Judicial Procedural Involvement (JPI): A Metric for Judges’ Role in Civil Litigation, Settlement, and Access to Justice
| DOI | http://doi.org/10.1111/jols.12243 |
| Published date | 01 September 2020 |
| Author | Ayelet Sela,Limor Gabay‐Egozi |
| Date | 01 September 2020 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 3, SEPTEMBER 2020
ISSN: 0263-323X, pp. 468–98
Judicial Procedural Involvement (JPI): A Metric for Judges’
Role in Civil Litigation, Settlement, and Access to Justice
Ayelet Sela∗and Limor Gabay-Egozi∗∗
We examine judges’ role in civil litigation by studying empirically
the relationship between judicial procedural involvement (JPI) and
lawsuits’ mode of disposition (MoD). Furthermore, we propose JPI as
a metric for the allocation of judicial attention to litigants. Applying the
framework to Israeli trial court data, we find that 60 per cent of cases
included JPI (through hearings and rulings on motions) whereas 40
per cent involved only the court’s institutional function. By juxtaposing
JPI and MoD data, we shed light on the scope of judicial involvement
in settlements, the ratio between judges’ normative public-life function
and their problem-solving function, and other pertinent questions. Since
nowadays lawsuits are rarely adjudicated, trial rates are low, and
litigants in person (pro se litigants) are common, we argue that access
to justice should also be construed in terms of access to judicial
attention throughout the proceeding, which is readily measurable
through JPI.
I. INTRODUCTION
In an era of low trial rates, what is the role of judges in civil litigation? A
rich body of literature suggests that their role has gravitated considerably
from final adjudication of facts and law to case management and settlement
promotion. However, the scope and nature of this shift in judges’ role and its
∗Faculty of Law, Bar-Ilan University, Ramat Gan, 5290002, Israel
ayelet.sela@biu.ac.il
∗∗ Department of Sociology and Anthropology, Bar-Ilan University, Ramat
Gan, 5290002, Israel
This research was supported by the European Research Council Grant Number 647943. We
thank the anonymous reviewers,Michal Alberstein, Lee Epstein, Roy Shapira, Dana Rosen,
Keren Weinshall,Andrea Kupfer-Schneider, Gali Aviv, Galit Ailon, and participants of the
Chicago Law School Judicial Behavior Workshop and of the Second European Conference
on Empirical Legal Studies for their comments on earlier drafts. Any errors are our own.
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
relationship to the sociopolitical function of courts, the allocation of judicial
involvement as a resource, and access to justice, remain understudied. This
article examines the relationship between judicial procedural involvement
(JPI) in litigation and lawsuits’ mode of disposition (MoD), using a sample
of civil trial court cases in Israel. In addition to providing the first empirical
account of these phenomena, we explore scholarly and policy applications of
the analysis. Specifically, we use the JPI framework to capture the scope and
nature of the distinct role that judges play in litigation and measure the ratio
between judges’ public-life function (proclaiming public values) and their
problem-solving function (resolving private disputes). Moreover, given low
trial rates, prevalent settlements, and considerable litigation abandonment,
we argue that access to judicial attention, involvement, and scrutiny is an
important dimension of access to justice, especially for self-represented
litigants. Finally, we discuss the contribution of this analysis to the design
of court procedures and our understanding of the sociopolitical role of
courts.
The JPI framework usefully identifies cases in which judges are directly
involved in the proceeding. In other words, it distinguishes between cases
in which judges can scrutinize the proceeding, influence litigants’ behaviour
and decisions, and shape the outcome, and cases that terminate without such
potential influence. In our sample, 40 per cent of the cases terminated without
any JPI – that is, without a judge ruling on motions, conducting pre-trial
hearings, or presiding over a trial. We identify this group of cases as served
solely by the court’s institutional function. Furthermore, by juxtaposing JPI
and MoD data, we shed light on the nature of the three types of JPI and the
court’s institutional function. For example, our finding that 65 per cent of the
settlements were preceded by JPI enables evaluation of the scope of direct
judicial influence on litigation-related settlements.
Our discussion explores the implications of the analysis for our
understanding of the sociopolitical role of courts, the allocation of judicial
involvement as a resource, and access to justice. We argue that in an era
in which few cases are traditionally adjudicated and many cases terminate
without JPI, it is useful to construe access to justice and procedural justice
also in terms of access to judicial attention, involvement, and scrutiny. JPI
can be particularly meaningful in cases involving litigants in person (pro se
litigants), since in the absence of lawyers, judges often assume a more central
role in facilitating litigation. The scope and nature of this judicial capacity
can be measured in terms of JPI. Our analysis paves the way for identifying
differences in access to judicial involvement and scrutiny between different
types of litigants, disputes, legal issues, and so on. Finally, we propose to
use JPI as an organizing principle for procedural reform, by informing policy
makers about the current allocation of judicial involvement as a resource and
pointing to areas where it may be desirable to reform procedures to enable
more, less, or different JPI.
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
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