I am delighted to have a new essay up on JOTWELL, reviewing Amnon Reichman, Yair Sagy, and Shlomi Balaban’s recent article, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges. It’s a terrific look at the Israeli’s courts’ development of case management technology, and the impact of that technology on its judges, all told through a subtle organizational lens. A snippet from the start of the review:
Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon Reichman, Yair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.
Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them.
Please read the whole thing!
A number of recent news stories have emphasized the reluctance of many white-collar workers to go back to the office, even when their places of business are authorized to reopen. Extensive safety precautions, combined with the ability of many employees to work effectively from home, has even led some to proclaim the death of the modern office.
As admirable a job as courts have done with videoconferencing during the coronavirus pandemic, they do not have the same luxury of transitioning everyone to a long-term work-from-home arrangement. And so courts are reopening around the country. And they are finding difficult challenges in front of them. Safety and social distancing guidelines means that there is less space for observers and unsettled questions about enforcement of safety norms. Returning judges and attorneys are also facing heavily backlogged dockets and the further postponement of trials and hearings. It will require patience and creativity to get things back on an even keel.
A snippet from a fascinating Law360 article, which notes that a temporary ban on jury trials combined with a judicial vacancy rate over 10% does not bode well for access to justice in the Garden State:
“My fear is the backlog of trials … whenever jury trials start again, is going to require so much attention from the judges that it’s probably going to have an effect on how other matters proceed in terms of motions and things that normally would be getting done sooner rather than later,” said Keith McDonald of Norris McLaughlin PA.
A glance at the recent developments, and what to look for in the future.
It has been about seven weeks since the coronavirus pandemic began to affect state and federal courts in the United States. At this point, it seems worthwhile to set out the ways in which courts have responded, both by adjusting their own operations and by reaching out to others in the external environment. We can also begin to consider which of the current changes might stick after the pandemic subsides.
Hearings and transparency. Many state court systems have proven remarkably agile at moving in-court proceedings to telephone and videoconference platforms. Both trial and appellate courts are now holding regular hearings via Zoom (although some lawyers apparently need a reminder about appropriate dress). At least one state court has even conducted a full bench trial by Zoom. The federal court system has also made impressive strides, albeit with a bit more reluctance. In late March, the Judicial Conference of the United States authorized the Chief Judge of each federal district court to permit selected criminal hearings within the district to proceed by videoconference. Federal appellate courts have also begun conducting criminal hearings by videoconference. And the United States Supreme Court announced that after a coronavirus-induced hiatus, it would hear a handful of regularly scheduled oral arguments by telephone beginning in May. Continue reading “COVID-19 and the courts: Where we are and where we might be going”
I have been writing recently about the vacancy crisis in the U.S. District Court for the District of New Jersey, which has only 11 active judges despite a statutory entitlement to 17 (and a Judicial Conference recommendation for 20). But docket challenges can occur even where a court has its full complement of judges. This story highlights the docket overload in the Middle District of Louisiana, which has all three of its authorized judges in place but which still struggles to manage its docket, one of the heaviest in the nation.
Happily, it appears that Senator John Kennedy is continuing to push for more resources for the district. But in our fractured age, when every judicial appointment has taken on a (misplaced) political tint, it’s nearly impossible to expect that Congress will adequately address the resource need.
I previously reported on the judicial vacancy crisis in the United States District Court for the District of New Jersey. The court, entitled to 17 active district judges by law (and recommended to have 20), is now operating with only 11 active judges due to a recent spate of retirements. Making matters worse is the district’s docket — the second heaviest in the nation — and the fact that President Trump has not nominated a single candidate to fill the district’s judicial vacancies.
Chief Judge Freda Wolfson has not been shy about discussing the challenges facing her court. Unable to replace judges on its own, the district is seeking creative ways to manage its docket, including encouraging parties to consent to trial by magistrate, turning away multidistrict litigation, and borrowing “visiting” judges from the Eastern District of Pennsylvania.
The use of visiting judges is not new, and the federal courts have shared judicial resources to the extent permitted by law for nearly a century. Indeed, in the early 1920s Chief Justice Taft (a favorite of this blog) proposed a “flying squadron” of judges who would not be assigned to any specific district but would instead be available to serve in any district where needs were the highest. That suggestion was rejected by Congress, but even today the courts show their ability to adapt to resource deficiencies beyond their control, and beyond their ability to remedy directly.
The U.S. District Court for the District of New Jersey is authorized by law to have 17 active (i.e., full time) district judges. Since 2015, however, retirements have dwindled that number to 11 active judges. And simultaneously, the number of case filings has gone up 150 percent. As a result, the district today faces terrible docket congestion. The number of cases pending more than three years has more than doubled, and the total number of pending cases has more than tripled, over the last four years.
Now some of the district’s judges are speaking out. In a story published on NJ.com, Chief Judge Freda Wolfson insisted that Congress and the President should do their job and fill the vacancies.
While Wolfson said the judges continue to work around the clock and treat every case — no matter the magnitude — diligently, the sheer number of cases is going to inevitably slow down the process.
“We need help tremendously,” Wolfson said. “It is not just to relieve the burden on the judges. It is because we need to service the public as quickly as we can in a just manner.”
There is plenty of fault to go around. The Trump Administration has not put forward a single nomination for the District of New Jersey, even as it works to fill other judicial vacancies at a rapid pace. And in any event, neither of the state’s Democratic Senators, Bob Menendez and Cory Booker, have suggested any willingness to work with the Administration on potential nominees.
As I wrote for The Hill back in March, judicial vacancy emergencies like this stress the capacity of the courts and damage the administration of justice in all cases — most of which are entirely apolitical, garden-variety disputes. Playing politics with judicial appointments is damaging and largely pointless.
Two recent end-of-year reports suggest that justice systems in India and Pakistan remain completely overwhelmed. In Pakistan, the docket of the apex court has more than doubled in five years, to more than 40,000 pending cases this year. This is unfortunately reminiscent of the terrible backlogs that India also continues to experience in its courts.
Part of the problem has to do with human resources: one report notes that India has fewer than 20 judges per million people, as compared to 51 judges per million people in the UK, and 107 judges per million people in the US. But it is also not appropriate to blame the docket crisis solely on not having enough judges. The court system needs to think more creatively–and frankly, work harder and smarter–about resolving cases efficiently.
Previous entries on India’s docket crisis can be found here, here, here, and here.
Earlier this week, the Supreme Court denied certiorari in Gee v. Planned Parenthood, a case involving the ability of Medicare recipients to challenge a Louisiana law regulating payments to providers of certain services. While not specifically about abortion, the case certainly was determined in the shadow of the national abortion debate.
At least four Justices are needed for the Supreme Court to take up a case, but here only three of nine wanted to take it: Thomas, Alito, and Gorsuch. In an uncommon turn, Justice Thomas penned a dissent from the denial of certiorari, critiquing his colleagues for shirking their responsibility to decide cases that are or may be politically controversial.
Many people have weighed in on the Court’s decision and Justice Thomas’s dissent, but my colleague Lawrence Friedman has a particularly thoughtful and sensible take. Read the whole thing.
I have previously documented recent threats to the proper functioning of the court systems of India and Kenya. In India, appalling delays and overflowing dockets, combined with strife at the highest levels of the judiciary, have undermined with the effectiveness of the system and overall public confidence. Now, unfortunately, related news has been announced: the country’s lower courts face almost 6,000 judicial vacancies. Even for a country of more than one billion people, that number is shocking.
Kenya has faced a different set of challenges in recent months, after its Supreme Court invalidated a presidential election and was subjected to ongoing threats and attacks. This week’s news is of a less violent sort, but one that is perhaps even more problematic for the judiciary: more than 50,000 cases in the court system have been pending for a decade or more. And the total case backlog stands at more than 315,000.
These stories keenly illustrate the idea of judicial interdependence: courts must operate fairly and efficiently to earn public confidence, and they need adequate resources to be able to do so. When courts are properly resourced and properly run, they earn confidence and more resources–a virtuous circle. But when they are poorly run or under attack, they become inefficient and lose both resources and legitimacy–a vicious circle. The Kenyan and Indian judiciaries are locked into the vicious circle right now.