The Honorable Bridget M. McCormack, former Chief Justice of the Michigan Supreme
Court and Chief Executive Officer of the American Arbitration Association, presented a version of this piece as the William J. Brennan, Jr. Lecture at the New York University School of Law on October 5, 2023.
The Supreme Court for decades has said that Congress, by statute, may create rights and that the infringement of those rights is a sufficient injury to allow standing to sue in federal court. But in TransUnion LLC v. Ramirez, in June 2021, the Court said that federal laws creating rights may be a basis for standing only if the right protected is one for which there is “a close historical or common-law analogue.” This principle, if followed, would mean that countless federal laws—ranging from the Freedom of Information Act to civil rights statutes to environmental laws to the prohibition of child labor—could not be enforced in federal court because they create statutory rights that did not exist historically or at common law. Such an approach would be a radical, undesirable change in the law, particularly as a matter of separation of powers. Congress always has had the authority, and should have the power, to create enforceable rights by statute.
This Article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” jail-based sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated private law cases: rental housing and consumer debt.
Three structural conditions in the civil courts—systemic lack of counsel, high-volume dockets, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil justice system predictably ineffective in combatting recurring social issues such as substandard housing and unscrupulous debt collection. The heart of the problem-solving theory in drug courts is the availability of an alternative remedy: treatment over prison. In civil courts, the remedy itself is not necessarily deficient; it is access to the remedy that is compromised. Relying on two years of field research in an experimental court, this Article demonstrates how core drug court principles, such as naming the purpose of the court as solving a social problem, interdisciplinary collaboration, and a strong judicial role, can be manipulated to address process failures in the civil justice system and reimagine the courts as proactive institutions responsible for the pursuit of socially beneficial outcomes.
The Article also argues that a civil problem-solving theory survives many of the valid critiques levied against drug courts. In particular, drug courts have come under fire for playing a moralizing role and using compulsory treatment as a form of social control. A civil problem-solving court, however, would not exacerbate the negative impact of state power on already over-burdened groups. Instead, the targets of monitoring and behavior modification are the more powerful private actors to the litigation, such as property owners and debt buyers, who otherwise have been known to manipulate the courts—an instrument of the state—to evade their legal obligations and suppress individual rights.
