David Freeman Engstrom, David Marcus and Elliot Setzer have published Managerial Courts in the Yale Law Journal:
In recent decades, American courts have undergone a quiet but far-reaching revolution in their function and role. Particularly in state courts facing a crush of cases in high-volume dockets for debt, eviction, and family-law matters, case-by-case judging has gradually given way to court-devised systems that govern adjudication through centralized, routinized, and often digital and data-driven practices. Cases are triaged into differentiated procedural pathways; docket calendars are engineered to shape litigant behavior; decisional aids, digital dashboards, and order templates channel the discretion exercised by judges and staff; teams of quasi-judicial officers, staff attorneys, case-management professionals, and clerks absorb tasks once thought quintessentially judicial in order to ration scarce “judicial attention”; and internal and, increasingly, digitized and even AI-based tools perform quality-control tasks once left exclusively to appellate review. The upshot is that courts pervasively mix adjudication and bureaucracy, with profound but largely unexamined implications for fair and accurate adjudication, access to justice, due process, and the production of law.
This Feature surveys the managerial turn transforming American courts, tracing its roots, forms, and normative implications. An opening historical narrative situates the rise of court managerialism within a century-long arc from the New Deal to the digital age, highlighting its shifting causes and its consequences for American justice. Turning to the present, we offer a novel taxonomy of current managerial techniques that identifies the operational components of the managerial turn and synthesizes their many commonalities and interconnections. Finally, our normative and doctrinal analysis develops principles for reconciling court managerialism with classical conceptions of American courts and judges as passive, neutral adjudicators of whatever the adversarial process serves up. Can courts adopt bureaucratic tools without losing their distinctive institutional identity? Given twenty-first-century litigation realities, including the bracing fact that the majority of cases in the American civil-justice system now pit represented parties against unrepresented ones, managerial approaches will often outperform an unmediated adversary process on metrics of accuracy and efficiency. A constitutional reckoning awaits: while some parts of the new managerialism may run afoul of due process, others may be constitutionally required.
--Dan Ernst
