Active Judging and Access to Justice

Anna E. Carpenter*

“Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.”

Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new theoretical framework: three dimensions of active judging. These dimensions capture a judge’s role in adjusting procedures, explaining law and process, and eliciting information. The study is based on a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth, qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample are active in some way, but judges’ practices vary in meaningful ways across the three dimensions. While all judges are willing to adjust procedures, they differ in whether and how they explain the law or elicit information. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law—burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate caselaw, a regulatory body, and one another. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests that consistency in active judging may require more substantial guidance than that available to judges in this court.

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© 2017 Anna E. Carpenter. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Anna E. Carpenter is Associate Clinical Professor of Law and Director of the Lobeck Taylor Community Advocacy Clinic at The University of Tulsa College of Law. This Article grows out of a broader civil justice research project where I have had the privilege of collaborating with Colleen F. Shanahan, Associate Clinical Professor of Law at Temple University Beasley School of Law, and Alyx Mark, Assistant Professor of Political Science at North Central College. Professors Mark and Shanahan contributed to the data collection, data analysis, and conceptual development of this Article and were instrumental in reading and commenting on drafts. My thanks to those who commented on drafts of this paper, including Russell Engler, Peter Edelman, and Richard Reuben from the American Constitution Society’s 2017 Junior Public Law Scholars Workshop, and participants in the 2016 NYU Clinical Writers’ Workshop. Thanks to Kymberli Heckenkemper, Kelsey Holder, Caleb Jones, and Kathleen Rhodes for research assistance and The University of Tulsa College of Law Summer Research Grant Program for support.