Why care about the courts?

– Professor Judith Resnik, Yale Law School [ref]Arthur Liman Professor of Law, Yale Law School. All rights reserved, 2025.[/ref]

I live and work in the United States where, in 2025, courts have a high profile. At issue in dozens of lawsuits are questions about the authority of the President, the role of administrative agencies and the responsibilities of Congress. Those lawsuits reflect that people have been fired, relocated or deported; healthcare programmes ended; scientific research halted and food bank distributions stopped. US federal courts are one venue in which the lawfulness of these actions can be subjected to disciplined discussions about legal rules. The interactions are organised by procedures applicable to all disputants and transparent to everyone. When rendering judgments, courts must explain their reasons, and appeals are available.

These dramatic, painful events in the USA are reminders of why courts are needed in ordinary times, as well as in extraordinary moments. Indeed, the stakes in the US cases – loss of jobs, income, healthcare and food – parallel the problems explored in this suite of essays about everyday life in the UK. The authors document the importance of having access to legal remedies when people try to keep their homes, use social benefits, enforce employment contracts, or buy and sell goods.

The potential for courts to provide redress dates back centuries. Statements guaranteeing “rights-to-remedies” can be found in the Magna Carta. These commitments have been reiterated at national and international levels around the world. However, for centuries, not all people were recognised as eligible to bring claims to courts and hence as having “rights-to-remedies”. For example, 19th-century statutes in many parts of the USA prevented married women from owning property and entering into and enforcing contracts. Enslavement put Black men and women outside the circle of rights, and through much of the 20th century, prisoners were “civilly dead” and without legal status.

Equality movements revised those many exclusions, and entitlement to the longstanding government service called ‘courts’ has expanded to embrace all persons. Before I discuss the challenges of making good on this promise, explanation is in order of why access to courts became a bedrock for democratic orders. That individuals – be they tenants, consumers, employees or family members in conflict – need access to courts is easy to see. The reminder is that governments need courts too – so as to demonstrate their power to make and enforce laws.

These interdependent needs were at the centre of the development in the USA of constitutional obligations that courts had, for some kinds of cases, to open doors for people who could not afford to pay court fees. As the Supreme Court explained in a 1971 ruling, the US Constitution required states to waive filing and service fees so that indigent individuals could seek divorces in their courts:

“Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner.”[ref]Boddie v. Connecticut, 401 U.S. 371, 374 (1971).[/ref]

Governments’ legitimacy is bolstered when its residents can participate in adjudicatory processes; showing the ability to maintain peace and security helps to generate government’s authority to do so. About 50 years later, Lord Robert Reed (now President of the UK Supreme Court) offered an account that paralleled the US decision. In his 2017 Unison opinion, which held unlawful the steep increase in fees charged to use an employment tribunal, Lord Reed explained the contribution of precedents – which articulate legal rules – in everyday life and that such rulings emerge when individuals or business turn to courts, in this context to contest employment decisions.[ref]R (on the application of UNISON) v. Lord Chancellor, [2017] UKSC 51; see also Adams, A, & Prassl, J. 2017. Vexatious Claims Challenging the Case for Employment Tribunal Fees. Modern L. Rev. 80, 412.[/ref] Inside the US and UK decisions are assumptions that government – and its courts – are obliged to be resources for the establishment and the preservation of relationships bounded by law.

Aspirations for courts

But why and how? Explanations of adjudication’s virtues came from scholars as well as judges. For example, Frank Michelman detailed how access to litigation gives individuals opportunities for participation, for efficacy and for dignified treatment from the state.[ref]Michelman, F. 1973. The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights. Duke L.J. 1153, 1172–1177.[/ref] Jerry Mashaw underscored that disciplined decision-making enabled similarly situated claimants to be treated equally.[ref]Mashaw, JL. 1976. The Supreme Court’s Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value. U. Chi. L. Rev. 44, 28.[/ref] The argument that Dennis Curtis and I proffered in our book Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms focused on another aspect – that adjudication produces a structured interaction among disputants, governments and third parties that itself is a democratic practice.[ref]Resnik, J, & Curtis, D. 2011, reissued 2022 ebook. Representing Justice: Invention, Controversy, and Rights in City States and Democratic Courtrooms. Yale Univ. Press. Available from: http://hdl.handle.net/20.500.13051/18178.[/ref]

When the word ‘democracy’ is used in the context of courts, many people think about the contribution of jurors. Yet in all kinds of cases, with or without juries, judges are required to provide equal and dignified treatment to everyone involved. Litigants in turn must accord respect to each other. When rendering decisions responding to conflicting claims of right, judges have to explain the bases for their exercise of power. Independent impartial assessments, explained in public, help people see government ‘at work’, dealing with parties in disagreement. Because courts are open, the public can watch whether, in practice, those obligations materialise. As Jeremy Bentham posited long ago, “publicity” enables what he called the “Tribunal of Public Opinion” to form independent judgments about the quality of government actions.[ref]See Bentham, J. 1843. Constitutional Code. In Bowring, J (ed). The Works of Jeremy Bentham, vol. 9, 41.[/ref] While presiding over a trial, the judge is, to paraphrase Bentham, on trial.[ref]Bentham, J. 1843. Rationale of Judicial Evidence. In Bowring, J (ed). The Works of Jeremy Bentham, vol. 7, 355.[/ref] It is these egalitarian exchanges demonstrating respect that can – if aspirations are realised – enable adjudication to be understood as a democratic practice, along with voting, seeking elective office, and participating in legislature debates.

The information forced into the public realm by court processes becomes part of iterative exchanges with other branches of government and social movements. On this cheerful account, the interactions in courts can teach the desirability of hearing different views about the impact of legal rules as applied to specific facts. From those many applications, legal norms develop. Moreover, as litigants in various situations raise parallel claims, observers can see the impact of the underlying legal principles. Litigation provides opportunities to confirm extant norms or to press for changes in legal rights.

For example, in recent decades, courts provided a platform for the documentation of the harms of violence against women – once tolerated as part of family life. Social movements pressing women’s equality prompted legal reforms naming household violence as an illegal form of subordination. Likewise, in earlier eras, tenants and workers had few rights; lawsuits about apartments that lacked running water and about harassment on the job generated new obligations for landlords and employers to shoulder. Other examples of litigation producing change in the USA include ending discrimination based on race and sex in laws governing marriage, as well as the recent expansion of rights to own guns. Vivid court-based accounts of terrible crimes have helped to propel harsher sentencing laws. Furthermore, conflict does not end once rights are identified. Decades of work at state and federal levels resulted in recognition of a constitutional right to abortion and, in the last few years, the rejection by a majority of the Supreme Court of that constitutional protection. And consumer and employee victories in one arena may galvanise opponents of such rules to push for change on the grounds that the costs outweigh the benefits.

In short, the particular and the peculiar structure of contestation in courts has the potential to empower disputants in disagreement about facts and law. Outcomes may be viewed by some as innovative and others as regressive, and the debates enabled by courts are often continued in proposals for legislation and through social and political movements. Courts on this account are one of several venues that enable individuals to experience the utilities of having functioning governments. When working well, courts could generate collective narratives of identity and obligation as well as intensifying conflicts about what those identities and obligations ought to be.

The challenges of translating values into practice

Courts are not only a venue for conflict; they are also struggling to make good on their promises. In many parts of the world and inside the USA, paths to legal remedies are non-existent or limited, rationing is commonplace, and calls for reformulation abound.[ref]See Resnik, J. 2021. Constituting a Civil Legal System Called ‘Just’: Law, Money, Power, and Publicity. In Kramer, X, et al (eds). New Pathways to Civil Justice in Europe, 299–319.[/ref] Bentham’s imagery of a singular Tribunal of Popular Opinion missed how, as Nancy Fraser explained long ago, no single unified ‘public’ exists. Given divisions and different points of view, pluralisation – publics – is needed to capture an array of conflicting points of view. Further, given contemporary realities, terms such as “predatory publics” need to become part of the lexicon. Through the internet and more, aggressive appropriation, doxing and trolling have become modes of interaction.[ref]See Resnik, J. 2019. The Functions of Publicity and of Privatization in Courts and Their Replacements (from Jeremy Bentham to #MeToo and Google Spain). In Hess, B, & Koprivica, A (eds). Open Justice: The Role of Courts in a Democratic Society, 177–252; Fraser, N. 1992. Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy. In Calhoun, C (ed). Habermas and the Public Sphere, 56.[/ref]

As the essays in this symposium also demonstrate, courts are themselves in need of resources and reform. The current challenges stem in part from the transformations of the last century that expanded the ability of people of all kinds to be in court. Legislatures recognised new entitlements of employees and consumers, as well as rights to non-discrimination, to safety within households, to a clean environment, and in specified instances, to government assistance. However, the great achievement of the universality of rights of access and remedies becomes illusory when courts cannot meet the demand for their services.

Innovation, as the essays discuss, is needed. New processes and technologies can help, as long as they remain loyal to courts’ obligations to provide disciplined, public-facing, explanatory processes. Web-based procedures could not only enhance accessibility and legibility but could also build in paths for observers to watch, as England and British Columbia do for some kinds of cases. Electronic platforms offer the potential for lowering transaction costs and making data analyses more readily available.

Yet, and again, a caveat is in order. As Tanina Rostain has explained, “techno-optimism” can be misplaced. In the USA, many jurisdictions have given over their court-record systems to one corporate actor. Glitches have left people in detention, records unavailable and courts unable to receive case filings. In addition, private providers may impose high costs, charge for making changes, and have each system operate without easily interfacing with other computer-based programmes.[ref]Rostain, T. 2024. Keynote: Access to Justice as Access to Data. Nw. U. L. Rev. 119, 5, 18; Venook, T. 2025, forthcoming. Enterprise Justice: Tyler Technologies and the Privatizing Court. Yale. L.J. 135.[/ref] These challenges are not limited to the USA. Around the world, court data systems are antiquated, and conversions to electronic systems are difficult and expensive. AI sounds like a panacea. But legal rules and the facts of cases are complex, and translation and analyses require sophistication. To address the many issues, public sector commitments are key. Governments need to take responsibility for building and providing platforms so that, as Eliot Fineberg has explained, the utilities can be made available to all.[ref]Fineberg, E. 2024. Panel Address on the ‘Future of Courts’ at UCL Laws (14 May 2024).[/ref]

Conflicts, commitments and constituencies

More problems exist. The idea of having one’s “day in court” has not, as Hazel Genn recounts in her overview of 40 years of reforms in England, galvanised the “non-legal world” to insist on support for more “access to justice”.[ref]Genn, H. 2025. Let’s Not Talk About Access to Justice: Unraveling the Concept to Create Meaning in the Non-Legal World. Neill Lecture 2025 at All Souls College, Oxford University (25 Feb 2025).[/ref] Rather, resources have shrunk. Moreover, a major mobilisation to cut back on access has, in the USA, been underway for decades – often with the US Chamber of Commerce in the lead.[ref]See Burbank, SB, & Farhang, S. 2017. Class Actions and the Counterrevolution Against Federal Litigation. U. Pa. L. Rev. 165, 1495, 1525.[/ref] The arguments for change include that less-visible dispute resolution is efficient and consumer friendly.[ref]See, e.g., Hearing Before the Subcomm. on Fin. lnsts. & Consumer Credit of the H. Comm. on Fin. Servs., 114th Cong. 2016. ‘Examining the CFPB’s Proposed Rulemaking on Arbitration: Is it in the Public interest and for the Protection of Consumers?’, 4. There is parallel opposition to EU modes of collective redress: U.S. Chamber Inst. for Legal Reform. 2017. The growth of Collective Redress in the EU: A Survey of Developments in 10 Member States, 1. Available from:  https://instituteforlegalreform.com/wp-content/uploads/2020/10/The_Growth_of_Collective_Redress_in_the_EU_A_Survey_of_Developments_in_10_Member_States_April_2017.pdf [https://perma.cc/2YMQ-WSZ3].[/ref] Instead of ‘wasting’ resources in litigation, the promise is to have fewer disputes and cheaper resolutions. For example, in the USA, companies can require users of cell phones or credit cards to go to the dispute resolution provider chosen by the company and to proceed single-file, rather than through collective actions. In 2011, over objections by consumers, the US Supreme Court interpreted a 1925 statute, the Federal Arbitration Act, to permit enforcement of a privately imposed mandate that banned collective redress.[ref]Analyses of details are in Resnik, J. 2011. Fairness in Numbers, Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers. Harvard Law Review 125, 78.[/ref]

The outsourcing of dispute resolution to private providers has not been accompanied by obligations to provide public access to the processes or accountability for decisions made. Under the rules of major arbitration providers, third parties are not permitted to watch. Further, companies closing off access to courts and requiring use of private systems at times also impose nondisclosure and confidentiality requirements that they justify as facilitating conciliation. In theory, more accessible, lower-cost dispute resolution would prompt use of such systems. Yet data on the numbers of filings demonstrates that in practice few individuals make their way to the arbitration programmes provided by the companies whose behaviours are claimed to be unlawful.[ref]Resnik, J. 2015. Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights. Yale Law Journal 124, 2804.[/ref] Plaintiff-side lawyers explain that that non-disclosure and closed proceedings suppress claims. Some applaud that result. For example, an organisation devoted to “tort reform” uses the label “judicial hellholes” for jurisdictions in which plaintiffs do get into court and prevail.[ref]See, e.g., American Tort Reform Foundation. 2022. Judicial Hellholes 2022/23, i. Available from https://www.judicialhellholes.org/reports/2022-2023/2022-2023-executive-summary [https://perma.cc/47GJ-TBEW]; —. 2023. Judicial Hellholes 2023/24, i. Available from: https://www.judicialhellholes.org/wp-content/uploads/2023/12/ATRA_JH23_FINAL-1.pdf  [https://perma.cc/8DFA-JGNJ].[/ref]

Devolution, outsourcing and privatisation may also mean that third parties do not have opportunities to watch directly proceedings or to learn about outcomes in the aggregate. Lost is the ability to assess whether procedures and decision-makers are fair, how resources affect outcomes, whether similarly situated litigants are treated comparably, and why one would want to get into (or avoid) court. Instead, a private transaction has been substituted and, unlike public adjudication, control over the meaning of the claims made and the judgments rendered rests with the corporate provider of the service. In lieu of aspiring, as governments did historically, to validate their legitimacy through public practices, these dispute resolution mechanisms increasingly rely on procedures that do not admit of a need to show processes to justify the exercise of authority.

Zoom out (so to speak) to the larger picture. The obligations of courts to provide services and give subsidies to disputants are exemplary of commitments (if not their full materialisation) to egalitarian regulatory policies – just as the efforts to limit courts reflect efforts to restrict regulation and promote privatisation. To conceive of disputes as ‘private’ is to miss that the law that regulates them is ‘public’ and, as the Supreme Courts of both the USA and the UK have explained, the public needs to know that contracts are enforceable, that negligence is actionable, and that compliance with regulations can be monitored and breaches sanctioned.

In sum, the genesis of rights-to and rights-in courts comes from their service to users and to the state. Courts have been part of a model of legitimacy in which governments depend on judiciaries to implement their rules, to develop norms, to protect their economies and to prove governments’ capacity to maintain ‘peace and security’.

Today’s issue is whether courts can be sustained as an exemplar of aspirations for integrity, independence, neutrality and equal treatment. In the USA in 2025, the pressing problem is whether courts’ commitments to egalitarian values and constrained power can provide counterweights that survive the assault on their institutional identity. More generally, we face the unravelling of ‘the governmental’, which puts an array of conventions, practices and rights in jeopardy.

In international law, a phrase ‘aspiring states’ is used in reference to subnational entities seeking to establish their distinct identity in conflicts within extant governments. That description is apt today for all sorts of polities, beleaguered by internal conflicts, hyper-nationalism, transnationalism, globalisation and privatisation. Some time ago, I proposed adding another term to the lexicon – ‘statisation’ – to capture the movement during the 19th and 20th twentieth centuries from activities run by the private sector to the public sector.

A myriad of government-based services came into being during the last centuries.[ref]Resnik, J. 2013. Globalization(s), Privatization(s), Constitutionalization, and Statization: Icons and Experiences of Sovereignty in the 21st Century. Int’l J. Const. L. 11, 162, 172–76. This article was republished in Prisiones Revista digital del Centro de Estudios de Ejecución Penal 6, 21 (2025).[/ref] Examples include public roads, schools, police, prisons, armies, postal services, healthcare, parks. Once privately provided, these services have come to be seen (in terms I borrow from US constitutional law) as “essential attributes of government”. Yet on both sides of the Atlantic, privatisation and deregulation denude the state of its identity (relatively newly forged) as a provider of goods and services, of which courts are but one.

In the spring of 2024, when I was in London, the National Portrait Gallery had a great exhibition, entitled “The Time is Always Now”. To paraphrase, now is the time to speak up for and to fund courts as one of many facets of functioning, accountable, law-filled and lawful government.

The Nuffield Foundation has commissioned this project, but the views expressed are those of the authors and not necessarily the Foundation.