“Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new theoretical framework: three dimensions of active judging. These dimensions capture a judge’s role in adjusting procedures, explaining law and process, and eliciting information. The study is based on a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth, qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample are active in some way, but judges’ practices vary in mean-ingful ways across the three dimensions. While all judges are willing to adjust procedures, they differ in whether and how they explain the law or elicit information. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law—burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate caselaw, a regulatory body, and one another. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests that consistency in active judging may require more substantial guidance than that available to judges in this court.
Active Judging and Access to Justice, 93 Notre Dame L. Rev. 647 (2018)