Assistant Professor of Government Alyx Mark studies the American separation of powers system, access to justice, and Supreme Court decision-making. She was recently awarded a National Science Foundation (NSF) Rapid Response Research (RAPID) grant to study the response of state courts to the challenges posed by the coronavirus pandemic.
Congratulations on receiving the NSF RAPID grant! Can you please explain how this opportunity came about?
Near the beginning of the pandemic, NSF sent out a Dear Colleague letter soliciting project proposals related to COVID-19. When I read that letter, my first thought was that this was relegated to epidemiologists and others working in areas directly applicable to studying the pandemic. But when I began thinking about how it related to my own research, I realized there are quite significant impacts to how court systems work as a result of the pandemic. I submitted a brief overview of a project idea, and then they invited me to submit a full proposal. The funding was just awarded, and ultimately the whole process took just under a month—versus four months or more, which is typical for NSF funding. The NSF has a special funding stream that is exclusive to these types of projects.
Can you share more about your proposed research project?
Thanks to our federalist system of government, states have considerable authority to dictate how their courts operate, how they’re organized, what types of specialty courts they have, etc. It is very rare that a massive shock like this forces every state to respond. Hurricane Katrina was a similar example, when many states in the South had to rethink how courts and other government processes worked in the wake of the catastrophic disaster.
When the COVID-19 pandemic started, I became interested in studying how states were moving their courts to remote operations at different speeds and in different ways. I thought it would be interesting to catalog all the ways that states are meeting this challenge, and to speak to the people who are implementing the procedures. I’m also very interested in studying the impact of remote operations on people who use the courts to solve their legal problems. I want to know whether the innovations being forced by the pandemic are mitigating or aggravating existing access challenges for vulnerable populations. I plan to focus the project on civil justice, such as landlord-tenant disputes, family law, debt collection cases, and so on. One reason for this is that people don’t have the same types of constitutional protections on the civil side that they have on the criminal side, such as guaranteed counsel.
What are these existing barriers to access that you’ve alluded to with regard to civil courts?
One of the main barriers we see for vulnerable populations is a lack of access to affordable legal assistance. I’m conducting research on reforms to the legal profession in Utah with Anna Carpenter, a law professor at the University of Utah. A recent report revealed that over 90 percent of civil court cases in the Salt Lake City area involved at least one party that was not represented by a lawyer. What’s happening in Utah is not unique—across the country, it is estimated that the vast majority of people represent themselves in civil court, yet these people are much less likely to have a favorable outcome. Also, courts may not be easy to physically access, particularly for people who live in rural areas or lack transportation. And for people who can get to court, there can be challenges with accessing the information they find there. For example, is the information that courts are providing understandable to you? Are court forms written in your language, or at a grade level you can read? Beyond all that, many people who are faced with a civil legal problem do not identify the problem as something that can be addressed through the justice system. Rebecca Sandefur, a scholar many in the access to justice field look up to (including me!), uses an iceberg to describe this phenomenon, with the tip of the iceberg being people who actually go to court, and underneath the water being everyone else who doesn’t realize they can use the justice system to solve their problems.
How do you plan to conduct your research?
There are three stages to the project. The first stage is a comprehensive scan of all the changes that every state court in the U.S. has made in response to the pandemic, ranging from their courts of last resort to municipal courts. The support from the NSF enables me to work with three undergraduates on conducting this data collection effort. In the second stage, I’m interested in speaking with the people who have both designed and implemented these changes. Who are these people, both internal and external to the court system, who have been working on these innovations and reforms, and how are they feeling about how it’s going? Finally, I plan to investigate this question about whether these innovations have had any impact on access to justice for vulnerable populations. I’ll be working with the Quantitative Analysis Center (QAC) on analysis for this stage.
It’s still early in your research, but what have you seen thus far in terms of how courts are responding to the pandemic?
Three main types of changes to hearings are emerging. In some states, I’ve seen delays or pauses on all jury trials and all non-emergency types of cases. In others, I’ve seen shifts to online or telephonic hearings. For example, the Texas Supreme Court is holding its oral arguments on Zoom, with all the justices and the two attorneys in the middle of their “Brady Bunch” square. And then in some places, emergency cases, such as domestic violence cases, are still being physically held in courts, with social distancing measures being taken for safety.
When we see these courts moving operations to a remote space in a very short period of time, the question becomes, what is the added risk of having these processes happen remotely? If it doesn’t appear to be adding significant risks, then perhaps courts can consider extending some of these policies beyond the pandemic to improve access for those vulnerable populations. We’re seeing this very rare surge of innovation as a consequence of the pandemic, and I see solutions being utilized that could also be very useful for the long term.
In addition to changes to how hearings work, courts have also reconsidered how filing paperwork happens. Just to give one example, what if we could relax notary requirements for people who don’t have easy access to notaries, and instead ask them to submit a statement that says, “Under penalty of perjury, everything I’ve said in this statement is true.”
What do you think the appetite is for this kind of longer-term change?
It’s hard to say at this point. There are many reasons why states have not pursued major innovations, including a lack of resources to do so. But, that’s not to say that states aren’t doing innovative things. For example, Utah—a state I’ve been researching—is piloting a system of online dispute resolution for small claims cases, and recently opened up its legal market so that non-lawyers (Licensed Paralegal Practitioners) can provide limited forms of services in certain areas of law. I think a moment like this is really important because it allows courts to take stock of how they’ve been doing things and ask themselves if changes are possible.
What are you teaching this semester? Are you incorporating this current moment into your teaching?
This spring I’m teaching American Government & Politics and Judicial Decision-Making. In the latter class, the students are working on grant proposals for their own projects related to what judges do. It’s nice to see this spectrum of interest among the students ranging from the U.S. Supreme Court all the way down to a municipal docket. Seeing my students’ proposals was a bit of an inspiration to light a fire under my office chair to write my own proposal to the NSF!
In my American Government & Politics class, we’ve been talking about the connections between federalism and the coronavirus. We see a pattern of state reactions to what’s happening nationally. To say the very least, this is an unusual moment that is providing these really wacky examples of national-state relations. The pandemic has allowed us to test some of the theories we’re learning about in the abstract by examining current events.