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Monday, February 04, 2013

Low-Level Courts and the Legal Academy

There’s a growing literature on low-level law, and the sense that it has a high level impact: in numbers of people who have contact with the legal system, and in the seriousness of the consequences of those interactions.

Part of what I’ll do over the next few weeks is focus on low-level law, and in particular, what problem-solving courtsdrug courts, mental health courts, homelessness courts, family courts, and so on—tell us about the rest of the criminal justice system, and about the law more generally.

But these courts, I’ll argue, also tell us a lot about the legal academy.  And here two points are worth making.  First, these courts are administrative (operating outside formal rules) and charismatic (driven by the personality of the officials, and in particular the judge), not doctrinal (operating according to formal rules), and interdisciplinary.  Second, much of what goes on in problem-solving courts also goes on in mainstream courts (probate, criminal, small-business, tax)—the courts that many of our students (at least those from outside the top 20, or those who go into public interest) will end up working in.  Standard approaches to legal doctrine miss these courts.  And that’s a bad thing.  

Two groups of people see the inside of these courts: low-level practitioners, including clinicians; and interdisciplinary scholars.  Ironically, these two groups have been singled out: the first for being too expensive and the second for being too expensive and too out of touch with legal practice to be of any use to the very students and practitioners who work in these courts.  

I’ll mostly focus on the second group: because if my experience with problem-solving courts, both domestically and internationally, has taught me anything, it’s that the alleged distinction between the academy and the practice of law is a false binary dreamed up by folks who know nothing about low-level state courts.  Ironically, in arguing for diversity among law schools, commentators apply a one-size-fits-all understanding of lawyering to the practice of law, and suggest that the sort of interdisciplinarity that is the hallmark of elite schools is an academic irrelevance for non-elite ones, which should be focused on the practice of law. 

I’ll show through a couple of counter-narratives how the low-level courts are politically important policy-makers that are driven by interdisciplinary legal practice; and I’ll show that overcoming the false binary of academic versus practitioner is an essential part of low-level court practice. 


Posted by Eric Miller on February 4, 2013 at 11:43 AM | Permalink


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By interdisciplinary scholars I take it you mean Law and Economics, Critial Legal Studies, Law and Philosophy, and so on?

It wasn't entirely clear from your post.

Posted by: brad | Feb 4, 2013 12:38:56 PM

I think that is a somewhat narrow selection of the interdisciplinary, and represents what might be thought of as the standard view of the "core" subjects from inside the American legal academy. I'm happy to include the whole panoply of interdisciplinary scholarship. In particular, I think sociology and criminology have a lot to add to our understanding of low-level courts; problem-solving courts also use psychology (through social workers) and so on. But I'll make things clearer in a subsequent post.

Posted by: Eric J. Miller | Feb 4, 2013 12:44:08 PM


This is a hugely important topic (and meta-topic). Problem-solving courts are a key development in judicial administration and in the design of the American social-welfare system. It's been very frustrating to me that even some very good scholarship on the topic (and I'm just a consumer and not a producer of it at this point) hasn't cracked the "big time" in the academy. The topic seems at least as important to me as a lot of the topics that get lots of air time in the best law reviews. So I'm looking forward to your discussion!

Posted by: Sam Bagenstos | Feb 4, 2013 1:24:41 PM

Thanks for raising this important topic. I do a lot of work in family court, the the lack of published cases, let alone scholarly attention, to them is frustrating. Overlookign these courts ignores that the way the law impacts many people is through these low-level "below the radar" courts.

Posted by: Cynthia Godsoe | Feb 4, 2013 2:18:09 PM

Although you seem to be focusing on the criminal justice system, please do not overlook other state and local fora. Specifically administrative practice before planning, zoning, permitting, and licensing boards, fair hearing committees, school boards, and civil service boards. These quasi-judicial bodies also have a direct and immediate impact on a large constituency over a wide range of daily activities. However, much of administrative law scholarship is still too ensconced in federal practice, ignoring state and local law (as well as paying very little attention to federal/state federalism and preemption issues).

Posted by: Lawyer | Feb 5, 2013 4:43:49 AM

Lawyer: you are quite right. My expertise is (for better or worse) in the criminal courts. But I shall try to mention some of my colleagues' scholarship in other courts as the month goes along, and I certainly think that the focus on federal practice is a major impediment to engaging with these courts and the quasi-courts you describe.

Posted by: Eric J. Miller | Feb 5, 2013 10:33:51 AM

I believe the first time the academy became aware of the connection between drug courts and therapeutic jurisprudence is in a law review article I co-authored in 1999. See: http://www1.spa.american.edu/justice/documents/741.pdf

Posted by: Judge Peggy Hora (Ret.) | Feb 10, 2013 10:32:24 AM

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