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A Judicial Recession

The recent “great recession” and the slow recovery that followed it have wreaked havoc on nearly all aspects of American life. Families have struggled to provide work, entire cities have witnessed the gutting of their economic life and local governments have been forced to oversee massive cutbacks in basic services.  The Economist reports on a lesser-known effect of the economic crisis: a major and dramatic breakdown in the judicial system:

A typical lawsuit now goes to trial within a couple of years, says Ms Feinstein, but that could soon stretch to five years. The backlog of traffic infractions is already so daunting that it compromises enforcement (and the deterrence of bad driving). And so on. The Californian constitution guarantees criminal defendants a right to speedy trial, but it does not technically require courts to administer civil law at all, Ms Feinstein says. So, in theory, civil adjudication could stop altogether, as it already has on one judicial circuit in Georgia. That, she says would bring about the “unravelling of society”. […]

This means that the courts are limiting access just when Americans need more adjudication. The recession left a vast legacy of foreclosures, personal and business bankruptcies, debt-collection and credit-card disputes. In Florida in 2009, according to the Washington Economics Group, the backlog in civil courts is costing the state some $9.8 billion in GDP a year, a staggering achievement for a court system that costs just $1.2 billion in its entirety. To make up the funding shortfall, courts are imposing higher filing fees on litigants. This threatens the idea of the equal right to justice, says Rebecca Love Kourlis of the Institute for the Advancement of the American Legal System.

Even criminal cases are not immune. Some crimes, like domestic violence, have increased with the rotten economy. In Georgia, where court funds have fallen by 25% in the last two years, criminal cases now routinely take more than a year to come to trial. This means that jails are full of the innocent alongside the guilty. Their incarceration adds costs far greater than the alleged savings in the court system. Above all, it causes gross injustice.

The swift administration of justice is one of the basic responsibilities of the state, and judicial breakdown and gridlock is a problem the US can’t ignore.  There are a lot of wasteful government expenditures; the judiciary has a weak lobby and it looks as if weaselly politicians are scanting their duty to maintain the judicial system while lavishing money on more politically connected causes.

That said, the same computer technology that is changing so many other service industries needs to be more fully integrated into the way we do law.  There are ways of making courts and the legal system significantly faster and cheaper than they now are.  Let’s hope that the squeeze on court budgets stimulates some creative thinking about how to get this done.

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  • Bruno Behrend

    You can’t fund basic government functions when you are funding massive government bureaucracies and their pensions.

    Given that vested pension can’t be lowered because of constitutional idiocy from the 60s and 70s, the only solution is to cut all health care benefits (not constitutionally guaranteed).

    Let them riot for a few days or weeks, then move on.

  • Walter Sobchak

    The American civil justice system systematically misprices its services, in favor of encouraging litigation. The parties should pay the full freight for courtroom time. Jurors should be paid at least the regional average wage. And the loser should pay the lawyer’s fees for the winner.

    Further, many bogus civil law suits were created over the past generation such as palimony, comparative negligence, and punitive damages. They should be eliminated.

    About 20 years ago there was a move to put automobile accidents under no-fault insurance policies. It bogged down in the face of powerful opposition from lawyers.

    Health claims, such as malpractice and pharmaceuticals need to be moved to a specialized forum more concerned with the correct functioning of the health care system and less concerned with making John Edwards rich.

  • Toni

    For liberals like those at the Economist, funding cutbacks are always unfair and otherwise bad, and mushrooming laws and regulations are always good. So they wouldn’t consider factors the WSJ recently wrote about.

    Short version: In recent decades, so many activities have been criminalized that even the Justice Dept. can’t count the different statutes, but they’re upward of 4,500. Federal convictions have risen steadily ~42,000 in 1996 to nearly 80,000 in 2010. Even people who try their darnedest wind up violating obscure laws and get punished. Worse, Congress has made it increasingly easier to convict people who didn’t know and didn’t intend (“mens rea”) to commit a crime.

    To find the same phenomena at the state level would be no shock, especially in blue states. That the Economist spends most of its article on VERY VERY Blue California and New York and intermittently blue Ohio is surely no accident.


  • Corlyss

    The problem as I see it is not the bare fact that justice isn’t coming out the correct end of the system. It’s that the cretins can’t grasp the connections between civil tort litigation, combined with explosive growth in criminalizing behavior, is a guaranteed path to judicial gridlock and justice for none. They haven’t the stones to stand up to their whining constituents, who demand that “there oughtta be a law . . . ” for every little thing that upsets them. As usual, California is the poster child for this phenomenon.

  • Stuart Wilder

    I am not sure that the Pennsylvania Supreme Court, for one, would agree that it’s benefits are not protected, but why not try and see. It’s a great idea, but one that probably will get no traction dues to feckless legislatures. Did they try that in Wisonsin or Ohio, or did they just go after teachers and unemployment compensation office clerks?

  • Charles R. Williams

    We need fewer laws. Seriously, the guy in the streets does not rely on the courts to resolve his disputes. The courts have always been too slow and too expensive. The big guys can certainly pay for the services of the courts and they always have the option of turning to arbitration. And then there is the endless stream of frivolous cases – class action lawsuits where the victim gets a coupon for a dollar and the lawyers get rich, fools who spill hot coffee all over themselves and expect the restaurant to pay damages, government funded abuse of landlords by bad tenants.

    The courts are another non-functioning American institution and rather than fund their excesses, they need to be cut back further and become self-funding.

  • WigWag

    One easy and smart way to streamline judicial dockets is to decriminalize or even legalize narcotics. Judicial costs would plummet right along with waiting time for cases to come to trial. The costs of incarcerating drug offenders would fall to next to nothing.

    Technological fixes might help, but there are many other options to address the problems of the state and federal judiciary. One other approach would be for the states and federal government to stop enacting so many unneeded criminal statutes.

  • Cory

    I would say this is another reason for having limited government. Government exists to protect us, not to take care of us. Government is in the justice business. It needs to do that, only that, and do it very well.

    When it is so consumed in doing things it has no business doing that it can’t do that which it is in the business of doing, we have a problem.

  • Glen

    This is simply another example of what San Jose, CA Mayor Chuck Reed has termed “service-level insolvency.”

    Reed is featured in Michael Lewis’s Vanity Fair article California and Bust. The end point, which Reed says is a “mathematical certainty,” will occur soon, when our municipalities are forced to downsize until they employ only “a single employee to service the entire city, presumably with a focus on paying pensions.”

    Just as Greece is the canary-in-the-coal-mine for Europe, California’s cities are the bleeding edge of demise of the Blue Social Model. While Professor Mead has written extensively on why this model is doomed, he has been less clear on what might replace it – and why it will work. His recent New York Times review of Tom Friedman’s new book is yet another illustration of how this uncertainty manifests itself as either a “plague on both houses” or a “split the difference” faux centrist sentiment. Frankly, regardless of their motivation, these equivocations put Mead’s entire critique of the Blue Model at risk. Taken to their logical conclusion, they place Mead in a category indistinguishable from David Brooks when he recently admitted “I’m a sap.”

    Professor Mead, please don’t go there!

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