Rule of Law Under Attack: Ideas for Building Trusted Courts

The Rule of Law is absolutely under attack in the United States of America—from elected officials, state legislative bodies, and groups of individuals. The attacks are apparent in politicians’ tirades, legislative proposals that would limit the authority of courts, and assaults on established principles of law such as federal versus state authority. But, the solution is not to put sandbags along the perimeters and bemoan the idiocy of some people.

Rather, we have to look to the causes of these issues that we now face. Why is the public—and some of our elected representatives—so angry at courts? And, what can we do to fix it?

At least one cause may be that individuals feel they have no real access to the courts—it is too expensive, complex, and overwhelming. The perception is that only the rich can afford to go to court. As a result, self-represented litigants (SRLs) are on the rise. Our studies at IAALS indicate that those people will likely emerge from the process feeling frustrated and disempowered. We need to fix that by simplifying the processes and greatly expanding access to information and assistance. For example, we need robust internet tools for people who represent themselves in court, access to lawyers who will work on an affordable basis, and the development of qualified and regulated para-professionals who can help provide some limited legal services.

Another cause may be the lack of understanding about what the courts do and what the Rule of Law really means. We all know that civics education is no longer valued or prioritized, and, as a result, many people do not have any real comprehension of the differences among the three branches of government and the special role of the courts. When people understand that the courts are charged with enforcing the Constitution and protecting minority interests, their paradigm shifts. Looking at courts as representative bodies and accountable to a constituency—the prevailing view of many who now attack our courts—will invariably lead to a round peg in a square hole problem. Courts offer a neutral forum for resolving disputes so such disputes are not settled in the streets.

But, whose fault is the misperception? In many states around the country, we elect judges—and we do so in raucous, expensive, and divisive campaigns. And then, we complain when people see judges as politicians.

We need to fix that. Judges should not be elected in partisan, contested elections. They should be chosen in an open, merit-based way by a balanced group of nominators who make binding recommendations to the appointing authority. Judges should then be evaluated regularly and put before the voters for an up/down vote. We know this is all doable, because Colorado and a number of other states do just that—and it works. In fact, we at IAALS celebrate the Colorado legislature’s most recent work in upgrading the Colorado judicial performance evaluation process. While other legislatures around the country have been batting around bills that would undermine the courts, Colorado’s legislators have been working on improving an already good system.

So, what can you do to make a difference in this anti-court, anti-lawyer climate. Here are a few ideas:

• Support the provision of unbundled legal services for individuals who want some help from an attorney with their legal problems—but can’t afford to pay a lawyer to handle their entire case.
• Begin the process of developing para-professional, licensed positions within the legal profession—not just lawyers, but also licensed people with knowledge about particular areas who can offer assistance for affordable rates.
• Work toward changing judicial selection systems to eliminate partisan elections and replace them with a nomination-appointment-retention system such as the O’Connor Judicial Selection Plan system that IAALS supports.
• Support the development of online tools that will benefit SRLs (like Smart forms, Chatbots, and video assistance).
• Focus on simplifying our system of justice. This task may seem the most daunting and perhaps contrary to self interest for lawyers, but lawyers are in the best position to solve these issues. When the public perceives that a complex systems is only accessible to the people who are schooled in that system—not to the one-time user or the non-professional—they lose faith in that system. But, of course, that is the point: we need to streamline process by looking at it from the end-user’s perspective. The unmet legal need in our country is staggering, if only a fraction of those people feel empowered to reach out to lawyers (or legal service delivery professionals), we will never meet the needs of the consuming public. More to the point, a system that is cloistered and exclusive is doomed to fail in this world. So, to save the system, we must open it up and let it breathe. The entry of other legal professionals into the market is not business competition for lawyers, it is business opportunity and helps restore faith in a system based on the rule of law.

In all of these areas, IAALS is hard at work. Check out our website more. We need your help to climb these mountains. There is no more important work to be done—let’s seize these opportunites.