No Day in Court: Access to Justice and the Politics of Judicial Retrenchment (Oxford University Press, 2015).

In No Day in Court, I examine the efforts of political and legal actors to scale back access to the courts in the decades since it was dramatically expanded, largely in the service of the rights revolution of the 1950s and 1960s.  Since then, for political, ideological and practical reasons, a multifaceted group of actors have targeted a variety of institutions and procedural mechanisms to constrain the role that the courts play in American politics.  The conventional narrative of backlash focuses on an increasingly conservative Supreme Court trying to gut the developments of the New Deal and Civil Rights eras, and of conservative activists mobilizing to pressure Congress to do the same.  But there is another very important element to this story, which is the way in which access to the courts for rights claims has been scaled back by efforts that target the “rules of the game:” the institutional and legal procedures that govern what constitutes a case, who can be sued and for what, in what venue a dispute is handled, what tools judges and lawyers have at their disposal for adjudicating cases, what remedies are available for particular types of claims, and whether further judicial review of contested outcomes are available.  These strategies have often gone overlooked in the political science literature; but their success makes them an indispensable component of this broader story of access to justice and the provision of rights and benefits.

In response to these developments, I ask two interrelated questions: What explains the politics of institutional retrenchment in the judiciary?  When and why is institutional retrenchment more likely to occur?  I take a historical-institutional, case study approach to addressing these issues.  Despite the consequences that such attacks have for the quality of justice and rights protections in the United States, public law, policy, and American Political Development scholars have only begun to study this phenomenon, and have not adequately explained judicial retrenchment within existing theories of institutional change.  Unlike most law scholars who focus more narrowly on Supreme Court decisions and legislative acts of court curbing, I examine retrenchment strategies that seek to reduce access to courts by 1) changing who is empowered to adjudicate legal claims (whether judges, administrators, or members of the private sector); 2) changing the rules that govern a legal proceeding (including what constitutes a valid legal case, how it must be adjudicated, and what remedies will be available to successful litigants); 3) changing the venue in which claims are adjudicated (from traditional courts to the administrative state); and 4) changing the incentives (efforts aimed at either protecting groups of individuals from being sued or limiting the remedies that incentivize pursuing a legal proceeding).

 My analysis demonstrates that groups seeking to scale back access to the courts change over time and are motivated by more than mere partisan backlash; that the processes of retrenchment are distinctive but not static, unfolding in a series of methods for attempted reform according to factors such as the presence of veto players, levels of discretion, insularity, and overreach; and, most importantly, that the availability of malleable, legal and regulatory rules enhance the likelihood of effective change.  Finally—and often ironically—I find that the process of state development itself sows the seeds for subsequent retrenchment, as reformers have successfully usurped legal practices put in place for expanding access to courts for the opposite purpose.  The institutional mechanisms developed to promote the rights revolution-era policies are not only components of an ever-growing American state, for these very same mechanisms have also been used to scale it back.  This complicates existing theories of institutional change, as retrenchment must be understood in the context of broader theories for how institutional change and reform occur.