Civil Justice in Crisis

SCOTUSRebuilding Justice: Civil Courts in Jeopardy and Why You Should Careby Rebecca Love Kourlis and Dirk Olin; Fulcrum Publishing, 2011; 230 pp.

The independent judiciary is one of the crowning achievements of American government. Alexis de Tocqueville declared it “at once most favorable to liberty and to public order.” Courts form the third pillar of government, upholding our liberty. Sadly, this pillar is cracking under the massive weight of a poorly functioning justice system. Our system, in which judges believe that they have failed their duty if a case goes to trial, has gone off the rails, achieving expediency at the expense of justice.

In Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care, Rebecca Love Kourlis and Dirk Olin deliver observations on several aspects of the civil justice system and argue for the reform of the system in general. They distinguish their aims from the contentious tort reform that keeps American legislatures in perpetual argument. Instead of addressing judicial inefficiencies through federal or state law, the authors call for a restructuring of the civil litigation process. The book contains powerful points but suffers from poor organization and weak tone throughout.

Kourlis and Olin bring unique and interesting backgrounds to their subject. Kourlis worked as an attorney before serving on the Colorado Supreme Court for 11 years. She founded and directs the Institute for the Advancement of the American Legal System at the University of Denver. Olin is a journalist who reported on political and legal affairs before launching the Web site and a think tank, the Institute for Judicial Studies. It is clear that both authors care about the subject. Disappointingly, they fail to create a book that is both engaging and fervidly argued.

One of the fundamental problems faced by courts at every level is disengagement from the citizens whose liberty they endeavor to preserve. Americans know frighteningly, yet predictably, little about the judiciary. Kourlis and Olin cite several studies and surveys of Americans’ civic awareness (such as one in which participants could name more American Idol judges than Supreme Court justices) to hammer home the point. The solution to this epidemic of ignorance, of course, is more effective civics education – a topic far beyond the scope of this book.

The selection of judges is a fundamental and divisive subject. 2010 saw the removal of justices in Iowa by popular vote that involved a highly partisan, highly funded election campaign sparked by a unanimous decision to allow gay marriage. Even in states with a merit-based system for rating judicial performance, judge selection is becoming more political. As Kourlis and Olin note, “outside spending by noncandidate groups has also increased dramatically in recent judicial elections.” The bottom line is that determining judicial seats by popular vote opens the door for corporate and partisan corruption. Undeniably, as Hamilton declared in Federalist No. 79, “A power over a man’s subsistence amounts to a power over his will.” The authors thus endorse a sensible plan developed by Sandra Day O’Connor (who contributes a foreword to this book) for judicial selection and periodic review.

The discovery process is a major focus of Rebuilding Justice. Indeed, it occupies two chapters and returns to discussions throughout the book. Discovery, the period in a case during which both sides gather and share information, traditionally meant the compilation of physical documents and testimony through deposition. As Kourlis and Olin point out, thanks to technology (primarily email) discovery is now the most time-intensive, expensive part of the litigation process. Attorneys sometimes field entire staffs of contracted legal researchers to pore over electronic documents to find relevant facts and statements to use in court. The discovery process has “spun out of control,” leading to massive legal fees and protracted litigation that can cause parties to drop cases or reach premature settlements. These delays are not without merit, as information discovered electronically can be essential to supporting one’s case. But skyrocketing costs and delays are a significant hindrance to justice. Among several useful suggestions in the conclusion of the book, the authors deal with discovery quite meekly: “The civil rules committees and judges who are in charge of writing the rules of the civil justice system need to remember why they went to law school in the first place. It was likely not to argue or resolve discovery motions or sort through emails – it was to serve justice.”

The authors also give special treatment to the still-growing field of family law. Like other civil courts, divorce courts are packed, slow, and ill equipped for 21st Century litigation. It is clear that unlike most areas of civil justice, where reform is needed, family courts need to be redesigned from the ground up. Unlike in other fields, however, the adversarial nature of the American family court process is detrimental to everyone involved. Families are drained emotionally and financially at a critical period. This is not to mention the handling of couples with children, both married and unmarried (“Slightly more than half of all divorces involved children under the age of eighteen…”). Kourlis and Olin extol programs in Australia and Canada that bring a holistic, family-focused approach to domestic disputes. In the U.S. couples work with private therapists, mediators and lawyers. Here, again, the justice system has lost its focus. But in this realm, families and innocent children pay the price.

Rebuilding Justice is littered with details of illustrative cases, and the reader often must wait until the end of a chapter to hear the authors’ main thrust. In short, it reads too much like a law school text, which costs the Kourlis and Olin dearly when they have the chance to make impassioned arguments. Instead, the book is dogged by tame passages: “To reinvigorate the civil justice system and get the cases out of the back rooms and into the courtrooms, we must make changes. Now.” Perhaps the goal was to produce a relatively slim volume (considering the magnitude of the subject matter), but fuller arguments are exactly what their work lacks.

The American civil justice system is clogged and requires serious repair. The situation is serious enough that a stronger effort from Kourlis and Olin was needed. Let us hope that this book encourages more public debate and progress toward justice for all.

Note: this review appeared in The Wagner Review on January 3, 2012.

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