New Faculty Book on Civil Courts Post-COVID

The U.S. Supreme Court has the final say on any civil or criminal case that it hears, period. In the state systems, the high courts also make final determinations about law, but the way state supreme courts govern is not nearly as fixed as one might assume, said Associate Professor of Government Alyx Mark.

In a new book, Mark set out to clarify the ways power is structured across state court systems. She undertook a significant investigation of each state’s civil court landscape and how they changed during the COVID-19 pandemic. She detailed her findings in Courts Unmasked: Civil Legal System Reform and COVID-19, a new book published in January by University of Kansas Press.

“Individual courts could be making decisions about how they run that are completely severed from any sort of structure of monitoring, which differs from our traditional understanding of courts working as a top-down system,” Mark said.

The ways courts operated were vastly interrupted during the beginning of the pandemic, like most other institutions. Courts were forced to make rapid decisions on logistical points that have an impact on how people experience the courts day-to-day, like whether to allow remote appearances or electronic document filing. This could be the difference between whether or not someone must take a day off work or set up childcare, adding potential cost to an already difficult experience for many, Mark said.

“There’s really a lack of information when it comes to understanding how court systems make decisions about how they run,” Mark said. “What I mean by that is, decisions about how cases are processed, decisions about how you file forms, how you submit evidence, how you pay fines and fees, how you appear at hearings. We don’t know very much about how these choices are made.”

To find out how these decisions were made, Mark first gathered a comprehensive collection of the thousands of administrative orders distributed by state court systems during the first year of the pandemic. She then closely reviewed and analyzed a subset of these emergency orders, along with the ensuing permanent decisions, from 15 states reflecting the diversity of court administrative structures. She also conducted over 60 interviews with judges, attorneys, clerks, and court administrators from around the country.

There are two general approaches to structuring a judicial system that determine how courts within those systems operate. The first structure is a more hierarchical, top-down approach where a state supreme court levied a decision for the lower courts to follow. The other method was more nuanced and horizontally oriented, which allowed lower courts to make more of their own decisions on how to operate. This second approach offered more latitude for courts to adapt their policies for their local audiences, Mark found.

Mark highlighted one example of how this variance could affect different people in the same state. In response to the pandemic’s aggravation of the eviction crisis in the United States, some court systems instituted eviction diversion programs that helped to keep people housed amid an uncertain economic climate. In some states, these programs were rolled out statewide, but in others, uptake of these programs was determined at a court-by-court level, leading to variation in which courts offered the programs and leaving people potentially vulnerable.

“Take, for example, the state of Illinois, where courts were encouraged—but not required—to implement diversion programs. A tenant in a county with an eviction diversion program may have a vastly different experience in resolving problems related to their housing than one in a county without such a program, potentially leading to outcomes that, in turn, affect tenants’ housing stability, health, and overall well-being in disparate ways. This gap can be attributed, at least in part, to the inability of high court actors in Illinois to enforce this policy choice uniformly across the system,” Mark said.

Mark intentionally does not pick sides between the two approaches to administering state civil courts, but she hopes that bringing the information to light pushes the conversation forward to keep improving the way courts are run.

“The pandemic exposed all the problems of having a system designed by lawyers, for lawyers, and it provided courts with this moment to say, ‘wait a second, our consumer base is average people and how do we make these systems work better for them?’” Mark said.