The Capital of and the Investments in Courts, State and Federal

Abstract

Longstanding constitutional commitments appear to ensure rights to remedies for "every person." Nonetheless, courts were once exclusionary institutions contributing to the maintenance of racialized status hierarchies. Twentieth-century civil rights movements pushed courts into recognizing the authority of diverse claimants to pursue their claims. These movements also succeeded in legislatures, which invested in making constitutional obligations real through statutory entitlements, jurisdictional grants, and funding for tens of hundreds of courthouses, judgeships, and staff. Courts thus became icons of government commitments to legal remedies, as well as battlegrounds about the authority of government to regulate power, both public and private. In this essay, I explore how the federal courts became the source of "our common intellectual heritage," why it is difficult to bring sustained attention to state courts, and why doing so has become pressing as economic inequalities in state and federal courts undermine adjudication's legitimacy. Many of the new rights-holders had limited resources. Asymmetries in dispute resolution make aspirations to provide fair and equal treatment difficult. Because courts are public sites, the disparities are patent—bringing to the fore the problems facing litigants and courts. For some, responses lie in augmenting the capacity of courts to make good on their promises as information-forcing, conflict-exposing, and information-disseminating institutions. For others, the goal is to limit access to courts and undercut the legitimacy of their processes and outcomes. Illustrative is "Judicial Hellholes," which is the name of a yearly publication attacking jurisdictions in which plaintiffs succeed in obtaining remedies. To clarify the normative stakes of conflicts over "rights to remedies" in "open" courts, I focus here on the infrastructure of state and of federal courts and data on users and needs. Filings in both federal and state courts have, in recent years, declined, while concerns about self-represented litigants and the inaccessibility of courts have risen. I argue that the legal academy needs to take on "class" (as in economic wherewithal) in courts and that Congress needs to provide fiscal support for both federal and state courts, on which enforcement of law depends, and I address the challenges of doing so.