The Democratic (Il)legitimacy of Assembly-Line Litigation

15 Pages Posted: 24 Jun 2022 Last revised: 22 Sep 2022

See all articles by Jessica Steinberg

Jessica Steinberg

George Washington University - Law School

Colleen F. Shanahan

Columbia University - Law School

Anna E. Carpenter

The University of Utah S.J. Quinney College of Law

Alyx Mark

Wesleyan University Dept. of Government; American Bar Foundation

Date Written: June 22, 2022

Abstract

In response to Daniel Wilf-Townsend’s Assembly-Line Plaintiffs we take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. Part I contributes two critical components to Wilf-Townsend’s rich description of consumer debt cases: pervasive intersectional inequality among pro se defendants and a record of fraud among top filers. We add a sharper focus on the racial, gender, and class dynamics of civil courts, which play an outsized role in state civil justice dysfunction and have normative implications for institutional design solutions. In addition, we enhance Wilf-Townsend’s depiction of assembly-line plaintiffs by documenting pervasive fraud on the part of assembly-line plaintiffs as germane to the operation of civil courts. The clustering of corporate entities in state civil courts tells part of the story; the fraudulent conduct of plaintiffs in debt cases also plays a significant role in exacerbating poverty and inequity for marginalized groups in civil courts. Part II positions Wilf-Townsend’s proposal to restructure debt proceedings into agency-style adjudication as a form of problem-solving courts, which have an established history in the U.S. justice system. We place his proposal within the larger literature on active and suggest that Wilf-Townsend sets forth a first step toward reimagining state civil courts. Part III draws on an invest/divest framework to set forth a broader and more aspirational vision of reform. We propose that bold reform would focus on reestablishing the democratic legitimacy of state civil courts by increasing social provision to defendants economically ravished by assembly-line litigation and also by keeping courts squarely in the business of resolving two-party adversarial disputes.

Keywords: civil procedure, access to justice, state courts, debt collection, problem solving courts, race, gender, poverty law

Suggested Citation

Steinberg, Jessica and Shanahan, Colleen F. and Carpenter, Anna E. and Mark, Alyx, The Democratic (Il)legitimacy of Assembly-Line Litigation (June 22, 2022). 135 Harv. L. Rev. F. 359 (2022), University of Utah College of Law Research Paper No. 504, GWU Legal Studies Research Paper No. 2022-55, GWU Law School Public Law Research Paper No. 2022-55, Available at SSRN: https://ssrn.com/abstract=4143782

Jessica Steinberg

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Colleen F. Shanahan (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

Anna E. Carpenter

The University of Utah S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States
84112 (Fax)

Alyx Mark

Wesleyan University Dept. of Government ( email )

United States

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

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