Let us begin with some humility. The Tennessee Supreme Court has
asked the Commission on the Future of the Tennessee Judicial System
to consider the judicial system as it might exist 30 years from
now. It is a daunting challenge.
No commission members would claim to have predicted all the changes in those areas that have so heavily impacted the judicial system of 1995. If we were asked to project the present system to 2025, our choice of scenarios would surely be wrong.
Confronting the critical issues of today, which we will necessarily do to some extent, also risks leading us down improper paths. When caseloads are heavy, for instance, it is a natural reflex to seek more judges, but that reflex fails both to catch up fully with the present problem or address its causes.
The risks of future scenarios and current issues are too great,
so the commission's work has turned to a deeper route ? to the
very goals of the judicial system.
We have focused on what the judicial system should be like and
what it should do, and then we have considered how that vision
differs from the accumulation of past practice.
Our vision, then, is not a prediction of the future or an extension
of the present. It is more fundamental, but no less abstract.
It is also bound by the tight limits of the broader world.
Nevertheless, we welcome the opportunity of looking forward. What is important is that there be an open, ongoing discussion of the future. Specific goals may be moving targets, but an awareness of the values that determine those goals gives a guidance of its own.
At times we have had to make choices among these viewpoints,
but that is not to say we have simply rejected the others. It
is not even to say that we consider one right and another wrong.
Our choices often represent a balancing, a weighing of positives,
and we acknowledge right off that our recommendations are sometimes
leavened by the uncertain nature of such judgments.
Take, as an example of ambiguity, the basic disagreement over
the four purposes of incarceration.
? Rehabilitation occurs erratically, and there is good evidence that longer sentences make it less likely.
? Deterrence may be a factor for some crimes, but not for others, and the sheer volume of repeat offenders undermines many arguments on its behalf.
? Public safety, the incapacitation of those most likely to commit more crimes, may happen in the aggregate, but making predictions about individuals is an uncertain art. Pushing this purpose also quickly exhausts the funds that any society reasonably wishes to spend.
Which leaves the customary fourth reason. Call it....
? Justice. call it punishment, call it retribution. What we call it usually depends on whether we are, respectively, a judge, a prosecutor or a victim.
Yet trying to define this purpose becomes an almost theological exercise. A woman who murders her husband after years of abuse at his hands is almost certain never to commit a similar crime in the future. Prison punishment would serve no point for rehabilitation, deterrence or public safety. But if justice is to remain a societal process, not given to individual exercise, what then could the proper sentence possibly be?
The question goes beyond just such cases, of course, and there
is no demonstrably proper answer.
Defining justice
Justice, whether civil or criminal, remains difficult to define,
deeply subject to individual perspective and impossible to measure,
yet it goes to the heart of our work.
Justice, after all, attempts to define a shared moral sense,
but in a time of less sharing altogether. It makes public rules,
but in a time of increasing alienation from public institutions.
Precision is further tempered by the flux between private responsibility
and a search for blame. Now, to add one more element, come new
discoveries of biochemical sources of behavior.
Even the degree to which people accept life as unfair or seek recompense for its unfairnesses can change the very nature of justice.
On top of those philosophical issues are the increasing complexity and changing nature of the disputes that now come before the civil courts.
Post-industrial conflicts have come to a pre-industrial court
system, largely by default. A civil system that emerged to settle
land titles now wrestles with intellectual property. The tort
case of one individual against another has become the class-action
suit of thousands against an agency of their own government.
The interests of participants in the civil law have become as
defined and divided as those within criminal law, which further
diminishes consensus about proper change.
Judge Learned Hand could thunder: "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice." In fact, we ration it every day. Justice is a limited resource, and the present system reflects our means of allocation. Most often the criteria are time and money, from the first threat of a lawsuit to the final step of a plea bargain.
The legal system exists partly in the public sphere, partly in the private. More broadly, we live in a market economy, and it is largely our private economic resources that determine our access to the legal system.
Billion-dollar companies can spend thousands of dollars on platoons
of lawyers to fight over a few million dollars, and the outcome
may not heavily affect either company. But the person facing repossession
of an automobile, an act that could cost him his livelihood and
more, is almost certain to face the fight on his own.
This is not just a matter of rich vs. poor, however. The broad
middle class also feels priced out of most aspects of the legal
system.
The rhetoric of equality is important for certain purposes, and
obviously the ideals should be important to the judge on the bench.
It's also appropriate, though, to acknowledge that private resources
make for unequal access and thus distort the very idea of equal
justice. We encourage efforts that seek to redress such imbalances
and diminish the distortions.
On the civil side, the judicial system would collapse if every case filed actually went to trial. Justice is rationed in part to those who can afford to wait.
The judicial system has sometimes been a step-child of government
spending, since it has no formal standing within the two branches
of government that determine funding.
This may be evident at the most elemental stages. There is a
constant mismatch between what people expect of public officials
and what they are willing to pay them, and the judicial system
is far from immune to the problem.
Saving money with second-class salaries for public defenders and part-time judges, for instance, costs citizens every day in the quality of justice they then encounter.
Geography is a substantial limit on government, and Tennessee
faces two major problems.
First, the state's counties were drawn when the relevant technology
was the post office and a day's horseback ride to the county seat.
Today, counties remain the basic unit of government, even though
the relevant technology is the telephone and a 55 mile-per-hour
automobile. Tomorrow brings the computer-based video conference.
In Tennessee, these 95 divisions splinter efforts to consolidate
resources, to operate efficiently and to develop expertise, and
those effects are felt strongly in the judicial system. Nevertheless,
major inertia, backed by everything from political patronage to
high school basketball teams, resists change, and change will
have to work around the divisions rather than ignore them.
Likewise, the split between urban and rural interests continues to divide citizens.
In the context of the judicial system, sparsely populated counties
put a high value on local knowledge, flexible responses and personal
accountability of public officials. All those come at the expense
of uniform treatment, expertise and professional standards.
Urban centers, by contrast, focus on efficiency, uniformity and
detachment. They sometimes focus to a fault, with the judicial
system slipping into an impersonal machine to process high volume.
Each side sees its direction as the proper one, and where possible we have tried to accommodate these divided paths. At times, though, it is not possible to address statewide needs and policies with two kinds of responses.
Indeed, part of the reason for the creation of this commission, like similar ones in other states, is that the judicial system is being held accountable for phenomena well beyond its present control. No matter what changes might follow the commission's work, that will still be substantially true. Much of the system's reason for being is to serve as a last resort, when other institutions have failed to resolve differences.
There are changes the system can make, and many of them would address the changed world around us. But in a system that by its nature is tied to the past, both in substance and in ritual, there will have to be conscious efforts to consider new ideas and new ways of doing things.
If there was any item of testimony that we heard just a bit too much, it was, "If it ain't broke, don't fix it." Often, in our judgment, the matter under consideration was indeed broken. The speaker either did not see that it was broken or did not like the fix. But the longer the fix was to be put off, the more expensive it would be, and eventually incrementalism would not be much help.
The journey to a judicial system that will meet the needs of
2025 is unlikely to consist entirely of tiny steps. Nor will it
arrive at the proper place if we walk to it backwards, looking
fondly at the past rather than to the future.
In the pages to come, the commission makes recommendations for
some substantial changes, although not all of them require immediate
or one-step implementation.
Some represent an overhaul of structure. They aim to balance three elements: the economies of large scale, the expertise of specialization and the public attachment to local institutions.
Some go beyond structure to attitude. The judicial system of
the past has traditionally been a vertical, isolated organization,
dispensing justice as issues have arrived at the system's doorstep.
In the future, the system will have to collaborate more broadly
with other social institutions.
It will also have to reconsider where the adversarial tradition
is appropriate and where it is not. That tradition has served
as the truth-seeking method for much of the law's past, and while
it has its faults, by most judgments it has served as well as
whatever might be in second place.
Today, though, more issues arrive at the judicial doorstep that
in the past might have been settled by other means. Some areas
that are ill-suited to the adversarial system, such as domestic
relations, have claimed a growing portion of the system's resources.
And quasi-administrative functions, ranging from adoption to probate,
often do not require the pro-and-con test of competing sides.
Some goals are almost elegant in their impossibility. Why not
create a judicial system so good, so dependable, that no one would
have to use it?
We have heard some say, only slightly facetiously, that the test
of such ideas should be, "Are they weird enough?". The changes
required over the next 30 years may be so great that unless an
idea is considered "weird," then it probably does not break sharply
enough with the past.
As a commission, we would probably be described as responsible
citizens, but if there was anything we lacked in our makeup and
deliberations, it might have been just a touch of "weirdness,"
or at least the imagination to consider the unorthodox.
Again, though, there are also conventional ideas that may not
be covered in this report that may also be quite important to
the broader vision for the judicial system of the future.
Some of those ideas and some of our recommendations might seem substantial to those enmeshed in the present system. To others they might seem mundane. In fact, they are radical mostly by comparison to present practice.
From either view, we urge that public discussion of this report be as broad as possible. If it provokes more "weird" ideas, so much the better, for they may go to the heart of matters as clearly as our own formulations.
Imagine, on the other hand, what great social disturbances might ensue if technology places more people outside the world of work, or even if it continues to widen the gap between the well-off and the increasingly desperate.
A judicial system must adapt to such changes, but clearly we
cannot anticipate all of them here.
In addition, we have not studied every subject in as much depth
as we might have. We have not considered every possibility. And
we are not, by any means, the only source of wisdom or innovation
for the future. An idea's omission here should not preclude its
further consideration.
Nevertheless, this much should also be said:
There are important matters wrong with the judicial system now.
There is every reason to believe they will continue to be wrong
until they are fixed. And we are convinced they can be fixed.
We welcome the discussion to come.
Virtually every judge, for instance, dreams of the efficient record-keeping that computer technology could bring to the courts. Not every judge, however, will welcome the measurable accountability that such technology inexorably brings with it.
Some of the unintended consequences of both conventional and
technological changes will be beneficial to the system. Others
will not. So no matter how closely the judicial system and the
General Assembly respond to this report, it is only one point
in an on-going process.
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