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Campbell: The Sky is Falling (Again)

Campbell: The Sky is Falling (Again)

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The title of this symposium is “Crisis in the Judiciary.” There seems to be a consensus that the judiciary is in crisis, but what does the phrase mean? This Article will argue that a more accurate question is: What does it mean today? The idea that the legal profession is ailing is nothing new. Every generation faces questions about how to ensure that courts are both accessible and responsible to the needs of the populace. So in a sense, we are in good company with today’s hand-wringing and navel-gazing. However, today’s crisis is unique and, in a sense, more disturbing than past crises. The barriers faced by prior generations were largely self-imposed, or at least within the capacity of the law and profession to attempt to remedy. Today, however, in addition to the traditional debate over the need for greater access to the legal system, we are faced with a more fundamental concern: access to courts.
The title of this symposium is “Crisis in the Judiciary.” There seems to be a consensus that the judiciary is in crisis, but what does the phrase mean? This Article will argue that a more accurate question is: What does it mean today? The idea that the legal profession is ailing is nothing new. Every generation faces questions about how to ensure that courts are both accessible and responsible to the needs of the populace. So in a sense, we are in good company with today’s hand-wringing and navel-gazing. However, today’s crisis is unique and, in a sense, more disturbing than past crises. The barriers faced by prior generations were largely self-imposed, or at least within the capacity of the law and profession to attempt to remedy. Today, however, in addition to the traditional debate over the need for greater access to the legal system, we are faced with a more fundamental concern: access to courts.

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Categories:Business/Law
Published by: New England Law Review on May 22, 2013
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569
 
C
AMPBELL
F
INAL
(D
O
N
OT
D
ELETE
) 5/22/20135:21
 
PM
571
The Sky is Falling (Again):Evaluating the Current Crisis in the Judiciary
D
ONALD
C
AMPBELL
*“Our administration of justice is not decadent. It is simply behind thetimes.”
1
 
I
NTRODUCTION
 
The title of this symposium is “Crisis in the Judiciary.” There seems to be a consensus that the judiciary is in crisis,
2
 but what does the phrasemean? This Article will argue that a more accurate question is: What does itmean today? The idea that the legal profession is ailing is nothing new.Every generation faces questions about how to ensure that courts are bothaccessible and responsible to the needs of the populace.
3
So in a sense, we
* Assistant Professor of Law, Mississippi College School of Law; Ph.D. Candidate, Universityof Florida; J.D.,
summa cum laude
 , Mississippi College School of Law; B.A.,
summa cum laude
 ,University of Southern Mississippi.
1
Roscoe Pound,
The Causes of Popular Dissatisfaction with the Administration of Justice
 , 29A
NN
.
 
R
EP
.
 
A.B.A. 395, 416 (1906).
2
 
See, e.g.
 , C
HIEF
 J
USTICE
 J
OHN
R
OBERTS
 ,
 
2006
 
Y
EAR
-E
ND
R
EPORT ON THE
F
EDERAL
 J
UDICIARY
1-5 (2007),
available at
http://www.supremecourt.gov/publicinfo/year-end/2006year-endreport.pdf (discussing the constitutional crisis in the judiciary due to inadequate pay for federal judges); C
HIEF
 J
USTICE
W
ILLIAM
R
EHNQUIST
 ,
 
2004
 
Y
EAR
-E
ND
R
EPORT ON THE
F
EDERAL
 J
UDICIARY
1-3 (2005),
available at
http://www.supremecourt.gov/publicinfo/year-end/2004year-endreport.pdf (highlighting the funding crisis that is impeding the federal judiciary’sfunctionality); Lee Renzin,
 Advice, Consent, and Senate Inaction—Is Judicial Resolution Possible?
 ,73 N.Y.U.
 
L.
 
R
EV
. 1739, 1741-44 (1998) (detailing the crisis caused by the high number offederal-judgeship vacancies).
3
 
See, e.g.
 , Michael J. Frank,
 Judge Not, Lest Yee Be Judged Unworthy of a Pay Raise: AnExamination of the Federal Judicial Salary “Crisis,”
87 M
ARQ
.
 
L.
 
R
EV
.
 
55, 55-58 (2003) (discussinghow inadequate compensation affects the quality of the judiciary); Charles F. Hobson,
 
569
 
C
AMPBELL
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INAL
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O
N
OT
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ELETE
) 5/22/20135:21
 
PM
 
572
New England Law Review
V. 47 | 571
are in good company with today’s hand-wringing and navel-gazing.However, today’s crisis is unique and, in a sense, more disturbing thanpast crises.
4
The barriers faced by prior generations were largely self-imposed, or at least within the capacity of the law and profession toattempt to remedy. Today, however, in addition to the traditional debateover the need for greater access to the legal system, we are faced with amore fundamental concern: access to courts.This is a disturbing diversion because access to courts is a necessary—although admittedly not sufficient—condition that must be satisfied inorder for individuals to have access to justice. Severe reductions in courtfunding may risk these two priorities becoming disassociated. The questionthen becomes how to acquire more funding for courts so they remain open ,rather than how to ensure adequate funding for courts
in order to
provideaccess to justice. Consider this quote from a recent article in the CaliforniaBar Journal about the crisis in funding:
[T]hat the current budget crisis threatens our democracy, [is] anundeniably true statement. Without adequate funding, our courtswill bolt their doors and shutter their windows. Without access tothe courts, our citizens will lose their fundamental right to gettheir disputes resolved. Without such resolutions, one party oranother will suffer. The party that will usually suffer is theimpoverished one: the party that needs access to the courts themost because he or she is least able to afford the delay caused bycourt closures.
5
 
Conceptually, it is helpful to think about the of crisis of access asarising on two levels: first-order and second-order concerns. A first-orderconcern is physical access to courts. This is the concern raised by the quoteabove. Closed courthouses can result in both the inability to pursue claims
Defining the Office: John Marshall as Chief Justice
 , 154 U.
 
P
A
.
 
L.
 
R
EV
.
 
1421, 1426-27 (2006)(discussing the judicial crisis faced by the Marshall Court during the JeffersonAdministration); Gerald Bard Tjoflat,
 More Judges, Less Justice: The Case Against Expansion of theFederal Judiciary
 , 79 A.B.A.J.
 
70, 70-73 (1993) (explaining the adverse effects a growing judiciaryhas on the equality of justice); Peter Alan Bell, Note,
Extrajudicial Activity of Supreme Court Justices
 , 22 S
TAN
.
 
L.
 
R
EV
.
 
587, 587-90 (1970) (discussing the effects of a judge’s out-of-courtactivity on the perception of the judiciary).
4
However, to make a statement that one crisis is more severe than another is itself anindication that the writer is destined to view events through a particular contextual lens. In1990, long before the current crisis, Professor Geoffrey C. Hazard perceived that theprofession was in a crisis unlike any other: “Dissatisfaction with lawyers is a chronicgrievance, and inspires periodic calls for reform. Nevertheless, the contemporary problems ofthe American legal profession seem to run deeper than in the past.” Geoffrey C. Hazard, Jr.,
The Future of Legal Ethics
 , 100 Y
ALE
L.J. 1239, 1239 (1991).
5
Bill Hebert,
The Budget and the Crisis in the Judiciary
 , C
AL
.
 
B.J.,Aug. 2011,
available at
 http://www.calbarjournal.com/August2011/Opinion/FromthePresident.aspx.
 
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AMPBELL
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The Sky is Falling (Again)
573
and the inability to have claims resolved in a timely manner.
6
Second-orderconcerns involve what might broadly be defined as knowledge of legalrights and a fair, and just judicial system. A violation of second-orderaccess occurs even if the courthouse is physically available (i.e., is open),when the right or ability to press a claim is unavailable because ofstructural barriers—such as inability to pay for legal representation,
7
lackof sufficient knowledge about legal rights (access to lawyers),
8
or theskewed nature of the system itself against the poor or disadvantaged(access to justice).
9
 First-order access (to courts) is important, as our laws and court systemare built upon the assumption that those wronged possess the right to havetheir case heard and decided by an impartial arbiter.
10
If our legal systemdoes not live up to these ideals, fundamental objectives of democracy areput at risk.
11
Those denied access to the legal system to resolve theirdisputes may very well look to other non-legal avenues(such as self-help)or be divested of pursuing legitimate claims all together.
12
This Article
6
 
Id.
 
7
 
See
Judith Resnik,
Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: The Childress Lecture
 , 56 S
T
.
 
L
OUIS
U.
 
L.J. 917, 973-76 (2012).
8
 
See id.
at 975.
9
Laurence E. Norton, II,
Not Too Much Justice for the Poor
 , 101 D
ICK
.
 
L.
 
R
EV
. 601, 601-02(1997).
10
U.S.
 
C
ONST
.
 
amend. V;
see also
U.S.
 
C
ONST
. amend. XIV, § 1 (extending the FifthAmendment’s due process guarantee to govern state action).
11
R
EGINALD
H
EBER
S
MITH
 ,
 
 J
USTICE AND THE
P
OOR
:
 
A
 
S
TUDY OF THE
P
RESENT
D
ENIAL OF
 J
USTICE TO THE
P
OOR AND OF THE
A
GENCIES
M
AKING
M
ORE
E
QUAL
T
HEIR
P
OSITION
B
EFORE THE
L
AW WITH
P
ARTICULAR
R
EFERENCE TO
L
EGAL
A
ID
W
ORK IN THE
U
NITED
S
TATES
 , xxxv-xxxvi(Patterson Smith 3d ed., 1972)(“The widespread suspicion that our law fails to secure justicehas only too much basis in fact. If this suspicion is allowed to grow unchecked, it will end bypoisoning the faith of the people in their own government and in law itself, the very bulwarkof justice.”);William T. Robinson, III,
 Justice in Jeopardy: The Real Cost of Underfunded Courts
 , 27C
RIM
.
 
 J
UST
. 2, 2-3 (2012) [hereinafter Robinson,
 Justice in Jeopardy
] (“[A]n independent, well-functioning judiciary is the key to constitutional democracy. And constitutional democracy isthe key to freedom. That is why funding our courts is so fundamental and essential.”).
12
S
MITH
 ,
 
supra
note 11, at 10. Smith, explaining the sentiment of those who foundthat thelegal system was unavailable believed:It produces a sense of helplessness, then bitterness. It is brooded over. Itleads directly to contempt for law, disloyalty to the government, andplants the seeds of anarchy. The conviction grows that law is not justiceand challenges the belief that justice is best secured when administeredaccording to law. The poor come to think of American justice ascontaining only laws that punish and never laws that help. They areagainst the law because they consider the law against them. A persuasionspreads that there is one law for the rich and another for the poor.

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