Default Procedures

Abstract

In vast numbers of debt collection cases, defendants never appear. Courts then routinely issue default judgments, often rubber-stamping complaints with little or no examination of the underlying facts, on the implied justification that absent defendants have waived their right to a hearing or effectively conceded to the plaintiff’s case. Many other reasons likely cause these absences, however, and potential defenses are never raised. Plaintiffs, meanwhile, are predominantly repeat-player debt buyers whose service efforts and proof of claim can be inadequate. The resulting judgments can have devastating effects on people’s credit, employment, and housing, reflecting and exacerbating social, economic, and racial inequality.

High rates of defendant non-appearance create a challenge for the American adversarial system that can likely never be fully cured by improved service and notice. On closer examination, default procedures reveal flaws in procedure’s reliance on participation in an adversarial dispute as the key to fair process. When only one party participates, courts must re-conceptualize their task to achieve just, as well as accurate, outcomes that encourage and respect defendants’ participation but also function in their absence.

This Article draws on a broad set of sources—including procedural rules, case law, interviews, observations, and empirical studies—to explore, analyze, and critique U.S. default procedures. The Article disrupts several assumptions in the civil procedure and access to justice literatures. It refutes frequent assertions that state procedure replicates federal; it focuses on court administration in light of the defendants’ absence, not just their lack of representation; and it wrestles with the idea that it may be possible to make courts too easily accessible. It then considers how these theoretical contributions can inform ongoing reform efforts.

Keywords: civil procedure, state courts, litigation, courts, debt collection, consumer law, default judgments, access to justice

JEL Classification: K10, K40, K41