Judging Without a J.D.

102 Pages Posted: 6 Apr 2022 Last revised: 27 Jun 2022

See all articles by Sara Sternberg Greene

Sara Sternberg Greene

Duke University School of Law

Kristen Renberg

Duke University School of Law

Date Written: March 30, 2022

Abstract

One of the most basic assumptions of our legal system is that when two parties face off in court, the case will be adjudicated before a judge who is trained in the law. This Essay begins by showing that, empirically, the assumption that most judges have legal training does not hold true for many low-level state courts. Using data we compiled from all fifty states and the District of Columbia, we find that thirty-two states allow at least some low-level state court judges to adjudicate without a law degree, and seventeen states do not require judges who adjudicate eviction cases to have law degrees. Since most poor litigants are unrepresented in civil legal cases, this sets up an almost Kafkaesque scene in courtrooms across the country: Legal cases that have a profound effect on poor families, such as whether they will lose their home to eviction, are argued in courtrooms where either no one knows the law or only one party—the attorney for the more powerful party—does.

Considering data collected from a case study of North Carolina, where over 80% of magistrates do not have J.D.s, this Essay argues that allowing a system of nonlawyer judges perpetuates long-standing inequalities in our courts. It further argues that the phenomenon of lay judges is a symptom of a much larger problem in our justice system: the devaluation of the legal problems of the poor, who are disproportionately Black and Latinx. This devaluation stems in part from an enduring cultural history in the United States of blaming the poor for their poverty and its associated problems. A change is in order, one that intentionally considers the expertise of judges and adopts creative solutions to incentivize specially qualified adjudicators to serve as low-level state court judges.

Keywords: civil procedure, access to justice, judges, lawyers, courts, state courts, poverty law, eviction, criminal law, criminal procedure

JEL Classification: K10, K4, K40, K41, I3, I130, I131, I38, I39

Suggested Citation

Greene, Sara Sternberg and Renberg, Kristen, Judging Without a J.D. (March 30, 2022). 122 Columbia L. Rev. 1287 (2022), Duke Law School Public Law & Legal Theory Series No. 2022-23, Available at SSRN: https://ssrn.com/abstract=4070684 or http://dx.doi.org/10.2139/ssrn.4070684

Sara Sternberg Greene (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Kristen Renberg

Duke University School of Law ( email )

Durham, NC
United States

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