Projection for 2020 California by judge-appointed law reformers in 1993: ‘[T]he judiciary is ascendant and has assumed responsibility for virtually all the functions of government’


'Lawyer billboard above pawnbroker
Will the 2020s bring law reform sufficiently deep to make the linking of litigation and pawnbroking in this picture seem less than perfectly natural? Though the reputation of pawnbrokers is said to have improved in recent years, the adjectives ‘sad,’ ‘heartbreaking,’ and ‘depressing’ predominated, in a discussion on Reddit

Opticians and optometrists could be excused for being a touch grandiose about what was always going to be the Year of Optometry. But it is hard to say why a 1993 panel of 43 Californians charged by leaders of the state judiciary with brainstorming about reforming the legal system recorded dreams of progress, by 2020, that must have seemed absurd even a quarter-century ago.

The Commission on the Future of the California Courts, staffed by a wide range of distinguished professionals, was designed by the Chief Justice of the day — Malcolm Lucas — to address ‘a widespread public perception that the judicial branch is in need of major repair’.  Although it took two years to produce its report, this contained nothing resembling a plan of action. As an exercise in so-called alternative futures planning, its objective was merely to inspire planning for a ‘preferred’ future with a ‘vision statement’ — something like conjuring up fake sizzles to encourage the butchering and barbecuing of an actual steak. 

Its inclusion of a ‘wild card’ proposal for a judiciary so sublimely capable that it ‘is ascendant and has assumed responsibility for virtually all the functions of government’ in California was justified by pointing to space travel and the collapse of the Soviet Union as evidence of the power of dreaming big.

But that and virtually all the Commission’s other visions make for exceedingly sad reading on the cusp of 2020, and three months after the release of preliminary findings  of the state bar’s investigation into a ‘justice gap’— ‘the first comprehensive study on the need for civil [ rather than criminal ] legal assistance in California.’

Highlights of the 1993 Commission’s list of aspirations for California courts included:

IT IS 2020. In both perception and practice the California courts are scrupulously fair, accessible to all. […] IT IS 2020. Justice’s greatest asset is its servants, who in every action personify respect for public service and a commitment to the public’s interest. Judges and other dispute resolution providers are the embodiments of excellence. They are culturally competent, representative of the genders, races, and ethnicities they serve. They are community leaders, outspoken advocates for justice in its broadest sense.

The October 2019 interim update of the California bar’s study — scheduled for completion on 31 December, which happens to be tomorrow — included these highlights:

While all of the problems asked about in the survey could have been legally actionable, legal help was only sought and received for about 3 in 10 of them. … Lack of knowledge and concerns about cost are substantial barriers for not seeking legal help. … Overall, when it comes to perceptions of the civil legal system, Californians at or below [ the poverty level ] are more likely to have negative perceptions than those earning more. They are less likely to feel that they can use the courts to protect themselves (39% vs. 45%) and that they are treated fairly by the courts (34% vs. 45%) most or all of the time. … Most Californians do not receive legal help: 27 percent of low-income Californians received some legal help, while 34 percent of higher-income Californians did. … Experience with the legal system […] is not associated with confidence in the system …

In other words, Californians were just as unhappy with their justice system in 2019 as they were in 1993.

Looking to the top of the legal system for answers in 1992 — in ‘Innovation, Resistance, and Change: A History of Judicial Reform and the California Courts 1960-1990’ — Harry Scheiber, a legal scholar at Berkeley, asked why ‘reforms have seldom been truly successful.’ Weighing the extent to which this can be attributed to the Judicial Council — whose job is policymaking for California judges — and citing sources writing as if picking their way between tightly-packed landmines, he said in one footnote:

The virtual invisibility of the Judicial Council and its concerns with reform, even within professional circles, was the subject of remark in 1975, when an opinion survey revealed “that only 7 percent of the lawyers admitted to practice [in California] . . . have ever heard of [ … it …].” … In 1980 students of the Judicial Council’s record contended that […it…] had “consciously remained extremely conservative in its scope of interest and its willingness to apply pressure for implementation of its policies,” …

What he was really saying is what one COTIN entry after another — including last month’s post about the disciplining of bad judges — has been spotlighting. Nothing about the way the California judiciary and the rest of the legal system operate will change in the right direction until California’s judges stop obstructing reform.

But this is the brink of a new year, and it is incumbent on us all to be hopeful. 


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