David Udell and Cara Anna of the National Center for Access to Justice have an article in the National Law Journal on their proposed National Justice Index. The core idea:
Which states’ courts are in the worst condition? Which, despite the challenges, are making litigation simpler and less expensive? It’s hard to fix a problem when you can’t see clearly what’s going wrong. There’s no way to tell how one state’s legal system is performing or how it compares with others. It’s time to change that. We need a national Justice Index.
A Justice Index follows on the innovative idea by Yale law professor Heather Gerken of creating a Democracy Index to evaluate America’s election system. A national Justice Index would be a high-profile annual ranking of each state’s approach to legal assistance and the way each handles civil and criminal cases. That ranking would be supported by published data that could be mined by policymakers, the media and the courts themselves.
The article gives examples of the kinds of data that would be needed:
For example, do courts have sufficient resources for translators and to hold jury trials? For criminal cases, how many days are people held without counsel? How many clients does a lawyer represent at one time? How much does it cost to be caught up in a civil or criminal case? Are communities providing the resources needed by the justice system?
The article also highlights Utah’s success in some initial such steps:
The clearest attempt at transparency has been in Utah, which has adopted CourTools, a measurement system developed by the National Center for State Courts in 2005, and publishes results online. “They allow us to quantify, rather than speculate about, the impact of recent resource cuts, resource reallocation and system restructuring,” Utah Chief Justice Christine Durham said in her annual State of the Judiciary address this past year.
This is not going to be an easy project. I suspect that some jurisdictions are nervous about the very idea of comparison, fearing a race to the bottom at budget time. Others may be worried about looking bad in terms of specific measures.
But, in the long term, the courts are only going to be appropriately funded if they are seen as legitimate, and they are only going to be seen as legitimate if they are meeting the standards required by our constitutional vision. We need a race to the top, and this is one way to build one.
I am sure that David Udell and the Center would be very happy to hear from states interested in participating in, or learning more about, this project.
Thinking out loud here, wondering if a Justice Index would end up looking more like a Justice Lattice, since there will be different areas/regions/spaces/types of data that can be quantified and ranked along an index and then there will be concepts of Justice that can not (T,F type variables, absolutes). I am personally a big fan of the Gini coefficient, which has been used to meassure inequality (mostly in income, but now also in other fields). Maybe if a Justice Index is mathematically difficult to craft due to the nature of the field and data, maybe a legal Gini coeficcient can be developed to meassure inequality. The Gini coefficient has its downsides, however, those are well understood, and I do agree that we do need to start moving towards stable, objective meassurements of access to justice, that are based on well understood metrics and techniques,and that can be used by decisions makers to to understand the state of access to Justice across the board.