A Theory of Civil Problem-Solving Courts
by Jessica Steinberg, George Washington University – Law School, New York University Law Review, Vol. 93, 2018, Forthcoming. Here is the abstract:
This article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated civil cases: rental housing and consumer debt.
Three structural conditions in the civil courts—high-volume dockets, systemic lack of counsel, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil justice system predictably ineffective in combatting recurring social issues such as substandard housing and unscrupulous debt collection. The heart of the problem-solving theory in drug courts is the availability of an alternative remedy: treatment over prison. In civil courts, the remedy itself is not necessarily deficient; it is access to the remedy that is compromised. Relying on two years of field research in an experimental court, this Article demonstrates how core drug court principles, such as naming the purpose of the court as solving a social problem, interdisciplinary collaboration, and a strong judicial role, can be manipulated to address process failures in the civil justice system and reimagine the courts as proactive institutions responsible for the pursuit of socially beneficial outcomes.
The Article also argues that a civil problem-solving theory survives many of the valid critiques levied against drug courts. In particular, drug courts have come under fire for playing a moralizing role and using compulsory treatment as a form of social control. A civil problem-solving court, however, would not exacerbate the negative impact of state power on already over-burdened groups. Instead, the targets of monitoring and behavior modification are the more powerful private actors to the litigation, such as property owners and debt buyers, who otherwise have been known to manipulate the courts—an instrument of the state—to evade their legal obligations and suppress individual rights.