Processes of the Law: Understanding Courts and Their Alternatives

Processes of the Law: Understanding Courts and Their Alternatives, by Judith Resnik. New York: Foundation Press, 2004.

Not so long ago, a very good friend of mine (a clergyman) was accused by a former parishioner of fondling her during counseling sessions. By her own account, she had fallen in love with my friend and did not object to the sexual contact. Then she claimed to have had a "spiritual awakening" that made her realize that her pastor had taken advantage of her emotional vulnerability. As a result, she "filed charges" against my friend with the church.

The church in question has a set of procedures to be followed when charges are filed. If initial efforts by church leaders to reach a reconciliation between the pastor and the person bringing the charges fail, the charges go to a mixed panel of clergy and laity who investigate the charges (much like a grand jury) to determine if "reasonable grounds" exist to refer the charges for a trial. The charges against my friend went to a church trial.

The trial was presided over by a church bishop. The church (which at this point was "prosecuting" the charges) and my friend were represented by clergy specially appointed for the trial. Usually these clergy counsel have had no special training for these roles. My friend hired an attorney (at great expense) to help prepare his case, and the church engaged an attorney to help the clergyman who "prosecuted" the case. The lawyers were allowed to be present during the trial and could assist the "clergy counsel," but they were not permitted to speak during the trial.

The "jury" consisted of thirteen members of the clergy. Conviction required nine members of the jury to conclude that clear and convincing evidence existed in support of a charge. My friend was found guilty of some charges and was acquitted of others. Church procedure provided for an appeal to a mixed body of clergy and laity, a body that also ruled against my friend.

Those of us close to my friend were devastated by what we considered a clear injustice. For reasons not limited to our affection for and confidence in our friend, we believed unwaveringly in the innocence of our friend.

As a person trained in the law myself, I could understand the logic behind much of the church procedure. It seemed clear to me, for example, that the process had been constructed by a lawyer. However, because I felt that the process had resulted in error, I found myself examining the process, looking for flaws that could explain the error. One thing was evident: when it comes time to make determinations that greatly affect people's lives, the process used to make those determinations is of tremendous significance.

For people who agree with this last statement, Processes of the Law is a book of great relevance. The book is about legal processes and is written by Judith Resnik, a Yale law professor and leading authority in the field. While the book is very short (only 146 pages of text), it is surprisingly comprehensive. The book discusses in a meaningful way such varied topics as civil actions, criminal actions, choice of law (to be applied to a given dispute), remedial powers (of the tribunal resolving a dispute), institutional forms (domestic tribunals, administrative agencies, alternative dispute resolution, and international tribunals), participants (juries, judges, lawyers, disputants), and rulemaking processes. It is remarkable enough that Resnik is able to discuss such a broad range of topics without leaving the reader feeling cheated, but she also manages to do this while incorporating a substantial amount of relevant empirical data and identifying important procedural trends.

Much of the empirical data greatly inform Resnik's points. For example, in her discussion of administrative adjudication, Resnik demonstrates the great importance of these processes by noting that in the 1990s, the Social security Administration alone disposed of about 500,000 cases a year, compared with only about 260,000 civil cases that were filed in federal courts each year. She also notes that there are more than 1,400 administrative law judges hearing disputes before federal agencies, while there are fewer than 850 federal judges (not counting federal magistrate judges and bankruptcy judges). Of course, the typical case heard by an administrative law judge may be less complicated than the typical federal court case, but that does not change the fact that a very large number of people are affected by adjudications made within administrative agencies.

Often the empirical data cited by Resnik help put a particular issue in better perspective. For example, many critics of the legal system have argued that our society has become much too prone to litigation. Resnik presents data demonstrating that indeed our legal system generates large caseloads (in 2001, about 38 million nontraffic cases were filed in state courts and another 320,00 in federal courts). However, she also cites a study that suggests that only about 11 percent of disputes involving claims in excess of a thousand dollars result in lawsuits.

Perhaps the greatest strength of Resnik's book, though, is her frequent identification of important trends. For example, during my law school days in the early 1970s, the courses I took on procedure emphasized the growing trend toward greater uniformity in rules. The development and adoption of model codes, the states' emulation of federal civil and criminal rules of procedure, and a growing sense (perhaps fostered by the social turbulence of the 1960s) that equal treatment requires that similar procedures be used in all regions of the country seemed to be at work in this trend.

However, Resnik points out that the trend in the latter half of the twentieth century is back toward greater variation. She notes that it has become increasingly common for local courts to develop their own rules (in addition to those rules from higher authorities that bind the local courts)-rules that can have an important impact on how cases are handled. In addition, it has become increasingly common for legislation to create special rules for certain kinds of cases (see, for example, the Prison Litigation Reform Act of 1995).

Another trend she notes is toward the creation of new "tiers" of courts. When most people think about federal courts, they think of a three-tiered system of district (trial) courts, courts of appeals, and the Supreme Court. However, Resnik notes that there are more magistrate judges and bankruptcy judges (who are "statutory judges" without the lifetime tenure enjoyed by judges appointed under Article III of the Constitution) than there are federal district court judges. Given the additional fact that the authority of magistrate judges to adjudicate cases has increased significantly in the latter part of the twentieth century, the caseload of magistrate judges and bankruptcy judges can be seen as a fourth tier of federal courts.

Early in the twentieth century and increasingly after World War II, legislation has committed the resolution of some disputes, initially at least, to administrative agencies. For example, a person who has been denied disability benefits by the Social security Administration can seek resolution of that dispute before an administrative law judge. Most of these types of administrative adjudication can be appealed within the administrative agency, and many can be appealed to federal courts. Thus, this administrative adjudication process can be viewed as a fifth tier of courts.

Resnik also deals at some length (relatively speaking-in a book of only 146 pages of text, nothing is dealt with at great length) with the increasing prevalence of alternative dispute resolution processes-negotiation, mediation, and arbitration. Increasingly, statutes and contracts require that some disputes either be resolved through one of these processes or at least require that an initial effort be made to resolve the dispute this way. Thus, these processes can be viewed as a sixth tier of courts.

It seems almost unfair to criticize a work that accomplishes so much in so little space, but there are a couple of improvements that could have been made even within the strictures that I assume Resnik was given by her publishers. The citation of cases is rather erratic. At some points, important cases are cited (by name with brief citation). At other places, Resnik does not make an obvious case reference. Resnik also includes a very useful nine-page bibliography on procedural issues. However, none of these works are cited in the text, and the bibliographic entries do not include a page number in the text that would inform the reader. Moreover, sometimes the reader cannot determine which works on the list would be the most appropriate to read.

In the context of Processes of the Law as a whole, these criticisms are quite minor. For persons who want a brief introduction to the subject of legal procedures or for persons who once knew a good deal about the subject but would like a quick refresher, it is difficult to envision a work better suited to their purposes.