One of the most basic assumptions of our legal system is that when two parties face off in court, the case will be adjudicated before a judge who is trained in the law. This Essay begins by showing that, empirically, the assumption that most judges have legal training does not hold true for many low-level state courts. Using data we compiled from all fifty states and the District of Columbia, we find that thirty-two states allow at least some low-level state court judges to adjudicate without a law degree, and seventeen states do not require judges who adjudicate eviction cases to have law degrees. Since most poor litigants are unrepresented in civil legal cases, this sets up an almost Kafkaesque scene in courtrooms across the country: Legal cases that have a profound effect on poor families, such as whether they will lose their home to eviction, are argued in courtrooms where either no one knows the law or only one party—the attorney for the more powerful party—does.
Considering data collected from a case study of North Carolina, where over 80% of magistrates do not have J.D.s, this Essay argues that allowing a system of nonlawyer judges perpetuates long-standing inequalities in our courts. It further argues that the phenomenon of lay judges is a symptom of a much larger problem in our justice system: the devaluation of the legal problems of the poor, who are disproportionately Black and Latinx. This devaluation stems in part from an enduring cultural history in the United States of blaming the poor for their poverty and its associated problems. A change is in order, one that intentionally considers the expertise of judges and adopts creative solutions to incentivize specially qualified adjudicators to serve as low-level state court judges.
Sara Sternberg Greene & Kristen M. Renberg, Judging Without a J.D., 122 Columbia Law Review 1287-1388 (2022)
Library of Congress Subject Headings
Due process of law, Lay judges, Judges--Education, Judicial process, Legal assistance to the poor--Standards, Equality before the law