrent backdrop to proposals for procedural change, and offer examples of stress that austerity places on some procedural institutions. I will then turn to the ways in which austerity bears on procedure, and particularly how one might cope with austerity by changing procedure to save money in operating a civil justice system. The concerns that emerge include making the parties responsible for as much as possible, rather than the court; the countervailing and widespread impulse toward greater judicial control of the lawyers; the possibility of saving money through use of technology; the 'social services' functions of court systems that may produce substantial costs; and the possibility of simplified procedures to save money in the operation of the court system. This array of possible responses leads to some reflection on the uses of austerity to further legal change. On that subject, I will draw from Professor Aviram's recent book Cheap on Crime, which examines the way in which financial pressures have given new force to humanitarian arguments for changing America's 40- year embrace of mass incarceration. She cautions that saving money and serving humanitarian goals are different things, and adds that the alliance of these arguments is questionable and may be short-lived. It seems to me that a somewhat similar issue may confront us as proceduralists -- financial arguments may be advanced to further objectives that are really not particularly connected to reducing financial burdens on civil justice systems. Both with regard to civil justice and criminal justice, then, might one hesitate to regard austerity as a prime reason for serious changes.
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