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By: Vanessa A. Baird

Abstract:

In Courts: Unmasked, Alyx Mark has taught scholars of courts—and scholars of American politics more generally—about the politics of state court administration in the U.S. context. Her arguments and findings will convince political scientists of the importance of the policy of court administration for our understanding of judicial politics in general—and particularly, the importance of this topic for ordinary people's lives. Though Mark focuses on civil cases, her arguments make clear that judicial scholars should focus their attention on state court administration policymaking for the criminal context as well.

Three aspects of this book stand out. First, its mixed methods approach to understanding the policy making process is first rate; she combines carefully selected interviews with quantitative scales measuring centralization of administrative court procedures. Secondly, this book makes a significant contribution to the theory of court administrative policymaking. But the other notable aspect of this book is that her findings have extraordinary normative implications, the importance of which should inspire much more research on the value of these procedural policies. In this review, I will summarize her findings, but I will also explore the implication of her findings for future research.

This book includes many positive aspects, but one stands out—Mark's painstakingly careful mixed method approach that helps triangulate her inferences. This book is also an exemplary guide in transparency and persuasiveness in defending the validity of a complex scale (58–61). To do this, she created imaginative visualizations of a complex quantitative scale (62, Figure 2.1). But what is most impressive in her methodology is that she is conscientious about how each method helps addresses weaknesses in others. For example, she notes that her analysis of the administrative and procedural changes during the COVID pandemic in Chapter 3 may lack generalizability outside of this context. She then provides evidence in Chapter 4 that many of her lessons generalize outside of this seemingly narrow context. For this alone, Courts Unmasked could be used in graduate seminars in any subfield to teach graduate students how to combine methods for maximum effect.

In terms of her contribution to the subfield of law and courts, she directs our attention from what most judicial scholars focus on, that is, the adjudicative decision-making process. Mark argues that state courts scholars who study the constraints (or lack thereof) that higher courts impose upon lower courts in decision-making in the courtroom should bring the rules made outside the courtroom regarding judicial administration into their analysis. Interestingly, she finds that the importance of the hierarchy varies by state. In some states, these administrative procedures are created by state supreme courts, and in others, lower courts have more freedom to decide these policies for themselves.

Mark argues that when the pandemic hit, state administrative policymaking procedure was not a blank slate. In states where the supreme courts reigned over lower courts in these procedures, she finds through painstakingly careful and exhaustive data collection that COVID policymaking was centralized and therefore brought about uniform rules throughout the state. In states that had no precedent for state supreme court policymaking, local courts were free to innovate their own policy that could suit the local context (or the judges' preferences in these local contexts).

Mark never takes her eye off the ball in terms of how these seemingly dry administrative rules and procedural changes affect millions of ordinary Americans every year. These effects are particularly negative for those who either cannot afford a lawyer or are otherwise resource-poor. In some procedural contexts, a single mom might be able to get child support ordered, or a renter in a unit spoiled with unlivable mold might be able to challenge their landlord. In other states or local contexts, the same resource-poor litigants lose, even when the law is on their side. In some states, a working parent caring for kids at home during the pandemic may have to drive a long distance to find a working notary, whereas in others, this requirement may have been waived. The variation across these contexts is striking.

One reason Mark's excellent analysis should be meaningful to scholars of American politics who do not study courts is the sheer number of state court litigants. With 15 million state court civil suits filed per year, there are likely nearly 40 million litigants, assuming 2.5 litigants per suit. That is fifteen percent of the U.S. adult population per year. Likely, very few Americans live their lives without ever being involved in a state civil court suit. Nevertheless, survey researchers in American politics (me included) do not ask people about their participation in these processes, how they perceive their experiences, or how these perceptions translate into all the things American politics scholars care about: participation, trust in politics, support for the rule of law, rejection of political violence, including how people's perceptions affect others in their social networks.

Every systemic inequality related to race, class, gender (including sexuality and gender identity), age, and immigration status likely interacts with procedural and administrative rules. In some cases, these procedures might ameliorate these existing inequalities, while in others, rules may worsen them. Mark's contribution joins work such as Jamila Michnener's Fragmented Democracy in examining the administrative state's power to alienate people from the system of government (or not). Courts Unmasked reveals much about these how these policies are created but also, importantly, how they should inspire future scholars to investigate the effect of these policies on the people participating in state litigation.