CAMBRIDGE, Mass. | July 11, 2014 – What challenges confront U.S. courts as democratic institutions in the twenty-first century? And what does the changing role of courts teach us about our conceptions of justice? The Summer 2014 issue of Dædalus, the Journal of the American Academy of Arts and Sciences, explores the complex shifts occurring in U.S. courts and the implications for the citizens that rely on them. “The Invention of Courts” is guest-edited by American Academy Fellows Linda Greenhouse, the Joseph Goldstein Lecturer in Law at Yale Law School and former Supreme Court reporter for The New York Times, and Judith Resnik, the Arthur Liman Professor of Law at Yale Law School.
Linda Greenhouse introduces the volume’s diverse essays by noting that “[t]o write about courts is to write about political theory, about lawyering, about fiscal priorities, and about social welfare, as well as about courts’ dependence on and independence from the body politic.” Many of the essays remind us that the courts do not stand on their own as static institutions; rather, they were and continue to be invented–a process informed by changing legislative, economic, political, and cultural landscapes.
In her essay, Judith Resnik traces the shifts in democratic theory and the role of social movements that pressed courts to embrace the view that all persons are equal rights holders, thereby transforming courts into democratic venues. Given the mandate to provide “open courts,” trial-level exchanges became opportunities for debates about what the shape of legal rules should be. Resnik notes, however, that in more recent decades, disputants are increasingly pressured or required to resolve disputes in private settings that do not provide the opportunity for public oversight of either processes or outcomes.
Democracy has not only changed courts; it challenges them profoundly. Resnik’s essay is one of several expressing the concern that the current system faces a host of issues, including deficits in court funding, the disappearance of trials, and the failure to translate into practice Gideon vs. Wainwright’s mandate of a constitutional right to adequate counsel for all indigent criminal litigants.
Among the issue’s fifteen essays, Jonathan Lippman, Chief Judge of the State of New York and Chief Judge of the Court of Appeals, examines the enormity of the unmet needs of New Yorkers who are unable to afford a lawyer, and introduces his and his task force’s efforts to address the crisis. Robert Katzmann, Chief Judge of the United States Court of Appeals for the Second Circuit, writes about the approaches he and his colleagues have explored to expand access to justice for undocumented immigrants, who often face deportation while detained and without the assistance of counsel. Deborah R. Hensler (Stanford Law School) discusses class actions and other ways of litigating mass harms and their implications for both individual plaintiffs and defendants. Finally, the idea of the “invention of courts” is poignantly given life in an essay by Kate O’Regan, who served as a Judge of the Constitutional Court of South Africa from its inception in 1994 through 2009.
Print and Kindle copies of the new issue can be ordered at: https://www.amacad.org/publications/daedalus.
Essays in the Summer 2014 issue of Dædalus include:
- Introduction: The Invention of Courts by Linda Greenhouse (Joseph Goldstein Lecturer in Law at Yale Law School)
- Reinventing Courts as Democratic Institutions by Judith Resnik (Arthur Liman Professor of Law at Yale Law School)
- State Courts: Enabling Access by Jonathan Lippman (Chief Judge of the State of New York and Chief Judge of the Court of Appeals)
- When Legal Representation is Deficient: The Challenge of Immigration Cases for the Courts by Robert A. Katzmann (Chief Judge of the United States Court of Appeals for the Second Circuit)
- Gideon’s Problematic Promises by Carol Steiker (Henry J. Friendly Professor of Law and Special Advisor for Public Service at Harvard Law School)
- Uncommon Law: America’s Excessive Criminal Law & Our Common-Law Origins by Jonathan Simon (Adrian A. Kragen Professor of Law and the Director of the Center for the Study of Law and Society at the University of California, Berkeley)
- Justice for the Masses? Aggregate Litigation & Its Alternatives by Deborah R. Hensler (Judge John W. Ford Professor of Dispute Resolution at Stanford Law School)
- Innovating to Improve Access: Changing the Way Courts Regulate Legal Markets by Gillian K. Hadfield (Richard L. and Antoinette Schamoi Kirtland Professor of Law and Professor of Economics at the University of Southern California)
- Trusting the Courts: Redressing the State Court Funding Crisis by Michael J. Graetz (Columbia Alumni Professor of Tax Law at Columbia Law School and Justus S. Hotchkiss Professor Emeritus of Law at Yale Law School)
- Our Informationally Disabled Courts by Frederick Schauer (David and Mary Harrison Distinguished Professor of Law at the University of Virginia)
- A Grin without a Cat: The Continuing Decline and Displacement of Trials in American Courts by Marc Galanter (John and Rylla Bosshard Professor Emeritus of Law and South Asian Studies at the University of Wisconsin, Madison) and Angela M. Frozena (non-practicing attorney working in the private sector)
- Courting Ignorance: Why We Know So Little About Our Most Important Courts by Stephen C. Yeazell (David G. Price and Dallas P. Price Distinguished Professor of Law Emeritus at the University of California, Los Angeles School of Law)
- The Courts in American Public Culture by Susan S. Silbey (Leon and Anne Goldberg Professor of Humanities, Anthropology, and Sociology and Professor of Behavioral and Policy Sciences at MIT)
- (Anti)Canonizing Courts by Jamal Greene (Professor of Law at Columbia Law School)
- Justice & Memory: South Africa’s Constitutional Court by Kate O’Regan (Former Judge of the Constitutional Court of South Africa)
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