Theories of procedural justice have long contained explicit and implicit assumptions about the status of parties in the American civil justice system. Procedural rules and proposed reforms reflect beliefs that some parties are well-resourced and powerful and other parties are under-resourced and otherwise vulnerable. For several decades, commentators focused primarily on the needs of individual plaintiffs who faced uphill battles of time, money, and procedural barriers in accessing courthouse justice to vindicate their rights. They portrayed defendants as jockeying for procedural advantages of avoidance—everything from jurisdictional defenses to rules of pleading and discovery to broad powers of summary judgment existed to shield defendants from a merits-based confrontation before a jury.
In the past several years, however, scholars have begun to focus on vulnerable defendants, a class of litigants whose relative weaknesses were rendered nearly invisible by focusing on how parties fare in federal court. Pamela Bookman’s Default Procedures examines state-court rules for default judgments, adding to the growing literature on state-court procedures that have enabled a small group of relatively powerful plaintiffs to run roughshod over the debtors and tenants comprising a significant portion of the defendants in state court dockets.
Building on other recent empirical research, Bookman’s article is rich in detail about state default procedures and their effects on average defendants. Bookman demonstrates the considerable variance among state default-judgment procedures and recent efforts in some states to reform those procedures in response to the new scrutiny.
Procedures range from a traditional adversarial approach of rubber stamping plaintiffs’ complaints when defendants default—because the defendants’ default is treated as a waiver, a concession, or a justification for to the punishment of judgment—to recent reforms that require plaintiffs to include detailed substantiation of their claims with their pleadings, which also must anticipate and rebut common defenses like the statute of limitations. Although the changing landscape makes the scope of the problem and the effectiveness of procedural interventions even harder to describe, Bookman’s comprehensive assessment adds to the growing arsenal of scholarly documentation of the state of the law and the scope of the problems with default procedures.
While contributing to the growing call for procedural solutions to the default-judgment problem, Bookman’s signature contribution is situating the problem and the solutions as a conundrum for theories of procedural justice. The problem stems from the nature of default judgment as a procedural tool in an adversarial system. Adversarial justice demands active and thoughtful participation from all parties to litigation. Procedural rules should encourage vigorous participation in litigation without incentivizing overuse or misuse of public judicial resources. Herein lies the puzzle: efforts to ameliorate default-judgment problems caused by abusive plaintiffs risk emboldening abusive defendants, the likes of whom will never fully disappear from the litigation landscape.
Bookman targets four key stages of default. The first two stages—notice and the entry of default and default judgment—theoretically contain sufficient safeguards notifying the defendant of the pendency of the action and provide an opportunity to appear in the lawsuit to signal the intent to defend on the merits. The second two stages—procedures to set aside a default judgment and procedures for enforcing a default judgment—provide opportunities for post hoc challenges. While each stage serves important purposes in promoting procedural justice, the vision of procedural justice as occurring within an adversarial system limits effective reforms.
Most critiques and proposed reforms view default judgment as a problem of participation. That is, appearance in a lawsuit is the sine qua non of dispute resolution. Courts deter willful absence with sticks and ameliorate absence borne out of the inability or impracticability of appearance with efforts to enhance notice and lower the logistical and pecuniary barriers to appearing in a lawsuit. More aggressive reforms target participation. They seek to increase court access or to change areas of substantive law in which plaintiffs easily obtain default relief in the first place.
Bookman imagines a world of default procedures in which litigant participation is neither necessary nor discouraged. Paying attention to a recent array of state reforms, Bookman concludes that these reforms must be part of a larger systemic reform in which courts or court-adjacent entities can process claims fairly. Such systems would maintain the continuing availability of default judgment as a remedy while ensuring that defendants’ potential responses and defenses are given their due, regardless of whether a defendant can or does make an appearance at the outset of the lawsuit.
Most importantly, such systems account for the high volume of claims filed and default judgments sought in state courts. Many reforms will target plaintiffs–requiring more robust substantiation and requiring that courts have the personnel and capability to detect when a plaintiff’s case lacks the basic indicia of a meritorious claim. While this shifts from traditional adversarialism, it does not deviate from judicial neutrality. Instead, these reforms replace the rubber-stamping procedures that currently tip the scales in favor of certain plaintiffs in the first place.
Bookman’s analysis implicitly acknowledges that transsubstantivity must fall by the wayside when designing these procedural reforms. The problems of rubber-stamp default judgments appear in predictable categories of state-court cases—debt collection and landlord-tenant disputes. (While Bookman’s article targets debt cases, she acknowledges the importance of extended the analysis and reforms to other areas of law including landlord-tenant). The American adversarial ideal has procedure operate (largely) independently of the substantive law claims being asserted. But default judgments demand a turn in the other direction.
Trackbacks/Pingbacks