Kafka in America: When Judges Don’t Know the Law

Anthony Perkins in a still photo from Orson Well’s 1962 film version of “The Trial”

In Franz Kafka’s sinister 1925 novel, The Trial, the hero finds himself the defendant in a court case where he is unaware of what law he has broken. No one else seems to know either but he is found guilty anyway.

Could that happen in the U.S.?

According to  a forthcoming paper in the Columbia Law Review, some 32 states allow at least some low-level state court judges to adjudicate without a law degree.

That sets up a situation in hundreds of civil legal cases involving small claims suits, evictions and other minor disputes, where the only individual in the courtroom who is aware of the law is the attorney for the prosecution, say the authors of the paper, Sara Sternberg Greene and Kristen Renberg, both of the Duke University School of Law.

And much of the time, they add, the prosecuting attorney doesn’t even bother to show up.

“Since most poor litigants are unrepresented in civil legal cases, this sets up an almost Kafka-esque scene in courtrooms across the country,” they wrote.

In Kafka’s novel, the hero is executed.  The outcome in U.S. magistrate courtrooms is not quite as drastic—but it is still profound, say the authors.

“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—knows the law.”

Right off the bat, this sets up litigants for an uphill struggle,  the researchers explain.

Litigants are left to experience a courtroom of supposed “law,” but they do not actually experience the law.

“Instead, they experience a courtroom in which often no one, not even the judge, is aware of the law,” the paper said.

Put another way, the researchers detail that in these magistrate courtrooms, where a hearing is granted only for minor civil or criminal cases, the one person in the courtroom who is most aware of the law is an attorney — if one is even present.

That undermines justice for thousands of  Americans too poor to afford legal counsel who pursue civil cases in lower courts every day.

“There are hundreds of magistrates and justices of the peace in these states wielding substantial legal authority who have never been trained in the law,” the paper said. “In 17 states, judges with no law degree are permitted to adjudicate eviction cases.”

In the state of Delaware, someone would only have to be 25 years old and a Delaware resident to be a magistrate judge. In Georgia, they must be at least 25, have earned a high school diploma or equivalent, and register to vote.

In West Virginia, a magistrate candidate must be at least 21, with a high school education or equivalent, and must not be an immediate family member of another magistrate in the county.

While these are only a few examples noted by Greene and Renberg, this is still the reality of a magistrate court in many states.

Greene and Renberg write: “This system cannot and should not persist.”

North Carolina Justice

The researchers argue that by allowing underqualified judges to sit on the bench in low-level state courts sends a very clear message. The courts that poor people, who are disproportionately people of color, are most likely to interact with — consider their cases not worth the trouble of seeking fair justice.

A case study in North Carolina, where over 80 percent of magistrates do not have JDs, revealed a consistent failure of justice, the researchers said..

Attorneys interviewed emphasized that their experiences with non-lawyer judges were different from the experiences with lawyer-judges, adding that non-lawyer magistrates are less comfortable applying legal remedies to situations.

Similarly, judges without a legal background were less likely to rule in favor of tenants regarding habitability claims, again because of the legal analysis required.

Lawyers interviewed also argued that non-lawyer judges ruling in rural areas made it exceedingly difficult for tenants to succeed with their legal claims, appearing to negatively impact lower income citizens.

Another still from Orson Well’s “The Trial” film of Kafka’s novel.

Lastly, Greene and Renberg  note that North Carolina spends little time training its magistrates.

As experts have noted in ProPublica, “Once selected, [North Carolina magistrates] undergo fewer hours of mandated training than the Palmetto State requires of its barbers, masseuses and nail salon technicians.”

As one key informant involved in magistrate training said:

 [T]here’s no training. It’s just on-the-job training . . . until they come to basic school.”  They called the training situation “scarily insufficient” and said, “My metaphor really is, it’s like asking someone to decorate a tree when they don’t have a tree. And you’re lobbing ornaments at them. And they don’t know where to put them. So, they’re just trying to hold ‘em while they figure [it] out.

Recommendations

“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,” the authors detail in their paper.

Both Greene and Renberg write that creative solutions would be applicable in this case, especially as the status quo doesn’t seemingly value extended training. Instead, the researchers note that an idea for law schools to invest in joint social work and J.D. programs, “which may stir interest and increase the availability of law graduates uniquely trained to work within the social context of low-level courts” is something to consider.

The researchers also note that in order to fully understand the impact that lay judging has on lower-level courts is to study their formal and rule-bound system, and look to see how what’s currently happening fits into the border historical context of “neglecting institutions that serve the poor.

“We need to acknowledge how that neglect has led to inequities in the legal system and the perpetuation of inequality in our justice system,” the authors detail.

Greene and Renberg conclude by writing: “Ultimately, if change can be made in the court system, perhaps that reform can be an important step in tackling, more broadly, the structures and institutions in our society that promote inequality.”

Sara Sternberg Greene is a sociologist and legal scholar whose teaching and research interests include poverty law, housing law, consumer law, bankruptcy, family law, contracts, qualitative research methods, and law and sociology.

Kristen Renberg is a J.D. Candidate at Duke University School of Law Class of 2022. She received her Ph.D. in Political Science from Duke University in September 2020, where her substantive research focuses on courts as political and legal institutions.

 The full paper can be accessed here.

Andrea Cipriano, associate editor of The Crime Report, contributed to this summary.