A View of State Courts

posted by Judge_Burke @ 23:02 PM
April 1, 2020

Michael Pollack (Benjamin N. Cardozo School of Law) has posted Courts Beyond Judging (Brigham Young University Law Review, 2021 Forthcoming) on SSRN. Here is the abstract:

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation of these tasks and the various procedures by which they are carried out across the country.

In every state, on top of the ordinary adversarial dispute-resolution function that we expect judges to serve, it is state court judges who are charged with administrative functions like approving applications to change one’s name, to enter the legal profession, or to exercise constitutional rights like accessing abortion care without parental knowledge or consent. And it is often state court judges who are charged with or who have taken on a range of legislative and policymaking functions like redistricting and establishing specialized criminal courts for veterans, persons in need of drug treatment, and others. And in some states, it is state court judges who have the law enforcement power to decide whether a prosecutor’s charging choice was a wise exercise of her discretion. These are not mere odds and ends of governing either; weighty interests hang in the balance across the board.

In addition to developing this more complete portrait of the state courts — and of important variation in how these roles are structured across the states — this Article examines whether the interests at stake in each context are appropriately served when state court judges handle them. In some arenas, they are, and this Article places these facets of state court practice on firmer theoretical footing. In others, however, there is cause for concern. With respect to these tasks, this Article argues that state court judges need to be better guided by statute and subject to reason-giving and record-developing requirements that would channel their discretion, improve their decisionmaking, and enable more rigorous appellate review. But most important of all, this Article calls for states to make more conscious choices about structuring the roles they assign to state courts, and for scholars to devote more careful attention to these powerful and nuanced institutions.


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